Barre & Barre (No 2) - [2023] FedCFamC1F 191

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Barre & Barre (No 2) [2023] FedCFamC1F 191

File number(s): SYC 6149 of 2016

Judgment of: SCHONELL J

Date of judgment: 24 March 2023

Catchwords: FAMILY LAW – PARENTING – Unacceptable Risk – Where the older child is 16 years old and communicating with the father – Where the issue in the proceedings was largely what time the father should spend with the younger child – Where the Independent Children’s Lawyer and mother sought for a no time order – Where the father sought for an order that he ultimately spend time with the child in accordance with his wishes – Where the father indicated to the Court that he would not attend if an order was made for supervised time – Where the Court Child Expert’s evidence was that the father posed an unacceptable risk to the child and that there should be no time with the father – Consideration of primary and additional considerations pursuant to s 60CC of the Family Law Act 1975 (Cth) – Orders made for the father to spend time with older child in accordance with the child’s wishes and for there to be no time between the father and younger child.

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA, 68LA, 102NA

Cases cited:
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96

Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251

Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Johnson and Page (2007) FLC 93-344; [2007] FamCA 102

Knibbs v Knibbs [2009] FamCA 840

M v M (1988) 166 CLR 69; [1998] HCA 68

Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76

Potter and Potter (2007) FLC 93-326; [2007] FamCA 350

Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Division: Division 1 First Instance

Number of paragraphs: 151

Date of hearing: 13 – 14 March 2023

Place: Sydney

Solicitor for the Applicant: Ms Perin, Perin Legal

The Respondent: Litigant in person

Solicitor for the Independent Children's Lawyer: Ms Norris, Legal Aid NSW Sydney Central Family Law
ORDERS

SYC 6149 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BARRE

Applicant

AND:
MR BARRE

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

SCHONELL J

DATE OF ORDER:

24 MARCH 2023

THE COURT ORDERS THAT:
1.That all existing orders for the respondent father’s (“the father’s”) time with the children are discharged.
2.The children X born 2007 and Y born 2012 live with the applicant mother (“the mother”).
3.X spend time and communicate with the father as organised between X and the father.
4.Y spend no time and have no communication with the father.
5.The mother take all steps to facilitate an attendance with each of the children upon Ms HH for the purpose of Ms HH explaining the final orders to the children.
6.The Independent Children’s Lawyer be granted leave to provide Ms HH with the following documents:
(a)Reasons for Judgment; and
(b)A copy of these final orders.

7.The mother shall as soon as practicable inform the father in the event that either of the children become seriously ill or are hospitalised and authorise any medical professional treating the children to provide any information to the father as requested by him.
8.The mother shall authorise any school the children attend to provide the father a copy of school reports and all other information that is provided to parents in the normal course and the mother is restrained from preventing the father from registering on any school website or “app” that the school may use to disseminate information to parents.
9.Both parties be restrained from:
(a)Discussing these proceeding or permitting any other person to do so in the presence or hearing of the children at any time.
(b)Denigrating the other parent or permitting any other person to do so in the presence or hearing of the children at any time.

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

These are proceedings in relation to two children, being X and Y.
The applicant mother (“the mother”) and the respondent father (“the father”) separated in October 2015 and have been in almost continuous conflict about the children’s living arrangements since that time.
On 28 October 2022, directions were made by Harper J preparing the matter for a final hearing listed to commence on 20 March 2023 at 10.00 am. The directions made on that day included orders for the filing of affidavits 35 days prior to the commencement of the hearing.
On 16 November 2022, orders were made pursuant to s 102NA of the Family Law Act 1975 (Cth), providing aid to the father to permit him to be represented at the hearing and cross-examine the mother.
On 23 November 2022, the parties were advised that the matter would be listed for hearing in the Rolling List commencing on 13 March 2023.
The father did not comply with the directions for the filing of affidavits and on 6 March 2023, he was advised by way of letter from the Legal Aid New South Wales (Exhibit 1) that:
Legal Aid NSW has terminated your grant of aid because you have failed to cooperate with your legal aid practitioner.
Legal Aid NSW has terminated your grant of aid because, based on current information, you no longer satisfy our policies and guidelines.
The father forwarded to the Court on 11 March 2023 a medical certificate which advised that the father had a “[foot] trauma” and would be unable to physically attend Court (Exhibit 2). The medical certificate recorded that the father was able to attend Court via online means. Leave was subsequently granted to the father to appear electronically.
The father’s failure to comply with directions for the filing of affidavits is curious in circumstances where a constant complaint of his was that it had taken an inordinately long period of time to list the matter for a final hearing.
As it was, the matter was initially called over before a judge of Division 1 on 13 March 2023 and allocated to me at about 10.00 am for hearing. The hearing commenced at 11.00 am on Monday and concluded shortly before 3.00 pm on Tuesday 14 March 2023.
The mother relied upon an affidavit filed on 24 February 2023. The father, having not complied with directions, was asked to indicate which affidavit he intended to rely upon and, when advised as to the affidavits relied upon by the Court Child Expert, sought to rely upon an affidavit filed on 14 December 2021.
The Independent Children’s Lawyer (“the ICL”) at the commencement of the hearing sought orders that the mother have sole parental responsibility, that X spend time with his father in accordance with his wishes and that Y spend time with the father for approximately four hours once each month on a supervised basis. The mother indicated to the Court that she supported the proposal as put forward by the ICL.
The father had failed to comply with the directions in relation to the filing of a Case Outline but was given an opportunity to inform the Court as to the orders that he sought.
The father ultimately produced a document (Exhibit 4), which recorded the father’s orders. The father consented to orders that the mother have sole parental responsibility and agreed with an order that X spend time with him in accordance with his wishes but sought that the order include a provision that the mother fully cooperate and support X in spending time with him. The father also sought orders that Y spend time with him on one Sunday from 10.00 am to 4.00 pm for a month and that he thereafter spend time with Y in accordance with Y’s wishes on an unsupervised basis, including that both children spend time with their father for one week of the school holidays at the father’s home in BN Town.
The father made it clear that he would not spend supervised time with Y if it were ordered.
As a consequence of the father’s agreement to the mother having sole parental responsibility that order was made by consent on the first day of the hearing. This left for determination the primary issue of what time Y should spend with the father.
In circumstances where the father’s aid pursuant to s 102NA had been withdrawn, the father was not permitted to cross-examine the mother. The mother was cross-examined by the ICL and the father was also cross-examined by the ICL. Each of the mother, the father and the ICL’s representative cross-examined the Court Child Expert.
At the conclusion of cross-examination, in accordance with the ultimate recommendation of the Court Child Expert, the ICL amended the orders that she sought in relation to Y, proposing that the father spend no time with Y. The mother also adopted this position.
I accept the evidence of the mother. She was cross-examined briefly by the representative for the ICL. She answered questions to the best of her ability and was co-operative and responsive.
The father both during his cross-examination by the ICL as well as in his cross-examination of the Court Child Expert demonstrated the accuracy of many of the conclusions and observations made of him in the Family Report dated 15 March 2023. He was angry, belligerent, non-responsive and argumentative. He insisted on making speeches and often refused to engage with the question. He was at times insulting, patronising and sarcastic in his answers to the ICL and in his cross-examination of the Court Child Expert.
He remained consistently focused upon a criticism of the ICL and what he perceived as her failings in discharging her role. A consistent refrain was the delay in hearing, a litany of criticisms of the mother, and a failure to accept any responsibility for his own conduct.
I am satisfied that the orders as proposed by the ICL are orders that are in the best interests of Y. I set out below my reasons for reaching that conclusion.
BACKGROUND
The mother was born in 1974 and is currently 48 years of age. The father was born in 1972 and is currently 50 years of age.
The parties married in 2005.
There are two children of their relationship, X and Y. X was born in 2007 and is currently 16 years of age. He attends LL School and is in Year 10.
Y was born in 2012 and is currently 11 years of age. He attends FF Public School where he is in Year 6. It is intended by his mother that he will attend LL School in Year 7 next year.
The parties finally separated on 29 October 2015 when the mother left the former matrimonial home with the children and went to reside with her mother at Suburb BO where she continues to reside.
The mother contends that she was assaulted by the father in late 2015 and that he was ultimately found guilty of an assault by a Local Court and an Apprehended Domestic Violence Order (“ADVO”) was granted on a final basis for a period of six months.
Proceedings were commenced in this Court on 23 September 2016 and a Child Dispute Conference was conducted in 2017.
In late 2017, the father was admitted to the BD Clinic. The discharge summary records the past medical history of the father as “[substance] use disorder, [mental health disorder], [other mental health disorder]” (Exhibit 6).
Under “admission progress”, the discharge summary records “patient admitted on […] for alcohol detox” (Exhibit 6).
It appears that the children spent sporadic time with their father following the parties’ separation until interim consent orders were made on 19 July 2018. Those orders provided for the children to live with their mother and spend time with their father each Saturday between 9.00 am and 5.00 pm on various conditions.
Following the making of the orders, it appears that the children spent various periods of time with the father including periods of time on an unsupervised basis until 2020.
The mother commenced a new relationship with Mr O. That relationship ended in early 2022.
Time ceased according to the mother because the father failed to comply with obligations arising under the interim orders made in July 2018, including refusing to undertake urinalysis tests and a CDT report.
In early 2020, the father was admitted to the BB Hospital. The Discharge Summary ( Exhibit 7) records the following under the heading “[e]vents leading to admission”:
[Mr Barre] has been under a lot of pressure, in particular court related issues and he has been medically unwell […]. He has three ongoing court cases involve[ing] his ex-partners and an ex-mother-in-law. He contacted his ex-girlfriend/partner [Ms Gilliam] to help him get to the GP. While at home someone had knocked at his door to serve him a subpoena. He became paranoid and thought it was a hitman hired by the mafia. He also believed that he was somehow poisoned by this person although he hasn’t had any contact with him. His ex partner [Ms Gilliam] was the one that answered the door. He complained of severe headaches and believed that the person who came to serve the subpoena poisoned him. He presented to the [BP Service] and they assisted him to present to [BB Hospital] ED.
Under the heading of “[p]ast psychiatric history”, it records as follows:
He has been seeing [Dr AX], private psychiatrist based in [BD Clinic] …
He was diagnosed with ADHD and [a mental health disorder] and has been on [medication] for two years
It also records the following “he has a history of [illicit substance] addiction and alcohol misuse but has been sober since his admission to [BD Clinic] but relapsed prior to this admission”.
The clinical notes further go on to record “[h]e finally admitted to using ‘few grams of [an illicit substance]’ as he couldn’t cope with the stress from all these court cases”.
Under the heading “[i]mpression”, the notes record “[d]rug induced psychosis, [p]ossible [mental health disorder], [illicit substance] misuse”.
Under the heading “[n]ursing”, the BB Hospital Progress Notes Report (Exhibit 7) records “UDS + ve for [substances]” (as per the original).
The father in his cross-examination denied that he had used an illicit substance and said that the explanation for the other substance was as a consequence of being prescribed medication for his attention deficit hyperactive disorder (ADHD).
The father last spent any time with Y in February 2020.
He has, however, since that date spent some time with X. The mother in her affidavit says that she is aware that X has seen his father on a number of occasions in 2022, stating he saw X for breakfast on 2 April 2022, for dinner on Father’s Day on 11 September 2022, for three nights between 28 September 22 and 1 October 2022, and for two nights from 20 December to 22 December 2022.
The father’s consultant psychiatrist Dr AX prepared a medical report dated 12 April 2021 which was addressed to the husband’s general practitioner Dr BQ (Exhibit 8). It records the following:
… I first saw him in 2017 when he worse [experiencing a mental health symptom] and admitted to the [BD Clinic] with poly substance use disorder and was very difficult to manage as an inpatient. He was very entertaining with pressure of speech and flight of ideas but also easily irritated and regularly threatened to discharge himself.
He has been involved in a great deal of litigation and a very bitter custody dispute with his ex-wife and is still distressed that he has not been allowed to see his children from that marriage. In the meantime his businesses have collapsed and he has been declared bankrupt.
He has had a severe form of [mental health disorder] and his mental health has cost him his romances, finances, friendships and family life with his children. In view of the prolonged period of time that he has been suffering from severe mental illness I do not think that it is foreseeable that he will be return to the workforce within the next 2 to 5 years. For this reason I support [h]is application for a disability support pension. He will provide you with details regarding his psychiatric hospitalisations. The most recent was with a different psychiatrist.
This is the most recent medical assessment of the father’s mental health.
RISK OF HARM
The primary issue that informs what time Y should have with his father and whether or not it should be supervised are the issues of risk as identified by the Court Child Expert in her Family Report and in the affidavit of the mother.
The High Court reminds in M v M (1988) 166 CLR 69 at 76:
… it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. …
…
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. …
(Footnote omitted)
Further, the High Court states at 77–78:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A.), “an element of risk” or “an appreciable risk” (Marriage of M.), “a real possibility” (B. v. B. (Access)), a “real risk” (Leveque v. Leveque), and an “unacceptable risk”: In re G. (A minor)). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
(Footnotes omitted)

In Isles & Nelissen (2022) FLC 94-092 (“Isles & Nelissen”), the Full Court constituting Alstergren CJ, McClelland DCJ, Aldridge, Austin and Tree JJ had cause to reconsider the issue of unacceptable risk. In the course of their judgment, their Honours observed that earlier decisions of the Court in Potter and Potter (2007) FLC 93-326 and Johnson and Page (2007) FLC 93-344 no longer accurately reflect the law in so far as they suggested that unacceptable risk needed to be established on the balance of probabilities.
Their Honours observed that when allegations of harm are raised the relevant historical facts that underpin the allegations need to be established on the balance of probabilities.
However, when assessing whether there is unacceptable risk of future harm, the possibility of a risk of harm may be based on a finding of a possibility of harm in the past, which may not have been established on the balance of probabilities. In undertaking this risk assessment, the Court is assessing both the prediction of future harm and the severity of the impact if it eventuates. At some point in the risk assessment, the possibility of future harm and severity of harm may become unacceptable.
As their Honours observed:
47.…the civil standard of proof is not the measure by which an unacceptable risk of harm is to be assessed. The civil standard of proof is reserved for the proof of facts, the positive or negative findings in relation to which could well feed into any alternate finding about the existence of an unacceptable risk of harm.
Their Honours also specifically approved of Austin J’s judgment in Fitzwater v Fitzwater (2019) 60 Fam LR 212 (“Fitzwater”), where his Honour observed as follows:
133. In civil proceedings, s 140(1) of the Evidence Act provides the “case of a party” must be found proven if the court is satisfied of its proof on the balance of probabilities. For that purpose, the “case of a party” is defined (in the Dictionary to the Evidence Act) to mean “the facts in issue in respect of which the party bears the legal burden of proof”. The substantive law determines where the legal burden of proof falls in respect of facts in issue.
134. It must be borne in mind that proceedings in respect of children under Pt VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at CLR 76; ALR 581; Fam LR 611; ZP v PS (1994) 181 CLR 639 at 647; 122 ALR 1 at 6; 1 Fam LR 600 at 604). The paramount consideration in Pt VII proceedings is the child’s best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character (CDJ v VAJ at [64]). The resultant orders represent the court’s discretionary judgment about how the child’s interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at [186]).
135. The conclusion reached by a court in Pt VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J C Hutton Proprietary Ltd (1990) 169 CLR 638; 92 ALR 545 (Malec)).
136. In Malec, Brennan and Dawson JJ said (at CLR 639–40; ALR 546):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur …
…
… To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation …
and Deane, Gaudron and McHugh JJ said (at CLR 643; ALR 548):
… The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring …
137. The High Court was there referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald v Karrington (2016) 55 Fam LR 344; (2016) FLC 93-726; [2016] FamCAFC 152 at [60]; Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter v Potter (2007) 37 Fam LR 208; (2007) FLC 93-326; [2007] FamCA 350 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139. Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
140. It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis v Nikolakis [2010] FamCAFC 52 at [41], [44], [49]–[53], [96]; Partington (aka Bande) v Cade (No 2) (2009) 42 Fam LR 401; (2009) FLC 93-422; [2009] FamCAFC 230 at [56]–[61]; Johnson v Page (2007) FLC 93-344 at 81,888–9; [2007] FamCA 1235 at [68], [71], [76], [77]).
141. Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the “access” order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father’s appeal was dismissed because the possibility of the child’s past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child’s future sexual abuse.
142. As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (children) (care order: future harm) [2001] 1 Fam Law R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
(Emphasis in original)
Their Honours also addressed specifically the use of terms such as ‘unacceptable risk’. In particular, they recorded the following:
56.It is trite but true to observe that the law is as the High Court states it to be, so the principles enunciated in M v M about “unacceptable risk” were woven into the fabric of family law in instances of alleged actual and prospective child sexual abuse. The Full Court later extended such principles to cases involving allegations of children being at risk of physical or emotional harm for other reasons (A v A (1998) FLC 92-800 at [3.14]–[3.15] and [3.24]).
57.However, courts exercising federal jurisdiction and wielding discretionary power in family law proceedings are constrained by the terms of the governing statute (Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at 386, 390, 396, 403–407, 434–435 and 439; MRR v GR (2010) 240 CLR 461 at 464–466 and 468).
58.Specifically in respect of parenting proceedings, Pt VII of the Act is now drafted much more comprehensively and prescriptively than it was when M v M was decided. The phrase “unacceptable risk” did not then appear within the Act. At that point in time, courts were required by the Act (then s 64) to make parenting orders by reference only to the paramountcy principle, the child’s wishes and the desirability of avoiding further litigation. But now, s 60CG of the Act exhorts courts to avoid making orders which expose any person to an “unacceptable risk of family violence” and, when determining how children’s best interests will be advanced, s 60CC(2)(b) of the Act obliges courts to heed any need to protect children from physical or psychological harm through their subjection or exposure to “abuse”, “neglect” or “family violence”, for which purpose the terms “abuse” and “family violence” are very widely defined in ss 4(1) and 4AB of the Act respectively.
59.As the Full Court has previously counselled, the terms of the Act are of pre-eminent importance (Simmons & Kingley (2014) FLC 93-581 at [17]–[20]). The provisions of ss 60CC and 60CG of the Act are wide enough to embrace most, if not all, assertions of an “unacceptable risk” of harm to children and so it is preferable for litigants to conduct their parenting disputes by reference to the express provisions of the Act.
GENERAL OBSERVATIONS
I have read all of the evidence relied upon in the proceedings, but do not propose to nor am I required to repeat all of it in these reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447:
62.… A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not property considered the losing party’s case.
I have listened very carefully to the evidence and taken note of the answers given in cross-examination. I have also carefully observed each of the parties give their evidence and the way they answered questions and their general demeanour.
I have read the Family Report and listened closely to the cross-examination of the Court Child Expert. I am more than satisfied that she has the experience and expertise to express the opinions that she does. Having read her Family Report carefully and watched her give evidence, I am satisfied that she has a comprehensive understanding of the issues and a unique insight into the problems facing both of these children. I found her Family Report and oral evidence considered, insightful and logical. I accept the opinions and recommendations as set out in the Family Report and qualified and/or expanded upon in her oral evidence other than where I specifically find otherwise.
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF HARM TO Y?
It is not in issue in these proceedings that Y wishes to see his father and that the father wishes to see his son. I have no doubt that the father deeply loves both of his children. I also have no doubt that the father has a lot to offer his sons in the event that he spent time with them. However, the benefits of that relationship to Y are outweighed by the enormous risks a relationship poses to Y’s psychological health, which could also possibly imperil his relationship with his mother.
The ICL submitted that the father poses an unacceptable risk of harm to Y. The risks include the father’s fixation upon what he perceives to be the mother’s failings and lack of moral character, his undermining of her parenting, his inability to prioritise Y’s needs over his own, and the possibility of unresolved mental health and drug abuse issues. The ICL submitted that the risk of harm cannot be ameliorated by supervision, which leads the ICL to inexorably submit a no time order.
The mother annexes to her affidavit various communications between X and the father and between herself and the father. The texts and emails are revealing in the sense of providing some insight into the father’s attitudes to parenting and his capacity to provide for the children’s needs. The texts and emails are laced with misogynistic, violent and derogatory statements.
The texts include one from the father to X in mid-2021 in the following form:
59.…
“Please ring Nanna when you’re upset and just jump on a train and go to [BR Town] ... Don't worry about that the fuckin cowardly slug. We will get him and then after I’ll pump the cunt into crumbs. Fuvkin gutless bully ... Ask your Mother (me) and that fat slut of a Grandmother ([Ms Haynes]) about my Dad's funeral??? I will never ever forgive or forget that. Let that be known .... They tried everything to kill me [X]. But I am strength, power and warrior”.
…
(As per the original)
In mid-2021, there is another text from the father to X in the following terms:
61. …
“Well that's a fact it's a pretty cowardly thing to say he runs like a little bitch every time he sees me and don't worry [X] I will sort him out ... You would smash him now I taught you how box enough to crash him ... Come and live with me ... Well [X] they are all just a bunch of shit cunts lying cowards who have used you and [Y] to make money simple! ... I'm trying not to get angry right now and drive to Sydney and kick the shit out of everyone ... It's beyond a joke at this stage [X] what your Mum has done to me and you and [Y] along with her scumbag lawyer I just want revenge ... They have stolen my children and abused and bullied them for over 6 years ... Nobody should be subjected to these fuvkin cowardly pieces of shift ... Fuck seriously it is a crime what that fat bitch has done... It's not up to her [X] you are old enough to make up your own mind to do what you want mate there's nothing that she can do ... The Court doesn't apply to you when you tum 14. She's only bullshitting you”.
…
(As per the original)
Of significant concern is the text exchanged in mid-2021 between the father and X involving one of the father’s continual themes, namely the mother’s former partner. The father’s text to X states “[w]hy wait? You would smash him now’ I taught you how box enough to crash him” (as per the original) (affidavit of mother, Annexure K).
X responds to the father saying “I can’t kill him now I can when I’m 17 tho” (as per the original) (affidavit of mother, Annexure K).
Rather than rationally address a very disturbing assertion by sending words dissuading such a course of action, the father’s only response is “?? How does that work? Come and live with me” (as per the original) (affidavit of mother, Annexure K).
The mother annexes to her affidavit an email from the father to the ICL and her lawyer. In the email he describes the mother’s lawyer as having a history of mental illness and “an inability to tell the truth”. He describes the mother’s lawyer as a “child predator”, a “monster of monsters”, that “he should be tried for murder”, and that “he is a child abuser” (affidavit of mother, Annexure P).
If the father communicates in such an unrestrained way with professionals who are merely doing their job, I have no confidence that he would be restrained with his children so visceral is his outrage and anger.
There is evidence in the mother’s affidavit of the impact of the father’s pervasive attitudes upon X:
72Since spending time with his father again. [X] has become incredibly sexist. When I tried to take his phone immediately after visiting his father in September 2022 he said “you can’t take my phone or I won’t be able to talk to my ho’s” I said are you referring to girls you know and he said ‘yeah. I am like my dad, good with the bitches’ He has said things to me like “did you used to make dad lunch” I replied that sometime I did why? He said dad told me that he was working all day in the hot sun and was hungry because you didn’t make him lunch and when he got home you were on the couch watching home and away and asked him to make you a cup of tea and he got real mad. “dad worked really hard and you just laid on the couch. When I have a wife I want her to look after the house and make my lunches.’
(As per the original)
In the Family Report, the Court Child Expert addresses the texts messages sent by the father. She records:
85.[X] reported that his father frequently sends him text messages, but he ([X]) often does not respond because his father talks about court, saying things such as “court is useless, we keep going back and back, they don’t do shit”...
…
89.…[X] acknowledged that his father had been texting him recently and trying to get him to see him. [X] indicated that his father was angry and swearing in his texts, however, [X] stated he tries to block out his father’s messages if they relate to court and that he does not remember what was in them. He did not seem concerned by the swearing, saying, “I swear heaps”...
The Court Child Expert reports:
95.… Whilst he views both his parents as hating each other, [X] seems to perceive that his father is particularly hostile toward his mother. It can be seen in the text messages, reportedly sent between [X] and [Mr Barre], that [X] has asked his father not to talk about court matters. Given [Mr Barre’s] presentation during his interview and the material [Mr Barre] has filed with the court, it seems likely that [Mr Barre] would struggle to contain his various thoughts and feelings regarding the court process when communicating with [X]. This has likely caused [X] a great deal of stress and confusion, resulting in him withdrawing from his father’s communication.
I accept this insightful observation.
It is clear that the father has no insight as to how damaging this form of communication is to his relationship with X. The Court Child Expert opines as follows:
108.Most notably, when he was asked about the text messages he has allegedly sent to [X], [Mr Barre] displayed no understanding of the potential harmful impact such text messages could have on [X], whether it be denigrating his mother, step-father and maternal grandmother, encouraging him to assault [Mr O], commenting about court processes after [X] asked him to stop, or swearing at and denigrating [X] directly. These kinds of messages place [X] in the middle of conflict between his parents, and would likely have caused him stress, anxiety and exacerbated any existing problems in his relationship with his step-father.

I agree with her conclusion.
The father is equally unrestrained in his communication with the mother. Those communications are vile, derogatory and threatening.
In mid-2021, the father texted the mother in the following terms:
69 …
“Your Father would roll in his grave thinking that he produced such a slimy worthless piece of shit like you. Don't worry chicken lips you're just a filthy piece of garbage that will be reconciled I have nothing to lose”.
…
(As per the original)
In late 2021, he texted the mother in the following terms:
70 …
“Whatever you think you have in your pocket whatever your filthy man hands have stolen from your children, be reminded you and your cowardly cockroach lawyer have failed to destroy me. You always knew that I would win this and I will. I will win my children back and every dollar times 2 back, your faggot kid basher sperm donor will leave you … your daughter will be diagnosed with a mental illness … and your brother … will bash you and you will have him charged! Your fat slut of a mother will die and you will bury her alone... This is life”.
…
(As per the original)
Between March and October 2022, the mother emailed the father to seek his consent to sign forms to permit Y to attend the same high school as X. The mother also requested that the father make a financial contribution to the school fees. Such a simple request is met with obfuscation and denigration.
In or around March 2023, the father responded to the mother’s request saying:
Why don’t you sell [C Street] and cash in from all the hard work that I have did and that you stole with all your lies and deception to the court’ you disgust me.
[Ms Barre] I suggest you sell the house and look after the children that you have alienated me from!
Seven years of you abusing my children and you stick your hand out for money, you are truly delusional and pathetic …
Read the family report! If you think that this is over and your off the hook’ then think again, Sell your house [Ms Barre] and don't you dare ask me for one red cent again in your life’ you made your bed now lie in it, disgusting filthy individual that’s all you are’ you are a liar and you know you are
(As per the original)
(Affidavit of mother, Annexure T)
The mother writes again in June 2022.
The father’s response in June 2022 is to the following effect:
> Don’t play the hard done by victim [Ms Barre] as you have plenty of money which you stole off me
> Your nothing but a low life thief and a liar sell your house that I paid for and tell the truth for once in your miserable life and as for [Ms BS] what has she got to do with anything?? As useless as tits on a bill
(As per the original)
(Affidavit of mother, Annexure T)
In June 2022, the father writes again:
Why don’t you stay focused on what’s best for the children ??? And stop alienating them from their father and his family’ your a thief and a liar [Ms Barre] I have more respect for a cockroach. As for [Ms BS]’ she knows what she’s done and has been caught out and then protected by this corrupt court with its scumbag lawyers
Don’t think for a second that I won’t expose the lot of them’ my evidence speaks for itself
(As per the original)
(Affidavit of mother, Annexure T)
The mother attempts to engage the father again in October 2022 and he responds in October 2022 as follows:
> > I am paying fatso’ just use the money you stole you low life thief!!
> > And your also a coward for letting that sad sack idiot boyfriend lay his filthy chicken hands on my son!
> > Karma will get you! I assure you of that
(As per the original)
(Affidavit of mother, Annexure T)
Again in October 2022, the father writes:
Your a fuckin lying thief and a fat pig [Ms Barre] and nothing less
You’ll will be a fat lonely ugly old grey mare with nobody
And you are a disgrace to humanity and what you did to my two boys is sick’ you need help’
Your a thief and you know it’ so stop lying to yourself … but I suppose you can’t help yourself as you are delusional your just a fat pig who would eat their own shit given half a chance.
Now fuck off and go back to your miserable existence
(As per the original)
(Affidavit of mother, Annexure T)
At the time of writing the emails the father knew from a reading of the Family Report that there had been raised as an issue the potential destructive way in which he communicates. These emails are therefore written with the full knowledge that a hearing will take place and that one of the issues at that hearing would be the father’s attitude as communicated through these emails. Even with that knowledge, he remains unrestrained and uncontained. He either doesn’t care or lacks the insight or capacity for restraint.
This amply displayed derogatory and misogynistic attitude to women has been communicated to X. The mother annexes to her affidavit a text sent by the father to X in mid-2021:
68 …
“Read this article, it’s a very good perspective of how women currently market themselves! Your Dad’s timeline, you’re a lot younger! So pay attention to what the “focus of study” is in this journalism. 1 how they perceive themselves. 2 the bitches are all liars. 3 this advice is the best advice you’ll ever read. 4 and yes they are all liars”.
…
(As per the original)
The Court Child Expert records:
110.… During interview, [Mr Barre] expressed firm opinions of [Ms Barre] being a liar, mentally ill, delusional, and purposefully alienating him from the children for financial gain. Whilst he was not particularly hostile when talking about [Ms Barre], he appeared intent on ensuring he has the opportunity to prove himself right and [Ms Barre] to be untruthful. There was an element of [Mr Barre’s] presentation that was obsessive and fixated on his portrayal of [Ms Barre] as having alienated him from the children. This may indicate that he could pose a risk of harm to [Ms Barre] if he is unable to achieve his stated goals of proving himself in an “international court”.
111.The co-parenting relationship is effectively non-existent. There is no trust between the parents whatsoever and no meaningful communication regarding the children. It is acknowledged that the parents have gone through lengthy property litigation and it is likely that that has had a significantly negative effect on their relationship, in addition to the difficulties associated with the parenting matter. [X] is well aware of the nature of the parents’ relationship, describing them as hating each other. [Y] appears to have been protected from exposure to this but, whilst he said he did not know the reasons for things, it is likely that he has been affected by the conflict between the parents also. The conflict between the parents, seen in [Ms Barre’s] lack of trust in [Mr Barre] and her apparently limited capacity to support the children having a relationship with him, and [Mr Barre’s] lack of trust in [Ms Barre] and his apparent preoccupation with proving to everyone, including the children, that she has “alienated” him, is likely to pose a risk of psychological harm to the children, irrespective of the other identified risk factors…
I accept the opinion of the Court Child Expert.
The ICL submits that there is a risk of harm arising from the father’s history of mental health issues. The Court Child Expert in the Family Report records the following:
106.[Mr Barre] was diagnosed with [a mental health disorder] in 2017 and with a drug induced psychotic episode in 2020. The most recent information available from [Dr AX], dated April 2021, seems to indicate that [Mr Barre] does indeed suffer from a severe mental illness, for which he is prescribed medication. It is noted that this letter appears to have been written to support [Mr Barre’s] application for a disability support pension and treating practitioners may be inclined to write reports specifically for their intended purpose, therefore the use of this letter as an assessment of [Mr Barre’s] mental health in relation to his parenting capacity may not be appropriate. However, there is a concern about [Mr Barre’s] mental health, and his capacity to parent, based on his presentation during interview.
107.[Mr Barre’s] presentation during interview was much like the content of his affidavits, in that he was focussed on the ICL’s actions, or lack thereof, and on [Ms Barre’s] alleged “alienation” of him from the children, with grandiose claims of taking the matter to the “international court” to show that they have been lying and not doing the right thing for the children. It was quite apparent at numerous times during the interview that [Mr Barre] was unable to stay focussed on talking about [X] and [Y]. When asked about seeing [X] in 2021, [Mr Barre] went on to talk about [Ms Barre] wanting a baby girl. When asked about talking to [Y], [Mr Barre] went on to talk about [Ms Barre] being mentally ill and then on to his concerns about [Ms BT’s] report, which he thinks may have been favourable to his position. [Mr Barre] also appeared to struggle to acknowledge his own actions and his own vulnerabilities and the impact of his behaviour on the children. [Mr Barre] seemed to be saying that he does not believe that he suffers from [a mental health disorder], and that he has suffered depression as a result of [Ms Barre] allegedly “alienating” him, but he seemed reluctant to discuss this topic. He reported taking only one of the medications identified in [Dr AX’s] letter. This leaves some lingering concerns about the state of [Mr Barre’s] mental health.
The Family Report was released to the parties on 15 March 2022 .The conclusions of the Court Child Expert and in particular the last sentence have therefore been known to the father for over 10 months. The father has chosen not to comply with directions for filing affidavits, including updated evidence from his treating psychiatrist.
I am satisfied that, in light of the evidence of Dr AX and the failure of the father to adduce any more recent evidence, the only conclusion I can draw is that the father continues to suffer from a “severe form of [mental health disorder]”, which historically “has cost him his romances, finances, friendship and family life with his children” (Exhibit 8). I am satisfied that his mental health issues are such that there is a possibility that they will impact negatively on his children.
The ICL submits that there remain unresolved risks in relation to the father’s use of drugs. In that respect, she referred to the evidence from the BD Clinic and the BB Hospital as well as the father’s refusal to engage in drug testing. The Court Child Expert reports:
109.In addition, there may be ongoing concerns about [Mr Barre’s] use of drugs. There have reportedly been periods of time when [Mr Barre] has provided clean drug tests, but there have been circumstances when he has reported problematic use of [an illicit substance] and alcohol, most notably in 2017 and [early] 2020. [Mr Barre] reports no use of [the illicit substance] “for years” and minimal use of alcohol. He reports being (or having been) a facilitator in a recovery group and identifies that his use of drugs and alcohol was a form of self medicating for depression. It may well be that [Mr Barre] has overcome his problems with drugs and alcohol, but without consistent drug testing, this cannot be known with any confidence.
I agree with the concerns expressed by the Court Child Expert. I am not satisfied that I can find in the absence of recent negative drug tests that the risks that were present in the past are merely historical.
As their Honours make clear in Isles & Nelissen, the determination that there exists an unacceptable risk of future harm may be established on a finding of a possibility of historical harm that is not established on the balance of probabilities. The risk assessment process is predictive based on “the foresight of possible harm. … [r]isks of harm must be heeded even if they are improbable eventualities. … [a]t some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable” (Fitzwater at [138] and [139]) (emphasis in original).
I am satisfied for the reasons given above that while there are benefits to Y in spending time with his father, there are also significant risks. Those risks as I have identified individually and collectively carry the potential of causing significant harm to Y. There is an unacceptably high chance of those risks occurring and consequently those risks are in my view unacceptable. I find that the father poses an unacceptable risk of harm.
APPLICABLE LAW
Parenting matters are governed by Pt VII of the Act.
Section 60CA of the Act mandates that the best interests of a child are the paramount consideration. The objects of the Act are identified in s 60B, which sets out not only the objects of the Act but the principles to be applied.
Section 60B of the Act provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Pursuant to s 61DA(1), the Court is required to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for him or her, but that presumption may be rebutted if there are reasonable grounds to believe that a parent of a child has engaged in abuse or family violence, or there is evidence which satisfies the Court that it is not in the bests interests of the child for the presumption to be applied.
In the event that the Court is satisfied that the presumption applies, then pursuant to s 65DAA of the Act, the Court must positively consider whether orders should be made which result in a child spending either equal time or substantial and significant time with both of the child’s parents.
Substantial and significant time is defined by s 65DAA(3) of the Act as follows:
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In determining what time order should be made under s 65DAA(1) and (2) of the Act, the Court looks to whether spending equal time or significant substantial time is in the best interests of the child, and whether as a separate consideration it is reasonably practical.
The best interests of a child are determined by an examination of the factors as set out in s 60CC of the Act. Section 60CC(2) sets out the primary considerations in determining what is in the child’s best interests. These primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse neglect or family violence.
In applying these considerations, the Court is to give greater weight to the consideration set out in s 60CC(2)(b).
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. Those considerations will be discussed further below.
In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ stated:
76.It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Emphasis in original)
In reaching my decision, I have considered all of the relevant sections of the Act, albeit that I am not required as a matter of law to specifically address each such consideration.
PRIMARY CONSIDERATIONS
Meaningful relationship
It is ordinarily in children’s best interests to have a meaningful relationship with their parents.
The Full Court in Sigley & Evor (2011) 44 Fam LR 439 identified the following as important matters of guidance in relation to s 60CC(2)(a) at 463–464:
(a)“a meaningful relationship or meaningful involvement is one which is important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 at [26];
(b)“the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”)”: McCall & Clark (2009) FLC 93-405 at [118];
(c)“what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”: Godfrey v Sanders (2007) 208 FLR 287 at [36]; and
(d)“[t]he submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make the orders most likely to ensure the children had a ‘meaningful relationship’ with both parents. This is an incorrect assumption. The court’s obligation is to make orders most likely to promote the child’s best interests”: Champness & Hanson (2009) FLC 93-407 at [103].
Y has a meaningful relationship with his mother.
The Family Report records:
112.It would seem that according to both parents, ideally, [X] and [Y] would be able to spend time, communicate, and have a meaningful relationship with their father. [X] and [Y] desire a relationship with their father. They have apparently enjoyed an affectionate and interactive relationship with him in the past. They could potentially benefit from his love and attention and interest and involvement in their lives. If they are unable to re-establish relationships with their father, they may suffer from this loss. [X] appears to have an existing relationship with his father which he may rekindle by his own volition in the near future or perhaps when he is a young adult. However, it seems that if [Y] does not spend time with his father in the near future, he will not have been able to form the foundational relationship that he could rely on when he is a young adult. [Y] may experience this loss quite acutely…

I accept the evidence of the Court Child Expert that there are benefits to Y of a relationship with his father and, that if he did not have a relationship, he will feel a sense of loss and could feel that loss acutely.
As noted, however, the Court’s obligation is to make orders that are in Y’s best interests and the questions of risk and harm are not subordinate to the issue of meaningful relationship.
Section 60CC(2)(b)
The primary focus of these proceedings has been upon the need to protect Y from harm.
I am satisfied that the father poses an unacceptable risk of harm to Y. As the Family Report records:
113.Unfortunately however, it is very difficult to see how [X] and [Y] could spend time with their father in a psychologically safe and meaningful way at the moment, and it seems that the continuation of no time needs to be considered as possibly being in their best interests. Whilst [Ms Barre] might be able to facilitate [X] spending time with [Mr Barre], it does not seem that she would be able to meaningfully support [Y] to do so. This may be a flaw in [Ms Barre’s] parenting capacity, but it may be justifiable protective behaviour. The major concern is [Mr Barre’s] attitude and fixation on proving that [Ms Barre] has alienated him. Whilst he continues with this thinking, it would be highly likely that he would have a damaging impact on [X] and [Y’s] emotional wellbeing, including the relative stability of their care arrangements with their mother.
I agree with her opinion.
ADDITIONAL CONSIDERATIONS
The Court must also have regard to such of the additional considerations under s 60CC(3) of the Act as are relevant. I will, to the extent that I have not already done so, address the additional considerations.
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Y is only 11 years old.
In Bondelmonte v Bondelmonte (2017) 259 CLR 662, the High Court stated:
34.In some cases, it may be right, in the exercise of a primary judge’s discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
35.... whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed.
The Court Child Expert clearly articulated Y’s views about time with his father. She records:
78.[Y] reported that he would like to spend time with his father, including overnight time, perhaps every Saturday, with it alternating each week between day only and an overnight, Saturday to Sunday. [Y] thought that this arrangement could work whether his father lives nearby or further away.
79.About the interview for this assessment, [Y] indicated that he was worried that he might have said something bad that could make his parents angry. However, [Y] confidently stated that the views he had expressed were his own and that he was not trying to make either parent happy and was not mimicking what either parent wants.
…
99.[Y] has also indicated that he would like to spend time with his father. [Y’s] views appear to be based on his likely desire to know and have a relationship with his father, his awareness that [X] has communication with their father, and his memories of positive interactions with his father. [Y] is aware that his father is unhappy about not seeing him and [X], and he is aware that his mother, for unknown reasons, does not want him to spend much time with his father. [Y] appeared to be worried about the response of adult family members, in that he did not want to upset them or make them angry as a result of what he said during his interview. This indicates that this situation weighs heavily on [Y], and it is possible that his views are influenced to some extent by him wanting to appease one or other of his parents. Despite this, some weight can be placed on his views, particularly the fact that [Y] desires a relationship with his father. However, as with [X], and perhaps more so given [Y’s] more limited relationship with his father and his younger age, there remain concerns about risks to the children that may need to be given greater weight (discussed below).
I agree with and accept the opinion of the Court Child Expert as to the weight to be given to his views. However, [Y’s] views are but one matter for consideration.
(b) The nature of the child’s relationship with each of the parents and other persons
The Family Report records :
72.[Y] described his mother as being caring, in terms of meeting his basic needs, and emotionally comforting. He identified some feelings of his mother not being responsive to what might be important to him, and her instead focussing on parenting him and ensuring he is complying with rules. However, overall [Y] did not describe any significant problems in his relationship with his mother and stated that he has not felt unsafe with his mother.
…
74.[Y] spoke positively of spending time with his father in the past, describing various enjoyable activities they used to do together at his father’s home (the former marital home). [Y] did not indicate that he had any understanding as to why he had stopped spending time with his father. [Y] seemed unsure where his father is currently living, but seemed to be aware that his father no longer lives in that home. He acknowledged that he has spoken to his father on a few occasions when his father has called [X] and he indicated that it was “nice”, and that he talked to his father about how he is going at school. [Y] seems to have perceived his father to have been happy talking to him and [X], but to have been generally unhappy due to not spending time with them.
75.[Y] described his father as being nice, and said that he often gave him and [X] presents, bought things for them, and let them watch television. [Y] did not identify having experienced any difficulties in his relationship with his father and said that he has not felt unsafe with his father.
…
96.[Y] seems to view his relationship with his mother positively, but he was able to identify ways in which she behaves that he does not like. [Y] appears to feel ambivalence in his relationship with [Mr O], which would be expected, given that his step-father has been in his life for at least four years and he has felt close to him, but also experienced a great deal of conflict in the home associated with [Mr O]. [Y] may experience the loss of his relationship with [Mr O] to be quite significant. [Y’s] perceptions of his father appear to be positive and he did not indicate any awareness of the issues that [X] is aware of. However, given his history of spending only limited time with his father, it would seem likely that [Y] would have only a superficial relationship with his father.
97.Neither boy presents with any distorted, overly aligned or idealistic views of their mother, and nor do they present with any distorted or overly negative views of their father. It is noted that when one parent pathologically turns their children against the other parent, these features are commonly present in the children. It is noted that, whilst it was not discussed with the boys, it is of concern that they may have been encouraged to refer to [Mr O] as “Dad” and refer to their father as “[Mr Barre]”, as this may indicate overt influence to reject their father. It is also noted that some children do refer to their step-parent with parental terms, particularly when they have half-siblings in the home. However, whilst there has undoubtedly been an impact on the boys as a result of them not seeing their father and as a result of the various complex issues at play within the family, it does not seem that [X] and [Y] have been pathologically influenced by their mother to reject their father.
I am satisfied that Y has a good relationship with his mother. His relationship with his father is as described by the Court Child Expert superficial.
(c) Extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; spend time with the child; and communicate with the child
The husband’s conduct and attitude towards signing the enrolment forms so Y could attend the same high school as his brother reflects poorly upon him. He was much more focused on criticising the mother than he was on acting in the best interests of his son.
It is a salutary example of his recurring inability to place the needs of his children ahead of his desire to criticise their mother.
(ca) Extent to which each of the parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The mother gives evidence as follows:
41[Mr Barre] did not pay child support for many years. I am responsible for all the expenses in relation to the children's care. [Mr Barre] has arrears of child support of about $40,000. I am just one of the creditors of his Bankrupt Estate. [Mr Barre] resumed paying child support of $51 per fortnight in September 2021.
I accept the mother’s evidence.
(d) Likely effects of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Y has not spent any time with his father in over three years.
In light of the opinions expressed by the Court Child Expert, there are significant risks associated with a re-introduction of time between Y and his father.
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not relevant.
(f) The capacity of each of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
This has been addressed earlier in these reasons.
I accept the opinion of the Court Child Expert that there are significant deficits to both parents capacity to provide for the needs of Y and X. It is agreed that the mother will remain the children’s primary carer. On balance, however, it is the father’s parenting deficits that pose the greatest risk of exposure to Y of a range of psychological harms.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Not relevant.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her culture; and the likely impact any proposed parenting order under this Part will have on that right
Not relevant.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
This has been canvassed extensively above. The Family Report records the following:
111.The co-parenting relationship is effectively non-existent. There is no trust between the parents whatsoever and no meaningful communication regarding the children. It is acknowledged that the parents have gone through lengthy property litigation and it is likely that that has had a significantly negative effect on their relationship, in addition to the difficulties associated with the parenting matter. [X] is well aware of the nature of the parents’ relationship, describing them as hating each other. [Y] appears to have been protected from exposure to this but, whilst he said he did not know the reasons for things, it is likely that he has been affected by the conflict between the parents also. The conflict between the parents, seen in [Ms Barre’s] lack of trust in [Mr Barre] and her apparently limited capacity to support the children having a relationship with him, and [Mr Barre’s] lack of trust in [Ms Barre] and his apparent preoccupation with proving to everyone, including the children, that she has “alienated” him, is likely to pose a risk of psychological harm to the children, irrespective of the other identified risk factors. The level of risk that [Mr Barre] may pose to the children if he were to spend time with them, and what, if any, mitigation strategies would be effective, will need careful consideration.
(j) Any family violence involving the child or a member of the child’s family
The mother was the victim of family violence and has had the benefit of an ADVO following a finding by the Local Court.
(k) Any relevant inferences that can be drawn from a family violence order, if it applies
Not relevant.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
These parties have been in conflict about the children’s living arrangements since their separation in 2015. It is in Y’s best interests for the proceedings to end and for him to have some certainty in his life. I am hopeful that the orders I make are the least likely to lead to further proceedings.
I am reasonably confident that if the father’s orders were made there would be further litigation between the parties.
(m) Any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance that is relevant that has not otherwise been addressed above.
WHAT TIME SHOULD Y SPEND WITH HIS FATHER?
The mother and the ICL sought a no time order in relation to Y. The father for his part sought an order that he spend time with Y on an unsupervised basis. Whilst he nominated various days and block periods of time to be spent with Y and X, the general tenor of his application was that it occur in accordance with the wishes of each child.
The Court is not bound by the proposals of each party. That said, however, the Court would be cautious in making an order that a party has already indicated they would not embrace.
During cross-examination of the Court Child Expert, the issue of whether the Court should make an order for supervised time was canvassed, notwithstanding the father’s statement that he would not exercise it. The Court Child Expert said that there was a risk to Y of such an order in light of the father’s attitude. She said that if Y is informed that orders are made for him to spend supervised time with his father and his father does not attend, then Y could feel abandoned and rejected by his father. It was also explored with the Court Child Expert, in circumstances where Y had not seen his father for over three years, whether the Court should entertain the possibility of an interim order to see whether supervision could work and whether the father, despite what he says, would actually attend.
The Court Child Expert was of the view that there were risks for the family constituted by Y, X and the mother for the matter to remain unresolved by this Court and that it was necessary for there to be some finality to the litigation.
Notwithstanding the father’s stated position that he would not entertain time if it was supervised, it remained the Court Child Expert’s view that supervision was not an appropriate option in the case. The Court Child Expert was clear in her opinion that she did not think that supervised time provided a measure of protection for Y against the risk of harm perpetrated by his father. She did not think a supervisor could contain the father.
I accept the evidence of the Court Child Expert that there are significant benefits to Y and X in maintaining a relationship with their father. I also accept the evidence of the Court Child Expert that in the event that they do not, then they are likely to suffer a significant loss including a feeling of abandonment and rejection. I also note the evidence of the Court Child Expert that a child may somehow perceive it as their fault and that they have done something wrong. The Court Child Expert, however, was of the view that this sense of loss for Y may be less in circumstances where he has not had a relationship with his father for a number of years even if X were to maintain some contact with his father. I am satisfied that the evidence demonstrates that the unacceptable risk posed by the father is such that the father could not have unsupervised time with Y.
I am satisfied on the evidence of the Court Child Expert, which I accept, that supervision could not protect Y from the risk of harm posed by his father. The Court Child Expert was of the view that there were no steps that could be taken to ameliorate the risks posed to Y short of a no time order.
The father’s behaviour, as identified by the Court Child Expert, has already caused X a great deal of stress and confusion. She identifies X as having withdrawn from communication with his father in what would seem to have been a way of protecting himself from the things the father says. The Court Child Expert was clear that the father had no understanding of the impact upon X of the derogatory things he says to him about the children’s mother. The Court Child Expert made it clear that this form of communication has the consequence of placing X at the centre of the conflict causing him further stress and anxiety. It is clear these risks and concerns are apposite to Y if the father were to spend time with him.
The Court Child Expert was significantly concerned about the father’s obsessive fixation upon his belief that the mother had alienated the children from him. This preoccupation according to the Court Child Expert posed a risk of psychological harm to the children. I accept her opinion. It was the Court Child Expert’s view that it was difficult to see how the children could spend time with their father in a psychologically safe and meaningful way while the father continued to retain this preoccupation and fixation. This fixation and preoccupation would continue to pose a risk to the stability of the children’s living arrangements with their mother and their emotional wellbeing. The father attempted to suggest on a number of occasions during the course of his cross-examination of the Court Child Expert that he had moved through the various stages of grief and was finally at what he described as the acceptance stage. I do not accept the husband’s assertions. There is no evidence before the Court that the father has resiled in any way from the firmly held beliefs he expressed to the Court Child Expert. I am satisfied despite what he says that he poses a risk of psychological harm to the children.
The Court Child Expert recognised that given X’s age there was little that the Court could do to protect him from the risks of psychological harm. The evidence is clear that the father continues to communicate with X and his mother is unable to prevent X from communicating with his father. Given X’s age, there is a certain inevitability about what can be done to protect X. That said, Y is in a very different category. He has not had any form of communication with his father for at least three years and the evidence is overwhelming that any form of communication with his father has the potential to cause him psychological harm.
CONCLUSION
I propose to make orders as proposed by the ICL, which sit consistently with the recommendations of the Court Child Expert.
The father sought to include in the order about time with X some additional words. In my view, they are superfluous and therefore unnecessary. I do not propose to include them.

In my view, the orders that I propose are ones that are in Y’s best interests.
It should be recorded that the father maintained throughout the interviews with the Court Child Expert, in the affidavit that he relied upon, and in his conduct of the hearing, a belief that the ICL had in some way or other acted inconsistently with the duties and responsibilities imposed upon an ICL. In maintaining this erroneous belief, he descended into entirely baseless and unwarranted criticisms of the ICL.
Section 68LA of the Act sets out the duties and responsibilities of an ICL. Section 68LA(2) identifies that an ICL is required to form an “independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child”. Section 68LA(5)(a) requires an ICL to “act impartially in dealings with the parties”.
In Knibbs v Knibbs [2009] FamCA 840, Murphy J observed in relation to the duties and responsibilities of an ICL as follows:
33. It was said by the Full Court as long ago as 1980 that:-
“It is the duty of counsel representing the child to place before the court the wishes of the child (see Boseley v Lyons (1978) 4 FamLR 17; [1978] FLC 90-423) but in my opinion, unlike counsel appearing for a party who is sui juris and who must put his client’s instructions and argue his client’s case, counsel appointed to represent a child under the provisions of s.65 is as much charged with the duty of making submissions and conducting his case as to reveal those matters which are in the best interests of the child as is the trial judge to seek them out among the evidence and weigh them up. To this extent therefore, I think that is was proper for counsel for the child, notwithstanding his expressed wish to the contrary, to submit that it is not in his best interests that his wishes be acceded to by the court”.
(In the Marriage of Wotherspoon & Cooper (1980) 7 FamLR 71; [1981] FLC 91-029 at FLC 76, 282)
…
34.Some ten years after the decision of the Full Court in Wotherspoon & Cooper, another Full Court in In the Marriage of Bennett (1990) 14 FamLR 397; [1991] FLC 92-191 made a similar point, emphasising that an ICL (then a “separate representative”) is not bound to make submissions on the instructions of the child. The court said (at FLC 78, 259):-
“…it should not be forgotten that an advocate at trial normally has a source of instructions. A separate representative has none other than the children (if they are old enough) as to their wishes but may, as in this case, instruct counsel on his or her behalf. We therefore consider that a separate representative must of necessity, form the view as to the child’s welfare based upon proper material and, if appearing, may make submissions in accordance with that view or instruct counsel to do so. We think that the role of the separate representative is broadly analogous to that of counsel assisting the Royal Commission in the sense that his or her duties to act impartially but, if though appropriate, to make submissions suggesting the adoption by the court of a particular course of action, if he or she considers that the adoption of such a course is in the best interests of the child. Unless the separate representative does this it seems to us that there is little purpose in having a separate representative…”
35.In In the Marriage of Harris [1977] FLC 90-276 at 76, 476, Fogarty J said this:-
“It appears to me that [the Independent Children's Lawyer] occupies the position of an advocate appearing for a particular party in the litigation although it is the role of advocacy having about it certain unusual features including: (i) that he is not appointed by the party whom he represents; (ii) that he may not be removed by that person; and (iii) that he does not necessarily advance what the client wants but what in his view is in the best interest of that “client” and to that extent exercises an independent judgment quite out of character with the position ordinarily occupied by an advocate”.
There is not a scintilla of evidence that the ICL acted other than entirely consistent with her duties and responsibilities to the children, the parties and the Court. I am satisfied that she has acted professionally and impartially in discharging her duties.

I certify that the preceding one hundred and fifty-one (151) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.
Associate:
Dated: 24 March 2023

File number(s):	SYC 6149 of 2016
Judgment of:	SCHONELL J
Date of judgment:	24 March 2023
Catchwords:	FAMILY LAW – PARENTING – Unacceptable Risk – Where the older child is 16 years old and communicating with the father – Where the issue in the proceedings was largely what time the father should spend with the younger child – Where the Independent Children’s Lawyer and mother sought for a no time order – Where the father sought for an order that he ultimately spend time with the child in accordance with his wishes – Where the father indicated to the Court that he would not attend if an order was made for supervised time – Where the Court Child Expert’s evidence was that the father posed an unacceptable risk to the child and that there should be no time with the father – Consideration of primary and additional considerations pursuant to s 60CC of the Family Law Act 1975 (Cth) – Orders made for the father to spend time with older child in accordance with the child’s wishes and for there to be no time between the father and younger child.
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA, 68LA, 102NA
Cases cited:	Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251 Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102 Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 Johnson and Page (2007) FLC 93-344; [2007] FamCA 102 Knibbs v Knibbs [2009] FamCA 840 M v M (1988) 166 CLR 69; [1998] HCA 68 Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76 Potter and Potter (2007) FLC 93-326; [2007] FamCA 350 Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division:	Division 1 First Instance
Number of paragraphs:	151
Date of hearing:	13 – 14 March 2023
Place:	Sydney
Solicitor for the Applicant:	Ms Perin, Perin Legal
The Respondent:	Litigant in person
Solicitor for the Independent Children's Lawyer:	Ms Norris, Legal Aid NSW Sydney Central Family Law

SYC 6149 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS BARRE Applicant
AND:	MR BARRE Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	SCHONELL J
DATE OF ORDER:	24 MARCH 2023