Armstrong & Carrington
[2025] FedCFamC2F 698
•29 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Armstrong & Carrington [2025] FedCFamC2F 698
File number(s): BRC 8691 of 2022 Judgment of: JUDGE COPE Date of judgment: 29 May 2025 Catchwords: FAMILY LAW – PARENTING – where at commencement of trial the parties had agreed to do family therapy – where court declined to make orders until evidence tested - where the children live with the mother – where the children have had no face-to-face time with the father since July 2021 and no electronic time since September 2023 – where father convicted of two family violence offences including a strangulation offence perpetrated against the mother – where the father unsuccessfully appealed the criminal convictions - where the father had undertaken courses but continued to deny the offences – where the father was critical of the mother – where the position of the mother and the ICL changed after the evidence was tested - family therapy not ordered - no time order Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 60CG, 61CA, 61D, 61DAA, 61DAB, 61F, 65D, 65DAB Cases cited: CDJ v VAJ (1998) 197 CLR 172
Isles & Nelissen (2022) FLC 94-092
M v M (1988) 166 CLR 69
Division: Division 2 Family Law Number of paragraphs: 108 Date of hearing: 18 – 20 & 27 September 2024 Place: Cairns Counsel for the Applicant: Mr Coe Solicitor for the Applicant: Freedom Law Counsel for the Respondent: Ms Karaman Solicitor for the Respondent: Rnx Lawyers Counsel for the Independent Children's Lawyer: Ms Eviston Independent Children's Lawyer: Life Law Solutions ORDERS
BRC 8691 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ARMSTRONG
Applicant
AND: MS CARRINGTON
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
JUDGE COPE
DATE OF ORDER:
29 MAY 2025
THE COURT ORDERS ON A FINAL BASIS THAT:
1.All outstanding parenting applications are dismissed.
Lives With and Decision Making Responsibility
2.The children X born in 2015 and Y born in 2017 (“the children”) live with the mother.
3.The mother have sole decision-making responsibility for the children and in the exercise of same, the mother is not required to consult with the father.
Time Arrangements
4.Other than as provided for by these orders or as agreed to by the parties in writing, the children shall spend no time with nor communicate with the father.
5.For the purpose of order 4:
(a)the mother be at liberty to contact the father in writing to propose time and communication occur between the children and the father;
(b)the father be at liberty to respond in writing to the mother about proposed time and communications;
(c)time and communications between the children and the father shall occur at the sole election of the mother; and
(d)upon resolution by the parties of that proposal for time (whether time occurs or not), the father shall cease communicating with the mother on that issue.
6.Save for otherwise as provided by these Orders, and unless otherwise agreed between the parents in writing, the father shall not communicate with the children by electronic, telephonic or other means save for a letter card and/or gift for significant occasions throughout the year and for the purposes of this order, significant occasions are defined as follows:
(a)Easter;
(b)The birthday of a child;
(c)Christmas.
7.To facilitate order 6 hereof, the mother shall provide to the father an address to which the item to be sent by the father to the children may be directed.
8.The mother be at liberty to read and/or review any letter, card and/or gift sent by the father to the children to ensure that all language is child appropriate.
9.The parents will communicate via a parenting application, to be agreed and failing agreement as nominated by the mother, for all matters relating to the children including in the event of an emergency or emergent issue concerning one or both of the children.
10.The mother will confirm the children’s contact address for the purpose of Order 6 hereof within seven (7) days of the date of these Orders and the father shall advise the mother of his telephone number and email address and notify her of any change within 24 hours of such occurring.
11.When communicating regarding the children and any arrangements concerning the children’s situation, the parents will:
(a)engage respectfully;
(b)not name call nor address the other person in a derogatory manner;
(c)acknowledge and respond to the other parent as soon as practicable after receipt of a message from the other party and within the terms of these Orders as to timeframes.
Authorities
12.The mother is authorised to give a copy of these orders, which provide the mother with sole decision-making responsibility for the children (formerly parental responsibility), to the following:
(a)the children’s schools and/or day care as the case may be;
(b)the children’s treaters and counsellors and such other medical or allied health professional as may be attended by the children from time to time;
(c)extra-curricular activity coordinators for activities attended by the children; and
(d)the mother’s General Practitioner, psychologist, counsellor and/or other allied and mental health professional as attended by the mother from time to time.
13.The mother is authorised to provide a copy of the Affidavit of Ms B filed on 28 June 2023 and the Affidavit of Dr C filed on 11 May 2023 to the following:
(a)the children’s General Practitioners, psychologists, counsellors and/or other allied and mental health professionals as attended by the children from time to time; and
(b)the mother’s General Practitioner, psychologist, counsellor and/or other allied and mental health professional as attended by the mother from time to time.
14.The father is authorised to provide a copy of the following to his General Practitioner and such other psychologist, counsellor and/or other allied and mental health professional he may attend from time to time pursuant to these orders:
(a)these orders;
(b)the Affidavit of Ms B filed on 28 June 2023;
(c)the Affidavit of Dr C filed on 11 May 2023, limited to the father’s assessment only.
Engagement with Treatment Support
15.The father’s communication with and any future time spent with the children in accordance with orders 4, 5 and 6 hereof is conditional upon the following:
(a)the father engaging with his treatment providers; and
(b)the father seeking therapeutic counselling treatment and support, to devise a management plan for therapy to assist with his understanding of long-term issues as addressed in the Affidavit of Ms B filed on 28 June 2023; and
(c)the father remaining engaged with his treating psychologist for such period of time as the treating psychologist recommends; and
(d)the father complying with all reasonable recommendations and treatment advice of the treating practitioners.
16.The father’s communication with and any future time spent with the children in accordance with orders 4, 5 and 6 hereof is conditional upon the father authorising and directing his treating counsellors and /or therapists to provide information to the mother, such information limited only to whether the father has been compliant with appointments and treatment regimes as required by order 15 above.
Specific Issues and Authorities
17.At the end of each school term the mother shall provide to the father, copies of the children’s school reports, first redacting any identifying information about the mother, including the residential address of the mother and the children, and she shall provide the father with an update as to the children’s progress and/or medical needs.
18.The mother shall provide to the father, copies of all forms required to be completed by the father to enable the father to obtain access to annual school photographs at the father’s cost.
19.The father is at liberty to have access to the children’s schools’ Seesaw App.
Injunctions
20.The father is restrained, and an injunction is hereby granted restraining the father from:
(a)approaching, stalking, harassing or intimidating the mother;
(b)contacting the mother other than through a lawyer or pursuant to Court Orders;
(c)attending the school(s) and school activities the child/ren attend from time to time;
(d)attending the activities the child/ren attend from time to time;
(e)approaching the children and/or attempting to communicate with them or encouraging any other person to do so other than as provided for by these orders.
21.The parents are restrained by way of injunction from:
(a)discussing family law proceedings, court orders, parenting, adult issues, or any other dispute that may exist between the parents with or in the presence of the child/ren;
(b)exposing the child/ren to any aspect of these proceedings or any Court proceedings either parent may be involved in for whatever purpose;
(c)denigrating, name calling or speaking ill of the other parent or any member of the other parent’s family within the presence or hearing of either of the child/ren;
(d)denigrating any other member of the other parent’s household within the presence or hearing of the child/ren;
(e)requiring the child/ren to relay messages or information to the other party;
(f)physically disciplining the children; and
(g)consuming any drugs other than as prescribed and any alcohol above the 0.05%BAC legal driving limit when the children are in their care.
22.Each parent shall:
(a)take all reasonable steps to remove the children from any environment where these proceedings are being discussed;
(b)use their best endeavours to prevent other adults from discussing these proceedings in the presence or hearing of the children, and to remove the children from such situations if they cannot prevent the other person from engaging in such behaviour;
(c)use child appropriate language in the presence and hearing range of the children at all times;
(d)respect the privacy of the other parent and not question the children about the personal life of the other parent; and
(e)speak of the other parent respectfully.
AND THE COURT FURTHER ORDERS THAT:
23.The Independent Children’s Lawyer be discharged 30 days from the date of this Order or, in the event an Appeal is filed, at the conclusion of the Appeal.
24.All outstanding applications be removed from the pending cases list.
NOTATION:
A.Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE COPE:
The court is asked to determine the parenting arrangements for the children, X born in 2015 and Y born in 2017. At the time of trial the children were 8 and 7 years of age respectively.
The parties are the children’s parents and an independent children’s lawyer (ICL). The parents commenced a relationship in around 2015 and separated on a final basis in March 2020. The father has not spent time with the children since July 2021 and has not communicated with them since September 2023.
Risk Factors
The father alleges family violence perpetrated by the mother against him including verbal, financial and physical violence. The mother alleges family violence perpetrated by the father including physical abuse, verbal and psychological abuse, sexual abuse, coercive and controlling behaviour and abuse through the court system.
A final Protection Order was made by consent and without admissions in early 2021, naming the mother as the aggrieved and the father as the respondent. The children are named persons on the order. That order expires in early 2026.
The mother’s affidavit gives evidence of family violence during the relationship including slamming her forcefully into the bed, pushing her face into sheep excrement, grabbing her by the throat and pushing her into a wall, raping her, and repeatedly urinating on her. The mother gives affidavit evidence of a physical assault in about December 2019 where the father held her down on a couch during an argument and bit her on the arm. She provides photographic evidence of the injury. [1]
[1] Exhibit M4
The mother’s affidavit evidence is that the relationship ended on 8 March 2021 when the father strangled her and repeatedly banged her head on the couch and then forced her out of the house with the child X. The child X is said to have witnessed this assault. The mother alleges that the father then attended at her location on 15 April 2021 to take the car and on that occasion they argued, he grabbed her by the throat and pushed her into a wall.
The mother alleges that on 21 July 2021 the father entered her home at changeover, hugged and kissed her, followed her when she left the room and repeated the conduct.
On 28 July 2021 the mother alleges that the father attended at her home for changeover and while there he advised her that she would be served with a family violence Protection Order application and then proposed that they each withdraw their respective applications. The mother recorded the conversation. It is alleged the father approached her, restrained her by wrapping his arms around her and holding her still, then took her phone out of her pocket and deleted the recording. She was however able to retrieve that recording and it has been tendered in these proceedings.
On 12 October 2021 the mother alleges that at changeover the father spoke directly to her about the cost of these proceedings and that he questioned the children in her presence seeking information about her car and her home.
The father has a criminal history as follows[2]:
·Two charges of contravention of a domestic violence order (occurring late 2021 and mid-2021) and one charge of common assault (occurring mid-2021). In late 2021 no conviction was recorded, and fines were imposed against the father.
·One charge of “choking suffocation strangulation domestic relationship” and one charge of common assault - both in a domestic relationship and both occurring in early 2021. In late 2023 the father was convicted and sentenced on the first offence to 18 months imprisonment to be suspended for 18 months after serving seven months and on the second count also convicted and sentenced to six months to be served concurrently. The father unsuccessfully appealed In late 2023. He was released from prison in or about early 2024.
[2] Exhibit M6
The police records reflect that in mid-2021 the mother made a complaint of rape but later withdrew the complaint.
The father’s trial affidavit does not address the mother’s allegations of family violence perpetrated by him other than in a limited sense, particularly as follows:
(a)he denies any physical abuse, financial abuse or control. He does however describe the relationship as toxic; and
(b)in the context of reporting the criminal proceedings and their outcome, he gives evidence that he has not breached his bail conditions.
The mother has a criminal history arising out of entering the father’s property post-separation on 14 August 2021. The charges against her were “burglary and commit indictable offence” and a charge of stealing. Both are domestic violence offences. On all charges no conviction was recorded, recognisance was $1,000 and a good behaviour period of 12 months was imposed.[3]
[3] Exhibit F4
The mother expressed concern regarding the father’s capacity to care for the children. In particular she gives affidavit evidence of injuries incurred by the children while in his care. Significantly, on or about 24 July 2021 the children returned to her care with injuries including a burn to X’s leg. The father provided what she regarded as an insufficient explanation. On her evidence, the father’s explanation that X had fallen off a motorbike at a friend’s place was contradicted by that friend who advised her by text that he and his partner knew nothing of the injuries.
The father alleges risk to the children in the mother’s care, giving affidavit evidence that she tested positive for cannabis and excessive alcohol use and gives evidence of neglectful parenting that placed the children at risk of harm. He nonetheless propose she continue her role as primary carer.
Child living arrangements
Post-separation until 31 July 2021 the children lived with the mother. The mother’s affidavit evidence is the children spent time with the father on Wednesday nights, Friday nights and every second Saturday night. The father’s affidavit evidence is that time occurred each Wednesday and every Friday to Sunday.
In mid-2021 the father was arrested and charged with a number of violent offences. The father was held on remand and released five days later. It was at this juncture the mother suspended the father’s time and communication with the children.
In June 2022 the mother moved to Victoria with the children and the father then commenced proceedings in this court on 19 July 2022. Interim orders were made on 8 February 2023. By consent the children remained living with the mother in Victoria and were to communicate with the father by videocalls each Sunday. Issues arose with the videocalls leading the father to file Contravention Applications between April and June 2023. Those applications were subsequently discontinued.
The mother lives in Victoria with the children, working as a professional. She is also studying. The father has re-partnered with Ms D and lives in Town E, Queensland. He is a tradesperson but was unemployed at the time of trial.
Interim consent orders were made on 30 June 2023 for the father to communicate with the children through a supervised contact centre. Orders also required the parties to complete various programs, to undertake drug and alcohol testing, and for the father to keep the parties informed regarding his criminal law matters.
In late 2023 the father was found guilty of “choking suffocation strangulation domestic relationship” and common assault in breach of a domestic violence order. The father was sentenced to 18 months imprisonment with a suspended sentence of 11 months. The mother then suspended the children’s supervised videocalls with the father.
Issues for determination
There are number of risk factors in this matter which must be considered and where necessary findings made. Those risk factors are:
(a)Family Violence including the parties’ criminal convictions.
(b)Child safety issues arising from those matters.
From there the court will decide the parties’ competing applications.
Competing Proposals
In summary, the father’s filed application proposes that the parties jointly make decisions for the children. He proposes that the children live with the mother and spend alternate weekends and half school holidays with him.
In her filed material, the mother seeks orders that the children live with her, and she have sole parental responsibility for them. She sought orders that the children spend no time and have no communication with the father.
At the commencement of the hearing the parties negotiated an agreement about the majority of issues. Outstanding was the thorny issue of what time the children should spend with the father. The parties in fact signed consent orders[4] however the court declined to make those orders until the evidence had been tested. In particular, the mother continued to seek what was in effect a no contact order, however the parties agreed that the parents and the children should engage in family therapy. The mother’s variation on the agreed orders was that she be at liberty to contact the father to propose that time occur between the children and him; that she control the process.
[4] Exhibit ICL1
The father, whilst agreeing with the majority of the tendered signed orders, proposed that the children spend supervised time with him in accordance with their wishes as expressed to the family therapist. The father’s proposal was not supported by the ICL who saw this order as placing the family therapist in the role of the decision maker, being a delegation of judicial power that was not supported by the authorities.
In addition, the father seeks a restraint against the mother bringing the children in contact with her brother. This was an order not previously sought by the father. Whilst in principle the mother agreed that the children should not come into contact with this brother, who had sexually assaulted her sister, she submitted that there was no need for an order to be made.
At the conclusion of the trial the position of the ICL had changed. Having seen the evidence tested, the ICL formed the view that the father lacked accountability and insight. She supported a no contact order. That position was in a large part supported by the mother.
The father’s position at the conclusion of the trial was to support the orders that had been proposed by the ICL at the commencement of the proceedings in their entirety. In particular, in the context of those orders, the father was content to commit to further treatment and therapeutic counselling to address the concerns raised in the Family Report.
THE EVIDENCE AND WITNESSES
Material read
Each party filed an Outline of Case document and read material onto the record. A number of documents were tendered in accordance with the Exhibit List and have been considered in making this determination together with the material read, evidence obtained under cross examination and the submissions of the parties.
The Father
The father was determined to mutualise and minimise the family violence. He referred to the relationship as having been “toxic”. When asked questions about his conduct, the father would use words such as “between us”.
The father has come a long way, but he will not accept responsibility without trying to share it with the mother. He said words to the effect “I can understand the severity of my charges” but would not concede that his actions were actually violent. That is, he referred to the charges as serious but denied the conduct. This is despite the fact that he had completed a men’s behaviour change program and the psychologist stated that at the end of the program that the father took “full responsibility for his abusive acts and domestic violence, and identified how his acts of violence at the time were an attempt to control his ex-partner. He did not attempt to minimise or justify his offending behaviour. He displayed genuine remorse for his actions.”[5] This was not in evidence in the witness box.
[5] Exhibit ICL2
The father was very emotional in relation to his own allegations that the mother assaulted him and he had to sleep in his car outside the hospital prior to undergoing knee surgery. As to his own conduct, he would concede nothing beyond pushing the mother, and that in self-defence. He struggled to concede that pushing the mother included pushing her into a wall and that she could have hit her head in doing so, but he was determined that it went no further than that. He completely denied the strangulation event despite the conviction. His evidence was that he definitely did not strangle the mother however at one stage he said that he could have “brushed” her neck. This is despite having been found guilty of the offence.
The father made other concessions about his conduct including that in April 2021 he poured away the mother’s wine, and scuffled with her over her handbag when he was attempting to take the car keys. He would not accept responsibility for his alleged conduct in the mother’s work environment.
Overall the father did himself no favours when he explained that he was working 60 hours per week to try and pay for everything, including the mother’s car, that he felt he was going above and beyond trying to keep the vehicle for her, but that his time with the children had been “disrespected” and therefore he appeared to feel justified to use force and take away her car.
While the father gave evidence that he respected the mother, that is certainly not supported by his affidavit material which contains many criticisms of her and her parenting.
The father conceded that X would have heard the events on 8 March 2021 and expressed that he was deeply regretful. He gave evidence that he understood that it affected her, that she had the capacity to understand and that it could impact on her. During his cross-examination he read for the first time what X had said to the Department of Families, Seniors, Disability Services and Child Safety (“Child Safety”) about what she saw, and I could see the shock that he experienced in doing so.
I was unfortunately left with the opinion that while the father has gained some level of insight, he still has a long way to go. The father was convicted and jailed for two offences against the mother – including a strangulation offence. He has done the courses and one on one work as recommended by the Family Report writer. He has committed himself to working to re-establish his relationship with the children.
I am satisfied that the father is sad, that he is sorry and that he is remorseful. Unfortunately, I am of the view, that the majority of his sorrow and remorse is for himself. What the court is looking for, however, is insight in relation to the impact on the mother and most importantly the children. The father saw for the first time other evidence in relation to what X is reported to have seen and how she feels about that. That must have been a salutary experience for the father. Many people think that children forget, do not notice and are not impacted by parental conflict and family violence. It is simply not true.
The Mother
The mother was a confident witness. I am satisfied that in 2021 she did things which she now regrets – and indeed for which she was criminally charged - but that does not mean that she was not the victim of family violence.
Under cross-examination, the mother presented as a child focused and loving parent who has worked hard to provide the children with a safe and stable environment. There are clearly times that the mother behaved poorly around the circumstances of separation. I do not however intend to make any findings against the mother in circumstances where she has been victim of horrendous abuse. I see that as only counter-productive when she has been left on her own, with minimal financial support for the father, raising these children and attempting to manage the fallout of the children witnessing the assault on their mother and the anger and toxic relationship of the parents around the time of the breakdown. The father needs to accept his own culpability and that the children, particularly X, have their own recollection of these events.
The father’s partner
The father’s partner is his staunch supporter. She knew only the bare bones of the allegations and convictions against the father and she accepted his account of what occurred. Nothing that was put to her would shake her faith in him. She gave evidence that she is judging him based on how he treats her, having considered his history.
Psychiatric Expert – Dr C
The Psychiatric Report dated 6 June 2023 recorded the following opinions:
(a)The father has some antisocial, narcissistic and psychopathic personality traits.
(b)No identified personality disorders of father.
(c)The mother identified as having post-traumatic stress disorder and major depressive disorder (moderate) with anxious distress.
(d)The mother will benefit from psychiatrist lead multidisciplinary mental health care and intervention with biological management with an appropriate dose of medication, The mother should engage in fortnightly trauma focused psych interventions.
Under cross-examination, Dr C confirmed her opinions, which were based on the interviews and the collateral evidence. She agreed that the preferred situation was where contact between the parents was minimised. She confirmed her opinion was that whilst the father had certain traits that can lead to problematic behaviours, there was no formal diagnosis. She supported anger management, a parenting program and dialectical behaviour therapy on an individual basis for the father. She expressed the opinion that simply doing the courses does not automatically mean that the father’s issues would be resolved; that he must learn from those courses.
She expressed the opinion that the father minimising his conduct raised questions about his acceptance of wrongdoing, and that would impact on his ability to engage in change. In the event that the court found that the father had minimised his violent conduct she was of the opinion that would raise concerns about his ability to change.
This expert was advised that the father told his psychologist he is remorseful, and that he said the same to this court, but he absolutely and completely denies the strangulation event. Having heard that, she was of the opinion there was potential for manipulation by the father but noted that was speculation on her part.
Family Report Writer – Ms B
The Family Report dated 27 June 2023 contained the following recommendations:
(a)The Mother have sole parental responsibility.
(b)Time arrangements between the children and the father to be by video chat on a weekly basis (for no longer than 20 minutes), over time there be a reassessment of the father’s progress and children’s needs, with consideration be given to supervised contact.
(c)The father attend anger management programs.
The Family Report writer gave detailed evidence under cross-examination. In short, her view was that it was premature to commence family therapy for the children. It was her strong professional opinion that supervised time of any form should not start until such time as the children are ready for it.
The Family Report writer expressed concern that the father continued to deny the strangulation event. Where the father had not expressed remorse and accepted the nature of the offences she questioned his authenticity. While she expressed that the father having undertaken the circle of security and the anger management course gave her some level of confidence, it was her opinion that the court would need to assess if there had been genuine engagement and that he had gained a level of insight. In the event that the court finds that the father’s capacity and insight is not there, then her opinion is that the case remains about risk; that the father has not changed.
The Family Report writer was asked about paragraph 164 of her report which states as follows:
In noting the father’s prior relationship with the children (untested in appreciation for its safety, although accepted as significant) as well as the moments of positive engagement and interactions with them during post separation time, it is assessed that this relationship should be offered further opportunities for incremental repair, albeit the proposed plan time limited and contained.
The Family Report writer expressed the opinion that the children had a solid relationship with the father as they had had consistent and positive time with him, so there was a basis to support an attempt to rebuild it. That however will, in her opinion, depend on where the children are at psychologically and where the father is at in relation to his psychological capacity. As is proper she was concerned primarily with safety.
It is her view that X was capable of true recollection when she interviewed her. She assessed X as a very reliable and authentic young person. She confirmed that she had concerns about the father’s insight at the time of the Family Report including his abject refusal to accept responsibility, noting that was consistent across several forums.
The Family Report writer expressed very strongly that the father needs acceptance; that the children need to hear apologies, and he needs to accept that he made the children feel unsafe.
The Family Report writer gave evidence that in her opinion the father needed to display a genuine capacity to engage, and the children needed their own therapy without the presence of the father; that this should not be family therapy. In her opinion only once separate therapy had been completed, then was the time to re-evaluate the children’s willingness. Certainly, her opinion was that supervised time should not start now. She expressed the opinion that if the court found the father minimised or attempted to justify his behaviour, then he would not be open to making genuine change.
She expressed the opinion that if the father had not done the work then only communication could occur and that through letters photos or cards, but not through direct time. Until the father is genuine there should be no time other than those brief communications.
In relation to the mother’s proposal that time only occur as agreed with the capacity for communication to be initiated and managed by the mother, she was supportive of that, with strict guidelines. She expressed some concern in relation to the parties proposed consent orders due to the capacity for dispute that might arise from the drafting.
She was of the opinion that the proposed communication, being that necessary to enable time to occur, could expose the mother to ongoing coercive control. She was however supportive of this clause. In her opinion completely cutting off the possibility of future communication or time was Draconian and she did not support it.
In summary, the Family Report writer’s opinion was that the children and the father should have their own individual therapy. Only once the children’s well-being was established should family therapy be considered. The father’s engagement in the family therapy, as I understand it from her evidence, must be genuine and completely accepting of his offences. From the family therapy then the parties could move forward to consider supervised time.
FINDINGS
Family Violence
I have no hesitation in making findings that the father perpetrated family violence against the mother. The allegations made by the mother are serious indeed. The father has been convicted and incarcerated for two offences.
A number of the exhibits relate to the events of 8 March 2021. The criminal findings will stand in this jurisdiction; the court will not go behind a decision that was made beyond reasonable doubt and then upheld on appeal. I am satisfied that the father perpetrated family violence against the mother, to the extent of those convictions.
I accept the mother’s evidence as to the other acts of family violence perpetrated against her by the father as outlined in her affidavit material. Unlike the criminal courts, the standard of proof in this court is on the balance of probabilities. I am so satisfied as to each of the mother’s allegations based on:
(a)the consistency of the mother’s evidence;
(b)her presentation in the witness box;
(c)the evidence of the recording tendered[6] which reflects the dispute between the parents and the assault perpetrated by the father in retrieving the mother’s phone;
(d)the report from F Service to the police in early 2021[7] that the father had advised them of the following:
there is a history of strangulation stating that he (the father) “pushed her by the throat” and that it had occurred “only 2 or 3 times”… only done this during altercations where he was also being assaulted.
(e)the father’s shifting evidence. For example the denials to the Family Report writer and to this court as opposed to the conviction, his reported concessions and remorse in the men’s behaviour change program and the above admissions to F Service;
(f)the father’s attempts to justify and mutualise his behaviour under cross-examination.
[6] Exhibit M9
[7] Exhibit M3
I have considered that the mother reported the rape allegation but later withdrew the complaint. The withdrawal of the complaint does not mean that the allegation was false. There could be a multitude of reasons why a victim of family violence chose not to proceed with such charges.
Although the father is reported to have conceded the offences in the context of the men’s behaviour change program, he did not do so in this court or in the Family Report interviews or in the earlier interviews with Child Safety.
The tendered material reflects, and the parties concede that the children witnessed family violence between the parents. X made disclosures to Child Safety when interviewed in September 2021 that “the bad thing he did, hit her on the head on the couch, threw her on couch.”[8]
[8] Exhibit ICL4
This exposure to family violence and its impact on her was confirmed by X in the family report interviews which reflected as follows:
127. Asked her impression of why her parents don’t live together anymore, [X] replied, ‘because mum always cried when dad did something mean to her. I always would go up to mum and give her a big kiss. Dad choked mum’. [X] then provided a detailed description of her home, where she and her adults were positioned at the time of the stated incident and then informed, ‘he came over and came into the house. She ran, dad chased her. Dad grabbed her neck and put her on the couch and choked her. I saw the whole thing. He chucked her bag out the door. Kicked her out. I ran to mum. He closed the door and said, ‘you can never come back’. Then we went to get [Y] and went to live at a new place’.
128. Clarifying questions were then asked about time, people present, specificities of the event, differences between what she heard, saw and has been told to her, [X] relating, ‘two of her best friends were there. He came in and stole the trailer, ran out the place, my kitty ran out and could have got lost. He stole the [car]. Mum told him to go out and then we moved to Melbourne. I seen it’.
129. Asked about other occasions of parental conflict, [X] related, ‘I seen them sometimes…them fighting’, stating this to be verbal aggression by both parents, this occurring ‘sometimes in front of me and swearing…both sometimes, but dad did it the most. He didn’t yell like mum did, he yelled louder. I would hide behind mum. I used to get scared and cry’.
As a consequence of that I am satisfied that this was a lived experience for X and that she has been exposed to family violence perpetrated by the father against the mother. The recording tendered reflects that both children were present in the home on at least that one occasion such that Y has also been present and witnessed family violence. It is irrelevant if the children were in the same room; they were in the house and if unable to see could hear what occurred and witness the aftermath.
The father has done the courses and in the process of the proceedings he has made significant concessions as to the outcome that he seeks. That is commendable. He has started down that road, but he has a long way to go. I formed the view that the father deeply regrets what occurred and the situation in which he finds himself, but his sympathies currently largely lie with himself. In the witness box and in the family report interviews there was none of the accountability needed to satisfy the court that the father has truly gained an understanding that will ensure that this type of behaviour does not re-emerge.
In circumstances where the father is still making excuses for his conduct and not conceding the behaviour, then I cannot be satisfied that he is either emotionally or physically safe. I cannot accept the authenticity of his engagement in the men’s behaviour change programme and his protestations to the course provider of acceptance and regret due to his continued denials and minimisations in the witness box.
Are there risks of harm in the father’s care?
In Isles & Nelissen (2022) FLC 94-092, the Full Court reviewed and clarified the law as regards the assessment of risk, and particularly the relevant standard of proof. As the law now stands, the civil standard of proof does not apply and we are directed that “[r]isks of harm are not susceptible of scientific demonstration or proof (CDJ v VAJ (1998) 197 CLR 172 at [151]), but are instead postulated from known historical facts and present circumstances”.[9] The assessment of risk therefore looks at the possibility rather than the probability of harm and considers the degree of harm that may flow from that possibility.
[9] Isles & Nelissen (2022) FLC 94-092 at [7].
I am satisfied that there is unacceptable risk of harm to the children in the father’s care. I accept that he has twice grabbed the mother by the throat and that he has failed to acknowledge the impact on the mother or indeed the children of his conduct.
I am satisfied that the children have witnessed family violence. X’s recollection of events that she witnessed are reflected in the exhibits, and the recording taken by the mother of the events in July 2021 reflect the children in the background for much of that incident.
The father’s failure to acknowledge the conduct and its impact, together with his lack of insight mean the court has grave concerns that there are very real risks; that when the father feels disrespected or challenged again there is a risk that he may act out violently – whether verbally or physically. The risks that arise from grabbing and squeezing someone by the throat cannot be underestimated. It is impossible to accept that the father honestly believes that he did not strangle the mother when the court views the totality of the evidence.
I have considered the passage of time since these events occurred. What prevents the court from seeing these as historical events, is the simple fact that under cross-examination the father failed to acknowledge the family violence or demonstrate any insight about the impact on the mother and the children. He has done the courses, but his burning resentment against the mother and his blame of her for his situation remains. He has not himself moved forward and therefore the risks remain.
I do not however share the mother’s concern that the father deliberately harmed the children in July 2021 when they both returned from his care with injuries; a scrape to Y’s face and a burn mark on X’s leg. I did however understand why she became concerned that those injuries may have been deliberate in circumstances where both the father and his friend failed to give her information, where what information she got was contradicted, and in the context of the violence that had been perpetrated against her. As a consequence I share the mother’s concern that she cannot rely on the father to be open about anything that may happen to the children in his care in the future.
So, the risk of harm comes from the risk of impulsive and violent acting out, either to the children or in their presence. If that occurs then the children are exposed to a significant risk, either of personal harm or witnessing violence. Where the father has more than once grabbed the mother by the throat the risks are far reaching enough to include lethality.
I am of the view that if the father has been unable to address those risks in the years since he was charged, then it is not the place of this court to place the children in harm’s way. A perpetrator of violence without insight and who continues to deny the conduct of which he was convicted remains an unacceptable risk of harm.
Are there risks of harm in the mother’s care?
I am satisfied that there is no risk of harm to the children in the care of their mother. I am satisfied that the criminal charges she faced were indeed a wakeup call for her. I am satisfied that removed from a violent relationship, she has stepped up and is admirably meeting the children’s needs.
I am satisfied that there is no risk of drug or alcohol abuse in evidence before the court. I am satisfied that there is no evidence of any neglectful or dangerous parenting on her part.
The father’s continued pressing of his allegations against the mother, who has been solely responsible for caring for the children since the father was charged, does him no credit.
THE LEGAL PRINCIPLES
This application is governed by the principles set out in Pt VII of the Family Law Act 1975 (Cth) (“the Act”). The court is guided by s 60B of the Act which sets out the two objects of Pt VII of the Act. Those objects are:
(a)to ensure the best interests of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
In accordance with s 65D of the Act, the court may make such parenting orders “as it thinks proper”, subject to s 65DAB which requires the court to have regard to any parenting plan to the extent that doing so is in the best interests of the child. In determining what parenting order to make, the best interests of the children are the court’s paramount consideration. The Court determines what is in the child’s best interests with the assistance provided by s 60CC of the Act.
There is no longer a presumption of equal shared parental responsibility. While the definition of parental responsibility has not changed, the way that the Court determines parental responsibility and whether that should be “joint” has changed and is governed by ss 61CA, 61D, 61DAA and 61DAB. The key consideration for the court in determining whether to make an order for sole or joint long term decision making is now safety. The focus of the court is primarily on the family violence and its impact. The Court will ensure that any order made is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount.[10]
[10] s 60CG of the Act.
In M v M (1988) 166 CLR 69, the High Court held that a parenting order ought not be made if the proposed order exposes the child to an “unacceptable risk” of harm. The “unacceptable risk” test has since been authoritatively applied to any potential risk of harm to a child and is not limited to sexual abuse. The court considers “unacceptable risk” in light of each party’s parenting proposals and the availability of any appropriate safeguards. As noted earlier, the Full Court in Isles & Nelissen (2022) FLC 94-092[11] has clarified that the test is one of possibility rather than probability, with a consideration of the severity of harm that would arise from the risk. Nothing about the current legislation varies the application of those authorities.
[11] at [7].
APPLICATION OF THE LAW
The relevant considerations as regards best interests are reviewed below, noting that in this review the court must also give consideration to any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and any family violence order that applies or has applied to the child or a member of the child’s family.
Whilst I do not directly reference each piece of evidence, or each of the s 60CC factors or other relevant legislation, I have considered the evidence and the law in its totality when making this determination.
The court has already made findings that the father is an unacceptable risk of harm to the children. Due to the father’s repeated denials of violence to the Family Report writer, to Child Safety and to this court, and his continued minimisation and mutualisation of violence I am satisfied that the father remains an unacceptable risk of harm to the children. He has not accepted what happened and he has demonstrated a lack of insight which confirms that, and finally there is no evidence that he is capable of or willing to change that position. I accept the opinion of the report writer that without acceptance of wrong-doing change is unlikely.
The evidence from the Family Report writer is that X expressed that she did not want to speak to her father and expressed fear of him.[12] X reported that she had seen and heard the conflict between her parents.
[12] Paragraphs 131
The mother displayed a good understanding of the children’s needs and the impact on them of the family violence. The father did not.
While the father expressed under cross-examination that the mother was a “good mother” he has in the past, as reflected in the tendered material and the Family Report, said the exact opposite. Indeed his trial Affidavit is a litany of criticisms of the mother. I formed the view that the father’s evidence was mainly an effort to deflect focus from himself and his conduct and to mutualise and minimise what occurred.
I have considered that if the father lacks the capacity to accept that nothing can justify his behaviour, then how can the court be satisfied as to his capacity to meet the needs of the children and to protect them not only from physical, but also emotional and psychological harm.
Ideally the children should be spending time with the father and the parents should be working towards that. But until the father can reflect on his own conduct without blaming or mutualising what occurred, the Family Report writer was of the view the family therapy was not appropriate. I agree.
I accept the submission of the ICL that although the mother says she will support the children’s relationship with the father, it is unclear how she can do so in circumstances where she has been the victim of severe family violence, and been subjected to a trial in the criminal arena and now in the family law arena due to the father’s denials and lack of accountability. That is not a criticism of her, but rather a realistic lens on the difficulties that she would face.
DETERMINATION
What orders should be made regarding parental responsibility/long term decision making?
The court is satisfied that orders for the mother to have sole decision making for major long-term issues are in the children’s best interests. Once there has been family violence of the seriousness that led to the father’s convictions the possibility of the parties engaging in co-parenting in a way that is safe is unlikely. This view is confirmed by the father’s lack of insight and his lack of accountability.
That the mother may also have behaved poorly at times in and around separation, in no way cancels out what was done by the father and his failure to acknowledge that conduct and its impact on the mother and the children. In agreeing that the mother should have sole parental responsibility the father sensibly concedes that.
What Living Arrangements are in the best interests of the children?
I propose to make orders in terms proposed by the mother. I am concerned that the orders originally proposed by the ICL and now sought by the father leave the decision making with the family therapist or the children about if and when time should start between the children and the father.
I do not intend to delegate the judicial power to either a therapist or children. While I am reluctant to impose the burden on the mother to decide, that is simply because it may mean that she may be vulnerable to further family violence. The mother’s proposed order does, however, allow a pathway forward and it leaves her, as the parent with sole decision making, in control of deciding when or if the children are ready.
Whilst I understand that the father wants to spend time with the children and feels that he has really done the work to be able to move forward, I am strongly of the view that he is only partway through that journey and that he still has a way to go. He is not ready. And I accept the mother’s evidence that the children are also not ready.
I certainly do not propose to put a positive obligation on the mother to make arrangements for contact if the children express a wish to see their father. What children want and what is in their best interests are not always aligned. This court will not make the mother a slave to the wishes of the children.
Should the court make the other orders as proposed by the ICL?
The ICL has proposed, and the parents agreed to a number of other orders. At the end of the trial some of those proposals and the mother’s agreement to those proposals were withdrawn as the ICL and the mother no longer supported the reunification therapy occurring. Based on my findings made about the father and the subsequent decision not to order a pathway towards reunification, I agree with them and do not propose to order family therapy or any orders that relate to family therapy. Not do I propose to order that the mother keep the father informed as to decisions made regarding the children. Without the father’s own commitment and without a clear progression of time and contact those orders are premature.
The other proposed orders including communication on special days, authorities and injunctions shall be made. Those are what we call identification orders and allow the children to maintain some understanding of the father and where they come from.
I am satisfied that the injunctions restraining the father are supported by the findings I have made about his lack of insight and his lack of acknowledgement of the conduct that led to his criminal convictions. While those restraints are for the protection of the mother as well as the children, I am satisfied that those orders should be made given the nature of the criminal offences committed by the father and the subsequent criminal convictions.
I am of the view that the court need not make orders requiring the mother to take the children for counselling as she has a proven capacity to meet their needs as and when required; there is no need to mandate that.
I am satisfied that I need not make orders requiring the mother herself to seek treatment. She submits that such an order is unnecessary and thus no longer consents to that order being made. Without linking that requirement to some parenting order I am satisfied that I do not have the power to require her to attend for therapeutic support. In the event that I am wrong about that, and I am satisfied that I am not wrong, then having seen the mother in the witness box, I am satisfied that she is a committed and available parent. I am satisfied that she will seek out and engage in support as and when she needs it.
I am satisfied that the father’s ability to communicate and perhaps ultimately spend time with the children should and must be conditional upon him engaging and seeking the treatment recommended by the Family Report writer. That is necessary to protect the children from the harms that I have identified in these Reasons.
I do not have the power to make an order reflecting the father’s irrevocable authority for his treating therapist to communicate information to the mother, when he has not agreed to provide such authority in the context of the orders this court is now making. I am satisfied however that the mother will need information if in the future she considers a resumption of face to face time or she has any concern about the nature of the communications from the father to the children. I have therefore reframed that proposed order to make the father’s communication and any time with the children conditional upon allowing the mother that limited access with his treating therapist or counsellor as to his engagement, being careful however to protect the privacy of his sessions.
Should the court make the restraint as proposed by the Father?
The father has made significant concessions to his position. He does however press a restraint against the children being brought into contact with the mother’s brother. The mother submits that restraint is unnecessary and points to her own evidence that she is the person who reported her brother’s offending to the police and the maternal grandmother then made that brother leave the home. It was submitted, and I agree, that the father should be satisfied based on that evidence that the mother will act protectively of the children and that the restraint is unnecessary.
IN CONCLUSION
I am satisfied that the orders set out at the commencement of these Reasons are in the best interests of the children, X and Y.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope. Associate:
Dated: 29 May 2025
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