Bishop & Bishop - [2023] FedCFamC1F 250

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bishop & Bishop [2023] FedCFamC1F 250

File number(s): SYC 7182 of 2014

Judgment of: ALTOBELLI J

Date of judgment: 11 April 2023

Catchwords: FAMILY LAW – PARENTING – Where there is a history of family violence – Where the father has mental health issues and previous alcohol and substance abuse issues – Where the father continues to use coercive and controlling behaviours – Where the single joint expert recommends the children resume spending time with the father – Where the father’s proposal cannot be successfully implemented –
Finding of unacceptable risk to the children – Orders made for the children to live with the mother and spend no time with the father except at the reasonable request of the children – Monthly communication through letters, cards, gifts and photographs allowed.

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

Cases cited:
Carter & Wilson [2023] FedCFamC1A 9

F v M [2021] EWFC 4

Hartley & Hartley [2021] FedCFamC1F 178

Helbig & Rowe and Ors [2016] FamCAFC 117

Illgen & Yike [2018] FamCA 17

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Oates & Crest (2008) FLC 93-365; [2008] FamCAFC 29

Ramzi & Moussa [2022] FedCFamC2F 1473

Division: Division 1 First Instance

Number of paragraphs: 125

Date of last submission/s: 15 December 2022

Date of hearing: 31 October–3 November 2022

Place: Sydney

Solicitor for the Applicant: Reid Family Lawyers

Counsel for the Respondent: Ms Spain

Solicitor for the Respondent: KP Lawyers & Barristers

Counsel for the Independent Children's Lawyer: Mr Anderson

Solicitor for the Independent Children's Lawyer: Robertson Solicitors
ORDERS

SYC 7182 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS BISHOP

Applicant

AND:
MR BISHOP

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

ALTOBELLI J

DATE OF ORDER:

11 April 2023

THE COURT ORDERS THAT:
1.All previous parenting orders with respect to the children, X born 2009 and Y born 2012 (“the children”) are discharged.

Parental Responsibility
2.The Applicant mother shall have sole parental responsibility for major decisions affecting the long-term care, welfare and development of the children subject to Orders 3 to 6 herein.
3.Notwithstanding the terms of Order 2 the Respondent father is authorised by these orders to obtain from any school(s) that the children may attend information about their progress and welfare, including:
(a)Copies of school reports, awards, and information about the children's academic achievements; and
(b)School photograph order forms so that the father can order a copy of the children’s annual school photographs.

4.The mother shall promptly notify the father:
(a)In the event of any change of the children's schools, including details of their new schools;
(b)If the children’s place of residence is changed from B Street, Suburb D; and
(c)About any significant medical issues which affect the children or either of them.

5.Pursuant to s 65Y(2) of the Family Law Act 1975 (Cth) (“the Act”), the mother is permitted to cause the children or either of them to travel outside of the Commonwealth of Australia.
6.Pursuant to s 11(1)(b) of the Passports Act 2005 (Cth), the mother is permitted to apply for and renew the children's Australian Passports without obtaining the consent of the father.

Living and time arrangements
7.The children shall live with the mother.
8.The children shall not spend time or communicate with the father except as set out in Orders 9 to 15 herein.

Communication
9.The father shall keep the mother informed of his contact telephone number and postal and email addresses at all times, and notify the mother in writing no later than seven days after any change of telephone number and/or postal and/or email addresses.
10.The mother shall ensure that the children have access to up-to-date details of the father's postal address, email address and telephone number.
11.The father may communicate with the children by sending them letters, cards, photographs, and gifts, provided that such communication occurs no more frequently than once per month.
12.The mother shall do all acts and things necessary to ensure that:
(a)The children promptly receive all letters, cards and/or photographs sent to them by the father, provided that those communications comply with Order 14;
(b)Any birthday, Christmas or other gifts sent or provided to the children by the father are promptly received by the children and the mother shall acknowledge receipt of the gifts to the father in the event that the children (or either of them) do not do so themselves.

13.The mother shall facilitate any reasonable request made by the children or either of them to spend time with, or for telephone communication or FaceTime with the father.
14.The mother and the father are each restrained by injunction from:
(a)Denigrating the other parent, or any member of the other parent's family, in the presence or hearing of the children and either of them, or in writing to them; and/or
(b)Discussing the family law proceedings with the children or either of them, either verbally or in writing, including attempting to influence the children's views in respect of any parenting arrangements.

15.In order to facilitate Orders 11 and 12, the mother may open any correspondence from the father to the children before providing it to them and if the mother forms the view that the contents of the father's communication or gifts to the children are not appropriate, then she may, in her discretion:
(a)Elect not to provide the written communication or gift to the children; and/or
(b)Return the written communication and/or the gift to the father.

Injunctions
16.Pursuant to s 68B of the Act the father is restrained by injunction from:
(a)Approaching the mother or attending at any place where the mother and children may live;
(b)Attending any school attended by the children and either of them or approaching any place the children may be such as places where sporting activities, social or cultural activities occur; and
(c)Contacting the mother and/or the children except as permitted by these orders or unless specifically invited by the mother to do so, in writing.
AND THIS IS an order for the personal protection of:
(d)Ms Bishop born 1973; and
(e)X born 2009 and
(f)Y born 2012.

THE COURT NOTES THAT:
A.The mother intends that X will continue to attend counselling with Ms E, for as long as Ms E recommends.
B.Nothing in Order 12 should be taken to require or imply that the mother is under any obligation to provide to the father evidence, including photographic evidence, of her provision of his gifts, photos and correspondence to the children.

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

This case is about two children, X, who is 13, and Y, who is 10 (“the children”). These reasons for judgment explain the orders that the Court has made for the children to live with their mother and spend no time but communicate with their father. This is a sad case that demonstrates once again that family violence has profound, long-lasting impacts on all parties: the victim, the children and the perpetrator. Family violence casts a giant shadow over all that follows afterwards.
BACKGROUND
The applicant in this case is the children's mother (“the mother”). She is 49 years old, and is in casual and part-time paid employment, including working five days per week in office administration, and working as an allied health worker. She lives with the children in Sydney. The respondent is the children's father (“the father”). He is 46 years old and describes himself as self-employed. He too lives in Sydney. The parents married in 2008 and separated in May 2014.
The mother described a marriage that was characterised by physical and verbal violence by the father towards her. In her affidavit, she referred to the regular explosive outbursts directed towards her, witnessed by the children. Disturbingly, the family violence appears to have increased significantly after separation. For example, in June 2014, the month after they separated, the father assaulted the mother as she drove him to C Hospital, where he was undertaking rehabilitation for substance abuse issues. He was charged by New South Wales Police (“NSW Police”) with common assault. In mid-2014, a final Apprehended Domestic Violence Order (“ADVO”) was made against the father for the protection of the mother and the children. When the father's criminal matter came before the Local Court in late 2014, the father pleaded guilty to the common assault charge. He was convicted and sentenced, being placed on a good behaviour bond and ordered to complete the Magistrates Early Referral into Treatment Program. The father makes no mention of this in his affidavit.
The first set of proceedings in the Family Court of Australia commenced on 17 November 2014 and concluded on 2 May 2018, when a registrar made orders by consent. By way of background in these first proceedings a single expert report was prepared by Professor G, dated 18 April 2017. That report was also in evidence before the Court in the present proceedings. The proceedings between the parties were settled on the following basis: the children were to live with the mother and spend time with the father on alternate weekends and holidays and special occasions; the mother was to have sole parental responsibility regarding the children’s health and education; the children were to attend a primary school and then a high school in the Local Government area; the mother was to contact the father in writing to obtain and consider the father’s views about any decision regarding the children’s long-term health or education; the parents were to have equal shared parental responsibility regarding decisions affecting the children’s names and residential arrangements which would make it more difficult for them to spend time with him; and the father was to undergo hair follicle testing.
The mother asserts, and indeed this Court will find, that the father struggled at times in his compliance with important aspects of the orders relating to drug testing. The orders required hair follicle testing, and there was an extensive period of time when the father selectively complied but proffered urine drug tests instead.
Before this Court there was extensive evidence about the communication between the parties after the first consent orders were made, and then after the commencement of the present proceedings. By way of summary, the father struggled to communicate respectfully and effectively with the mother. Indeed, at times his communication was abusive.
The genesis of the present proceedings is a dispute about the father's time with the children in early 2020. This culminated in an incident at changeover in early 2020 in which the father physically assaulted the mother. A provisional ADVO was made against the father. He was arrested and charged with assault occasioning actual bodily harm and common assault. The police records indicate that the father was under the influence of alcohol at the time of his arrest. When the father's criminal charges came before the Local Court in late 2020, he pleaded guilty to common assault after his solicitor negotiated with police to withdraw the charge of assault occasioning actual bodily harm. He was convicted and sentenced to a community corrections order. A final ADVO was made against him for the protection of the mother and the children for another period of two years, and this included communication with the mother.
The above matters are largely not in dispute between the parties.
Immediately after the incident in early 2020, the children continued to spend time with the father, including overnight time, in accordance with the orders in place at the time. For all practical purposes the mother unilaterally suspended the father's time with the children after 21 February 2020, and the children have not spent time with the father since then. This suspension in time was essentially confirmed by the Court when interim orders were made by a senior registrar on 19 March 2020, suspending previous orders for the children to spend time and communicate with the father, and orders were made by consent for the father to be restrained from approaching or contacting the children at school. These orders were then continued by the orders of another senior registrar on 7 July 2020. The mother contends that the suspension of the father's time with the children was directly attributable to the experience of both the children in experiencing the violent incident in early 2020. According to the mother, X told her that he witnessed the assault, and Y told her that he heard her calls for help. The mother gives detailed evidence about the changes in the children's behaviour after the incident, commencing almost immediately and progressing eventually, on her case, to a resistance to spending time with the father and ultimately a rejection of him. In short, the mother's case is that the children are estranged from the father because of the cumulative impact on them of being exposed to his violence towards her. The father's case, conversely, is that the mother has so systematically undermined his relationship with the children that she has, for all practical purposes, alienated them from him.
Much was made in the father's case about the approximately two week period after the early 2020 incident when the mother continued to allow the children to spend time with him. In his case, this was a clear inconsistency between the mother's stated concerns about him and the children and her actions. This issue may be dealt with peremptorily, even in this early stage of these reasons. From the Court's perspective, and with the benefit of the totality of the evidence but especially about the children's reactions to exposure to the father's violence, the Court concludes that the least likely scenario was that contended in the father's case, namely that the mother's actions were inconsistent with her stated concerns. The most likely scenario, the Court finds, is that the children's reaction to exposure to the father's family violence evolved and progressed to the point where the mother felt that she had to act to protect the children. The evidence which she gives about the children's reaction was, once again, largely uncontested (but even if it were, the Court would accept her evidence, as she is the best-placed person to say). After witnessing the assault, both children manifested sleep disturbance, including nightmares, reluctance to attend school, X reported stomach pain, and both boys said things to the mother which suggested they were afraid of the father. Moreover, both the children's doctor and the NSW Police Domestic Violence Liaison Officer advised the mother to suspend the children's time with the father. The mother acted appropriately and protectively. It is also possible that the mother was herself traumatised by this event, and in "freeze" mode. The Court rejects any criticism of the mother in the father's case during this period.
The present proceedings were commenced on 6 March 2020. On the same day, the father attended X's school, and was able to meet and speak with him. The mother's evidence is that X told her that the father questioned him about the events of early 2020, and that he was uncomfortable and indeed upset about this. The father did not mention this exchange with X in his evidence, but the Court accepts the mother's evidence. The father visited the school again on 10 March 2020 and saw X. Perhaps the father's visits to the school were understandable in circumstances where he was no longer permitted to see them. Nonetheless, by 10 March 2020, the Court is satisfied that he knew about the commencement of the present proceedings. It was unwise of him to go, and it was completely inappropriate to discuss with X the events of early 2020.
The first court event was 19 March 2020, where orders were made suspending the current parenting orders which provided for the children to spend time and communicate with the father, for the father to undertake hair follicle testing, for an Independent Children’s Lawyer to be appointed, and for the father to be restrained from approaching the children at school.
The litigation history is important, and will be summarised here. On 27 March 2020, the father filed a review application for the orders of 19 March 2020, however this was discontinued on 6 April 2020. On 19 May 2020 the matter was listed before a senior registrar for interim hearing, although the hearing did not proceed due to a number of subpoena objections and insufficient evidence being available to properly determine the interim issues. On 18 June 2020 the matter was listed before a registrar to hear the subpoena objections, where orders were made striking out the subpoena issued to Ms E, and granting the mother and Independent Children’s Lawyer leave to access and inspect certain materials. On 7 July 2020 the matter was listed before a senior registrar for interim hearing, where orders were made to further restrain the father from approaching or contacting the children, continuing the suspension of time and communication with the father, directing the father to undertake hair follicle testing and appointing a single expert. The father filed an application for a review of these orders on 21 July 2020, however this was withdrawn on 25 August 2020. On 4 September 2020 orders were made by a registrar for the matter to be referred for allocation to a judge. On 3 March 2021 orders were made by Alstergren CJ for the parties to attend a Family Dispute Resolution Conference, however orders were later made in chambers to vacate this conference after it was deemed unnecessary following the production of the Family Report by Ms H dated 5 March 2021. On 10 May 2021 Alstergren CJ made orders, including for the father to comply with the recommendations in Ms H’s report.
The matter first came before me on 5 November 2021 where I made orders, including for Ms H’s report to be released to the father’s treating psychologist Dr J. On 5 July 2022 I made consent orders in chambers for Ms H to be re-appointed as a single expert and prepare an updated report (which was provided on 19 October 2022). The matter came before the Court for final hearing commencing on 31 October 2022 and ran for four days. On the final day of the hearing, the Independent Children's Lawyer made oral submissions, and the parties chose to make written submissions, the last of which were received on 15 December 2022.

There are a number of features of the events that took place during the course of this litigation that will assume some significance. For example, as previously alluded to, the father did not comply with the orders for hair follicle testing. In addition, the Court will find that the father’s communication with the mother was controlling and abusive.
Ms H was appointed as the single joint expert witness in this case. Both parties were interviewed. Her first report was dated 5 March 2021, and her second report dated 19 October 2022. An issue for the Court is the extent to which the father adopted and implemented the recommendations made by Ms H. Indeed, a related issue is the weight that should be given to the treating psychologist attended by the father in response to the recommendations of Ms H. Dr J was engaged by the father in this regard, and Ms H's report, together with other documents, were provided to him. The Court will find that the father was selective in his disclosure to Dr J. The report of Dr J was part of the evidence in the father's case.
THE COMPETING PROPOSALS
By the time of closing written submission, the proposals of both the Independent Children's Lawyer and the mother were identical. Both proposed that the mother have sole parental responsibility with limited obligations to notify the father, and on the basis that she not otherwise be required to consult with him. The Court observes that this represents a significant departure from the earlier consent orders, which did require the mother to consult with him. As it turns out, the Court will accept the mother's case that the requirement to consult the father became another opportunity for him to control and abuse her. The proposed orders also provide that the children are to live with the mother and spend no time or have any communication with the father other than as prescribed in the orders. In this regard, the orders stated that both parties ensure the other be kept up-to-date with any changes in contact details; that the father may communicate with the children through sending cards, photographs and gifts (no more than once per month) and that the mother ensure that the children promptly receive the same, unless the mother determines that the communication or gifts are not appropriate; that the mother facilitate any reasonable request made by the children to spend time with or otherwise communicate with the father; and that both parties are restrained by injunction from denigrating the other and from discussing the family law proceedings in the presence of the children. An injunction was also proposed under s 68B of the Family Law Act 1975 (Cth) (“the Act”), restraining the father from approaching or contacting the mother and children
The father's proposal is set out in his written submission received 15 December 2022. He agreed that the mother should have sole parental responsibility in relation to major long-term issues, but required the mother to communicate and consult with him about such decisions, except in the case of emergency.
The father agreed that the children should continue living with the mother. His focus was on his time and communication with the children. In this regard, the father had a primary proposal, and an alternate proposal. The father’s primary proposal was that the children attend a suitable clinic for the purpose of therapy to reintroduce them to him, and that the children spend time with him, gradually increasing from three hours of supervised time each Saturday or Sunday morning, to unsupervised alternate weekends, one alternate weeknight and half of the school holidays. He proposed that communication between the parties should occur through the Our Family Wizard application and the children should be able to communicate with the parent with whom they are not living at any reasonable time that the children request. He also proposed that he be permitted to attend any event or extracurricular activity of the children, and that each parent keep the other informed about any injury or illness suffered by either child. The father’s alternative position was that X spend time with him in accordance with his own wishes, and that the proposal regarding therapy and gradually increasing time apply to Y only.
The Court was thus called upon to decide issues relating to parental responsibility and whether, and if so on what terms, the children spend time and communicate with the father. In order to adjudicate these issues, the Court had to assess whether there was a risk to the children in spending time and communicating with the father, and if so, what the nature of that risk was and how, if at all, it could be managed. There is an issue about the weight that should be given to the views expressed by the children, particularly X, who seems to have completely rejected his father. There is a significant issue about the father's capacity to provide for the needs of the children, particularly their emotional needs, given the family violence that he perpetrated, which the Court is satisfied the children were exposed to and experienced. There are questions about the levels of insight, and the attitudes of both parents in the context of the factual matrix of this case. Where there are other issues, these will be discussed.
THE EVIDENCE BEFORE THE COURT
In support of her case, the mother relied on the following documents:
(a)Amended Initiating Application filed on 24 October 2022;
(b)Her affidavit filed on 14 October 2022;
(c)Affidavit of Ms E, Psychologist, filed on 26 October 2022; and
(d)Documents tendered and marked as Exhibits A1–A13 on 9 November 2022.
In support of his case, the father relied on the following documents:
(a)Amended Response to Initiating Application filed on 24 October 2022;
(b)His affidavit filed on 14 October 2022;
(c)Affidavit of Dr J filed on 5 September 2022; and
(d)Documents tendered and marked as Exhibits R1–R5 on 3 and 4 November 2022.
In support of their case, the Independent Children’s Lawyer relied on the following documents:
(a)The applicant’s Notice of Risk filed on 10 March 2020;
(b)The Single Expert Report of Ms H dated 5 March 2021;
(c)The Update Single Expert Report of Ms H dated 19 October 2022; and
(d)Documents tendered and marked as Exhibits ICL1–ICL7 on 10 November 2022.
The witnesses who were called to give evidence included:
(a)The mother;
(b)The father;
(c)Ms E;
(d)Dr J; and
(e)Ms H.
THE APPLICABLE LAW
The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
(Emphasis in original)
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(Emphasis in original)
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)      Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
…
(Emphasis in original)
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(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;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(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
(ii)to spend time with the child; and
(iii)to communicate with the child;
(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;
(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
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(f)the capacity of:
(i)each of the child's parents; and
(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;
(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;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
(Emphasis in original)
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means 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.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

The words “coerces” and “controls” can be found in the above definition of family violence in s 4AB(1) of the the Act.
There have been a number of authorities, both in Australia and in comparable jurisdictions, in which these words have been considered both separately and in combination (see, for example, Illgen & Yike [2018] FamCA 17; Ramzi & Moussa [2022] FedCFamC2F 1473; and F v M [2021] EWFC 4).
It is clear from these authorities that context is important. As stated by McClelland DCJ, Bennett and Campton JJ in Carter & Wilson [2023] FedCFamC1A 9 (“Carter & Wilson”) at [17]:
17.The mere fact that [a party’s conduct] could fall within the example provided in s 4AB(2)(i) does not, in and of itself with nothing more, condemn the conduct as being family violence within that subsection.
(Emphasis in original)
The combination of the wide definition set out in s 4AB(1) and the non-exhaustive list in s 4AB(2) conveys the legislative intention of creating a broad category of potentially unacceptable conduct (Carter & Wilson at [75]). These wide terms catch behaviour that could be seen as either undesirable or necessary (e.g. protective) depending on the context (Carter & Wilson at [71]). Therefore, findings of fact need to be made and evidence evaluated in order to contextualise the conduct of the perpetrator (Carter & Wilson at [71] and [84]). A finding that a party has engaged in coercive and/or controlling behaviour will generally require a description of what was said and done and the context in which that conduct occurred (Helbig & Rowe and Ors [2016] FamCAFC 117 at [91]). The more subtle or ambiguous the behaviour is, the more detailed such an enquiry and evaluation must be (Carter & Wilson at [84]).
It must also be stated that an intention on the part of the perpetrator is not a necessary component of coercive or controlling behaviour under s 4AB of the Act (Carter & Wilson at [80]).
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
OBSERVATIONS ABOUT CREDIT
It is necessary to make some observations in this case about the manner in which both parents gave evidence. They were both extensively cross-examined.
The Court finds the mother to have been unresponsive at times, principally when the context of the examination related to the extent to which she had facilitated and encouraged the children's relationship with the father. The mother was distinctively uncomfortable with these questions. The evidence that she gave represented the nadir of her case. Indeed, the Court will find that there is so much the mother could have done at various times to have reassured X, in particular that the father was not the risk to X that he believed. The mother was disarmingly honest, however, about the role that she saw for the father in the children's lives. She felt that there was no benefit to the children of having the father in their lives. At least the mother was transparent in this regard. As it turns out, the mother's views, when understood in the context of all the evidence of this case, is less than optimal, but is certainly understandable. The mother may well have been unresponsive at times in cross-examination, but this is made up for by her disarming honesty in relation to the father. Her evidence remained reliable.
By contrast, the Court found the father to be both unresponsive and evasive at times, and plainly disingenuous about key aspects of his case. The cross-examination about his mental health and his treatment thereof was problematic from the Court's perspective. The Court is still not clear about which of the various mental health diagnoses the father has received that he accepts. There is no adequate explanation in the father's evidence about why he has not been compliant with the prescribed pharmacological regime set out by his own treating psychiatrist, Dr K. The father was evasive about the true nature and extent of his substance abuse issue, and particularly about the hair testing regime. In cross-examination, he accepted that the mother would have been greatly reassured by his compliance with hair follicle testing, and might have concerns about his insistence on urine testing, but his actions belie that purported understanding. It is possible that during the periods when he declined to comply with the order for hair testing, he was manipulating the urine testing regime to maximise the prospects of a clean test result. The Court notes that the father stated at paragraph 84 of his affidavit that he preferred urine testing because he has a receding hairline and is receiving hair replacement therapy. The Court does not accept this evidence.
In relation to family violence, the Court finds that the father was often evasive in cross-examination. Whilst the Court accepts that many of the key family violence allegations are not disputed, there were many historic incidents of family violence which are plainly consistent with the acknowledged incidents, but were not convincingly denied. Moreover, the Court finds that both with his own treating psychiatrist Dr K, as well as Dr J, the father was evasive about the true nature and extent of his violence against the mother and its criminal consequences.
The father changed his evidence during the course of the proceeding, probably at least in part in response to the expert evidence of Ms H. The clearest example related to the events of 6 February 2020 and whether the children saw or heard the incident between their parents, and whether they were locked in his vehicle. The inconsistency is harder to understand when the original evidence appears to have been given quite trenchantly. If it was the truth the first time he deposed it, then it is arguably no less the truth after a single joint expert has prepared a report. There is a strong impression formed by reviewing the litigation holistically that the husband's acceptance of certain facts previously denied was consistent with a litigation strategy of acceptance of expert evidence whose recommendation created at least the prospect of the father renewing his relationship with the children.
The cross-examination of the father on the topic of his late return from an overseas trip, which led to the critical incident in early 2020, left the Court with the strong impression that the father had not fully explained the circumstances of this delay.
At times, the Court found the father’s evidence to be disingenuous. Indeed, the Court would go so far as to say it was a consistent theme of his evidence. In cross-examination, he purported to take ownership of his violent actions, and its impact on the children, but this was quite inconsistent with his actual actions and statements towards the mother and the children. In the reasons below, the evidence about his toxic, controlling and abusive communication with the wife through his lawyer will be explored in context. For present purposes, however, that communication was plainly inconsistent with the father's ownership of his actions.
Overall, the Court finds the father's evidence to be less reliable than that of the mother. He was an unreliable historian because of the selectivity of his recollection.
THE EVIDENCE OF THE SINGLE JOINT EXPERT, MS H
Ms H provided two reports in this matter, dated 5 March 2021 and 19 October 2022.
In her first report, she made the following recommendations: that the mother have sole parental responsibility for the children and that they live primarily with her; that the children continue to attend upon Ms E; and that the children should not spend any time with the father until he has demonstrated stable mental health for a period of 12 months (and had completed the following recommendations). Ms H recommended that the father: continue to attend upon Dr K and be compliant with medication and recommendations; attend upon a male mental health practitioner for at least 20–30 sessions over eight to 12 months (e.g. Dr J) and that this practitioner be provided with a copy of the report; and complete a Men’s Behaviour Change program. Ms H further recommended that the father be restrained from contacting the mother or children, but that the Court may consider permitting him to send the children letters or cards six times per year, with these to be drafted with the assistance of his treatment provider and vetted before being given to the children. Finally, Ms H proposed that if the father completes the recommendations, an updated assessment by an independent expert should be undertaken, but that if he does not complete the recommendations, the children should not spend supervised or unsupervised time with him.
In the second report, Ms H recommended that the father should continue to comply with the recommendations of Dr K for psychotropic medication as prescribed by his general practitioner and continue to attend upon Dr J for 10 sessions over 12 months. She also recommended that all the family members attend upon a clinician at a family clinic for the purpose of re‑introducing the children to the father, and that X should not continue seeing Ms E during this time. She proposed that re-introduction occur within six weeks of therapy and that the children spend supervised time with the father, gradually increasing to unsupervised alternate weekends and one weeknight per fortnight. She noted that the father should refrain from consuming alcohol for 12 hours prior to caring for the children, and that the above recommendations should cease if the father relapses into substance use, does not comply with the recommendations of his psychiatrist or psychologist, or perpetrates family violence.
A number of observations may be made about the differences between the two reports. In the first report, Ms H felt that there was a risk to the children, but in the second report, such risk as there was, was manageable in terms of the recommendations that she made.
In both reports, the children told Ms H that they did not wish to spend time with the father. In her second report, she thought that the children should have the opportunity to be reintroduced to the father on the basis that he was now mentally stable, had reportedly gained insight into their experiences of him, and was no longer experiencing substance abuse issues. In short, Ms H felt that the benefits to them of re-establishing a relationship with the father may now outweigh the risks.
Ms H was extensively cross-examined. She explained that her original recommendations for the children to spend time with the father was dependent on a number of conditions, including that the father was demonstrating stable mental health. She was not aware of the fact that the father had not sought a mental health review by his psychiatrist since the last time she had seen him in interview. Whilst she accepted that the father's medications might be prescribed by his general practitioner, she had understood that he would continue to be reviewed by Dr K. The date of the last review of the father by Dr K was 8 September 2020. She noted that the father's dosage of a medication was currently 400 milligrams a day, even though Dr K recommended 1500 milligrams per day. She acknowledged that she had recommended that the father attend 20–30 sessions with a mental health practitioner, but that he had in fact only attended 15 sessions with Dr J. Ms H was further concerned that the father's attendances on Dr J had not been consistent, and that his engagement with Dr J could be regarded as strategic, having regard to forthcoming court events.
Ms H accepted that between reports she had changed her risk assessment. She agreed, however, that the risk of family violence would increase if the father's substance abuse issue continued or if he was not medication-compliant.
In relation to the views of both the children, especially X's very strongly held views, Ms H expressed the professional opinion that his views had not been influenced by his mother, and were based on his lived experience of the father, which was almost entirely negative. She agreed that he probably felt relieved by not having time with the father. Ms H suggested that she had given some weight to the views of the children, especially X, but suggested that his views were unreliable and should not receive weight. His views about his experiences with the father were based on a time when the father was experiencing mental health issues and affected by substance abuse. If this was no longer the case, then it was inappropriate for his views of the father to be based on a finite period of time which had passed, especially when one of the issues was mental health.
Acknowledging that one of her recommendations involved the children, especially X, participating in therapy, Ms H was asked about the almost inevitable resistance by X to participate in therapy, consistent with the evidence of the mother. Ms H accepted this, recognising that he was a bright and mature adolescent, who is still mastering the skills of empathy. However, he did not appreciate the long-term consequences of not having a relationship with his father. Moreover, X should not be allowed to make a decision on Y's behalf, which, Ms H acknowledged, was a real risk in this sibling relationship.
Ms H was aware of the therapy that X had been undertaking with Ms E and was prepared to accept that part of this included challenging X's view about his relationship with the father. She noted that X's views were fixed.
Counsel suggested to her that both children are currently stable ("in a good place"), so why should this be disturbed by seeking to re-establish a relationship with the father. Ms H recognised that ultimately the decision involved a balancing of risks, but in circumstances where the father appears to have addressed the concerns she raised in her report, the benefits to them of having a relationship with the father in the long term were greater than any short-term disruption to their stability.
Ms H was asked to consider the situation where her recommendations were implemented but in six to 12 months it does not work out – for example, the father relapses. She accepted that in this situation the children are likely to permanently reject the father.
Ms H accepted that the children's experience of the father had been a traumatic one. She even accepted the possibility that facing that trauma in the context of family therapy could reactivate that trauma. However, she emphasised that family therapy is an appropriate forum to manage anxiety and trauma with a view to healing it. In her opinion, it was best for the children not to be stuck in that trauma for the rest of their lives. She accepted that, especially for X, the past relationship with the father was problematic, but emphasised there was an opportunity to develop another, different relationship with the father, which would be of benefit to them.
Ms H thought that the mother would comply with any orders that involved the children undertaking or participating in therapy. She accepted the observation that the effect of her recommendations was, in part, to defer to a family therapist as to how to proceed, and that this would not grant finality for the children.
Ms H acknowledged that aspects of the mother's handling of the children was problematic. The mother probably gave X too much agency and empowered him inappropriately. This was reflected in her proposed orders. The mother acted inappropriately when X said to her that he hates the father. In seeking to validate his feelings, the mother tacitly acknowledged to X that it was acceptable to feel that way, without taking the opportunity to explain the father's mental health issues and the importance of a relationship with him. When X told the mother that he had seen the father on the bus, she missed the opportunity to challenge the rationality of his anxiety by simply reality-testing the likelihood of that occurring. During cross-examination, the mother agreed with the father’s counsel, Ms Spain, that in reality X was on a school bus and the father would not have been allowed to board.
Ms H acknowledged that whilst the children were in a good place at the moment, this was also as good a time as ever to attempt to resume the relationship with the father. Indeed, she thought there was a risk in delaying this, as the children's views would further be entrenched.
The Court observes that it was in the cross-examination of Ms H by the mother’s solicitor advocate that Ms H seems to have most changed her views. The Court observes that Ms Wearne, the solicitor advocate for the mother, put to Ms H a number of scenarios that accurately reflect the evidence before the Court, and the findings which it makes.
Ms H acknowledged that the father's contention that the mother had alienated the children reflected his suspiciousness of her. She agreed that it would be of concern if the father was still suspicious of the mother. Ms H agreed that the children's relationship with the father could be described as anxious and avoidant and that her views remained that they were realistically estranged from him, but that this was based on their lived experience of the father's anger, manipulation and family violence.
Ms Wearne suggested to Ms H that the critical issue was whether the father had changed, not just in between the two reports but since the critical event that led to the suspension of his time with the children. Ms H agreed, stating words to the effect: “…if there is no change, there is no benefit to the children of therapy that is directed towards spending time with the father”.
Ms H explained that she would be very concerned if the evidence before the Court indicated ongoing coercion and attempts of control by the father. The father had not told her about a dispute with the mother regarding the proof that he required of the children receiving his birthday and Christmas cards and gifts. She was unaware of the volume, nature and toxicity of the father's communications with the mother through his solicitor. Ms H accepted that if the history that was given to her was correct, it was concerning, because it constituted threats and suggested the father's inability to cooperate and co-parent. It was suggestive of an attempt to exercise power and control. It was evidence of suspiciousness and distrust. It was potentially intimidatory. That all of this occurred after Dr J had released his report, and whilst the father was undertaking a Taking Responsibility course, was highly problematic. It was intimate personal violence by way of intimidation, threats, coercion and control of behaviour.

Ms H agreed that the father's failure to continue to attend on Dr K was also problematic. She agreed that the father's existing diagnosis of bipolar disorder was uncertain and could conceivably be borderline personality disorder, which included prominent narcissistic traits. Ms H agreed that if this were the case, it was far more difficult to treat, and to differentiate.
Ms H expressed concern if the evidence demonstrated that the father had not disclosed the longitudinal nature of his family violence to his own treating psychiatrist, Dr K, and then subsequently to Dr J. She acknowledged that the father's attitude towards compliance with court orders might reflect a sense of entitlement and a dismissive attitude. Ms H acknowledged that it was concerning that Dr J still referred to the father's misogynistic traits. She also acknowledged that in considering the way forward for the children, it was not just the risk of harm to them that was of concern, but also to the mother. Other risk factors included uncertainties about the father's management of his substance abuse problem, and Y's diagnosis of a chronic condition and its impact not only on his daily life, but that of the mother. Another complicating factor appeared to be the father's lack of empathy towards the mother, consistent with his disregard of the impact on the mother of failing to comply with hair follicle testing. Ms H accepted that this could also be regarded as a manifestation of power over her.
Notwithstanding all of the concerns that Ms H acknowledged, and that these matters tended to indicate a higher level of risk to the children, she thought that they could be moderated by way of therapy, further testing and supervision.
The Court has had the benefit of spending time with both parents and observing them under the close scrutiny of cross-examination. The Court has had the benefit of being able to review all of the evidence, including witnesses not interviewed by Ms H, including Dr J and Ms E. The Court is satisfied that all the matters put to Ms H accurately reflect the evidence. The Court does not accept the recommendations made by Ms H. There is a misplaced optimism about the father and an overemphasis on trying to rebuild a relationship with him, notwithstanding the evidence of the continuation of risks to the children and the mother from the father.
Moreover, her recommendations are problematic. For example, the Court is not confident that the father will comply with the recommendations of Dr K, given his track record so far. The Court lacks confidence about any benefit to the father and the children of him attending a further 10 sessions with Dr J in circumstances where he did not comply with this recommendation in the first place. Ms H's recommendations for family therapy minimise the difficulty of getting X there, and the risk of the therapy failing. Moreover, many of her substantive recommendations about therapy progressing to unsupervised time might well be appropriate in an interim order, but not in a final order.
THE EVIDENCE OF DR J
Dr J is the father's treating clinical psychologist, who prepared a report which was attached to his affidavit filed on 5 September 2022. Dr J saw the father following recommendations made by Ms H in her first report, namely that the father should attend upon a male mental health practitioner for at least 20–30 sessions over a period of at least eight to 12 months. The father first commenced treatment with Dr J on 22 July 2021, and as at the date of his report had attended 14 sessions.
Dr J was asked to make recommendations about whether the father should be allowed to see the children. By way of summary, Dr J recommended that contact between the children and the father, which would constitute substantial and significant time, could resume. However, in his report he acknowledges that his recommendations are limited by his restricted perspective due to limited sources of information, and that he will defer to Ms H’s perspective in her updated report.
Dr J was cross-examined about his report. A number of matters emerged. The father did not tell Dr J about his full forensic history. He did not disclose, for example, that he had been charged and convicted of assaulting the mother, both in 2014 and 2020. Dr J acknowledged the importance of the father providing a full forensic history.
Dr J was at all times aware that the father was taking a mood regulation drug that Dr J was professionally familiar with. When the father presented to him in 2021 as agitated, angry and embittered, Dr J said he was at least open to being concerned about that, given the father was taking the medication. He agreed that he did not ask the father whether he was medication‑compliant, and he did not know that Dr K had prescribed a dosage significantly greater than that which the father reported to be taking.
Dr J confirmed the evidence of Ms H that from a treatment perspective, if the father suffers from a personality disorder rather than bipolar disorder, there are far greater challenges in terms of treatment, as a personality disorder cannot be managed on medication. Dr J seemed to accept in cross-examination that there was at least a doubt arising out of the father's diagnosis of borderline personality disorder, with both Professor G and Dr L noting the father as having prominent narcissistic traits. Dr J emphasised, however, that he had not observed grandiosity, or an absence of empathy towards another person, in the father. He had observed the father lashing out and blaming others, and accepted that this was a feature of his early interaction with the father. He agreed there were elements of blaming the mother, and concerns about his anger. He accepted that the father was externalising all blame onto the mother at times, and noted that his role was to work with the father to reverse that perspective.
Dr J accepted that there was a four month lacuna in his consultations with the father between 5 August 2021 and 2 December 2021. He explained that the father told him that he had started a new business in Queensland which had been occupying a lot of his time. Dr J explained that the delay was not attributable to him, and that he had made it clear to the father that it was the father's responsibility to make appointments and attend. This was explained to him from the commencement of treatment on 22 July 2021. When the father resumed attending on Dr J on 2 December 2021, Dr J was not aware of the fact that the Court had, during the previous week, set the matter down for final hearing.
Dr J was not aware that the father had been reluctant to share his drug testing results with the mother. He accepted that, from the mother's perspective, the mother was not receiving the reassurance that she needed about the father's substance abuse. He accepted that one possible interpretation of this is that the father was not showing much empathy about the mother's concern.
The father had expressed his concerns to Dr J that the children were not in fact receiving his cards and gifts. The father had apparently told Dr J that he was instructing his lawyer to do something about this. He was unaware, however, as the evidence before the Court clearly demonstrates, that the father had asked the mother to take specific photos of the children receiving his letters and gifts. Dr J explained that if he had known, he would have told the father that this was a "dumb idea". He did not know that the father had instructed his lawyer to complain if the photo did not include all of the father's gifts to the children, and that indeed he had threatened the mother with litigation if she did not provide the evidence that he was insisting on. Dr J agreed that he had done some therapeutic work with the father in relation to controlling behaviour and accepted that it was hard to see the father’s behaviour in relation to the issue of the photographs as being anything but an attempt to control the mother. It also suggested the father's continued suspicion of the mother as late as mid-2022.
Dr J accepted that the father struggled historically with substance abuse. He also agreed that in the father's explanation of the Taking Responsibility program he had undertaken, there was no reference to any attitudinal change by the father as regards the mother, and indeed the correspondence in mid-2022 demonstrated concerning attitudes towards the mother.
In the course of therapy, there was some discussion about the father needing to forgive the mother. This was in the context of therapeutic work designed to cause the father to step away from an external locus of blame, and rather to focus on himself. Dr J accepted that the father still had some progress to make in terms of maintaining an aggrieved stance as a result of the mother suspending his time with the children, when in reality he was the perpetrator of the violence that precipitated this. All Dr J could say was that “his stance is moderating”. The father also continued to struggle to understand things from the mother's perspective, but seemed much more advanced in relation to the children's perspective. Dr J agreed that in his report he also referred to the father's misogynistic attitudes.
In terms of the weight to be given to Dr J’ report, and his recommendations, it must be recognised that at all relevant times Dr J recognised the limitations of his report. He had not seen the children. He had not met the mother. He did not have the wide range of material that, for example, Ms H had. Dr J attempted to be as objective as he could, no doubt drawing on his extensive experience, including as a single joint expert in this Court. He was measured in his praise of the father, referring, for example at page 4, to the father:
…working to contain his invective together with an ongoing focus on his emotional regulation abilities … now demonstrating some positive moments of self-reflection and insight.
In short, the father was a work in progress.
At page 7 of the report, Dr J explained that he was quite used to individuals in high-conflict disputes sometimes seeking therapy in order to look good, but often having little motivation to change. He concluded “This has not been the case with [Mr Bishop]”.
Respectfully, this does not explain or account for what Dr J came to know about in cross-examination – that is, that the father had minimised his forensic history of family violence against the mother; that he was not medication-compliant; and that he continued to seek to harass, control and abuse the mother through communication via his lawyer. The overall impression formed by this Court is that the father was, in fact, trying “to look good” for Dr J.
Dr J seemed to be somewhat impressed by the fact that despite a no-contact order, the father had maintained consistent child support for the children. The Court will have more to say about this when considering the relevant consideration under s 60CC of the Act but merely observes at this juncture that the level of child support paid is very modest, particularly when compared to the father’s own evidence about his lifestyle and business.
The recommendations made by Dr J are, on the facts of this case, idealistic and impractical. One suspects that if Dr J had known what this Court knows about the father, he is unlikely to have made such recommendations.
MEANINGFUL RELATIONSHIP
The children have a meaningful relationship with the mother, but not with the father. They have not spent time with him since early 2020. The totality of the evidence before the Court leads it to conclude that the children are realistically estranged from the father, primarily arising out of their exposure to the family violence that he perpetrated on the mother.
Both Dr J and Ms H spoke eloquently of the potential benefits to the children in the medium and long term of having a relationship with the father. Despite that, there seemed to be at least tacit acceptance by both of these experts that whilst the father had progressed some way towards addressing the issues that caused his relationship with the children to become estranged, he was not there yet. In an ideal sense the benefits to the children of having a relationship with the father are self-evident and discussed by both Dr J and Ms H, but the children need to be safe, and it is in that respect that the Court has the greatest fears. There is nothing that this Court feels that it can presently do that will assure the children of the safety that they need so that they can recommence a journey towards a meaningful relationship with the father.
PROTECTING THE CHILDREN FROM HARM
Both the Independent Children's Lawyer and the mother submit that, on the facts of this case, the risk to the children regrettably outweighs the benefit to them of having a relationship with the father. The risk has many facets but uniformly emanates from the father. Even on the father’s evidence there has been family violence that he perpetrated on the mother, to which the children were exposed. In this case, the cause of this violence is multiple, and each of these contribute to the other. Historically, the father misused substances. He experienced mental health issues, and whilst he has a current diagnosis of bipolar disorder, there is at least room to consider the possibility that he instead suffers from borderline personality disorder. The father has anger management issues which allowed his anger to escalate into violence. Dr J observed some of the father's misogynistic tendencies that might provide a context for his violence towards the mother.
In Ms H’s first report, dated 5 March 2021, she conducted two psychological assessments – the Spousal Assault Risk Assessment Guide, and the Family Strengths and Needs Assessment. The validity of these assessments was not challenged. These instruments assessed the father as being at high risk of violence towards the mother, and the children at high risk of harm in the father's care. In her updated report, dated 19 October 2022, Ms H did not readminister the above two psychological assessments. Despite this later report, which nevertheless assessed the risk presented by the father to be less such that a resumption of his relationship with the children could be contemplated, the Court is satisfied that Ms H's initial assessment of the father was, in fact, correct.
The nature of the violence perpetrated by the father was both physical and psychological, the latter in the form of intimidation and threats to control the mother. The clearest and latest manifestation of this behaviour was the evidence of the appalling correspondence from the father to the mother via his lawyer as recently as mid-2022.
On numerous occasions, the father, through his solicitors, sent letters to the mother requesting that she send him weekly updates including photographs on the children. For example, on the children’s birthdays, the father would request photographs of the children with the gifts and cards they had received from him. The mother would do her best to appease the father by sending him the requested photographs, but he would often deny having received anything or accuse her of not providing sufficient “evidence” or “proof”. For example, after the mother sent the father a photograph of X with a letter from his father, the mother received a response that the photograph was of “very poor quality” and that “[t]his is not sufficient evidence that your client provided same to the children…Please have your client provide evidence that she has provided said material to the children…”. Another example of this harassment occurred when litigation was threatened in a letter from the father’s solicitor to the mother’s solicitor on 15 November 2021. The father’s solicitor asserted that the mother was “attempting to erode the relationship between [their] client and the children” and that “unless your client provides evidence that both [letters] together with the attached photographs were provided to the children through photographs by 5:00pm on 19 November 2021 we are instructed to file an Application in a Case seeking appropriate orders”. The mother sent the requested photographic evidence, despite having already sent two emails with numerous photographs of Y with the father’s birthday gifts and cards, to avoid further litigation. Litigation was also threatened on 15 December 2020 when the father’s solicitors sent the mother a letter threatening that she promptly and thoroughly comply with the father’s requests to avoid further litigation “as to costs”, and accusing the mother of being responsible for the father’s “unnecessary costs” due to her seeking a no contact order other than through the parties’ solicitors, and failing to sufficiently comply with his requests for photos.
The Court does not accept any attempt made by the father to distance himself from the completely inappropriate correspondence described, in part, above. The Court is satisfied that the father’s lawyers were for all practical purposes his spokesperson in the period September 2020 to September 2022.
When this evidence is viewed in its entirety, and in its context, the mother shows amazing patience and grace in continuing to send the father regular updates about the children despite the toxic communications directed to her.
It is important to remember that neither Dr J nor Ms H had been apprised of this evidence by the father, and both acknowledged that the evidence was concerning, as it manifested controlling behaviour. From the Court's perspective, it is extraordinary that the father continued to seek to control the mother after Ms H's report, during the time that he was in therapy with Dr J and whilst he was undertaking the Taking Responsibility course.
This evidence demonstrates not only that the father sought to continue to control and coerce the mother up until shortly before the final hearing, but that he totally lacked insight about the potential impact of his behaviour on the mother’s parenting of the children, and continued to maintain an irrational belief that the mother was alienating the children from him when, in reality, it was the father’s own actions that resulted in their estrangement from him.
The ongoing risk to the children of exposure to family violence is clearly manifested in the behaviour and attitudes that underlay the instructions the father gave to send these letters.
The optimism of both Dr J and Ms H for the future was nowhere apparent to the Court in his evidence. He spoke about an apology to the mother and the children to Dr J, for example, but has not done anything. In cross-examination, he spoke of taking responsibility, but his words were so blatantly inconsistent to his actions a mere matter of months beforehand. When given the opportunity in cross-examination to show some empathy towards the mother, none was shown.
Where the evidence about family violence given by the mother differs from that of the father, hers is to be preferred. It was notable how many times the father answered that he did not recall when being questioned about historical violence in during cross-examination.
The risk to the children of resuming time with the father, even in a supervised context, is that he will have inappropriate conversations and manifest inappropriate attitudes and beliefs that potentially re-victimise the children. For example, X reported to the mother and Ms E, to which Ms H referred in her report, that when the father unexpectedly came to visit him at school in early 2020, he felt pressured by the father to change his story about the violent incident some weeks earlier, in 2020. The father’s affidavit of 14 October 2021 minimised his conduct on this occasion. It was only in cross-examination that he ultimately conceded that he tried to influence X's version of the assault.
It would seem that for most of the litigation history, until the hearing itself, the father was sceptical of the mother and the children's accounts of how the children experienced the father's violence, and the impact it had on them later in their lives. The evidence of Ms E, the children's therapist, was clear in terms of the adverse impacts on them.

Having regard to the totality of the evidence, the risks to the children of ongoing exposure to the father’s family violence in its broader sense, whether perpetrated towards them or the mother, is unacceptable. In discussing the orders in the best interests of the children, this Court will explain why an order for supervised contact is not appropriate for the children.
The Court also accepts that there is a further basis for being concerned about risk to the children. There is uncertainty about the father's mental health diagnosis, and whilst it is likely to be bipolar disorder, the Court cannot rule out borderline personality disorder. The significance of the distinction is in relation to treatment – the former can be treated pharmacologically, the latter only by therapy. Even if the father does have bipolar disorder, it is clear from his own evidence that he is not medication-compliant and, despite the evidence of his own treating psychiatrist, he has not seen Dr K for two and a half years.
The risks to the children are accentuated by the father’s lack of engagement, firstly in the recommendations made by Ms H in her first report, and secondly in his engagement with Dr J. The evidence indicates selective disclosure to both Dr J and Ms H about highly relevant facts, particularly in the case of Dr J. Dr J was the father’s own treating psychologist, and yet he could neither properly engage with him nor disclose relevant information. There is also a sense in which the father’s controlling behaviour extended to those whom he engaged to assist him.
A further risk to the children relates to the father’s history of substance abuse, his minimisation of the same, and his selective compliance with drug testing orders, and then the manipulative and controlling disclosure of results to the mother. Both Dr J and Ms H recognised the risk of relapse to the father. The Court believes that in this case the combination of all of the matters identified in these reasons to date, combined with an outcome to the proceedings that the father will not be happy with, merely accentuates the risk of relapse.
THE VIEWS OF THE CHILDREN
The Court accepts the submissions of both the Independent Children's Lawyer and the mother that the children’s very strongly held views against spending time with the father is based on their lived experience of him. There is no doubt that X has stronger views than that of his brother, Y.
Both Dr J and Ms H urged the Court not to elevate the children's views, given the benefit to them of a meaningful relationship with the father. As it is, the Court does not decide this case by reference to the views of the children, although these views are noted. This case is ultimately decided by reference to the risk of harm considerations. The views of the children remain important, however, particularly in terms of understanding why the Court feels that it has no alternative but to order no contact or communication other than in the limited circumstances set out in the proposals of the Independent Children’s Lawyer and the mother. Even considering the best-case scenarios advanced by Dr J, Ms H, and adopted by the father, no contact could occur without family therapy, which would necessarily involve the children. X is steadfastly opposed to such therapy. His opposition is one factor contraindicating the prospects of success of the therapy. X’s resistance will, on the facts of this case, influence Y, who will likely also resist. Even without the resistance, family therapy would be complex and challenging on the facts of this case. Thus, even though the views of the children are not determinative on the substantive issue of whether they should spend time with the father, the Court accepts the children’s views as strong evidence contraindicating any proposal that is dependent on their willing participation in family therapy.
In making these findings, the Court acknowledges that whilst X’s views are predominantly based on his experience of the father's family violence, there are other secondary contributors to his views. The mother missed multiple opportunities to address, mitigate, reality-test and reassure X about his views of the father. It would have been better for X if she had sought, as best she could, to reassure him that the father was not the risk to X that he imagined him to be. She did not do so. It is hard to be overly critical of the mother in this regard. She was the victim of longstanding family violence perpetrated by the father, which continued in its various manifestations right throughout these proceedings until the final hearing. In her mind, the reality of the father as a risk to herself and, by extension, to the children, was self-evident and reasonable. That the mother was traumatised by the violence is self-evident, and that she continues to be is a plausible hypothesis. Her failure to act in correcting X’s view must be understood in this context. In any event, the views of the children are not determinative in this case.
NATURE OF RELATIONSHIPS
The children have an excellent relationship with each other, and with the mother. The evidence is clear in that they are fearful of the father. The Court accepts the mother’s evidence that the children are currently in a good place. The conclusion of these proceedings will hopefully improve that.
The Court is satisfied that the children once had a good relationship with the father, indeed probably until shortly before the incident in early 2020. The Court accepts the father’s evidence about his time with the children before his time was suspended. They did many interesting and fun activities and seem to have engaged with a broad range of people. The once good relationship has been lost. In the longer term the children may well psychologically and emotionally experience the consequences of this lost relationship with the father, but this is the trade-off for their safety.
MEETING PARENTAL OBLIGATIONS
The evidence before the Court indicates that the father currently pays $38.25 per month in child support for the children. The Court is somewhat surprised that so little attention was paid to this particular consideration, on the facts of this case. Ultimately, this consideration is inconsequential compared to risk of harm considerations. Nonetheless, it is a matter on which Dr J specifically commented, probably without knowing the quantum of child support that the father paid. But this is a case where it is asserted, and indeed established, that the father has perpetrated coercive and controlling violence.
From the Court’s perspective, the father’s own evidence suggests a lifestyle that is totally inconsistent with a liability to pay child support which is presumably assessed at $38.25 per month. The Court knows that the father is self-employed in Sydney, but he told Dr J that he expanded his business operations into Queensland. The lifestyle described by the father in his affidavit of 14 October 2022 seems curiously inconsistent with such impecuniosity that he would only pay a pittance in child support each month. For example, in paragraph 7, he describes his work arrangements as such that he can adjust his work schedule around the needs of the children and their extracurricular activities. At paragraph 8, he describes his accommodation at Suburb F and their access to a broad range of recreational activities. The father owns a one-quarter share in a small boat, which, despite being small, was large enough for the three of them to spend overnights on weekends. In addition, the father describes the “…numerous toys, paddleboards, scooters, kids' motocross bikes, surfboards, boogie boards” that he has available for the children.
Commencing from paragraph 30 of the father's affidavit, he describes the activities that he used to undertake with the children before his time was suspended. They dined out frequently. The father, presumably through his business, owns a property in which there is plant and equipment, the use of which the children apparently enjoyed. In short, the father deposes to being able to provide a lifestyle for the children that seems strangely inconsistent with the child support that he pays. The Court cannot help but observe the potential for this factor to be yet another example of his coercive and controlling conduct.
PARENTING CAPACITY
In all the circumstances, and having regard to that which the mother has endured for many years, the mother’s capacity to provide for all the needs of the children has been excellent. In an ideal world, one devoid of the lasting impacts of family violence, including continuing coercive and controlling violence, the mother might have been attuned to the importance of the children having an ongoing relationship with the father. However, in reality, her capacity to meet the children’s emotional needs was overwhelmed by the need to protect them both physically and emotionally from the consequences of the father’s violence. It is important to protect the mother’s capacity to meet the needs of the children, particularly given the special needs arising out of X’s medical condition.
LIKELY EFFECT OF CHANGE
The order proposed by the mother and the Independent Children's Lawyer brings about the least change for the children. The order proposed by the father, based on the recommendations of Ms H and Dr J, brings about the most change, which, for reasons articulated above, is not in the best interests of the children. The proposals, in any event, are impracticable. This is not a case where this family would benefit from anything other than the finalisation of these proceedings. An interim order, whilst hinted to at various stages during the hearing, was neither ultimately pressed, nor something the Court would have considered. And yet, the father's proposal could only work if it were an interim order, as it was contingent on not only the success of family therapy, but on the success of each subsequent progression in the nature and time of the children's contact with the father.
ISSUES OF PRACTICAL DIFFICULTY AND EXPENSE
There is no such issue in this case.
PARENTAL ATTITUDES
In the father's case, he was trenchantly critical of the mother's attitudes towards the children having a relationship with him, whilst at the same time totally oblivious to the deficit in his attitude and profound lack of insight about the impact of his behaviour on the children and the mother, including how he conducted this litigation. For example, if the father was presented with evidence of X saying something or doing something that was against the father's case, the father could not contemplate any scenario but one that attributed the fault for this to the mother. The clearest, simplest example of this was X's strong emotional reaction after he met with the Independent Children's Lawyer shortly before the hearing commenced. On any objective analysis, X's emotional reaction was because the Independent Children's Lawyer met with him shortly before the final hearing and not because of anything the mother could have said or done. There are pervasive themes of distrust in the father's case, again with little or no consideration to his own agency in the situations confronting the children.
FAMILY VIOLENCE
Much has already been said about family violence, but in this case the mother proposes an injunction under s 68B of the Act at Order 16. It restrains the father from approaching the mother where either she or the children may live. It further restrains the father from approaching any school attended by the children or any place where they undertake sporting, social or cultural activities. It also restrains the father from contacting the mother and children unless specifically invited by the mother to do so in writing, or permitted by orders. The order is expressed as an order for the personal protection of the mother and the children.
The Court’s power in relation to injunctions for personal protection is found in s 68B of the Act.
In Hartley & Hartley [2021] FedCFamC1F 178, McClelland DCJ restated the relevant principles for the granting of injunctions at [11]–[14]:
11.The Court is empowered to grant injunctive relief in the nature of that sought by the parties pursuant to s 68B of the Act which relevantly empowers the Court to ‘grant such injunction as it considers appropriate for the welfare of the child’ including, pursuant to s 68B(2), by interlocutory order ‘in any case in which it appears to the court to be just or convenient to do so.’
12.At the outset it should be noted that the granting of an injunction restraining the exercise of what otherwise would be a person’s inherent rights and freedoms is a serious matter. The breach of such injunction potentially exposes a person to an action for contempt of Court. As noted by the plurality in Cardile v LED Builders Pty Limited [1999] HCA 18 (‘Cardile’) at [31]:
…that the court may grant an injunction in all cases in which it appears to the court to be just and convenient to do so – does not confer an unlimited power to grant injunctive relief. Regard must still be had to the existence of a legal or equitable right which the injunction protects against invasion or threatened invasion, or other unconscientious conduct or exercise of legal or equitable rights.
(references omitted)
13.In considering the nature of the injunctive relief, it is important to be aware of the general principle that ‘equity intervenes to the minimum extent necessary to do justice’.¹
14.In the context of family law, in Sieling and Sieling (1979) FLC 90-627 at 78 264, the Full Court said:
The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order and frame its order in such a way to impose no further restriction than is necessary to achieve the protection of the applicant’s interest.
See Giumelli v Giumelli (1999) 196 CLR 101 at [10] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ referred to in Norton & Locke (2013) 284 FLR 51 at [72].
In Oates & Crest (2008) FLC 93-365 at [76] the Full Court confirmed that an injunction restraining a citizen from passing over a public street whether they need to do so or not is a substantial curtailment of that citizen’s right of freedom of movement. It is a particularly serious matter for the Court to make an order that restrains the freedom of movement of a person. Such an order is coercive in nature and should only be made where there is a proper basis for doing so.
The existing ADVOs have now expired. Contrary to the suggestion made by the father's counsel, the fact that the father did not breach these orders does not indicate any attitudinal shift on his part, because his attitudes towards the mother were plainly manifest throughout the litigation and are discussed in these reasons for judgment. The order is warranted. The findings the Court has made about the risk of harm to the children arising out of the father's perpetration of family violence is the basis for it.
THE ORDER LEAST LIKELY TO LEAD TO THE COMMENCEMENT OF FURTHER PROCEEDINGS
Subject to any appeal, the order proposed by the Court is the one that it considers least likely to lead to the initiation of further proceedings. By contrast, the Court's assessment of the father's proposal is that there is a high prospect of further litigation, because the orders are impracticable and dependent on so many contingencies.
THE ORDERS IN THE BEST INTERESTS OF THE CHILDREN
Orders will be made in the terms proposed by the mother and Independent Children’s Lawyer. The mother is to have sole parental responsibility for the children and the children are to live with her. The children are not to spend time with or communicate with the father, with the exception of the father being permitted to send the children letters, cards, gifts or photographs not more than once per month. The mother shall facilitate any reasonable request made by the children or either of them to spend time with, or for telephone communication or FaceTime with the father. The father shall otherwise be restrained from approaching or contacting the mother or the children. It is the assessment of this Court that the father’s proposals do not have a reasonable chance of being successfully implemented.

I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.
Associate:
Dated: 11 April 2023

File number(s):	SYC 7182 of 2014
Judgment of:	ALTOBELLI J
Date of judgment:	11 April 2023
Catchwords:	FAMILY LAW – PARENTING – Where there is a history of family violence – Where the father has mental health issues and previous alcohol and substance abuse issues – Where the father continues to use coercive and controlling behaviours – Where the single joint expert recommends the children resume spending time with the father – Where the father’s proposal cannot be successfully implemented – Finding of unacceptable risk to the children – Orders made for the children to live with the mother and spend no time with the father except at the reasonable request of the children – Monthly communication through letters, cards, gifts and photographs allowed.
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 68B
Cases cited:	Carter & Wilson [2023] FedCFamC1A 9 F v M [2021] EWFC 4 Hartley & Hartley [2021] FedCFamC1F 178 Helbig & Rowe and Ors [2016] FamCAFC 117 Illgen & Yike [2018] FamCA 17 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 Oates & Crest (2008) FLC 93-365; [2008] FamCAFC 29 Ramzi & Moussa [2022] FedCFamC2F 1473
Division:	Division 1 First Instance
Number of paragraphs:	125
Date of last submission/s:	15 December 2022
Date of hearing:	31 October–3 November 2022
Place:	Sydney
Solicitor for the Applicant:	Reid Family Lawyers
Counsel for the Respondent:	Ms Spain
Solicitor for the Respondent:	KP Lawyers & Barristers
Counsel for the Independent Children's Lawyer:	Mr Anderson
Solicitor for the Independent Children's Lawyer:	Robertson Solicitors

SYC 7182 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS BISHOP Applicant
AND:	MR BISHOP Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	ALTOBELLI J
DATE OF ORDER:	11 April 2023