Barbosa & Furtado - [2023] FedCFamC2F 32

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Barbosa & Furtado [2023] FedCFamC2F 32

File number(s): SYC 5028 of 2017

Judgment of: JUDGE MORLEY

Date of judgment: 19 January 2023

Catchwords: FAMILY LAW – parenting – final parenting orders – finding that family violence occurred perpetrated by Father – Mother a highly anxious person – children spending regular supervised time with Father currently – application for ‘identity contact’ style perpetual supervised time between Father and children – Court does not accept cogent reason for perpetual supervision – sole parental responsibility – Father to complete anger management course before moving to unsupervised time – graduating scheme of time between Father and children.

Legislation:
Evidence Act 1995 (Cth) ss 140, 144

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 65D, 65DA, 65DAA, 65DAB, 68B, 68C

Crimes (Sentencing Procedure) Act 1999 (NSW) s 10.

Cases cited:
A & A & The Child Representative [1998] FamCA 25

Betros & Betros [2017] FamCAFC 90

Briginshaw v Briginshaw (1938) 60 CLR 336

Godfrey & Sanders (2007) 208 FLR 287

Gorman & Huffman and Anor [2016] FamCAFC 174

Grella & Jamieson [2017] FamCAFC 21

Harridge and Anor & Harridge and Anor [2010] FamCA 445

In the Marriage of B (1993) 112 FLR 45

Isles & Nelissen [2022] FedCFamC1A 97

Johnson & Page [2007] FamCA 1235

KB & TC [2005] FamCA 458

Keane & Keane [2020] FamCA 99

Lansa & Clovelley [2010] FamCA 80

M & M (1988) 166 CLR 69

M v S [2006] FamCA 1408

Mazorski & Albright [2007] FamCA 520

McCall & Clark[2009] FamCAFC 92

McGregor & McGregor [2012] FamCAFC 69

Moose & Moose [2008] FamCAFC 108

Napier & Hepburn [2006] FamCA 1316

Re Andrew [1996] FamCA 43

Sampson and Sampson [1977] FamCA 42

Slater v Light [2013] FamCAFC 4

Tait & Densmore [2007] FamCA 1383

W & W (Abuse Allegations: Unacceptable Risk) [2005] FamCA 892

Division: Division 2 Family Law

Number of paragraphs: 329

Date of last submission/s: 25 June 2021

Date of hearing: 22-23 October 2020, 17-19 February 2021 and 15-16 June 2021

Place: Sydney

Counsel for the Applicant: Dr McConaghy

Solicitor for the Applicant: David H Cohen & Co

Counsel for the Respondent: Ms Giacomo

Solicitor for the Respondent: Kenneth Harrison Solicitor & Attorney

Counsel for the Independent Children's Lawyer: Mr Jackson

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

SYC 5028 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BARBOSA

Applicant

AND:
MS FURTADO

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE MORLEY

DATE OF ORDER:

19 January 2023

THE COURT ORDERS THAT:
Parental Responsibility
1.The Mother Ms Furtado (‘the Mother’) have sole parental responsibility for the children X born in 2013 and Y born in 2015 (‘the children’).

Live with
2.The children live with the Mother.

Anger Management Course
3.Forthwith, the Father Mr Barbosa (‘the Father’) is to engage in and complete an anger management course through B Counsellors and upon completion of that course he is to provide evidence of completion of the course by providing the Mother and the Independent Children’s Lawyer with evidence of his completion by way of a certificate or other evidence of completion.

Spend time with
4.Until the Father has completed the anger management course pursuant to order 3 herein, the Father spend time with the children as follows:
(a)In a two-week cycle:
(i)In week one – for a period of two hours supported by the current or an agreed professional contact service, at such times as suitable to the professional contact service, with such costs to be met by the father. It is noted that these spend time with periods are not required to be ‘strictly supervised’;
(ii)In week two – for a period of four hours supervised by a professional contact service or other person agreed to by the parents, at such times as suitable to the professional contact service or person agreed, with such costs to be met equally by the parents. It is noted that these spend time with periods can occur at venues other than a supervised contact centre.

5.As and from the date the Father presents the Mother and the Independent Children’s Lawyer with proof of his completion of the anger management course pursuant to order 3 herein, the Father shall immediately commence spending time with the children unsupervised as follows:
(a)For two months from the date that the Father provides the Mother and the ICL with evidence of his completion of the anger management course, each alternate weekend on Sunday from 11:00AM until 5:00PM;
(b)Thereafter, for a period of two months in the same fortnightly pattern as established in order 5(a), each alternate weekend from Friday after school or 3:00PM if not a school day until 5:00PM on Saturday;
(c)Thereafter, for a period of two months, in the same fortnightly pattern:
(i)Each alternate weekend from Friday after school or 3:00PM if not a school day until 5:00PM on Saturday;
(ii)Each Wednesday from after school or 3:00PM if not a school day until 7:00PM;

(d)Thereafter for a period of two months, in the same fortnightly pattern:
(i)Each alternate weekend from after school on Friday or 3:00PM if not a school day until 5:00PM on Sunday;
(ii)Each Wednesday from after school or 3:00PM if not a school day until 7:00PM;

(e)Thereafter for a period of two months, in the same fortnightly pattern:
(i)Each alternate weekend from Friday after school or 3:00PM if not a school day until before school or 9:00AM if not a school day on the following Monday morning;
(ii)Each Wednesday from after school or 3:00PM if not a school day until 7:00PM.

(f)Thereafter, during school term time:
(i)Each alternate weekend in the same fortnightly pattern from Friday after school or 3:00PM if not a school day until before school or 9:00AM if not a school day on Monday morning;
(ii)Each Wednesday from after school or 3:00PM if not a school day until before school or 9:00AM if not a school day on the following Thursday morning.

School holidays
6.That as and from the time the children commence spending time with the Father during the school term pursuant to order 5(f), and no earlier than from the April school holidays in 2024, the children shall spend school holiday time with the Father as follows:
(a)During the short April, July, and September/October school holidays, for eight (8) nights from the last Friday of the proceedings school term immediately prior to the commencement of the school holidays, and concluding on the second Saturday of such school holidays at 5:00PM;
(b)During the summer December/January school holidays:
(i)For the December 2024/January 2025 school holidays, the children shall spend time with the Father for two periods of consecutive nights the first commencing at the conclusion of school on the last day of the fourth school term and concluding at 2:00PM on Christmas Day, and the second from 9.00AM on 2 January 2025 until 9.00AM on 9 January 2025;
(ii)For the December 2025/January 2026 and the December 2026/January 2027 school holidays, the children shall spend time with the Father on a week about basis for seven consecutive nights commencing at the conclusion of school on the last day of the fourth school term;
(iii)For the December 2027/January 2028 school holidays and thereafter, for one half of the summer December/January school holidays by agreement between the parties and in absence of agreement:
A.The first half of school holidays in years in which the holiday period commenced in an even year; and
B.The second half of school holidays in years in which the holiday period commenced in an odd year.

7.In the event that the children commence spending time with the Father pursuant to order 5(f) herein in the calendar year 2023, the children’s time with the Father shall continue in the holiday periods of 2023, including the December/January school holidays, pursuant to order 5(f) (and subject to orders 9 and 10) and the first school holiday period that the children shall spend with the Father pursuant to the scheme in order 6 will be the April school holidays in 2024.
8.For the purposes of calculating a school holiday period the holidays shall be taken to:
(a)Commence on the afternoon of the last day that the children are required to attend school at any school term;
(b)Conclude on the evening two days prior to the first day of the new school term of the following term; and
(c)Pupil free days at the commencement or conclusion of the holidays shall not be included as part of the holidays period.

Special days
9.That notwithstanding any other order, the children shall spend time with the Father as follows:
(a)On Easter Sunday from 9:00AM to 2:00PM (if the Father is not already spending time with the children during that weekend pursuant to orders 5 or 6).
(b)On the Father’s birthday:
(i)If it is a school day, from after school until 7:00PM;
(ii)If it is not a school day, from 9:00AM until 2:00PM;

(c)On the Father’s Day weekend:
(i)In 2023, provided the Father has completed an anger management course pursuant to order 3 herein, and in the event the children are not ordinarily spending time with the Father on Father’s Day, then from 10:00AM until 5:00PM on Father’s Day;
(ii)In 2024 and for each year thereafter, provided the Father has completed an anger management course pursuant to order 3 herein, and in the event the children are not ordinarily spending time with the Father on Father’s Day, from after school or 3:00PM if not a school day on the Friday immediately preceding Father’s Day until before school or 9:00AM if not a school day on the Monday immediately following Father’s Day.

(d)From 5:00PM on Christmas Eve until 2:00PM on Christmas Day in years ending in an even number;
(e)From 2:00PM on Christmas Day until 2:00PM on Boxing Day in years ending in an odd number;
(f)On the children’s birthdays:
(i)If it is a school day, from after school until 6:00PM;
(ii)If it is not a school day, from 10:00AM until 2:00PM.

10.That notwithstanding any other order, the children shall be in their Mather’s care as follows:
(a)On Easter Sunday from 9:00AM to 2:00PM if they would not otherwise be in their Mother’s care on that day.
(b)On the Mother’s birthday:
(i)If it is a school day, from after school until 7:00PM;
(ii)If it is not a school day, from 9:00AM until 2:00PM;

(c)On the Mother’s Day weekend, from after school or 3:00PM if not a school day on the Friday immediately preceding Mother’s Day until before school or 9:00AM if not a school day on the Monday immediately following Mother’s Day.
(d)From 5:00PM on Christmas Eve until 2:00PM on Christmas Day in years ending in an odd number.
(e)From 2:00PM on Christmas Day until 2:00PM on Boxing Day in years ending in an even number.
(f)On the children’s birthdays if they would not otherwise be in their Mother’s care on that day:
(i)If it is a school day, from after school until 6:00PM;
(ii)If it is not a school day, from 10:00AM until 2:00PM.

Changeovers
11.Changeovers are to occur at the children’s school or schools where applicable.
12.Changeovers not occurring at the children’s school or schools are to occur as follows:
(a)The Father shall collect the children from Shopping Centre C, Suburb D at the commencement of his time with the children; and
(b)The Mother or her nominee to collect the children from Shopping Centre C, Suburb D at the conclusion of the Father’s time with the children.

Injunction
13.That the Father, Mr Barbosa born in 1973 is restrained by injunction pursuant to section 68B of the Family Law Act 1975 from approaching within 20 metres of the Mother or attempting by word or action to communicate with the Mother, other than as may be necessary in emergency circumstances regarding the safety of either of the children pursuant to order 19 herein or through the Our Family Wizard application pursuant to order 18 herein, and this is an injunction under section 68B for the personal protection of the Mother, Ms Furtado born in 1975 for the purposes of section 68C of the Family Law Act 1975 (Cth).
14.Any written submissions in relation to the Court making order 13 herein are to be filed and served by no later than 4:00PM on 2 February 2023.
15.The operation of order 13 is stayed pending further order of the Court.

Other orders
16.That each party shall promptly inform the other of any serious illness or injury suffered by the children whilst in the care of the party, or any attendance upon a medical professional for serious illness/injury, including providing particulars of any treatment given or medication prescribed to the child.
17.That each party shall authorise the children’s school to provide to the other party copies of all notices, newsletters and letters as may be forwarded by the school from time to time.
18.That the parents shall communicate via the Our Family Wizard application in relation to matters concerning the children.
19.That each of the parents shall keep the other parent informed of a mobile telephone number on which that parent can be contacted for the purposes of emergencies relating to the welfare of the children.
20.That each of the parents is restrained from making comments derogatory of the other parent, any member of the other parent’s family, or any member of the other parent’s household in the presence of or within the hearing of either of the children.
21.That each of the parties is restrained from allowing either of the children to remain in the presence of or within either of the children’s hearing of any other person who is making comments derogatory of the other parent, any member of the other parent’s family, or any member of the other parent’s household.
22.Mr Barbosa and his servants and agents are restrained from removing or attempting to remove or causing or permitting the removal of the children X born in 2013 and/or Y born in 2015 from the Commonwealth of Australia.
23.X born in 2013 and Y born in 2015 be and are hereby restrained from leaving the Commonwealth of Australia.
24.It is requested that the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child or children’s names on the Watch List until further order of the Court.

Costs of the Independent Children’s Lawyer
25.The Independent Children’s Lawyer is to file and serve any Application in a Proceeding seeking their costs of these proceedings supported by an affidavit and written submissions by no later than 4:00PM on 2 February 2023.
26.The Father and the Mother are to file and serve any Response to Application in a Proceeding supported by affidavit and written submissions by no later than 4:00PM on 23 February 2023.
27.The Independent Children’s Lawyer is to file and serve any written submissions in reply by no later than 4:00PM on 9 March 2023.

THE COURT NOTES THAT
A.That the Mother shall ensure that the child X continue therapy with Ms E.

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

These are final parenting proceedings under the Family Law Act 1975 (Cth) (‘the Act’) between the Applicant Father, Mr Barbosa born in 1973 (‘the Father’), and the Respondent Mother, Ms Furtado born in 1975 (‘the Mother’).
Final property orders were made in the matter by consent on 12 February 2020.
There parties met in 2011 and commenced cohabitation in 2012. They have two children together, X born in 2013 and Y born in 2015. At the conclusion of the hearing X was 7 years and 7 months of age and Y was 5 years and 11 months of age.
The Father contends the parties separated while living under the same roof in June 2016, though in one place in his evidence he asserts that the parties separated “irretrievably” in February 2016. The Mother contends the parties separated while living under the same roof in January 2016. The Mother moved out of the former matrimonial home on December 2016.
The final hearing of this matter took place over seven days commencing on 22-23 October 2020. On 23 October 2020, the matter was listed part-heard to 17-19 February 2021. The matter was then listed part-heard for a further two days on 15-16 June 2021.
Dr McConaghy of Counsel appeared for the Father, Ms Giacomo of Counsel appeared for the Mother, and Mr Jackson of Counsel appeared for the Independent Children’s Lawyer (‘ICL’).
PROCEEDINGS
The proceedings commenced on 4 August 2017 with an Initiating Application filed by the Father seeking parenting orders. The Mother filed her Response on 15 September 2017 seeking parenting and property settlement orders. The Father filed a Reply addressing property settlement on 29 November 2017.
The first return before the Court was 18 September 2017 before Judge Henderson (as her Honour then was), on which occasion an Independent Children’s Lawyer was appointed and an order was made for the parties to attend a Child Dispute Conference on 11 December 2017. The matter was adjourned for possible interim hearing on 21 December 2017.
The parties attended the Child Dispute Conference on 11 December 2017 with Ms F and a Memorandum to Court was provided for the Court’s assistance.
On 21 December 2017, orders were made by consent for:
(1)The children to live with their Mother;
(2)The parties to pursue the intake process with the Sydney Children’s Contact Centre at Suburb G;
(3)The Father to spend time with the children for two hours each fortnight at the Sydney Children’s Contact Centre at the equal cost of the parties; and
(4)An expert’s report to be prepared by Dr H, Child and Family Psychiatrist.
The matter was thereafter adjourned on multiple occasions while the parties awaited release of Dr H’s report.
On 4 May 2018, orders were made by consent for the parties to pursue the intake process with the commercial contact supervision service N Contact Centre, and for the Father to spend time with the children for two hours each fortnight supervised by N Contact Centre until the Sydney Children’s Contact Centre was able to accommodate the parties and the children. The supervision by N Contact Centre was to be at the equal cost of the parties.
Dr H’s expert’s report was released on 4 February 2019.

The matter was listed for Call-Over on 26 September 2019 and at call-over the matter was initially listed for final hearing on 12-14 February 2020.
On the 12 February 2020, final property orders were made by consent and interim parenting orders were made by consent discharging all previous parenting orders and providing for the children live with their Mother and to spend time with their Father:
(1)In week 1, for two hours with a professional contact service, but not required to be “strictly supervised”; and
(2)In week 2, for four hours supervised by either a professional contact service or an agreed person and able to be at venues other than supervised contact centres.
An order was made by consent for the Father to continue as attendance upon Ms J, a clinical psychologist, as directed by her and granting him leave to provide Ms J with a copy of Dr H’s report and the parties affidavits. The order provided that “It is noted that the therapy shall assist the Father, if relevant, with developing appropriate coping strategies relating to managing stress, anger issues and communication issues”. At the expiration of 7 months the Father was to obtain a report from Ms J and provide a copy to both the Mother and the ICL.
A further order was made for the Mother to engage in therapy and the order included:
… It is noted that it is intended that this therapy address, if relevant, any anxieties the Mother may have relating to the children’s relationship with their Father.
The Mother was to obtain a report from her therapist at the expiration of seven months and provide a copy to the Father and the ICL.
An order was also made for the Mother to engage X in “play therapy” and granting leave to provide a copy of Dr H’s report to the therapist, and for the parties to be equally responsible for the cost of the therapy.
An order was made for each of the parties to undertake, if they had not already done so, a Parenting After Separation course.
The proceedings were relisted for final hearing for three days on 22-23 October 2020 and 2 December 2020.
On 23 October 2020, the proceedings were adjourned part-heard to 17-19 February 2021. On 19 February 2021, the proceedings were once again adjourned part-heard to 15-16 June 2021.
FINAL HEARING
The Father relied on:
(1)Case Outline document filed 21 October 2020;
(2)Amended Initiating Application filed 18 October 2019;
(3)The Father’s affidavit sworn and filed 17 January 2020;
(4)The Father’s affidavit sworn 17 September 2020 and filed 18 September 2020;
(5)The Father’s affidavit sworn or affirmed and filed 21 October 2020 (only as to paragraphs 1, 2 and 3 thereof and not including the annexure);
(6)Closing submissions of the applicant Father prepared by Dr McConaghy dated 16 June 2021; and
(7)Short Minute of Orders sought by the Father (with variations to ICL’s Order is underlined).
The Father also relied upon the following exhibits:
(1)A1 – being a redacted document entitled “Confidential Psychological Report” regarding the Father written by Ms J dated 30 September 2020;
(2)A2 – being correspondence from Dr K to Ms J dated 20 December 2016 and a typed two-page document dated 14 January 2017 paginated as pages 35 to 37 inclusive;
(3)A3 – being L Contact Centre supervised contact reports dated 10 November 2018 to 26 September 2020 paginated as pages 33 to 338 inclusive;
(4)A4 – being a M Contact Centre supervised contact report dated 19 September 2020 paginated as pages 388 to 402 inclusive;
(5)A5 – being N Contact Centre supervised visit contact reports dated 27 May 2018 to 24 June 2018 paginated as pages 1 to 19 inclusive;
(6)A6 – being M Contact Centre supervised visit contact reports dated 19 February 2020 to 6 February 2021 paginated as pages 1 to 57 inclusive;
(7)A7 – being a document entitled ‘Notice of Order for Restitution’ addressed to the Father on the NSW Victim Services letterhead and correspondence from the Father to the Commissioner of Victims Rights paginated as pages 58 to 67 inclusive;
(8)A8 – being correspondence between O School and Mother dated 25 September 2020 paginated as page 340
(9)A9 – being email correspondence with the subject “Email communication RE: Y Unsettled” between the Mother and Ms AW paginated as page 352
(10)A10 – being the Mother’s hospital admission dated 27 October 2014 entitled “P Centre Carer Summary” paginated as pages 354 to 356 inclusive;
(11)A11 – being a bundle of documents from “Q Centre” being a document entitled “X” and play therapy session notes paginated as pages 357 to 360 and 363 to 365 inclusive;
(12)A12 – being a bundle of documents entitled “Region R Mental Health 3 Step Process” relating to the Father dated 20 December 2016, two letters from Ms J entitled ‘Response to Referral’, not including one redacted sentence marked in pencil on page 21, dated 16 January 2017 and 6 February 2017 and handwritten notes, paginated as pages 20 to 24 inclusive;
(13)A13 – being email correspondence between the Mother and Ms S dated 14 September 2020 and a 2 page letter attachment entitled “Psychological Report Ms Furtado DOB 1975” paginated as pages 385 to 387; and
(14)A14 – being M Contact Centre supervised visit contact reports dated 20 February 2021 to 29 May 2021 paginated as pages 1 to 55 inclusive.
The Mother relied on:
(1)Case Outline document filed 21 October 2020;
(2)Amended Response filed 29 January 2020;
(3)The Mother’s affidavit affirmed and filed 17 January 2020;
(4)The Mother’s affidavit affirmed 6 February 2020 and filed 7 February 2020;
(5)The Mother’s affidavit affirmed and filed 1 October 2020;
(6)The Mother’s affidavit affirmed and filed 12 February 2021;
(7)The Mother’s affidavit affirmed and filed 10 June 2021;
(8)The affidavit of Ms S, Clinical Psychologist, affirmed and filed 21 September 2020; and
(9)The Mothers submissions in reply to the Father’s written submissions, filed 25 June 2021.
The Mother also relied on the following exhibits:
(1)R1 – being the Notice of Risk filed by the Father on 4 August 2017;
(2)R2 – being a NSW Police entry relating to an alleged incident between the Mother and the Father occurring on 4 December 2016 paginated as pages 26 to 27 inclusive;
(3)R3 – being the provisional Apprehended Domestic Violence Order (ADVO) in the name of the Father from the Local Court at Suburb T dated 9 December 2016 paginated as pages 7 to 17 inclusive;
(4)R4 – being a Local Court at Suburb T document entitled “Bond to Comply with Conditions” paginated as pages 21 to 22;
(5)R5 – being the final Apprehended Domestic Violence Order (ADVO) in the name of the Father paginated as page 18;
(6)R6 – being a document entitled “Confidential Report” regarding the Father written by Ms J dated 10 February 2020 paginated as pages 33 to 34 inclusive;
(7)R7 – being NSW Police entries relating to an alleged assault perpetrated by the Father against a former partner in 2009 paginated as pages 28 to 30 inclusive;
(8)R8 – being correspondence labelled as “Personal Correspondence – 4 February 2020” from Ms J and a response to the correspondence paginated as pages 31 to 32 inclusive; and
(9)R9 – being a letter from Ms J addressed to “To whom it may concern” received with the subpoena material regarding a subpoena issued on 17 February 2021 to Ms J.
The ICL relied on:
(1)Case Outline document filed 9 October 2020;
(2)Short Minute of Orders sought by the ICL.
The ICL also relied on the following exhibits:
(1)ICL1 – being the Expert Report prepared by Dr H dated 7 December 2018; and
(2)ICL2 – being the Child Dispute Conference Memorandum to Court dated 11 December 2017.
ORDERS SOUGHT BY THE PARTIES
The Father seeks orders largely aligned with those sought by the ICL, set out in a document entitled “Short Minute of Orders Sought by the Father (with variations to the ICL’s orders underlined)”, and I include here the underlining to indicate variation from the orders sought by the ICL:
Parenting Responsibility
[1] That the parent/parties shall have Equal Shared Parental Responsibility for the Children:
(a) [X] born [in] 2013, and
(b) [Y] born [in] 2015 (‘the children’).
Live with
[2] That the children live with the Respondent Mother (‘the Mother’).
School term-spend time
[3] That the children shall spend time with the Applicant Father (‘the Father’) as follow:
(a) For the first two months from the date of these Orders: each alternate weekend on Sunday from 11.00am until 5.00pm;
(b) Thereafter for the next two months: each alternate weekend from Friday after school or 3.00pm until 5.00pm on Saturday.
(c) Thereafter for the next two months:
i. Each alternate weekend from Friday after school or 3.00pm until 5.00pm on Saturday.
ii. Each Wednesday from after school or 3.00pm until 7pm.
(d) Thereafter for the next two months:
i. Each alternate weekend from Friday after school or 3.00pm until 5.00pm on Sunday.
ii. Each Wednesday from after school or 3.00pm until 7pm.
(e) Thereafter for the next two months:
i. Each alternate weekend from Friday after school or 3.00pm until before school or 9.00am on the following Monday morning.
ii. each Wednesday from after school or 3.00pm until 7pm.
(f) Thereafter:
i. Each alternate weekend from Friday after school or 3.00pm until before school or 9.00am on Monday morning.
ii. Each Wednesday from after school or 3.00pm ~~until 7pm~~ until before school or 9.00am on the following Thursday morning.
(g) On the Father’s Day weekend, if Father’s Day does not coincide with the above spend time periods, each year from after day care and/or school or 3.00pm Friday until Monday before school (or 9am).
[4] That Order 3 be suspended on the following special occasions when the children is spending time with the Mother:
(a) On the Mother’s Day weekend each year from Friday after school (or 5pm) until Monday before school (or 9am).
(b) On the Mother’s Birthday from 9.00am to 2.00pm.
Other special days
[5] That the children shall spend time with the Father as follows:
(a) On Easter Sunday from 9.00am to 2.00pm (if it does not coincident with either the weekend times as stated above, or school holidays as set out below).
(b)From after school (or 3pm if it is not a school day) until 7pm on the Father’s birthday or if not a school day from 9.00am to 2.00pm;
(c) From 5.00pm on Christmas Eve until 2.00pm on Christmas Day in years ending in an odd number.
(d) From 2.00pm on Christmas Day until 2.00pm on Boxing Day in years ending in an even number;
(e) On the Children’s Birthdays, if it falls on a non-school day, from 10.00am until 2.00pm or if a school day from after school or 3.00pm until 6.00pm.
School holidays spend time
[6] That from 2022, the children shall spend time with the Father during school holiday periods as follows:
(a) During the shorter April, July, and September/October school holidays for eight (8) nights from the last Friday of the proceedings school term immediately prior to the commencement of the school holidays, and concluding on the second Saturday of such school holidays at 5pm;
(b) During the summer December/January school holidays:
i. For the first summer December/January school holidays: for 2 periods of seven consecutive nights commencing at the conclusion of school on the last day of the fourth school term and concluding at 3pm on the eighth day;
ii. For the second and third summer December/January school holidays: on a week about basis for seven consecutive nights commencing at the conclusion of school on the last day of the fourth school term;
iii. for the fourth summer December/January school holidays and thereafter: for one half of the summer December/January school holidays by agreement between the parties and in absence of agreement, and the first half of school holidays in even numbered (December) years, and the second half of school holidays in odd numbered (December) years.
[7] For the purposes of calculating a school holiday period the holidays shall be taken to:
(a) Commence on the afternoon of the last day that the children are required to attend school at any school term;
(b) Conclude on the evening two days prior to the first day of the new school term of the following Term; and
(c) Pupil free days at the commencement or conclusion of the holidays shall not be included as part of the holidays period.
Changeover
[8] If the changeover occurs at school, the parent who is to spend time with the child is to collect and drop off the children to and from school.
[9] If the changeover does not occur at school:
(a) The Father shall collect the children from [Shopping Centre C, Suburb D] at the commencement of his time with the children and;
(b) The Mother or her nominee to collect the children from [Shopping Centre C, Suburb D] at the conclusion of the spend time as stated above.
Telephone and FaceTime orders
[10] That each parent shall be permitted to contact the children by telephone or FaceTime at all reasonable times, and each Wednesday from 6.00pm to 6.30pm, and at times as initiated by the children and the other parent shall use their best endeavours to facilitate the telephone or FaceTime call including keeping their phone charged.
[11] For the purposes of Order 10 [sic], the parent who the children is living with or spending time with shall use their best endeavours to remove any multimedia or other distractions during the telephone or FaceTime call.
Information orders
[12] That each party shall promptly inform the other of any serious illness or injury suffered by the children whilst in the care of the party, or any attendance upon a medical professional for serious illness/injury, including providing particulars of any treatment given or medication prescribed to the child.
[13] That each party shall provide to the other with their current email address, telephone number and address within seven days from the date of these orders, and keep each other informed within 48 hours of any change to their current email address, telephone number and address.
[14] That each party shall authorise the child’s school to provide to the other party copies of all notices, newsletter and letter as mainly forwarded by the school from time to time.
Attendance of child’s school events
[15] That each of the parties shall be permitted to attend at the Child’s school at all times at which parents are permitted to attend, including events such as school sports days, parent-teacher interviews and alike or at any extracurricular activity which the children participates in.
Miscellaneous
[16] Each party shall be and hereby are restrained from doing or saying anything derogatory in the hearing or presence of the children regarding the other party or detrimental to the relationship each party each has with the child.
[17] The parties shall do all things necessary to engage in a Family Therapy or with a Family Intervention organisation, (such as [AV] Family Service as governed by ADHD Australia Support) for such period of time as recommended by the treating therapists.
[18] That the parents shall communicate via the Our Family Wizard application in relation to matters concerning the children.
Notation
[19] That the Mother shall ensure that the child [X] continue therapy with [Ms E].
The Mother seeks the following orders as set out in her Case Outline document prepared for final hearing on 22-23 October and 2 December 2020, dated 21 October 2020:
[1] That the Mother have sole parental responsibility for [X] born in 2013, and [Y] born in 2015 (“the children”).
[2] That the children live with the Mother.
[3] That the children spend supervised time with the Father each alternate weekend as follows:
(a) For two hours on Saturday supervised by the Sydney City Contact Centre; and
(b) For four hours on Sunday supervised by [M Contact Centre] with the costs of such service to be borne by the Father.
[4] That until further order [Mr Barbosa] born [in] 1973, his servants, and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent are contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove of causing or permitting the removal of the said children [X] born [in] 2013, and [Y] born [in] 2015, or either of them, from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist until the Court orders their removal.
The ICL seeks the following orders in the document entitled “Short Minute of Orders Sought by the Independent Children’s Lawyer”:
Parenting Responsibility
[1] That the parent/parties shall have Equal Shared Parental Responsibility for the Children:
(a) [X] born [in] 2013, and
(b) [Y] born [in] 2015 (‘the children’).
Live with
[2] That the children live with the Respondent Mother (‘the Mother’).
School term-spend time
[3] That the children shall spend time with the Applicant Father (‘the Father’) as follows:
(a) For the first two months from the date of these Orders: each alternate weekend on Sunday from 11.00am until 4.00pm;
(b) Thereafter for the next two months: each alternate weekend from Friday after school until 4.00pm on Saturday.
(c) Thereafter for the next two months:
i. Each alternate weekend from Friday after school until 4.00pm on Saturday.
ii. Each Wednesday from after school until 7pm.
(d) Thereafter for the next two months:
i. Each alternate weekend from Friday after school until 4.00pm on Sunday.
ii. Each Wednesday from after school until 7pm.
(e) Thereafter for the next two months:
i. Each alternate weekend from Friday after school until before school on the following Monday morning.
ii. Each Wednesday from after school until 7pm.
(f) Thereafter:
i. Each alternate weekend from Friday after school until before school on Monday morning.
ii. Each Wednesday from after school until 7pm until before school on the following Thursday morning.
(g) On the Father’s Day weekend, if Father’s Day does not coincide with the above spend time periods, each year from after day care and/or school Friday until Monday before school (or 9am);
[4] That Order 3 be suspended on the following special occasions when the children are [sic] spending time with the Mother:
(a) On the Mother’s Day weekend each year from Friday after school (or 5pm) until Monday before school (or 9am).
(b) On the Mother’s Birthday.
Other special days
[5] That the children shall spend time with the Father as follows:
(a) On Easter Sunday (if it does not coincident with either the weekend times as stated above, or school holidays as set out below).
(b) From after school (or 3pm if it is not a school day) until 7pm on the Father’s birthday.
(c) From 5.00pm on Christmas Eve until 2.00pm on Christmas Day in years ending in an odd number.
(d) From 2.00pm on Christmas Day until 2.00pm on Boxing Day in years ending in an even number.
(e) On the children’s birthdays, if it falls on a non-school day, from 10.00am until 2.00pm.
School holidays spend time
[6] That from twelve months from the date of these orders, the children shall spend time with the Father during school holiday periods as follows:
(a) During the shorter April, July, and September/October school holidays for eight (8) nights from the last Friday of the proceedings school term immediately prior to the commencement of the school holidays, and concluding on the second Saturday of such school holidays at 5pm;
(b) During the summer December/January school holidays:
i. For the first summer December/January school holidays: for seven consecutive nights commencing at the conclusion of school on the last day of the fourth school term and concluding at 3pm on the eighth day;
ii. for the second and third summer December/January school holidays: on a week about basis for seven consecutive nights commencing at the conclusion of school on the last day of the fourth school term.
iii. for the fourth summer December/January school holidays and thereafter: for one half of the summer December/January school holidays by agreement between the parties and in absence of agreement, and the first half of school holidays in even numbered (December) years, and the second half of school holidays in odd numbered (December) years.
[7] For the purposes of calculating a school holiday period the holidays shall be taken to:
(a) Commence on the afternoon of the last day that the children are required to attend school at any school term; and
(b) Conclude on the evening two days prior to the first day of the new school term of the following Term.
(c) Pupil free days at the commencement or conclusion of the holidays shall not be included as part of the holidays period.
Changeover
[8] If the changeover occurs at school, the parent who is to spend time with the child is to collect and drop off the children to and from school.
[9] If the changeover does not occur at school:
(a) The Father shall collect the children from the Mother’s residence at the commencement of his time with the children and;
(b) The Mother or her nominee to collect the children from the Father’s residence at the conclusion of the spend time as stated above.
Telephone and FaceTime orders
[10] That each parent shall be permitted to contact the children by telephone or FaceTime at all reasonable times, and the other parent shall use their best endeavours to facilitate the telephone or FaceTime call including keeping their phone charged.
[11] For the purposes of Order 10, the parent who the children is living with or spending time with shall use their best endeavours to remove any multimedia or other distractions during the telephone or FaceTime call.
Information orders
[12] That each party shall promptly inform the other of any serious illness or injury suffered by the children whilst in the care of the party, or any attendance upon a medical professional for serious illness/injury, including providing particulars of any treatment given or medication prescribed to the child.
[13] That each party shall provide to the other with their current email address, telephone number and address within seven days from the date of these orders, and keep each other informed within 48 hours of any change to their current email address, telephone number and address.
[14] That each party shall authorise the child’s school to provide to the other party copies of all notices, newsletter and letter as mainly forwarded by the school from time to time.
Attendance of child’s school events
[15] That each of the parties shall be permitted to attend at the Child’s school at all times at which parents are permitted to attend, including events such as school sports days, parent-teacher interviews and alike or at any extracurricular activity which the children participates in.
Miscellaneous
[16] Each party shall be and hereby are restrained from doing or saying anything derogatory in the hearing or presence of the children regarding the other party or detrimental to the relationship each party each has with the child.
[17] The parties shall do all things necessary to engage in a Family Intervention organisation, (such as [AV] Family Service as governed by ADHD Australia Support).
Notation
[18] That the Mother shall ensure that the child [X] continue therapy with [Ms E].
EVIDENCE

The Father was cross-examined by Ms Giacomo of Counsel for the Mother and by Mr Jackson of Counsel for the ICL.
The Mother was cross-examined by Dr McConaghy of Counsel for the Father and Mr Jackson of Counsel for the ICL.
Ms S, a witness for the Mother, was interposed before the conclusion of Mr Jackson’s cross-examination of the Mother. Ms S was cross-examined by Dr McConaghy and Mr Jackson.
The expert report writer, Dr H, was cross-examined for each of the parties and the ICL.
Mr Jackson, Ms Giacomo, and Dr McConaghy made oral submissions on 16 June 2021 and Dr McConaghy also provided written submissions on behalf of the Father, in consequence of which I directed that any written submissions in reply to those written submissions be filed and served by the Mother of the ICL no later than 4:00PM on 25 June 2021.
The relationship
The Father was 48 years of age and the Mother 45 years of age at the end of the final hearing. The parties met in about late 2011 online and commenced a relationship in about early 2012 and commenced cohabitation in 2012 when they moved into an apartment together at Suburb U.
The Father has an adult son from a previous relationship, Mr V. He was 20 or 21 years of age at the end of the final hearing. Mr V resides in Country W with his Mother.
At the commencement of the parties’ cohabitation, the Father was employed at Employer Z in Sydney as a professional, and the Mother was employed by Employer AB in Sydney as an Administrative Assistant.
The Father says that in about July 2012, the Mother deliberately damaged a wardrobe door at their home by smashing it with a hard object causing a hole in the door.
The parties’ relationship had difficulties from early on and in about November or December 2012 the parties attended some family counselling with a relationship counsellor at B Counsellors in Suburb AC. In course of those counselling discussions, the Father agreed that he would attend an anger management course, though he asserts that the agreement was that both parties should attend. The Mother asserts that the counsellor recommended that the Father attend the course “Taking Responsibility” as an anger management course and that there was no recommendation that she take any such course. In the event, he attended a 6-week anger management course to completion.
The child X was born in 2013 and shortly thereafter Mother and child had two sessions, including a one-week stay, at a P Centre unit. The Mother asserts that she was the primary carer for X during the day and night. She asserts that when she asked the Father to attempt to share some of the duties, he did not assist to any significant degree. The Father asserts that he assisted the Mother with caring for X:
… during evenings, nights and mornings in feeding, changing diapers, bathing, reading, settling both boys by swaddling and cuddling them in the evening as well as making them midnight bottles.
He says that following the birth of Y in 2015 he looked after X most nights as X’s room was next to where the Father was sleeping on the couch in the living room each night. He also asserts, however, that:
[Ms Furtado] also consistently refused to accept my help when it came to the children.
He was then engaged in full-time employment and working additional hours overtime to gain more income for the family.
Following Y’s birth and up until separation, the Father dropped the children off twice per week at childcare.
The Mother complains of some of the Father’s interaction with the children. She asserts that in November 2015, when X did not wish to have a book read him by his Father, the Father said to X:
I see you hate me too
and that when he was irritated he said to X:
You are behaving like a spoiled little snot
or
You scream like a girl. Look what your mummy has made you.
The Mother says that she took a year of maternity leave from work – impliedly following the birth of each of the children, though not specified as such – and that thereafter she worked on a part-time basis until Y commenced school in 2021.
The Father says that in about January 2014 the parties had a discussion about where they would live after the lease on their Suburb U apartment expired. He deposes that the Mother told him that she would not be moving from the apartment, that she did not want to live with him anymore, and that she was happy to be a single mother.
Later that day, when the Father came home from work, the Mother asked him to attend Suburb D Police Station in relation to her assertion that earlier that day he had grabbed her and pushed her against the wall causing her bruising to her arms. The Father admits that the Mother showed him bruising on her arms but he denies that he caused those bruises. He went to Suburb D Police Station and spoke to an officer and denied that he had “hit or grabbed” the Mother. Nothing further came of the matter by way of police action.
As with so much of the parties’ evidence, the Mother’s version of the incident is quite different. She asserts that on that occasion though arguing about the care of X, the Father grabbed the capsule in which X was lying and said:
I’m taking him. This is my baby too
and which X woke up and began crying.
She asserts that in the course of argument, the Father grabbed her arms causing bruising in the nature of “fingerprint bruises” that lasted for 2 weeks and that she reported the incident to Suburb D Police Station a few days later at the insistence of her parents, who had noticed the bruising. The police took photographs of the bruising and she made a statement. She told the Father to attend the police station and he did so, and no police action eventuated.
The Father asserts that the Mother scratched him on the arm when she was angry and in about December 2014 and in about September 2015 she slapped him on the face.
The Mother asserts that on some occasions when the parties had a disagreement, the Father “would block me, show me, push and grab me when I attempted to leave the room and in the argument”, causing her to feel intimidated.
She asserted that the Father “often threatened to commit suicide” and on one occasion informed her that he had called Lifeline from his car. She deposed that on occasion after the parties had argued, he asked to meet her near Suburb AC Park and when she arrived he was standing in cemetery and that he said to her, “I feel most comfortable here. Perhaps everyone would be better off if I just ended things.”
The Mother asserts that on occasions the Father said to her “If I ever hear that you’ve been cheating on me, I’ll kill him and make you watch”. During cross-examination, the Father denied that he made this statement to the Mother.
She asserts that in 2013 while she was pregnant with X, she was being driven by the Father on AD Street when the Father became enraged during an argument and swerved close to the edge of the road and said “Maybe I should just end it all now”. The Father denies the Mother’s evidence
The Mother also gives evidence of an occasion in early 2014 when she asserts the Father engaged in a road rage incident with another driver who cut him off when the Father was driving with the Mother and X in the car, the detail of which the Father also denies.
In about January 2014, the parties again attended marriage counselling at AE Counsellors at Suburb AF.
The Mother asserts in paragraph 183 of her first affidavit that:
There were two occasions when the Father had hit [X] too hard, he said to me:
I lost it. I couldn’t help it.
The Mother deposed in paragraph 196 of her first affidavit:
The Father made derogatory remarks about me in the presence of the children making remarks like “What would your Mum know”, “Your Mum wants me to disappear”, “Your Mum is clueless” and “Your Mum has ruined you.” On occasions he swore at me in the presence of the children, saying to me “fucking fat cunt”
The Father admitted during cross-examination to “probably” saying this to the Mother, asserting that he “swore at her once”.[1]
On other occasions when we had arguments pushed or shoved me, smacked me, slapped me, pinched me, spat at me grabbed me and threw things at me or broke things. The Father slapped me on most occasions there was no significant mark. On one occasion however, he smacked my mouth hard, leaving what appeared to be a blood filled bubble inside my lip. I said, “you are a disgrace. How can you do this? I am bleeding”. He looked in my mouth and said, “oh, that just looks like an ulcer”.
[1] Transcript pages 78 & 79.
In paragraph 197 of her first affidavit, the Mother says:
On one occasion we had an argument. During the argument, the Father placed both his hands around my neck. I said, “get your hands off me”. He took his hand off and grabbed my arm.”
The Mother also refers to an occasion when the Father threw a shoe at her while she was holding X in her lap and the shoe hit her.
The Mother says that on occasion when the Father was angry and talking to her about their separation and the children he said to her “You will never have the children. I will slit their throats before that happens”. The Father denies making that statement. The Mother deposes that on occasion during an argument the Father said to her “If I did to you what I want to do to you, you would be 10 feet under, but you’re not worth my life”.
In about February 2015, the parties left the Suburb U apartment and moved to AG Street, Suburb AH. The Father asserts that at this time, the Mother told him she did not want to sleep in a room with him anymore and he commenced sleeping on the couch. The Mother says that she and the Father slept together whenever possible but that she had difficulty in getting rest.
The Father deposed in paragraph 89 of his first affidavit that he:
… never assaulted the children in any way by hitting, grabbing or deliberately harming either [X] or [Y] at any time. I do not believe in corporal punishment.
The Mother asserts that when the parties were discussing her upcoming confinement for the birth of Y they argued about who was to care for X while the Mother was in hospital and the Father said to her “I hope you die on the slab”. The Father denies making that statement.
In the event, the Father took time off work and looked after X for the five days the Mother was in hospital following the birth of Y.
In January 2016 the parties had a discussion during which the Mother indicated that she wished the parties to become separated under one roof with the Mother continuing to live in the main house area with the children and the Father living largely in a granny flat at the property accessed by a separate outside door.
After a few months, the Father developed back pain from sleeping on a couch and so he began sleeping on a mattress on the floor in the granny flat, which had no curtains, wardrobe, insulation, running water, bathroom or cooking facilities. The Father developed a nervous tick on the right side of his face, for which he sought medical help and was told by a doctor that it was “all stress -related” and was prescribed Lovan, an anti-depressant. The Father says that he did not take the medication as he felt would affect his creative work.
The Father says that he accepted that the relationship had broken down irretrievably in about February 2016 at a counselling session, but having deposed that in 107 of his first affidavit, he deposes in paragraph 109 that it was “In or about June 2016, Ms Furtado and I separated under the same roof.”
The parties made a third attempt at counselling in about August 2016 with B Counsellors at Suburb AJ. The counselling was unsuccessful at bringing about any reconciliation of their relationship.
The Father denies that he has ever at any time spoken in a negative manner to the children about the Mother or about their parental relationship.
The Mother says that on 15 November 2016 she went to the granny flat to speak to the Father about X’s birthday party, that he became agitated and said “why are you here. You don’t care about me. I could be hanging from the rafters”, grabbed a rope that had been tied into a noose and threw it at her and said “Ms Furtado, this is what I think of every night while you play with the children”. During cross-examination, the Father denied the whole of the Mother’s evidence of this incident.
The Father’s work Christmas party
The Father’s work Christmas party, to which staff families and children were invited, was to take place on 4 December 2016 (the Father erroneously refers to the Christmas party as occurring on 6 December 2016. 4 December 2016 was a Sunday and 6 December 2016 was a Tuesday). On the previous evening, the Father and the Mother had a discussion about whether or not the Mother would attend, and the Mother informed the Father that she would not.
On 4 December 2016, the Father got the children ready to attend the party in the afternoon and asked the Mother if she needed anything ironed as she appeared to be getting ready to attend the event, trying on several dresses and asking the Father how the dresses looked on her. While the Father was waiting for the Mother to be ready, the start time of the event passed causing the Father to ask the Mother if she was ready. The Mother responded that she was not going to attend. The Father told the Mother that he needed fuel in his car and asked if she could give him any money, and the Mother replied that she would not, whereupon the Father asked if she could drive the Father and the children to the event, which the Mother refused.
The Father asserts that the Mother said to him “I am not going. What are you going to do?” to which he replied in words to the effect of:
I don’t know. You always do this last minute. You know it means a lot to me to be with the boys. Can you please drop us off? You know what I feel like, I feel like stabbing everyone.
While the Father asserts that he “immediately apologised”, he does not give any evidence either in his affidavits or his oral evidence in cross-examination of how he apologised. He says that he immediately said to the Mother “I did not mean it like that. There you go, now you have what you have instigated for so long, now you have what you wanted.”
He asserts that he then immediately left the house through a door in the kitchen and went to his room (the granny flat), sat on his bed for approximately 15 minutes and then looked at the window and saw the Mother and children drive off.
The Mother’s version of this crucial event on 4 December 2016 is quite different. The Mother says that the incident occurred on 4 December 2016. The Mother says that during the argument between the parties in the main bedroom, the Father was between the Mother and the door of the bedroom and when she said “Let me out”, the Father put his right arm out to block her and said “I’ve fucking had it with the lot of you. I am about to stab the lot of you”.
The Mother says she ducked under the Father’s arm and move down the hallway to the children who were in the toy room and heard the Father open the back door. In her first affidavit, she said that:
… almost immediately after that I heard the Father come back in through the back door… I heard the Father rummaging loudly in the drawer in the kitchen. We had a draw filled all full of large knives. It was difficult to open as it often got stuck and I recognised the sound of the draw full … I did not see the Father and I did not look up.
During her cross-examination, the Mother gave evidence that she only heard the back door open once and said that she assumes that the Father opened the door to leave but did not leave, returning immediately into the kitchen and opened the knife drawer.
The Mother did not see the Father again but “heard him pacing around the place as I prepared the children”. About 15 minutes after the last interaction between the parents,[2] the Mother and children left the home by car and the Mother sent an SMS message to her Mother from the car reading:
[Mr Barbosa] just went into a rage and said he is about to stab the lot of us. He has run upstairs and all I could think to do was to get the kids in the car and go. My heart is racing but I can’t panic as the boys think they are on their way to his children’s Christmas party.
[2] The Mother accepted during her cross-examination by Dr McConaghy that she “Possibly I took 15 minutes in entirety” – Transcript page 279.
The Mother then went to her parents’ home and did not thereafter return to reside at the family home.
During cross-examination, the Father denied that he put his right arm up to prevent the Mother from leaving the bedroom and he denied repeatedly that he went to or opened a knife drawer in the kitchen. He was cross-examined about the different versions given in evidence by himself and by the Mother of the words said by him about stabbing, and he admitted that even on his version of what he said it would have been intimidating for the Mother.
Further than that, he accepted that what he said on 4 December 2016 could cause the Mother to fear for her life and the life of her children.[3]
[3] Transcript pages 36-37.
The Mother attended Suburb AK Police Station on 9 December 2016, five days after the incident, and made a report to police about the incident occurring on 4 December 2016 (Exhibit R2) and a Provisional Apprehended Domestic Violence Order was issued for the protection of the Mother and each of the children by an authorised police officer (Exhibit R3).
On 11 December 2016, the Father received a phone call from an officer from Suburb AK Police Station and had a discussion. The Father was charged with the offence of stalk/intimidate with intent to cause fear of physical harm, and he pleaded guilty to that offence on 7 February 2016 at the Local Court at Suburb T. He was found guilty but without proceeding to a conviction, and was directed to enter into a good behaviour bond for 12 months pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act1999 (NSW). That bond required him:
(1)To be of good behaviour and to strictly comply with the terms of an Apprehended Domestic Violence order, which had been made for the protection of the Mother and the children on a final basis that day for a period of 12 months in the terms of the statutory order;
(2)To not approach the school or any other place where the Mother or either of the children might go to for study or for childcare, and in particular AL Child Care on AM Street, Suburb AN;
(3)To not go within 200 metres of any place where the Mother or the children live or work, and in particular the Company AO at AP Street, Suburb D (Exhibits R4 and R5).
When cross-examined by Dr McConaghy as to why it took her five days before she attended police to report the incident, the Mother responded:
I had to settle the children. It was an enormous decision I was making. I wanted to discuss it with my family. I had just come into their lives, my Father wasn’t well and I arrived on the doorstep with two children. It took a long time to discuss the impact it was going to have on everyone involved and to explain what had happened to my parents.
The answer was made by the Mother to the question with immediacy and I fully accept her explanation for the delay in making the report.
The period following the making of the final ADVO
On the day the final ADVO was made, the Father sent the Mother a text message:
I am not a threat to anyone and a Court has just proven that. What you are doing is abuse!
The Mother asserts that the Father sent her 431 SMS messages between 17 May 2017 and 16 November 2017.
The Father did not see or spend any time with the children between 4 December 2016 and the commencement of his supervised time with the children under the interim consent orders made on 21 December 2017. Following the making of those orders, his first occasion of supervised time with the children was on 27 May 2017 supervised by N Contact Centre for six visits and then at Sydney Children’s Contact Service through L Contact Centre at Suburb G.
The Father had some telephone communication with the children about three times a week for a period of about three months at some time between December 2016 and June 2017 on Monday, Wednesday and Saturday between 7:30 AM and 8 AM, but such communication was terminated by the Mother on about 21 June 2017.

The Mother asserts that the Father was using the occasions as an opportunity to make comments to the children and knowingly within her hearing that were derogatory and critical of her, including “Mummy is not letting me see you” and “Mummy is taking you away from me”. When the Father was aware that the Mother was able to hear him, “What you are doing is kidnapping, you are taking my children”.
The Mother says that during all such calls she had the speaker phone on so as to be able to hear what the Father was saying. During his cross-examination, the Father did not deny that he made most of the comments attributed to him by the Mother, though asserting he could not recall most.
The Father has had no direct communication, including by telephone, with the Mother since July 2017. He has had no telephone communication with the children since the end of June 2017. The Father confirmed during cross-examination that he does not know where the Mother and children live.
On the Mother’s application, a Child Support Assessment was issued in about April 2017 and the Father has paid child support as assessed since that time through the Child Support Agency. The Father asserts that he paid most of the child care costs for both of the children following separation, whereas the Mother asserts that the Father “made sporadic payments” to a childcare fees after December 2016.
Supervised time
Following the making of orders on 12 February 2020 for the Father to spend time with the children for 2 hours in week one and for 4 hours in week 2, supervised by a commercial contact service, attempts were made to arrange supervision by AQ Contact Centre and then M Contact Centre. The Father alleges that the process was delayed by the Mother’s failure to contact the proposed services in a timely manner. Eventually, the Father began spending time with the children for 2 hours a week in week one supervised at L Contact Centre Sydney and for 4 hours in week 2 supervised by M Contact Centre Contact service at a public venue.
In evidence as Exhibit A3 are supervised contact reports from L Contact Centre from 10 November 2018 to 26 September 2020 and as Exhibit A4 are supervised contact reports from M Contact Centre from 27 May 2018 to 24 June 2018 and as Exhibit A5 supervised contact reports from M Contact Centre from 19 February 2022 6 February 2021, and as Exhibit A14 supervised contact reports from M Contact Centre from 20 February 2021 to 29 May 2021.
In compliance with the orders of 12 February 2020, the Mother engaged Ms S, a clinical psychologist as her therapist and had a first consultation on 3 March 2020. The Mother provides as an annexure to her affidavit of 1 October 2020 a copy of a report by Ms S dated 14 September 2020 and she also relies on the affidavit and oral evidence of Ms S including the report of 14 September 2020 and a subsequent report of 21 September 2020.
At the end of a report of 21 September 2020 Ms S says:
Given that [Ms Furtado] is a single-parent and has been involved in a lengthy and difficult Family Court process, it is not surprising that [Ms Furtado] is currently experiencing symptoms of anxiety and stress. I believe that [Ms Furtado] is coping well given her [sic] the significant stressors she has endured for a number of years.
Annexed to the Father’s affidavit of 17 September 2020 as annexure “K” are copies of supervised contact reports prepared by M Contact Centre from 16 May 2020 to 5 September 2020. The occasion on 16 May 2020 seems on the evidence to be the first occasion of the children spending time with their Father under the orders of 12 February 2020 (I note the Mother’s evidence in that regard in paragraph 6 of her affidavit of 1 October 2020) and the report notes:
… the boys were happy to see their dad. They both gave him a big appropriate cuddle. They chatted very comfortable [sic] with their dad and their interactions were very natural. Dad offered them the option to see mum early if they wanted but they both shook their heads and said “no”.
I have read and carefully considered all of the contact supervision reports in evidence. Each report evidences an easy and affectionate relationship between each of the children and the Father and none of the reports indicate any problem in those relationships, no element of fear or hesitation or behavioural disturbance on the part of either of the children.
There is no indication in any of those reports of inappropriate behaviour towards the children or others on the part of the Father.
I have also read and carefully considered the evidence of the Mother contained in her affidavits of 1 October 2020, 12 February 2021, and 10 June 2021 about what she asserts are the behavioural reactions of X to the increase in the amount of time he spends with his Father pursuant to the consent orders made on 12 February 2020. I keep all of that evidence in mind in my consideration of this matter, as I do the evidence of the Mother during her cross-examination about that issue by Dr McConaghy, having fully refreshed my memory of that evidence from the transcript between pages 167 and 179, and between pages 221 and 225 (noting, as already stated in these Reasons, that I have carefully read and considered the whole of the transcript of the hearing in preparation of these Reasons).
I have also read and carefully considered Exhibits A8, A9, and A11. I do not intend to include detail of such evidence in these Reasons. The Mother’s evidence in relation to X’s behavioural problems, which she links in both her evidence in chief in affidavits and in her cross-examination to spending time with his Father, contrasts markedly with X’s behaviour during his time with his Father as detailed in the extensive contact reports in evidence.
I am not able to find that those behavioural problems are a direct or indirect reaction to spending time with his Father, or indeed are a direct or indirect reaction to the limited time he spends with his Father.
During cross-examination by Mr Jackson, the Mother confirmed that Y did not appear to have or express any concerns in relation to spending time with his Father, or to have behavioural issues arising therefrom, but that such concerns as he has shown the Mother “are in anticipation of how X is going to react”.[4]
[4] Transcript page 401.
Other matters
The Mother’s affidavit of 6 February 2020 annexes copies of pages from a diary made by the Father with writing and drawings and is admitted by the Father to have been made by him. Perusal of the material indicates that the diary was created by the Father during 1993 and 1994, when he was 20 years of age. I do not find that any of the material therein assists me in determining what orders are property be made in the best interests of X and Y with their interests as the paramount consideration.
The Father was cross-examined about an AVO issued against him for the protection of a former flatmate in 2009, in relation to which a COPS entry report was created 27 April 2009. That document was produced on subpoena by NSW Police and is in evidence as Exhibit R7, and represents second-hand hearsay assertions that the Father acted in disobedience of the terms of the AVO by contacting the protected person by telephone, though it seems no action resulted consequent upon the asserted breaches.
The Father’s own version is found on page 20 of Dr H’s report:
Asked about the 2009 AVO, [Mr Barbosa] referred to it being made when he was with a previous partner called “[Ms AR]”. They worked together, she was depressed and was seeing others while with him. During an incident when they argued over her sleeping with others, she said she would “call the boss” and, as she reached for the telephone, he stopped her by holding her arm. He reported “[Ms AR] “flipped” after he held her, began to screen “Help” and started knocking on neighbours’ doors. He felt he had not done anything and told her to call the police, which she did. An AVO was made after he agreed he “grabbed her hand”.
Further, during his cross-examination, Father gave evidence that he accepted that the Mother is an anxious person and continues to feel fearful of her safety in relation to the Father, and he accepted that he was “partially to blame for her anxiety”. He accepted that the Mother does not want him to know where she lives and that consequent upon these factors he agreed that it was not feasible in the “foreseeable future” that the parents would be able to make decisions of major significance about the children together.
When asked by Mr Jackson in cross-examination if he could foresee communication between himself and Mother improving in the future, the Father responded that he did not see such as realistic, that he did not see that is something that the Mother would be comfortable with “at this time”.
During the Mother’s cross-examination by Dr McConaghy, she asserted that developing a better co-parenting relationship with the Father was something “I’m not able to do”. The Mother gave evidence that there needed to be a rebuilding of trust between herself and the Father before she could reduce her anxiety about the children spending unsupervised time with their Father and she asserted that the building blocks for that re-establishment of trust involved the Father taking ownership of his actions that had led to her anxieties in that regard.
The Mother was then taken in cross-examination by Dr McConaghy to several instances of the Father taking ownership for his actions – to police, to the Court, to Ms J – but in the end she fell back on her fear that during unsupervised time for the children with their Father “A lot can happen.”[5]
[5] Transcript page 177.
The Father did not accept in cross-examination that the Mother had genuine anxiety issues about the children spending unsupervised time with him. He accepted that during the relationship he had been verbally abusive the Mother, but denied that he had at any time been physically violent toward her or acted in a controlling and coercive manner towards her.
During his cross-examination by Mr Jackson, the Father acknowledged that he had had anger management issues and in particular in his relationship with the Mother. He went on to acknowledge that his anger management issues may have an impact on the Mother.
The Mother was taken during her cross-examination by Dr McConaghy to documents produced on subpoena in relation to her attendance at P Centre in February and October 2014 and to assertions contained in those documents (whether they had been completed by the Mother herself or by another person on instructions from the Mother, or otherwise was not clear) that to that time, she had not been the victim of any issues of family violence in her relationship with the Father.
The assertions contained in that document conflict with the Mother’s evidence of family violence perpetrated by the Father towards her during the relationship and prior to the seminal incident of 6 December 2016.
I find that the assertions contained in that document are not a basis on which to find that the Mother’s assertions of family violence perpetrated by the Father prior to the date of the documents are untrue. I need not go into the law regarding the collapse of the old Elias principle here and refer to my judgment in Eden &Eden [2022] FedCFamC2F 891 at [182] to [187].
In around mid-2020 the Father commenced residing in a leased 2-bedroom apartment in AS Street, Suburb AT. At the time of the hearing he had been retrenched from his role as a professional with the Employer AU and was unemployed. He was in the process of establishing a small business utilising his talents.
Pursuant to the orders made on 12 February 2020, the Mother arranged for X to commence “play therapy” with Ms E. The Father confirmed during cross-examination that he understood that X was an anxious boy, though he could not state the cause of that anxiety, and that he takes no issue at all with the therapy provided to X by Ms E and that, as far as he is aware, such therapy has been helpful for X.
The Mother’s place of residence with the children is not known to the Father and the Mother wished throughout the hearing to keep her place of residence confidential. She resides with the children in a two-bedroom unit where she occupies one-bedroom and the children occupy the other with a cot and a bed. The unit includes a closed off Courtyard.
The Mother is employed by Employer AB as an Administrative Assistant in Suburb D.
During his evidence in cross-examination the Father was unsure if he was still entitled to obtain a Country W passport.
Expert evidence by Dr H.
Dr H prepared a Confidential Psychiatric Report dated 7 December 2018 pursuant to the order made by consent on 21 December 2017 and that report is Exhibit ICL1.
Dr H conducted interviews with the Mother and the maternal grandmother and observed both with the children on 6 August 2018 and conducted an interview with the Father and observed him with children on 7 August 2018. Dr H was cross-examined by Mr Jackson for the ICL and by Ms Giacomo for the Mother on 19 February 2021 and then further cross-examined by Ms Giacomo and cross-examined by Dr McConaghy for the Father on 15 June 2021. The gap between the interviews for the report and Dr H’s cross-examinations was two and a half years and nearly three years.
Dr H was provided with and read the affidavits relied upon by the parties at hearing and she was also provided with and read the contact supervision reports from M Contact Centre up to those most recent and available before her cross-examination.
I read and carefully considered the whole of Dr H’s report and I note in particular the following, quoted from the report in relation to the interviews with the parties and observations with the children. The quoted portions are not in every case quoted in order of their appearance in the report:
•While looking at a book, [X] mentioned Daddy and was asked where his Daddy was. He responded, “our Daddy doesn’t live with us now” and said he did not know why. Asked if he liked seeing him, he replied “yes” and, following a query, he affirmed he would like more time with him.
•To an enquiry if he has a “good time or bad time with Dad”, [X] indicated “a good time”, when they play on “a blue climbing thing”. …
•[Ms Furtado] reported the boys spend time with their Father for two hours a fortnight in a contact Centre. They have had a total of 6 visits in 2018 and recently changed to a [Suburb G] contact Centre.
•[In relation to the Mother’s attendance to deliver the children for joint interview with their Father on 7 August 2018] Waiting with the boys, [Ms Furtado] handed me a note when I picked them up, while their Father stayed in the office. She had written “I meant to double check our address details will not be discussed” and “also, please note [X] had three accidents yesterday and did not want to come today. He asked for assurance you would stay and is now happy to attend”.
•While with her, [Y] appeared very chatty and playful and [X] was involved with a workbook but still easily engaged with me. They were happy to come to the office and demonstrated no separation anxiety.
•[Mr Barbosa] had a big, open, smiling expression as he greeted them at the door. He came to hug them and they happily responded. [X] briefly acted in a “silly” (usually a sign of anxiety) manner but soon settled to play with the toys. …
•[X] was noted to play in a relaxed, contained manner by himself and to spontaneously approach his Father and engage with him. …
•… [Mr Barbosa] engaged them equally and all seemed at ease. He joined [Y] in scribbling on paper and sat near [X], who showed no discomfort as he chatted to Dad about the cars and trucks was playing with. …
•[Y] was noted to climb onto the lounge to sit next to Dad, leaning against his knee. After [Mr Barbosa] asked if he needed to go to the toilet, [X] said “yes” and both children accompanied me to the bathroom. To my queries (as he sat on the toilet), [X] denied feeling nervous or worried or scared about coming to the appointment. …
•… [X] helped clean up the office and did not seem anxious to leave. …
•They all quickly farewelled each other. The boys returned to their Mother without any distress about leaving him or reuniting with her.
•…
•[When the Mother was] asked what would be the worst outcome, she described how unsupervised time between [Mr Barbosa] and their sons scared her.
•While she “can see the boys enjoy themselves with him”, she stated the contact centre reports do not reflect what she saw previously. She opined question was “highly manipulative, controlling” and has promised he will “tell them everything he chooses to”. …
•… She said she did not think it “helpful or safe” for them to have unsupervised time with their Father and found it “hard to know” what the “plan” should look like. …
•… Pressed on what long-term arrangement was in the boys’ best interest, [Ms Furtado] said she understood contact centres will only supervise for a year and she did not know what to suggest …
•… [Ms Furtado] opined the boys were now thriving and had forgotten the past. …
•Commenting that [X], before the separation, craved [Mr Barbosa]’s attention, she reported he was now happy because of the “lots of gifts”, which, she declared, was “grooming”.
•[Ms Furtado] stated she was concerned reports by the supervisors “are not reflective of how the children are experiencing the contact”.
•[The Mother] indicated most of [Mr Barbosa]’s alleged abuse of her was “verbal, psychological. However, there was some physical: slaps, punches, pushes, grabbing, blocking, spitting, clenched fist, filming, recording”.
•[The Mother] wrote “I fear he will behave well during contact centre visits, achieve more relaxed contact then we are all in serious danger”.
•In 2013, they saw a [B Counsellors] counsellor several times and it was recommended [Mr Barbosa] do an anger management course. Although he completed a course, there was no lasting improvement in the relationship and he left the room if they were in conflict.
•Asked about his reference to making mistakes, [Mr Barbosa] stated his “biggest mistake was saying what I said, horrible”. He described his and [Ms Furtado]’s “heated argument” on 6 December 2016 about his work’s Christmas party. He wanted them all to go, as they had previously, and tried to get [Ms Furtado] “to come and take us”.
•When she “didn’t want to”, he “blurted out in frustration” that he felt “like stabbing everyone, not her, anyone, (which was) and expression of wanting the arguing to stop, (while) the whole time she was wanting a way out, instigating for something to happen”. He said at that time he could not fight any more and, when he “blurted that out, (he) gave her a ticket to leave, everything to stop”.
•He “apologised after it” because he “said something that was very harsh”, adding “obviously, that was enough”. He denied he had been “intimidating or overpowering” …
•… [Mr Barbosa] opined [the children’s] needs were being met by [Ms Furtado] as they are “bright, respectful, polite, well mannered, very inquisitive and energetic”. He held “no fears for their safety and health”, adding “she wanted to be a Mother and in that sense she is very good at that” before opining he also was “very good… meet their needs”.
I note the following extracts from Dr H’s evaluation in the report:
•… [The children’s] Mother has always been their primary caregiver and the most significant attachment figure.
•The children’s relationship with and attachments to their Father are likely to be insecure, given his significant absence from their lives after the parental separation in December 2016. They have had minimal time with him since they recommenced spending time with him in mid-2018.
•The subpoenaed [L Contact Centre] supervisors’ notes describe the boys transitioning comfortably between their parents. During their visits, they appear happy and relaxed and their Father is appropriately responsive to them.
•… Research suggests that children who witness violence experienced the same level of negative psychosocial outcomes as children who directly experience physical abuse.
•While the onset of [X]’s soiling could be attributed to him being tuned into his Mother’s anxieties and fears about contact with [Mr Barbosa], it is possible he has implicit memories of his parents’ conflict. Given he was just three when they separated, any memories would be retained as emotional (fear) fragments …
•… in dispute is whether [Mr Barbosa] has made meaningful homicidal threats to [Ms Furtado] and about the children. If factual, the risk of harm to [Ms Furtado] and their children is significant, particularly if
•(i) it is established there is a history of intimate partner violence between the parents and
•(ii) [Mr Barbosa] can be characterised as having had entitled, obsessively controlling behaviour is towards [Ms Furtado] during and after their relationship …
•Concerningly, [Ms Furtado] has retrospectively reclassified some information, pathology rising him by doing so, for example his photographing of her used to seem like “genuine interest” but now felt to her like he was “getting ammunition”; other actions by him were intended to make her “look paranoid” …
•If taken at face value, the alleged statements by [Mr Barbosa] that “haunt” [Ms Furtado] [and rated as 1 to 6 on page 11 of the report], as well as the alleged 2015 comment “I’ll slit their (the children’s) throats before you have them”, other acts of violence and his threats to suicide, are consistent with him being a significant risk of harm to her and the children. She has been traumatised by their relationship.
•It was not apparent to me [the Mother] restricted [the children’s]’s relationship with their Father without believing, from her experience, there are reasonable grounds to take this position. I cannot conclude she has engaged in a process of alienation.
•However, her reasons for restricting the boys’ contact with the extended paternal family are not clear, nor have I seen evidence they should remain unknown to the children. It would be beneficial for them to develop a relationship with their paternal family while they are at the [L] children’s contact service.
•This would assist their sense of belonging and identificatory needs. …
•[Mr Barbosa] did not present as the entitled, controlling, manipulative, aggressive and erratic person alleged by [Ms Furtado]. At this assessment, he appeared child focused and engaged with the children in a loving, age-appropriate manner. [L Contact Centre] subpoenaed notes report similar behaviours during his supervised time with them.
•While discussing the boys, he demonstrated an awareness of them as separate individuals from him (not an extension of him) and seemed to hold positive regard for them. He believed he was a good parent and perceived he had a “duty”, as well as a right, to parent them …
•He acknowledged he reacted angrily during his and [Ms Furtado]’s conflict, alleging his “horrible”, “biggest mistake” occurred during a “heated argument”, when he “blurted out in frustration” he felt “like stabbing everyone”.
•He denied any homicidal intent, or following through with a related action open bracket going to the knife drawer), explaining his declaration was “an expression of wanting the arguing to stop” …
•… [Mr Barbosa] explicitly denied perpetrating any physical violence …
•Without gaining more mature coping strategies, [Mr Barbosa] remain [sic] vulnerable to relapsing into past behaviours during times of stress, blaming the other for his actions. Given the ages of his sons and the inevitable challenges associated with caring for two young children, at the current time it is unwise and probably unrealistic for him to believe he can parent them solo.

In the event that orders are made as sought by the Mother, for the children to spend time with their Father on only four occasions in each calendar year on a supervised basis at a contact centre, the time the children spend with their Father would be drastically reduced from about 52 occasions per year – albeit for two hours on one week and four hours in the next week – to, realistically, a few hours, supervised, every three months.
The nature of the relationship that does exist between each of the children the Father as illustrated over a long period of time in the contact supervision reports must lead to a finding that there would be a sense of abandonment suffered by the children if their time with their Father was so drastically reduced. In some circumstances, that can be appropriate in their best interests, such as where the risk is so unacceptable that it cannot otherwise be appropriately mitigated. That is not the circumstances I have found to be the case for these children.
With the unacceptable risk appropriately mitigated as I have proposed, I find that such a change in the children circumstances as is proposed by the Mother would not be in their best interest as it would cause them a detriment.
The Father proposes that the children’s time with him escalate by steps to being each alternate weekend from Friday until Monday in one week and from Wednesday after school until Thursday start of school in the other week, on a fortnightly basis, during school term time and escalate to half of each school holiday period.
I find that, once again stressing that the unacceptable risk is addressed by appropriate orders, a change in the children’s circumstances whereby their time with their Father progresses to unsupervised time and increases so as to provide the children with the opportunity to develop and pursue a meaningful relationship with their Father, will have a beneficial effect upon the children.
Accompanying that finding, I must consider the likely effect on the children and the children’s relationship with their Mother of a progression of the time with their Father to unsupervised time and expansion of such time.
I find in that regard that this is one of those cases where “the proof is in the performance”. I find that any detrimental effect on the Mother which may communicate itself to the children does not outweigh, but rather is outweighed by, the beneficial effect on the children of being given opportunity to develop their meaningful relationship with their Father, and that as the children’s time with their Father increases and no detriment by way of the Father’s conduct to the children accrues to them (the Father having completed before supervision and is what I have identified to be an appropriate anger management course), the Mother’s natural and explicable fears and concerns can and should, hopefully, abate, whether through her own acceptance of the performance or through professional assistance, the Mother having shown herself to be a person who will seek appropriate professional assistance.
Accordingly, I find that the best interests of the children are in favour of a change in their circumstances that leads to an increase in the time with their Father, and the ending of supervision of that time after his completion of the appropriate course and that those best interests take into account the likely effect of that progression on the Mother and consequent effect on the children.
The practical difficulty and expense of the children spending time with and communicating with their Father and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis
The Mother’s and children’s place of residence is not in evidence, the Mother desiring to keep same confidential from the Father and that desire having been met by the Court, but there is no evidence before the Court to present any particular practical difficulty or expense in the children spending time in communicating with their Father.
The capacity of each of the children’s parents to provide for the needs of the children, including emotional and intellectual needs
The only question in relation to the capacity of the children’s Mother to provide for their emotional needs is in relation to her ability to accept and foster the children’s relationship with their Father progressing to an unsupervised relationship once the Father has completed what has been foreshadowed as the requirement for him to undertake an anger management course through B Counsellors NSW.
The totality of the Mother’s evidence in chief and evidence during cross-examination leads me to a finding that a period when the children move to spending unsupervised time with the Father once he has completed preliminary requirements will be a difficult and testing time for her and that she may well need to continue her engagement with professional help in coping.
That said, I find that the best interests of the children in being given opportunity to establish and develop a meaningful relationship with their Father by progressing to unsupervised time and by a progressive increase in that time up to a level yet be determined is not overcome by the difficulties the Mother will experience as I find that this is not one of the cases that comes through the Court where the effect of the Father spending unsupervised time with children will be so heavily impactful on the Mother that it will so seriously act to the detriment of her ability to appropriately parent children as to fully counterbalance the benefit of the children of being given the opportunity of their meaningful relationship with their Father.
That is not to say that the Mother will find it easy or will not need assistance to cope. I accept the evidence of the difficulty she has had and will have in that regard, and I also find in her evidence during cross-examination a willingness to see the establishment of a meaningful relationship between the children and their Father is to their benefit if she can be satisfied that they are not being and will not be subjected to family violence, or even inappropriate influences, by their Father.
Other than that, the Mother has shown total capacity to provide for the needs of the children, including their emotional and intellectual needs and does not come into question in the proceedings.
The Father’s capacity to provide for the children’s emotional needs is called into question by his propensity to outbursts of anger and his lashing out both physically and verbally during those outbursts – historically, at the Mother and previous partners, and potentially, and either or both of the children.
This relates to my finding that he must engage in and complete what I have identified as an appropriate anger management course prior to the cessation of supervision of his time with the children. Once he has completed that course, and provided he applies to his relationship with his children the matters taught in that course, the Father should have adequate capacity to provide for the children’s needs, including their emotional and intellectual needs.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents, and any other characteristics of the children that the Court thinks are relevant
X is now 9 years of age and Y is 7 and a half years of age. Whilst both parents were born in Australia, the children have Country W heritage through their Father who went to live in Country W for an extended period of time when he was 8 years of age.
The children’s upbringing has been ‘traditionally’ Australian and they have had very little exposure, if any, to their Country W heritage through their Father due to the limited time they have been able to spend with him since the parties’ separation and their very young age (X was 3 years of age and Y was 18 months old) at separation.
If the children spend time with the Father as proposed by the Mother, they will have no opportunity to learn about and experience their Country W heritage through their Father. If orders are made as sought by the Father, they will have such opportunity, and I find that having such opportunity will be in their interest.
The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents
The Mother has demonstrated an appropriate attitude to the responsibilities of parenthood, even given the 18 month hiatus in the children spending any time with their Father following separation and the Mother’s insistence that all time between the children and their Father be supervised, given the Mother’s experience of the Father’s propensity to anger outbursts with consequent occasions of physical and emotional family violence.
The Father did not demonstrate an appropriate attitude to the responsibilities of parenthood during the parties’ cohabitation and particularly at the time of separation as he perpetrated, as I have found, family violence of several types included in the definition of that term in section 4AB of the Act, including physical violence to the Mother and threatening behaviour to the Mother in the presence of children.
I regard it as appropriate at this point comment upon the tragedy of this case. The incident on 4 December 2016 when the Father referred to stabbing the Mother and each of the children, whatever the words actually use (though I have accepted the evidence of the Mother), and whether or not the Father then deliberately rattled the knife drawer or not, has led on to the tragic circumstances of the Father’s relationship with the children being severely curtailed in the intervening six years. In some circumstances, the deplorable statement made by the Father on that occasion may have been either a one-off incident or just another occasion of an extremely stupid comment and life may have gone on, or on a termination of the relationship, it may have been perceived that there was no real threat and a meaningful relationship between Father and children may have had opportunity to establish and develop or to continue and develop. That is not what happened.
The incident on 4 December 2016, cumulative on what had gone before in the relationship between the parents, has led to a severely restricted and curtailed relationship between Father and children over that long six years. But it has been six years. The children are older. The Father is, according to him, and it is to be hoped, quite a bit wiser than the reckless and offensive and foolish parent who so carelessly put his co-parent in fear for her safety and the safety of her children. During that six years, the Father has experienced the curtailment of his relationship with his children that such conduct has caused. That is part of his learning experience. Completing the identified anger management course must be another part of his learning experience before I can find it is safe for him to have unsupervised time with his children.
The price is being paid not only by the Father in such severe curtailment of his relationship with his children, and by the children in such severe curtailment of their relationship with their Father, but by the Mother in carrying with her daily a fear for her safety and the safety of her children. If ever there was a stark example of the damaging power of words – “stabbing you all” – in family law matters, this is it.
The Mother suffers anxiety that has required treatment. The children have lost six full years of a meaningful relationship with their Father. The Father – the architect of his own misery – has lost six years of appropriate relationship with his children. The Mother is not to be criticised. The criticism for this tragic course of events over the past six years lies with the Father.
Any family violence involving the children or a member of the children’s family
I have already made appropriate findings in relation to family violence when considering the concept of risk under the heading of the primary considerations. The Father perpetrated family violence than involved the Mother directly, both physical family violence and verbal family violence that, the Father concedes, severely intimidated the Mother and has left her so intimidated and in fear.
The family violence involve the children because they were present.
If a family violence order applies, or has applied, to the children or a member of the children’s family – any relevant inferences that can be drawn from the order, taking into account the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
The family violence order was made for the protection of the Mother and the children from the Father as a final order on 7 February 2017 in the Local Court at Suburb T. The details of which is set out under the review of the evidence in these Reasons, as is detail of the event leading to the making of that order. The order expired on 6 February 2018. The order was made on a consent basis without contested hearing.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
The order sought by the Mother is an indefinite supervision order. The orders sought by the Father and to the great degree, allowing for some variations in times, supported by the ICL, provide for a progressive increase in unsupervised time between the Father and the children to an endpoint of Friday to Monday in one week and Wednesday after school to Thursday start of school on the other week and half the school holidays. Where between those two parameters an order for the children’s time with the Father lie is yet to be determined, as no proposal outside those two parameters was suggested by the Court with the resultant capacity for parties to make submissions.
These proceedings commenced on 4 August 2017, when X was still not four years of age and Y was one month past two years of age. Five and a half years ago. I find that it is certainly in the best interests of the children that they have some certainty in their lives in relation to the relationship their Father by final orders being made which carry that relationship opportunity to the furthest point that the best interests of the children dictates.
Accordingly, I find that it is certainly preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to either or both children. In that regard, I find that the orders proposed by the Mother are far more likely to lead to institution of further proceedings as the children grow older than is the case with the orders proposed by the Father, supported by the ICL.
PARENTAL RESPONSIBILITY
Section 61DA provides that when making a parenting order in relation to children, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them, though the presumption does not apply if there are reasonable grounds to believe that at least one of the parents has engaged in abuse of either of the children or has engage in family violence. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of these children for the parents to have equal shared parental responsibility for them.
Both the Father and the ICL seek an order that the parents have equal shared parental responsibility for the children. The Mother seeks an order that she have sole parental responsibility for the children.
The presumption does not apply in this matter. I have found that the Father has engage in family violence.
I have carefully considered, along with all of the evidence, the submissions of each of the parties and the ICL in relation to parental responsibility.
If an order is made that the parents have equal shared parental responsibility for the children, or either of them, such an order brings with it the legislative requirement in section 65DAC that any decision about a major long-term issue in relation to either child or the children be made jointly by the parents, with the parents being required to consult each other in relation to the decision and make a genuine effort to come to a joint decision about that issue.
Pursuant to section 61B, parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children, and pursuant to section 4 the expression “major long-term issues” means issues about the care, welfare and development of the children of their long-term nature including, but not limited to, issues of that nature about education, religious and cultural upbringing, health, name and changes to the children’s living arrangements that make it significantly more difficult for the children spend time with the parent.
This latter aspect, despite the wording, is not legislative leave for a parent with sole parental responsibility for a child to simply disregard a Court order and so change a child’s living arrangements so as to render proper compliance by that parent with the order in relation to the child spending time with the other parent unrealistically onerous.
These parents have not communicated since about mid-2017. The Mother is still in fear of the Father and keeps her place of residence, and that of the children, confidential from him. She gave evidence, which I accept, of being made anxious by the concept of the Father being able to see the interior of where she lives during any video call, such as by Skype, with the children. The thought of communicating with the Father filled her with anxiety and the Father accepted this in his evidence during cross-examination.
To require the Mother to consult with the Father and make a genuine effort to come to a joint decision about any major long-term issue for either or both of the children would not only impose an extremely onerous burden on the Mother, on the basis of all of the evidence in this matter would be inviting further conflict and, probably, further proceedings.
I find that it is in the best interests of the children with those interests being the paramount consideration at a final order be made that the Mother have sole parental responsibility for each of the children.
As no order will be made for the parents to have equal shared parental responsibility for the children I need not consider specifically the matters set out in section 65DAA of the Act.
CONCLUSIONS
An order will be made that the Mother have sole parental responsibility for the children.
An order will be made that the children live with their Mother.
I have made a finding that it is in the best interests of the children to continue spending time with their Father on a supervised basis until the Father completes, and provides to the Mother and the ICL, proof of his completion of an anger management course through B Counsellors NSW. An order will be made for the Father to enrol in and complete such course and for his time with his children to continue under the current interim regime until such time as he has completed the course and provided to the Mother and to the ICL proof of completion of the course by presentation of the relevant certificate.
After the Father has completed the anger management course as ordered and provided proof of completion as ordered, I find it is in the best interests of the children to spend time with their Father in accordance with the proposal set out in order 3 of the Father’s short minutes of orders as I consider that the differences therein with the ICL’s order 3 as to times are appropriate in all the circumstances. I do propose to alter the proposed arrangement for Father’s Day so as to account for whether the Father has completed the anger management course as required for unsupervised time to start, and to account for the point in the graduating scheme of spend-time-with provisions the children and the Father are at.

I make the same finding in relation to the suspension of the children’s time with the Father for Mother’s Day and the Mother’s birthday is contained in order 4 in the Father’s minute of order. I will make the following minor alterations:
(1)To the order for the Mother’s birthday, I will make that order to account for the Mother’s birthday falling on a school day and a non-school day;
(2)To the order for Mother’s Day, I will make that order such that the Mother’s time with the children for the Mother’s Day weekend commences at the same time as the Father’s time with the children on the Father’s Day weekend commences, being 3:00PM if not a school day or after school.
In addition, I will make an order providing for the children to be in their Mother’s care on the same special occasions as are provided for the Father’s time with the children in his minute of order. Otherwise, there is a gross unfairness to both the children and the Mother that cannot be in the best interests of the children.
Similarly, I consider that the proposal set out in orders 5 and 6 of the Father’s minute of order are appropriate, together with the definition for school holiday period set out in the common paragraphs 7 of the Father’s and the ICL’s minute of order. I will clarify in the orders that the Father must proceed through the graduating spend-time-with regime and arrive at the final point (encapsulated in order 3(f) of his minute of order) before he commences spending special school holiday time with the children. I also will order that such special school holiday time will not commence until the April 2024 holidays at the earliest, in the event that the Father’s progression through the graduating regime is unforeseeably swift.
Until the appropriate point in time has come for the Father to spend special school holiday time with the children, the children will spend time with their Father during school holiday periods in the ordinary fashion, whether that be supervised pending the Father’s completion of the anger management course, or unsupervised and graduating through the scheme (and of course subject to special occasions).
In relation to changeover of the children at the start and end of their time with the Father I consider that order 8 of the ICL and the Father’s minute of order is appropriate in relation to changeovers that can occur at the children’s school schools.
I find that the proposal for changeovers to occur at the parent’s place of residence as set out in proposed order 9 in the ICL’s minute of order is not in the best interests of the children as it imposes upon the Mother the obligation to reveal her place of residence the Father, thereby increasing her anxieties unnecessarily and, more than that, involves an attendance at that place of residence by the Father with the consequent effect on the Mothers level of anxiety in her own home.
I consider that it is appropriate to make the order as sought by the Father for changeovers not involving the children’s school to occur at the Shopping Centre C at Suburb D, but to pair that order with an injunctive order under section 68B of the Act expressed to be for the personal protection of the Mother for the purposes of section 68C restraining the Father from approaching within 20 metres of the Mother or attempting by word or action to communicate with her other than as may be necessary in extreme emergency circumstances relating to the physical safety of either of the children.
On the basis that such accompanying injunctive order was not sought by either the parties or the ICL and was not suggested to the parties by the Court so as to give parties and the ICL the opportunity to make submissions thereon, it will also be accompanied with an order providing leave to either of the parties to apply in relation to that order only within 28 days of the making of final orders.
I make it explicit that if such application is made, leave will be granted retrospectively for the filing of an Application in a Proceeding and Response to Application in a Proceeding without there being on foot applications for final orders so as to deal with the Rules of Court in that regard and submissions will be received on the issue of the personal protection injunctive order only.
On the basis of all of the evidence, I find that it is not in the children’s best interest to have telephone communication with their non-carer parent when in the care of the other parent. I make this finding on the basis of the evidence as to the Mother’s state of anxiety and a desire not to have the Father intrude into a household by electronic communication of any nature and to leave the children uninterrupted by communication with the Mother whilst in the care of the Father except as they may eventually be equipped themselves to make mobile telephone communication with either parent, which is, if they are so equipped, a matter for them.
Accordingly, I decline to make orders 10 and 11 as set out in the Father’s and the ICL’s minute of order.
I will make orders 12 and 14 as set out in the Father’s and the ICL’s minute of order.
Order 13 set out in those minutes of order requires that each party provide the other with their current email address, telephone number and address within seven days and keep each other informed within 48 hours of any change. In view of the family violence history between the parties and the Mother’s anxiety in relation to communication with and being in the presence of the Father, I do not consider that it is in the best interests of the children to make an order that the Mother provide to the Father detail of the residential address.
It is in the children’s best interest that each of the parties are aware of a telephone number for the other parent for use in cases only of immediate emergency affecting the children. In the best interests of the children, I will make an order that each of the parents keep the other informed of a mobile telephone number for emergency contact, but for the reason just given I will include in the section 68B order restraining the Father a provision that he not contact the Mother by telephone for any purpose other than as is necessary to relay or obtain information concerning an immediate emergency affecting the children.
The Father seeks that an order be made (order 18 in the Father’s minute of orders) that the parents communicate via the Our Family Wizard app “in relation to matters concerning the children”. The Mother was cross-examined about her knowledge of the app and indicated that though she accepted had some good features she also considered had some drawbacks and there was a cost involved, but the Mother accepted that she would use the app, as confirmed by Ms Giacomo in her oral submissions.[15] Accordingly, I will make the order in relation to the Our Family Wizard app proposed by the Father. The parents will be able to communicate by telephone in accordance with orders I have foreshadowed in the previous paragraph in cases of immediate emergency, and I will ensure that the section 68B injunction adverts to the Father’s express permission to use that app to contact and communicate with the Mother.
[15] Transcript page 51.
Order 15 of the Father and ICL’s minute of order seeks that each party be permitted to attend at the children’s schools at all times parents are permitted to attend, including events such a school sports days, parent-teacher interviews “and are like” or at any extracurricular activity either child participates in.
Once again, due to the anxiety of the Mother generated by being in any such proximity to the Father, I decline to make such an order as I do not regard it as in the best interests of the children.
That tragically limits the Father’s participation in the children’s schooling and extracurricular activities, but it is a product of his conduct towards the Mother.
I will make what is known as a non-denigration order of the type proposed in order 16 in the Father and the ICL’s minute of order.
I have carefully considered the evidence of Dr H in cross-examination in relation to her opinion that the family must engage in family therapy to move forward. On consideration of the whole of the evidence, and bearing in mind:
(1)The Mother had sought her own therapy with Ms S;
(2)The volume of contact reports indicating the ease of the children’s interaction with the Father during supervised occasions; and together with
(3)The history of therapy that is already involved both children, but particularly X with Ms E for play therapy;
I do not regarded as in the best interests of the children to have them subjected to further ongoing therapies by Court order.
Accordingly, I declined to make order 17 as sought in the Father’s and the ICL’s minute of order.
Paragraph 18 of the ICL’s minute of order and 19 of the Father’s minute of order propose a notation “that the Mother shall ensure that the child X continue therapy with a net Ms E.” At the end of her oral submissions on behalf of the Mother, Ms Giacomo referred to the Mother’s evidence during cross-examination that she would continue that therapy for as long as Ms E determined that it was appropriate and that there was “no difficulty with the making of order 18 – that X continue therapy with Ms E”.
In X’s best interests, I will make the notation.
In making that notation I recognise that the notation was proposed and Ms Giacomo’s submissions made on 16 June 2021 and time may well have moved on in relation to X’s therapy with Ms E, and for that reason I will add to the notation the words “in accordance with any recommendations and requests made by Ms E.”
The Mother sought an order that the Father, his servants and/or agents be restrained from removing or attempting to remove or causing or permitting the removal of either child from the Commonwealth of Australia and for the children’s names to be placed on the Family Law Watch list and be maintained on the watch list until the Court orders the removal.
Whilst Ms Giacomo properly submitted that the Court had heard very little evidence on that issue, and there was no evidence that either party intended to take the children outside the Commonwealth of Australia in the foreseeable future, such an order would provide further comfort to the Mother given the Father’s heritage in and connections with Country W and her anxieties about the Father removing the children from her.
I will make the order sought by the Mother, which, though it contains an injunction relating to the Father only, may well prevent the children leaving the Commonwealth of Australia at all. In the event that it is sought to have the children leave the Commonwealth of Australia, then some attention to that order may be necessary.
I make the orders set out at the start of these Reasons.

I certify that the preceding three hundred and twenty-nine (329) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley.
Associate:
Dated: 19 January 2023

File number(s):	SYC 5028 of 2017
Judgment of:	JUDGE MORLEY
Date of judgment:	19 January 2023
Catchwords:	FAMILY LAW – parenting – final parenting orders – finding that family violence occurred perpetrated by Father – Mother a highly anxious person – children spending regular supervised time with Father currently – application for ‘identity contact’ style perpetual supervised time between Father and children – Court does not accept cogent reason for perpetual supervision – sole parental responsibility – Father to complete anger management course before moving to unsupervised time – graduating scheme of time between Father and children.
Legislation:	Evidence Act 1995 (Cth) ss 140, 144 Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 65D, 65DA, 65DAA, 65DAB, 68B, 68C Crimes (Sentencing Procedure) Act 1999 (NSW) s 10.
Cases cited:	A & A & The Child Representative [1998] FamCA 25 Betros & Betros [2017] FamCAFC 90 Briginshaw v Briginshaw (1938) 60 CLR 336 Godfrey & Sanders (2007) 208 FLR 287 Gorman & Huffman and Anor [2016] FamCAFC 174 Grella & Jamieson [2017] FamCAFC 21 Harridge and Anor & Harridge and Anor [2010] FamCA 445 In the Marriage of B (1993) 112 FLR 45 Isles & Nelissen [2022] FedCFamC1A 97 Johnson & Page [2007] FamCA 1235 KB & TC [2005] FamCA 458 Keane & Keane [2020] FamCA 99 Lansa & Clovelley [2010] FamCA 80 M & M (1988) 166 CLR 69 M v S [2006] FamCA 1408 Mazorski & Albright [2007] FamCA 520 McCall & Clark[2009] FamCAFC 92 McGregor & McGregor [2012] FamCAFC 69 Moose & Moose [2008] FamCAFC 108 Napier & Hepburn [2006] FamCA 1316 Re Andrew [1996] FamCA 43 Sampson and Sampson [1977] FamCA 42 Slater v Light [2013] FamCAFC 4 Tait & Densmore [2007] FamCA 1383 W & W (Abuse Allegations: Unacceptable Risk) [2005] FamCA 892
Division:	Division 2 Family Law
Number of paragraphs:	329
Date of last submission/s:	25 June 2021
Date of hearing:	22-23 October 2020, 17-19 February 2021 and 15-16 June 2021
Place:	Sydney
Counsel for the Applicant:	Dr McConaghy
Solicitor for the Applicant:	David H Cohen & Co
Counsel for the Respondent:	Ms Giacomo
Solicitor for the Respondent:	Kenneth Harrison Solicitor & Attorney
Counsel for the Independent Children's Lawyer:	Mr Jackson
Solicitor for the Independent Children's Lawyer:	Brian Samuel & Associates

SYC 5028 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR BARBOSA Applicant
AND:	MS FURTADO Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE MORLEY
DATE OF ORDER:	19 January 2023