Bhagat & Sandhu (No 3) - [2024] FedCFamC1F 301

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bhagat & Sandhu (No 3) [2024] FedCFamC1F 301

File number: SYC 806 of 2020

Judgment of: HARPER J

Date of judgment: 8 May 2024

Catchwords: FAMILY LAW – CHILDREN – Whether children should spend time with the father – Where children have not spent time with the father for three and half years – Where the children are progressing well in the sole and primary care of the mother – Where father seeks spend time with orders for both children as his primary position or alternatively the son alone spend time with him – Where mother seeks orders that the children spend no time with the father – Where children do not wish to spend time with the father – Where children’s views given weight – Where father believes himself to be the victim of an extensive conspiracy and some conduct of the mother has contributed to this perception – Court not persuaded collusive strategy or conspiracy established – Where father would likely use any time, including supervised time, with the children to continue unremitting denigration of the mother – Court satisfied that time with the father would expose the children to unacceptable risk of psychological harm – Where father seeks a paternity test – Orders made for the children to spend no time and have no contact with the father – Orders made for the parties to pay the costs of the Independent Children’s Lawyer equally.

Legislation:
Family Law Act 1975 (Cth) Pt VII, ss 60CC, 60CC(2A), 60CC(2), 60CC(3), 60CG, 61DA, 65DAB, 69W

Family Law Amendment Act2023 (Cth) s 25(1)

Cases cited:
Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Bhagat & Sandhu [2023] FedCFamC1F 52

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

Brianna & Brianna (2010) FLC 93-437; [2010] FamCAFC 97

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

Fitzroy & Fitzroy [2009] FamCA 954

Franklyn & Franklyn [2019] FamCAFC 256

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

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

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

Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230

M & S (2007) FLC 93-313; [2006] FamCA 1408

Sayer v Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209

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

Tibb v Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142

TNL & CYT (2005) 33 Fam LR 167; [2005] FamCA 77

U v U (2002) 211 CLR 238; [2002] HCA 36

Wagstaff & Wagstaff (2022) FLC 94-098; [2022] FedCFamC1A 119

Division: Division 1 First Instance

Number of paragraphs: 151

Date of hearing: 29–30 November 2023, 1 December 2023 and 6 March 2024

Place: Sydney

Counsel for the Applicant: Mr Katsinas

Solicitor for the Applicant: First Choice Family Lawyers

Counsel for the Respondent: Mr Ladopoulos

Solicitor for the Respondent: Sarah Bevan Family Lawyers

Counsel for the Independent Children's Lawyer: Ms Stolier

Solicitor for the Independent Children's Lawyer: Kathryn Renshall Lawyers

ORDERS

SYC 806 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR BHAGAT

Applicant

AND:
MS SANDHU

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HARPER J

DATE OF ORDER:

8 MAY 2024

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The Respondent Mother (“the mother”) have sole parental responsibility for X born 2008 and Y born 2012 (“the children”).
3.The children live with the mother.
4.The Applicant Father (“the father”) is not to spend time with the children and is to have no contact with the children.

Travel
5.Pursuant to s 65Y of the Family Law Act 1975 (Cth) (“the Act”) the mother shall be permitted to travel outside of the Commonwealth of Australia with the children.
6.Any requirement for the signature or consent of the father be dispensed with and the mother is at liberty to do all acts and sign all documents as is necessary, pursuant to s 11(b) of the Australian Passports Act 2005 (Cth) to procure a valid Australian travel document for the children, X born 2008 and Y born 2012, without the signature or consent of the father, including that the mother is authorised to sign all document on behalf of the father.
7.The children’s passports are to be retained by the mother.
8.By no later than 14 days from the date of these orders, the father must do all things necessary to deliver the children’s and the mother’s Country D Identification Cards to the mother’s solicitor’s office.
9.In the event the children’s Country D Identification Cards are lost or otherwise expired, within 21 days of written request from the mother’s solicitor, the father must do all things and sign all documents necessary to cause the children to be issued with valid Country D Identification Cards.
10.The father is restrained from making an application for an Australian passport or travel‑related document for the children.
11.The Court requests that the Australian Federal Police remove the names of the children, X born 2008 and Y born 2012 from the Family Law Airport Watchlist in force at all points of arrival and departure by air or sea in the Commonwealth of Australia.

Other
12.The Independent Children’s Lawyer be discharged.
13.By no later than 28 days from the date of these orders, the parties each pay half of the costs of the Independent Children’s Lawyer to the Legal Aid Commission NSW noting that the total cost of the Independent Children’s Lawyer is $9,045 inclusive of GST.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bhagat & Sandhu has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION

These are parenting and property proceedings between the applicant father, Mr Bhagat (“the father”) and the respondent mother, Ms Sandhu (“the mother”) pursuant to Pts VII and VIII of the Family Law Act 1975 (Cth) (“the Act”).
There are two surviving children of the marriage, X born 2008, now 16 years old, and Y born 2012, now 12 years old, collectively referred to as the children.
On 23 October 2023, when the proceedings were first listed before me for a Case Management Hearing, I ordered that the parenting issues be determined separately before any financial issues. Accordingly, this judgment determines only the parenting issues.
BRIEF BACKGROUND
The father is 48 and the mother is 42 years old.
The parties were married in 2005 in Country D.
The parties moved to the United Kingdom in 2007, with the company which employed them both at the time. The mother fell pregnant with X shortly after the move.
The parties returned to Country D in 2009, then relocated to Australia in 2010.
They separated on a final basis in February 2020.
The children have lived with the mother since separation. They have not spent time with the father since late 2020, other than during interviews for a Family Report in March 2021.
RELEVANT PROCEDURAL HISTORY
The father commenced proceedings on 7 February 2020 by way of Initiating Application. Orders were made placing the children on Family Law Airport Watchlist (“the Airport Watchlist”) at that time.
An Independent Children’s Lawyer (“the ICL”) was appointed on 13 February 2020.
The father filed an Amended Initiating Application on 24 March 2020 and the matter was transferred to the Family Court of Australia (as it then was).
On 2 February 2021, consent orders were made appointing Dr E as the Single Expert Witness. Pursuant to the orders of the Court and the parties’ instructions, Dr E prepared a Family Report which was released to them on 12 April 2021.
Orders were made on 10 August 2021 requiring the parties to attend a mediation organised by Legal Aid with respect to the parenting issues. The parties attended mediation on 20 October 2021 and reached an interim agreement. Consent orders were made on 25 October 2021 which provided that the children would live with the mother, X would spend time with the father in accordance with her wishes and Y was to spend supervised time with the father. The parties were to arrange and undertake family therapy at F Family Services. The Court noted, by consent, that the orders were less liberal than the time recommended by Dr E but were agreed to by the father to enable time to commence in the first instance. The Court also noted that the parties envisaged the orders to be in force for approximately three months with a view to the matter being re-listed shortly thereafter for interim determination.
On 9 June 2022, Henderson J made orders that a copy of Dr E’s report be provided to the Family Therapist, Dr C.
On 12 August 2022, the father filed a Notice of Child Abuse, Family Violence or Risk, a supporting affidavit and a case summary document, which contended that the children were at significant risk of harm due the mother’s poor mental health and their alleged exposure to family violence perpetrated by the mother’s new partners. No accompanying Application in a Proceeding was filed.
On 19 September 2022, Henderson J made an order, among other orders, pursuant to s 102NA(1) of the Act, prohibiting either party from personally cross-examining the other, having regard to the serious allegations of family violence purportedly perpetrated by the father upon the mother and X.
The father filed an Application in a Proceeding on 28 September 2022, in which he sought orders that the mother be required to disclose to the Court all information pertaining to proceedings in the Sydney District Court, in which the mother was the named victim, and that the parties and the ICL have leave to access this material. The father sought leave to issue subpoenas to “NSW Police, [G Group] and [H Pty Ltd] for the duration 2014 till 2020 in relation to any investigation past or current” (Application in a Proceeding filed 28 September 2022, paragraph 2) relating to the mother and a number of named individuals, purportedly to assess the safety and risk of harm to the children. The father further sought that within seven days of the date of the orders the parties take all necessary steps for the commencement of family therapy, for the father to commence unsupervised time with Y and for there to be a supervised meeting with the father and X at J Contact Service. This application was dismissed on 25 September 2022.
The Expert Report of Dr C dated 2 June 2022 was released to the parties on 20 October 2022. After it was discovered this report contained a typographical error, an amended report was released to the parties on 9 November 2022.
The father filed a contempt application against the mother on 11 November 2022, accompanied by an affidavit of 101 pages. This application was summarily dismissed by Rees J on 10 February 2023 (Bhagat & Sandhu [2023] FedCFamC1F 52 (“Bhagat & Sandhu”)).
The first tranche of the final hearing for parenting issues was heard by me from 29 November 2023 until 1 December 2023 when, following the conclusion of the evidence, the matter was stood over part heard. Orders were made for the provision of written submissions by no later than 4 March 2024. The final hearing resumed on 6 March 2024 and the parties made their final submissions.
I note that on 6 May 2024, that is, after the final hearing had been commenced, completed and judgment reserved, substantial amendments to the parenting provisions of the Act commenced operation. However, since these amendments came into effect after the final hearing was commenced they have no application to these proceedings (s 25(1) of the Family Law Amendment Act2023 (Cth)). These parenting proceedings are to be determined under the provisions of the Act as they stood when the final hearing commenced.
PARTIES AND CURRENT CIRCUMSTANCES
The father currently rents a two-bedroom apartment in Suburb K. He lives alone and has not re-partnered. He also owns a four-bedroom home in his sole name which he proposes to refurbish. His parents have been staying with him while on an extended visit from Country D. He works full time predominantly from home but works in the city two days per week.
I do not accept the father as a reliable witness. I will discuss his evidence in more detail in the course of these reasons, but the reasons for my view can be illustrated here with several examples.
In cross-examination he presented as tense and belligerent. He was argumentative, had a tendency to fence with the questioner and was overcome by emotion several times. It became clear that he made inaccurate statements in affidavits. In an affidavit filed on 19 January 2021 he claimed to have not seen the children since February 2020. When cross-examined on this statement, he agreed he had seen the children five times between May and August 2020, but then claimed never to have seen the affidavit before. He denied the e-signature was his and that he ever gave instructions for it to be filed. I found this evidence to be wholly unconvincing.
As will become apparent, the father’s attitude towards the mother is important to the resolution of this parenting dispute. His trial affidavit evidence was misleading in this respect. For example he deposed:
With the benefit of hindsight, I accept that my behaviour at times has been problematic, and would have caused [the mother] significant stress. I also accept that these proceedings have been traumatic for her and our children, who despite the distance between us and, the time that has passed, I love dearly.
(Father’s affidavit filed 21 November 2023, paragraph 117)
But in cross-examination he heavily qualified this acknowledgement, conceding it was limited to allegations he made against the mother in the contempt application (mentioned above at [20]), but which he then maintained “all hold true 100%”. In Bhagat & Sandhu, Rees J described this contempt application as follows:
5. In 46 separate complaints, the applicant seeks orders variously against the respondent; the respondent and her solicitor; the respondent, her solicitor and a psychologist, Ms B and the respondent with the help of her boyfriends (named).
6. The application is supported by an affidavit of the applicant sworn on 1 November 2022 which makes no attempt to set out the evidence upon which the applicant relies in relation to each count of contempt.
…
16. Further, in relation to each count, I am unable to formulate a charge such that the respondent can be informed, as is required by the rules, of the allegations against her. I do not propose to set out here each count. It is sufficient, by way of illustration, to set out the terms of count 11 which is the first count against the respondent alone:
Description: Paragraph – 42 and 43 of the respondent [mother’s] affidavit filed on 26 May 2020, she asserted that she has been pushed on the floor and her lower body has been hurt. In contrary these assertions, the [mother] made an inconsistent submission during her interview on 02-June-2022 at […] with [Dr C] saying – “[Ms Sandhu] referred to “historical” abuse allegations from approximately 2015. She confirmed that there was an ADVO taken out for her protection on 2020, which has since expired. It was not clear from discussions the substance of the ADVO.”, which formulates another clear evidence of contempt of court to mislead the Judges and waste courts and NSW Police time and Resources.
(As per the original)
He also claimed in cross-examination that he felt an obligation to report illegal behaviour of the mother to his former employer (a government body), and was legally obliged to continue making disclosures about her behaviour. This view did not appear to have a basis in any identified set of statutory provisions or regulations. Rather it came across a strong desire to draw attention to perceived legal contraventions of the mother.
The point is that although the father’s contempt application was summarily dismissed, he clearly used it to make wide ranging allegations about the mother, which he actually adhered to at trial, despite purporting to resile from them in his trial affidavit. I formed the view that the evidence he gave in paragraph 117 of his trial affidavit was not sincere, and he had little or no real insight into how his behaviour was problematic. This cast considerable doubt on the reliability of his evidence at trial and betrayed the entrenched hostility he felt towards the mother.
He also said in cross-examination that he thought the mother may still have psychological problems. It is ironic, therefore, that the father also gave evidence of two occasions in mid‑2020, shortly after separation, when he presented at a hospital, making allegations of an elaborate conspiracy against him over many years. In his trial affidavit he claimed “I had high blood pressure and I described the dreams that I had recently had ... I recalled hearing voices, but realized [sic] they were my neighbors [sic]” (filed 21 November 2023, paragraph 97). In cross-examination he was confronted with hospital notes dated mid-2020 (p.119 of the mother’s tender bundle) which recorded that he told a doctor and a social worker that he heard voices “of someone talking to him about the current situations/ problems over the past 2 days, can’t recall exactly what was he told” and that he had been the victim of a long running conspiracy for the last six to seven years. He could not explain in cross-examination how his neighbours came to be discussing his current situation, as his affidavit claimed. The notes record he drew “an elaborate diagram of how” the players in the conspiracy “were interacting with each other” (Exhibit 1, p.122). He at first denied ever mentioning a conspiracy to the hospital staff, but could give no plausible reason why the hospital notes would have recorded mention of a conspiracy. Eventually he conceded he had mentioned an “elaborate conspiracy” to the hospital staff.
I formed the view that this unconvincing oral evidence betrayed a willingness to make statements which were opportunistic and ill conceived attempts to attenuate the impact of objective evidence from third party sources which he thought would damage his case.
Overall, I concluded that the father’s evidence was likely to be distorted by his conviction of a conspiracy against him involving the mother, which as explained later, I consider was exaggerated in his mind, and resulted in an embedded antipathy towards her. It became clear he harboured a sense of outrage at the behaviour of the mother, who formed several relationships with other men during the marriage. The father clearly remained convinced that allegations about him made by both children, but especially X, were orchestrated by the mother and one of her boyfriends. He was adamant that all allegations about him were untrue and he had done nothing which could cause distress to X, in particular. This position betrayed a clear lack of insight about his own conduct. I will return to this later in these reasons.

The mother began working at L Company in 2019 and continues to work there. The mother was cross-examined. She conceded infidelities during the marriage which did not reflect well on her. She also conceded that she lied in her affidavit, as explained later in these reasons. I formed the view that she likely exaggerated some of her allegations about the father, and there was no doubt she engaged in conduct which fed the father’s belief in a conspiracy. I am satisfied the mother recognised the impact that her behaviour has had on the father’s psychology. Despite these problems, overall, she impressed me as a more generally reliable witness than the father.
The children live with the mother in the former matrimonial home at M Street, Suburb N. This is a four-bedroom home. She typically works from home but spends one day each week in an office. Her niece, Ms O, who is 20 years old and in Australia on a Study Visa, has been living in the house since February 2023.
The material relied upon by the parties and tendered into evidence is set out at Schedule 1 to these reasons.
PROPOSALS AND ISSUES IN DISPUTE
The father proposes the mother have sole parental responsibility for the children, subject to notifying him of any long-term decisions and seeking his input, and consulting about any change in schooling by submitting a list of three proposed schools from which he can select one. In relation to X, the father proposes either an order that she spend time with him by agreement with the mother or to coincide with time spent by Y, or, as a fall back, she spend time with him in accordance with her wishes.
In relation to Y, the father proposes that during school term he begin spending half an hour with the father between 6.00 pm and 6.30 pm each Wednesday and Saturday for four weeks, followed by five periods of six weeks during which time progresses incrementally to overnight until Y spends each alternate week with him from after school Friday to before school on Monday. The father then proposes that Y should begin spending block time from Term 3 2024. He also proposes specific orders for special occasions and holidays such as Easter. He also seeks an order that the children undergo a parentage test pursuant to s 69W of the Act. The father’s detailed proposal is set out in Annexure “A” to these reasons.
As part of his proposal to bring about a reconnection between himself and Y, the father proposed family therapy.
The mother seeks sole parental responsibility, and proposes the children live with her and spend no time with the father, with a restraint upon him contacting or approaching her or the children. She seeks orders permitting her to relocate to Melbourne and the removal of the children’s names form the Airport Watchlist. The mother’s detailed proposal is set out in Annexure “B” to these reasons.
The ICL also proposes the mother have sole parental responsibility, the children live with her and spend no time with the father. The ICL also proposes that the children be permitted to travel outside Australia. The ICL detailed proposal is set out in Annexure “C” to these reasons.
Section 61DA of the Act requires the Court, when making any parenting order in respect of a child, 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 the child. As can be seen, there was no dispute that sole parental responsibility should be allocated to the mother, except that the father wants an order for her to consult with him on decisions about major long-term issues. I am satisfied the presumption does not apply because, as will be discussed later, either there are reasonable grounds to believe that a parent of the child has engaged in family violence or it is rebutted on the evidence in the best interests of the children.
The parenting issues were therefore narrowed to the following:
(a)Whether the mother should be required to seek the father’s input on the choice of schooling for the children;
(b)Whether X should be ordered to spend any time with the father, or simply spend time with him in accordance with her wishes;
(c)Whether any orders should be made for Y to spend time with the father, and if so, whether such time should progress to overnight, block holiday time and special occasions;
(d)Whether the mother should be permitted to relocate; and
(e)Whether the mother should be permitted to travel outside Australia with the children.
EXPERT EVIDENCE
The Family Report, marked Exhibit “8”, and dated 7 April 2021, was based, as described by Dr E, on the material filed by the parties so far in the proceedings, the Child Dispute Conference Memorandum, some documents produced under subpoena and the interviews conducted, as set out at the commencement of his report.
I will refer to the content of the Family Report as necessary during the course of these reasons.
The ICL also tendered two reports of Ms B, Registered Psychologist, dated 8 February 2022 and 10 November 2023 (Exhibit 3). Ms B had regular consultations with the children. She was not cross-examined.
Family Report Recommendations
Dr E made recommendations at paragraph 252 of the Family Report as follows:
1.Sole parental responsibility for the mother.
2.For the children to remain in the mother’s primary residence.
3.For [X’s] wish to have no further contact with her father and paternal family to be accepted with no orders made for her.
4.For regular unsupervised contact to be established for [Y]. Initially, this should be day-only contact one day each weekend. After three months, this could be expanded to contact for day-only contact on alternate weekends for Saturday and Sunday. After a further three months, this could be expanded to full weekend including overnight contact. After a further six months, this could be extended to pick-up after school on Friday and return to school on Monday morning. Such arrangements should be contingent upon the father’s ability to be available during these hours. It was noted that to date he had not been available on a consistent basis to transport the children to and from school.
5.The following arrangements should be contingent upon the undertaking of both parents to ensure that there is no denigration of the other parent or members of their extended family.
6.The children would benefit from attending psychological intervention with an experienced Child, Adolescent and Family Therapist. The referral could be made by the local GP to enable this to be supported by Medicare. Ideally, this should involve the participation of both parents. That said, [X] was identified to have specific needs for confidential therapy to work through her exposure to family conflict and related violence.
7.The children should attend a single general practice. Both parents should be informed of relevant specialist referrals.
8.It would be beneficial for the children to remain in their current school placements. It should be recognised that they have already been exposed to repeated experiences of separation and loss. This will be amplified by further changes of area and school placement.
In his oral evidence at trial Dr E changed these recommendations. While he continued to support sole parental responsibility for the mother, and for the children to live with her, and for no orders to be made in respect of X, he abandoned his recommendation for Y to spend time with his father, and expressed the view that there was no longer any utility in a proposal for family therapy for Y to reconnect with the father. It should be stressed here that Dr E adhered to this view even if the Court was to conclude the mother had alienated Y from the father by a deliberate course of conduct. I will consider these recommendations more fully later in these reasons.
The children
X is currently 16 years of age. She attends P School and at the time of final hearing was in year 10. She has achieved consistently high academic results since at least 2022.
Y is 12 years old and will begin at high school in 2025. He presently attends Q School and at the time of the final hearing was in year five. He appears to be progressing well at school. In 2021, Y received a school award. In 2022, he obtained band 8 or above in all NAPLAN testing results. In 2023, Y became a student leader and received a sporting award. Since 2021 he has consistently received various other awards.
LEGISLATIVE FRAMEWORK
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper, subject to the provisions under s 61DA and s 65DAB.
The best interests of a child are the paramount consideration (s 60CA of the Act). They are to be determined by an examination of the considerations as set out in s 60CC of the Act. In Tibb v Sheean (2018) 58 Fam LR 351 at [68]–[69] (“Tibb”), the Full Court made clear that while the Court must “consider” each of the primary and additional considerations in s 60CC, express discussion is not necessary. I have given careful consideration to each of the primary and additional considerations as they may relate to the issues and circumstances of this case. The way the case was put and the evidence and argument of the parties in light of the narrow issues mean I will discuss the considerations only to the extent necessary.
I turn then to the best interests of the children.
PRIMARY CONSIDERATIONS
In order to determine the child’s best interests, the Court must first have regard to the “primary considerations” under s 60CC(2) of the Act, which 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 in subsection 2(b) (See s 60CC(2A) of the Act).
Section 60CC(2)(a), the benefit to the children of having a meaningful relationship with both parents
The Full Court of the Family Court of Australia in Sigley v Evor (2011) 44 Fam LR 439 endorsed the following propositions concerning s 60CC(2)(a):
(a)A “meaningful relationship” is one which is “important, significant and valuable to the child” (Mazorski v Albright (2007) 37 Fam LR 518; McCall & Clark (2009) FLC 93-405 (“McCall”));
(b)A “prospective approach” is the preferred approach to s 60CC(2)(a), requiring the Court to “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” (McCall at [118]–[119]); and
(c)The legislation aspires to promote a meaningful relationship, not an optimal relationship (M & S (2007) FLC 93-313; Godfrey & Sanders (2007) 208 FLR 287; Champness & Hanson (2009) FLC 93-407).
There was no dispute the children’s relationship with their mother is important, significant and valuable and this should continue into the future.
In light of the fact they have spent no time with him since August 2020, the evidence suggests neither child presently has any positive relationship with the father. A central question, therefore, is what benefit either child would receive from a meaningful relationship with him, and whether any orders of this Court could properly create the framework to allow such a relationship to grow. The father’s view was clear that all children need a father in their lives. Generally speaking, any child benefits from a relationship with a parent if it is “important, significant and valuable”. But in the circumstances of this case, as these reasons will make clear, it is difficult to conceive of orders which would ensure such a relationship with the father. Both children are strongly negative about the father and spending time with him. I have considered the position of each separately as well as jointly in this regard.
In light of her age and views, and the conclusions I reach below under s 60CC(2)(b), I cannot see any prospect of X forming a fresh relationship with her father which is meaningful, unless she initiates contact and seeks such a relationship herself. It is worth emphasising here that the interim regime which has been in place since 10 August 2021 is for X to spend time with the father in accordance with her wishes. She is now 16 years old. This reality militates against orders which would compel her to spend time with the father against her wishes.
In the case of Y, the position is more complicated but as will be explained, I am unable to conclude there is any parenting regime which could allow a prospective meaningful relationship either to return or come into being between him and the father, while also protecting him from the risk of psychological harm. I have come to the view that the father presents a risk to the children if they spend time with him. The negative views of the children are discussed below under s 60CC(3)(a). The closeness of the relationship between the children militates against any orders which would see Y spend time alone with the father, as discussed below under s 60CC(3)(d). The parenting capacity of the father is also discussed below under s 60CC(3)(e), but I am satisfied he continues to hold such a negative attitude towards the mother that any contact between the child and him risks undermining that child’s relationship with the mother. Therefore, I am unable to conclude that either child could benefit from a meaningful relationship with both parents.
Section 60CC(2)(b), the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There were allegations of abuse and family violence made by each party against the other. I do not consider it necessary to rehearse all the allegations or make extensive findings. Family violence includes violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. Abuse includes sexual assault, involving a child in sexual activity and causing a child to suffer serious psychological harm. The Court must ensure that any orders it makes does not expose a person to an unacceptable risk of family violence (s 60CG of the Act).
Although the father maintained in his oral evidence that the mother may still have psychological problems, there is no reason to conclude on the evidence that the children are at risk in the mother’s care from either abuse or family violence. Both parties and the ICL agreed the children should live with her.
The position regarding the father is rather different.
In summary, the mother claimed the father forced her to participate in unpleasant and coercive sexual activity during the marriage against her will. She claimed the paternal grandmother bullied her. She considered leaving the marriage while the parties lived in the United Kingdom but felt too scared to leave. A provisional ADVO was made for her protection in 2015, but she claims she withdrew it under pressure from the father. She claimed he was financially and socially controlling. She also suggested he may have had a hand in the death of the parties’ first child W, burned down a property owned by the father and sent anonymous denigrating letters to her employer.
The father’s case was that the mother made up all her allegations about him.
He pointed out she had engaged in several other relationships both during the marriage and after separation. The mother conceded that she had affairs with two men between 2015 and 2020. She agreed in cross-examination that there was no physical chemistry between her and the father during the relationship and she developed a strong emotional bond with someone called Mr R. Notes of a counselling session on 13 December 2018 record that the mother said she struggled in the marriage from “day 1” but “love is very important to her” and “she needs the love feedback loop which she does not get from her husband” (Exhibit 14, p.123). However, the notes from this period do not mention violence towards her by the father, as she conceded in cross-examination.
At the point of separation in February 2020 the mother conceded she was in a relationship with a man called Mr S, which existed between early 2019 and mid-2020, when she made complaint to the police concerning controlling behaviour and sexual assault perpetrated by Mr S. Mr S was charged with criminal offences in mid-2020. In her trial affidavit, the mother claimed the parties separated on 3 February 2020 “when I fled the former matrimonial home with the children” (filed 21 November 2023, paragraph 6). The mother agreed in cross-examination that she used the word “fled” to indicate fear of the father, but also agreed he was interstate on that date. She agreed that she had arranged with Mr S to leave and withdrew $270,000 from the parties’ offset account.
The father put at the forefront of his final submissions the claim that Mr S had concocted an “end-to-end” strategy in conspiracy with the mother for the purposes of the family law proceedings, the purpose of which was to maximise the financial settlement to her and exclude the father from the lives of the children, with the ultimate objective that Mr S and the mother could make a life together.
However, I observe here that because the mother suffered abusive behaviour at the hands of Mr S and she terminated the relationship with him in mid-2020, the alleged ultimate objective of the supposed strategy, and any conspiracy, ended at that point, even if it had existed before then.
The mother was cross-examined to the effect that all her allegations of abuse or violence at the father’s hands were part of the strategy. One allegation she made in an affidavit filed on 13 February 2020 concerned the first child of the parties called W who had passed away. The mother gave evidence in the affidavit to the effect that the father may have been responsible for W’s death. She conceded in cross-examination this was a lie. The father tendered a COPS report of an incident after separation in mid-2021 when police were called to X’s school because a person, likely the father, had been seen standing near the school fence (Exhibit 14, p.110). The report records that police contacted the mother and states:
Police have contacted the NOK of the child being the mother who advised Police that she has not had any issues with the child’s father and did not believe it would be him. In addition, although the matter is going through family law court the mother advised she has no fears for the safety of herself or the child with the father having no adverse history.
(Exhibit 14, p.110)
This evidence is not consistent with many of the mother’s allegations about the conduct of the father before and after separation.
The father maintained a resolute position that he had done nothing which could have caused the children distress, and they had no reason to be afraid of him. He clearly believed that their negative views about him were the result of a careful plan and coaching by the mother, in concert with Mr S. He even denied that they truly held negative views about him. In his oral evidence, he claimed X was the “most damaged” by the conflict between the parents, but she was both “my sister and my daughter”. By this he appeared to convey a perception that he and X were very close. When questioned by counsel for the ICL, he agreed that X wanted to leave, but said “she was smiling like she was hiding something”, “she has been taught” to say negative things about the father and also that “she was lying to protect her mother”. He maintained X would really be quite comfortable to spend time with him and he had “done nothing” to make her distressed. He also claimed that family therapy with him would dispel any resistance the children may feel towards being or spending time with him.

In his interview with Dr E in March 2021, the father claimed X had been exposed to domestic violence perpetrated by the mother’s lovers. At paragraph 16 of the Family Report, Dr E recorded:
16. [The father] spoke about [X’s] humble, helpful and humanitarian nature. The report writer indicated that, at the age of 13, her wishes would be respected. [The father] responded that he was 100 percent sure that she would say that she wished to live with her mother. He saw this as the consequence of being emotionally weak due to what she had witnessed. He wished her to understand that he had done his best to protect her from her mother.
By contrast in her interview with Dr E, X said:
90. When asked to tell me about her family, [X] provided a fulsome account of her experience, “I will start by saying when we were meeting friends, our house scenario was very difficult. We had to get permission to do anything. [The father] used to not let us do anything. He just wanted us to stay at home. Even when visiting my best friend, I was very limited with time and he was very mad when we came home. He would still get mad with me and my mum. He would just shout and get mad when we interacted with anyone. And when our friends or someone came over to our house, he would just ask, “When are they leaving? When are they leaving?”
91. …
92. “That’s about it. I don’t know. It’s very hard to describe the emotions that went through me. Even when I did a school project he would say, why don’t you do it alone? I can remember once we were coming home from my friend’s house and we spent some extra time there and he was shouting at my mum. He was shouting at me. It was basically a very tense scenario. I remember that I had to make [Y] sit in a room because he was very frightened. [The father] and [Ms T] were just ganging up and it wasn’t very nice. It’s everyone’s right to meet who they want and to interact. It’s a basic human right. It just didn’t feel safe.”
Dr E recorded the following about Y:
69. [Y] spoke to his family portrait which depicted his mum, [X], and himself. He told me that they felt relaxed together. There was nothing he did not like about spending time together. He explained that he never got bored because he could stay in his room and do stuff. There were too many things to count about what he liked about his mother. There was nothing he did not like about living with her. He smiled as he spoke about feeling fine with [X].
70. When asked about his previous experience living with his father and paternal grandmother, he referred to his father as “aggressive. He has a hairy chin. I can only use the word aggressive because he gets angry. He hurts my mum. He pushes her and stuff like that.” There was nothing he liked about his dad. He had witnessed this a lot, “Just like hurting her, like fighting, I guess.” He told me that he had not seen his father recently. When asked why this was the case, [Y] responded, “I don't know. Because I have lots of homework and stuff to do.” When asked about his paternal grandmother, [Y] responded, “I don't know what to tell. It's not that good because my dad gets involved and then he starts another fight with my mum.”
…
79. [Y] readily identified an angry face. He denied that he felt this way, but immediately identified the face as representing his dad as his dad was angry 12/10. He explained, “What he pretty much does is to fight with my mum and say rude words.”
Mr U swore an affidavit in the mother’s case, filed 24 November 2023. He and his wife were friends of the parties and socialised with them.
Mr U deposed that sometime in 2018 the father told him “[b]ehind your neck [sic], [the mother], your wife, you brother’s wife and four others are running a prostitution business at my house illegally” (Mr U’s affidavit filed 24 November 2023, paragraph 10). He also deposed:
11. On a number of occasions, [the father] said to me that [the mother] was a “whore” and a “prostitute.” He also said that she has “sexual problems” “I search a lot on google and I check with the doctor.”
(Mr U’s affidavit filed 24 November 2024)
Mr U gave evidence that he witnessed the parties yelling at each other, the mother crying, the father holding her arms, after which she and the children went to Mr U’s house for a few hours. He gave further evidence that:
18. After [the father] had left, [Ms V] told me “[the father] said to [the mother] we will do the family matter, but you have to sleep with me.” I felt sick hearing this, as I have two young daughters in my house. I told [Ms V] he is not allowed to come to this house.
19. Sometime in or about 2020, around the time that [the mother] and [the father] separated. [The father] called me and invited me over for tea. I went to [the father’s] house and we had tea, we were talking for about 30 minutes to an hour. I remember that we were laughing and had a good time. However, [the father] told me to come into his bedroom and he showed me [the mother’s] tampons, and he said to me “I think they do sex with that.” He also showed me [the mother’s] underwear and bras, and said “look at the type of clothing she is wearing.” I said to [the father] “I don’t want to see it man, that’s none of my business” and I walked out of the room. A couple hours later, [the father] video called me. I could see from the video and he showed me that he was sitting on bed at hospital. I asked him what had happened, but he responded with “you know, you know.” I responded, “I know nothing, we were laughing, what happened?” [the father] said “don’t worry.”
20. Shortly after and that night, I received a call from a doctor asking whether I had noticed anything off about [the father] or whether he was suicidal. I told the doctor a couple hours ago, I had seen him and we had been laughing.
(Mr U’s affidavit filed 24 November 2023)
From about mid-2020, the mother and the children stayed with Mr U and his wife. He gave evidence that he observed the following:
16. Around the time that [the mother] and the children started staying at our house, I called [the father] and told him what had happened. [The father] came over and was sitting at our dining table. When [Y] saw him, he immediately kicked him and said “who is this man? Why is he here? I don’t want to see him” [the father] was trying to hold him and was saying “[Y, Y]” but [Y] then went to the other room and did not come out until [the father] left. Similarly, [X] was standing near the dining table chair on the other end of the dining table where [the father] was sitting. [The father] said to her “what you have told FACS take your words back”. [X] was very uncomfortable.
(Mr U’s affidavit filed 24 November 2023)
Mr U was cross-examined. While his memory was uneven at times, he adhered to his evidence and rejected any assertion it was false or that he was lying. The father pointed to no persuasive reason as to why Mr U should be treated as unreliable. Overall, I accept his evidence. I am satisfied that it supported the conclusion that by the time of separation both children responded unfavourably to the father, and it is likely the father held an unhealthy fixation on what he perceived to be the mother’s sexual transgressions.
I accept the mother was under the influence of Mr S for about a year until mid-2020 and was compliant with a course of conduct he promoted to help bring the marriage to an end. The mother accepted as much in her cross-examination. I am also satisfied, however, that she was vulnerable to his control because of her unhappiness in the marriage with the father. To the extent any “strategy” was promoted and carried through, I do not accept this went beyond about mid-2020.
I also accept that the mother has likely overstated her allegations about the father in ways which do not reflect any credit on her. Many of them are of a very serious kind, such as, suggesting the father had a hand in the death of W, or molested X. I do not accept these allegations have been substantiated. The mother’s final submissions are consistent with this conclusion. She eschewed any argument that the father posed anything other than a risk of psychological damage.
It was put to the mother in cross-examination that she took calculated steps at the point of separation to manoeuvre herself into the best position for a substantial property settlement and alienate the children from the father. I do not fully accept her denials. The mother’s concessions about her behaviour during the marriage support the conclusion that she had long been equivocal about staying with the father.
However, I do not accept that father’s contention about an “end-to-end” strategy. The father’s argument is that despite the ultimate objective of the purported strategy, that is, a life with Mr S, disappearing through the ending of her relationship with Mr S in mid-2020, the mother continued maliciously to carry out the strategy for the purpose of excluding the father from the lives of the children for years afterwards. I consider this to be implausible and not supported by the evidence. I reject the father’s submission that his relationship with the children has in fact been the victim of some strategy of alienation perpetrated by the mother, which somehow managed to cause the children to change their perception of the father as always kind and loving up to the point of separation, into an angry, threatening and malign figure after separation.
On the contrary, I have set out above evidence, which I accept, that the children’s lived experience of the father during the marriage gave them cause to fear him, and perceive him as an aggressive, angry person.
However, perhaps more to the point from the children’s point of view, I am satisfied that the father firmly continues to believe he has been the victim of this strategy and this belief would find expression in his interactions with either child if they were to spend time with him.
The mother contended that although the children were not at risk of physical harm from the father, she argued they were at risk of psychological and emotional harm, primarily by reason of the father’s continued vindictive attitude, and his inability to contain his animosity towards her, which created an unacceptable risk that he would use any time with either child to undermine their relationship with the mother, who is their primary carer.
I accept this is correct, even though the mother’s behaviour was clearly responsible, at least partly, for this state of mind. I am persuaded that the father continues to hold considerable enmity and bitterness towards the mother. His oral evidence revealed that he remains fixated on what he believed to be her extensive past infidelities, and his conduct since separation until trial suggests he remains in thrall to a belief that the mother stands at the centre of a wide‑ranging conspiracy to disseminate a pernicious and wholly wrongful narrative about him.
Irrespective the mother’s past behaviours, the question here is the best interests of the children, and whether the father would pose a risk to either of them. Whatever criticism may be made of the mother, the fact is that the children have been living in her sole care for some three and a half years and are doing well in their development. I am satisfied that one of the father’s motivations for seeking time with the children and particularly Y is to gain the opportunity to correct and counteract his belief in the existence of the mother’s negative narrative. I am satisfied that it is more likely than not that he would use any time spent with either child to engage in unremitting denigration of the mother and an obdurate counternarrative promoting his own virtues as a parent. Consequently, I find that any time with the father would expose the children to an unacceptable risk of psychological harm in this sense.
In reaching conclusion I have taken into account the evidence of Dr E that there are risks to Y in particular from no relationship with the father, including lack of a role model of loving and respectful relationship, and a detrimental impact on his sense of emerging identity. I am not satisfied these risks are sufficient to outweigh the identified risks of psychological harm posed by the father having contact with Y.
ADDITIONAL CONSIDERATIONS
The Court must have regard to each of the “additional considerations” under s 60CC(3) of the Act, separately, to consider how, together, they should give effect to either or both of the primary considerations in order to determine a child’s best interests. These are as set out below:
(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;
Where there is evidence of the views of the children, the Court in the exercise of discretion places importance on those views depending upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [34]–[35]).
The evidence showed that X is a reflective and mature teenager. The father accepted she was mature at one point in his oral evidence, then seemed to qualify this by saying she was mature “academically”. I have accepted above that she is mature and that her views deserve weight. In her comments to Dr E she expressed a belief that she was not treated fairly by the paternal grandmother, who was old fashioned in her beliefs, because she is a girl.
For his age Y is happy and progressing well at school. The evidence of Dr E was that he was immature despite his high intelligence. In the Family Report, Dr E stated that Y was reluctant to express any wish regarding contact with his father and didn’t appear to have a preference in relation to having weekend overnight contact and extended school holiday visits. At the time of the Family Report interviews in March 2021, Y reported that he had been exposed to parental conflict and the father’s anger and appeared to Dr E to be confused by the father’s calm and respectful engagement throughout the family observation.
In her report of 10 November 2023 Ms B recorded that Y had progressed well at school and socially and in particular at p.3 that:
[Y] maintains that he does not wish to have any contact with his father. His anxiety surfaces only around having contact with his father and if he will be ordered by the court to have contact with his father. This is his biggest fear and cause of anxiety. So, his anxiety is situational mainly around contact with his father and interviews with various experts around contact with his father.
Ms B described a range of negative responses in Y when the issue of time with the father is raised, such as difficulty sleeping, low mood and anxiety.
She also recorded that X did not wish to see her father and was distressed at the thought of Y being forced to see his father against his wishes because “[s]he strongly believes that [Y] will be negatively impacted by the father” (Report dated 10 November 2023, p.5).
I have also already set out some evidence of the children’s views about their father above under s 60CC(2)(b). The children have expressed clear views. They do not wish to spend time with their father. The age and acknowledged maturity of X mean I gave considerable weight to her views. I do not accept her views as expressed are not truly held by her or merely the result of pressure and coaching by the mother.
I accept that the evidence suggests that in the past there may have been some equivocation in the views expressed by Y about spending time with the father, but then those views deteriorated between 2021 and 2023. I note that during this time Y was in the sole care of the mother. The mother claimed he became anxious at the prospect of seeing the father at supervised visits. There was clear evidence that by January 2023 Y was so oppositional to spending supervised time with the father that Z Contact Centre declined to offer its services for supervised time. By the time of trial Y was almost 12 years old. I accept that his views are now clear and I give them weight. Again, I do not accept his views as expressed are not truly held or merely the result of pressure and coaching by the mother.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
The children have a warm, close and loving relationship with the mother. She is closely involved in the day-to-day aspects of their lives. I have already described important aspects of the children’s relationship with the father. They do not appear to have any residual relationship with the father.
(ii) other persons (including any grandparent or other relative of the child);
While the evidence was a bit unclear, I find that the children do not have a close relationship with the paternal grandparents. There was evidence that X viewed the paternal grandmother in particular as “not a nice lady” (Family report, paragraph 98). She reported to Dr E that the paternal grandmother would make her get Y to shower, brush his teeth and make his milk in the microwave. She appeared to be isolated while in the care of the paternal grandmother, who would take Y to visit neighbours’ homes while X was left at home alone.
The maternal grandmother no longer resides in Australia, however the children reported a positive and loving relationship with her.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
The mother has cared for and made decisions about the major long-term issues for the children, spent time and communicated with the children, since separation. The father has not been involved since separation.
(ii) to spend time with the child; and
Pursuant to orders made on 25 October 2021, the father was to spend supervised time with Y. However, despite times being organised by J Contact Service, the father cancelled this contact and it never happened. He claimed in his evidence that he cancelled the contact on legal advice, although this was not explained further.
The mother gave evidence that Y was happy at the cancellation of the supervised visits. The father pointed to this as evidence that the cancellation caused him no distress. In his oral evidence, Dr E pointed out that the cancellation of this contact would likely have left Y confused, because he would have prepared for it, and played into the narrative of the mother and X about the father.
To the extent the father’s submission was intended to suggest his cancellation of time with Y was of no consequence, I reject it. I infer from the evidence of the mother, which the father accepts in this regard, that Y preferred not to see his father. Nonetheless, this does not exclude a negative impact on Y by reason of the cancellation, as identified by Dr E. Indeed, in cross‑examination by counsel for the ICL the father agreed that Y would have been disappointed by the cancellation of supervised visits.
(iii) to communicate with the child;
The father has not had much opportunity to communicate with the children since separation.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
Neither party made this a relevant issue.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
I am satisfied that separation from the mother would cause significant distress to both children.
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There was clear evidence that X and Y are close as siblings. Dr E in his oral evidence gave the opinion that if Y was forced to have contact with the father without X, this would distress her and thus distress Y. In questioning from the bench, the following evidence was given:
[HIS HONOUR]: And is it realistic, in the circumstances of these children, to consider a regime where [Y] would be the subject of coercive orders to spend time with his father and his sister is not, and she will not spend time with him?
[DR E]: No, I don’t believe it is.
(Transcript 1 December 2023, p. 29 lines 20–23)

When questioned by counsel for the father, Dr E gave this further evidence:
[COUNSEL FOR THE FATHER]: … The risk that would be occasioned by forcing [Y] to spend time with the father would be ultimately to cause some damage to the relationship between [Y] and [X]; correct?
[DR E]: No, I think that it goes beyond that, in that it’s about how kind of realistic it would be for that to evolve, given everything that has been happening over the past two and a half years. In that if [Y] was forced to have contact with his father and that raised any concern for him, his sister would be likely to be distressed by that, and to support him in not having contact with his father. That would create difficulty, greater difficulty for [Y], because I think that it’s not so much that [Y] forming a closer bond with his father would undermine his relationship with his sister, which is what has been put, but rather that if that was attempted or if that was forced, it would create more distress for [Y]. It would be more likely to be unsuccessful. It would be more likely to be unsustainable and that it would not have the desired outcome. I don’t think that this is the type of scenario where, and certainly I’ve seen these scenarios where, you know, one child forms a strong bond with an alienated parent and the other child does not have any contact and then there’s quite a split in the nature of that relationship between the siblings. I have seen that occur. I do not think that this is one of those scenarios.
(Transcript 1 December 2023, p.29 line 40 to p.30 line 10)
(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;
Other than practical difficulties created by a relocation by the mother, neither party pointed to practical difficulties. I will return to relocation later in these reasons.
(f) the capacity of:
(i) each of the child’s parents, to provide for the needs of the child, including emotional and intellectual needs
I am satisfied the mother has an adequate capacity to provide for the needs of the children.
For the reasons already given above under s 60CC(2)(b) I conclude the father’s capacity to meet the emotional and intellectual needs of the children is severely compromised. I am satisfied the father, if he spent time with Y would be unable to contain his impulse to denigrate the mother and seek to rehabilitate himself in the eyes of Y by doing so.
(ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
This is not relevant.
(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;
The parties and the children are from a Country D background. I accept that this may have informed some of the attitudes of the parents to their roles as parents, but on the evidence it is difficult to be precise about this. Neither party made any submissions which focussed on their Country D background.
In her comments to Dr E, X expressed a belief that she was not treated fairly by the paternal grandmother, who was old fashioned, because she is a girl. I infer this implicitly makes some reference to cultural attitudes held by the grandmother.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each child’s parents;
I have nothing to add here beyond what is said under s 60CC(3)(f).
(j) any family violence involving the child or a member of the child’s family;
I have nothing further to add beyond the discussion above in connection with s 60CC(2)(b). I have made no findings of family violence. In light of this, s 60CC(3)(k) is irrelevant.
(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;
It is preferable to make orders which are least likely to lead to the institution of further proceedings. I do not consider the father’s proposed order for consultation with the mother about decisions concerning major long-term issues would help achieve this outcome. I accept her submission that such an order is likely to promote more disputation and therefore make litigation more likely.
I am satisfied the proposed orders are least likely to lead to further litigation.
(m) any other fact or circumstance that the court thinks is relevant.
I have nothing to add here.
LIVE WITH
As discussed above, it was not in contention that the children should remain living with the mother. I am satisfied that it is in the best interests of the children for orders to be made that the children live with the mother.
TIME WITH THE FATHER
In light of the discussion of the statutory considerations, I am not satisfied any order should be made for either child to spend time with the father. Dr E was clear that he did not support supervised time or family therapy to facilitate either child reconnecting with the father.
The children have not seen their father for some three and a half years. I have found he would present a risk to them if they were ordered to spend time with him. It would also have an adverse impact on the mother who is their primary carer. I find that the father does not have insight into the present state of mind of the children and the real difficulties in making any orders in their best interests for time with him.
The views of X should be respected and there should not be any order compelling her to spend time with the father against her wishes.
Although I have taken account of risks to Y of no relationship with his father, identified by Dr E, on balance I am not persuaded any orders should be made for him to spend time with the father. I find that there is no secure basis in the evidence to find that Y could without distress spend time with the father separately without X. I accept that Y has no desire to see his father.
I have considered the report of Dr C dated 2 June 2022 (Exhibit 7) with regard to family therapy. He did not recommend family therapy for the parents because the mother would find it “triggering” and the father “might find it difficult” not to use family therapy as a forum to make allegations against the mother (Exhibit 7, p.5). Dr C did express the cautious view that “[t]here is some possibility, in my opinion, that [Y], provided supervised visits go well, would benefit from family therapy between him and the father only” (Exhibit 7, p.5). But Dr C was clear that he did not support family therapy between Y and the father in advance of supervised visits. By the time of trial, it was plain supervised visits not only did not go well, in fact they did not happen at all.
In his oral evidence Dr E expressed following views consistent with Dr C:
[DR E]: … However, it is my understanding, based on the opinion expressed by [Dr C], regarding family therapy – it was his clear view that it was not appropriate to commence family therapy prior to there being a re-establishment of contact with the father. That failed to occur. It was clear from [Ms B’s] notes – clinical notes, and from the mother’s account of her experience of both children and, in this particular case, with regard to [Y], that he was distressed and unwilling to re-establish contact with his father. Given that – given those circumstances, and given that he is now two years older, that when I – from when I saw him, he is now approaching 12 years of age, commencing high school, I think it would be inappropriate to make orders contrary to his clearly-expressed wishes and his reported experience. So I no longer recommend the re-establishment of contact with the father.
(Transcript 1 December 2023, p.9 lines 23 –34)
[DR E]: And specifically just to clarify what I meant by family therapy, family therapy to support reintroduction of [Y] with his father. There may be a place for further family therapy to – which has been provided to date, to support [Y] in managing his circumstances, in the family relationships with the mother. So there may be some place for further family therapy in that regard and that will be a matter for decisions to be made between the mother as the primary carer and parent with parental responsibility and the therapist. I am specifically stating that I do not, like [Dr C], I do not recommend family therapy involving the father.
(Transcript 1 December 2023, p.11 line 20–35)
[DR E]: I don’t think there is any prospect of family therapy to support a co-parenting relationship between the parents and certainly no capacity to resolve issues between them from the past given the parents’ respective positions with regard to that. With regard to family therapy with the broader family unit, [X] is of an age where her wishes should be respected. As I stated two years ago, she is clear in her wishes. They have been consistent, that she does not wish to have further contact with her father in any form – she finds that idea distressing, and with regard to [Y], the information that I have been provided is that his position has shifted from the openness that I saw two years ago, to there being a – according to the mother, evidence that he has been distressed and agitated with regard to the idea of contact – that’s documented in the records of [Ms B], and if that is factually correct, it would be inappropriate to force contact with him – between him and his father, either in a contact arrangement – supervised or otherwise, or in the context of family therapy. And as I stated, [Dr C] formed the view that that would be not viable without there being pre-existing contact between [Y] and his father.
(Transcript 1 December 2023, p.12 lines 5–19)
I accept the evidence of Dr E that there is no viable pathway through family therapy to reconnect Y with the father.
RELOCATION
As noted, the mother has sought orders that she be permitted to relocate to Melbourne. She gave evidence that she has a large circle of friends in Melbourne and she could move to the Melbourne office of L Company. She said X wishes to attend a university in Melbourne.
Orders formulated in terms giving “permission” to a parent to live in a particular location have been criticised by the High Court (AMS v AIF (1999) 199 CLR 160 at [188] per Kirby J and at [217]–[218] per Hayne J (“AMS v AIF”); see also Wagstaff & Wagstaff (2022) FLC 94-098 at [11]–[15]). A parent is entitled to live where they choose and need not demonstrate “compelling reasons” to live where they propose to live (AMS v AIF; U v U (2002) 211 CLR 238 (“U v U”); Adamson & Adamson (2014) FLC 93-622 at [65]–[66]). However, since the best interests of the children are paramount, and whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the paramount consideration (U v U at [89]). It is clear that relocation cases are to be determined as any other parenting case (Fitzroy & Fitzroy [2009] FamCA 954 at [16]; Morgan & Miles (2007) FLC 93-343 at [72]; Sayer v Radcliffe (2012) 48 Fam LR 298 at [47]–[48]). Any exercise of a power to restrain the mother from relocating is governed by the considerations applicable in any parenting case.
Since the mother will have sole parental responsibility for the children, they will live with her and spend no time with the father, she will be able to relocate to Melbourne if she chooses. No Court orders will prevent this from happening.
PATERNITY TEST
Order 6 sought by the father is in the following terms:
That pursuant to section 69W the Court Orders that the children shall undergo parentage testing in order to establish paternity.
The mother denied any possibility that someone else could be the biological father of the children.
The discretion in s 69W requires that parentage must be “in issue in the proceedings”. There must be evidence that places parentage in doubt and the father must hold an honest and reasonable belief as to that doubt (TNL & CYT (2005) 33 Fam LR 167 at [33]–[34]). The doubt nursed by the father here arises from the admitted infidelities of the mother. However, to be reasonable in relation to X the doubt would need to relate to the period in 2007 when she was conceived and in relation to Y the period would in 2011.
It is relevant here to mention a statement given by the father dated early 2020 for Local Court proceedings against him for the ADVO mentioned earlier. After referring to the death of W in 2006, at paragraph 22 the father said:
It was a very difficult time in my life. In addition to loosing [W], I subsequently caught [the mother] with another male and became suspicious about whether [W] was my biological child. [The mother] apologised for being unfaithful and asked me not to disclose this incident to her parents.
(Mother’s affidavit filed 21 November 2023, Annexure F p.82)
While it might be said that this concern is consistent with a reasonable doubt about the paternity of the children, the point is that the father was aware of the mother’s infidelity in 2006 and held doubts about the paternity of their deceased child at that time. The parties then moved to the United Kingdom in 2007. At about the time of separation, the mother confessed to the other affairs with Mr R which took place between 2015 and 2020, commencing after both children were born, and Mr S with whom she began an affair in 2019. The father claimed she admitted that she “had affairs all through the marriage” (Father’s affidavit filed 21 November 2023).
In his trial affidavit, the father emphasised the possibility that the mother had been unfaithful to him. The father states in his trial affidavit filed 21 November 2023:
149. I am also very concerned that our children may have questions about their parentage, and who their biological father is, and this will cause them ongoing psychological and emotional distress, as well as identity issues as they grow older. I believe that our children have questions about their parentage, and I do not want them to have unknowns and questions in their life. I believe they have a right to know for a fact that I am or am not their biological father. Regardless, I am their father and I want a relationship with both my children.
He continued:
154.I understand [the mother’s] concerns regarding the children undertaking DNA Testing, and I am not discounting them at all or trying to be malicious towards her in making this request. Despite this, I truly believe that the children have a right to know who their biological Father [sic] is, in the event it is not me. In the event the tests confirm I am their biological Father, I also believe that this would reinforce for the children that I am their Father [sic], when they have spent the last three years being distanced and disconnected from me, and clearly believing that I am not their Father [sic].
155.I want to be clear to [the mother] and the Court, that even if they are not my biological children they are and always will be my children, and I still want to spend time with them and have a relationship with them. I will always consider myself their father, regardless of the outcome.
The basis for doubting the paternity of the children is not strong. The mother conceded her infidelities but denied anyone but the father was the other parent of the children. I do not find the doubt about paternity is sufficiently reasonable to justify a paternity test.
But there also other discretionary reasons to refuse the proposed order. When it was put to the father in cross-examination that parentage testing may have a negative impact on the children, he denied this. He claimed that there would be no negative impact, and they must reunite with their “biological father”, thereby implicitly recognising that despite the orders he sought for time with the children, their lives should be further complicated by being forced to confront the possibility that someone else was their biological father. He proffered no explanation of how he would continue to be the children’s father in the face of their knowledge that another person was their biological father, if that was in truth the case.
In his oral evidence Dr E was asked about paternity testing and its impact on the children by counsel for the ICL:
[COUNSEL FOR THE ICL]: If it were made known to the children that their father wants to have a paternity test, what impact might that have on [X], first of all?
[DR E]: The father asserts in his trial affidavit that such testing would be beneficial for the children. I disagree with that strongly. He states that he concurrently affirms his role as always being the children’s father and always loving them as their father, and that it would be irrelevant, yet at the same time he pushes for paternity testing. It’s my understanding that that has been an unstable position of the father, that there are times when he has pushed for that, and times where he has not. However, if [X] is aware that her father wants to have paternity testing, it would be my expectation that [X] would interpret that as rejection, both of herself as his daughter, but particularly it would be interpreted by her – as an intelligent and sophisticated young woman, that her father does not trust or respect her mother, that implicit in that would be an understanding that the father is of the view that there would be likely other candidates for paternity, and so that could potentially raise questions about her capacity to trust her mother, even if she was offended on her mother’s behalf, and supportive of her mother. And so it would be detrimental, on many levels, to her psychological development, and certainly it would be detrimental to any capacity to experience a rapprochement in her relationship with her father as an adult in years to come.
[COUNSEL FOR THE ICL]: And for [Y], if he were to know?
[DR E]: So for [Y], I would expect him to have a less sophisticated interpretation of such information. I would expect him to feel rejected by his father, and that it would reaffirm his view that he didn’t want to have anything more to do with him.
(Transcript 1 December 2023, p.15 lines 6 –27)
I accept there is force in the father’s submissions that he has been subjected to a range of extreme allegations, some of which at least have been exaggerated by the mother, and her own behaviour has created the situation in which paternity testing is a real issue.
Yet despite casting his desire for paternity testing as something important for the children, it is clear from the father’s own evidence that the issue is also important for him. I am satisfied the father had no insight into the possibility of a negative impact on the children, despite the evidence he gave in his trial affidavit. I formed the view that he wanted paternity testing to underscore the moral turpitude of the mother, as he saw it, by reason of her infidelities during the marriage and to counter her negative narrative about him in the minds of the children.
It should also be said that the father’s proposed parenting orders assume he is the biological father. He did not explain in his evidence or submissions, except in the very general terms already mentioned, how he would relate to Y in particular, if it was demonstrated another person was Y’s biological father.
An order under s 69W of the Act is not a parenting order. But a child’s best interests are a clearly important consideration, even if not the paramount consideration (Brianna & Brianna (2010) FLC 93-437). Having carefully considered the question of paternity testing, I am not satisfied the discretion should be exercised for such an order in these proceedings. Where I am not prepared to make any orders for either child to spend time with the father, and there is insufficient doubt raised about the children’s paternity, the negative impact on the children in my mind outweighs any possible benefit to them. I will not make an order for paternity testing.
AIRPORT WATCHLIST

Since the mother will have sole parental responsibility she should have authority to obtain their passports and travel outside Australia with them.
INJUNCTIVE ORDERS
I am not satisfied the injunctions sought by the mother are necessary.
ICL’S COSTS
The ICL seeks a costs order whereby each party pays half of a total of $9,045. Both parties have been represented before me. The Court has been greatly assisted by the representation of the ICL. I will the costs order proposed by the ICL.
I consider that there should otherwise be no order as to costs.
CONCLUSION
For all the foregoing reasons I am satisfied the orders set out at the commencement of these reasons should be made.

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 Harper.
Associate:
Dated: 8 May 2024
SCHEDULE 1 – MATERIAL TENDERED AND RELIED UPON BY THE PARTIES

Exhibit Label

Document

Tendered by

1

Bundle of bank statements

RM

2

Pages 267, 271 and 286 of the ICL’s tender bundle

ICL

3

Two reports of Ms B

ICL

4

Bundle of emails between the father and Mr AA

AF

5

Emails between the mother and Mr BB dated 8 November 2021 and 27 February 2023

RM

6

Family Report prepared by Dr E dated 7 April 2021

ICL

7

Report of Dr C dated 2 June 2022

ICL

8

Pages 67-72 of the ICL’s tender bundle relating to the DCJ’s safety assessment and interview with X dated 27 February 2020.

ICL

9

Session notes of Ms B from 27 July 2022 to 27 October 2022

ICL

10

Pages W21, 103, 105, 110, and 111 of the mother’s tender bundle

RM

11

Pages W25, 119-123 of the mother’s tender bundle

RM

12

Pages W30, 143 and 144 of the mother’s tender bundle

RM

13

Father’s affidavit filed on 19 January 2021

RM

14

Father’s tender bundle

AF

Material read and relied upon by the parties
According to the father’s Case Outline filed 28 November 2023 he read and relied upon the following material:
(1)Amended Initiating Application filed 8 November 2023; and
(2)The father’s affidavit filed 21 November 2023.

According to the mother’s Case Outline filed 1 April 2024 she read and relied upon the following material:
(1)Amended Response filed 15 November 2023;
(2)The mother’s affidavit filed 21 November 2023; and
(3)The affidavit of Mr U filed 24 November 2023.

The ICL relied upon their Case Outline filed 28 November 2023 and the Child Dispute Conference memorandum prepared by Ms CC and filed 18 February 2020.
All parties filed written submissions on 4 March 2024, pursuant to earlier orders of the Court.
ANNEXURE A – PROPOSED MINUTE OF ORDERS SOUGHT BY THE FATHER
1.That the Mother have sole parental responsibility for the children of the marriage, namely: X born 2008 (“X”) and Y born 2012 (“Y”) (collectively “the children”).
2.That notwithstanding Order 1 above, the Mother shall notify the Father by way of email no less than fourteen (14) days prior to any long term decision being made in relation to either children and will consider any view put forward by him in relation to such decision.
3.That in the event either child is to change schools, the Mother shall forward to the Father an email proposing three (3) schools and, the Father shall within fourteen (14) days of such proposal nominate one school.
4.That the parties are restrained from relocating with the children from the Sydney metropolitan area.
5.That within seven (7) days of the making of these Orders, the parties shall do all acts and things necessary to arrange for family therapy to occur through DD Organisation or EE Organistion, whichever has the earlier availability, with such family therapy to be between the Father and each of the children separately.
6.That pursuant to section 69W the Court Orders that the children shall undergo parentage testing in order to establish paternity.
7.That the children live with the Mother.
8.That X spend time with the Father, as agreed between the parties and failing agreement, upon the commencement of Y’s time in accordance with Order 10 (b), the first Saturday of each month during the time the Father is spending time with Y.
9.That in the alternative to Order 8, X spend time with and communicate with the Father in accordance with her wishes.
10.That Y shall spend time with the Father as agreed between the parties and failing agreement, as follows:-
a.For a period of 4 weeks, each Wednesday and Saturday between 6 pm and 6:30 pm, by way of FaceTime/video call and, Y is to be given privacy for such call, and not in the presence of the Mother and X;
b.Thereafter, and for a period of 6 weeks, from 10 am to 12 pm, each alternate Saturday at Westfield Suburb FF or any other location as may be agreed by the parties.
c.Thereafter and for a period of 6 weeks, from 10 am to 3 pm each alternate Saturday;
d.Thereafter and for a period of 6 weeks, from 10 am to 3 pm each alternate Saturday and Sunday;
e.Thereafter and for a period of 6 weeks, each alternate weekend, from 10 am on Saturday to 3 pm on Sunday;
f.Thereafter and for a period of 6 weeks, each alternate weekend from the conclusion of school on Friday until 3 pm on Sunday; and
g.Thereafter, each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday.

11.During the NSW School Term Holidays, Y shall spend time with the Father at such times as agreed between the parties, or failing agreement as follows:-
a.In the term 3 2024 NSW School Term Holidays, in the second week, from 10 am on Thursday until the commencement of school the following week;
b.In the Term 4 2024 NSW School Term Holidays, commencing the second week from 10 am on Thursday until 10 am on Monday and continuing each alternate week thereafter until the recommencement of school in Term 1 2025; and
c.From the Term 1 2025 NSW School Term Holidays and continuing in all NSW School Term Holidays thereafter, commencing the second week from 10 am Monday to 10 am the following Monday and each alternate week thereafter.

12.Notwithstanding any other Order Y shall spend time with the Father as follows:-
a.In the event that Christmas Day does not fall within the periods that Y shall be spending time with the Father pursuant to these orders, at such time as agreed between the parties and failing agreement, between 9 am on Christmas Eve until 12 noon on Christmas Day in even numbered years and from 12 noon on Christmas Day until 5 pm Boxing Day in odd numbered years.
b.In the event that Easter long weekend does not fall within the periods that Y shall be spending time with the Father pursuant to these orders, he shall spend time with the Father at such times as may be agreed and failing agreement in odd years, from 10 am on Good Friday to 10 am Easter Sunday and, in even years, from 10 am Easter Sunday to 10 am on the Tuesday following Easter Monday.
c.That in the event Y’s birthday falls on a weekday on which the father is not already spending time with him pursuant to these orders, he shall spend time with the Father on his birthday at such times as agreed between the parties, or failing agreement, from the conclusion of school or 3 pm, which ever applies, to 7 pm.
d.That in the event that Y’s birthday falls on a weekend on which the Father is not already spending time with him pursuant to these orders, he shall spend time with the Father on his birthday at such times as agreed between the parties, or failing agreement from 10 am to 2 pm.
e.In the event that Father’s Day does not fall within the periods that Y shall be spending time with the Father pursuant to these orders, he shall spend time with the Father on Father’s Day at such times as agreed between the parties or failing agreement, between 9:00 am to 5 pm.
f.That in the event that the Father’s birthday falls on a day which Y is not already spending time with the Father pursuant to these orders, he shall spend time with the Father on the Father’s birthday at such times as agreed between the parties, or failing agreement, if on a weekday, from 3pm to 7pm and, if on a weekend, from 10 am to 2 pm.
g.At such other times and by such other means as agreed between the parties.

13.Notwithstanding any other Order, Y shall spend time with the Mother as follows:-
a.In the event that Christmas Day does not fall within the periods that Y shall be spending time with the Mother pursuant to these orders, at such times as agreed between the parties and failing agreement, between 9 am on Christmas Eve until 12 noon on Christmas Day until 5 pm Boxing Day in even numbered years.
b.In the event that the Easter long weekend does not fall within the periods that Y shall be spending time with the Mother pursuant to these orders, he shall spend time with the Mother at such times as agreed and failing agreement in even years, from 10 am on Good Friday to 10 am Easter Sunday and, in odd years, from 10 am Easter Sunday to 10 am on the Tuesday following Easter Monday.
c.That in the event that Y’s birthday falls on a weekday on which the Mother is not already spending time with him pursuant to these orders, he shall spend time with the Mother on his birthday at such times as agreed between the parties, or failing agreement, from the conclusion of school or 3 pm, whichever applies, to 7 pm.
d.That in the event that Y’s birthday falls on a weekend on which the Mother is not already spending time with him pursuant to these orders, he shall spend time with the Mother on his birthday at such times as agreed between the parties, or failing agreement from 10 am to 2 pm.
e.In the event that Mother’s Day does not fall within the periods that Y shall be spending time with the Mother pursuant to these orders, he shall spend time with the Mother on Mother’s Day at such times as agreed between the parties or failing agreement, between 9:00 am to 5 pm.
f.That in the event that the Mother’s birthday falls on a day on which Y is not already spending time with the Mother pursuant to these orders, he shall spend time with the Mother on her birthday at such times as agreed between the parties, or failing agreement, if on a weekday, from 3 pm to 7 pm and, if on a weekend, from 10 am to 2 pm.
g.At such other times and by such other means as agreed between the parties.

14.That for the purposes of changeover, save for when the parties are to collect the child/ren from school at the commencement of time and return the child/ren to school at the conclusion of time, changeover is to be in the reception area of Suburb K Police Station.
15.That the father be entitled to communicate with Y by text message, FaceTime and/or telephone at such times as agreed between the parties or failing agreement, on Wednesdays and Saturdays, between 6 pm and 6:30 pm and the Mother is to do all things necessary to encourage and facilitate such communication and provide the child with privacy during those calls, such that neither the Mother nor X be present.
16.That each party notify the other within 24 hours of any changes to their address, mobile number or email address.
17.That save for any emergency situation involving the children, where communication is to be via text message, the parties are to communicate via email in relation to matters pertaining to the children only.
18.That the parties provide a copy of these orders to any out of school care, recreational organisation or school which the child from time-to-time attends and each party is to:
a.List the other parent as well as themselves as a primary emergency contact in the event of an emergency involving the child anytime a situation arises requiring an emergency contact, together with an alternate contact in the event that neither parent is able to be reached on such occasion;
b.Authorise such out of school care, recreational organisation or school to communicate with each party on matters relating to the child’s welfare and education, including school events;
c.Authorise such out of school care, recreational organisation or school to provide notices, newsletters and reports directly to each party; and
d.Authorise such out of school care, recreational organisation or school to contact each party in the event of an emergency.

19.That the Father be at liberty to attend any school functions and events that allow for parental attendance, for Y including but not limited to concerts, school assemblies, sports days, parent teacher interviews, canteen duties and social functions.
20.That in the event the Father does attend a function in accordance with Order 12 above, he shall not approach the Mother.
21.In the event that the child/ren suffers any injury, illness or require any medical attention while in the care of a party, that party shall notify the other as soon as practicable of said injury, illness or medical treatment, but no later than one (1) hour, of the said injury, illness or medical treatment.
22.That the parties are hereby restrained from the following:-
a.Discussing these proceedings with the children or in their presence or hearing, unless required by a Court Order and showing the children documents relating to these proceedings, including reports and affidavits, and from discussing the contents of any such documentation with them.
b.Passing messages to the other parent through the children.
c.Physically disciplining the children.
d.Making any critical, disrespectful, disparaging or derogatory remarks about the other parent or any member of the other parent’s family or household to the child, or in the presence or hearing of the children, or allowing any third party to do so an such order is to include verbal, written or electronic means including email, text message, Facebook and other forms of social media.

(as per the original)

ANNEXURE B – PROPOSED MINUTE OF ORDERS SOUGHT BY THE MOTHER
1.That the mother have sole parental responsibility in relation to the children of the marriage X born 2008 and Y born 2012 (“the children”).
2.That the children live with the mother.
3.That the mother is permitted to do all things necessary to relocate the children to, and thereafter live in, Melbourne.
4.That the children spend no time and have no contact with the father.
5.Pursuant to Section 68B of the Family Law Act (1975), the father is restrained from:
a.Contacting or attempting to contact, whether through an agent or directly, the children or mother;
b.Approaching or attempting to approach, whether through an agent or directly, the children or mother;
c.Coming into 100m distance of where the children or mother live;
d.Coming into 100m distance of the children’s schools;

6.Order 5 is an order for the personal protection of the children and the mother, to which a power of arrest without warrant attaches pursuant to the provisions of Section 68C of the Family Law Act (1975).
7.The father is restrained from:
a.Producing or otherwise disseminating copies of any material filed in these proceedings to any third party.
b.Denigrating the children or mother to, or discussing any aspect of these proceedings with, any third party, save for the sole purpose of receiving medical treatment.

8.For the purposes of s11 Australian Passports Act 2005 (Cth):
a.It is noted the above orders allow:
i.The children to travel internationally;
ii.The children to live with their mother when outside Australia;
iii.The father is restrained from making an application for an Australia passport or travel-related document for the children;
iv.The children are permitted to have an Australian passport or travel‑related document provided the application for that document is made by the mother who may sign any declaration on the application in the form approved by the relevant minister.

9.The children’s passports are to be retained by the mother.
10.Within 14 days from the date of these orders, the father must do all things necessary to deliver the children’s and mother’s Country D Identification Cards to the mother’s solicitor’s office.
11.In the event the children’s Country D Identification Cards are lost or otherwise expired, within 21 days of written request from the mother’s solicitor, the father must do all things and sign all documents necessary to cause the children to be issued with valid Country D Identification Cards.
12.The names of the children, namely X born 2008 and Y born 2012 (‘the children’) are removed from the Airport Watchlist maintained by the Australian Federal Police at all points of arrival and departure in the Commonwealth of Australia and IT IS REQUESTED that the Australian Federal Police give effect to this Order by remove the name of the children from the Airport Watchlist.

(as per the original)

ANNEXURE C – PROPOSED MINUTE OF ORDERS SOUGHT BY THE ICL
1.That all previous Orders shall be discharged.
2.That the Independent Children’s Lawyer be discharged.

Parental Responsibility
3.That the Mother has Sole Parental Responsibility of X born 2008 and Y born 2012.

Live with
4.That the children shall live with the mother.
5.The father is not to spend time with the children and is not to have contact with the children.

Travel
6.That the mother shall be permitted in accordance with s65Y(2)9b) of the Family Law Act 1975, to travel outside of the Commonwealth of Australia with the children.
7.That the mother is permitted to apply for and receive for a passport/travel document for the child without first obtaining the consent of the father.
8.That pursuant to s 11 of the Australian Passports Act 2005 (Cth) the Minister forthwith issue an Australian passport in the name of [incorrect name] born X born 2008 and Y born 2012 and without the necessity of obtaining the consent of the child’s father for that purpose.

File number:	SYC 806 of 2020
Judgment of:	HARPER J
Date of judgment:	8 May 2024
Catchwords:	FAMILY LAW – CHILDREN – Whether children should spend time with the father – Where children have not spent time with the father for three and half years – Where the children are progressing well in the sole and primary care of the mother – Where father seeks spend time with orders for both children as his primary position or alternatively the son alone spend time with him – Where mother seeks orders that the children spend no time with the father – Where children do not wish to spend time with the father – Where children’s views given weight – Where father believes himself to be the victim of an extensive conspiracy and some conduct of the mother has contributed to this perception – Court not persuaded collusive strategy or conspiracy established – Where father would likely use any time, including supervised time, with the children to continue unremitting denigration of the mother – Court satisfied that time with the father would expose the children to unacceptable risk of psychological harm – Where father seeks a paternity test – Orders made for the children to spend no time and have no contact with the father – Orders made for the parties to pay the costs of the Independent Children’s Lawyer equally.
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 60CC, 60CC(2A), 60CC(2), 60CC(3), 60CG, 61DA, 65DAB, 69W Family Law Amendment Act2023 (Cth) s 25(1)
Cases cited:	Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232 AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 Bhagat & Sandhu [2023] FedCFamC1F 52 Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 Brianna & Brianna (2010) FLC 93-437; [2010] FamCAFC 97 Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 Fitzroy & Fitzroy [2009] FamCA 954 Franklyn & Franklyn [2019] FamCAFC 256 Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102 Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230 M & S (2007) FLC 93-313; [2006] FamCA 1408 Sayer v Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209 Sigley v Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22 Tibb v Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142 TNL & CYT (2005) 33 Fam LR 167; [2005] FamCA 77 U v U (2002) 211 CLR 238; [2002] HCA 36 Wagstaff & Wagstaff (2022) FLC 94-098; [2022] FedCFamC1A 119
Division:	Division 1 First Instance
Number of paragraphs:	151
Date of hearing:	29–30 November 2023, 1 December 2023 and 6 March 2024
Place:	Sydney
Counsel for the Applicant:		Mr Katsinas
Solicitor for the Applicant:		First Choice Family Lawyers
Counsel for the Respondent:		Mr Ladopoulos
Solicitor for the Respondent:		Sarah Bevan Family Lawyers
Counsel for the Independent Children's Lawyer:		Ms Stolier
Solicitor for the Independent Children's Lawyer:		Kathryn Renshall Lawyers

SYC 806 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR BHAGAT Applicant
AND:	MS SANDHU Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HARPER J
DATE OF ORDER:	8 MAY 2024

Exhibit Label	Document	Tendered by
1	Bundle of bank statements	RM
2	Pages 267, 271 and 286 of the ICL’s tender bundle	ICL
3	Two reports of Ms B	ICL
4	Bundle of emails between the father and Mr AA	AF
5	Emails between the mother and Mr BB dated 8 November 2021 and 27 February 2023	RM
6	Family Report prepared by Dr E dated 7 April 2021	ICL
7	Report of Dr C dated 2 June 2022	ICL
8	Pages 67-72 of the ICL’s tender bundle relating to the DCJ’s safety assessment and interview with X dated 27 February 2020.	ICL
9	Session notes of Ms B from 27 July 2022 to 27 October 2022	ICL
10	Pages W21, 103, 105, 110, and 111 of the mother’s tender bundle	RM
11	Pages W25, 119-123 of the mother’s tender bundle	RM
12	Pages W30, 143 and 144 of the mother’s tender bundle	RM
13	Father’s affidavit filed on 19 January 2021	RM
14	Father’s tender bundle	AF