Bannister & Kroll - [2023] FedCFamC2F 597

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bannister & Kroll [2023] FedCFamC2F 597

File number(s): PAC 6469 of 2020

Judgment of: JUDGE TURNBULL

Date of judgment: 1 May 2023

Catchwords: FAMILY LAW – CHILDREN - History of family violence – should there be move for the Father from supervised time to unsupervised time (including overnight time) with children - Should the Father be consulted in relation to major long term decisions
FAMILY LAW - COSTS - Independent Children’s Lawyer’s costs

Legislation: Family Law Act 1975 (Cth) Part VII, ss 60B(2), 60CC, 61DA, 61DAB, 65D, 65DAC, 68B(1)(c), 117(4)(a)

Cases cited:
Australian Securities and Investments Commission v Rich [2009] NSWSC 1229

Blatch v Archer (1774) 98 ER 969

Bondelmonte & Bondelmonte (2017) 259 CLR 662

Boyce & Boyce [2015] FamCAFC 60

Brandon & Brandon (No 2) [2012] FamCA 374

Briginshaw v Briginshaw (1938) 60 CLR 336

Dundas & Blake [2013] FamCAFC 133

Godfrey & Sanders [2007] FamCA 102

Goode & Goode [2006] FamCA 1346

Isles & Nelissen [2022] FedCFamC1A 97

Jones v Dunkel (1959) 101 CLR 298

Koyroyshs & Koyroyshs [2020] FamCA 626

Lavell & Lavell [2012] FamCA 34

Legal Aid ACT & Westwell [2021] FamCAFC 50

M v M (1998) 166 CLR 69

Marvel & Marvel (No 2) [2010] FamCAFC 101

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

MRR & GR (2010) 240 CLR 461

Murphy & Murphy [2007] FamCA 785

Napier & Hepburn [2006] FamCA 1316

Robertson & Sento [2009] FamCAFC 49

Shalhoub v Buchanan [2004] NSWSC 99

Stamatou & Stamatou [2022] FedCFamC1F 241

Theodore & Theodore (No. 3) [2021] FamCA 452

Withers & Russell [2016] FamCA 793

Division: Division 2 Family Law

Number of paragraphs: 152

Date of last submission/s: 19 April 2023

Date of hearing: 17, 18, 19 April 2023

Place: Parramatta

Counsel for the Applicant: Mr Mifsud

Solicitors for the Applicant: John Stonham & Co

Counsel for the Respondent: Mr Fermanis

Solicitors for the Respondent: Phillip A Wilkins & Associates

Counsel for the Independent Children’s Lawyer: Mr Maddox

Solicitors for the Independent Children’s Lawyer: John Spence & Associates
ORDERS

PAC 6469 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BANNISTER

Applicant

AND:
MS KROLL

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE TURNBULL

DATE OF ORDER:

1 May 2023

THE COURT ORDERS THAT:
1.Save for the Order appointing the Independent Children’s lawyer, and Orders 4, 5, 6 and 7 of Orders made 19 April 2023, all previous parenting Orders regarding the children X born 2019 and Y born 2020 (“the children”), be discharged.
2.The Mother have sole parental responsibility for the children, and that the Mother advise the Father in writing of any major long-term decision (including significant decisions made about health, religion or education) relating to either or both of the children, within 48 hours of making that decision.
3.The children live with the Mother.
4.Within 7 days (if not already completed) the Father do all things to enrol in a Men’s Behaviour Change course (or its equivalent) (‘the course’), and thereafter do all things to engage in and complete the course and then provide written proof of completion of the course to the Mother and Ms B and Mr C (“the paternal grandparents”).
5.Subject to Order 8, the children spend time with the Father as agreed in writing, but in default of agreement:
(a)each Sunday from 10:00am until 3:00pm, with such time to be in the presence of one or both of the paternal grandparents or, if neither is available, supervised by a professional supervision service such as D Support Service or E Support Service, with such service to be selected, and paid for, by the Father;
(b)following the Father’s completion of the course pursuant to Order 4 or six (6) months from the date of these Orders (whichever is the latter), each Sunday from 10:00am until 3:00pm — unsupervised;
(c)Six months after the Father commences time pursuant to Order 5(b), each Sunday each Sunday from 9:00am to 5:00pm — unsupervised;
(d)notwithstanding the terms of orders 5(a)-(c), from 2:00pm to 6:00pm each Christmas Day and Father's Day from 9:00am until 5:00pm.
NOTE: TO REMOVE DOUBT the Father's Sunday time with the children is suspended on the last Sunday of each calendar month pursuant to Order 8(f).

6.The Father's time with the children is conditional upon:
(a)the Father continuing to receive therapy from his psychologist — Ms F, or her nominee during the period that he exercises time with the children pursuant to Orders 5(a) and (b);
(b)the Father communicating with at least one of the paternal grandparents between 12:00pm and 1:00pm when exercising his time pursuant to Order 5 (b), so as to confirm that he is coping and the children are safe;

7.The Father is restrained from consuming alcohol or illicit drugs or non-prescription medication when the children are spending time with him, or 12 hours prior to such time commencing.
8.The Father’s time, pursuant to Order 5, is suspended from:
(a)9:00am to 5:00pm each Mother’s Day;
(b)Christmas Eve 5:00pm until 2:00pm Christmas Day;
(c)9:00am until 5:00pm on Country CC’s News Years Day;
(d)2.00pm until 5:00pm on Easter Sunday;
(e)9:00am until 5:00pm on New Year’s Day; and
(f)on the last Sunday of each calendar month (subject to Order 10).

9.The Father communicate with the children by telephone or video between 5:00pm and 5:30pm on each of the children’s birthdays with the Father to place the call to a device and number advised by the Mother.
10.The Mother s spend a block of two weeks with the children during the term 4 school holiday period with the Mother to provide no less than 14 days’ notice to the Father of her intention to do so and the children’s time with the Father in accordance with Order 5 herein shall be suspended for such period the Mother is away and the father’s time to commence on the first Sunday following the conclusion of the two (2) week period (even if that Sunday is the last Sunday of a calendar month – noting the terms of Order 8(f).
11.Changeover shall occur inside Suburb G McDonalds at the commencement and conclusion of the Father’s time with the children and
(a)the Father shall cause the paternal grandparents to facilitate such changeover and the Father is be restrained from alighting the motor vehicle he has travelled in at changeover;
(b)in the event the paternal grandparents are unable or unwilling to facilitate changeover, changeover shall be supervised through a professional supervision service nominated by the Father with the Father to meet the costs of such service.

12.The parents shall communicate via the parenting App “Divitto”, or such other parenting app as nominated by the Mother, with each party to meet their own costs of installing and maintaining the App.
13.The communication between the parents is limited to:
(a)any cancellation of visits by either of the parents and reasons for cancellation;
(b)any medication prescribed for either of the children which the Father will need to administer during periods he spends with the children in accordance with these orders;
(c)notification of any medical emergency involving either or both of the children in either parent's care;
(d)the provision of information for the purposes of Order 9.
(e)any notifications required in the orders herein.
(f)and such Communication in accordance with these Orders, shall be limited to one response per message by each parent.

14.The parties keep each other and the paternal grandparents informed of their contact addresses and telephone numbers.
15.The parents immediately notify the other of any medical emergency affecting either of the children.
16.These orders authorise each party to obtain from any health professional, day care centre or school(s) the children attend, any information normally made available to parents, and the Mother will ensure that all such organisations have her authority and consent to ensure that the Father receives all and any relevant information relating to the children from their health professional(s), day care centre and / or school(s).
17.Upon the expiration of the current ADVO in which the Mother is named as a protected person, the Father shall be retrained by injunction pursuant to section 68B of the Family Law Act 1975 (Cth) unless provided for in these orders from the following:
(a)Approaching within 50 meters of the Mother or the children;
(b)Contacting the Mother or the children by any means or through a third party;
(c)Attending any residence or workplace where the Mother lives or works
(d)Attending or entering any school the children attend.

18.Each party is restrained from denigrating the other party, or his or her family, in the presence or hearing of the children, and to do all things to ensure that no other person does so.
19.In the event that these Orders are inconsistent with any existing family violence order, and pursuant to Family Law Act1975 (Cth) section 68P, these Orders prevail, noting that these Orders provide for supervision of the children’s time with the Father.
20.That in satisfaction of section 65Y of the Family Law Act 1975 (Cth), it is noted that the Father consents to the Mother removing the children from the Commonwealth of Australia for the purpose of a holiday, and for that purpose:
(a)14 days prior to the Mother removing the children from the Commonwealth of Australia, the Mother is to provide the Father an itinerary indicating the departure and return dates for the children’s travel;
(b)The Mother has sole parental responsibility in relation to signing all necessary documentation, organising and obtaining an Australian Passport for the children X born 2019 and Y, born 2020.
(c)Pursuant to sections 11(1) and (2) of the Australian Passports Act 2005 (Cth), these orders provide authority to the Minister for Foreign Affairs or a delegate of the Minister to issue an Australian Passport for the children. The Australian Passport issued to the children shall be provided to the Mother to hold on behalf of the children.

21.The Independent Children’s Lawyer and / or the Father and / or Mother provide to Ms F, or any other psychologist treating the Father, copies of each party’s trial affidavits filed on 3 April 2023, the Child Impact Report dated 20 April 2022, the Facts Sheet in relation to the Father’s criminal convictions at Town H Court in late 2022, and (when available) a copy of these Orders and Reasons resulting from these proceedings.
22.The parties do all things necessary to ensure that the children continue to be known by the surname “Kroll-Bannister”.
23.As and from 11.59pm on 19 May 2023, all orders appointing the Independent Children’s lawyer be discharged so as to allow the Independent Children’s Lawyer time to comply (as much as possible) with Order 21.
24.All parenting applications be otherwise dismissed.
25.The Independent Children’s Lawyer’s application for costs against the Mother be dismissed.
26.The Father pay half of the Independent Children’s Lawyer’s costs in the amount of $7,728.82 with such payment to be made to the Independent Children’s Lawyer within 28 days of the date of this order.

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

These are ex-tempore reasons for judgment. In the event that the Reasons need to be published or either party seeks a copy, there will be changes made to the produced document including the correction of grammatical errors, the improvement to structure for ease of reading, the expansion as required to any legislation or case law mentioned and expansion of any references to the evidence as summarised in these reasons. Any changes will not, however, alter the integrity of the judgment or the substance of the reasons for decision in relation to the issues to be determined.
These are parenting proceedings concerning the children X born 2019 and Y born 2020. The Father, Mr Bannister (‘the Father’) is aged 36 years and the Mother, Ms Kroll (‘the Mother’) is aged 29 years. They were in a de facto relationship from around 2015 to late 2020.
Initially, the Father sought an Order for equal shared parental responsibility.[1] He moved from this position during the trial when he conceded that it was not possible for him to effectively communicate with the Mother about important major decisions regarding the children. The Father’s position then was that the Mother have sole parental responsibility but for him to be informed about such pending decisions and have his views considered before such decisions are made. He also sought a move from supervised day time to unsupervised overnight time with the children, extending quickly to alternate weekend time and half of all holidays.
[1] Case Outline of Mr Bannister, filed 14 April 2023 (Father’s case outline’).
The Mother sought an order for sole parental responsibility of the children, and, as her primary position, for the children to spend no time with the Father, or alternately, supervised weekly day time only. The Mother also shifted her position during the trial and moved away from a no time proposal. She maintained that it is not in the best interests of the children for there to be an order for equal shared parental responsibility, as there is no effective communication nor co-parenting relationship, and the Father has not participated in long term decision making.[2]
[2] Case Outline of Ms Kroll, filed 14 April 2023 (‘Mother’s case outline’).
She also alleged a significant history of family violence. As such, she did not want to consult with the Father before making any long term decisions but agreed to inform him of any decision made.
The Independent Children's Lawyer (ICL) submitted that the Father should spend time with the children, supervised by either of his parents until he completes a Men’s Changing Behaviour course, and then fortnightly time on Sundays.
Facts / Chronology
The parties met around mid-2013 and commenced their relationship according to the Mother a short time later.[3] The Father said the relationship started in or around 2015.[4]
[3] Affidavit of Ms Kroll, filed 3 April 2023 [5] (‘Mother’s affidavit’).
[4] Affidavit of Mr Bannister, filed 3 April 2023 [3] (‘Father’s affidavit’).
Early in 2015 the Father suffered a workplace related psychological injury.[5] At this time, the Mother said that the Father moved out of his parents’ home and in with the Mother.[6]
[5] Mother’s affidavit (n3) [6].
[6] Ibid.
Around late 2015 the parties moved into a rental property at J Street, Suburb L, NSW.[7] Whilst living in Suburb L, the Mother said that the Father was taking prescription medication for depression and the psychological injury he obtained at work. The Mother also alleged that he was self-medicating heavily with marijuana and smoking numerous times daily.[8] The Mother stated the Father was aggressive towards her:
During our time at [Suburb L] the Father would have aggressive and physical outbursts towards me. The first time he had yelled, dragged me from the living area into the hallway, pinned me against the wall and continued to drag me into the bedroom where he threw me onto the bed. I was shaking and crying and told him to stop, I was so fearful I urinated on myself. He later apologised and said he did not know what came over himself and that he would never hurt me or do that to me again. I then consoled him and talked through his injury with him as this then became his defence and excuse for future incidences.
The aggressive behaviour and physical outbursts continued to occur thereafter. I left after another incident and stayed at his Mother's house for the night but did not tell her what had happened only that we had been fighting. I also tried to visit my Mother and sister when I could however, the Father stated he always needed me to be with him as his suppo1i and said he did not like to be left alone if I was not at work.
The Father made it clear to me that I was not to discuss our relationship as well as his injury to any of my friends, his family or my family as it was his business and his alone to tell and that I had no right to discuss private matters with anyone as they will judge him and not understand things the way I do. I obliged.[9]
[7] Ibid [7]. At this time, the Mother was working casually whilst being a full time student at K University.
[8] Ibid [10].
[9] Ibid [12] – [14].
In early 2016 the Mother began working at M Company. The Father had commenced WorkCover and received less income than usual.[10] The Father asserts that he was gainfully employed and worked throughout the entirety of the relationship as the primary financial provider[11] except for when he was on Workers Compensation.[12] In early 2020 the Father ceased employment, remaining at home on WorkCover payments.[13]
[10] [9].
[11] Father’s affidavit (n4) [5].
[12] Ibid [24].
[13] Mother’s affidavit (n3) [43].
In or around mid-2017 the parties moved to the Mother's own mother’s property at N Street, Suburb O, NSW.[14] The Mother alleged that the Father continued to smoke marijuana heavily on a daily basis and ‘was using Rap music as an outlet as part of his recovery process’,[15] resulting in conflict between the parties.[16]
[14] Ibid [17].
[15] Father’s affidavit (n4) [18].
[16] Ibid [19].
In late 2017 the Mother alleged an incident of violence:
It was around 06.00pm, the Father and I were laying on the bed in my bedroom. I told the Father I needed a nap because I was tired but he wanted to have sex. I continued to tell the Father” No" and "I need a nap” when he turned me onto my back and came on top of me pinning me down onto the bed and said "why do you always say no to me!". I tried to push him off and told him to get off me. I got up and he grabbed and threw me back onto the bed and started punching the mattress next to my head and in doing so had made contact with my forehead. My sister and her two kids, [P] and [Q] were also […] downstairs. My sister heard me screaming and had come upstairs and knocked on the door to see what was going on. I opened the door and she saw my busted lip and bruise on my head. She yelled in shock "what happened? what did you do?". The Father then got into a physical altercation with my sister, spitting at her. My nephews came upstairs and tried to get the Father away from my sister, but he had hit and pushed them both. The Father pushed both of the children. My sister called the Police and the Father was subsequently charged with assault. The police applied for an ADVO for my protection which also included my sister and her children.[17]
[17] Mother’s affidavit (n3) [20].

The Father was charged and convicted relating to the incident.
In 2017 the Applicant’s grandfather died and the Mother reported a positive change in the Applicant’s behaviour and the ceasing of smoking marijuana.[18]
[18] Ibid [22].
In 2018 the parties went to New Zealand on holiday. The Father proposed to the Mother and then she found out she was pregnant.[19] The pregnancy caused conflict between the Mother and her parents, resulting in her moving in with the Father’s parents[20] — living there for approximately 6 months.[21]
[19] Ibid [23].
[20] Ibid [25].
[21] Ibid [27].
In late 2018 the parties moved to R Street, Suburb T, NSW.[22]
[22] Ibid [28].
The Mother continued to work through the pregnancy.[23] X was born in 2019 and the Mother was her primary carer, with the Father occasionally assisting in feeds, nappy changes and bath time when the Mother asked for assistance.[24] The Mother implemented a sleep routine for X[25] and sought assistance from her mother for groceries, nappies, wipes and care for X whilst the Father was at work.[26] At this time the Mother said the Father worked 5 days a week, leaving home at 10:30am and returning at approximately 7:30pm.[27]
[23] Ibid [30].
[24] Ibid [32].
[25] Ibid [33].
[26] Ibid [37].
[27] Ibid [38].
The Father initially said that he equally participated in the care of the children since they were born, he regularly changed nappies, bathed them, combed their hair, dressed and undressed them to be ready for bed, fed them normal meals, got them out of bed in the morning and put them to bed at night, took them on holidays, played with them and ensured they were safely placed in their child restraint seats.[28] He conceded, however, under cross-examination, that the Mother was the primary carer for X during this period.
[28] Father’s affidavit (n4) [6] – [15].
In 2019 the Mother found out she was pregnant with Y,[29] following which she reported occasions of family violence:
The Father was physically abusive on many occasions during my pregnancy […] we had an argument about how I should not be tired and that I did not do much for [X's] birthday. The Father threw a pillow at me while holding [X] and when I got up had pushed me back down by my face. I tried to get back up and he reached towards my neck, but I held my hands out to back him off. We then got into another argument regarding cash that was missing from an envelope. He sta1ted swearing at me and I decided I wanted to leave and go to my mums with [X].
I started to pack bags and walked towards garage when he continued to swear at me and kicked my baby bag and in doing so kicked my leg and a baby bottle fell out. I went into the kitchen which is next to the garage and grabbed the thermos to pack. He put [X] down and said to me using words to the following effect: "what you want to hit me with that huh?" He stood over me in an intimidating way as I backed out of the kitchen towards the garage. I said using words to the following effect: "I'm packing it to take". I put my arms out to back him off. He then pushed me and pinned me up against sliding door […]. I fought back trying to kick his testicles and pulling at his shirt. [X] had crawled or walked up behind him screaming as he continued to do so. He then pushed and dragged me by the neck into the bedroom, He threw me onto my back and onto the bed and continued to [hurt] me as I pulled and ripped his shirt and kicked at his lower region. He eventually let go and I pushed him back away from me.
He told me to stop and grabbed my neck and threw me onto the bed again. I kicked him into the leg/ball area and sat up. He grabbed my hair and pulled my head down forwards towards the floor to kept me on the floor, he then stopped and went to [X] who was screaming. I felt severe pains and cramping in my lower abdomen and lower back similar to labour pains. I was most comfortable on my hands and knees as the pain would come and go. The Father told me I was being dramatic and pushed me. He kept coming in and out of room. I did not want anything to do with him. I just breathed and screamed through the pain as it came, I started to get hot flashes and found it so painful to move. I eventually stood up, walked to the sink to cool down with cold water on my face and wrist. I ended up vomiting. I sat under bedroom fan with wet wrists and face to cool down.
The Father again attacked me during my pregnancy […] I was cleaning out my wardrobe that night and the Father was in the living room. When I was done, I had jackets to move from the wardrobe into the spare room located next to the living room. When I did so the Father was laying on the sofa and asked if I could tum the lights off. I turned the lights off as I headed back to the bedroom. I decided to have a shower and left the TV and bedroom light on while doing so as I wanted to watch TV afterwards. When I finished the shower, the lights and TV were off and the Father was in bed. I proceeded to turn the bedroom light on as I was heavily pregnant and could not see what I was doing in the dark. I turned the main light on while turning the bathroom light off so I could get dressed and do my night care routine. The Father said to me using words to the following effect: "turn the light off I'm going to sleep". I responded using words to the following effect: "no I can't see I need to get dressed". He responded "turn the tv light on then". I said to him in response: "you knew I had to get dressed why did you turn eve1ything of]?". [X] started to cry so I quickly grabbed clothes to wear but had trouble putting them on quickly so just went [X] instead who went back to sleep immediately when I comforted her. When I returned to the bedroom, all the lights were off again so I walked in the dark back to the bedroom. I turned the light on and he got up and said to me using words to the following effect: "can't you turn the other light on?" I responded using words to the following effect: "well you knew I was coming back why did you turn all the lights off why didn't you leave that light on?" He then threw a pillow at me aggressively and it whipped my legs. I moved some of the pillows in his direction. He then sat up and pulled a fist at me and moved it in a motion toward my head. I said to him using words to the following effect: ''you were going to hit me". He denied it but I said to him using words to the following effect: "you put your hand into a fist position".
He then grabbed me by the wrists and squeezed tightly. I grabbed his forearms in an attempt to get him to let go as he was hurting me. I scratched him in the process. He continued squeezing my wrist really hard at this point. He then pushed me back. I moved forward when he grabbed my face and then pushed me onto the bed. He then walked into the hallway and I was hysterically screaming at his point because he was acting like he wanted to kill me. He came back into the room, and I was up off the bed. He came closer to me and I thought he was going to hit me. I grabbed the hair straightener on the dresser in front of me and put my hand up in front of my head in a blocking motion. The edge of the straighter nicked the Father's chin he then grabbed me again and threw me to the floor. He left to console [X] as she was awake and crying. When he returned, he said to me using words to the following effect: "look what you did to my chin". I responded using words to the following effect: "what about you? you started this all with your games with the lights and the pillows". He approached my face and mocked me and said using words to the following effect: "go on what are you going to do?" He spat in my face and walked out to [X]. I decided to get dressed and left the house to go for a drive in the car. I received a text message from him saying using the following words "don't come back or I'll call the police". I ended up parking at a park around the comer from our home. I decided to go back home as I wanted to be home with my daughter.[30]
[29] Mother’s affidavit (n3) [42].
[30] Mother’s affidavit (n3) [76] – [80].
The Father stated that the parties separated in 2019.[31] The Mother disagreed and said that the Father kicked her and the children out of the house as he needed space after an argument. The Mother took the children to her mother’s house and, after a day or two, the Father apologised and asked her to return.[32]
[31] Father’s affidavit (n4) [4].
[32] Mother affidavit (n3) [56].
In 2020 Y was born. The Mother said she became the primary carer for both children and attended to sleep routines and feeding of Y.[33]
[33] Ibid [44] – [45].
The Mother described conflict regarding waking up and attending to the children in the morning and assisting with the care of the children and tasks around the house.[34] She stated that the Father would say things such as ‘"you're a lazy mum", "a shit mum" and "a lazy bitch" and "why is it that other mums don’t have a problem or need help but you do?" The Mother provided copies of messages sent by the Applicant, annexed to her affidavit.[35] The Father reluctantly admitted to sending them under cross-examination.
[34] Ibid [51] – [53].
[35] Ibid [53], Annexure K1.
The Mother described another incident of violence when Y was very young:
I recall an incident in 2020, however, I cannot recall the exact month where the Father had attacked me in front of [X] while I was holding [Y] on the sofa. He had [hit] me multiple times in the abdomen and leg […] after having thrown multiple household items at me […]. He then proceeded to throw me around on the sofa while I held [Y] and did not stop when I screamed at him "look at the baby! I'm holding the baby". During my attempt to call the police, the Father had grabbed the phone off me and smashed it onto floor, stepped on and picked the same up and attempted to bend the phone.
The Mother also alleged that she was subject to sexual abuse by the Applicant. She described an occasion where the Father woke her at 2:00am wanting sex, to which the Mother refused. She said that he manipulated her by offering to get up to the children in the morning if she complied. The Mother said she ultimately agreed, yet in the morning, he would refuse to help as promised.[36] The Father denied this allegation under cross-examination.
[36] Ibid [136].
In or around late 2020 the Mother alleged another incident of violence where the Father threw numerous kitchen items at her and pushed her whilst she was holding and feeding Y.[37] The parties began arguing about a conflict the Father was having with someone over an online service. This escalated to the Father calling the Mother names and saying phrases such as “you are a loser. A broke bitch. You are a failure at life, a shit and lazy mum and will never amount anything, you couldn’t even finish your degree. You don’t have job. You are nothing.” And “you are fucked up just like your mum and sister. You have daddy issues […]”. The Father spoke aggressively and was spitting whilst he spoke. The Mother said she was very upset by this, and went to the kitchen and grabbed a weapon.[38] She went on to say:
I was crying over the counter and the Father approached me and pushed me against the fridge. He said to me using word to the following effect: "what do you think you were going to fi1cking do with that? He then proceeds to put me face down onto the floor and put all his weight on me. I did not let go of the [weapon] as I now believed that he would hit me with the [weapon] if l gave it up. He then said using words to the following effect: "if you don’t let go I am going to break your shoulder". He had his knee into my arm and was twisting my elbow. I let go and he grabbed the [weapon] as my am1 felt like it was going to break. While still on me he said using words to the following effect: "you are a fucking idiot, did you really think you could do something like that to me?" He then proceeded [to hurt] my leg with the [weapon] and then let me go. After this happened the Father gave me a band aid and said "I should call the Police on you". The Father would always twist his violent assaults on me somehow making out they were my fault, and he was the one that had been harmed. I was in shock and then said to me: ''you were in the wrong and need to apologise to me". I never lifted the [weapon] towards the Father or directed the [weapon] towards him.[39]
[37] Ibid [88] – [89].
[38] Ibid [88] – [91].
[39] Ibid [91].
The Father denies saying the above statements to the Mother and denied assaulting the Mother with a weapon. A photograph of her alleged wound was exhibited as M7, which shows a mark like a scar on a leg. No medical evidence was produced to substantiate the claim.
In late 2020 the Mother alleged an incident where the Father became abusive after X was jumping on the bed and refusing to sleep:
The Father started kicking my legs to get out of the room and I said using words to the following effect "what's wrong with you? I'm trying to help, look at you how frustrated you are? I'm not leaving this room until you do". He then got up and said to me using words to the following effect: "you are an ugly bitch and annoying cunt. You make everything worse". I said using words to the following effect: "why are you fighting me? I'm trying to defuse the situation". The Father then mocked me and said: "ugly faced cunt" whilst walking out the door. I threw my phone in his direction which hit the hallway wall. I was upset by the Father's continual denigration of me. The Father then turned around staunched over me and I said: "what are you going to do, hit me?". The Father pushed me against the dresser then dragged me to the other side of the room. He then grabbed me again and threw me on the armchair, then jumped on top of me, put both hands around my throat […]. Whilst [hurting] me he said using words to the following effect: "I'm going to fucking kill you bitch". [X] started screaming and crying which led to the Father letting go". I was in pain and fell from the chair to the floor as my neck had wrapped around the arm rest. I sustained [injuries] as well as markings from the applicant's hands and fingernails during his attempt at [hurting] me. I had scratched the applicant's arm in my attempts at struggling to breath and trying to fight him off me. I was screaming and crying from the pain and the Father responded using words to the following effect: "stop faking it and acting like a victim" He then pulled me up like a rag doll causing more pain to my neck. I eventually managed to get up and went to get [X]. I told him to leave the house.[40]
[40] Mother’s affidavit (n3) [60].
The following day the Mother had her sister attend the premises to help her leave. The Police were called to the location as the Father was making it difficult for her to leave.[41] The Mother stayed at her mother’s house with the children, and the Police attended her there.[42] An Apprehended Domestic Violence Order (‘ADVO’) was taken out by the Police against the Father.
[41] Ibid [65].
[42] Ibid [66] – [68].
The Mother said that final separation occurred in October 2020 after this incident and the provision of the ADVO.
From December 2020 – June 2021 the Father had supervised time with the children at D Support Service Contact Centre[43]from 09:00am to 11:00am every Thursday and Saturday.[44]
[43] Bannister & Kroll (Federal Circuit and Family Court of Australia, PAC6469/2020 commenced 17 April 2023): Mother evidence in Chief (‘Trial’).
[44] Mother affidavit (n3) [105].
Court Orders were made by consent on 8 March 2021 for the Father to engage in Facing up to Family Violence / Men’s Behaviour Change course. The Father has yet to enrol and participate in that course[45] — explaining that he attempted to enrol with a number of organisations offering such courses, but to date, they have no availability. He admitted that he could have done more to chase up whether room had become available. He agreed to enrol in a course as soon as he is able. He also agreed for relevant information relating to his alleged behaviour be provided to his treating psychologist, Ms F, with whom he engages each fortnight.
[45] Trial (n43): Father cross examination. He explains that he spoke with various services to get enrolled and would take him if spaces available. The last time he chased this matter up was last year.
On 17 June 2022 consent orders made for the children to spend supervised time with the Father as follows:
·Week 1: Wednesday 9:00am until 11:00am, Saturday 2:00pm until 4:00pm and Sunday 9:00am until 2:00pm.
·Week 2: Wednesday 9:00am until 12:00pm and Sunday 9:00am until 2:00pm.
·The Wednesday times (both week 1 and 2) to be supervised by Connecting Families with the Father to meet costs of supervision.
·The weekend times to be supervised by both paternal grandparents, Ms B and Mr C.
·Changeovers occur at Suburb G McDonalds and to be facilitated by paternal grandparents.[46]
[46] See: Order of Judge Meyers in Bannister & Kroll (Federal Circuit and Family Court of Australia, PAC6469/2020, 9 June 2021).
Following the Orders being made, the Father said that he spent regular and ongoing time with the children, but not necessarily in accordance with the Orders. He said that during his time he takes the children to play dates, outings to the zoo, shops and days at home,[47] and that the children enjoy going with him and spending time with him.[48] The Mother agreed under cross‑examination that the children enjoyed spending time with him and that there had been no notable concerns whilst in his care. She was concerned that the children may have been witness to the Father becoming emotional and also yelling at his parents on an occasion, but generally there was no complaint.
[47] Father affidavit (n4) [21].
[48] Ibid [22].
On 1 December 2020 the Father commenced proceedings. An Independent Children’s Lawyer was appointed on 2 February 2021 and on April 2022 a Child Impact Report was released to parties.
On 8 December 2022 the Father was sentenced at Town H Court with two charges relating to family violence inflicted upon the Mother.[49] The Father received a Conditional Release Order as well as an ADVO.[50] It was an agreed fact that this sentence was at the lower end of the sentencing range. The Father said that since the ADVO was ordered he has had no further contact with the Mother.[51]
[49] Ibid [37].
[50] Ibid [39]-[40].
[51] Ibid [43].
The Father said that he regrets his actions completely[52] and that the significant domestic violence he committed is in the past and somewhat historic, having occurred in 2020, and that there has been a considerable timeframe to prove to the Court and community that he is not a threat to the children.[53] The Mother does not accept that the Father is as contrite as he claims but agreed that there has been no known occasions of physical violence against the children since separation. She did, however, raise concerns about emotional abuse of the children by the Father claiming that in mid-2021, she was informed by X, that the Father was crying during visits.[54]
[52] Ibid [41].
[53] Ibid [58] – [59]
[54] Mother’s affidavit (n3); Trial (n43): cross examination.
The trial began on 17 April 2023 and continued to 19 April 2023. The property proceedings settled by consent at beginning of the trial.
On 19 April 2023 the paternal grandparents signed an Undertaking to supervise contact time between the Father and children whilst supervised time is ordered — which the Court accepted.
An Order was made on 19 April 2023 confirming the nature of the Father's time pending the finalisation of the proceedings, namely:
2. Until further order and substitute of any time order benefitting the Father, the Father will spend the following time with the children, namely [X] born […] 2019 and [Y] born […] 2020 as follows:
a. Each alternate Sunday from 9am until 2pm;
b. Each alternate Saturday from 2pm until 4pm.
3.That the Fathers time with the children be supervised by either of the paternal grandparents namely, [Mr C] and [Ms B].

Orders were also made permitting the children to leave Australia for an international holiday and for the provision of passports.
Current Circumstances
The Father lives alone in a 4 bedroom home in Suburb T, NSW, where the children have their own room and usual amenities.[55] He continues to see his psychologist, Ms F, and takes medication for his mental health issues.[56] He works as part of a building management team, from Monday – Thursday, 9:00am – 5:00pm.[57]
[55] Father’s affidavit (n4) [25] – [27], [32].
[56] Ibid [54] – [56].
[57] Trial (n43): cross examination.
The Mother and the two children live in Suburb O, NSW. She continues to work for a small business, 5 days per week.
Documents to be relied upon and evidence
The Father relied upon:
·His affidavit filed 3 April 2023;
·His Amended Initiating Application filed 3 April 2023; and
·His Financial Statement filed 24 March 2023.
The Father was softly spoken and calm under cross-examination. He made concessions at times but also obfuscated when questioned about family violence. I was left with the impression that he does not fully appreciate the impact of his past behaviour upon the Mother and how her initial understanding and support for him faded with the escalation of his poor treatment of her. That said, the Father impressed as a man who loves his children and desires to maximise his time with them.
The Mother relied upon:
·Her Amended Response to final orders filed 3 April 2023;
·Her Affidavit filed 3 April 2023;
·Affidavit of Ms S filed 3 April 2023 (not required for cross-examination);
·Affidavit of Ms U filed 3 April 2023 (not required for cross-examination);
·Notice of Child Abuse/Family Violence filed 29 January 2021;
·Her Financial Statement filed 3 April 2023; and
·Her Tender Bundle.
The Mother answered questions put to her in an articulate and direct manner. She presented as deeply impacted by her experiences of family violence during the relationship and was moved to tears at times. Her position regarding the Father's time with the children has hardened and now she sees little value in the children having a relationship with him. She reluctantly agreed to the children spending time with him but I have little doubt that it is not her preferred position. Because of her experiences, the Mother finds it almost impossible to untangle the children's needs from her own. Her fears are, however, genuinely held, given her lived experience, and the Court needs to carefully balance the legitimately held concerns of the children’s primary carer with the need for the children to build a relationship with their father.
The Mother also relied upon an affidavit of her own Mother — Ms S. In essence, Ms S did not like the way the Father treated her daughter and found him to be controlling and, at times, abusive. She described how she was upset when her daughter fell pregnant, causing a rift between them, however, the problems were eventually healed. Ms S observed her daughter to be the primary carer of the children and they would often stay with her without the Father. The Mother and children now live with her and she regularly assists with their care. The Mother contributes towards the costs of their accommodation. I accept Ms S’s unchallenged evidence.
The other witness for the Mother was Ms U. Ms U is the Mother's sister. Ms U also noticed that the Mother's demeanour changed upon her entering into a relationship with the Father. She described the incident in November 2107 that led to the Father being convicted of various offences. She described how the Father pushed her against a wall, verbally abused her and destroyed property in the presence of her children. After this, she stated:
The applicant did not leave and was pacing back and forth on the front lawn, whilst having a cigarette against his car. My partner at the time arrived at the premises and as he got out of his vehicle the applicant approached him and took a swing at his head. He continued to attack him, and I ran out to try and stop it as my partner had an apparent head scan at the doctors just before. My eldest son them followed me as he was worried and by then, the applicant focused on me and trying to hurt me. My eldest son stood in front of me and then was being pushed and thrown around on the front lawn by the applicant. The applicant stopped suddenly as he saw my mother's vehicle pulling into the driveway. He continued to say 'Fuck you […], you're a coward" and got into his vehicle. Shortly after the Police arrived and took a video statement from my sister and was told not to contact the other party.[58]
[58] Affidavit of Ms U, filed 3 April 2023 [24].
This incident led to her relationship with the Mother to become fractured because the Mother continued to defend the Father. Fortunately, their relationship healed over the years that followed.
Ms U also described that in late 2020 the Mother rang her, very upset, saying that the Father had hit her. When she arrived to assist the Mother to leave, the Father was very angry and she rang the police. Ms U said that she now attends changeovers on Sunday’s and assists with the children’s care. I accept her unchallenged evidence.
The Independent Children’s Lawyer relied upon:
·The Child Impact Report dated 30 April 2022; and
·ICL tender Bundle (from subpoenaed documents).
The Child Court Expert, Ms V, authored a Child Impact Report dated 7 February 2022. She was not cross-examined. In relation to the impact of family violence upon the children Ms V opined:
These are very young children who are entirely dependent on their adult carer’s to protect them from harm and provide for their needs. What was reported about the children having a strong startle reflex, needing soothing to sleep, not talking and being sensitive to raised voices, indicates that these children have likely been traumatised by witnessing family violence. It is a matter of dispute as to whether one or both parents instigated this, but in either event, the family violence appears to have caused harm to the children and effected their development.
When provided feedback on the children’s reported hypervigilance around noises being associated with their experiences of family violence, the parents both acknowledged this.
The parents also acknowledged that, at the children’s very young ages, any increasing time they spend with [Mr Bannister] would need to be incremental.[59]
[59] Ms V, Child Impact Report, 20 April 2022 [14] – [15] (‘Child Impact Report’).
In relation to the Father's time, she recommended:
Just based on the children’s current ages and developmental stages, the current spends time arrangements would be appropriate. However, if [Mr Bannister] is found to have perpetrated family violence as alleged; if that is the case, then it may not be in the children’s best interests to spend time with him at all (including supervised time).[60]
[60] Ibid [19].
Notwithstanding the limitations of a year old report, where there were no observations of either parent or the children together, I give weight to Ms V’s opinions.
Matters agreed
The parties' agreed that the children live with the Mother and that she have sole parental responsibility — although there is disagreement as to the Father’s involvement of any kind in any decision making. Many other orders, including time on special days, changeover, protective orders and international travel were agreed. Orders were made for the Mother to take the children on a holiday to New Zealand later this year.
Issues for determination
There are two remaining issues for determination.
Issue 1: Should the Father be consulted in relation to major long term decisions impacting the children, although, giving the Mother the final say as to any decision made?
The parties' agreed that the Mother should have sole parental responsibility for the children but the Father wants to be informed of any major long term decision that is to be made and to be able to have input into that decision, although, the Mother can have the final say. The Mother opposes this because she is concerned about the nature of any communication she would then have to have with him, even if it is controlled by regulatory orders and via an App such as ‘My Family Wizard’. The Father submitted that he should be able to have input in relation to such important decisions and that he will communicate in an appropriate and polite manner. The ICL supports the Mother's position, but is concerned about the impact upon the Mother of having to communicate in some form with the Father, prior to a decision being made.
Issue 2: Should there be a move for the Father from supervised time to unsupervised time (including overnight time) with children?
The Father's solicitor advocate, Mr Mifsud, submitted that there is no reason for the Father's time to remain permanently supervised. He submitted that the Father has had a significant spotlight upon him for a long period of time and has maintained his time with the children without breaching the ADVO, nor have there been any other allegations of family violence. He also has a criminal history that ensures he maintains appropriate behaviour, as further trouble would likely lead to serious penalty. Further, he is taking his past behaviour seriously by engaging with a therapist and committing to undertaking the Men’s Behaviour Change course. Finally, the Father's parents are an ongoing support for him, having been supervisors of his time for a long period. These safeguards mitigate the magnitude of any alleged risk and for these reasons he should be given increased supervised time with the children whilst he completes the course, after which supervision should cease. The next step is for him to have day time unsupervised time on a Sunday quickly progressing to fortnightly Saturday until Sunday time. Once the youngest child starts school, the Father should then spend time with the children for half of their holidays.
Counsel for the Mother, Mr Fermanis, submitted that it has been established that there has been serious family violence perpetrated against her, and there should be scepticism about the Father's claim that he truly accepts the wrongfulness of his past behaviour — in part confirmed by his failure to enrol and participate in the Men’s Behaviour Change course. He also did not call his therapist as a witness, leading to an inference that she may not have been as positive as him that he is a changed man and unlikely to perpetuate further family violence to or in the presence of the children. The Mother proposes weekly, supervised, time for the Father with the children from 10.00am-3:00pm on a Sunday fortnightly and 3:00pm-5:30pm on a Wednesday in the other week. The Mother acknowledges that the Wednesday time is unlikely to be taken up as the Father's parents cannot supervise on that day.
Mr Maddox, Counsel for the ICL, submitted that, whilst there is an absence of evidence from the Father's parents or his psychologist that the Father has changed, there has been no incident of violence since the ADVO was put in place. This is consistent with the Father improving his attitude as is the fact that he is undergoing therapy for his mental health conditions. Mr Maddox submitted that the Mother's belief that the Father is incapable of change is unreasonable. The positive time that the Father spends with the children, the long term and ongoing supervision from his parents, and his completion of a Men’s Behaviour Change course, should leave the Court satisfied that the children will not be exposed to an unacceptable risk if he ultimately has unsupervised, daytime only fortnightly time with the children. The ICL felt the need for unsupervised time to be fortnightly as it would allow the Mother some weekend time and also mitigate against the children being exposed to family violence. The ICL was also concerned that the Father has missed scheduled time with the children without a reasonable explanation, and that fortnightly time was more likely to ensure that any ordered time actually occurs.
Parenting orders: the law
This Court must craft and consider the terms of a parenting order with regard to the children’s best interests as a paramount consideration.[61] I am not bound by the terms proposed by the parties and — subject to the pathway set out in Part VII, and particularly ss 61DA and 61DAB — may create parenting orders as I think are proper in the circumstances.[62] What, however, guides the assessment of the children’s best interests? How, once her best interests are ascertained, does the Act ensure that parenting orders reflect them as a paramount consideration?
[61] Family Law Act 1975 s 60CA.
[62] Ibid s 65D(1).
The objects of Part VII of the Act, and the principles underlying these objects, indicate the Act’s aspirations with respect to the children’s best interests. Crucially, and as touched upon at trial, the underlying principles reflect and seek to enforce the child’s human rights.[63] Part VII of the Act, to give effect to a child or children’s best interests, carves a legislative pathway. The pathway has a number of substantive stepping-stones which may be legitimately and properly followed in various forms.[64] I will follow the path set out in MRR & GR (2010) 240 CLR 461, which remains authoritative.[65]
[63] Ibid s 60B(1), (2), (4), noting the expression of responsibility at subs (1), the expression of the child or children’s rights at subs (2), and the additional object at subs (4) to give effect to the Convention on the Rights of the Child.
[64] Withers & Russell [2016] FamCA 793, [315]-[318] at which Watts J confirms that there is no preferred approach, there being ‘more than one suggested pathway through the legislature’.
[65] MRR & GR (2010) 240 CLR 461, [6]-[9] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
Unacceptable risk
It is my task to ensure that the ultimate parenting orders do not place the children at an unacceptable risk of harm due to family violence, abuse, or neglect or exposure to the same. I may include orders as I consider necessary to achieve this end. Protecting children from harm (or any unacceptable risk thereof) is intertwined with the paramountcy principle, as evident in s.60CC(2)(b). This includes any risk of family violence, abuse, or neglect.[66]
[66] FLA (n59) ss 4AB (definition of ‘family violence’), 4 (definition of ‘abuse’), noting that the Act does not define ‘neglect’ for the purpose of s.60CC(2)(b), nor does it define ‘serious neglect’ for the purpose of sub-s(d) of the definition of ‘abuse’.
The question of unacceptable risk is aimed at ensuring that the terms of an order are consistent with a child’s best interests, in that, to the extent possible and foreseeable, the orders do not place them at risk of harm.
The assessment of whether a risk is ‘unacceptable’ does not require a Court exercising jurisdiction under Part VII ‘to resolve in a definitive way the disputed allegation … as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence’.[67] The Full Court in Isles & Nelissen [2022] FedCFamC1A 97 clarified that unacceptable risk is also not to be measured according to the civil standard of proof — on the balance of probabilities.[68] A trial judge may find past allegations proven on the balance of probabilities but find no unacceptable risk to a child. On the other hand, there may be no finding of past wrongdoing on the balance of probabilities, but there may be a positive finding of unacceptable risk.[69] It remains that any risk must be grounded on the evidence, which then informs a trial judge’s exercise of their discretion under s.65D of the Family Law Act 1975 (Cth) by reference to the child or children’s best interests:
The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment …, though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result …. The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s.60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.[70]
[67] M v M (1998) 166 CLR 69, 76 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ); Bant & Clayton [2019] FamCAFC 198, [38]-[41].
[68] Isles & Nelissen [2022] FedCFamC1A 97, [46]-[51], [86]; Bringinshaw v Briginshaw (1938) 60 CLR 336, 361-362 (Dixon J); Evidence Act 1995 (Cth) s140 (‘EA’).
[69] Isles & Nelissen (n 68) [83].
[70] Ibid [85].
The question before me is, therefore, whether the children will, in the future (and on the basis of the evidence, including any fact or past conduct proven on the balance of probabilities), be at risk of exposure to family violence, abuse, or neglect, or some other potentially harmful conduct and whether that risk is ‘unacceptable’.[71] The enquiry involves ‘a real and substantial consideration of whether or not, and why or why not, particular facts raise an unacceptable risk’.[72] The parenting orders ultimately made, in those circumstances, and if appropriate, can include measures to mitigate the type of risk as characterised.
[71] M v M (n 67) 77-78, at which their Honour state that ultimately, the court’s task is to assess the magnitude of risk and that ‘[a]fter all, in deciding what is in the best interests of a child’ a court of this jurisdiction ‘is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare’ , and that ‘[t]he existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access’. I note also the first instance decision of McGuire J in Isles & Nellison [2021] FedCFamC1F 295, in which at [267] his Honour explains the ‘separate and predictive’ inquiry, based off “possibilities” in a prospective sense’, affirmed by the Full Court on appeal.
[72] Murphy & Murphy [2007] FamCA 785, [318]–[319].
As the law currently stands it is my task to identify any risks to which the children may be subject and decide whether, in the context of the evidence and the children’s best interests as a whole, any of those risks are ‘unacceptable’. The Mother’s case is that the children will be exposed to family violence unless the Father's time remains day only and supervised — noting that the children have enjoyed supervised time with the Father since 2020. The Father accepts that his time should remain supervised until he has completed the Men’s Behaviour Change course, but after that it should rapidly increase on an unsupervised basis. He maintains that there is no evidence that the children will come to any harm in his unsupervised overnight care.
Standard of proof
I note briefly, before continuing, that all facts in issue in these proceedings must be proved on the balance of probabilities. Dixon J, as he then was, remarked upon the standard of proof for civil proceedings in Briginshaw v Briginshaw (1938) 60 CLR 336, which remain relevant and authoritative:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.

A fact in issue is 'proved' if I am reasonably satisfied, on the evidence, that it is more likely than not that the fact existed or occurred in the manner ultimately determined.[73]
[73] EA (n 66) s140.
The child/children’s best interests
The Act sets out two mandatory considerations at s 60CC(2). It is noted that s 60CC(2)(b) is to be given greater weight than s 60CC(2)(a), meaning that the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence outweighs the benefit to a child of having a meaningful relationship with both of their parents. I will also consider the additional factors listed in s 60CC(3) to the extent that they are relevant in this matter.
The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a))
There is no definition of ‘meaningful relationship’ in the Act. Brown J’s explanation of ‘meaningful relationship’ in Mazorski & Albright [2007] FamCA 520, endorsed by the Full Court in McCall & Clark [2009] FamCAFC 92 , is set out below:
What these definitions convey is that "meaningful", when used in the context of "meaningful relationship", is synonymous with "significant" which, in turn, is generally used as a synonym for "important" or "of consequence". I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.[74]
A ‘meaningful relationship’ does not, however, have to be an ‘optimal relationship’. Kay J’s remarks in Godfrey & Sanders more fully state this position:
It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their Father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.[75]
[74] Mazorski & Albright [2007] FamCA 520 [26]; McCall & Clark [2009] FamCAFC 92 [115].
[75] Godfrey & Sanders [2007] FamCA 102 [36].
I agree with the submission of the ICL that the children have a meaningful relationship with the Mother and the Father and that those relationships are important to them. The Father has been spending time with the children since separation in, albeit under supervised conditions, and the Mother concedes that the children enjoy their time with him. There was no evidence produced to establish that the children do not benefit from the time and relationship that they have with the Father. The Court Child Expert accepted that the current weekly time arrangements are appropriate for children of this age.[76]
The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b))
[76] Child Impact Report (n59) [19].
As set out earlier in these Reasons, the Mother alleged a long history of verbal, physical, controlling and sexual violence from the Father.[77] She stated that some of this abuse occurred when she was pregnant and later in the presence of the children.
[77] Paragraphs [8], [11], [18]-[19], [21]-[24], [26] – [27] of these Reasons.
The Father accepts that he was violent to the Mother on those occasions where he was charged in 2017 and 2020. He denies that he was sexually abusive or physically violent to her at the other times that she alleged, although he agreed that at times he was verbally abusive towards her.
The Father stated in his affidavit, and repeated under cross examination, that he is remorseful for the violence that he perpetuated against the Mother during the relationship.[78] The Mother is, however, sceptical of this claim — as am I. In 2022 the Court Child Expert recorded the Father's view of the 2020 allegations:
[Mr Bannister] confirmed that there is a current ADVO protecting [Ms Kroll] from him and there are associated charges […]. He said that these matters are currently before the criminal Courts and he is pleading not guilty. [Mr Bannister] also confirmed that he plead guilty to assaulting [Ms Kroll] in 2018 and received a good behaviour bond. He advised that he remains on waiting lists for a men’s behaviour change program. [Mr Bannister] said that he has not instigated physical violence, but has retaliated physically to [Ms Kroll’s] violence towards him, and there have been injuries to both of them. He said that they were both verbally abusive, and arguments escalated to threats. [Mr Bannister] reported that the children witnessed verbal abuse and physical violence. He denied being controlling towards [Ms Kroll] and said that she was controlling of him, and would say that she would not feed the children until he got home, meaning that they would be “starving”.[79]
[78] Father’s affidavit (n4) [41]-[44].
[79] Child Impact Report (n59) [10].
Under cross-examination he accepted that he did not immediately plead guilty to the charges that he faced in 2020, and maintained that the Mother had been violent towards him, and admitted that he told a police officer at the time that he acted in self-defence. He accepted that he did not disclose the 2017 convictions in his affidavit and curiously could ‘not remember’ getting on top of the Mother and punching her at that time. In an email to the Mother's lawyer in 2022 he refers to his earlier 2017 convictions as; ‘wrongful’ and ‘not family violence.’[80] I accept that the Father may now regret his actions, but he does not accept that he is entirely to blame.
[80] Exhibit M3.
The Father was convicted of charges against the Mother and other members of her family in 2017. In 2020 he was charged with multiple assault and related charges. [81] He pleaded guilty to two charges.
[81] Exhibits M1, M2 and Tender bundle of Ms Kroll, filed 14 April 2023, 108 (‘Mother's Tender Bundle’).
The Father was cross-examined about the Mother's allegations of sexual manipulation and physical assault, but denied the same. The Mother was not challenged about any of her allegations under cross-examination.
McEvoy J considered approach to evaluating allegations of family violence in Stamatou & Stamatou [2022] FedCFamC1F 241:
Before turning to the wife’s evidence in this respect, it is desirable to say something about the corroboration of family violence. It is well settled that a party does not require their evidence of family violence to be corroborated before such evidence can be accepted. Given the tendency of domestic violence to occur in circumstances where there are no witnesses other than the parties to the marriage and perhaps their children, this must necessarily be so: see Keating & Keating [2019] FamCAFC 46; (2019) FLC 93-894 at [42] (Ainslie-Wallace and Ryan JJ) (“Keating”); Hendy & Penningh [2018] FamCAFC 257; (2018) FLC 93-879 at [72] (Ainslie-Wallace, Ryan & Austin JJ); Amador & Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268 at [79] (May, Coleman & Le Poer Trench JJ) (“Amador”).
Whilst as a general principle it is important to identify a core consistency in the evidence of an alleged victim of family violence rather than concentrating on supposed inconsistencies in the evidence, this does not permit a court to ignore or otherwise dismiss inconsistencies in that evidence: Keating at [62] (Austin J); Zuen & Lhao [2020] FamCAFC 84 at [22]- [24] (Ryan, Aldridge and Stevenson JJ) (“Zuen & Lhao”). However the reference to the importance of identifying a core consistency, while important in cases involving family violence, must not obscure the reality that there cannot be a finding of family violence otherwise than in accordance with s 140 of the Evidence Act and having regard to all relevant matters: see Amador at [86]-[93]. Where allegations of family violence are made it is necessary for the Court to make findings where the evidence enables that to be done: see Zuen & Lhao at [24].[82]
[82] Stamatou & Stamatou [2022] FedCFamC1F 241 [180] – [181].
In my view there is a core consistency to the Mother's allegations. In her affidavit she refers to the Father's escalating anger, vile verbal abuse and assaulting her. She endured these insults for many years. She refers to a number of occasions where she was pushed, thrown, pinned down and spat on her face. Photos of her injuries, including a cut to her leg, were annexed to her affidavit.[83] In the police facts sheet for the 2020 charges, having been accepted by the Father when he pleaded guilty to assaulting the Mother — the Father accepted that he called the Mother names, pushed her, grabbed her and threw her over a small chair — causing her severe neck pain and pulling her arms. Police also observed a number of scratches to her neck and that she was in pain in her upper body. Photographs were taken of her injuries.[84] The correspondence between the Father and the Mother's solicitor’s also reveals an overly aggressive and demanding tone that fits with the Mother's stated experiences of him.[85]
[83] Mother’s affidavit (n3) Annexures K7 and K8.
[84] Exhibit M2.
[85] See Exhibit M6.
Based upon the Father's convictions of assault upon the Mother and others, the police facts as mentioned, his admissions to psychiatrists as will be detailed below, the detail of the Mother's unchallenged allegations set out in her affidavit, the core consistency of the allegations over a long period of time, my observations of the Father under cross-examination in relation to these allegations and the evidence of her sister, I am satisfied on the balance of probabilities that the Mother suffered verbal, physical and psychological violence from the Father as she alleged in her affidavit. I also accept her allegations of sexual manipulation and controlling behaviour. Even accepting the general volatility of their relationship, the Father's violence towards the Mother was a feature of their relationship and experienced by the children. It is clear to me that, notwithstanding his protestations of regret, the Father does not fully accept that his violent behaviour was wrong. The manner in which he gave answers to questions relating to family violence also left me concerned that he does not fully appreciate the impact of his behaviour upon the Mother. It is clear to me that, notwithstanding his poor behaviour towards the Mother in the in 2017, and at other times, she was largely forgiving of him because she believed that his behaviour was attributable to the trauma that he had experienced as a child and in the workplace. Her willingness to support him caused rift between herself and other members of her family. By the time she experienced the violent incident in 2020, her previous compassion and patience towards the Father had evaporated. From that time she clearly realised, for the sake of her children and herself that she had to leave the relationship. Her position then hardened and it is very difficult, at this time, for the Mother to have any trust in the Father.
I also accept the Mother's unchallenged evidence and concern regarding the Father's alcohol and drug use.[86] The annexure to her affidavit showing his text message regarding drugs counters his denial under cross-examination.[87] So too is the report from his treating psychiatrist Dr W whose reports in 2020 opens:
Currently he lives with his Mother having moved back about four months ago. It seems that his irritability made for a lot of tension with his partner. H would “go into rages — get physically violent — smoke a lot — drink a lot.”[88]
[86] Mother’s affidavit (n3) [125]-[128].
[87] Mother’s affidavit (n3) Annexure K7.
[88] Exhibit I2: Dr W, Report regarding Mr Bannister, 20 November 2017 (‘Dr W's Report’)
Dr W concluded that he was suffering from:
[L]oss of libido coupled with majiuanna and [medication] use. His current presentation seems broadly consistent with a major depressive disorder and prominent anxiety and a combined substance use disorder (marijuana and [medication])[89]
[89] Ibid 5.
In a 2019 report from Dr W, the Father said that he ‘no longer abuses [medication], alcohol, or marijuana’.[90] He also referred to his earlier violence as having ‘ceased’.[91] He did, however, refer to feeling as if life was not worth living, not showering or changing his clothes and feeling a tension inside.[92] In 2020 he also consulted with a psychiatrist — Dr Z. He told Dr Z that he used an illicit substance daily until 2018. Dr Z diagnosed him with ‘chronic fatigue’ and a number of disorders’.[93]
[90] Ibid 3.
[91] Ibid.
[92] Ibid [2].
[93] I2 – Dr Z, Report regarding Mr Bannister, 21 March 2020, 6.
These reports give insight into the chaotic and sometimes violent life that the Mother, and later the children endured with the Father. The Father does demonstrate some insight into his past behaviour in Dr W’s reports and he maintains regular contact with his psychologist. The problem is that he did not call Ms F as a witness. As such, the Court, and as importantly, the Mother, does not have any up-to-date information regarding his mental health and his general contrition regarding past poor behaviour. Whether he has truly overcome his past issues with alcohol and drugs is also unknown. This Court may, in light of the Father's failure to call or provide this evidence, infer that such would not have assisted his case. I draw that inference. In the words of Lord Mansfield in Blatch v Archer (1774) 98 ER 969:
“all evidence is to be weighed according to the poof which it was in the power of one side to have produced, and in the power of the other side to have contradicted.”[94]
[94] Blatch v Archer (1774) 98 ER 969, 970.
As a ‘particular application’ of this rule, this Court:
“can be confident about drawing inferences against a party who has chosen not to give evidence [if] it was within the power of the party to produce evidence on that matter.”[95]
[95] Australian Securities and Investments Commission v Rich [2009] NSWSC 1229, [439] (Austin J). See also Jones v Dunkel (1959) 101 CLR 298, 308 (Kitto J) which, with respect to the trial directions forming the basis of appeal, stated that ‘what should have been added, and not being added was in the circumstances as good as denied, was that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence’.
Further, as set out by Murphy J in Lavell & Lavell [2012] FamCA 34:
The “rule in Jones v Dunkel” relates to the potential for an adverse inference to be drawn in circumstances where evidence presented in a case raises an inference against a party and that party is in a position to give or call evidence to refute it and does not do so. But, the “rule in Jones v Dunkel” can be seen as “a particular application” of “the rule in Blatch v Archer”. (See Ho v Powell [2001] NSWCA 168 per Hodgson JA at [15], Beazley JA agreeing).
The latter “... applies where a person bearing the onus of proof does not give or call evidence which that person is plainly in a position to give or call; and unless some explanation is given of that failure, the tribunal of fact is entitled to infer that this evidence would not have assisted that person’s case ...” (Ho v Powell). The principle in Blatch v Archer can be seen as wider than the “rule in Jones v Dunkel” “because it is also available against the person bearing the onus of proof where that person does not adduce evidence that he or she was plainly in a position to adduce”. (Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 per Austin J at [439].”[96]
[96] Lavell & Lavell [2012] FamCA 34, [122]-[123].
Murphy J also extracted the following statement originating from Shalhoub v Buchanan [2004] NSWSC 99 and repeated in subsequent authorities, including Australian Securities and Investments Commission v Rich [2009] NSWSC 1229:
[T]he failure of a party who bears an onus of proof to call an available witness who could cast light on some matter in dispute can be taken into account in deciding whether that onus is discharged, in circumstances where such evidence as has been called does not itself clearly discharge the onus.” [97]
[97] Australian Securities and Investments Commission v Rich (n95) [440].
I am satisfied that the Father has perpetuated family violence towards the Mother for many years and that he has had significant mental health and substance abuse issues. Whether those issues are fully resolved is unknown. Certainly, there is no evidence of any concerning behaviour since separation, but I note that the Father's time has always been supervised. It is also of great concern that the Father has not yet completed a Men’s behaviour Change course, notwithstanding being ordered to do so.[98]
[98]Order of Judge Myers, Federal Circuit and Family Court of Australia, 8 March 2021 [3].
The children are at an unacceptable risk in the Father's care without migratory measures in place. Supervision is one such measure, and to date, is has been successful. I agree with the ICL that supervision of the Father’s time should remain until he completes the course as previously ordered. That will take some time.
The question is whether the children will be at an unacceptable risk if his time is unsupervised?
The Father has had his time with the children supervised for more than two years. That will continue until he completes the ordered course, which may take a further 6 months. The Father has the continued support of his parents and I would expect that he would stay in touch with them in the initial phases of any unsupervised time. That can also be ordered. He is also continuing therapy with his psychologist, who will now have all of the information setting out the Mother's concerns, together with the orders I make and my Reason’s, once published. His ongoing therapy can be made a condition of his time.
With such mitigating measures in place I am satisfied that the children will not be at an unacceptable risk if the Father has weekly day time only contact with the children. I accept that there is a large degree of trust in so ordering unsupervised time, and I infer that the ICL was also prepared to extend that same level of trust in him.
The Father also has an incentive to do all he can to make his time with the children succeed so that he can create a foundation for more normalised time. I have no doubt he will seek a review of these orders if he can successfully adhere to the strict regulations around his time and ensure that the children experience loving, fun and conflict free time in his care. I also have no doubt the Mother will seek to restrict or eradicate his time if he does not. There is a large spotlight upon him, reminding me of the words of the Full Court in Napier & Hepburn [2006] FamCA 1316:
But the future likelihood of that event occurring needs to be evaluated not only in terms of the cogency of the evidence that it has occurred in the past, but also in the context of the father’s denials and the vigilance of the parties, given the events that have led them to litigate over these issues so early in the child’s life. What potential there was for these events to continue to occur if they had previously occurred in the past, might well be diminished by the bright lights that have been shone upon the parties and their conduct, in the course of these proceedings.[99] (emphasis added)
[99] Napier & Hepburn [2006] FamCA 1316 [82].

These principles reflect a child’s basic right to have both parents involved in big, and often difficult, decisions affecting their lives. To make such decisions is hard and, generally, both parents are needed to formulate decisions that are in a child’s best interests.
Shared parental responsibility does not just refer to the nature and scope of a parent’s responsibility but, further, entrusts parents (or others) with certain decision-making obligations about major long-term issues.
The parents must, for each of their children, share decisions about major long-term issues in relation to each child. The Act requires them to make joint decisions about the major long-term issues for which equal shared parental responsibility has been ordered which, in this case, includes all major long-term issues.
The Act requires this Court to presume that it is in the children’s best interests for their parents to be equally responsible for major decisions affecting their long-term care and welfare. Section 61DA of the Act sets out the applicability of that presumption (emphasis added):
(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.
…
(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.
The operation of the presumption of equal shared parental responsibility is significant. The line of authority from the Full Court suggests that, if the presumption remains in place, equal shared parental responsibility must be ordered.[108] Section 61DA makes clear, however, that this outcome may not always be appropriate.
[108] Koyroyshs & Koyroyshs [2020] FamCA 626, [84] (Harper J), at which his Honour cites Marvel & Marvel (No 2) [2010] FamCAFC 101 and stated that ‘if the presumption applies, an order for equal shared parental responsibility will generally be made, thus displacing s 61C and triggering consideration of the provisions of s 65DAA’, and further stated his own view that trial judges should order equal shared parental responsibility when the presumption applies.
Sections 61DA(2) and 61DA(4) provide for two ways, by which equal shared parental responsibility may not be ordered, as are relevant to the case at hand.
Section 61DA(2) provides that, from the outset, the presumption will not apply if there are reasonable grounds to believe that a parent (or someone who resides with a parent) has engaged in child abuse or family violence. The standard set out in s 61DA(2) is important. It does not require proof of the fact that, on the balance of probabilities, child abuse or family violence took place. It requires only that the evidence provides reasonable grounds to believe that a person has engaged in child abuse or family violence. The wording of subsection (2) indicates a legislative intention to, in limited circumstances, prevent the application of the presumption, notwithstanding, that there may be no evidentiary finding of child abuse or family violence. Any actual finding of child abuse or family violence itself activates s 61DA(2), at which point there becomes no need to explore whether or not the presumption applies. Once s 61DA(2) is enlivened, whether through reasonable grounds of belief or a factual finding on the balance of probabilities, the presumption is excluded as a matter of law. In those circumstances, there is no discretionary power by which the presumption may be revived.[109]
[109] Ibid [85].
The enquiry as to an order for parental responsibility always, with the exception of s 61DA(2) and 61DA(3) (noting that subsection (3) is irrelevant in this case), commences with the presumption that equal shared parental responsibility is in the child or children’s best interests. This is not to say that the presumption, once in place, is set in stone.
Section 61DA(4) accounts for instances in which, although the presumption applies from the outset of the enquiry, an order for equal shared parental responsibility may nevertheless not serve the child or children’s best interests. If s 61DA(2) applies, s 61DA(4) never comes into operation.[110] Subsection (4) provides for the presumption to be rebutted — namely, for it to be ousted from consideration, despite the fact that it was initially applicable. To rebut the presumption a judge must determine, on the balance of probabilities that it would not be in the child or children’s best interests to order equal shared parental responsibility. The grounds upon which the presumption may be rebutted are significantly broader than those given in s 61DA(2). A Court must, therefore, reach ‘a level of satisfaction on the evidence … that it would not be in the interests of the child for [the presumption] to apply’, and must give ‘explicit and cogent reasons why the presumption should be rebutted’.[111]
[110] Boyce & Boyce [2015] FamCAFC 60, [21]-[22] (Bryant CJ, Ryan and Kent JJ).
[111] Dundas & Blake [2013] FamCAFC 133, [57], [61] (Bryant CJ, May and Ainslie-Wallace JJ). See also Withers & Russell (n 64), [426]-[428], in which the presumption was rebutted on the basis of the parties’ ongoing disagreements about major long-term issues, to the extent that an order for equal shared parental responsibility would not be in the best interests of the children subject to those proceedings.
Applicability of the presumption of equal shared parental responsibility in this case
The Father has been convicted of crimes of violence against the Mother and others. There is an existing ADVO protecting her. The presumption is clearly rebutted. This does not, however, mean that I no longer have jurisdiction to make an order for equal shared parental responsibility as agreed by all parties. Warnick J in Robertson & Sento [2009] FamCAFC 49, though in dissent, plainly sets out the operation of s 61DA(2) by reference to the words therein:
[s 61DA(2)] does not say that, if there are reasonable grounds to believe one of the nominated circumstances exists, equal shared parental responsibility, qualified or unqualified, shall not be ordered, but merely that the presumption does not apply (at all).[112]
[112] Robertson & Sento [2009] FamCAFC 49, [41]. His Honour dissented on limited grounds; I have extracted his reasoning because his assessment is consistent with the wording of s 61DA(2), and with the concept of the presumption as a legal mechanism which does not prevent an order being made in pursuance of s 60CA.
This Court remains bound under s 60CA to consider the children’s best interests as a paramount consideration in making any parenting order. If the evidence suggests that it is in the children’s best interests for there to be an order for equal shared parental responsibility then I may make that determination and craft an order accordingly.
I agree with the parties' that the Mother should have sole parental responsibility for the children. The parties' have little ability to communicate, genuinely consult and no ability to reach joint decisions. The Mother is fearful of the Father and holds no trust in him.
The Father requests that he be consulted in relation to major long term decisions and have the ability to have input into any decision made, although the final say will be that of the Mother's. This request is consistent with the children’s rights recognised under section 60B, outlined above. The ICL does not support such an order given the Mother's reluctance to communicate at all with the Father emanating from a proven history of family violence.
The Mother gave evidence that the primary school where she intends to send the children was agreed to by the Father during the relationship. It appears, therefore, that the parties' hold similar views and values regarding the children’s education. As such choices made by the Mother in this regard are likely to accord with the Father's views in any event. Given the stress to the Mother that the children may experience if she is forced to consult the Father about educational matters, I do not regard it to be in their best interest for him to have input into such matters. He must be informed of any decision made by her and be given all information relating to their education, but it is for the Mother to make their long term educational decisions.
The same reasoning applies to all other major long term decisions, and in particular, medical matters. If a child was injured or ill, the Mother will be under significant stress and pressure dealing with such a circumstance. To require her to consult with the Father would only exasperate her stress and ultimately may impact upon her ability to make good decisions for the sick child. Again, the Father should be fully informed in relation to any such matters, but the decision will remain with the Mother, without the need to consult.
I accept the Mother and ICL’s positons in relation to this issue.
Equal time or substantial and significant time?
As the presumption of equal shared parental responsibility has been rebutted, and I will order that Mother has sole parental responsibility, I am not obliged to consider whether the children should live in either an equal time or substantial and significant time arrangement.
The Father ultimately seeks equal time for the children’s school holidays. I have already determined that such an arrangement does not meet the children’s best interests at this time, nor is it reasonably practicable. The parties' do not communicate well and the Mother does not trust the Father at all and believes that he poses a risk to them. The Father will need to demonstrate that he is able to provide the children with a safe and loving environment if he is to enjoy extended time with the children. He will need to produce the corroborative evidence. This is something for another day. The same reasoning applies to the concept of substantial and significant time.
Conclusion
I consider that it is in the children’s best interests to continue to spend regular weekly time with the Father, as they have been enjoying for the last two years. The children are still very young and it important that their routines are maintained.
I am satisfied that the children will not be placed at risk if their day only time with the Father becomes unsupervised, but conditional upon the Father completing a Men’s Behaviour Change course and continuing to engage with his psychologist, and the other matters detailed. The practical implication of these conditions is that his time is likely to remain supervised for some months. This will provide the Mother and the children time to adapt to the new regime. The children’s time will remain weekly. This will impinge on the Mother's weekend, but that consequence is subservient to the importance of these young children maintaining regular time with their Father. She will, however, have the children in her care on the last weekend of each month.
The parties' and the children have experienced tumultuous times over recent years. They must both now ensure that the children’s lives are free of conflict and that they may be able to enjoy their childhoods and reach their full potential. This requires the parents to think positively and prospectively with an approach akin to that adopted by this Court when considering what parenting order should be made as expressed in Brandon & Brandon (No 2) [2012] FamCA 374, Kent J said:
The central task of determining parenting Orders in a child’s best interests is not an exercise in searching for disqualifying factors in either parent. Recognising that each person is unique, inevitably with strengths and weaknesses, both as a person and as a parent, the inquiry is essentially to determine parenting Orders that will positively promote the child’s best interests in the context of that child’s actual circumstances, including any perceived parenting weakness of either or both of the child’s parents.
Parental conduct is relevant only to the extent that it informs the assessment of parenting capacity or otherwise has weight in the determination of the parenting Orders in the child’s best interests, having regard to the considerations expressed in s 60CC of the Act, which the Court must consider in determining parenting Orders in the best interests of the child.
In this context, it is worth noting that in Jurss & Jurss [1976] FamCA 20; (1976) FLC 90-041, a case decided not long after the Act, in its original form, came into effect, Demack J noted in respect of a then “custody” dispute that the Court’s inquiry is essentially a positive one designed to promote the interests of the child, not to demote the claims of either parent.
Given that the overriding consideration for this Court is best interests, the Court must consider the conduct of parents not with a view to punishing such conduct or to reward one parent and punish the other, but to ascertain from such conduct, to the extent to which it is relevant, where the best interests of the subject child or children will be served from now or into the future.
I make orders in the terms set out at the commencement of these Reasons.
THE ICL’S COSTS
At the conclusion of the proceedings the ICL made an application for costs against the parties' in the sum of $15,457.64, inclusive of GST, to be shared equally. The parties' provided short written submissions as to why such costs should not be ordered.
Foster J considered the law relating to an application by an ICL in Theodore & Theodore (No. 3) [2021] FamCA 452:
The law as to costs is well settled. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that, subject to certain qualifications, each party to proceedings shall bear his or her own costs.
Section 117(2) provides that if the Court is of the opinion that there are circumstances justifying it in doing so, the Court may make such order as to costs as the Court considers just.
The relevant considerations in relation to an order for costs are set out in s 117(2A).
The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They are the following:
(a) The financial circumstances of each of the parties to the proceedings;
(b) Whether any party has legal aid and the terms of any grant of aid;
(c) The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;
(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) Such other matters as the Court considers relevant.
Section 117(3) provides:
To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
Section 117(4) provides:
(4) However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
Section 117(5) provides:
In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
A question arises as to the actual meaning of the legislative intent for the Court to “disregard the legal aid funding” of the Independent Children’s Lawyer, because that terminology is susceptible to ambiguity.
As opined by Austin J in Gahen & Gahen (No 2) [2013] FamCA 936, it could conceivably mean either:
(a) The Independent Children's Lawyer should be presumed to be unfunded, so as to generally incline the Court to order the parties’ contribution to the Independent Children's Lawyer’s costs; or
(b) The Court should not be swayed by either the presumed ampleness or scarcity of the Independent Children's Lawyer’s legal aid funding when determining whether to order the parties’ contribution to the Independent Children’s Lawyer’s costs.
In De Roma & De Roma [2013] FamCA 566 Watts J explained why the former is the preferred connotation, since the purposes of the legislative provision was to protect the public purse.
The threshold presumption as to each party bearing their own costs has no application to the Independent Children’s Lawyer, who is not a party.
The law is well settled, however, that there is power under the section, subject to other statutory provisions referred to below, to make orders for or against the Independent Children’s Lawyer and the Court may make such order as to costs of the Independent Children’s Lawyer and in such proportions in relation to each of the parties as the Court considers just: (De Roma & De Roma (supra)).[113]
[113] Theodore & Theodore (No. 3) [2021] FamCA 452 [5] – [15].
During the trial, both parties significantly moved their positions and settled most matters. I have no criticism of either of them for not reaching full agreement. The matters in dispute were serious and both parties’ positions had merit.
The Father is working and earns $1,311 per week gross according to his financial statement although he said that he earns $870 under cross-examination — but that could be a net figure. His Financial Statement reveals that he owns a small number of assets, the value of which are exceeded by his liabilities. He pays no child support, notwithstanding his wage. He does not have any substantial outstanding legal fees as his lawyer was engaged under the Cross‑Examination Scheme. He will also receive monies from the property order.
According to the Mother’s Financial Statement she earns $1,790 per week. She did not fully complete the expenses part of her Financial Statement, but she meets all of the children’s expenses without assistance from the Father and is unlikely to have saved money each week. Her liabilities far exceed the value of her assets.
According to her Costs Notice, the Mother, at one stage, received legal aid, therefore, on the face of it, the ICL cannot claim costs against her by virtue of s 117(4)(a) of the Act. However even if s 117(4)(a) does not apply, I will not order that the Mother contribute towards the ICL’s costs. The Mother’s financial circumstances are worse than the Father’s. The Mother will receive $95,000 from the property settlement but the monies available to her are needed for herself and the children. She does not have her own home and she lives with her mother. I accept that the Mother’s true financial position is that set out in her written submissions.

As to other considerations — I do not have the evidence of any relevant offers, and neither party was wholly successful — not even the ICL. The trial was conducted in a respectful and appropriate manner.
Having regard to the Mother's financial position I find that the Mother will be severely impacted if I required her to contribute to the ICL’s costs, and I consider any Order of costs would cause herself and the children considerable hardship. Any Order for the Mother pay anything towards the ICL’s costs as it will remove money from the Mother’s available funds that will otherwise benefit the children. It is also likely that s117(4)(a) applies.
The Father is in a different financial situation than the Mother. He is not protected by s117(4)(a) by virtue of having his legal fees met under the Cross-Examination Scheme. The Full Court has recently made that clear[114]. There is also no evidence that he has ever been legally aided, he does not pay child support and his income is largely for his own needs — according to his Financial Statement. He has funds available to him from the property settlement and he does not have a legal bill to pay. I am satisfied that a contribution towards the ICL’s costs in the amount of $7, 728.82 will not cause him hardship and is otherwise appropriate.
[114] Legal Aid ACT &Westwell [2021] FamCAFC 50

I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Turnbull.
Associate:
Dated: 31 May 2023

File number(s):	PAC 6469 of 2020
Judgment of:	JUDGE TURNBULL
Date of judgment:	1 May 2023
Catchwords:	FAMILY LAW – CHILDREN - History of family violence – should there be move for the Father from supervised time to unsupervised time (including overnight time) with children - Should the Father be consulted in relation to major long term decisions FAMILY LAW - COSTS - Independent Children’s Lawyer’s costs
Legislation:	Family Law Act 1975 (Cth) Part VII, ss 60B(2), 60CC, 61DA, 61DAB, 65D, 65DAC, 68B(1)(c), 117(4)(a)
Cases cited:	Australian Securities and Investments Commission v Rich [2009] NSWSC 1229 Blatch v Archer (1774) 98 ER 969 Bondelmonte & Bondelmonte (2017) 259 CLR 662 Boyce & Boyce [2015] FamCAFC 60 Brandon & Brandon (No 2) [2012] FamCA 374 Briginshaw v Briginshaw (1938) 60 CLR 336 Dundas & Blake [2013] FamCAFC 133 Godfrey & Sanders [2007] FamCA 102 Goode & Goode [2006] FamCA 1346 Isles & Nelissen [2022] FedCFamC1A 97 Jones v Dunkel (1959) 101 CLR 298 Koyroyshs & Koyroyshs [2020] FamCA 626 Lavell & Lavell [2012] FamCA 34 Legal Aid ACT & Westwell [2021] FamCAFC 50 M v M (1998) 166 CLR 69 Marvel & Marvel (No 2) [2010] FamCAFC 101 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 MRR & GR (2010) 240 CLR 461 Murphy & Murphy [2007] FamCA 785 Napier & Hepburn [2006] FamCA 1316 Robertson & Sento [2009] FamCAFC 49 Shalhoub v Buchanan [2004] NSWSC 99 Stamatou & Stamatou [2022] FedCFamC1F 241 Theodore & Theodore (No. 3) [2021] FamCA 452 Withers & Russell [2016] FamCA 793
Division:	Division 2 Family Law
Number of paragraphs:	152
Date of last submission/s:	19 April 2023
Date of hearing:	17, 18, 19 April 2023
Place:	Parramatta
Counsel for the Applicant:	Mr Mifsud
Solicitors for the Applicant:	John Stonham & Co
Counsel for the Respondent:	Mr Fermanis
Solicitors for the Respondent:	Phillip A Wilkins & Associates
Counsel for the Independent Children’s Lawyer:	Mr Maddox
Solicitors for the Independent Children’s Lawyer:	John Spence & Associates

PAC 6469 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR BANNISTER Applicant
AND:	MS KROLL Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE TURNBULL
DATE OF ORDER:	1 May 2023