Antonas & Melku - [2023] FedCFamC2F 716

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Antonas & Melku [2023] FedCFamC2F 716

File number(s): DGC 1308 of 2015

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 16 June 2023

Catchwords: FAMILY LAW – final parenting orders – where previous final parenting orders were made – where mother seeks sole parental responsibility – where father seeks equal shared parental responsibility – where mother seeks that the child spend time with the father in accordance with the child’s wishes – where father seeks a gradual increase in time between child and father – where no time between child and father for several years – where father not agreeable to any professionally supervised time – where findings of family violence made.

Legislation:
Evidence Act 1995 (Cth), s 140

Family Law Act 1975 (Cth), ss 4, 4AB, 60CA, 60CC, 60CF, 60CG, 61DA, 65DAC

Cases cited:
Adamson & Adamson (2014) FLC 93-622

Fox v Percy (2003) 214 CLR 118

Division: Division 2 Family Law

Number of paragraphs: 163

Date of hearing: 27, 28, 29 March and 20 April 2023

Place: Melbourne

Counsel for the Applicant: Mr V. Peters

Solicitor for the Applicant: Clements Family Law

Counsel for the Respondent: Ms R. Dunlop

Solicitor for the Respondent: Higgins Legal

Counsel for the Independent Children's Lawyer: Ms M. Stavrakakas

Solicitor for the Independent Children's Lawyer: Mark Macdiarmid Family Law Specialist
ORDERS

DGC 1308 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MELKU

Father

AND:
MS ANTONAS

Mother

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

16 June 2023

THE COURT ORDERS BY CONSENT THAT:
1.All previous parenting orders be discharged.
2.The child live with the Mother.

AND THE COURT ORDERS THAT:
3.The Mother shall have sole parental responsibility for the child X born in 2010 (‘the child’) AND:
(a)the Mother will keep the Father advised of the child’s progress including but not limited to matters of the child’s health and education;
(b)the Father may communicate with the Mother via email only no more than each three months about any concerns or suggestions he wishes to make for the progress and wellbeing of the child; and
(c)if the Father’s communication is courteous and in accordance with these orders, the Mother shall acknowledge the communication and have regard to the matters as are raised by the Father, but the Mother shall be the person to make the final determination or decision and shall promptly inform the Father of that decision.

4.The child shall spend time with the Father as agreed in writing by email between the parents and failing agreement as determined by the Mother having regard to the child’s expressed views.
5.Without limitation to any other Order providing for communication between the parents and the child, the child may communicate with either parent by electronic means at any reasonable time when she is in the other parent’s care.
6.Within seven days, the Mother shall provide the Father with a forwarding address which may include a PO Box and an email address.
7.The Father shall be permitted to forward to the child, care of the Mother, at a forwarding address nominated by the Mother including a PO Box, letters, photos, gifts and cards and unless unsuitable, the Mother shall bring such letters, photos, gifts and cards to the child’s attention.
8.The Mother shall notify the Father via email as soon as practicable in the event the child is seriously ill or injured.
9.Both parents be at liberty to:
(a)receive from any school the child attends from time to time, any school reports, photographs, newsletters and other material ordinarily provided to parents;
(b)contact the child’s school and/or medical practitioner and/or allied health professional the child may attend on from time to time, AND IT IS NOTED THAT the Father is not permitted to make any decisions for the child with respect to the child’s education, medical or allied health professional engagement.

10.The parents be permitted to provide a copy of these orders to any school, medical practitioner or allied health professional the child attends upon from time to time.
11.The parents communicate via email only.
12.Both parents shall keep the other advised at all times of their email address and shall advise the other party within 48 hours of any change to either their email address.
13.Each of the parties, their servants and agents be and hereby are restrained and an injunction hereby granted restraining them from:
(a)Abusing, belittling, rebuking or denigrating the other parent or their family members in the presence or hearing of the child;
(b)Involving or exposing the child to any discussion which involve a dispute between either parent;
(c)Discussing these proceedings or any related documents or allegations with or in the presence of the child;
(d)Permitting the child having access to any of the documents filed in these proceedings;
(e)Questioning or interrogating the child about the time they have spent with the other parent and each parent shall do all reasonable things necessary to prevent any other person from doing so in the presence or hearing of the child;
(f)Passing information or messages through the child to the other parent;
(g)Allowing the child to be in the presence or hearing of any person doing what is prohibited by the restraints in this order;
(h)Ensure that members of their immediate and extended family speak respectfully of the other parent in presence of the child.

14.Pursuant to section 11(1) of the Australian Passports Act 2005 (Cth) the Mother be authorised to apply for and retain a passport for the child X born in 2010 without the Father’s written consent.
15.To permit the previous Order, the Australian Federal Police are to delist the child X born in 2010 from the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia as from the date of these orders.
16.To the degree that it remains in force, any order requiring the placing of the child X born in 2010 on the Family Law Watchlist is discharged from the date of these orders.
17.For the personal protection of the Mother and the child, the Father, his servants and agents be and are hereby restrained by injunction from:
(a)Attempting to locate the Mother and/or child, follow any of them or keep any of them under surveillance;
(b)Going to, entering upon or remaining within 200 metres of any place where the Mother and/or the child live, work, attend school, attend sporting events or extracurricular activities;
(c)Posting on Facebook, Instagram or any other form of social media platform in relation to the Mother and/or the child.

18.Within seven days of the date of these Orders, the Independent Children’s Lawyer shall explain these orders to the child insofar as they relate to the spend time provision and the cards, gifts and letters provision.
19.After compliance with the preceding order, the appointment of the Independent Children’s Lawyer be discharged.

AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

The Applicant, Mr Melku (‘the Father’) and the Respondent, Ms Antonas (‘the Mother’) ask the Court to determine the living arrangements for their now 13 year old daughter, ‘X’. The Father seeks to reintroduce time between himself and X and the Mother seeks that X spend time with the Father, on a final basis, in accordance with X’s wishes. At the same time, the Mother alleges that X’s strong wish is to not spend any time, or to communicate, with the Father.
The Father alleges the attitude and intention of the Mother is to hinder and prevent his relationship with X. He says that X would really want to spend time with him except for the Mother’s influence. He says that influence has meant that no time has occurred and is the cause of X’s expressed views. He denies that X’s expressed wish not to spend time with him has anything to do with arguments or violence between the parents, such arguments and violence the Mother alleges X has been was exposed to, including the late 2019 “Balcony Incident”.[1]
[1] Discussed in more detail later in these reasons.
X and the Father have not spent time or communicated with one another since the observation during the Child Impact Report interviews which took place on 12 April 2022.
Throughout the current proceedings and final hearing, the Father indicated that he was not agreeable to supervised time. In closing submissions, the Father conceded that he would be agreeable to a period of supervision between he and X, but only if supervised by a family member. The difficulty in making such an order, if I were to find such a proposal suitable, is that no evidence was put before me as to who would conduct the supervision, under what circumstances they were agreeable to supervising, and such person or person’s availability for supervision. No party sought, or even contemplated, professionally supervised time.
Both the Mother and Independent Children’s Lawyer (‘ICL’) sought that X spend time with the Father by agreement between the parents and failing agreement, as determined by the Mother having regard to X’s views as expressed to her. Both pressed the case that, for good reason, X’s expressed wish not to spend time or communicate with the Father should be given considerable weight.
BACKGROUND
The Mother alleges she has been injured by the Father’s serious assaults on her and, on at least one occasion, X observed an assault on the Mother by the Father. The Mother asserts she is fearful of the Father. Save for one occasion back in 2011, the Father denies physically striking the Mother, and on that one occasion, he says that occasion, follows the Mother kicking him, and in any event was of a much less serious nature than the Mother alleges.
The Father, aged 59 years, was born in Country B. He first lived in Australia from about 2004 to 2008 and has lived in Australia since about a month after X’s birth in 2010. The Mother, aged 52 years, was born in Australia and has family and cultural connections to Country B. Both parents are fluent in the Country B language. The Father is now a student. He has re‑partnered, and he and his partner reside in the Melbourne region in a three-bedroom home. The Father has an adult child who lives in Country B. The Mother is employed in administration and is in a relationship. She resides in Melbourne with X and did not disclose her address in open court due to, she said, concerns for her safety. She has two adult children from a previous relationship, one of whom resides with her and X.
The parents met whilst working for the same employer in Sydney in 2006. In 2008, the Father returned to Country B as he could no longer stay without a valid visa. The parents remained in contact during this time, and in or around 2008 the Mother met with the Father on a three month trip to Country B. The Mother remained in Country B with the Father for a period of around eight months. The Mother returned to Australia but in 2009 went back to Country B. The parents married in 2009 in Country B and shortly thereafter conceived X, who is currently aged 13 years. The Mother returned to Australia where X was subsequently born. In or around 2010, when X was only a few months old, the Father returned to Australia, sponsored by the Mother, and the parents began cohabitating at the Mother’s rental property. In or around mid‑2011 the parents moved from Sydney to Melbourne with X.
Although the parents attempted reconciliation on a number of occasions between 2011 and 2013, the relationship irretrievably broke down in 2013. For periods of time after separation, the parents lived in the same home but did not resume a relationship. After separation there was initially no time between X and the Father.
In mid‑2015 the Mother made an application for divorce, and the following day, the Father issued proceedings in the Federal Circuit Court, as it was then known, in Melbourne for parenting orders. Those proceedings finalised by way of consent orders on 26 October 2016 (‘first final orders’) which provided for, among other orders, the parents to have equal shared parental responsibility for X, X to live with the Mother, and X to spend time with the Father progressing from two hours twice a week, to three hours in week one and two four hour periods in week two. Notations recited an agreement that, provided time between X and the Father “proceeds smoothly and without incident”, the Mother expects time to move to overnight in 12 months’ time, and a further notation that the Father seeks overnight time at the conclusion of 12 months.
Although several sessions of professionally supervised time initially occurred, very shortly after the conclusion of those proceedings the parents chose not to follow those first final orders with respect to time between X and Father.
The Balcony Incident of late 2019, the consequential late 2019 family violence order, and the Father’s communication with X ceasing in early 2020 are discussed in detail later on in these reasons.
In or around early 2020 the Mother was contacted by a solicitor on behalf of the Father who requested a resumption of time with X. The Mother’s evidence is that she telephoned the Father’s solicitor and during that call she indicated she was agreeable to professionally supervised time between X and the Father. Her evidence is that she received no further contact from the solicitor after that telephone conversation.
In or around mid‑2020 without notice to the Father, the Mother and X returned to live in Melbourne where they have remained. X has not spent time with her Father since before that move.
The current proceedings
The Father commenced further proceedings on 26 August 2020 in Sydney as a self-represented litigant. He sought only two interim orders, for X to be returned to Sydney and the parents to have equal shared parental responsibility. The matter was first listed on 16 November 2020, at which time orders were made, among others, for the Mother to file responding material and for an Independent Children’s Lawyer to be appointed. A Notation was made that the Mother shall encourage X to contact the Father by telephone.
The matter was adjourned, and on 19 February 2021 the Court made orders for the parents to attend mediation, for the Father to file an amended application and affidavit by a specified time and the Mother to file a response by a specified time. A Notation was recorded that the Mother intended to seek that the matter be transferred to the Melbourne registry. The Father did not file any further material at that time, and the Mother filed responding material.
The matter was again adjourned, and returned to Court on 26 May 2021. The Father did not attend. The matter was transferred to the Melbourne registry. Three further hearings occurred in which the Father did not comply with orders for filing of material. On 9 November 2021 self-executing orders were made dismissing the Father’ application unless he filed further material by 23 November 2021. He filed further material and, on 26 November 2021, the order dismissing the Father’s application was permanently stayed. The matter was transferred to me for further case management.
On 7 February 2022 I made orders for the preparation of what was then known as a Child Impact Report and for the parents to file any further material they intended to rely on. I listed the matter for an interim defended hearing on 14 June 2022. The Child Impact Report, dated 18 May 2022, was released on 23 May 2022.
At the interim defended hearing, having considered the Child Impact Report, I made orders, among others, that all previous parenting orders were discharged, until further order the Mother have sole parental responsibility with respect to health and education for X with provisions for notification to the Father, for X to live with the Mother, and for X to spend time with the Father as agreed in writing between the parents. The Father was permitted to send gifts and cards to X. No such gifts or cards were sent. Orders were made for the preparation of a Family Report and X to be placed on the Airport Watch List for two years. The matter was adjourned for final hearing to 27 March 2023 with an estimated hearing time of three days. The Father was permitted to make an interim application to the court in the event that he moved to Melbourne before the final hearing.
In or around late 2022 the Father moved to Melbourne. He did not make any further interim application to the Court. A Family Report was released on 30 November 2022.
THE FINAL HEARING
The matter was listed for Final Hearing on 27 March 2023, on the basis of the practitioners’ estimate of a three day hearing, but was heard over four days, being 27, 28 and 29 March 2023 with closing submissions on 20 April 2023. Both parents and the Family Report writer were cross-examined.
It must not be overlooked that this four-day trial was four days of submissions and cross- examination. Evidence in chief was by affidavit and the parties proceeded on the basis that it had been read before the start of the hearing. It had been. Absent evidence-in-chief by affidavit, the giving of evidence-in-chief orally in the witness box would have taken many more days.
Documents relied upon
The Father relied upon the following documents:
·Affidavit of the Father dated 14 November 2021;
·Amended Initiating Application filed 16 February 2023;
·Affidavit of the Father file 16 February 2023; and
·Outline of Case filed 22 March 2023.
The Mother relied upon the following documents:
·Notice of Child Abuse, Family Violence or Risk filed 21 May 2021;
·Section 67Z Response by the Department of Families, Fairness and Housing dated 31 January 2022;
·Child Impact Report by Ms C dated 18 May 2022;
·Family Report by Ms D dated 28 November 2022;
·Further Amended Response to Initiating Application filed 7 March 2023;
·Trial Affidavit of the Mother filed 7 March 2023; and
·Outline of Case filed 20 March 2023.
The Independent Children’s Lawyer relied upon the following documents:
·Child Impact Report by Ms C dated 18 May 2022;
·Family Report by Ms D dated 28 November 2022;
·Outline of Case filed 23 March 2023; and
·The Independent Children’s Lawyers proposed Minute of Final Orders dated 22 March 2023.
Exhibits tendered

Exhibits tendered during the Final Hearing are as follows:
·ICL1: Victoria Police criminal history of the parents produced on subpoena and exhibited 28 March 2023;
·H1:     Defendant’s copy – Court attendance notice to Father of criminal offence of assault on the Mother (similar to a Police Prosecution Brief), 4 pages, exhibited 28 March 2023;
·H2:     Letter to Mother from Father’s (then) solicitor dated 24 January 2020 seeking mediation and letter from those solicitors to Father reporting of telephone conversation with Mother, exhibited 28 March 2023;
·H3:     Text messages from 24 February 2019 to 13 September 2019 exhibited 28 March 2023;
·W1:     Clearer copy of Exhibit A to Mother’s trial affidavit exhibited 28 March 2023; and
·ICL2: Independent Children’s Lawyers minute of proposed final orders exhibited 20 April 2023.
APPLICABLE LAW
Standard of proof
In these reasons, statements of fact are findings of fact. Findings are made on the balance of probability. I apply section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) which states as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject-matter of the proceeding; and
(c)       the gravity of the matters alleged.
Credit of the parties
In Fox v Percy (2003) 214 CLR 118 (‘Fox v Percy’), at first instance, the rider of a horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with oncoming horses and riders. The issue was upon which side of the road the collision occurred. The High Court had to interfere with the first instance decision where it had been incorrectly determined, by reason of the apparent reliability of the witnesses, that the collision occurred on the horses’ side of the road. The High Court found the first instance decision was erroneous because the proven skid marks of the Kombi van demonstrated incontrovertibly that at all material times the Kombi van had been on its correct side of the road.
When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality of Fox & Percy observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
(Citations omitted)
I have endeavoured to rely on objectively established facts and the apparent logic of events in this case as well as the evidence and demeanour in the witness box of the parties.
I am also guided by the observations of the Full Court in Adamson & Adamson (2014) FLC 93-622:
[89]In Carlson & Fluvium [2012] FamCA 32 (“Carlson”) at [165] to [169] Kent J made the following observations concerning the making of adverse credit findings against a parent in a parenting case:
[165]As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
…
[169]Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
[90]We agree with those observations. It follows from them that in parenting proceedings an adverse credit finding against a parent should not only be necessary to determine the real issues joined between the parties but should be soundly based, with due allowance for the limitations referred to.
I acknowledge the wisdom of those observations. However, in this case, some findings are necessary and able to be made.
PARENTING
In deciding what particular parenting orders to make I regard the best interests of children as the paramount consideration under section 60CC of the Family Law Act 1975 (Cth) (‘the Act’). I must consider the matters described in the Act as primary considerations and additional considerations. I apply and take into account the whole of Part VII of the Act. I apply section 4, specifically major long-term issues, section 4AB (definition of family violence), sections 60CA, 60CC, 60CF, 60CG, 61DA, 65DAA and 65DAC. Those are of pre-eminent importance and are as follows:
4                  Definitions
"major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)       the child's education (both current and future); and
(b)      the child's religious and cultural upbringing; and
(c)       the child's health; and
(d)      the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
…
4AB               Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)       an assault; or
(b)       a sexual assault or other sexually abusive behaviour; or
(c)       stalking; or
(d)       repeated derogatory taunts; or
(e)       intentionally damaging or destroying property; or
(f)       intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
…
60CAChild's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
60CC            How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2)      The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3)      Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)       the nature of the relationship of the child with:
(i)        each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)       to spend time with the child; and
(iii)      to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)        either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)       the capacity of:
(i)        each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)       if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)        the nature of the order;
(ii)       the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)       any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)      any other fact or circumstance that the court thinks is relevant.
…
60CF             Informing court of relevant family violence orders
(1)If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the court of the family violence order.
(2)If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that person may inform the court of the family violence order.
(3)Failure to inform the court of the family violence order does not affect the validity of any order made by the court.
60CG            Court to consider risk of family violence
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a)       is consistent with any family violence order; and
(b)       does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
…
61DAPresumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)       family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
…
65DAACourt to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)      Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)        the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)       how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)       such other matters as the court considers relevant.
Consent orders
(6)      If:
(a)the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b)the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
(7)To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
…
65DACEffect of parenting order that provides for shared parental responsibility
(1)      This section applies if, under a parenting order:
(a)       2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2)      The order is taken to require the decision to be made jointly by those persons.
(3)      The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)       to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The issues in dispute

The substantive issues in dispute are:
·Parental responsibility;
·What time X spends with the Father;
·Whether such time between X and Father occurs progressively or in accordance with X’s wishes;
·Whether there should be a personal protection order in place against the Father, protecting the Mother and X;
·Various restraints, and who they apply to;
·Notification between parents of their contact details and residential address; and
·When X should be removed from the Airport Watch List.
SOME SIGNIFICANT EVENTS
Although previous final orders were made in 2016, due to the evidence before me it is necessary to detail the history between the Mother and the Father and some significant events. I am assisted in that task by some common ground facts and some contemporary materials, objectively established facts and the apparent logic of events.
It is common ground that, from soon after the Father came to Australia to be with the Mother and then month old X, their relationship was “rocky” and unfulfilling for both parents.
The Mother described the early days of their relationship as follows:
24.The relationship between [the Father] and I was “rocky” from the start. There was a marked difference in [the Father]’s demeanour and attitude towards me after arriving to Australia. He lacked any interest in me, did not want to engage in conversation, or sexual relations and had little to no interest in what I had to say, at any point in time. It quickly became apparent to me that [the Father] had relationships with other women all across the world whom he was having cybersex with. [The Father] spent hours on his laptop each day, searching through sex websites and procuring women for cybersex. I would find the websites and regularly see [the Father] engaging in cybersex.
25.We often had arguments, and then he often packed his belongings and left. We spent the rest of our relationship like this. Each time that [the Father] left, he would leave me for 3-5 months.
26.During these occasions, he wouldn’t ask about [X], and I would often reconcile with him just so that [X] can have a father. I struggled to accept that I was a single mother at the age of 40 so I desperately wanted the relationship to work even though it never worked after 2011.
…
The Father did not dispute those allegations but provided his explanation and motivation for such a sorry state of the relationship between X’s parents as follows[2]:
28.Paragraph 18: I agree that the relationship was “rocky” from the start. From my perspective, this was because the Mother went back on her agreement that we would live in [Country B]. I outlined this agreement at paragraphs 14 and 15 of my first Affidavit. [H]aving returned from [Country B] to Australia during her pregnancy, the Mother advised me she did not intend to return to [Country B]… The Mother made it clear I would need to live in Australia if I wanted to be with her and the daughter we were then expecting. I had to choose between continuing to support my mother in her old age and being with my adult son on the one hand, and having a relationship with the Mother and our daughter (once born) on the other. I felt betrayed as we had previously agreed to live in [Country B] together. This caused me to lose all emotional feeling toward the Mother, in the early stages of our relationship, which never really recovered from this from my perspective.
(Emphasis added)
[2] Paragraph 18 of the Mother’s “first” affidavit filed 21 May 2021, save for being one very long paragraph, was for practical purposes, identical to paragraphs 24-26 of the Mother’s Trial affidavit.
I accept that largely common ground or undisputed account of the early relationship between the newly married parents of baby X. Despite their difficulties, the Mother’s uncontested evidence is that she proposed that the family move to Melbourne from Sydney so that she could be closer to her family. I accept that evidence. In 2011 the parties moved to Melbourne and lived there until late 2012.
Unsurprisingly both parents regarded their marital relationship as finished by 2013 at the latest.
The broken bone assault
Before the point of both parents regarding the relationship as finished, and in the context of the Father having lost all emotional feeling for the Mother, the Mother alleges the Father severely assaulted her. The number and extent of occasions were in dispute. The Mother’s trial affidavit described a serious assault in late 2011 where she was kicked and punched resulting in injury. The Father asserted only one event occurred and described it thus[3]:
29.Paragraph 22: I deny the account of this event given by the Mother. What the Mother does not mentioned [sic] is that she kicked me forcefully between my legs, connecting with my private parts. I admit that I then slapped the Mother in the face. I did not get the Mother in a headlock and neither did I punch her, at all let alone multiple times. I was charged and subsequently convicted of [an offence] and was sentenced to a […] community corrections order. I otherwise have given my account of this incident at paragraphs 36 to 38 of my first Affidavit (noting that I mistakenly described it as having taken place [in early] 2012) and I confirm that evidence is true and correct.
[3] Paragraph 22 of the Mother’s “first” affidavit filed 21 May 2021, save for being one very long paragraph, was for practical purposes, identical to paragraphs 33-36 of the Mother’s Trial affidavit.
Exhibit W1 was a better copy of Annexure A to the Mother’s affidavit of 7 March 2023.[4] Those documents are self-evidently the records of a medical practice that the Mother consulted. Those contemporary records show the following events.
[4] The same documents were annexed to the Mother’s “first” affidavit filed 21 May 2021 and responded to by the Father in his Trial affidavit.
In 2011, and X is over one year of age at this point, the Mother attended a medical practice and the records recite:
Patient stated her Husband hit her last Friday night during a fight
Husband punched her left jaw with fist while pulling her hair then kicked her left upper body lateral aspect with his feet
Now patient still feel(s) very painful in left lateral back on any movement or attempted to lift up her daughter/seemed to be getting worse last 2 days
Left jaw pain settling with panadeine forte
o/e (on examination)
(L) jaw…very mild tender on deep palpitation near the angle of the jaw
…
(L) [back injuries] no local swelling/bruise, no wound but marked tenderness on muscle rotation on right side was painful.
The record shows the Mother was referred that day for an x-ray and that she was advised to report the events to police, that she had not done so yet and was advised that she should receive counselling from a psychologist. The Mother is reported as saying she would seek counselling “when she feels ready for it”.
The same records include a report about the Mother from a medical imaging service of an x-ray taken four days later in late 2011. That record includes the observation:
There is an undisplaced fracture […] located posterolaterally. No other […] fracture is apparent…
The same records show the Mother attending the same medical practice the following day and that the x-ray report was discussed. The record of the attendance that day asserts “an undisplaced fracture […] located posterolaterally…emotionally needs counselling…”.
I accept those records as accurate. They are consistent with aspects of the assault described as occurring in the late 2011 incident. Hence, on or about the Friday the Father punched and kicked the Mother with such force that he fractured one of her bones. This was a violent assault by someone who the Mother was entitled to look to for care, kindness and protection. I infer that the horror of that assault would forever be felt by the Mother.
The broken nose assault
Not quite three months later another incident occurred. The Mother’s evidence is that in either late 2011 or early 2012, after the Mother ‘caught’ the Father talking to women online, the Mother said, in Country B language, words to the effect of "I hope God curses you”. Her evidence is that the Father then grabbed her in a headlock and punched her in the face, particularly around the nose area causing it to bleed, before kicking her. The Mother called police who arrived and applied for a family violence intervention order against the Father. The Mother refused to attend the hospital, she says, on the basis that she had nowhere to leave X to be cared for at that time. The Father denies that any such assault occurred and described the only incident as set out above, in terms of him responding to being kicked with a “slap”, i.e. an open hand, not a punch or punches with a closed fist.
Contemporaneous medical records of the late 2011 event are also in W1 and are from the same medical clinic. Those records show that in late 2011 the Mother consulted a Dr E who recorded the Mother giving the following history:
was punched by husband with his fist at 2.30pm [in the] morning [in late] 2011 (patient) said she already reported to police and been to court yesterday
The same records go on to record:
o/e (on examination)
looks tired localised bruise left side of nose bridge with no swelling but tender on palpitation to the local nose bridge (upper 1/3 of nose bridge)
…
Dr E referred the Mother for an x-ray. The x-ray report is also included in the same records. In late 2011 the x-ray was undertaken and the report states:
There is a small undisplaced transverse fracture through the nasal bone seen on lateral view.
The same records show that the Mother returned to the medical practice in late 2011, four days after the initial consultation and five days after the date of the assault first alleged. The Mother saw a different doctor, a Dr F and the records show:
Nasal x-ray confirms fracture injury was 4 weeks ago bothered by position of nose has had [a medical procedure] in the past in [Country B] …
The Father denies that he kicked the Mother in the ribs on any occasion, or that, other than the “slap” hitting of her nose, there was no other physical striking at all. His evidence, recited above and repeated in cross-examination, is that on one occasion he slapped the Mother to the face but denies that it was with such force as to cause a broken nose. His evidence is that the Mother had undergone a medical procedure, an operation of the nose, some time prior and the Father asserted the medical evidence relating to her nose was as a result of a pre-existing issue due to this surgery.
Further, something was made in the hearing before me of the inconsistency between the date of the assault recorded in the late 2011 consultation record (the day before) and the “4 weeks ago” of the second consultation reviewing the x-ray.
As to that inconsistency the following are significant;
·there are the three medical events around this incident: the first consultation in late 2011 with some precision of the time of the assault recorded, the x-ray four days later, then the second consultation about the x-ray the day after the x-ray; and
·it is common ground that the Father had struck the Mother to the nose (albeit he says once only and with a ‘slap’); and
·the demeanour of the Mother and the Father when each was cross-examined about these events. The Mother gave her evidence about this incident in an open and uncontrived manner without any histrionic presentation. The Father was not shaken in cross-examination but the thrust of his evidence is flatly contradicted by the medical records.
I do not accept the Father’s evidence on this matter. In those circumstance I am satisfied that the event occurred as described by the Mother in the late 2011 medical record. The “4 weeks” inconsistency is a result of an error, and although I cannot find how the error occurred, is likely to have been a mistake of typing “4 weeks” instead of “4 days” into the record.
Save for the second consultation reference to 4 “weeks” rather than 4 “days”, I accept those records as accurate. What those records show is that in late 2011 there were two violent assaults by the Father on the Mother and she was injured in each incident. It is clear that in her memory, and subsequently her affidavit, the two events are conflated into one. Save for there being two assaults, not one, the medical records are consistent with the Mother’s account of events.
Hence, I find that in or about late 2011 the Mother was punched to her nose by the Father with such force as to break her nose. Again this was a violent assault by someone who the Mother was entitled to look to for care, kindness and protection. I infer that the horror of that assault would forever be felt by the Mother.
The contemporaneous records show that the kicking that results in the broken bone and the fracture of the nose, were in fact two separate incidents, albeit within three months. The Mother asserted under cross-examination that as there were so many physical incidents, she may have conflated those two assaults into one in her memory. She said during cross-examination:
MOTHER:I believe that happened in December, but something happened in September, which I – because there has been so many – so much going on, I can’t recall exactly and I didn’t report it, but something happened for me to go to a doctor and report an injury.
I accept the Mother’s evidence.
The Police record (Exhibit ICL 1) shows that at the Father was convicted of an offence in early 2012 at the Suburb G Magistrates’ Court and sentenced to a community corrections order. I infer this relates to the late 2011 nose breaking assault.
Further family violence
In early 2013 the Mother alleges that a further incident occurred where the Father pulled the Mother to the floor by her hair and she told him to leave or she would call the police. She left the home, and upon her return and the Father still being present, she called police who took out a further family violence intervention order excluding the Father from the house. A final intervention order was made in mid-2013 against the Father protecting the Mother. I accept that evidence.
In late 2013 the Mother alleged to police that the Father made threats to harm her and attempted to take X from daycare. There was a confrontation at the daycare centre where the police arrested the Father. In early 2014 the Father was convicted of contravening the community corrections order and in 2014 the Father was convicted and fined for contravening the family violence intervention order. The intervention order was extended a further one year. I accept that evidence.
The Father asserts and I accept that he completed a Men’s behaviour Change program in 2014.
In 2015 the Father was further convicted of a stalking charge against the Mother and he was fined and issued a community corrections order. The Father asserted that this arose merely from his motor car being observed and that he was not stalking at all. I accept the record but do not have any reliable information about what occurred.
Following this, the Father made application to the Federal Circuit Court, as it was then known, after a long period where he had not seen X, and Final Orders were made by consent in 2016 as outlined earlier in these reasons. It is not disputed that early on after those orders X asked the Mother to attend with her on the occasions the Father spent time with her. She did so and that practice continued and I infer pleasant times were enjoyed.
Move to Sydney and again in the same home
As recited earlier in these reasons, at some point about early 2019 the Father moved to Sydney and the Mother accepted his invitation to join her there and work in his new business. Both parents moved to Sydney and lived in separate households initially. The business failed. The Father again had nowhere to live and the Mother permitted him to move into her home. The marital relationship was not resumed but the Father was involved to some degree in parenting X. In evidence are texts messages between the Father and X at this time showing an affectionate and tender relationship between the Father and X. X’s text messages are on her Mother’s phone and from that I infer her Mother knew of, and did not object to, those communications and that relationship between the Father and X. Photos attached to the Father’s affidavit also show times of happiness and tenderness in X’s relationship with her father.
The Balcony Incident: late 2019
From the first of those text messages I infer that it was in about early 2019 that the Father was again living in the Mother’s home. The Mother complains about the Father, she says, criticising her parenting throughout this time and not making any financial contribution. It is unnecessary to make any finding about that. A dispute around taking X to the dentist escalated in late 2019. Both parents agree that the Father urged the Mother to take X to the dentist due to his observation that one of X’s front teeth were growing incorrectly. It is clear this argument was in the presence of X.
As the parent’s discussion or argument around the dentist appointment escalated the Mother went out on the balcony to have a cigarette leaving the Father and X in the lounge or television viewing room that opens onto the balcony. The Mother observed the Father attempt to lock her out on the balcony and so put her hand out to stop the door from shutting, with her hand becoming jammed between in the doorway and the door forcefully being shut striking her in the face. I infer that she retracted her hand at some point. The door was closed and locked by the Father. The Father’s evidence is that he did not want the Mother to come back into the house and argue with him so he locked the door (transcript 20). He denied jamming her hand in the door. I accept the Mother’s evidence on that point.
While the Mother was locked out on the balcony the Father resumed sitting in the lounge with X sitting next to him. The Mother rang the police and a sufficient amount of that call could be heard inside for the Father, and I infer X, to ascertain that the Mother was on the phone calling the police. When he heard this, the Father then directed X to unlock the door to the balcony to let the Mother back in.
The argument was about X visiting the dentist, she witnessed the struggle at the door, the Mother being locked out and the Mother’s distress. She then had to sit next to the Father watching this catastrophe and then, at his direction, unlock the door. I infer she was still present when the police arrived and removed the Father. The effect, and I do not find knowingly by the Father, was to further involve X in the incident. X was then nine years old. X’s distress and inevitably conflicting emotions can be seen by her account of the impact of the event on her (in late 2022 and then 12 years old) when she says to the family report writer:
72.She recalled an incident when her father locked her mother outside of the house and as her mother attempted to stop her father from closing the door she got her hand caught in the door. She said that she remembers her mother being outside and her father calling her over to him to sit down and watch television with him immediately following the incident. [The child] became agitated and astonished and repeatedly stated “how could he do that?” in what appeared to be an attempt to understand these actions.
(emphasis added)
Following the Balcony Incident the Father provided X with her own mobile phone. Affectionate and tender text messages between X and the Father continued until about mid‑2020. X saw her Father on two occasions after the Balcony Incident when the Father arranged to visit her when she was being cared for, while the Mother worked, at the home of the Mother’s daughter in law.
Violent threats to Mother’s boyfriend

One consequence of the Balcony Incident was that in late 2019 a final family violence intervention order was put in place against the Father protecting the Mother for two years.
The very next morning, the Father sent threatening text messages to the Mother’s male friend. In disinhibited, sexualised and lurid language the Father threatened extreme violence against this man and his mother if he went near X. The intense nature of the threats and the involvement of the man’s mother in the disinhibited and sexualised threats is confronting and demonstrates the Father’s anger. As a result, the Father was charged with contravening the final intervention order as the Mother inevitably learned of the text messages and such messages made the Mother anxious that the Father would harm or her new boyfriend. The Father was later convicted of breaching that post-Balcony Incident intervention order by sending those threats.
The parties did not have a direct conversation after the Balcony Incident day until day three of the final hearing. The Mother, in the witness box, described how the Father had approached her at the coffee shop downstairs at the Court asking to talk. The Mother’s evidence was “I can’t even bear to be in the same room with this person as we speak. It gives me nerves.” That the Father approached her was not disputed.
The Mother’s case is that the Father is an angry man who would effectively ‘lash’ out at her, sometimes in the presence of X. I accept that case. The Mother agrees that the Father did not commit any acts of violence against X, but her evidence includes that X was present during incidents between the Mother and Father and also an incident in which the Father threw X’s homework after becoming angry when helping her with homework.
The Father has, at times in the past, had real difficulty controlling himself when angry, including in X’s presence, and when angry was capable of lashing out with violence.
Child Impact Report
The parties obtained a court-funded Child Impact Report. The parents were interviewed on 8 April 2022 and observations took place on 12 April 2021, X then being 12 years. At this point the Father was living in Sydney and the Mother in Melbourne. I have considered the entirety of the report. The report identified that X was “uncomfortable to greet [the Father] in the waiting room, who requested a hug. Her uncomfortable demeanour was evidenced by her looking at the floor, no verbal communication and muted facial expressions.” (paragraph 6 page 4).
On the basis of these interviews, the Child Impact Report recommended, among other recommendations, that X live with the Mother, and should X request to see her Father, she do so in the company of a family member, for the Father to attend a ‘Tuning Into Teens Program’, and for the Father to be permitted to send cards, gifts and letters.
At a hearing shortly after the release of this report, when the parents remained living in different states, I made interim orders in line with those recommendations.
Family Report
In the lead up to the final hearing, the parties obtained a court-funded family report prepared by Ms D. This report was released on 30 November 2022, that is, not long before the final hearing. Ms D interviewed the Father, Mother and X. I have considered the entirety of the report.
The report described the Mother as “candid and reflective. She presented with behaviours that appeared consistent with those of someone who had experienced family violence or trauma including being teary and a level of anxiety that appeared to heighten as the interview progressed.” With respect to the Father, the report noted he “presented during interview as evasive, attempted to deflect from the questions asked … and displayed resistance in considering anything other than his position. He presented as highly critical of [the Mother], lacking insight and with an inability to accept any responsibility for his behaviour.” The Father minimised his criminal history as “family issues.” When discussing his participation in a Men’s Behaviour Change Program in 2014, he could not recall anything he learnt from the program.
The Father alleged that the Mother had influenced X to reject him, however the report concluded that X “did not present as having been overtly influenced by her mother, but rather [the child]’s narrative confirmed that her mother encourages her to make contact with her father and supports her wishes in relation to her relationship with her father.” The report further described that it may be possible that the Mother’s encouragement has unintentionally influenced X given the Mother’s emotional responses to the Father, and the natural alignment of X and the Mother.
During interview, for the first time in either proceeding, the Father alleged he was sexually abused by the Mother. The “abuse” seems to be an allegation of the Mother seeking “hugs” or intimacy (with her Husband) that the Father found unwelcome. The Father had not at any time in prior filed material, or in his trial material, referred to this allegation nor sought to press it at the final hearing. The report referred to the allegations as “vague in nature”. As I was not asked to make a finding on this, I will not. But the fact of the allegation further demonstrates the extreme antagonism between X’s parents that would make the reestablishment of time with her father difficult for X.
The Father then sought equal shared parental responsibility, however in the event the parents could not make a joint decision, he said he should have sole parental responsibility. Further, he proposed an equal time arrangement between the parents however after further discussions with the report writer about how X may manage this arrangement, the Father “conceded it may be best she live primarily with him.” Sensibly the Father did not press either of these proposals at the final hearing. That the Father seriously contemplated seeking such an arrangement at that time (which was after the release of the Child Impact Report seven months earlier) shows that, although devoted to X, he was not at all in touch with X’s emotional needs.
X was interviewed. It was reported that her first question was “do I have to speak to my dad?” X described limited good memories of the time she and her parents all lived together, save for movie nights with her mother. She described the Father angering quickly over small things, referred to occasions where he would yell and throw things, and described the Balcony Incident from her perspective as set out above.
X said she knew that she could contact and communicate with her father if she so chose, and described her mother encouraging her to do so.
After interviewing X, the report writer made the decision not to conduct an observation between X and the Father. Conflict between the Father and the report writer followed, despite the Father having previously commented to the report writer that the observations did not work and neither of he nor X were comfortable during observations for the Child Impact Report. The Father alleged that X had been interviewed in the presence of the Mother and “insisted that the information about [the child]’s interview were false …” The report described:
77.… [The Father] alleged that the information described was fabricated by the writer and support was being provided to [the Mother] “because she is a woman.”
78.[The Father]’s behaviour escalated and he became angry and verbally abusive towards the writer. He was encouraged to reflect upon his own behaviour and how this may have impacted on both [the Mother] and [the child] and their relationship. [The Father] continued to hold the writer and [the Mother] responsible and his abuse escalated and he was asked to leave the interview.
The family report recommended, among other recommendations, that the Mother have sole parental responsibility, that X live with the Mother, that X spend time with the Father in accordance with her wishes, and that the ICL speak with X to ensure that she is aware she can contact her father at any time.
Ms D was cross-examined on her decision not to observe X and the Father. Under cross-examination, she described that she observed X’s anxiety to elevate quickly, “I would go so far as to say almost afraid …”
Under cross-examination Ms D described X as articulate, mature for her young age, and respectful of the father despite having some negative things to say about him. She affirmed that X’s narrative was with experience or “lived depth”.
Counsel for the Father questioned Ms D over whether there may have just been “substantial cultural differences” between the Father and Ms D, in which “one is more much more demonstrative than the other in making a point.” Ms D disagreed with such suggestion and indicated that she sees people of all different cultures every day who “tend not to have to raise their voices to get a point across to me.” I do not accept any suggestion that the Father’s origin in Country B explains his anger and presentation to the family report writer.
Under cross-examination, Ms D was questioned by counsel for the Mother about evidence the Mother gave earlier with respect to the Father approaching her in the coffee shop below the court to talk during the final hearing. The approach was not disputed. The evidence was as follows:
MS DUNLOP:           Yes. Well, he approached her and said, along the lines of, “Can we talk”?
MS D:Sorry. Are you asking if that surprised me?
MS DUNLOP:           Yes. That he would attempt to approach the mother, knowing what you know?
MS D:  No. It doesn’t surprise me. No.
MS DUNLOP:           Is it a concern for you?
MS D:  Absolutely, yes.
MS DUNLOP:           And why is it a concern that he would approach her in the coffee shop this morning?
MS D:It worries me because in the context of family violence, it leaves people vulnerable. It’s a power imbalance, and that power imbalance is usually in the favour of the person mostly perpetrating the family violence. And in this instance, the information I obtained – it was my assessment that the mother, in terms of the relationship and these circumstances, was the victim of that family violence. It leaves her in a very vulnerable position to someone who holds great power over her. And in that situation where she’s alone and not in the court, and in a place of power, that he – you know, there’s perhaps an opportunity to try to manipulate her.
The content of the report and the evidence of Ms D in cross-examination was thoughtful and considered. I accept the evidence of the family report and of Ms D in cross-examination.
Relationship between the child and Father
When questioned by counsel for the Mother, the Father estimated he has been absent for approximately half of X’s life.
As mentioned earlier in these reasons, the parents did not follow the 2016 final orders. I accept evidence from both parents that after an initial period of professionally supervised visits between X and the Father, X began to spend one on one time with the Father. The Mother’s evidence is that, after the first visit of X on her own with the Father, X asked the Mother to join her on the visits and the Father made the same request. The Mother referred to herself as X’s “security blanket” (transcript 257). The Mother’s evidence is that, despite the parents’ difficult history, she involved herself to promote the relationship between X and the Father and to comfort X. I infer that neither parent regarded X’s relationship with the Father as sufficiently secure, in all the circumstances, for X to enjoy her time with her father without her mother present.
The Mother and Father gave different accounts of the relationship between X and the Father during the period in which the Father moved back in with the Mother and X, both in Melbourne and Sydney, and during the period in Sydney where the parents were not initially living at the same house. The Mother’s evidence is that X and the Father had a ‘loving’ relationship following the making of the final orders but noted a limited relationship even whilst living in the same home. Her evidence is that as X has grown older, she has become more aware of the Father’s ‘anger’ and this caused X to have little interest in resuming a relationship with her father.
The Father, on the other hand, gave evidence that he had a close relationship with X both when they were living in the same home and following separation. He drew to the attention of the Court the annexures to his affidavit-in-chief of many photographs of he and X between 2016 and 2019 and text message exchanges between he and X. The parents disagreed about the level of care provided by the Father, with the Mother saying it was limited and he did not engage with regular school picks ups and drop offs, and the Father saying he did. I make no finding as to that dispute. However, in 2019 while the parents again lived in the same home, and until the Balcony Incident, the Father’s relationship with X was affectionate and respectful.
To the extent it was put during the proceedings that X did not ever have a relationship with her Father, I do not accept that submission. X did have a relationship with her Father.
In late 2019 (after the Balcony Incident) the Father purchased X a mobile phone and arranged with the Mother’s daughter-in-law, who was caring for X on occasions when the Mother was at work, to go to the daughter-in-laws home to see X where he provided her with the phone. The Mother was unaware of this occurring until after the fact, but permitted X to use the mobile phone. The Father further spent time with X in mid-2020 at the daughter-in-laws house.
The Mother alleged that during telephone calls between the Father and X, the Father would ask X about the Mother’s whereabouts, what the Mother was doing, when the Mother was working, whether X was being fed and who was with X. The Mother indicated that she ceased phone calls after becoming aware of this line of questioning, noting only a handful of calls had occurred in any event. The Father denied that he and X spoke over the phone at all, and said that all their communication was via text message (transcript 37).
Shortly after X’s birthday in 2020, the text messages between the Father and X stopped. The Father produced all of the text messages between he and X from late 2019, when the phone was provided, to mid‑2020 which was the last contact between X and Father. Although the Father initiated most of the text message exchanges, X always communicated on the phone the Father had given her, in affectionate and respectful terms. On X’s birthday in 2020, the Father wished X a happy birthday and told her that he loved her. X thanked him, and when asked by the Father whether X would like to come to his house, she said “No thank you [dad]” (meaning dad or daddy in Country B language). The Father asked her if everything was okay, she said it was and she was doing wonderful, and the Father warned her to take precautions due to COVID-19. Text messages from mid‑2020 suggest that X and Father met when X was at the Mother’s daughter-in-laws home, not known to the Mother. For the next three days the Father contacted X in the morning to say hello and tell her that he loves her and she responds warmly. After mid‑2020 no further messages were received from X.
At this time the Father’s evidence is that he was aware that he could contact the Mother to request to spend time with X as there was an exception in the final intervention order permitting him to do so (transcript 43). However, after his solicitor had told him the Mother wanted any time between he and X to be supervised, he did not contact the Mother to ask to spend time with X before issuing the current proceedings.
SECTION 60CC FACTORS
I turn now to the application of the law to those facts recited earlier. I must determine what orders to make in this matter on the basis that the best interests of X are the paramount consideration. I must take into account the primary and additional considerations set out in section 60CC of the Act. The following headings paraphrase the terms of the provisions of section 60CC but the whole provision, recited earlier, will be applied.
Primary considerations
Both considerations, described below, must be applied but by section 60CC(2A) the second, or protective consideration, must be given greater weight.
Benefit of child’s meaningful relationship with parents
I am satisfied that despite all the difficulties in her life X did have a relationship, and that the relationship was at times an affectionate one, with her father. Absent all other considerations there would be benefit to X of a relationship with her father.
The need to protect children from physical or psychological harm
X was only a toddler when the 2011 assaults occurred. She was in the home but did not see those events and there is no evidence she heard those events. The impact on her mother of those events will have impacted on X. X was witness to the Balcony Incident when she was nine years old. Both parties have similar but differing explanations of what occurred that day. I accept the Mother’s evidence of those events.
I am satisfied that X has been exposed to verbal arguments between both parents, and that she has also been exposed to conduct by the Father that has caused her distress. Such conduct can be highly detrimental for children.
No evidence was put before me that since late 2019 X has been exposed to any direct parental conflict, save for her involvement in these proceedings by way of two interviews and engagement with the ICL.
It is unsurprising and inevitable that the assault on her primary care giver that X witnessed, the Balcony Incident, would cause her distress and confusion and continues to. I am satisfied that to force the Mother, by court order, to compel X to spent time with her Father, supervised or unsupervised, will cause the Mother and X distress. The Mother’s distress will impact on X. There is a risk of psychological harm to X of that process.
Any views expressed by the child
X has expressed clearly to the family consultant who produced the Child Impact Report and the family consultant who produced the Family Report that she does not wish to spend any particular time with her father. X’s views are clear and unequivocal. She makes those views known while maintaining respect for her father. She shows maturity. In the family report, she is clear that her mother had suggested she spend time with the Father however she declined. The family report makes the following report of X’s memories:
… [The child] said that she believes she did not connect to her father because he was always yelling and when he was happy “it didn’t last long.”
It is also inevitable that X identifies with her mother and her mother’s experience of the Father and shows empathy for her mother’s experience. This is not the same thing as a child being influenced or persuaded to reject a parent by the influence of the other parent or the inability of one parent to protect X from his or her antipathetic or antagonistic feelings about the other. Considerable weight must be given to X’s views.
Nature of relationship with each of the child’s parents and other persons
It is clear the Mother and X have a warm, close and loving relationship. X has been in the Mother’s primary care since birth. There have been no periods of time in which X has not lived with the Mother.
The Father has had extended periods of time away from X. The Mother’s evidence, which is unchallenged by the Father, is that there were three or four times where the Father left the home and had no contact with X for 3-5 months at a time. I accept that evidence. X did not spend time with the Father for more than a year prior to the commencement of the first proceedings. After the Father was removed from her home in late 2019 after the Balcony Incident, X has not spent substantial and significant time with the Father since. I do note the two brief occasions where X did spend time with the Father in late 2019 and mid-2020, although it is clear the Mother did not know this was occurring.

I do consider the text messages exchanged between X and Father. This is indicative, also, of a loving relationship. I place some weight on those text messages as to the nature of X’s past relationship with her father and what it might have become.
Extent of taking opportunities to spend time
I acknowledge that this is the second time the Father has made an application to spend time with X. I refer to and repeat the absences of the Father in X’s life. I find that the Father has made attempts to spend time and communicate with X.
I accept there have been periods in which the Father has had a limited opportunity to be involved with decisions about X. I accept that the burden of major long-term decision making, both prior to separation and following, has fallen to the Mother. I accept the Father would have much preferred to have been more involved in X’s life had the relationship between the Mother and Father been better.
Has parent fulfilled or failed to fulfil obligations to maintain the child
I understand from the evidence that sometime in 2020, the Father contacted the Child Support Agency in relation to the payments he made during September 2017 and September 2019 (transcript 76) and whether or not he was required to have paid during that period as the parents were living in the same house. His evidence under cross-examination was that he was already providing for X’s expenses. The Mother’s evidence is that in 2020, the Administrative Assessment Tribunal (“ATT”) found that the Father “was unable to prove a plausible or coherent account of [the parents] living arrangements … He repeatedly stated that he cared for her and provided her with food when the mother was not at home; he could not elaborate further.” This document was not tendered by the Mother nor challenged by the Father and I place little weight on it. I accept that the Mother has provided the bulk of financial support for X.
The Father currently meets his child support assessment of $31 per month. During the final hearing, emails were put into evidence of the Father’s proposal for X to engage with a tutor. The Father reached the conclusion that X needed a tutor, he says, as she reported difficulties with her teacher and in his opinion X therefore “has to be suffering [with] maths because [professionals] need good maths.” The Father found a tutor online which he sent the details of to the Mother, asked the Mother to arrange the lessons and indicated he would pay for the lessons. There is no evidence X was ever tutored or that the Father ever paid.
The Father’s evidence is that he is currently studying so is not working. The Mother is currently employed in administration. The Father is meeting his minimal child support assessment which may or may not increase in the future but he is not making any substantial financial support for his daughter. The Mother otherwise meets the expenses of X.
Practical difficulty and expense
Both parents now reside in the greater Melbourne region, after the Father moved to the region in late 2022. I accept that at least one part of his motivation for moving was to be closer to X.
The Father is not interested in his time being supervised by independent supervisors. In final address, and not before, he indicated he would acquiesce in introductory time being supervised by a family member.
In the circumstances of the Mother’s experiences and reasonable fears, X’s strong views and the Father’s inability to understand how his behaviour has contributed to the current position, and further, there being no concrete proposal for introductory supervised time, I am satisfied there are practical difficulties in X spending time with the Father. Were other considerations different, that difficulty may well be able to be overcome.
Capacity to provide for X’s emotional and intellectual needs
The Mother has the capacity to provide for X’s emotional and intellectual needs. The implied criticism of the Mother was that in failing to support X’s relationship with the Father she put her needs ahead of X’s emotional needs. In all of the circumstances I do not accept that contention.
The Father denies that his behaviour has contributed to the situation where X says she does not want to see him. The Father does not understand the impact of his assaults on the Mother. The Father does not understand the impact of the Balcony Incident on X. The Father does not understand X’s empathy for the Mother’s experience of the Balcony Incident. The Father does not understand the consequences of his own difficulty in controlling his anger when challenged or when things go wrong. The Father does not understand the impact that his attitude to the Mother, both from when he arrived in Australia and his assaults on her, has had on the Mother.
In those circumstances and in that context, the Father lacks the ability to provide for the X’s emotional needs.
The Father’s ability to provide for X’s intellectual needs was not challenged. I accept the Father has the ability to provide for X’s intellectual needs.
The maturity, sex, lifestyle and background of the child or either parent
X is a mature child. From observing the Mother in the witness box and from her description in the family report I find the Mother to have a mature outlook on life. There is an aspect of immaturity in the Father’s dogged refusal to contemplate how his own behaviour has shaped the trouble he finds himself in when trying to see his daughter.
Both parents share the language and culture of Country B and that being shared with X will enrich her life.
Attitude to the child and to the responsibilities of parenthood
At the heart of the Father’s case is the contention that the Mother moving to Melbourne in 2020 and not agreeing to him having unsupervised time with X is part of her attempt to prevent his relationship with X. He says that such actions are a serious deficiency in her attitude to the responsibilities of parenthood. How a parent promotes the child’s life with the other parent is a serious aspect of the responsibilities of parenthood.
When the history of the parents relationship, including the many times the Mother agreed to the Father living in her home when he asked to is had regard to, I am not satisfied that the Mother has, for her own motives, attempted to prevent X’s relationship with the Father.
But the Mother has not promoted that relationship. She has told X that X can see her father if she wants to. That of itself is far from promoting or caring for X’s relationship with her father. In all the circumstances, the Mother’s attitude to the Father and the lack of her real promotion of that relationship is simply human and inevitable. This is the man who lost all respect for her almost at the start of their parenthood and marriage and rejected her attempts to make a married life together, who seriously assaulted her and who ultimately assaulted her again in her own home in front of X after she had accepted him into her home again despite the serious assaults of 2011. Hence that the Mother has not, really and deeply, attempted to promote X’s relationship is an inevitable consequence of what she has endured at the Father’s hands.
Family Violence and Family Violence Orders
I refer to and repeat the observations about the broken bone assault, the broken nose assault, Balcony Incident and the threat to the Mother’s boyfriend. I do not accept the Father’s evidence that the medical evidence produced by the Mother with respect to her nose was as a result of a pre-existing condition of her medical procedure. That the Mother had previously undergone a medical procedure shows she had a sensitivity to the appearance of her nose. Yet this is where the Father punched her so hard as to break her nose. I do not accept the Father’s account because of the extent to which it is contradicted by the contemporaneous medical records and his demeanour when cross-examined.
That violence has many consequences. It means the Mother finds it difficult to trust the Father to control his anger when around X. It means the Mother will always have at least trepidation around anything about him. It means X will share that lack of trust and trepidation about the Father. It means that when the Mother or X think about the Father, a concern about violence is not merely a theory or a guess or a concern but a demonstrated reality when he is angry.
The Father has justified, minimised and denied both his anger and his violence in these proceedings. I accept that by the 2016 Final Orders, both parents have attempted to put the assaults and grief of the past behind them. That intention does not of itself erase the impact on the Mother of the lack of respect and the assaults of the early days of the marriage.
The ICL and the Mother submit that there is a serious risk that even if supervised the Father will unreasonably become angry and expose X to that. I accept that in ways that can’t be now foreseen that there is a risk that were the Father to lose his temper and expose X to his anger, this would be frightening and distressing to her.
The greater consequence of that violence is the emotional impact on X and on the Mother. That impact is a profound impediment to X being able to successfully experience time with her father if I compel her mother to compel her to spend time with the Father.
Final or interim orders
All parties pressed for final orders and the end of litigation is in X’s best interests.
Any other relevant circumstance
Over time the Mother has matured in her attitude to, and understanding of, family violence. Early on her fear of, and horror at, being beaten and injured by the Father was overcome by her strong desire to have both parents in X’s life and her desire for a fulfilling married life. The Balcony Incident ended that.
X and her mother are entitled to a minimum of peace in their lives. X is well aware of her father and of her ability to have contact with him. I am cautious about giving too much weight to the wishes of a child caught up in a high conflict parental relationship. To concentrate on X’s views or wishes at any particular point of time can appear to be child focussed but is actually moving the responsibility for such life changing decisions from the parents to X. Such responsibility can be burdensome and unhealthy psychologically for a child. However notwithstanding my caution, in this case, substantial weight must be given to X’s views.
In this case X’s views are reflective of her home environment: but not in an unhealthy or enmeshed way. I am satisfied that if it is safe and psychologically healthy for X to communicate and spend time with her father and, notwithstanding her own antagonism towards the Father, the Mother will assist that happening.
Section 60CG
I also take into account section 60CG, which is as follows:
Section 60CG Court to consider risk of family violence
1.In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
2.For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
I refer to and repeat my findings under the heading of Family Violence and Family Violence Orders. I am satisfied that there is a substantial and unacceptable risk of X being exposed to the Father’s anger if and when she is with him and he is challenged or things just go wrong.
Section 61DA: the Presumption and Family Violence
I have recited section 61DA that contains a presumption about parental responsibility earlier in these reasons. In this case the presumption is rebutted because there is the evidence and findings (set out above) that demonstrate that there are reasonable grounds to believe a parent has engaged in family violence.
Parental responsibility relates to long-term decisions about X’s welfare. There is no evidence that any unusual decision will need to be made but the whole of X’s childhood cannot be predicted. For there to be shared or equal shared parental responsibility the parents must be able to comply with the consultation requirements of section 65DAC of the Act (recited earlier). Where one parent has seriously assaulted the other and maintains a denial of that event it is unlikely that the respectful consultation contemplated by section 65DAC could occur. In this case such consultation is not possible.
Conclusion as to parental responsibility
Because it is not possible for the parents to comply with section 65DAC one of these two parents should have sole parental responsibility. There can be no doubt X would prefer her mother to have that responsibility were she to understand the concept. Because of those considerations and all of the matters disputed under the section 60CC headings above, I am satisfied it is in X’s best interests for the Mother to have sole parental responsibility for major long-term decisions about X’s welfare.
The parents do not have any ability to contact or communicate with one another, and I hold concerns for the impact on the Mother if she is required to consult the Father regarding education and medical decisions. The Mother indicated that she had no intention to change X’s surname. She had at no time even turned her mind to such a thing. I accept that evidence. I find that the Mother should have sole parental responsibility. However, I prefer the detailed proposed qualifications to that order as sought by the ICL where the Mother will keep the Father advised, by a nominated email address only, of X’s progress with respect to, at least, X’s wellbeing, health or education, and the Father may communicate to the Mother any concerns or suggestions he has by email only. The Mother will have the final say.
Personal protection order
The Mother seeks an order for the personal protection of her and X from the Father in the following terms:
For the personal protection of the Mother and the child, the Father, his servants and agents be and are hereby restrained by injunction from:
(a)attempting to locate the Mother and/or child, follow either of them or keep any of them under surveillance;
(b)going to, entering upon or remaining within 200 metres of any place where the Mother and/or the child live, work, attend school, attend sporting events or extracurricular activities;
…
(d)posting on Facebook, Instagram or any other form of social media platform in relation to the Mother and/or the child.
The Father assaulted the Mother in late 2011 (broken bone), in late 2011 (broken nose) and in late 2019 (the Balcony Incident). The Father threatened the Mother’s boyfriend the day after the 2019 final family violence intervention order was made. The Father has breached family violence orders in the past.
I am satisfied that the Mother has good reason to fear the Father’s anger. I am satisfied that the Father loves X and, in his own way, is devoted to her. Absent a personal protection order or family violence order, there is a significant likelihood of the Father’s love of X driving him to find out information about her and about her care in the Mother’s household. Any informal or unplanned interaction between the Mother and the Father will be distressing to the Mother and X, and carries the further risk of the Father being disappointed and again unable to control his anger. I am satisfied the Mother needs the personal protection of an injunction restraining the Father as she has sought.
International travel
The Mother sought an order that she be permitted to obtain a passport for X without the Father’s consent. The ICL sought more extensive orders, namely that the Mother be permitted to travel internationally with X from 15 June 2024, that X remain on the Airport Watch List until that date, and thereafter any order for X to be on the Watch List be discharged. The Father did not seek any orders with respect to passports, international travel or the Airport Watch List. International travel with the Mother is likely to enrich X’s life.
I understand that X is still on the Airport Watch List pursuant to interim orders made 14 June 2022 for a period of two years from that date. Implicit in the Mother’s application for a passport and a discharge of all previous orders is an application for X to be removed from the Airport Watch List.
There was no evidence of any planned or intended trip overseas by the Mother. It is reasonable for the Mother to want to travel overseas with X and it is unreasonable for her to have to seek the Father’s co-operation to obtain a passport. In all the circumstances I am satisfied the passport order sought by the Mother is appropriate and in X’s best interests and further, that X should be removed from the Airport Watch List to facilitate overseas travel with her Mother. I do not make the orders in the form sought by the ICL for such travel time to occur after 15 June 2024.
Drug use
The Father raised allegations against the Mother’s son using drugs. Only the ICL sought a restraint on either parent bringing X into contact with any person under the influence. The Family Report made a recommendation that the Mother ensure X is not exposed to her brother’s illicit substance use. It was not contested that X should not be exposed to anyone’s drug use. However I am not satisfied that absent an injunction the Mother would permit X to be exposed to her son’s drug use. I am not satisfied such an order is necessary.
Other injunctions sought by Father and ICL
Those injunctions are as follows:
19.Each of the parties, their servants and agents be and hereby are restrained and an injunction hereby granted restraining them from:
(a) …
(b)Abusing, belittling, rebuking or denigrating the other parent or their family members in the presence or hearing of the child;
(c)Involving or exposing the child to any discussion which involve a dispute between either parent;
(d)Discussing these proceedings or any related documents or allegations with or in the presence of the child;
(e)Permitting the child having access to any of the documents filed in these proceedings;
(f)Questioning or interrogating the child about the time they have spent with the other parent and each parent shall do all reasonable things necessary to prevent any other person from doing so in the presence or hearing of the child;
(g) Passing information or messages through the child to the other parent;
(h)Allowing the child to be in the presence or hearing of any person doing what is prohibited by the restraints in this order;
(i)Ensure that members of their immediate and extended family speak respectfully of the other parent in presence of the child.
There may be time between X and her father in the future. Other members of the Mother’s family may feel antipathetic to the Father. There is only a small risk of the behaviours sought to be restrained actually occurring. But the consequences for X, would be serious were that behaviour to occur. Balancing those matters, I will make those further injunctions sought by the Father and the ICL.
CONCLUSIONS
Section 65DAA
In the circumstances of where these parenting orders will not provide for any aspect of equal shared parental responsibility, I am not required to consider the equal time or substantial and significant time provisions of section 65DAA of the Act recited earlier. However, in any event, X spending equal time or substantial and significant time is neither practical or in her best interests because of the matters discussed in these reasons.
X’s living arrangements
X should live with the Mother.
It is not in X’s best interests to commence spending time with the Father in the fashion proposed by the Father, whether unsupervised or supervised by family members as proposed by the Father in closing submissions. X, now 13 years old and in Year 8, provided clear views in two reports with respect to her experience of her relationship with her father. The Father’s own evidence is that he has been absent from X’s life for approximately half of it. It is hardly surprising that, in those circumstances combined with X’s observations of the Father’s anger, violence and treatment of the Mother, that she would be aligned with her primary carer and not seek, at least at this time, a relationship with her father. I am confident that, despite the issues and family violence between the Mother and Father, should X seek time with the Father that the Mother would facilitate this. For those reasons I make orders as sought by the Mother and ICL with respect to X’s time with the Father.

I make an order for the Mother to notify the Father by email in the event of any serious illness or injury to X. The Father should be kept appraised of X’s health and wellbeing regardless of the spend time arrangements.
In closing submissions counsel for the Mother indicated that the Mother was agreeable to setting up a PO Box at her own expense for the purpose of the Father sending cards, gifts and letters to X and that she would set up and maintain an email address to facilitate the Father communicating with her about X’s welfare. I make the detailed order with respect to cards, gifts and letters as proposed by the ICL with some changes.
The ICL seeks a restraint on both parents physically disciplining X. Again, I find no evidence that either parent have done so in the past nor do I hold concerns that either parent may do so in the future. I do not make this order.
I do not make the order for the Father to participate in a ‘Tuning into Teens Program’. The Father failed to comply with a previous order to complete this. I do not find it necessary to compel the Father to complete this program. That is a decision I will leave to the Father to make.
I make the order for the ICL to explain the orders to X insofar as they relate to time between X and the Father and the provision for cards, gifts and letters. It is imperative that X is aware that she is able to contact the Father, or arrange through the Mother to spend time with her father, should she so choose to in the future and it is emotionally safe for her to do so. I have confidence in the Mother’s judgment about that.

I certify that the preceding one hundred and sixty-three (163) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.
Associate:
Dated: 16 June 2023

File number(s):	DGC 1308 of 2015
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	16 June 2023
Catchwords:	FAMILY LAW – final parenting orders – where previous final parenting orders were made – where mother seeks sole parental responsibility – where father seeks equal shared parental responsibility – where mother seeks that the child spend time with the father in accordance with the child’s wishes – where father seeks a gradual increase in time between child and father – where no time between child and father for several years – where father not agreeable to any professionally supervised time – where findings of family violence made.
Legislation:	Evidence Act 1995 (Cth), s 140 Family Law Act 1975 (Cth), ss 4, 4AB, 60CA, 60CC, 60CF, 60CG, 61DA, 65DAC
Cases cited:	Adamson & Adamson (2014) FLC 93-622 Fox v Percy (2003) 214 CLR 118
Division:	Division 2 Family Law
Number of paragraphs:	163
Date of hearing:	27, 28, 29 March and 20 April 2023
Place:	Melbourne
Counsel for the Applicant:	Mr V. Peters
Solicitor for the Applicant:	Clements Family Law
Counsel for the Respondent:	Ms R. Dunlop
Solicitor for the Respondent:	Higgins Legal
Counsel for the Independent Children's Lawyer:	Ms M. Stavrakakas
Solicitor for the Independent Children's Lawyer:	Mark Macdiarmid Family Law Specialist

DGC 1308 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR MELKU Father
AND:	MS ANTONAS Mother
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE O'SHANNESSY
DATE OF ORDER:	16 June 2023