Brown & Andrews - [2025] FedCFamC2F 596

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Brown & Andrews [2025] FedCFamC2F 596

File number: SYC 72 of 2022

Judgment of: JUDGE MURDOCH

Date of judgment: 9 May 2025

Catchwords: FAMILY LAW - PARENTING – where there are allegations of significant risk of harm to the child in the father’s care – where the mother seeks supervised time continue indefinitely on account of such risk – where the father seeks unsupervised day time on alternate Sundays and one afternoon per week – where the father has a connection to child sexual abuse material – where the mother submits that the father presents a risk of harm with respect to his cyclical alcohol dependency – where the father’s consistent lack of insight is compounded by his propensity to fabricate events and information – where the father’s capacity to take accountability for his actions is wholly deficient – where the father’s written and oral evidence is uncompelling – where it is uncontested the child idealises the father – where the risks associated with continuing supervised time between the child and the father need to be considered against the risks posed by unsupervised time commencing – where the Independent Children’s Lawyer largely supports the mother’s position – where it is found that an unacceptable risk of harm exists in the child spending unsupervised time with the father – where it is found that the risks posed by the father can be mitigated by time being supervised until the child commences Year 8 – where the father’s time progressing to be unsupervised is contingent on a raft of protective safeguards with respect to the father’s alcohol intake – orders made for the mother to hold sole decision-making – section 68B injunctive orders for the protection of the mother are found to be appropriate.

Legislation: Family Law Act 1975 (Cth) ss 4(1), 60CA, 60CC, 60CC(2), 60CC(2A), 60CG, 61D(3), 65AA, 65D, 65Y, 68B

Cases cited:
B & B [1993] FamCA 143

Gorman & Huffman & Anor [2016] FamCAFC 174

Isles & Nelissen [2022] FedCFamC1A 97

Jones v Dunkel (1959) 101 CLR 298

Keane & Keane [2021] FamCAFC 1; (2021) 62 FamLR 190

M & M [1988] HCA 68

Moose & Moose [2008] FamCAFC 108

Pickford & Pickford [2024] FedCFamC1A 249

Division: Division 2 Family Law

Number of paragraphs: 307

Date of hearing: 3 – 7 March 2025

Place: Sydney

Counsel for the Applicant: Ms Hamilton

Solicitor for the Applicant: Fox & Staniland Lawyers

Counsel for the Respondent: Mr Givney

Solicitor for the Respondent: Lama Family Lawyers

Counsel for the Independent Children’s Lawyer: Ms Shae

Solicitor for the Independent Children’s Lawyer: Bleier Family Law Pty Ltd
ORDERS

SYC 72 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BROWN

Applicant

AND:
MR ANDREWS

Respondent

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

9 MAY 2025 (AMENDED PURSUANT TO THE SLIP RULE ON 14 MAY 2025)

THE COURT ORDERS THAT:
Parental and Decision-Making Responsibility
1.Subject to Order 2, the Mother shall have sole parental responsibility and decision-making responsibility for all major long-term issues in relation to the child X, born in 2016 (“X”).
2.The Mother is restrained from doing any act or thing to change X’s surname.

Live with
3.X shall live with the Mother.

The Time X Spends with the Father
4.Until the first day of school in Term 1, 2031 (the day X commences Year 8), she is to spend time with the father:
(a)supervised by B Contact Centre, or such other supervision agency (“the service”) as agreed between the parties in writing, for a period of four (4) hours each alternate Sunday, commencing the first Sunday from the date of these Orders;
(b)supervised by B Contact Centre, or such other supervision agency (“the service”) as agreed between the parties in writing, for a period of four (4) hours each Father’s Day; and
(c)at such other times as the parties may agree in writing.

5.In the event that Mother’s day falls on the time X is to spend with the Father pursuant to Order 4 above, X’s time with the Father will be suspended on Mother’s Day and X shall spend time with the Father on the two consecutive Sundays.
6.The Father shall be liable for the costs associated with his time with X pursuant to Order 4, including but not limited to any fees charged by the service.
7.Unless otherwise agreed the Mother is at liberty to suspend X’s time with the Father pursuant to Order 4 on no more than four (4) occasions per year and for the purposes of this Order:
(a)The Mother shall provide no less than twenty-eight (28) days’ notice to the Father of her intention to suspend the Father’s time; and
(b)The Mother shall not suspend the Father’s time with X pursuant to Order 4 on two (2) or more consecutive occasions unless otherwise agreed between the Mother and the Father.

8.Upon the commencement of Term 1, 2031 (“the school year 2031”) and conditional upon the father complying with Orders 13, 14, 15, 17, 18, and 19, X shall spend time with the Father:
(a)on the first Tuesday after the commencement of the school year 2031, and each alternate Tuesday thereafter, from the conclusion of school (or 3.30pm if a non-school day) until 6.30pm;
(b)on the second Sunday after the commencement of the school year 2031, and each alternate Sunday thereafter, from 2.00pm to 6.00pm; and
(c)at such other times as the parties may agree in writing.

9.In the event Father’s Day falls on X’s time with the Mother pursuant to Order 8 above, X shall spend Father’s Day with the Father from 2:00 pm to 6:00 pm and X’s time with the Father on the following Sunday is suspended.
10.In the event that Mother’s day falls on the time X is to spend with the Father pursuant to Order 8 above, X’s time with the Father will be suspended on Mother’s Day and X shall spend time with the Father on the next two consecutive Sundays.
11.The Mother is at liberty to suspend the Father's time with X pursuant to Order 8 on no more than eight (8) occasions per year and for the purposes of this Order:
(a)The Mother shall provide no less than fourteen (14) days' notice to the Father of her intention to suspend the Father's time; and
(b)The Mother shall not suspend the Father's time with X pursuant to Order 8(a) on five (5) or more consecutive occasions.

X’s Communication with the Father
12.That from the date of these Orders, the Father shall communicate with X via video as follows:
(a)Unless otherwise agreed on each Tuesday that the Father is otherwise not spending time with the child for a period of no more than 30 minutes from 5.30pm until 6.00pm and each Saturday for a period of no more than 30 minutes from 7.30am to 8.00am by video call and such communication will be initiated by the Mother;
(b)On X’s birthday for a period of no less than 10 minutes at a time agreed, but failing agreement, from 7.30am to 7.40am and such communication will be initiated by the Mother;
(c)On the Father's birthday for a period of no less than 10 minutes at a time agreed, but failing agreement, from 7.30am to 7.40am and such communication will be initiated by the Mother;
(d)On Christmas Day for a period of no less than 10 minutes at a time agreed, but failing agreement, from 8:00am to 8:10am and such communication will be initiated by the Mother.

Hair Follicle Testing
13.That no less than three (3) months prior to X’s time with the Father advancing to that set out in Order 8, the Father must undertake a supervised chain-of custody hair follicle test and shall continue to do so every three (3) months thereafter for the first 12 months after the commencement of unsupervised time.
14.For the purpose of all hair follicle drug testing referred to in Order 13, the Father must attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair alcohol testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this Order:
(a)the Father is required to maintain his head hair at a length of not less than four (4) centimetres; neither head hair nor body hair is to be cut, bleached or dyed;
(b)each party (and, if legally represented, their legal representative) is at liberty to provide AWDTS with a copy of these orders;
(c)the Father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this Order also hereby authorising AWDTS or nominee to provide the results of each test to all parties, including the Independent Children’s Lawyer, and their legal representatives upon receipt of such test results;
(d)the hair alcohol test may screen for alcohol EtG.
(e)AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair alcohol testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available;
(f)The Father shall solely bear the costs of hair follicle testing pursuant to these Orders.

15.Upon attendance the laboratory for testing, the father is to:
(a)Provide a copy of these Orders to the laboratory;
(b)Provide the Mother’s email address to the laboratory; and
(c)Obtain a receipt from the laboratory confirming sighting of these orders and of the Father’s current Australian Driver’s License with photo identification.

16.In the event that the Father does not comply with the timeframes as specified in Order 13 and/or returns a hair follicle test which shows excessive alcohol consumption for the period range of the test, the Father’s time with X pursuant to Order 8 shall be suspended and the Father's time shall thereafter be supervised by B Contact Centre (or such other supervision agency agreed in writing between the parties) for a period of 4 hours each alternate Sunday, with the cost of the supervision to be paid by the Father, until such time as the Father produces a hair follicle test result that does not indicate excessive alcohol consumption, upon which his time will resume pursuant to Order 7.

Breath Testing
17.The Father shall purchase a Breathalyser or otherwise Australian Standard certified breathalyser and shall provide a copy of the receipt of purchase to the Mother.
18.Upon the commencement of the Father’s time with the child pursuant to Order 8, no later than 30 minutes prior to spending any time with the child the Father shall engage in a live video of himself performing a breathalyser test and show the results to the Mother.
19.Upon the conclusion of the Father’s time with the child pursuant to Order 8, no later than 30 minutes following the completion of his time with the child the Father shall engage in a live video of himself performing a breathalyser test and show the results to the Mother.
20.That in the event the Father pursuant to Order 18 or 19 produces a positive breathalyser test, the Mother is at liberty to suspend the Father’s time with the child on that specific occasion.

Changeover
21.Unless otherwise agreed, changeover shall occur at X’s school upon the child concluding school, or otherwise, if a non-school day or if supervised time is in place, from Suburb C McDonalds situated at Suburb C Shopping Centre, D Street, Suburb C.

Injunctions
22.The Father is restrained by way of injunction from consuming any alcohol forty-eight (48) hours prior to, and while X is in his care.
23.Pursuant to section 68B of the Family Law Act 1975 (Cth), and for the personal protection of the Mother, the Father is restrained from any of the following:
(a)approaching within 100 metres of the Suburb F property situated at E Street, Suburb F in the State of New South Wales;
(b)approaching within 20 metres of the mother;
(c)recording or tracking X without the consent of the Mother in writing; and
(d)exposing X to any pornographic or child sexual abuse material.

24.The Independent Children’s Lawyer is to provide a copy of this Order to NSW Police.

AND THE COURT NOTES THAT:
A.Section 68C of the Family Law Act 1975 (Cth) provides that if a police officer believes, on reasonable grounds, that the Father has breached the injunction as set out in Order 23 above by causing or threatening to cause bodily harm to the protected person or by harassing, molesting, or stalking the protected person, such Police Officer may arrest the Father without warrant.

THE COURT FURTHER ORDERS THAT:
25.Except for the purposes of attending school events and extracurricular activities as set out in Order 28 below, or otherwise the minimal contact that may arise at changeover at X's school from time to time, the Father, during the time that he spends with X, is restrained by way of injunction from attending at any school at which X is enrolled.
26.That pursuant to section 68B, the Mother and Father are hereby restrained by injunction from denigrating the other in the presence or hearing of X, and from permitting X to remain in the presence or hearing of another person denigrating the other.

School and Extra-Curricular Activities
27.This Order acts as authority for any school which X attends to provide to the Father direct information ordinarily provided to a parent, including but not confined to, school reports, school newsletters, school photograph order forms (at the cost of the Father).
28.That upon X turning the age of fifteen years, and conditional upon the Father being permitted to spend unsupervised time with the child pursuant to Order 8, then the Father be at liberty to attend all school and sporting and other extra-curricular events to which parents are ordinarily invited to.

International Travel
29.Pursuant to s 65Y of the Family Law Act 1975 (Cth), the Mother is permitted to remove X from the Commonwealth of Australia without the consent of the Father.
30.X born in 2016 is permitted to have an Australian travel document and to travel internationally.
31.The Mother may apply for an Australian travel document (passport) for X born in 2016 without first obtaining the consent of the Father and shall be the only person with ‘parental responsibility’ of the child X born in 2016 for the purposes of applying for, and being issued with, an Australian passport for X born in 2016.

Other
32.Each parent shall provide the other with their current mobile telephone number and email address and shall advise the other parent of any change in these details within 24 hours of such change.
33.The Father shall ensure that the Mother has at all times the full details of his current address, and details of whom he resides with (with their specific names and relationship to him).
34.That each parent notify the other as soon as practicable in the event that X is hospitalised or suffers a significant illness or injury while in that parent’s care.

THE COURT NOTES THAT:
B.The Father is at liberty to access the school app.
C.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as indicated in Orders 1, 30, and 31.

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

These are parenting proceedings arising from the breakdown of the marriage of Ms Brown (“the mother”) and Mr Andrews (“the father”). The parties have one child, X, who is currently 9 years of age. X lives with the mother and presently spends supervised time with the father once per month.
Property issues were resolved and final orders made by consent on the last day of the final hearing.
It is agreed that X will continue to live with the mother who shall have sole decision-making responsibility, save for X’s surname. The gravamen of the dispute is whether X is at risk of harm in the father’s care. It is the case of the mother and Independent Children’s Lawyer that X is at risk of harm in the father’s care arising from a culmination of factors including the father’s connection to child sexual abuse material, his mental health fragilities, and cyclical abuse of alcohol. They submit that such risk can be ameliorated by supervision until X reaches adolescence and is able to self-protect. The father denies such elements of risk and asserts that the mother has interfered in his relationship with X. He submits that the continuation of supervised time will cause X to become disillusioned with both parents.
For the reasons that follow, I find that it is in X’s best interests that her time with the father be supervised until she is fifteen years of age. Unsupervised time will be subject to the father establishing by way of testing regime his continued sobriety.
THE EVIDENCE
A direction was made at the commencement of the hearing that no annexures to affidavits or exhibited documents would be read in the matter until they were individually tendered.
The mother relied on:-
·Outline of Case Document (Final Hearing) pages 1, 11-16 and 23-25 filed 27 February 2025;
·Her third amended Initiating Application filed 4 November 2024;
·Her Affidavit filed 18 October 2024;
·Her updating Affidavit (with leave) filed 3 March 2025;
·Her Financial Statement filed 15 November 2024;
·Affidavit of her treating psychologist, Ms Q, filed 18 October 2024;
·Affidavit of the father's subsequent and now former partner, Ms G, filed 18 October 2024;
·Affidavit of her current partner, Mr H, filed 18 October 2024.
The father relied on:-
·Outline of Case Document (Final Hearing) pages 5-8 and 14-20 filed 17 November 2024;
·The Amended Response filed 1 March 2024;
·His Amended Proposed Minute of Order; [1]
·His Affidavit filed 30 October 2024 (“the first trial affidavit”);
·His subsequent affidavit (with leave) filed 18 November 2024 (“the second trial affidavit”);
·His Financial Statement filed 17 November 2024; and
·The Affidavit of his friend, Mr J, filed 20 March 2023.
[1] Exhibit F13.

The Independent Children’s Lawyer relied on the:-
·Amended Outline of Case Document (Final Hearing) filed 3 March 2025;
·Single Expert Report of Dr K dated 13 September 2023 (“the first report”);
·Updating Single Expert Report of Dr K dated 24 February 2025 (“the second report”); and
·Child Impact Report of Ms L dated 21 March 2023.
Multiple exhibits were tendered during the trial.
BACKGROUND
The father was born in 1972 and is currently 52 years of age. The mother was born in 1981 and is 44 years of age.
The parties commenced residing together in December 2011, were married in 2014 and separated on a final basis on 29 February 2020. A Divorce Order became final in early 2022.
X was born in 2016. The mother took maternity leave for a few months.
The mother returned to part-time work three days per week in mid-2016. The father cared for X one day per week and a nanny cared for X on the other days the mother worked. The mother increased her work to four days a week later in 2016.
The mother alleges that in May 2018 the father was physically violent towards her for the first time.
In mid-2018 the father was admitted to M Hospital after taking an overdose of medication.
In July 2019 the father hit a door in the home damaging it. The mother alleges that the father strangled her on this occasion in the presence of X.
Upon separation on 29 February 2020 the mother and X left the home and commenced living with the maternal aunt.
Immediately post-separation the mother refused to allow X to spend time with the father unsupervised. On 1 March 2020 the mother sent the father a text message inviting him to attend X’s sports activity. The father declined.
In early 2020 the mother asserts that the father was admitted to a mental health clinic. The father denies that he was admitted to hospital anytime in early 2020 and deposes that he went and stayed at a serviced apartment for a few days to allow X to sleep in her own bed. On this day the mother moved back into the former matrimonial home and found cameras hidden in air conditioning vents in the loungeroom, office and kitchen with video and sound recording. The mother moved out of the former matrimonial home the following day.
In early 2020 the father collected X from daycare without the mother’s prior knowledge. The mother attended the property, threw a brick through the window to gain access and removed X from the premises. Police attended at the property and spoke with the father. The mother made a statement to the police in early 2020. No charges were laid. This incident is discussed in further detail below.
In early 2020 the mother made a statement to the Police detailing allegations of family violence perpetrated upon her by the father.
On 6 April 2020 the parties attended mediation and reached an interim agreement in relation to parenting arrangements including that:
·X live with the mother.
·Prior to the father moving out of the former matrimonial home, X spend time with him from 10:00am to 11:30am each Sunday supervised by Mr J. The father was to evidence that he had not been drinking alcohol by using a breathalyser at the commencement of each period of time.
·Upon the father vacating the former matrimonial home, X spend time with the father each Wednesday and Sunday for a period of three hours supervised by Mr J, with such time to take place at the former matrimonial home. The father was to continue to evidence he had not been drinking alcohol by using a breathalyser at the commencement of each period of time.
·The father's treating psychologist provide a report to both parties as to the father’s mental health.
·The parties engage a drug and alcohol expert to provide an assessment and treatment plan for the father.
·The supervision of X's time cease upon the father consistently evidencing that he had not been drinking alcohol by using the breathalyser at the commencement of time, the production of a mental health assessment indicating the father is not a risk to X, and positive engagement by the father in alcohol counselling.
X initially spent time with the father for approximately two hours each week supervised by Mr J. On 7 June 2020, unsupervised time commenced despite the father not providing a clear drug and alcohol report as had been agreed.
On 28 June 2020 X commenced spending overnight time with the father on Wednesdays and Sundays and continued to spend unsupervised overnight time with the father until January 2023.
The mother contacted New South Wales Police in late 2021 following an incident between the parties at the mother’s home. In late 2021 a provisional Apprehended Domestic Violence Order was made against the father for the protection of the mother restraining him from going within 100 metres of where she lived or worked.
The mother's child with her current partner, Mr N (“Mr N”) was born in 2022.
In June 2022 the father commenced a relationship with Ms P.
In late 2022 New South Wales Police withdrew the application for Apprehended Domestic Violence Order for the mother’s protection and it was dismissed.
On 29 November 2022 the mother commenced these proceedings.
On 15 December 2022 the father emailed the mother advising her not to book any extracurricular activities for X during the time she spends with him. He further advised the mother that he could not spend time with X in January or February 2023 as he was going overseas.
On 19 December 2022 the father messaged the mother and told her she had to collect X from Suburb CC where he was living, or he would keep her in his care.
On 21 December 2022 the father sent the mother emails threatening to withhold X unless he knew the time he was to spend with X on Christmas Day and again demanded that changeover occur at Suburb CC.
On 15 January 2023 the father retained X for five consecutive days without the mother’s consent as the mother had “kept [X] from me over the Christmas/New Year period.” [2]
[2] Father’s First Trial Affidavit, paragraph 60.
The mother contacted the Suburb O Police in January 2023. The mother subsequently suspended X’s unsupervised time with the father, requiring that any time spent be supervised.
A Child Impact Report dated 22 March 2023 was released to the parties on that day.
On 22 March 2023 orders were made by consent that:-
·X live with the mother.
·X spend supervised time with the father each alternate Sunday from 2:00pm to 5:00pm, with the cost of such supervision to be paid by the father.
·X have video call communication with the father from 5:30pm to 6:00pm each Tuesday and from 9:00am to 9:30am each Saturday, with such calls to be initiated by the mother.
·The father to undertake CDT testing at the request of the Independent Children's Lawyer.
·Dr K be appointed as the single expert.
The father and Ms P commenced living together in May 2023.
The single expert report was released to the parties on 19 September 2023.
The mother completed the Parenting After Separation Course on 23 November 2023.
On 21 December 2023 the mother’s lawyers received correspondence from the father’s lawyers advising that the father could not afford to pay child support having regard to his payment of rent, the costs of supervised time and everyday living expenses and that “he will arrange to pay once supervised time ceases.” [3]
[3] Mother’s Trial Affidavit, paragraph 97 iii.
On 8 February 2024 the mother’s lawyers received an email from the father's lawyers which read:
We note that your client has made an application for an assessment of child support payment of which is due to commence in March.
We write to inform you that our client does not have the capacity to pay for child support and in addition the costs of [B Contact Centre] reports and in those circumstances he will not be able to spend time with [X].
Given the contents of the reports, is your client in a position to consider one of the following:
1. Supervised time to take place by our clients partner in lieu of [B Contact Centre]
2. Child support payments not to commence until supervised time ceases with [B Contact Centre] and a joint letter be written to the Child Support agency reflecting same.
3. Funds be withdrawn from the offset account to pay for [B Contact Centre] fees.[4]
The mother did not agree.
[4] Ibid, paragraph 97 iv.
On 1 March 2024 the matter was set down for final hearing.
In 2024 the mother married Mr H.
On 8 August 2024 the mother commenced attending upon Ms Q, a clinical psychologist. The mother has attended approximately five appointments with Ms Q since 8 August 2024 to obtain support in response to nightmares she has been experiencing. Ms Q deposes that the mother reported to her experiencing symptoms of anxiety and trauma including hyper arousal, hyper vigilance, agitation, sleep disturbance, nightmares and experiencing intrusive thoughts.
The father and Ms P separated in September 2024. The father’s non-disclosure of such separation is discussed later in these reasons.
The final hearing listed for 18 November 2024 was unable to proceed due to illness of the father’s counsel. The final hearing was consequently adjourned.
On 2 December 2024 the mother was advised by B Contact Centre that X would now be spending supervised time with the father once every four weeks rather than each fortnight. The father’s oral evidence was that this reduction in time occurred as he could not afford to pay for supervision fortnightly.
The father asserts that he completed an online parenting after separation course which encompassed five one-hour sessions over five days. He does not depose as to when he undertook this course. He told the single expert that the benefits he gained from the course included “putting the child first-type thing” and that he learnt about some things he would have done differently in terms of his interactions with the mother. [5]
[5] The First Report, lines 742- 745.
An updated report of the single expert dated 24 February 2025 was released to the parties on 25 February 2025.
The matter proceeded to final hearing over five days commencing 3 March 2025.
THE SINGLE EXPERT’S REPORTS
Dr K, a clinical psychologist and child psychotherapist prepared a single expert report dated 13 September 2023 (“the first report”), having conducted individual interviews and observations of the parties, X and her siblings, the mother’s partner Mr H and the father’s then partner Ms P. There was no challenge to his expertise, and I am satisfied he is suitably qualified to provide an expert opinion to the court.
Whilst opining the mandated considerations pursuant to section 60CC of the Act as they applied at that time, the single expert did not provide an opinion in the first report as to the competing parenting proposals in circumstances where the father had declined to advise what transpired for him between 1990 and 1995; asserting that this was “not relevant”. The single expert opined that the absence of such information constituted a significant limitation of the first report and that the father had difficulty entering into the assessment process in good faith. He opined the possibility that the father has not integrated this part of his life into his personal narrative, which may at a later time present a risk to his mental health and correspondingly a risk to X when in his care.
Arising from the above, an addendum report was ordered upon the matter being adjourned on the first occasion in November 2024. Further assessments were undertaken of X with the mother and her husband and their child, X individually and X with the father only. The mother and father were re-interviewed, and Ms R (school principal) and Ms S (Year 2 teacher) from X’s school were also spoken to. Dr K read the parties’ first trial affidavits together with affidavits of Ms Q, Ms G, the video and audio recordings in evidence and various documents produced under subpoena including the reports prepared by B Contact Centre. This report was released to the parties on 25 February 2025 (“the second report”).
THE PARTIES’ PROPOSALS
By the conclusion of the final hearing the mother sought or agreed to orders being made that broadly:
·X live with the mother.
·The mother have sole decision-making responsibility subject to an order that she not change X’s surname.
·In addition to the order as to sole decision-making responsibility a further specific order that X shall attend T School or “otherwise [U School]” or otherwise a school of the mother’s choosing.”
·X spend time with the father until she is 13 years of age each alternate Sunday from 2:00pm to 6:00pm with the father to pay the costs of such supervision.
·The mother be at liberty to suspend X's time with the father on no more than four occasions per year upon 14 days’ notice being given, with such suspension to not occur on two consecutive occasions.
·Upon X turning 13 years of age, she spend time with the father on an alternating two-week cycle such that in week one it be from the conclusion of school until 6:30pm of a Tuesday and in week two on Sunday from 2:00pm to 6:00pm.
·The mother be at liberty to suspend X's time with the father on no more than eight occasions per year upon 14 days’ notice being given, with such suspension to not occur on more than five consecutive occasions.
·X have video call communication with the father initiated by the mother twice each week and on other special occasions.
·X’s unsupervised time with the father is conditional upon the father:
·Undertaking a supervised chain of custody hair follicle and continuing to do so thereafter once every three months for the first 12 months after the commencement of unsupervised time; and
·engaging in a live video of himself performing a breathalyser test and showing the results to the mother no less than 30 minutes prior to each time occurring.
·In the event the father does not comply with the time frames for him to undertake hair follicle testing and/or returns a hair follicle test which shows excessive alcohol consumption for the period range of the test, the father's time to supervised until such time he produces a hair follicle test result that does not indicate excessive alcohol consumption, upon which his time will resume in accordance with the orders.
·In the event the father produces a positive breathalyser test the mother is at liberty to suspend X's time with the father on that specific occasion.
·The father is to be responsible for purchasing and paying for the breathalyser equipment and the hair follicle alcohol testing.
·Changeover of X when not occurring at her school or if supervised time is in place will occur at the McDonald's at Suburb C shopping centre.
·The father be restrained by way of junction from consuming any alcohol 48 hours prior to and during the period of time that X is in his care.
·The father is at liberty to attend all school, sporting and extracurricular events to which parents are ordinarily invited to during times that he is spending unsupervised time with X pursuant to these orders. Until this time the father be restrained by injunction from causing himself to come into contact with any of X's friends or associates and is further restrained by injunction from:-
·Approaching within 100 metres of the mother’s current residence and any other residence in which she may time to time reside;
·recording or tracking X without the consent of the mother in writing; and
·exposing X to any pornographic material.
·The mother be permitted to take X out of Australia without the consent of the father and for this purpose be permitted to apply for the issue of an Australian passport.
·The father ensure that the mother has at all times the full details of his current address, details of whom he resides with and his contact details including telephone number and email addresses.
·Orders restraining the mother and father from denigrating the other.
At the commencement of the final hearing the position of the Independent Children’s Lawyer largely adopted the recommendations opined by the single expert in his second report such that X immediately progress to spending time with the father on a day only unsupervised basis, conditional upon the father complying with orders for ongoing alcohol testing and psychological treatment.
By the time of submissions, the position of the Independent Children’s Lawyer had changed significantly, largely adopting the position of the mother, save for proposing that:-^[6]
·X's supervised time with the father cease at the age of 12 years;
·There be no specificity as to the time X spends on a supervised basis, and that it be ordered to occur for a period of four hours each alternate Sunday and on Father's Day;
·The mother provide 28 days’ notice to the father of her intention to suspend the father's time;
·The father be restrained from attending any school at which X is enrolled rather than, as sought by the mother, an order restraining the father from coming into contact with any of X's friends or associates.
·Each party provide to the other details as to their current mobile telephone number and email address and advise the other party of any change in these details within 24 hours of such change. The mother conceded to this variation in the order proposed by her.
·Each party notify the other as soon as practicable in the event that X is hospitalised or suffers a significant illness or injury whilst in that party's care. The mother agreed with this proposal.
[6] See Exhibit ICL14.
The Independent Children's Lawyer does not agree that the father be required to undertake a breathalyser test in addition to hair follicle testing as sought by both the mother and the father.
The father did not engage in the extensive orders sought by the mother and Independent Children's Lawyer regulating the parenting arrangements for X, instead relying upon an amended suite of orders[7] tendered on the final day of the hearing that broadly:-
[7] Exhibit F13.
·The mother be granted sole decision-making responsibility subject to an order restraining her from changing X's surname.
·X spend time with the father on an unsupervised basis:-
·from 8:00am to 6:00pm each alternate Sunday;
·from after school until 6:00pm each alternate Tuesday;
·from 8:00am to 6:00pm Boxing Day each year; and
·for FaceTime each Thursday and Saturday for an unspecified period of time.
·X's time with the father be suspended on Mother's Day with the father then to have time on the next two consecutive Sundays.
·X's time with the father be suspended on the Tuesday and Sunday of one week during the Christmas school holidays upon the mother providing the father 21 days’ notice by text message of such suspension.
·Changeovers on non-school days occur at the car park of McDonald’s at Suburb V.
·On Tuesdays the father collect X from her school at the commencement of his time and return X to the mother at the conclusion of such time.
·For a period of 12 months the father submit to a CDT test a week before the second Sunday of the cycle and provide a copy of the result to the mother within 48 hours of receipt.
·The father purchase a Breathalyser from “W Store” and enable the breathalyser to forward an email or text message to the mother with the result within 30 minutes of any time that he is due to have time with X. Upon the father exercising unsupervised time with X, he shall enable the breathalyser to forward an email or text message to the mother within 30 minutes of X’s time with him concluding.
·The father be restrained “from approaching more than 20 metres from the mother” or otherwise approaching the mother's residence or employment save for changeovers.

The father further seeks notations only that he is at liberty to:-
·attend school activities to which parents are usually invited and any sports game or training that X is involved in; and
·access the school app.
THE LEGAL PRINCIPLES
The court is compelled to make such parenting orders that are considered proper.[8] When making parenting orders the court is to regard the best interests of the child as the paramount consideration. [9] A child’s best interests are ascertained by a mandatory consideration of six non-hierarchical criteria set out in section 60CC(2) of the Act.
[8] Section 65D of the Family Law Act 1975 (Cth) (“the Act”).
[9] Ibid, s 60CA of the Act. This is confirmed in s 65AA of the Act.
In contemplating the mandatory considerations, the Court must consider any history of family violence, abuse or neglect involving a child or a person caring for a child, together with any family violence order that applies or has ever applied to a child or a member of the child’s family. [10] Unless it is in the child’s best interests to do so, the court must ensure that orders made are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence.[11]
[10] Ibid, s 60CC(2A).
[11] Ibid, s 60CG.
When an order is made conferring parenting responsibility for a child to more than one person in relation to “major long-term issues” the order may prescribe whether those persons have joint or sole decision-making authority in relation to all or only specified issues.[12] “Major long-term issues” is defined to include issues such as the child’s education, religion, culture, health, name and changed living arrangements.[13]
[12] Ibid, s 61D(3).
[13] Ibid, s 4(1).
Each party also seeks that I make injunctions for the welfare/protection of X and in that regard my decision will be informed by the provisions of s68B of the Act.
CONSIDERATION
X
X is doing well at school with an “excellent” attendance record and has maintained the academic strides she made in 2024. The single expert identified no behavioural or emotional concerns or needs arising from her observation and interview. Apart from occasional soiling incidents which appear to have largely resolved, X appears to be developing well and is socially adjusted. The mother encourages X’s participation outside the family home in many extracurricular activities. The single expert opined, and I accept, that X's participation outside the family home in extracurricular activities is encouraged by the mother and is something that would further enhance her development across many areas, including self-confidence and peer development.[14]
[14] The Second Report, lines 651- 654.
It is uncontested that X is securely attached to the mother and is maintaining her relationship with her younger brother and stepfather. She appears to be well connected to her step siblings and spoke positively about her relationship with them in the observations for the single expert report. I accept and find, in accordance with the single expert’s opinion and noting that she is the uncontested resident parent, there are no concerns as to the mother’s capacity to meet X's needs.
It is uncontested that X loves the father and thoroughly enjoys the time she spends with him on a supervised basis. When asked by the single expert to complete the drawing of important people she drew the mother, stepfather, her two step siblings, her younger brother, the father and the stepfather's parents. At the conclusion of her observation with the father for the second report X spontaneously told the father that she loved him, which he reciprocated. When asked what three wishes she would grant herself with a magic wand X said that she would like to have sleepovers at the father's home.[15] From her statements to the single expert X is clearly aware that she does not get to spend much time with the father. I accept and find that X loves the father and wants to spend more time with him; the supervision reports convey a palpable sense of the excitement X feels when seeing and spending time with the father.[16]
[15] Ibid, lines 67 – 73.
[16] Exhibit F11.
X told the single expert that the father “spoils me, sometimes a bit too much.”[17] During X’s observed time with the father the single expert recorded that X was enjoying her time with the father but at the same time appeared to be:
..a little silly or even regressed in her behaviour although it was largely quite subtle. A few times, for example, she had a somewhat babyish voice when drawing, something that had not been observed earlier.”[18]
[17] The First Report, line 84.
[18] The Second Report, lines 129-132
The single expert further opined that whilst playing a board game with the father X was “…somewhat giddy, at times excessively so, in this regard.”[19] The single expert opined that it is likely that X's somewhat regressive behaviour with the father speaks to the nature of her relationship with her father in that it has not developed in a way one would expect, particularly when compared to the relationship with the mother; it is likely that she has developed an idealised view of the father. It was unchallenged that this comparative lack of progression in X's relationship with the father is likely to be linked to the limited time together:
as well as the attitude to parenting [the father] has as a result of his own upbringing. Saying “no” is likely to have much more significance for someone with a history of abusive childhood experiences, rendering it harder for [the father] to be an authoritative parent. [X] herself appears to have picked this up in her comment…. That the father “spoils her too much.” [20]
[19] The Second Report, lines 135-136.
[20] The Second Report, lines 677-682.
X expressing a wish to spend more time with the father is therefore, in part, an expression of wanting to be “spoiled” more. This ultimately means that what X expresses “...given she is only eight, is partly based in normal childhood fantasy, and needs to be understood in such a context.”[21] I accept this unchallenged opinion.
[21] Ibid, lines 677-682.
I accept that X told the single expert that there had been no incidents that made her feel unsafe, nor had any person.
The Mother
The mother currently lives with her husband, Mr H, X, and their son Mr N. The mother works on a full-time basis, primarily from home with one day a week in the office. The mother generally drops X to school and collects her, though Mr H assists her in this regard as and when required.
The father made submissions as to why specific facts and events “go to the heart of the mother’s credit” as to allegations of risk made by her but did not seek a general credit finding. I will deal with the father’s submissions as to specific pieces of evidence individually.
Mr H has two children from a prior marriage who are fifteen and eleven years of age. They live with their mother and spend time with Mr H two nights per fortnight and all of the school holidays. Their co-parenting relationship is described as amicable and flexible. No assertion was made that Mr H has attempted to obstruct X’s relationship with the father.
The Father
Since late 2023 the father has worked for a technology company, working somewhere between 40 to 60 hours per week.
The single expert opined that the father appeared somewhat ill at ease in giving responses and appeared to find the experience uncomfortable. He described an abusive childhood, leaving home at the age of seventeen. Drug and/or alcohol problems in his family of origin were denied and he appeared uncomfortable when asked about any family history of mental health issues. He has a “much better” relationship with his mother as an adult but does not have a close relationship with his father or siblings.[22]
[22] Ibid, lines 461-475
It is difficult to accurately record the father’s current circumstances having regard to the nature of his evidence; a considerable portion of the evidence he gave was demonstrably untruthful and contradictory. His cross-examination highlighted significant issues both with respect to frankness and a propensity to fabricate that cause me significant concerns, not only as to weight, but also an evident inability to reflect on its impact on the reservations held of his parenting capacity. I did not find the father to be an impressive or credible witness and the reasons that follow elucidate why.
The Father’s Falsehood as to Being a Police Officer
Over a 25 year period the father has lied to a number of people about being a Police Officer. The father himself deposes that he “stated in passing that I worked in the police force. In the early days, at the time I did not correct it.”[23]
[23] Father’s First Trial Affidavit, paragraph 234.
The mother deposes that during the relationship the father often told her, her family and friends that he had been a member of the police force, telling stories about:
..working undercover in the jails, being in the dog squad, being a detective, being shot, that he had once shot a father who had a young child (the father later died from the gunshot wound) and that he had worked on the [serial killer] case. [24]
[24] Mother’s Trial Affidavit, paragraph 75.
Her evidence was not challenged that:
When we got into arguments, and I threatened to call the police, [the father] would say to me words to the effect of: “go ahead they will not believe you. They are all my buddies and ex-work colleagues. Whose side do you think they will be on? I know people who can mess you up.” [The father] constantly told me that when people cross him he would “fuck them up” and told me a story that he broke a man’s back and put them in a wheelchair after he found out they abused his sister as a child. I was therefore very hesitant to report him to the police. [25]
[25] Ibid, paragraph 74.
The father was in a relationship with Ms G from mid-2021 to early 2022. Ms G filed an affidavit in the mother’s case on 24 January 2023 deposing that the father asked her in mid-2021 to pretend to his friends he was in the police force if the topic arose. Ms G confirmed this earlier evidence in her further affidavit filed for the purposes of the final hearing.
In approximately June 2022 the mother was contacted by Ms G, at which time Ms G was no longer in a relationship with the father. They met in person in January 2023 and on this date Ms G advised the mother that the father had never worked for the police:
…he tells people this so they do not mess with him and uses it to scare you….[the father] told me to pretend that he worked with the police whenever he was with his friends. I used to think it was strange. Around his friends he used all the police lingo and told them these stories about his time in the police force.[26]
[26] Ibid, paragraph 36.
In the first interview with the single expert, upon being reminded of the allegations made by the mother that his claim to have worked in the police force was a lie, the father conceded that he had lied to the mother due to his “horrific childhood” and made specific reference to “imposter syndrome.” [27] That said, the single expert noted that “imposter syndrome” is not a recognised psychiatric diagnosis.
[27] First Single Expert Report, lines 1091 – 1093.
The father deposes to his relationship with Ms G in his trial affidavit and addresses the various allegations made by her throughout the proceedings. As to her assertion that he had asked her to lie to friends about him being in the police force, the father simply deposed:
I have never indicated to [Ms G] that I worked in the Police Force.[28]
[28] Father’s First Trial Affidavit, paragraph 193.
Nowhere in his affidavit does the father concede that he asked Ms G to lie on his behalf as he conceded in cross-examination. He could not provide an explanation as to why he was not frank in his written evidence. I accept the submission of the Independent Children’s Lawyer that the father’s written evidence on its face left the impression that Ms G was not telling the truth and was designed to bolster the father’s case.
The father’s trial affidavit is entirely silent as the mother’s allegations in this respect, and the single sentence that he “did not correct” the mother belies the gravity of the fabrication. I formed the view that he continued to minimise the weight of his untruth; when it was put to him that his failure to respond to the allegation in his written evidence was not frank, he merely responded “I can’t say.” He asserted it only “started as somebody mistook me for someone in the police and it snowballed from there…” I find this indicative of the father’s limited accountability, particularly noting the mother’s evidence as to the intricacies of such lies was unchallenged.
The mother told the single expert that “she believed the father told her this in order to prevent her from making notifications/reports with regard to some of his alleged behaviour.” [29] This was denied by the father, as was the proposition that the father said these lies to gain status. He stated that he did to it “reinvent” his history because of the shame he felt about his upbringing. As to the father’s failure to discuss his five or six years post-schooling with the single expert, he acknowledged that discussing this period of time had the potential to reveal his lie:
When asked specifically whether he had not volunteered the information related to this period because it would have ultimately exposed the claim about working for the police, particularly given he had advised he had not earned any qualifications, [the father] said that it was “probably true”. [30]
[29] The First Report, lines 257-262.
[30] The Second Report, lines 602-605.
Falsehoods Directed to Third Parties
Similar fabrications were also made to a slew of third parties. In mid-2018 in the course of an assessment at M Hospital the father stated that he was an ex-army serviceman with a background of Post Traumatic Stress Disorder (“PTSD”). He further stated that he had recently suffered the death of a friend and fellow military man who committed suicide after struggling with PTSD and that his funeral was the following day. None of this was true.
During the same assessment he asserted that he was not a regular alcohol consumer. That assertion is explored in greater detail later in these reasons. The following day the father expanded on this fabrication and stated that:
·his friend had committed suicide by hanging three weeks prior;
·since then he had taken a period of absence from work as there had been a deterioration in his mood and function;
·he was angry at his friend for his action;
·his friend had been found by his 19 year old son; and
·he had been speaking to the widow of the deceased friend and was supposed to be giving the eulogy that day, having spent the prior day writing it.[31]
[31] Exhibit M3.
A letter from Dr Y, the father’s treating clinical psychologist dated 7 July 2018 records that the father told him that the suicide of a friend who had experienced PTSD from miliary service had shaken him. Clinical notes attached to such letter reveal the father went to extreme lengths to reinforce his lie, elaborating on such friend’s backstory:
Not dealing w [Mr Z]’s suicide. Back from [Country AA] 2 ½ - 3 yrs & then better for a while. Seemed like he was getting the old [Mr Z] back.
…
Explored differences b/w him & [Mr Z].
(As per original)
The father conceded in cross-examination that whilst “[Mr Z]” is a real person, he is not deceased. The notes record an entire session being devoted to assisting the father to deal with the suicide of this friend; exploring the differences between himself and this deceased person and affirming the father’s resilience.[32] The father conceded he had lied to Dr Y and that he continued the lie to the mother after having sessions with Dr Y.
[32] Exhibit M7.
The Father’s Misleading/False Evidence to the Court as to his Relationship Status
In October 2024 each of the parties filed their trial affidavits. The father’s affidavit is silent as to his relationship with Ms P, despite commenting on the mother’s relationship with Mr H. His affidavit deposes the same residential address he lived at with Ms P at BB Street, Suburb CC.
On 18 November 2024, some five days before the matter’s listing for final hearing, the father filed an affidavit conceding that in his trial affidavit he had failed to disclose his separation from Ms P some two months prior. He deposes that at the time he swore his first affidavit, he and Ms P were no longer in a relationship, she having told him in September 2024 that she wanted him to leave her apartment as she was exhausted with the father being sad. He thus left the apartment and stayed with Mr J for five to six weeks and then obtained shared accommodation at DD Street, Suburb CC where he rents a room. Most of his clothing and vehicle were still at the apartment of Ms P. His time with X continued to be at Ms P’s apartment and Ms P for some reason continued to be present during this time. He had not told X that he and Ms P had separated. The father deposed that his “failing in not making a full and frank disclosure as to my circumstances in my trial affidavit arose out of panic”[33] as he felt that if he did disclose his true circumstances, his case would be prejudiced.
[33] Father’s Second Affidavit, paragraph 11.
Having admitted to misleading the court, the father then gave oral evidence in cross-examination by the mother’s counsel as to the nature of his relationship with Ms P. His oral evidence was that he and Ms P separated on 16 August 2024 when she asked him to move out, not in September. He gave evidence as follows:
COUNSEL:What triggered you to start drinking a bottle of wine in August?
FATHER:Like I mentioned, the breakdown of my relationship, was just I guess old habits – which I corrected after six weeks.
COUNSEL:Your affidavit says that it wasn’t until September that [Ms P] broke up with you?
FATHER: It was August.
…
COUNSEL:You admit in your affidavit of November that you mislead to the Court in your earlier affidavit of October in two material respects don’t you? Firstly, in your Affidavit of October you said you were still in a relationship with [Ms P] – that was untrue?
FATHER:Since I moved out in either late August or early September, [Ms P] and I are friends, we spend a lot of time with each other, we go to the gym together almost every day.
…
COUNSEL:If you were to resume your relationship with [Ms P], do you know when might it happen?
FATHER: After these proceedings.
COUNSEL:Does that mean you’re just having a break until the end of this week?
FATHER: There’s been no finite date put on it but it’s been discussed. We can discuss a future together once everything here is resolved.
The father’s inability to concede as to his conduct when giving oral evidence without the assistance of having a solicitor draft his evidence was telling:
COUNSEL:Do you agree that you misled the court in October about that material fact?
FATHER:That I was separated from her? Is that the question sorry?
…
COUNSEL:In your October affidavit you said that you were still in a relationship with [Ms P] correct?
FATHER:Yes.
COUNSEL:In your November affidavit you say “my affidavit sworn on 30 October 2024 is misleading in that I do not refer to my relationship with [Ms P] as being separated.” Was what you wrote there correct?
FATHER:Yes.
COUNSEL:So that means you must have misled the court in your October affidavit about your relationship status with [Ms P], doesn’t it?
FATHER:It would seem. (emphasis added)
In cross-examination the following day by the Independent Children’s Lawyer the father’s evidence changed again; the father revealed that he and Ms P had in fact reconciled a month previously, though were not living together at this time:
COUNSEL: So you’ve kept up a pretence to [X] that you and [Ms P] are still together?
FATHER:Yep.
COUNSEL:Does she know now that you’re no longer together?
FATHER:No she doesn’t.
COUNSEL: She still doesn’t know?
FATHER:Yep.
COUNSEL: When do you propose to tell her?
FATHER:I’m not sure I will.
COUNSEL:Not ever?
FATHER: Well [Ms P] and my relationship hasn’t followed a linear timeline – so to say that we’re together, not together, together, not together – I would suggest if I was asked now we are, for all intensive purposes – we don’t live together but we see each other.
COUNSEL:Are you still in a relationship with her?
FATHER:Yes.
COUNSEL:But you’re just not living together?
FATHER:Yes…
COUNSEL:…you’re now back in a relationship?
FATHER:Yeah I’d say so.
COUNSEL:Do you accept that’s the first time you’ve told her Honour that evidence? Or do you accept from me that that’s different to the evidence you gave during the course of yesterday?
FATHER:I’ve never said that I was not with [Ms P] since I’ve been in this Court. I don’t believe I have anyway…(emphasis added)

Whilst the father did not specifically state that he was not still separated from Ms P, his evidence the day before clearly gave that impression. At no time did he tell the court, either in evidence in chief or during his extensive cross-examination, that he and Ms P had reconciled. His attempt to effectively assert that he had not misled the court is rejected. The father’s assertion in this regard does him little credit.
I accept that the father’s continuing relationship with Ms P, irrespective of whether they are living together or not, is particularly material in this matter arising from a number of relevant risks of harm. Ms P would have been well placed to give evidence as to her relationship with the father, the circumstances of their separation and whether the risk issues raised by the mother were any part of the reason for such separation. She could have provided insight as to her observations of the father’s mental health, his alcohol use, whether their relationship was marred by family violence and the father’s care of X.
Ms P was an obvious person to call as a witness. The father did not call her. He did not provide any written evidence as to why he did not do so. When afforded the opportunity to explain his failure to call Ms P, the father’s oral evidence was that she had experienced a “nasty separation and divorce” and she found the court process triggering. The only evidence as to this assertion is the father himself. In the circumstances of the evidence of the father as identified earlier in these reasons I do not accept his evidence on this subject matter. Further, Ms P filed an affidavit in support of the father previously in these proceedings. I accept the submissions of the Independent Children’s Lawyer as supported by the mother that the father does not provide a reasonable explanation for not calling such a significant and relevant witness and this permits me to draw an inference that she would not have assisted the father’s case (see Jones v Dunkel (1959) 101 CLR 298).
The Father’s Misleading the Court as to His Alcohol Use
The father’s second affidavit further concedes that in his first trial affidavit he also misled the court as to his level of alcohol consumption:
Since early December on most evenings I have been drinking a bottle of wine per night. I'm still able to function in my workplace and have not missed any days of work. I have been able to stop drinking 24 hours prior to my time with [X] in accordance with court orders.
As such, my affidavit sworn on 30 October 2024 is misleading in that… I did not disclose my then current level of alcohol consumption.[34]
[34] Father’s Second Affidavit, paragraphs 6-7.
In his oral evidence the father deposed that the above should read August, such that he admitted to drinking a bottle of wine per night from August. His evidence was then that this drinking habit did not fully commence in August, but the amount was something that built up to by November 2024. The affidavit does not depose as to when this level of alcohol consumption ceased.
The father deposes that his second affidavit was only filed after having the benefit of a conference with his counsel on 13 November 2024. I accept the submissions of counsel for the Independent Children’s Lawyer that it was a deliberate, calculated decision on his part not to disclose his alcohol use as he knew that it would affect the possibility of him attaining orders for unsupervised time with X, and his admission only came about when he knew the reality would be exposed:
I have been found out by virtue of the fact that the Independent Children's Lawyer has requested a CDT test which I acknowledge will be likely elevated in the higher range when the test results are made available to the Court next week.
….
My failing in not making a full and frank disclosure as to my circumstances in my trial affidavit arose out of panic. I was of the view that if I made these disclosures that my possibility of ever having unsupervised time with [X] would not occur.[35]
[35] Ibid, paragraph 11.
The Father’s Current Living Arrangements
There is a lack of evidence as to the father’s current living circumstances despite seeking orders for overnight time. The father did not avail himself of the opportunity in his second affidavit to depose any meaningful details of his current accommodation; simply deposing that he lives in shared accommodation at Suburb CC and had done so for “the last few weeks.”[36] No further evidence was sought to be led by the father orally.
[36] Ibid, paragraph 4.
It was only in cross-examination that the father deposed that he is now living with a person by the name of Ms EE, whom he has known for a period of two months. I note his response was unusually delayed when asked the name of the individual living with him. He is not aware as to whether Ms EE has a criminal history. His evidence as to how he came to share accommodation with Ms EE and their current living arrangement was opaque and unsatisfactory. He placed an advertisement for someone to share accommodation with two months ago. Despite paying the entirety of the rent of $850 per week and placing the advertisement to find a flatmate, he is not on the lease. No evidence was given as to the reason for this arrangement; though the father denied that as soon as the proceedings end he is going to move back in with Ms P.
It was the father’s oral evidence that he did not tell the court about Ms EE living with him as he did not think it was relevant, perhaps arising from his assertion that Ms EE would not come into contact with X as “she works Sundays” and he did not plan to bring X to his home on the weekdays. Despite his claims of irrelevance as to his own living circumstance, he is of the view that who X lives with in the mother’s home is pertinent. He himself stated in his affidavit that given Mr H is spending time with X, “I asked Ms Brown to be able to meet him…”[37]The father cannot legitimately believe his living arrangements are immaterial to this matter. This proverbial “double standard” is difficult to reconcile and enunciates what the Independent Children’s Lawyer described as the father’s “sense of entitlement.” Further, any residual respect that should or may exist between two co-parents is evidently non-existent on the father’s part given he “gave no thought to [the mother]” when creating the impression he and Ms P still lived together. I accept that this lends significant weight to the submissions of the Independent Children’s Lawyer that the father lacks respect for the mother.
[37] Father’s First Trial Affidavit, paragraph 87.
On the father’s proposal X would potentially be coming into contact with someone that was not able to be investigated arising from the lack of the father’s candour. It is improbable that X, who is just nine years old, would not spend any time at the father’s home if orders were made in accordance with his proposal; that is, for 10 hours each alternate Sunday and three hours each alternate Tuesday.
I had difficulty understanding the father’s submissions in response to those of the Independent Children’s Lawyer as they pertained to his credit. The father’s submissions in response to those made by the Independent Children’s Lawyer were incredulous. Rather than engaging with the credibility of his own evidence, on instructions, submissions were made as to the credibility of the mother. He submitted that:
…the Independent Children’s Lawyer in opening submissions or all the submissions is depending on credit and the husband’s behaviour in going to the mother’s home on two occasions. One of them after an AVO had been discharged and that he went into the mother’s house whilst she’s on holidays. I ask your Honour to reflect on this. The only possible criticism of the father since supervised time happened was he turned up to the school for a singing event when he was removed from the school and the cross-country. And so when your Honour is asked about credit and his answers, he’s the only one of the parties to put his hand up, and your Honour will recall he said it a number of times with hindsight that was wrong. The mother never said that.[38]
[38] Transcript of Hearing – 7 March 2025 – pg 28 paragraph 45.
For the reasons recorded above, I accept the Independent Children’s Lawyer’s submission that the father is not a reliable witness and his lack of frankness permeates his case. This finding is grounded on the father’s own evidence. It does not rely on the credit of the mother. The criticisms of the father’s behaviour post-separation are relevant as to the assessments of risk of harm and the father’ parenting capacity, not to his credit. The father’s limited concessions and his “put[ting] his hand up” as to wrongdoing (as submitted by his counsel, above) do very little to assuage my concerns as to the risk factors at play in this matter. The nature and extent of the father’s distortion or outright fabrication leads me to a position where, whilst I will make specific findings of fact based on the evidence, I approach his evidence with extreme caution.
The effect of these fabrications on the father’s proposal is discussed later in these reasons.
Mr J gave evidence in the father’s case and was cross-examined briefly. He deposed that he has known the father since 1997, and they have remained friends for approximately 26 years. He deposes that:
I have found [Mr Andrews] to be an intelligent person, and he has always been honest, kind, funny calm and down to earth kind of guy…I love him like a brother.[39]
[39] Affidavit of Mr J filed 17 November 2024, paragraphs 4-5.
Mr J’s affidavit makes no mention of the father telling him that he was a police officer or that he had lied to others in this regard. It makes no mention of the father having lived with him for a period of time from mid-August to mid-November 2024.
In his oral evidence, the father deposed that he informed Mr J of his lie to the mother as to being in the police force in late 2024 when he was staying with him. Mr J’s oral evidence supported the father’s assertion. Mr J’s affidavit was sworn after the father stayed with Mr J, therefore being after the father revealed he was never in the police. Mr J labelled him “honest” in spite of this fact. Mr J maintained his belief during cross-examination that the father is an honest person because “he’s done a lot of great things.” Such a belief is misconceived.
Further, whilst it was the father’s evidence that he was drinking a bottle of wine a day when staying with Mr J, it was Mr J’s evidence that he never saw it; he only ever saw him consume a glass of wine when they cooked dinner.
Mr J is clearly aligned with the father. I do not place great weight on his evidence.
Family Violence
The mother alleges that the father perpetrated family violence upon her during the parties’ relationship and has stalked her post separation. She alleges that she is fearful of the father because of such conduct.
The mother deposes as to an incident in mid-2018 when the father grabbed her arms very tightly and tried to physically shove her out of the spare bedroom in their home. The father does not depose at to this alleged specific incident but broadly denies that he has ever been violent towards the mother; he stated in the course of his oral evidence merely that “I’m sure I have sworn at the occasional person in anger – not in terms of the domestic situation.”
The Incident of Mid-2019
Despite the volume of allegations in her written evidence, the mother seeks a positive finding as to one incident only occurring in mid-2019. The mother deposes that on this date, the father was in a rage after she had asked him to stop drinking alcohol and mixing it with medication. The parties were upstairs in the hallway and the mother walked away from the father into the parties’ bedroom. The father began forcefully hitting his elbow through the main bedroom wall, leaving a hole. The mother corrected her evidence during the trial; the father had actually hit a door leaving a hole. A photo of this hole is in evidence.
The mother was terrified and ran downstairs to get X from the lounge room area. The mother had X in her arms when the father pulled the mother by her neck as he was trying to get hold of X. The mother then deposes:
He used both of his hands to pull me at the throat. He forced me against the hallway wall next to [the] office room downstairs. I managed to get out of his clutch as it was happening quickly and then he was unsteady on his feet. I ran to the corner of the dining room and used my body to cover [X] pleading with him saying “please don’t hurt me”…[X] yelled out “don’t hurt my mummy”. [The father] did not attack again. [40]
[40] Mother’s Trial Affidavit, paragraph 79
The mother deposes she then left the home in her pyjamas with X and went to a friend’s house for approximately ten minutes prior to attending Suburb FF Police Station, where she spoke to a Constable who told her that she was making a very serious allegation and she should maybe think about it. The mother did not proceed with the matter further and wondered whether the Constable knew the father. The New South Wales Police Force COPS record dated mid-2019 records that the Person Of Interest (“POI”) (the father) was a serving Police Officer about 20 years ago and that there was a verbal argument as to financial issues wherein the father was verbally aggressive and yelling. It does not record a physical assault and records that the mother was concerned as to the father’s mental health and welfare.
The mother deposes that she was later contacted by a Sergeant who took a statement from her and her friend as to the Constable’s actions. The mother’s oral evidence was that she “absolutely” told the Constable as to her allegations as to the physical assault at this time.
The day following this incident, the parties had a series of text exchanges which read:
Father at 6:39 am:                   I’m so very sorry I’m a monster What I did was unforgiveable.
Mother at 12:29pm:                We have no money so staying at a hotel is not a financially viable option.
Mother at 6:40pm:                  I can’t believe what you have done to this family.
[…] 2019
Father at 6:21am:                    You will never m Le how terribly sorry I am Know I’m dying from the guilt and Shame…
….
Father at 7:36pm:                  No need to hide I’ll head off soon
Father at 8:33 pm:                   I know you don’t want me here, but I’d really like to stay. Are you ok with that and we can talk more tomorrow.
Mother at 8:40pm:                 I don’t want you here.
…
Mother at 8:43pm:                 You physically hurt me. I don’t want you here.
(As per original)
There was no response to the last message of the mother.
On 24 July 2019 the following text exchange occurred:
Father at 12:34pm:                 Where are you telling [X] I am?
Mother at 12:40pm:               She hasn't asked
Father at 12:41pm:                 Riiiight
Mother at 12:41pm:                She asks why daddy scares me
Father at 12:41pm:                 She asked me the same thing
Killed me
(As per original)
Further text message exchanges occur between the parties wherein the father then asserted to the mother that he was not trying to hurt her, he was trying to get X as she was screaming to him for a hug and that he understood why she and X were scared by him, “but it was completely out of character”.[41]
[41] Exhibit ICL 2.
The father’s written evidence as to this incident is brief. He denied shoving the mother into a wall, grabbing her arm or pushing her. He concedes that his elbow made contact with the door and “cracked it” after throwing his arms above his head in frustration during their argument. It was not explained at any time how the father’s elbow made contact with a vertical surface arising from him throwing his arms up in the air.
The father’s cross-examination of the mother as to this specific incident was cursory notwithstanding it was the sole factual finding the mother sought as to family violence. The mother was merely asked to confirm her allegation and that it occurred five years ago. It was only the Independent Children’s Lawyer that asked the mother specific questions about this incident in cross examination. Her answers were specific and detailed.
During the father’s cross-examination by the Independent Children’s Lawyer the father denied placing his hands around the mother’s neck but conceded that he had yelled at the mother that day and immediately denied his asserted behaviour in the text. When asked about the mother’s message wherein X is said to ask “...why daddy scares me”, the father’s response was that “she was telling me I scared her, not that she was scared of me”. The alleged distinction between these two statements was not addressed in cross-examination. The father asserted that it was not family violence as he did not mean to do it. It is trite to observe that intention is not required for an action to fall within the definition of family violence.[42]
[42] Pickford & Pickford [2024] FedCFamC1A 249.
The father’s cross-examination of the mother focused on her actions post separation which were allegedly at odds with her assertions as to the father’s perpetration of family violence and relatedly her fear of him. Essentially, it was argued it could not be the case that the mother feared the father because she:
·permitted unsupervised time between the father and X for multiple years post-separation;
·facilitated changeovers for a period of time, which occurred in the undercover “basement” car park at the father’s apartment block;
·attended the father’s home and threw a brick through the window to retrieve X despite being allegedly “terrified” of him; and
·gave the father a ticket to a dance recital at X’s school, which occurred in late 2022, with such tickets being numbered so that the father sat a seat or so away from the mother.
The father submitted that:
·The police records of mid-2019 do not record any complaint by the mother as to risk, the mother’s presentation or that the mother was distressed.
·The mother could not be fearful of the father as changeovers occurred in the basement carpark of the father’s residence every Sunday for a period of two and a half years.
·There are no convictions against the father and the Apprehended Domestic Violence Order was ultimately withdrawn.
·The mother put the alleged incidents behind her when she agreed for X to spend overnight unsupervised time with the father.
I turn now to each of the issues/incidents raised by the father in turn.
The mother was firm and unequivocal in her evidence that she detailed her allegations as to the perpetration of a physical assault by the father to the Constable. I place little weight on what is and what is not recorded in the police notes in circumstances where it does not record the father’s own conceded action in damaging the door. In any event, for the reasons recorded above and below I accept that the mother was hesitant to report the father to the police. I accept the mother’s unchallenged assertion that the father told her he had contacts in the police force to dissuade her from making notifications as to his violent conduct. I further accept the single expert’s opinion that such behaviour could be, and I in fact find, that this is intimidation of the mother by the father. It is controlling behaviour.
The ultimate withdrawal of the application for the Apprehended Domestic Violence Order and the lack of any criminal charges being laid against the father is not dispositive as to whether this alleged incident occurred. It is not a corollary.
The assertions that the mother has acted in a manner contrary to her allegations is unconvincing. The father failed to address in any substantive manner the mother’s evidence of the effect of the father’s falsehoods on her and the fabrications as to his conduct whilst so employed, including that when people would “cross” him he would “fuck them up”; for example, breaking a man’s back who was thereafter wheelchair bound.[43]
[43] Mother’s Trial Affidavit, paragraph 74.

The mother deposed that, despite her concerns, she will comply with any orders made for X to spend unsupervised time with the father. That said, both the mother and the Independent Children’s Lawyer submit that although there is no evidence to ground a finding that the mother’ parenting capacity will be discernibly impaired should X spend unsupervised time with the father, a factor that I must consider is that mother is clearly worried and anxious and this undoubtably has had and will continue to have some impact on her and the household. It would not be an ideal situation that the mother, as the uncontested resident parent, be placed under stress and anxiety. The father did not directly address this submission.
I accept that the mother was unaware until the commencement of these proceedings as to the issues surrounding the father’s possession and/or accessing of child sexual abuse material, the “upskirting incident” and the father being in business with a convicted paedophile. The mother deposes that learning of the above causes her significant anxiety in relation to X spending unsupervised time with the father. Whilst the mother does not believe that the father has been sexually inappropriate with X in the past and she has never observed anything untoward, the above and the father’s past lies cause her great concern as to X’s safety and well-being. The mother deposes, and I accept, that because of the father’s lies, “I cannot trust anything that [the father] says.” [84] Mr H deposes that he has observed the mother to experience stress and anxiety when dealing with the father which impacts her mood. The mother’s treating psychologist has been assisting the mother to deal with her stress and nightmares.
[84] Mother’s Trial Affidavit, paragraph 111.
The single expert opined that any time beyond supervised time is likely to prove distressing to the mother. Ms Q has discussed with the mother the prospect of X having unsupervised time, which Ms Q also deposed was a strong cause of distress for the mother. They have not discussed as yet what the mother will be able to do to assist herself if this occurs. There are several strategies Ms Q could recommend to the mother to assist her – the challenge will be that sometimes it does not matter what strategies you use, when you are managing primal urges:
“..it is hard to breathe when there is a lion chasing you… If there is a real threat, nothing can calm someone down. If it is only a perceived threat, it needs to be untangled… This is a hard one to work with – this is a visceral threat that the mother perceives to her child.
DISPOSITION
Live With Orders
The single expert opines that there are no concerns held for X’s welfare in the mother’s care and she is the uncontested resident parent. An order will be made that X continue to live with the mother.
Allocation of Decision Making Responsibility
All parties agree that the mother should have sole decision-making responsibility as to X's long-term needs. The single expert expresses a view in favour of the mother having sole decision-making responsibility in his second report. For at least two years the parties have only communicated via legal channels. There is no trust between the parties. The mother reported to the single expert that the father's conceded lies make it very difficult to consider co-parenting. I am not satisfied that the parties would be able to communicate in a way so as to reach joint decisions concerning X’s care. I am satisfied that as the uncontested resident parent the mother should have sole decision-making responsibility as agreed.
X’s Surname
The mother does not propose changing X’s surname. I am satisfied, and as agreed between the parties and the Independent Children’s Lawyer, that for the reasons recorded above it is in X’s best interests that the mother be restrained from changing X’s surname.
High School
The order sought as to the high school X is to attend is superfluous in light of the sole decision-making order made in the mother’s favour and will not be made.
X’s Time with the Father
The Independent Children’s Lawyer acknowledges that the proposals of the mother and the Independent Children’s Lawyer provides for a very limited regime of time between X and the father. This is in circumstances where it is clear that X loves the father and enjoys her time with him.
The mother submits that X’s time with the father should continue to be supervised until she reaches adolescence arising from an accumulation of risk arising from the father’s:
·perpetration of family violence and his reluctance to address this behaviour;
·long repeated history of cyclical alcohol abuse;
·mental health and suicidal ideation;
·untruthfulness and failure to be honest with the single expert during interviews; and
·connections to child sexual abuse and lewd behaviour.
The Independent Children’s Lawyer submitted at the conclusion of the final hearing that the father’s lack of respect for personal boundaries and the increased risk of intrusive or invasive behaviour was a real risk that emerged from the father's oral evidence. The Independent Children’s Lawyer submits that frankness and candour are especially important in this matter where there are serious allegations of risk and the father is effectively asking the court to find that firstly, there is no risk, and secondly, to accept his evidence and trust him in relation to all of the concerns raised including his alcohol use.
The father submits that the mother’s allegations and her concerns “indicates a hysterical nature” in circumstances where X spent unsupervised time with the father for two and a half years post separation and that there could be no cause for concern given the orders proposed by the father. Whilst the father concedes that he has lied to the court as to his alcohol use and his relationship with Ms Ps, during submissions the father rhetorically asked how such lies affected X and that:
He has passed the test about supervision. He has maintained a relationship with the child that he talks to twice a week and sees for eight hours a month, and more recently four hours a month.
The single expert clearly opined that there are countervailing risk factors inherent in each of the parties’ proposals.
Whilst the making of orders for supervised time is an exercise of discretion, the Full Court has given specific guidance where such orders are to be made for an indefinite or indeterminate period: see Moose & Moose [2008] FamCAFC 108. Clear reasons are to be provided when such an order is made: Gorman & Huffman & Anor [2016] FamCAFC 174.
I do not accept the father’s apparent submission that, inferentially, the determining factor in deciding the orders that are in X’s best interests is that the mother allowed unsupervised time for a period of two years post separation. The mother deposes to it as being the reason she did not report all the instances of family violence she alleges the father perpetrated. The father’s case fails to appreciate the impact the father’s lies as to being a police officer had on her decision making. In any event, the mother’s conduct in allowing such time is not the determining factor. The court must consider what arrangements would best promote the safety of X and of each person who has care of the child. [85]
[85] Section 60CC(2)(a)
The assessment of risk of harm requires the consideration of two elements: whether it is likely that some harmful event will occur and then a consideration of the severity of the impact caused by such harmful event. I must assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable. [86] The assessment of unacceptable risk is a predictive exercise, postulated from known facts and present circumstances. It is not required to be proven on the balance of probabilities. [87] It is not always necessary to make a positive finding that past conduct occurred when assessing the future risks in a matter. I may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which are proved to that standard. The concept of “unacceptable risk” falls within the broader issue of determining what is in the X’s best interests and to which the resolution of the existence of an “unacceptable risk” is subservient. [88] Risks to X’s safety may be capable of sufficient amelioration by other orders I make.[89]
[86] M & M [1988] HCA 68.
[87] Isles & Nelissen [2022] FedCFamC1A 97.
[88] M & M [1988] HCA 68 and B & B [1993] FamCA 143.
[89] Keane & Keane [2021] FamCAFC 1; (2021) 62 FamLR 190 at [84]
As recorded above, the single expert was unable to properly complete a risk assessment in his first report as to the father's risk of harm to X for the purpose of his report, arising from the father's refusal to discuss a five-year period of his life between 1990 and 1995. The single expert opines that this is a putative period of life during which risk-taking behaviours in relation to substances and other elements would ordinarily be at a peak. I accept that the mother’s concerns as to the troubling nature of this non-disclosure and her concern that the father is attempting to hide something is valid. I accept the single expert’s opinion that this makes it more difficult to assess both the nature and the extent of any risk that the father might pose to X if she was to spend unsupervised time with him:
A significant lack of confidence exists in assessing the likely effect in [X]'s circumstance as a result of any increased time with the father under these circumstances. [90]
[90] The second report, lines 715-717.
This concern is made the more significant by the failure of the father to call the one person who could have shed some light on the father’s recent and current behaviours and circumstances; his current partner Ms P.
I accept the submissions of the Independent Children’s Lawyer that because of this, X’s best interests dictate that I proceed cautiously.
The single expert’s written second report was clear: leaving aside any risk attached to the alleged “upskirting” incident, the father’s avoidance of disclosure as to his recent alcohol misuse and concerns as to his history of lying ultimately meant that the single expert had “serious reservations” about X spending unsupervised overnight time with the father until she is old enough to deploy safeguarding behaviour. Whilst this opinion was as to the father’s prior application for overnight time, this opinion was projected prior to the father’s concerning oral evidence.
Upon being appraised of some of the father’s oral evidence, the single expert resiled from his written opinion that X might spend unsupervised daytime with the father until she was established at high school (at least Year 8) and then overnight time could be considered. He had reservations even as to his recommendation for unsupervised day only time; it being contingent on the father continuing to interact and behave with X in a way that he has been during supervised time.
I accept that the father’s alcohol use, whilst able to be monitored and tested in the future, continues to give rise to concern as to X’s safety from harm as the father resorted to the same behaviour of drinking when his relationship with Ms P broke down for a period of time. It is apparent that the father has not learnt of other coping mechanisms to deal with stressful or emotional circumstances other than to drink excessively; even some six years later. I accept the submissions of the Independent Children’s Lawyer that in itself, the cyclical nature of the father’s difficulties with alcohol is as much of concern as it is unpredictable; it is unknown when the father will again become overwhelmed by the stressors of life and resort again to alcohol. The father’s alcohol use is longstanding, and he cannot be relied upon to be honest about it. I therefore find that the father’s long standing issues with alcohol gives rise to a significant risk of harm to X in the future. I accept however that there are sufficient monitoring safeguards that can be implemented to sufficiently ameliorate such risk as recorded below.
I have made a finding that the father perpetrated family violence upon the mother in mid-2019 wherein the father damaged property and used both of his hands to pull at the mother by her throat. Such behaviour caused both the mother and X to be fearful of the father. The father has a documented history of complex mental health issues. Whilst I have been unable to make positive findings on the evidence as to the father’s connection to child sexual abuse material, save for his own concession that he did not report Mr QQ for possession of child sexual abuse to the authorities, the cumulative effect of this evidence and the father’s lack of credibility as to his evidence gives rise to a significant suspicion that grounds a finding of X being at an unacceptable risk of harm in the father’s care. The links to this abhorrent material and the “upskirting” allegation must be seen in the context of its consistent nature with the father’s own conceded behaviours of accessing the mother’s home, text messages and calendar. It is also consistent with the father taking a photograph of the mother without her consent and insisting on dropping X to the mother’s home when she was clear that she did not wish him to do so. I accept and find that these behaviours give rise to significant concerns as to the father’s boundaries and for the reasons recorded above ground a finding of unacceptable risk.
I further accept the submissions of the Independent Children’s Lawyer that, as to the father “passing” the test of supervision, I must also look at the level of insight the father demonstrated during the course of his cross-examination. Whilst the father has undertaken an online parenting course, the father showed little insight as to the effect of his actions on the mother and on X; on several occasions deposing that he did what he did because he wanted to see X and he would do it again. Despite his concessions as to how his conduct may have affected the mother’s trust in him, the father’s oral evidence was that the only reason supervised time is still occurring is because of the mother. His frequent reliance on the benefit of hindsight when questioned as to the impact of his inappropriate behaviour does me little comfort. I am not of the view that the father has fulsomely reflected on his behaviour. The father has shown little capacity to shift, despite the benefit of two single expert reports and their recommendations, his entrenched view that the mother is at fault.
All of the above risks must then be weighed against the countervailing risks in continuing supervised time as deposed to by the single expert. The last two years of supervised time has already affected the relationship between X and the father – it is a limited, idealised relationship which will continue in its current form if supervision is to continue. Continued supervision leads to the risk that X, who loves the father and clearly wants to spend more time with him, will take matters into her own hands and seek the father out in a covert manner when she is older. The single expert was clear that this would not be in X’s best interests. I would further not be confident having regard to my findings above as to the father’s falsehoods and inability to comply with orders of this court that he would deal with such an approach in the appropriate manner.
The single expert further opined that continued supervised time may give rise to a negative impact on X’s relationship with the mother. As X grows older, she will become more aware of such supervision and its limitations together with the difference between herself and her peers in terms of her relationship with her father, which may lead her to develop a view that it is the mother that is obstructing her relationship with the father. This would negatively impact her relationship with the mother. When asked how she would cope with X possibly being angry or resentful as she is having supervised time, the mother replied that she will make sure she has professional help if she needs it and will ensure that X still has a relationship with the father. In short, it was the mother’s evidence that she is aware of the risk to her relationship with X but is prepared for that risk to ensure X’s safety.
Conversely, the single expert opined on this issue that if unsupervised time were to commence, the father may attempt to give his version of the parental relationship and, given the father’s history of lying, serious concerns exist vis-à-vis his capacity to not portray himself in a mostly positive light. The father has shown a ready stance in involving X in the conflict. He has discussed adult matters with X and recorded these conversations without cognisance of the potentially negative impact upon her. I am of the view that attempts to impress upon X an image of himself that he wants her to have cannot be excluded, and I accept the single expert’s view that this represents a significant risk to X and potentially her relationship with the mother.
The father’s lies increases the likelihood of harm occurring to X in the future. There is a multitude of risk factors in this matter as recorded above. They all underscore the likelihood of harm occurring in the future. The capacity to make the assessment about that is retarded by the father’s mendacity. The impact of harm for X could be severe, reaching a magnitude of harm that is unacceptable. Whilst I have been unable to ground formal positive findings as to the specific areas of risk raised by the mother and the Independent Children’s Lawyer, I accept that cumulatively they outweigh the risks to X in retaining supervision until she is of an age that she is able to more adequately able to self-protect. I am satisfied that ensuring X is safe from harm mandates that her time with the father not progress to immediately being unsupervised as sought by the father.
I am cognisant of the father’s evidence that if his time with X is ordered to be supervised, he may not be in a financial position to pay for it to occur fortnightly; only once per month. Orders will be made for fortnightly time to allow X the opportunity to spend time with the father face-to-face each fortnight. in the event he is able to pay for same. The order will drafted in terms sought by the Independent Children’s Lawyer which allows flexibility in circumstances where time occurring is dependent upon the availability of the supervisory service.
How Long Should X’s Time be Supervised?
The mother seeks an order that supervision continue to the age of thirteen years as she will be twelve years of age when she commences high school. The Independent Children’s Lawyer proposes that it continue until X is twelve years of age. Having regard to the oral evidence I made it clear to the parties and the Independent Children’s Lawyer prior to the commencement of oral submissions that I was not bound by the parties’ competing proposals and that I was contemplating whether, if the risk of harm was such that supervision was required, it ought to be for longer than that proposed. The Independent Children’s Lawyer readily conceded that I may well come to the conclusion, after having heard all the evidence, that long term supervision is the safest option for X. She further submitted that it is probably the arrangement that would be least likely to lead to further conflict having regard to the mother’s evidence as to her level of distrust of the father:
Given that, and if your Honour accepts that she is genuine about that, there is a real risk that if time becomes unsupervised, concerns will be raised; there might be new allegations. It might be further disruption to [X]'s time with her dad, because of some concern that arises from something that [X] might have said, or anything. And that may well cause a disruption in [X]'s time with her father and further conflict and contravention applications and the like; that is also something that your Honour has to take into account, notwithstanding that that’s no longer a specific consideration under the 60(c)(c), it’s obviously something that your Honour can consider.

The father made no submissions as to the age any supervision order should cease.
The single expert opined that supervision does not appear to be feasible until X attains 16 years of age, and that X may develop some resentment towards the mother if this were to happen. I accept this unchallenged evidence.
The single expert opined, prior to the father’s oral evidence, that overnight time could be considered once X was in Year 8 as she will have reached adolescence and will be well established at high school. This same reasoning grounds my determination that X’s best interests dictate that her time with the father remain supervised until she commences Year 8.
Ancillary Issues
Save as to the question of the costs of the Independent Children’s Lawyer, the submissions focused solely on the issue of whether X’s time would continue to be supervised and, if so, the age at which it should cease. No submissions were about the balance of the differing versions of the orders sought by the mother and the Independent Children’s Lawyer. The father made no submissions save as to the question of whether X’s time should continue to be supervised. I therefore deal with the balance of the outstanding issues as best I can on the evidence before me.
What Other Safeguards Should be Put in Place to Ameliorate Risk?
Dr KK opined that the testing recommended and orders to be made would be that the father undertake to abstain from alcohol for 24 hours before seeing X and whilst in her company. If he has consumed alcohol within this period, he should indicate that he is unwell and cancel the visit. To monitor alcohol use, quarterly clinical monitoring by a suitable medical practitioner with a blood test including full blood count, liver tests and carbohydrate deficit transferrin (“CDT”) testing should be considered. This can be completed by a local pathology service but CDT testing is not covered by Medicare and may cost around $100. As an alternative, a PEth test at the hospital could be undertaken (at modest cost) but such a test is only available for patients of a hospital, so if that test is performed Dr KK would have to be monitoring and he is comfortable to perform that role. PEth is a long lived direct metabolite of alcohol that remains detectable for 4-6 weeks after drinking even modest amounts of alcohol.
The single expert opined that the court may wish to consider hair follicle testing as a method to assess the level of the father's alcohol use and the use of a breathalyser before and after all time for X with the father is recommended.
In her oral evidence the mother deposed that CDT testing is difficult to trust and that something more accurate or long term would be better. It was the father’s oral evidence that he would “absolutely” participate in PEth testing once per month which covers a period of 4-6 weeks, which is longer than the period captured by a CDT test. The father also asserted he would accept breathalyser testing as a condition of his time with X, as well as monthly CDT and PEth testing for a period of twelve months. The father’s position of course is that his time with X immediately move to unsupervised.
Having regard to the findings I have made above, the cyclical nature of the father’s alcohol usage, the expert evidence and my scepticism of the father to be truthful when something does not assist his case, I find it in X’s best interests that the father’s time with X be contingent on the father providing evidence of his ongoing commitment to minimising his alcohol use such that:-
·I am satisfied that ongoing supervision will adequately provide that X is safe from harm in the father’s care together with an order restraining the father from consuming alcohol 48 hours prior to and during his time with X as sought by the mother and the Independent Children’s Lawyer.
·For the first twelve months of X’s time with the father graduating to unsupervised, the father will be required to undertake hair follicle testing no less than three months prior to him first commencing such unsupervised time and every three months thereafter, with time being supervised in the event of a test evidencing excessive alcohol consumption or the failure to undertake a test;
·The father shall purchase and provide evidence of his undertaking a breathalyser test both prior to (as agreed to by the mother and the father) and at the conclusion of X’s time (as proposed by the father).
Changeover when not at school
No submissions were made as to where changeover of X should occur when not occurring at her school. I have no evidence nor submissions as to the difference between the McDonalds at Suburb V and the McDonalds at Suburb C. As between the parties and the Independent Children’s Lawyer I am satisfied that the proposal of the Independent Children’s Lawyer would have X’s best interests at heart and will make orders as agreed to by both the Independent Children’s Lawyer and the mother.
Injunctive Orders Pursuant to S68B
For the reasons recorded above including:
·The father has conceded that he attended upon the mother’s home post-separation without her consent and went through most rooms of the house, including her bedroom and study and took photographs of her personal effects;
·Ms Q’s evidence that the mother feels anxious and afraid when she is home alone;
I am satisfied that an order be made restraining the father from attending within 100 metres of the mother’s current residence or place of employment together with an order, as proposed by the father, from approaching more than 20 metres from the mother. I am unable to make an order as sought by the mother that the father be restrained from approaching any future residence of the mother where she is not required to provide him with these details and the father may not be aware he is breaching such an order.
The order sought by the mother restraining the father from coming into contact with any of X’s friends or associates is too onerous. I am satisfied that an order restraining the father from attending at X’s school save for school events and extracurricular activities as sought by the Independent Children’s Lawyer provides adequate protection.
Ancillary Orders
The other orders made which have not been individually explained are either generally consistent with the orders mutually proposed by the parties or the mother and Independent Children’s Lawyer and not the subject of submissions, or do not permit rational objection. These include:-
·An order that X spend time with the father each Father’s Day as sought by him and the Independent Children’s Lawyer.
·An order that X spend time with the mother each Mother’s Day as sought by the father.
·A Notation that the father is at liberty to access the school app.
CONCLUSION
I am satisfied that a careful consideration of all the above grounds a finding that the proposal of the mother as largely supported by the Independent Children’s Lawyer is in X’s best interests and best provides for her safety from harm.

I certify that the preceding three hundred and seven (307) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch.
Associate:
Dated: 9 May 2025

File number:	SYC 72 of 2022
Judgment of:	JUDGE MURDOCH
Date of judgment:	9 May 2025
Catchwords:	FAMILY LAW - PARENTING – where there are allegations of significant risk of harm to the child in the father’s care – where the mother seeks supervised time continue indefinitely on account of such risk – where the father seeks unsupervised day time on alternate Sundays and one afternoon per week – where the father has a connection to child sexual abuse material – where the mother submits that the father presents a risk of harm with respect to his cyclical alcohol dependency – where the father’s consistent lack of insight is compounded by his propensity to fabricate events and information – where the father’s capacity to take accountability for his actions is wholly deficient – where the father’s written and oral evidence is uncompelling – where it is uncontested the child idealises the father – where the risks associated with continuing supervised time between the child and the father need to be considered against the risks posed by unsupervised time commencing – where the Independent Children’s Lawyer largely supports the mother’s position – where it is found that an unacceptable risk of harm exists in the child spending unsupervised time with the father – where it is found that the risks posed by the father can be mitigated by time being supervised until the child commences Year 8 – where the father’s time progressing to be unsupervised is contingent on a raft of protective safeguards with respect to the father’s alcohol intake – orders made for the mother to hold sole decision-making – section 68B injunctive orders for the protection of the mother are found to be appropriate.
Legislation:	Family Law Act 1975 (Cth) ss 4(1), 60CA, 60CC, 60CC(2), 60CC(2A), 60CG, 61D(3), 65AA, 65D, 65Y, 68B
Cases cited:	B & B [1993] FamCA 143 Gorman & Huffman & Anor [2016] FamCAFC 174 Isles & Nelissen [2022] FedCFamC1A 97 Jones v Dunkel (1959) 101 CLR 298 Keane & Keane [2021] FamCAFC 1; (2021) 62 FamLR 190 M & M [1988] HCA 68 Moose & Moose [2008] FamCAFC 108 Pickford & Pickford [2024] FedCFamC1A 249
Division:	Division 2 Family Law
Number of paragraphs:	307
Date of hearing:	3 – 7 March 2025
Place:	Sydney
Counsel for the Applicant:	Ms Hamilton
Solicitor for the Applicant:	Fox & Staniland Lawyers
Counsel for the Respondent:	Mr Givney
Solicitor for the Respondent:	Lama Family Lawyers
Counsel for the Independent Children’s Lawyer:	Ms Shae
Solicitor for the Independent Children’s Lawyer:	Bleier Family Law Pty Ltd

SYC 72 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS BROWN Applicant
AND:	MR ANDREWS Respondent

ORDER MADE BY:	JUDGE MURDOCH
DATE OF ORDER:	9 MAY 2025 (AMENDED PURSUANT TO THE SLIP RULE ON 14 MAY 2025)