Carlsen & Lind - [2024] FedCFamC1F 780

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carlsen & Lind [2024] FedCFamC1F 780

File number(s): NCC 1904 of 2022

Judgment of: SMITH J

Date of judgment: 4 November 2024

Catchwords: FAMILY LAW – CHILDREN – Final hearing – Oral decision – Parenting orders – Best interests of the child – Where the parties reached agreement on a number of orders – Where the mother shall have sole parental responsibility and decision-making authority – Where the child is to live with the mother – Where child has significant medical diagnoses that impair her functional cognitive capacity – where the child has not met the father – Where the child has no knowledge or understanding of her biological father – Where the child is not presently capable of understanding the concept of a biological father – Where it is unknown when the child will obtain that level of cognitive functioning – Where the father has a significant history of family violence convictions against multiple people and partners – Where the father sought to distinguish between his acts of “family violence” and him being “violent” – Where the father lacks insight into the concept of family violence despite multiple courses – Where there were risks in the mother’s household – Where these risks were not unacceptable – Where the mother is engaged with services to manage these risks –– Where the father presents an unacceptable risk of physical and psychological harm to the child – Where the child is to spend no time or have no communication with father – Where there are to be injunctions against the father given his significant history of stalking, harassment and convictions for breaching apprehended violence orders.

Legislation: Family Law Act 1975 (Cth) Pts I, VII, ss 4, 60B, 60CA, 60CC, 65AA, 65DAAA, 68B, 68C

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

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

Division: Division 1 First Instance

Number of paragraphs: 193

Date of hearing: 29 October 2024 – 1 November 2024

Place: Newcastle

Counsel for the Applicant: Mr Antill

Solicitor for the Applicant: Toronto Legal

Counsel for the Respondent: Mr Wilcox

Solicitor for the Respondent: Cph Legal

Counsel for the Independent Children's Lawyer: Mr Willoughby

Solicitor for the Independent Children's Lawyer: Mason Lawyers
ORDERS

NCC 1904 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR CARLSEN

Applicant

AND:
MS LIND

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SMITH J

DATE OF ORDER:

4 NOVEMBER 2024

BY CONSENT THE COURT ORDERS THAT:
1.All extant parenting orders relating to the child X (born in 2019) (“X” or “the child”) be discharged.

Sole parental responsibility and decision making authority
2.The mother, Ms Lind (born in 1993) (“the mother”) shall have sole parental responsibility and sole decision making authority in respect of all decisions concerning major long term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the child.

Live with mother
3.The child shall live with the mother.

Restraints on mother
4.The mother, with her consent, is restrained by injunction from:
(a)Consuming illicit substances within twenty-four (24) hours, or during, any period of time they are providing care to the child;
(b)Knowingly allowing or permitting the child to be in the presence of any person who has consumed an illicit substance within the previous twenty-four (24) hour period;
(c)Knowingly exposing the child to family violence, or permitting the child to remain in the presence of a person who is exposing the child to family violence.

Undertaking by Mr B
5.The Court accepts the undertaking signed and filed by Mr B on 1 November 2024.

THE COURT FURTHER ORDERS THAT:
No time with father
6.The child shall spend no time with the father, Mr Carlsen (born in 1989) (“the father”).

No communication with father
7.The child shall have no communication with the father.

Injunctions and restraints
8.Pursuant to section 68B of the Family Law Act 1975 (Cth), Mr Carlsen (born in 1989) be restrained from:
(a)Contacting or attempting to contact, or harassing or stalking or intimidating X (born in 2019) (“the child”), or Ms Lind (born in 1993) (“the mother”), or Mr B (born in 1989), or C (born in 2010), or D (born in 2016), or E (born in 2021), or F (born in 2023), by any means, whether directly or indirectly, including through a third party;
(b)Contacting or attempting to contact, or harassing or stalking or intimidating, the mother’s parents Ms G, or Mr H, by any means, whether directly or indirectly, including through a third party;
(c)Contacting or attempting to contact, or harassing or stalking or intimidating, Mr B’s relatives Ms J, or Mr K, by any means, whether directly or indirectly, including through a third party;
(d)Knowingly approaching or coming within 250 metres of any place where the mother or child might reside from time to time;
(e)Knowingly approaching or coming within 250 metres of any place where the child might attend day care or school from time to time;
(f)Knowingly approaching or coming within 250 metres of any place where the mother might work from time to time;
(g)Knowingly approaching or coming within 250 metres of any place where Mr B might work or reside from time to time;
(h)Contacting or seeking information about the mother or the child from any school or institution where the child might attend day care or school from time to time;
(i)Contacting or seeking information about the mother or the child from any medical or allied health or NDIS service provider, or other service provider, or Government or other body;
(j)Making social media posts of pictures of, or comments about these proceedings, or of or about any person who this injunction is for the personal protection of.

9.Pursuant to section 68C the injunction in Order 8 pursuant to section 68B of the Family Law Act 1975 (Cth), is for the personal protection of X (born in 2019), and Ms Lind (born in 1993) (“the mother”), and Mr B (born in 1989) and C (born in 2010) and D (born in 2016) and E (born in 2021) and F (born in 2023) and Ms G, and Mr H, and Ms J, and Mr K.
10.If a Police Officer believes on reasonable grounds that Mr Carlsen (born in 1989), at which the injunction is directed, has breached the injunction, they may arrest them without warrant.

Provision of orders to schools etc
11.The mother is a liberty to provide a copy of the Orders, but not the Judgement, to any school, educational institution, treating medical or allied health practitioner, and any other service provider who provides services to the child, for the purpose of informing them of the injunctions on the father.

Provision of family report to mother’s treater
12.The mother is at liberty to provide a copy of the Family Report of Ms L dated 8 September 2023, to her General Practitioner/s and any mental health treatment providers that she may have from time to time.

Provision of Judgment and orders to Department of Communities and Justice
13.A copy of this original Judgment and Orders is to be provided to the New South Wales Department of Communities and Justice for their file.

Provision of orders to Educational Case Management
14.A copy of these Orders is to be provided to Educational Case Management (ECM), for the purpose of informing them of the Court Child Expert’s opinion, and the Courts finding, that it is in the child’s best interests that she be introduced, at the appropriate time taking into account her age and cognitive capacity, to the concept of a “biological father” and that such a person exists.

Birth certificate, record of biological father and name change
15.A copy of the Orders is to be provided to the relevant Registrar of Births, Deaths & Marriages NSW.
16.Within 14 days from the date of these orders, each party will do all acts and things and sign all documents as may be necessary to apply to the Registrar of Births, Deaths & Marriages NSW to record the applicant father Mr Carlsen (born in 1989) as the father of the child X born in 2019 on her birth certificate, and the Registrar of Births, Deaths & Marriages NSW is requested to give effect to such change of name.
17.The mother is authorised to change the name of the child, X to the name X, and the Registrar of Births, Deaths & Marriages NSW is requested to give effect to such change of name.

Passport and international travel
18.The mother, Ms Lind (born in 1993) have sole parental responsibility and sole decision making authority in respect of the child, X (born in 2019) in respect of any application for a passport and in respect of any travel outside the Commonwealth of Australia.

19.The Mother be authorised to apply and forthwith obtain an Australian passport for the Child so as to enable her to travel in and out of the Commonwealth of Australia.
20.The consent of the Mr Carlsen (born in 1989) to the issuing of such an Australian passport for the Child be forthwith dispensed with AND IT IS DECLARED that such consent is not required for such passport to now issue.
21.The Child be permitted to depart the Commonwealth of Australia.

Costs
22.That the Independent Children’s Lawyers application for costs is dismissed on the basis that each parent has been, or is for the purposes of Final Hearing, in receipt of a grant of legal aid.
23.That there be no Order as to costs as between the parties.

Procedural
24.That on the Independent Children’s Lawyer sighting an amended copy of the child’s birth certificate recording the applicant father as her father, and also on the expiration of the relevant appeal period, the Independent Children’s Lawyer is discharged.
25.That the matter shall be removed the list of active pending cases.

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

These are oral reasons for decision in a four-day final hearing that concluded last Friday, in proceedings to determine what parenting orders are in the best interests of X (born in 2019) (“the child”), she is currently five.
The orders are to be made pursuant to the principles articulated in the Family Law Act 1975 (Cth) (“the Act”) as presently in force.
The child has significant cognitive issues arising from her intellectual disability, autism spectrum disorder and generalised global delay. These are relevant to the issues in the proceedings.
The parents are the applicant father, Mr Carlsen (born in 1989) aged 35 (“the father”), and the respondent mother, Ms Lind (born in 1993), aged 31 (“the mother”). An Independent Children's Lawyer (“ICL”) was appointed to represent the child's interests.
The parties had a very short relationship from about 28 August to about 3 October 2018.
The relationship ended as a result of the mother's allegations of family violence. The mother described the father as “threatening, intimidating and controlling”, describing a pattern of coercive and controlling behaviour, which she described to the Court Child Expert, Ms L (“the expert”), who was appointed and who provided both a Child Impact Report and a Family Report as “obsessive and intense and he would threaten suicide when she did not respond or engage with his demands”.[1]
[1] ICL 2, Child Impact Report, paragraph 14.
The mother’s evidence is that in the week or so prior to 3 October 2018, the father's behaviours escalated with increasingly threatening abusive text messages and phone calls, resulting in a final separation.
The parents never cohabited. They found out about the pregnancy only shortly before separation, and separation occurred well prior to the child's birth.
The child has always lived with the mother, who is her primary attachment figure, and with her older half-siblings, who are the mother's two children from prior relationships. These are C (born 2010) aged 14, and D (born 2016) aged 8.
The mother entered a relationship with Mr B (born October 1989), aged 35 (“Mr B”), in about March 2020. They commenced residing together soon thereafter and subsequently married on 14 December 2020. Thus, the child was introduced to Mr B at a very young age. The mother and Mr B have had two children: E (born 2021) aged 3, and F (born 2023) aged 1.
Because of the conflict in the parental relationship, including the father's ongoing breaches of bail orders, apprehended violence orders and community corrections orders, for which he has been found guilty and sentenced, the child has never met, communicated with, nor spent time with the father.
The child has been raised by the mother and Mr B, who has become the child's other primary attachment figure. The child calls Mr B “Daddy”, and to the extent to which the child understands the concept of a “father”, the child understands Mr B is her father. The child is not aware that there is a separate person who is her “biological father”, nor of the father's existence or identity.
The trial before me primarily resolved around two issues.
The first issue, was whether or not the father poses an unacceptable risk of harm to the child of any time or communication by reason of his alleged propensity for family violence and abuse, or because of the possibility or likelihood that, having obtained orders, he will disengage, causing the child psychological harm.
The second issue, if there is no unacceptable risk of harm, is in two parts: firstly, if, when and how the child should be informed that the father is her “biological father”; and then secondly, if, when and how the child should be introduced to the father. This issue is even more complicated than might be the case for a neurotypical child, given the evidence from her treating practitioners that her cognitive status means she is not presently capable of understanding the concept of a “biological father” separate to the concept that she currently has, to the extent she has it, of Mr B, as her father.
Adding another significant layer of complexity, there is no way to know at present when the child might achieve that level of cognitive functioning.
That lead to the raising in closing submissions of the issue of whether the Court would or should consider making interim rather than final orders, to allow the monitoring and supervision of the process of informing the child of the concept of a biological father, and then to allow the Court to be involved in orders for the introduction of the father, given the difficulty of making final orders where such medical uncertainty exists.
The father's submission was that a no-time and no-communication order would not, in effect, be made in the absence of unacceptable risk of harm and only as a result only of uncertainty about how and when best to introduce the child to the father.
The father's submission was that, contrary to the ICL’s submission, s 65DAAA was not an appropriate alternative in that case, by allowing the potential for a further application to be made when the child's cognitive capacity to understand the concept of a biological father reaches that level.
In this regard, as well as relying on and maintaining his final proposed orders (see MFI 2, proposal 4(a)) for introduction of supervised time and also orders for access to medical information at proposed Orders 11 to 13, for school information at proposed Order 17, contact information and keeping advised at proposed Orders 20 and 21, the father sought, in his amending orders (see MFI 12) at 6A and 6B, for regular updating reports on the child's capacity to understand the concept of a biological father and when she was informed of this.
These orders, proposed at the very end of the trial and during submissions, would, in effect, be made as interim orders to precede the introduction of the father, and so make the other orders sought by the father at this time potentially otiose, as it would be premised on an acceptance that the understanding of the concept of a biological father would be, as the expert said, required before the making of orders for the introduction to the father, noting the expert indicated that introducing the father to the child without explaining who he was would not be in the child's best interests.
The ICL and mother both opposed interim orders being made at a final hearing.
The Independent Children's Lawyer, appointed to represent the child's interests, and the mother, both submitted at the end of the four-day trial that the evidence comfortably established to the requisite standard, noting the gravity of the factual finding and the gravity of the consequences, that the father poses an unacceptable risk of harm to the child: firstly, due to the risk of exposing the child to family violence; and secondly, due to the risk that the father will obtain orders and then disengage from the child, as he has apparently done with his two older children.
The father submitted that he has addressed his history of family violence through an extensive number of courses, in respect of which evidence was filed and is included in his affidavit, and submitted that he does not pose an unacceptable risk of family violence.
In this regard, he also says that the risk in the mother's house, though not an unacceptable risk, noting that he supported a live-with the mother order, means that having another parent available is an important safeguard. Further, he submitted that having spent years litigating to be involved in the child's life, it is unlikely that he would disengage, and indeed, he says he would not disengage and consequently poses no risk on that basis.
At the end of the trial and the commencement of closing oral submissions, the parents and ICL all agreed on the following:
(1)that the child is to live with the mother;
(2)that the mother is to have sole parental responsibility and decision-making authority;
(3)with the mother's consent, that there be injunctions directed towards the mother regarding there being no illicit substance use, not exposing the child to persons who have used illicit substances, and not exposing the child to family violence;
(4)that the mother may apply for a passport for the child, although there was a dispute as to who should hold the passport;
(5)that as both parties are legally aided, there will be no orders to costs; and
(6)finally, in respect of orders relating to the discharge of the ICL.
I am satisfied and find that these proposed consent orders are in the child's best interests, and I make these orders by consent.
The remaining issues in dispute on the ICL’s proposal related to the child's birth certificate and whether the father's name should be inserted on it, and further, whether the child's surname should be changed to Lind. I understand that the father either agreed with or did not strongly oppose the change of the child's surname to Lind, noting that the child’s surname is no longer the mother's name and is not the father's surname. Having considered the benefits to the child of having the same surname as her mother and the person she considers to be her father, particularly as she starts school next year and the issue may arise, I am satisfied it is in the child's best interests for her to have the same surname as her mother and Mr B and, accordingly, will make that order without further discussion. I take into account the expert's evidence in this regard.

In respect of the recording of the father's name on the child's birth certificate. The father supported this proposition by the ICL, but the mother did not. I was somewhat surprised by the mother's opposition. That submission in opposition to the ICL's proposal was not able to be explained for the mother in closing submissions. Her opposition was inconsistent with her sworn evidence that she wants the child to know that she has a biological father, when the child is intellectually able to do so, as opposed to her evidence submitting that the father is an unacceptable risk of harm.
The expert gave extensive evidence as to why it is necessary for the child, when she's intellectually able to do so, which she is presently not, to know she has a biological father who is not Mr B. The expert explained that this is essential for the child's long-term psychological health as established by extensive research into both adopted and IVF children. The expert was not challenged on this by any party. Her reasons make perfect sense. She discussed the fact that a child who is told at a later age, perhaps in their teens, that the person they thought was their father is not in fact their father, might suffer, unsurprisingly, significant emotional and psychological problems, giving rise to issues about their identity, and also perhaps making them wonder what else their parents, who they trust and rely upon, have lied to them about.
The mother's evidence did not oppose this. Consequently, she was not cross-examined. It seems to me that the overwhelming evidence establishes that the child must, when she is able to, be informed that she has a biological father who is not Mr B.
That does not deal with the question of whether she should be introduced to the father, which I will discuss in terms of risk, but she must be told that there is such a person. And part of that is the acknowledgment on the birth certificate.
Accordingly, given that there is no evidence contrary to this, I will make that order and require the mother to both add the father's name to this birth certificate and provide a copy of the amended birth certificate to the Independent Children's Lawyer.
I will not discharge the Independent Children's Lawyer until the Independent Children's Lawyer has seen the amended birth certificate in compliance with that order.
As I have said, given the uncontested evidence from the expert and the mother's own sworn evidence, I consider no further discussion of this finding and order is required.
I should note that, up to closing submissions, the father had sought orders restraining Mr B from being left alone with the child (Order 30), and from being involved in changeovers (Order 9). There is concerning evidence about Mr B's act of family violence against the mother, which I will consider in due course. However, the father implicitly accepted that Mr B has addressed these issues, as I do, and did not press those injunctions.
That was in the context of Mr B proffering, and later filing, on the final day of trial, an undertaking to the court in similar terms to the injunctions on the mother relating to illicit substance use and family violence. The court accepts that filed undertaking, and the court makes this judgment and enters these orders in reliance on Mr B's undertaking.
The competing proposals at the end of closing submissions were on the one hand, the ICL's and mother's final proposals in MFI 7 and MFI 4 respectively: for the child to spend no time and have no communication with the father; and for an extensive range of injunctions, pursuant to s 68B, directed to the father for the personal protection of the mother, the child, Mr B, the mother's other children, and certain relatives of the mother and Mr B from the father, supported as raised in oral submissions by an explicit order pursuant to s 68C, noting that the father has been repeatedly convicted of breaching bail orders, of breaching AVO’s, and of breaching community corrections orders which have been made because he had breached bail and/or AVO’s.
The father opposed these orders. The father narrowed his final proposal, which was set out in the amendment in MFI 12 and the potential insertion of Orders 6A and 6B, which could run as interim orders. Nevertheless, he otherwise sought an immediate introduction of ongoing and potentially indefinite, depending upon the child's cognitive development, supervised time for two hours per fortnight at a supervision centre in Town M, as well as Orders 22 and 23 requiring the mother to attend mental health treaters, standard mutual restraints at Orders 26 and 31–33 around discussions, and at Order 29 around exposure to family violence.
As this is an oral decision, and to avoid further unnecessary stress to the parties, I will indicate that for reasons I will now give, having regard to the Act and in particular s 60CC, and noting the principles set forth in cases such as M v M (1988) 166 CLR 69 and most recently and relevantly, Isles & Nelissen (2022) FLC 94-092, I am comfortably satisfied to the requisite standard, noting the gravity of the finding and the consequences, that the father poses a significant, high and unacceptable risk of both physical and psychological harm to the child by reason of the likelihood that he will subject and expose the child to family violence and abuse, and further, that there is a real risk that he might subsequently disengage from the child, although the primary basis of my finding is a likelihood that he will subject and expose the child to family violence and abuse if allowed to communicate or spend time with her.
In finding this, I note that I generally accepted the mother as a witness of truth, noting that her evidence generally aligned with such objective contemporaneous material as is available, and that the father was generally not a witness of truth, and that his evidence was evasive and sought to avoid or reduce responsibilities for his actions, including in relation to offences for which he has been convicted.
A no-time and no-communication order is the most significant order this Court can make. It necessarily and always comes with significant long-term harm and trauma to the child through the loss of a relationship with a parent. It is only to be made in a case in which the risks posed by the parent against whom it is proposed are so clear and so significant, that having a relationship with the child or spending time or communicating with the child pose unacceptable risks.
Unfortunately for the child in this case, the evidence of the father's persistent long-term stalking, harassment and coercive controlling violence against multiple people more than comfortably reaches that level. In reaching that conclusion, I have considered the risks in the mother's household but find that the father's patterns of behaviours mean that involving him in the child's life would not provide a protective factor against those risks.
Consequently, in addition to the consent orders, I will make orders in similar terms to the ICL’s proposed Order 4 (MFI 7), which is that the child shall spend no time and have no communication with the father. Given the father's extensive history of stalking, harassment and intimidation, and of breaching bail undertakings, AVO’s and community corrections orders, I make s 68B orders in extensive terms in respect of the father and also, as raised in oral submissions, given his repeated breaches of such orders and his repeated convictions for breaches of such orders, and then for breaching the community corrections orders imposed upon him for breaching these orders, it seems to me that this is one of those cases where an explicit s 68C order must also be made.
I note, that I will make orders for the provision for the mother to provide a copy of the Family Report to her treating practitioners, as requested. She can provide a copy of the orders only, to schools and treaters and others who work with the child for the protection of the child by giving notice of the injunctions. I will order that a copy of the orders and judgment be given to NSW Department of Communities and Justice (“DCJ”), given their ongoing involvement with the child and family for their file, and I will make orders allowing the mother to have the passport and travel outside the Commonwealth of Australia.
Given my findings of unacceptable risk, I do not need to address the second issue in detail, as the question of an introduction to the father does not arise. But as I have said, given the expert's concerns, as picked up by the ICL’s proposed Order 10, that child's birth certificate be changed to include the father's name, which the mother opposes, I have considered the question of whether the child should be informed about the existence of her father and have determined that she should be, at an appropriate time.
However, it is not possible for me to craft orders safely that would require the mother to do so. The Court must ultimately depend upon the mother making good her oral evidence to the Court that she intends that the child should know that she has a biological father for the reasons she gave and for the reason the expert gave. Nevertheless, consistent with that, as I have said, the birth certificate should therefore be amended, and I will note the expert's opinion in a notation to the orders, that the orders are to be given to the child's treaters so that they understand that the birth certificate has been amended and that the Court's view, based upon the expert opinion evidence given in this court, is that when the child is ready, she should learn the concept of a biological father, even though, since he is unsafe, she will never meet him.
THE CHILD
First Nations heritage
The child has First Nations heritage through both parents (see s 60CC(3)). The Court is required to and has considered her right to enjoy her culture in coming to the decision that there be no time and no communication, and I return to this later.
Medical conditions
The child has significant medical issues which impair her functional cognitive capacity. The diagnosed impairments include Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder combined subtype (ADHD), mild intellectual disability and a global developmental delay with significant language delays and a medical condition, although fortunately, it appears she has not had this condition for over a year.[2]
[2] Exhibit ICL 5, Report of Dr O dated 8 October 2024 (The doctor has no relation to the father in these proceedings).
The child requires significant support services from allied health professionals, provided primarily through Educational Case Management (“ECM”), a clinical allied health service provider, who provides speech pathology, occupational therapy, behavioural therapy and child psychology services to the child, fortunately funded through NDIS. The detailed specifics of the child's functioning are set out in the various reports provided by these allied health practitioners contained in Exhibit ICL 3, and the updating recent reports in Exhibit ICL 4.
Whilst I have read those reports in detail, given that I find that there must be a no time and no communication order, it is not necessary for me to, in this judgment, go through that material as the complex questions of an introduction do not arise. The treating practitioners include a Ms N, a consultant child psychologist who provided the opinion accepted by the expert deferring to her as a treating practitioner that, at this time, the child:[3]
… is not considered to have the capacity to comprehend the concept of a ‘biological father’.
[3] Exhibit ICL 3, MFI 6 p.207.
As I have said, that was relevant to the submission around how and when the child should be introduced to the concept of a biological father, and it would have been relevant, if appropriate, to the question of when she should meet him. It is relevant to the father’s name going on the birth certificate.
PROCEDURAL HISTORY
The matter commenced on 4 July 2022 when the father filed an Initiating Application seeking final orders.
On 9 August 2022, the Independent Children's Lawyer was appointed, and orders were made for the preparation of a Child Impact Report.
Interim consent orders were made on 24 November 2022 for the mother to have sole parental responsibility, or sole decision-making authority, for the child to live with the mother, and for the child to spend no time and have no communication with the father. Orders for the preparation of a Family Report were also made on that date.
On 2 February 2024, the matter was transferred from Division 2 to this court.
The matter was listed for final hearing to commence on 29 October 2024, which was last week.
Each parent and the ICL were legally represented, including by counsel.
TRIAL
The trial ran from 29 October 2024 to 1 November 2024 in person at the City P Registry. All parties, as I said, were represented, including by counsel.
The father provided a court book and, in particular, relied upon the following:
(1)Amended Initiating Application filed 12 August 2024;
(2)Father’s affidavit filed 12 August 2024;
(3)Notice of child abuse, family violence or risk filed 4 July 2022;
(4)Outline of Case Document (Final Hearing) filed 22 October 2024 (MFI 2); and
(5)At the end of the trial, his proposed amendment to ICL’s orders (MFI 12).
The mother provided a court book and, relied in particular, upon the following:
(1)Amended Response to Initiating Application filed 14 August 2024;
(2)Notice of child abuse, family violence or risk filed 9 August 2022;
(3)Mother’s affidavit filed 14 August 2024;
(4)Affidavit of Mr B filed 14 August 2024; and
(5)Written submissions filed 22 October 2024 (MFI 4).
The ICL provided a court book and tendered the following:
(1)Family Report prepared by Ms L, Court Child Expert, dated 8 September 2023 (Exhibit ICL 1); and
(2)Child Impact Report by Ms L, Court Child Expert, dated 18 November 2022 (Exhibit ICL 2).
The ICL also relied upon written submissions filed 21 October 2024 (MFI 7).
There were filed tender bundles from which documents were tendered, I will refer to exhibits as necessary.
ISSUES FOR DETERMINATION
Father’s Family Violence
The father has had a traumatic life, commencing with a difficult childhood where his father was incarcerated, and he spent much of his childhood in the foster system, and he says he was subjected to significant abuse. He says this background makes him particularly determined to ensure he is involved in the child's life.
Having read that material, I have great sympathy for the father's position. He clearly had a terrible childhood. However, that sympathy is not relevant to the assessment of the risks the father poses to the child, which must be determined upon an objective assessment of his conduct and his current beliefs to determine the likelihood that he will expose the child to family violence.
The father's New South Wales criminal history (Exhibit C), and Queensland criminal history (Exhibit B), were not in dispute.
Paternal Grandmother
In 2008, when the father was aged 19, an AVO was obtained by the paternal grandmother against the father (Exhibit B). It appears the terms of the AVO allowed the father contact with the paternal grandmother. The father came to see his mother. The paternal grandmother made a complaint to Queensland Police in relation to his contact:[4]
… SUSPECT HAS BECOME AGGRESSIVE TOWARDS HIS MOTHER AFTER A VERBAL ARGUMENT AND CALLED HER A STUPID IDIOT. THEN [IN] 2008 HE HAS CONTINUED TO VERBALLY ABUSE INFORMANT AND YELLED AT HER "YOU ARE A FUCKEN IDIOT, I'M GOING TO PUNCH YOUR HEAD IN" SUSPECT HAS THEN GRABBED THE INFORMANTS BY THE HEAD USING ONE HAND AND STARTED YELLING IN HER FACE. [IN] 2008 THE INFORMANT HAS ASKED THE SUSPECT TO STOP USING HER MOBILE PHONE. HE SAID "SHUT UP YOU IDIOT" HE HAS THEN THROWN THE MOBILE PHONE ACROSS THE ROOM IT HAS HIT THE COUCH AND BOUNCED ONTO THE FLOOR CAUSING THE PHONE TO COME APART. [IN] 2008 THE SUSPECT HAS YELLED AT THE INFORMANT "YOU'RE A FUCKEN IDIOT I'M GOING TO PUNCH YOUR HEAD IN" SUSPECT HAS THEN [ASSAULTED HER] BUT DID NOT CAUSE ANY INJURIES, HE HAS THEN [STOPPED]. [IN] 2008 THE SUSPECT HAS CONTINUED TO BE VERBALLY ABUSIVE AND HAS SAID TO THE INFORMANT THAT HE WILL GET SOMEONE TO COME TO THE HOUSE AND BASH HER. INFORMANT THEN TOLD THE SUSPECT TO LEAVE WHICH HE DID AND RETURNED TO [CITY Q]. [IN] 2008 SUSPECT HAS USED A MOBILE TO CALL HIS MOTHER IN WHICH HE HAS BECOME VERBALLY ABUSIVE TOWARDS HER AGAIN CALLING A "FUCKEN CUNT" INFORMANT ATTENDED POLICE STATION TO MAKE STATEMENT ..
(As per the original)
[4] Exhibit B, MFI 6 p.104.
The paternal grandmother asked for a variation to no contact in 2008. When the father was detained early in 2010, the paternal grandmother said she did not want to proceed.
Accordingly, there was no testing of the paternal grandmother's evidence and no conviction, and she was not called. This police record is admitted pursuant to Division 12A despite being hearsay evidence from an alleged victim who was not available for cross-examination, in respect of whom, given the father's evidence of childhood abuse, there may be questions as to her motives. There was no prosecution and no conviction.
While I cannot make any findings of fact on this hearsay material, I can and do take it into account and give it some weight as part of the assessment of the overall constellation of complaints made about the father and the likelihood that his alleged propensity for family violence has continued across his entire adult life. Of particular concern is that the father allegedly “assaulted her”.
Prior Domestic Partner
The father was in a prior domestic relationship with a woman, whose name is known, but who I will refer to as “the prior partner”, as a result of which he has two older children.
I will not use their names. They are a girl born in 2009, now aged 15, and a boy born in 2010, now aged 14.
24 November 2008
On 24 November 2008, the prior partner made a report to police:[5]
The victim, ......... and the accused, [Mr Carlsen] have been in a domestic relationship for approximately 11 months. The victim and the accused resided together in [City Q] after returning from Queensland .. Around 2.50pm [on a date in] 2008 the victim and the accused were at their home, being ........... ......... ......... At this time the victim and the accused were engaged in a verbal argument in relation to the accused wanting to move house. This issue has caused a great deal of tension between the couple . . During this time, the argument became heated and as such the accused took the victim's phone to call ......... ......... is the ex-partner of the victim ..... ..... resides with the victim and the accused, and has a child to the victim . . After sometime the accused has returned inside the unit. The victim has obtained her mobile from the accused and contacted police. The accused confronted the victim and verbally threatened her . . The accused stated - "I'm going to get my brother to back and [Mr R] and my family . " . This caused the victim to hold a certain level of fear . . The accused [assaulted her]. This caused the victim to become 'freaked out' . . The accused has left the unit and waiting outside on the driveway for police to attend . . Shortly after police attended and spoke with the accused, who was standing on the driveway of ...... ........... ........... . A statement was obtained from the victim in relation to the incident outlined above . . The accused was informed of the allegation and cautioned. The accused then participated in a hand held electronic interview in relation to the incident. The accused stated "I [assaulted her]. I know it was the wrong thing to do." . The accused was informed of his arrest and conveyed to [City Q] Police Station, upon where he was entered into custody and introduced to the custody manager. . Attempts were made for the accused to have a support person with him due to the accused being deeply upset. However the accused was unable to supply any person, apart from the victim in this matter, that he knows in [City Q] .. The accused is charged with the matter now before the court. . All legislative requirements under LEPRA were complied with during the conduct of this matter.
(As per the original)
[5] Exhibit D.

Of particular concern, the father allegedly “assaulted her”, which he was reported to have confessed to. He gave some evidence about that in oral evidence, in which, whilst not denying that something occurred, he sought in his oral evidence, consistent with what is set out in the expert report, to minimise and avoid responsibility for his behaviours.
The father was charged with common assault, and, in early 2009, was convicted and sentenced with supervision by New South Wales Probation Service, to undertake a family violence program and undertake such other programs and/or counselling as directed.[6]
[6] Exhibit C, MFI 6 p.11.
In his oral evidence, as I have said, the father was evasive and defensive of and minimised this event, despite the conviction. Again, although admitted as hearsay, noting the conviction, I give some weight to this event and the allegations made by the prior partner in assessing the likelihood that the father poses a risk of family violence to the child, and I should also say, to the mother and her household.
2010
In 2010, an AVO was granted by consent a Local Court, which did not prevent the father from attending the prior partner's residence.
In 2010, while at the house of the prior partner to care for his two older children, the father committed more acts of family violence in breach of the new AVO:[7]
About 4.30pm [on a date in early] 2010 the accused attended the address of the victim, ........., situated at ....... .......... ............ The accused attendance had been previously organised for the purpose of the accused to care for two of his children, whilst the victim attended to other activities. . The victim left the location with her daughter to drop her off at another location for the evening. Whilst the victim was away the accused contacted her by mobile telephone via text and calls stating, " You've got five minutes to get home or else, im calling the doctor's. "This was in response to the victim and accused son, who had been ill and was now vomiting. . The victim arrived home at the location at 5pm. At this time the accused was at the front door standing, holding his son, ........... The victim alleges that the accused said to her, " here take ......... , I will get dinner for you." This was in reference to an earlier request for the accused to attend the local service station and get dinner.. The victim alleges that she replied, " Hang on I will take ......... after I put the smoke out. " . The victim walked to the kitchen, followed by the accused. The victim states the accused then said, "Can I please have $ ......... for credit so I can call you tonight." The victim said, " No, you don't call me and I don't have any money. I only have money for food tomorrow when I go shopping. You onlu got paid 1/2 hour ago, how could you not have any money." . The victim states she was still standing in the kitchen and the accused passed the child to her. The accused asked for money to purchase the evening meal and the victim has picked up her handbag and got money out of her wallet . . OFFENCE ONE: […] The victim states the accused said, " Give me the fucking money. " to which she replied, " I don't have it." The victim states the accused then pushed her […], causing her to fall backwards onto a wall striking her head […]. . OFENCE TWO: […] . The victim states that the accused then grabbed her handbag which she was holding and ripped it from her hand, which later revealed that the handle had been ripped. . The victim states that she then said to the accused, " I'm calling the police ." The victim states she then walked towards the accused and at this point the accused kicked out with his foot […].. The victim demanded her handbag back and then called the police via 000. The victim told the accused to leave, which he did.. Whilst on the phone to the 000 operator the victim has locked the doors. . OFFENCE THREE: […] Whilst on the phone to the 000 operator the accused has returned to the location, banging on the rear door. The accused has then gone to the front door and banged on the door and said, " Let me in you fucking bitch ." The victim said, " Please leave [Mr Carlsen], I've called the police." The accused said, "I don't fucking care i'm leaving Saturday. The accused then left the scene. . A short time later the accused has contacted local police. At this time the accused was crying and rambling. Due to the relevant CAD jobs the accused was informed to return to his home and police would speak to him.. Police attended the victims home and a statement was obtained, and the damaged handbag was photographed . Nil injuries were oberved. . OFFENCE FOUR: […] Police were aware that [in early], 2010 the victim and the accused had attended [the] Local Court in regards to an avo application, which was granted by consent. This order restricts the accused behaviour in the following terms. . 1a. The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship. lb. The defendant must not engage in any other conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship .. lc. The defendant must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship. In addition, . 10. The defendant must not approach the protected person(s) or any such premises or place at which the protected person(s) from time to time reside or work within twelve (12) hours of consuming intoxicating liquor or drugs. . About 6.45pm police attended the home of the accused where he was informed of the allegations and placed under arrest. LEPRA safeguards where administered, this was recorded on handheld recorder.. The accused was then conveyed to [the] Police Station and introduced to the custody manager·, ........., where he was read his rights under part 9. . The accused was then put into contact with a solicitor ......... of the Law Access. The accused then declined to be interviewed in regards to this matter and would only state that he did not agree with the allegations.. The accused was then charged with the matter now before the court ..... BAIL the accused is a single man with tow dependant children, who reside with the victim. The accused has organised to move back interstate intending to reside there.. The accused has no family mmebersw in the state of NSW other than his two children and the victim . . Although no serious assauilt has taken place the accused is still charged with a breach of AVO.
(As per the original)
[7] Exhibit R.
The father was charged with domestic violence related offences, and, in 2011, was convicted and sentenced globally to a section 9 bond for seven months.[8] I note that they were destroy or damaged property and remain on inclosed land charges, but they were dismissed, so I do not take them into account.
[8] Exhibit C, MFI 6 pp.11-12.
Father's Time with his Older Children
In the father's affidavit, filed at the commencement proceedings on 4 July 2022 with his Initiating Application, the father gave evidence, as follows:[9]
8. I have two children from a previous relationship, these are [a girl (“name”)] born on [date] who is currently 13 years of age, and [a boy (“name”)] born on [date] who is currently 12 years of age. [The girl and the boy] spend regular time with me.
[9] Exhibit M.
It is clear from the last sentence that the father was giving evidence in the present tense, and that he sought to convey to the court at the commencement of these proceedings that his two older children “spend regular time with [him]” at that time.
Taking into account all of the material before me, and including the father's oral evidence, I am satisfied that evidence was knowingly false and sought to deceive the court.
A more accurate picture was revealed, or an accurate picture was revealed, by the father to the expert in interviews for the Child Impact Report on 16 November 2022 as set out:[10]
29. … He has two children from a past relationship with whom he reported in his affidavit to be having regular contact with, however stated in his interview that he had not had any contact with these children since 2019. He alluded to the fact that there were FLC Orders in place for these children and that he intended to pursue the mother of those children for breaching of these orders, once this matter relating to [X] is finalised.
[10] ICL 2, Child Impact Report, paragraph 29.
The father addresses this in his trial affidavit at paragraphs [7]–[19] stating that he “previously spent time” with each of his other children, providing at annexure A to his affidavit a copy the consent orders made for that time, and stating that time stopped in 2019 because of his bail conditions and because of the criminal matter involving the mother, and then because of the community corrections orders, and then because the prior partner and older children moved and did not notify him of their whereabouts or contact details. He said in reply to a letter to the prior partner about court orders, she called him and said, “I don't care, I’ll see you in Court”.
The father then said in oral evidence that he had not, in fact, seen the children since 2018, which is not that different to 2019, and had not spoken to them since he spoke to them once in 2019.
The father was asked the obvious questions of why, given his evidence that he is running these proceedings because of his strongly held views that a father must be involved in a child's life, he has apparently taken no efforts to see these children for six years, or communicate with them for five years, and given he already has court orders.
The father's evidence in reply was rambling and evasive. He could not provide any rational explanation for why, given he has current orders, and given he has had solicitors who have been acting for him in this court for almost two and a half years, he has not taken any steps to commence proceedings for enforcement. He suggested there were other solicitors he had contacted somewhere who had been asked to act, but he could not explain, rationally, why in all the time since 2018, given his allegedly strongly held views, and given the fact that he has existing court orders which he would be entitled to simply enforce, he has done nothing to do so.
Furthermore, his oral evidence was inconsistent with his statement to the expert, that he was going to wait until these proceedings were over, nor could he provide any rational reason for why he would wait for years until these proceedings were over to try and contact his older children. That evidence goes to his credit, and it goes to the risk that he will obtain orders but disengage if things do not go well.
Mother's evidence of family violence
The mother's evidence is that over the course of their short relationship, the father would leave numerous voice messages on her phone in an agitated and angry state, and would also arrive at her house unannounced, often late at night. Given the escalation in behaviour, she decided to end the relationship in late 2018. She says that the father called and texted multiple times, and that she held fears for her and her children's safety, and so contacted police, who made a provisional AVO for her protection on that day.[11]
[11] Mother’s trial affidavit filed 14 August 2024, paragraphs 17–21.
The father's history was given in his affidavit of 4 July 2022,[12] and then also he gave his version of events in his trial affidavit.
[12] Exhibit F.
The father gave oral evidence about this period, in which he occasionally made general statements of contrition in relation to saying that he understood his behaviour was not good enough or was not acceptable, but in relation to specific issues and allegations he consistently sought to minimise, deny or downplay them.
Late 2018
The mother made a report to police in late 2018:[13]
The accused [Mr Carlsen] and the victim ......... ......... were involved in a defacto relationship and had been since August 2018. As a result the victim fell pregnant to the accused. The victim has two other children as a result of a past relationship. There are no current apprehended violence orders between the parties. . About one week into the relationship the accused began to contact the victim via phone calls and text messages constantly. From [late] 2018 the accused constantly called the victim and sent text messages to her. This eventually made the victim concerned and scared for her safety. The calls consisted of the accused trying to control the victim's behaviour. He would accuse her of cheating on him, make threats towards anyone he sees at her home threatening to [harm them]. He has left numerous voice messages on the house phone in an angry and an irate state yelling and abusing the victim. The victim has been subjected to phone calls and texts from the accused abusing, harassing and threatening to come to the house. The accused gets angry at her when she falls asleep and doesn't say goodnight, demanding that she pay more attention to him. Over the time the calls had become more angry and aggressive towards the victim. The victim has told the accused numerous times that she does not want to see him or talk to him or for him to come to the house. . [In late] 2018 the victim decided to end the relationship and informed the accused of this. As a result the accused continued with his phone calls from 9.14am to 1.42pm. The accused continued to call the house phone and leave voice messages from 11.55am to 1.42pm. . As a result the victim had had enough and contacted police. Police attended and spoke with the victim who provided the above version of events. While police were speaking with the victim the victim received a phone call from the accused. The accused was irate and angry at the victim yelling at her over the phone.. A short time later police sat down to obtain a domestic violence evidence In chief (DVEC). During this time the accused rang again a number of times and as a result left voice messages. These messages consisted of the accused angry and abusive towards her. As police were obtaining the statement the accused rang again a number of times however did not leave messages due to the call log being full. The phone rang again and police this time spoke with the accused where he was informed he was speaking with police and asked not to call again.. Police finished the statement and made contact with the accused where he was met [in Suburb U]. It should be noted that the accused was not far from the victim's house and was walking in that direction.. Police stopped and spoke with the accused about the matter. As a result the accused was placed under arrest. The accused was searched and police located a small [weapon] attached to his keys in his pocket. The accused stated that he carries the [weapon for domestic use]. The accused had no reasonable excuse for carrying the [weapon]. The accused was conveyed to the [Suburb U] Police Station and introduced to the custody manager where all custodial requirements were met. . The accused was given the opportunity to speak with the [First Nations] Legal Service and as a result he agreed to be interviewed. During the interview the accused claimed that the victim's mother was the cause of his behaviour stating that she causes problems between the victim and accused. . The accused is now charged with the matter before the court.
(As per the original)
[13] Exhibit E.
In late 2018, the father was arrested, charged with a series of offences, and the AVO was served while he was in custody.
In cross-examination of the mother, it was put to her that, consistent with the father's oral evidence, he had not sent threatening text messages. She replied that she could produce some of the text messages, which she did.[14] They included comments such as, “U never loved me”, and, “Btw I’m gonna go visit a few people” naming, “the guy who lives near [Suburb U]” and, “The guy In Syd” and, “I’ll be paying […] a visit”. He also included the comment, "I needs alchoal coumclimg”, and, “I kill any cunt comes near our baby”, and, “Think I'm jokinh” [sic].
[14] Exhibit O.
The father was recalled and, in oral evidence, sought to dissemble and avoid answering questions about these texts in Exhibit O, initially denying that he could actually say these were his text messages. He then accepted they could be his text messages. He also denied telling the mother he was going to visit these three different men she knew implicitly involved a threaten to them. I consider that last to be fanciful evidence.
The text messages produced speak for themselves, and are consistent with the mother's evidence. Significantly, the text messages are consistent with the father's conviction. I prefer the mother's evidence to the father's evidence in relation to this period. This adds significantly to my view that the father was not a reliable witness.
Late 2018
The mother says that the father continued to contact her after the provisional AVO was issued. In late 2018, she says she received multiple calls from a private number to her landline and mobile. She also says the father left some items at her door alongside a handwritten letter. She contacted police, who subsequently arrested the father for the breach of the AVO.[15] The police report of late 2018, states:[16]
… The accused was also placed on bail to comply with the conditions of the Apprehended Violence Order. . About 10.30pm [on a date in late] 2018 police were called to ......... in relation to a possible breach of the apprehended violence order. Police attended and spoke with the witness the victim's mother ........ .......... who claimed the accused attended the location and dropped of some items. She claimed to have seen the accused run from the front door. As a result police obtained a statement from the witness in relation to what she had seen. Police took a number of photographs of the items and while checking them the victim located a hand written letter from the accused which states, Im sorry .. ... . .. . for everything hope all goes well on Tuesday with bub. miss you alot it hurts every day that this has happen. Take care xoxo. On the other side it states, Help me with getting mad or snapping and myself better into the relationship with .......... Police collected the letter.. A short time later police attended .......... ........ ......... where the accused was spoken to about the allegation. The accused was cautioned and asked if he attended to location in [Suburb U]. The accused stated that he did not attend and a mate of his took the items to the house. Police asked the accused if he left a note/letter in the bag for the victim and the accused agreed that he left a note for the victim asking about the baby and letting her know he hopes everything is OK. This admission was captured on police body worn video. Police spoke with the accused mate ......... who confirmed he did in fact drop the items to the house and the accused was no where near the location. . As a result the accused is in clear breach of section 6 of the no contact clause of the apprehended violence order for leaving a note/letter for the victim. The accused was placed under arrest and conveyed to the [Suburb U] Police Station and introduced to the custody manager where all custodial requirements were met.. The accused spoke with the [First Nations] Legal Service and as a result declined to be interviewed.. The accused is now charged with the matter before the court.
(As per the original)
[15] Mother’s trial affidavit filed 14 August 2024, paragraphs 25–27.
[16] Exhibit H.
The father was detained and charged with breach of bail, which was held to be established.
Late 2018
In late 2018, the father was spoken to about various actions regarding the mother and breach of the AVO:[17]
… During the course of the interview, the Accused was questioned in relation to the allegations where he initially denied any intent to contact the Victim, however believed that all forms of contact were a means of assisting the Victim. After further questioning, the Accused admitted that the contact made and ongoing harassment of the Victim was an attempt to let her know that he wanted to continue with their relationship and care for their unborn child. The Accused showed remorse and when explained the ongoing attempts to make contact with the Victim, he agreed that it was a form of harassment. At the conclusion of the interview, the Accused was informed that he would be charged with breach of the apprehended domestic violence order and breach of bail. Police will allege that the Accused has used multiple means to make contact with the victim consisting of accessing her personal bank account, accessing her user profile on her social media page, ongoing text messages to the victims mother who resides in the same premises as the Victim, messages to the Victims friends in an attempt to assist him in making contact with the Victim and finally sending friends to the Victims premises in order to again make further contact with her via third person means. Police further allege these persistent forms of communication have caused the Victim to feel mental fear for her personal safety therefore constituting a breach of the apprehended domestic violence order.. The Accused is now charged with the matter before the court.
(As per the original)
[17] Exhibit G.

In late 2018, the father was before a court.
In relation to the events of mid-2018 to late 2018, the father was charged with a number of offences. I note, I give little weight to the weapon issue.
The father was sentenced globally for three charges to a community corrections order of two years from late 2018 to late 2020, and ordered to undertake or engage in any programs thought appropriate by community corrections, and to report for the supervision to community corrections.
In relation to the contravention of AVO and breach of bail in late 2018, the father was given a section 10A conviction with no additional penalty.
Mid 2019
These orders were in place when, mid 2019, the mother made a complaint to police regarding the father's ongoing harassment and stalking:[18]
In [mid] 2019, the victim was driving in the [Suburb V] area on route to another suburb when she drove past the accused house. The victim then noticed the accused following her as she drove around. This caused the victim fear and she diverted from her destination and drove around random streets with the accused following her for a significant period of time in an attempt for the accused to not know where she was going. This made the victim anxious as she knew the accused was following her. in mid 2019 the victim text messaged the accused writing "Yes I've heard a lot about your" concerns" today [Mr Carlsen]. After last night I should be the one with concerns. I don't appreciate you following me to [Suburb W]!! This is the ridiculous behaviour I'm talking about. Do not follow me ever again" The accused has SMS messaged the victim 322 times [just under 3 months] from his mobile phone number ......... .......... The nature of the SMS text messages are predominately about their daughter however during numerous text messages the accused has also the messages contain other text that is unrelated to child welfare. "I've lost weight too and put on muscle etc been very healthy but anyway back to about bub". "Ask the licensee I always said u were a good mum". "I didn't say your a bad person ......... " . "I think there [Mr Z] friends it was suss how they approached me". [In mid] 2019 the accused SMS messaged the victim stating "Hi ........ . how is our daughter going and what's been happening with her? My lawyers said we just waiting for your lawyerto get back from holidays. But can you please let me know how our daughter is please I would really love to meet my daughter as shes almost 3 months old now and I think I deserve to meet and spend time with my daughter please. Also can you please explain on why ......... [Mr AA] is around my daughter as I've been told by numerous people and have seen you drive pass my house with him in the car as I have evidence of it I have very high concerns about ......... [Mr AA] being around my daughter as I've been told by numerous people about ......... that he is no good. I will be taken this further with my lawyers and order in place that ........ will not be anywhere near my daughter at all while my daugter is in your care at all times as I have very high concerns and threats that were made by him aswell. I will also ask you that ......... doesnt be around my daughter at all if this continues to happen I'll be taken further actionwith lawyers and get [X] into my care as I have high concerns for [X] qhile u are assoicate with .......... ......... needs to go away ......... it's best for our daughters well being. Thanks" There numerous other SMS text messages that are also received by the victim not relating to their child . [In mid] 2019 police attended the residential address of the victim who provided police with a DVEC statement. During this statement the victim relayed her concerns for her wellbeing and several breaches of their enforceable ADVO. Police requested if the victim would allow police access to the mobile phone to download. This request was granted. Police were also supplied with photographs of some text messages between the accused and victim. Police left the location and drove to ......... ......... ......... where police knocked on the door. The accused presented to the front door and police introduced themselves and cautioned him. Police then placed the accused under arrest and he was conveyed to [Suburb U] Police station. Whilst at the police station the accused was entered into custody and introduced to the custody manager. The accused was read and explained his Part 9 rights in accordance with LEPRA safeguards. The accused contacted legal aid and was offered the opportunity to be electronically interviewed (ERISP) which he agreed to. The accused was asked if he would allow police to download the contents of his mobile phone. The accused agreed to this request. Cellbrite trained police took possession of the mobile phone and conducted phone downloads on both the victim and accused phone .
…
The subsequent digital forensic examination of the phone of the accused located a number of images of the accused holding an imitation firearm. The imitation firearm held by the accused in these photos is a copy of an [firearm]. The [firearm] is a prohibited firearm as it is capable of fully automatic fire. As a consequence the imitation held by the accused in the photograph is also a prohibited firearm. . The meta data from the photograph places the accused inside......... ......... ......... ......... at the time the photographs were taken. Other information from the phone of the accused confirms he associates with persons known to reside here.
(As per the original)
[18] Exhibit J.
The mother made a further complaint in mid 2019 in respect of matters in previous days:[19]
[In mid] 2019 the accused had entered into multiple instant messenger chats with ......... , a friend of the victim. Police have been provided with screenshots of these chats. In one of these chats chat the accused asks ......... about the victim. The Accused: Are U still friends with ......... .........: She's on my [social media] yeaj The Accused: Yeah she prob made a big post about me and slander me (frowning face emoji) .........: I haven't seen anything In a later chat the accused again asks about activity on the victim's [social media] page The Accused: Was there pics of my daughter .........: nah just quotes nd stuff sorry The accused: Anything about me. About 8:15am Police attended the home address of the accused. The accused was advised of the operation of body worn video and cautioned. . The accused attempted to portray the contact as only being about his daughter who is in the sole custody of the victim. It was put to the accused that he asked specifically about things said by the victim to which he replied. . "Cause I ' m going to Court on the 29th with ........., and I wanted to use that in Court" . The accused later stated that he didn't know it was a breach. . In the plain language section of the AVO served on the accused it clearly states."You must not approach or contact ......... ......... in person or through electronic communication (for example, by phone, text messages, emails or […] other social media) or by any other means including asking someone else to contact them." . Police will allege that the accused has breached the non contact condition of his apprehended violence order by requesting that ......... approach the victim's social media page on his behalf to access communications made by the victim, that were not intended for him, and that he has been specifically excluded from.. Police will further allege that the accused has breached the AVO by stalking the victim. In the latest incident the accused is using third parties to watch the victim's social media activity with the intent that the victim will later become aware that he is watching her activity through the Court proceedings. . The accused has been engaging in this behaviour since the [mid] 2019. Police will submit extensive electronic material downloaded from the phone of the accused, which was seized at the time of his previous arrest [in] 2019, which shows that the accused frequently accesses or seeks to access the online presence of the victim, her friends, and family members. The accused has made several comments to the victim, including questioning her as to why certain persons commented on photos, that have made her aware that he was watching her online presence.. The accused is charged with the matters before the Court.
(As per the original)
[19] Exhibit K.
Early 2020
In early 2020, the father was called up for breach of the AVO from mid 2019, and contravention of community corrections order from mid 2019. He was also called up for an offence in respect of which I give little weight.
The father was sentenced to an intensive corrections order (aggregate) eight months, commencing early 2020 concluding late 2020, including the requirement to accept supervision including psychiatric and psychological referrals thought appropriate.
Mid 2020 – Third Partner
Exhibit L is a COPS record setting out a complaint about the father made by a young woman he met through social media and who the father dated for a very, very brief period whom I will call her “the third partner”. The entry in late 2020 states:[20]
The accused is [Mr Carlsen], date of birth [is] 1989 (31 years) The victim is ......... , date of birth [is] 1999 (21 years). The victim has one child from a previous relationship, ........., date of birth [is] 2018 (2 years old) . The victim states she met the accused around 2 months ago, on [a] social media platform […] The accused user name is "[Mr Carlsen]" The two began to communicate and commenced the early stages of a relationship. The victim states that the accused picked her up on one occasion and she attended the [BB Hotel] with him where he worked. The victim states that within a very short time she realised that the accused was to old for her and she did not like him romantically. The victim stated that the relationship had not progressed to a sexual one, though they had kissed and held hands. The victim states that since she told the accused that the relationship was not progressing he has commenced to constantly call and text her. The victim has taken action to block the accused phone number and [social media] identity,. The victim produced her mobile telephone and whilst in police company unblocked the number where she was able to show police a long call log record dating back prior to [mid] 2020. 78 photographs were taken, which show a large number of repeated calls, many of which were labelled "rejected" these calls showed persistent and repeated calling often moments apart, continuing into the early hours of the mornings. The last call on these log shows [mid] 2020. The victim whilst in police presence attempted to unblock further call logs and text messages, however during this process the messages were deleted. Police will be completing IASK requests to establish these further calls and messages. The victim states that the accused behaviour has been controlling, harassing and intimidating. The victim alleges that she has tried to end things nicely, though the accused has stated things such as "If I can't have you, no one will" [end of] 2020 the victim saw the accused drive past her down town. The victim states that the accused wound down his window and said something to her but she didnt hear and kept driving. The victim went to [a park in City Q] with her young son playing at the […] park. The accused pulled up in his [Motor Vehicle 1]. The victim states that the accused wound down the window and began yelling toward the victim threatening her. The victim told the accused if he didn't leave her alone she would call the police. The accused wound up the window and sped off, driving back around again past the victim saying something out the window to the victim. The victim put her young child in the car and drove to the police station. The victim states that she is scared of the accused, that when she sees him he keeps going on and is not listening to her when she tells him she wants to be left alone. The victim states that she is tired of the constant harassment from the accused, and she has told him in the past that he is scaring her. The victim feels she no option than to come to the police to keep the accused away from her. Whislt the victim was at the police station that accused contacted police alleging that the victim and her new boyfriend were harassing him. The victim was spoken to and advised that she was alone today when the accused approached her at the park
(As per the original)
[20] Exhibit L.
I note that in early 2021, the father was convicted and sentenced in respect of a number of charges and given a community corrections order for 12 months commencing early 2021 and concluding early 2022, to comply with the supervision plan as set out in a report dated 18 March 2021, and to re-engage with S Service.
The father, in oral evidence, admitted knowing the woman, but denied the substance of the allegations that he was controlling, harassing and intimidating, and that he said things such as, “If I can't have you, no one will” or yield threats. Again, I can make no finding of fact. This is hearsay evidence. There's no evidence from the alleged victim who was not available for cross-examination, but I do have the police record, and I do have a conviction on early 2021, and I give this some weight in my assessment.
Early 2024
Exhibit N is a COPS record setting out a complaint about the father made by a different fourth woman, who I will just refer to as “the fourth partner”, who he had known for about one month after meeting her through a dating app. The report misspelt his surname, but the father accepted the report was made in relation to him, while denying the substance of the allegations:[21]
The victim ......... and the PN [MR CARLSEN] have known each other for approximately one month after meeting through the […] dating app. In the short time, the pair shared an intimate relationship that seemed to develop quickly, with ......... introducing [MR CARLSEN] to her three children aged 6, 4 and 2 .......... claims [MR CARLSEN] became controlling and possessive very early on and that she was frightened of him given his […] background. . About 0230 [on a date in early] 2024, ......... called triple zero after receiving a call from [MR CARLSEN] stating he was coming to her location. Police arrived on scene a short time later where they spoke with ......... on BWV, who provided the following version of events: . [Early 2024] was her youngest child's 3rd birthday and given [MR CARLSEN] had met her children who had grown fond of him, she allowed him to attend her residence to see the children, on the proviso he took his belongings with him when he left. [MR CARLSEN] subsequently came and went from ..........‘s address 3 times throughout the day and evening, with the last visit around 2230. On this occasion, ......... claims [MR CARLSEN] tried to have sex with her, however her cousin kept ringing her (which she suggested she had arranged with her cousin), which deterred [MR CARLSEN] and he left ........... claims [MR CARLSEN] continued to text and call her for hours non-stop and at 0220, they had a phone conversation where he said he was coming over despite her telling him not to. ......... also stated that [MR CARLSEN] said things like, I know how to kill people. It was unclear whilst speaking with ......... if this was said during this alleged conversation or during previous conversations .......... was somewhat vague with exactly what her concerns were for calling triple zero, other than [MR CARLSEN] thought she was cheating on him, and she no longer wanted to continue the relationship .......... justified her fears in that [MR CARLSEN] was ex-[defence force] and a 'big guy'.. Police reviewed a text thread between ......... and [MR CARLSEN] where is was very clear the pair were exchanging texts back and forth and a regular rate, however there were times [MR CARLSEN] sent 2 or 3 messages in response to 1 message from .......... There was a lot of back and forth about [MR CARLSEN] collecting his belongings, which turned out to be disposable items such as toothbrush and toothpaste.. Police asked ......... what she hoped police could assist with, to which she stated she just wanted [MR CARLSEN] to understand clearly that she did not wish to continue the relationship and wanted no further contact. Police advised ......... they would speak with [MR CARLSEN] about the incident and suggested she block him on all social media platforms as well as his contact number if she wished to cease all communication. Police left location and drove to [MR CARLSEN]'s listed address in [Suburb U]. . [MR CARLSEN] met police and was cooperative with their enquiries, however appear shocked at their attendance. Police obtained [MR CARLSEN]'s version of events on BWV where he willing provided them with his mobile phone to review. Police observed the text thread to be identical to what they saw of ..........’s, however [MR CARLSEN]'s call log appeared to show just as many outgoing calls as incoming, suggesting ......... was also initiating phone calls and or calling [MR CARLSEN] back when he did try calling her.. [MR CARLSEN]'s understanding of the situation was that he and ......... were having some issues and probably not going to pursue the relationship, however claimed it was ......... that would continually call him and request him to go to her house. Given what police observed in both party's phone messages and call logs, police could not discount this.. Due to the extremely vague description of events provided by ........., police do not believe sufficiency has been met to believe an offence has taken place, nor is an ADVO warranted in these circumstances.. Police did however warn both parties that it has now been made clear, communication is not wanted or permits between them and if any unwanted communication were to continue, ADVO's may become relevant.. NFPA required.
(As per the original)
[21] Exhibit N.
Again, this is admitted as hearsay evidence. There is no other evidence from the alleged victim who was not available for cross-examination, and although it was said that, “ADVO’s may become relevant”, there is no evidence an ADVO was taken out, and no charges were laid.
Again, the father accepts he knew the woman, and that this was a complaint against him, but denied the specific allegations, including that he became controlling, possessive or said things like, “I know how to kill people”, or acted in a way which a reasonable person would take as intimidating.
Again, whilst I can make no findings, in the context of the risk assessment I undertake applying the approach required in Isles & Nelissen, the striking similarity in alleged behaviours by yet another different woman, who there is no reason to believe knows the mother or other women in this case, causes me to give weight to this allegation as evidence that, even after he had completed many of the behaviour change and other men's behaviour courses he relies on as showing he has addressed his past behaviours and gained insights, as recently as earlier this year, the father may still have been exhibiting the same stalking, intimidating, coercive and controlling behaviours in respect of which he has been previously accused and, indeed, convicted.
Present Partner – Fifth Partner
The father revealed in oral evidence that he has a very new partner, who I will not name. This was not previously revealed, they have only recently moved in together. Nothing is known about her, even though if, assuming the relationship continues, the father's final orders would eventually involve her probably spending time with the child.
Does the father accept responsibility?
The real issue, given that the father clearly has a significant history of family violence, is whether or not it is likely or possible that these behaviours would continue in the future.

The father's evidence and submissions are that he has undertaken many courses about, and accepts responsibility for, his prior family violence behaviours, and I note the extensive list in Exhibit 2, and also they were listed in the father's affidavit.
However, of concern, when the Court Child Expert raised with the father his breaches of the ADVO, he said as follows:[22]
13. When the father was asked about the ADVO and the breaches of the Orders, he appeared to minimise the breaches and was dismissive of the seriousness of them. He rationalised the contact by stating that he “left a little note” on one occasion, left “a few voicemails in a frustrated tone”, asked about who the mother was associating with as he feared for the safety of [X] around said person, and another contact about who the mother was around as his solicitor had told the father that a person associating with the mother was well known to police. The father stated that each of these contacts with the mother were about [X] and did not understand how they constituted a breach given that the ADVO had been amended to allow him to contact the mother as long as it was to do with [X]. The father denied any further breaches.
[22] ICL 2, Child Impact Report, paragraph 13.
When the father was re-interviewed for the Family Report, she recorded that:[23]
25. … The father appeared dismissive of his criminal history…
[23] ICL 1, Family Report, paragraph 25.
Even more concerningly, when asked about these matters, the Court Child Expert reported that the father said:[24]
58. … “I wouldn't say it was violent”.
[24] Ibid, paragraph 58.
That caused the expert some concern. That was raised specifically with the father in cross-examination, and I note that from about 3.30 or 3.35 pm on day 1 of the trial, there was a long passage of evidence in which the father's understanding of family violence was raised with him, particularly in the context of his suggestion that his family violence convictions were not "violent”. In his oral evidence, most concerningly, the father maintained the distinction between him committing acts of “family violence” and him being “violent”. When asked:[25]
[COUNSEL FOR MOTHER]: Do you believe it was violent?---
[FATHER]: There was domestic violence, but not in a violent way.
[25] Transcript 29 October 2024.
The father was further cross examined about this issue the following days and about his evidence he had given that there was domestic violence, but not in a violent way, and, on the following day, he maintained this position that there is a distinction between him being “violent” and “family violence”.
The father's answers in cross-examination of his understanding of family violence strongly persuaded me that he has no real insight into the concept of family violence, apparently considering, as the expert had raised, that it is limited only to acts of physical battery.
I note, that the father's proposal at trial, up until final submissions, was for the child to live with a mother subject to his Order 7, which read:[26]
7. In the event that the father considers that the child is in danger, at risk of harm, or otherwise the child's welfare is in jeopardy, then the child shall live with the father until the situation is resolved.
[26] MFI 2.
In effect, the father's proposal up until oral submissions was that he would, in law and in fact, have the unilateral power to determine, in his absolute discretion, where the child lived from the moment the orders were entered.
The father's evidence in cross-examination of this topic sought to avoid and deflect, and he suggested he would only use this power in appropriate circumstances, but he did not resile from the proposal and maintained that proposal that ultimately he should be given the power to determine if the child lives with the mother or with him, up until closing commissions.
I note, the expert's opinion was that such a change of residence, even if the child had been introduced to the father and was spending time with the father, would be “cataclysmic” and “long term” and distressing for the child, destabilising for the child, and would cause the child significant harm as a result of her removal from her two primary attachment figures, particularly in the context of her cognitive impairments. I accept that opinion. I think it frankly should have been self-evident to anyone who had, as the father said he had, read the child's medical history and was aware of the circumstances.
I consider this proposal adds further evidence, if any was needed, to the father's lack of insight into the concept that he is not entitled to control others, that is another small point.
Findings on Family Violence
The father has an extensive history of family violence from 2008 until at least 2020, and possibly 2024.
The family violence in respect of some of the allegations has been determined by convictions, and to the extent to which the father sought to avoid responsibility for the underlying allegations, to the extent to which they are known, I found his evidence very unpersuasive. His evidence suggested that he does not really believe he has done anything wrong, and, that was consistent with his evidence that his “family violence” was not “violent”, because it may only be it may only be emotional or staling or harassment, etcetera.
His oral evidence comfortably persuades me that the father has not developed any insight into or understanding of the impact of his harassment, stalking, threatening and controlling and coercive family violence on others. His statement in oral evidence and to the expert, that he sought to distinguish between being “violent” from “family violence” were extremely troubling. I find that this oral evidence, consistent with his long pattern of family violence behaviours, including repeatedly breaching bail undertakings, AVO orders and community corrections orders, is evidence that the father believes he is entitled to act as he pleases to seek to compel others to his will, so long as it does not involve actual physical battery; and I find that it is clear that these beliefs, mean that it is probable that he will continue to act this way in future, including towards the child and the mother as their carer or, indeed, Mr B as a carer.
Having considered the matter, including the grave consequences for the child of the loss forever, in effect, or at least until she is aged 18, of the chance to have a relationship with her father, and noting the gravity of the findings and the consequences, I am comfortably satisfied that the evidence overwhelmingly establishes that the father poses an unacceptable risk of exposing the child to family violence if allowed any time or any communication with her.
Unfortunately, I am not satisfied that there is a benefit to long-term indefinite supervision to the extent that was briefly touched on in submissions, noting the authorities would allow it, but also noting the expert's view that two-hour supervision once a fortnight would not allow the child to develop a relationship with a father of benefit to her.
Unfortunately, implicit in my findings of unacceptable risk are that the father's behaviours are such that there would not be a benefit to the child in having a relationship with him.
RISKS IN THE MOTHER'S HOUSEHOLD
The father and the ICL both raised issues of risk in the mother's household, though neither submitted these risks were unacceptable, nor, ultimately knowing the father did not press his proposed Order 7, that the child should not live with the mother, nor that Mr B should be restrained in dealing with the child.
However, the father submitted these risks were such as to make it, on balance, in the child's best interest to develop and maintain a relationship with the father as a safety net in case the risks in the mother's household do become unacceptable.
I have considered this and taken the submission into account in coming to my findings, that the father does present an unacceptable risk, but still think it is necessary to go through it to some extent.
Mother’s alcohol use
The father gave evidence that the mother would often drink to excess during their relationship, and this would cause arguments, and that the mother and maternal grandmother, with whom the mother was living at the time, also engaged in family violence with each other.
He said the mother was verbally and physically abusive towards him when she consumed alcohol.[27]
[27] Father’s trial affidavit filed 12 August 2024, paragraphs 28–38.
The mother accepted in evidence that she has struggled with alcohol abuse. She says she has used her as a coping mechanism.
She provided evidence she has engaged with an outreach service to obtain support and sobriety, and she now drinks very rarely.[28]
[28] Mother’s trial affidavit filed 14 August 2024, paragraphs 51–54.
Whilst alcohol dependence, once developed, is a lifelong potential risk, I am satisfied that the mother is aware of, and the evidence established has engaged with services to manage this risk.
Mother’s mental health
The father says, during the relationship, the mother struggled with mental health, and, indeed, the mother details her mental health history in her affidavit.
She explains that she was diagnosed with a mental health disorder when she was age 19, attended hospital emergency department at age 21 as a result of medication overdoses and self‑harm. There was other evidence of potential self-harm. The evidence, however, does suggest that the mother now has a good support system for mental health, including her GP, psychologist, Victim Services and CC Service.[29]
[29] Ibid, paragraphs 56–58.
The mother has also been engaged with DCJ, and, again, whilst the mother's mental health clearly presents a risk, I am satisfied at the moment the mother is aware of and managing this risk with systems in place to support her in difficult times.
Separation from Mr B
There was a very concerning incident in mid-2023, in which Mr B committed acts of family violence against the mother as a consequence of which she excluded him from the home. I say that she did that to her credit, which showed a good protective capacity.
The mother and Mr B, who also gave evidence, were cross-examined extensively about this.
He said he began smoking medical marijuana and obtained a prescription for medical marijuana. He and the mother say this was the only real incident of family violence, although I note the mother's older child suggested that she had seen family violence between them before.
Mr B said he was aggressive and hostile, and he accepts he said horrible things, including threats of violence, and even threatening to kill the mother. He slapped the mother, and this was all witnessed by C, the oldest child, and I note the provisional ADVO put in place for the mother’s protection.[30] The mother excluded Mr B from the house, and he only recently returned.
[30] Exhibit ICL 7.
Mr B enrolled in and has completed a Men’s Behaviour Change Program through T Service.[31] Mr B's evidence that he has undertaken courses and gained insight was in similar terms to the father's. The difference was that he clearly, in his oral evidence, did not resile from what he said was the disgust he felt with himself in having committed this act, although it is always difficult to, and one should be careful, seeking to judge credit by demeanour.
[31] Exhibit P.
However, I also do look at the fact that over the last 18 or so months, Mr B has engaged in counselling, which continues, they have had marriage counselling, and not only has he completed these various courses, but he has engaged with the mother to co-parent their children whilst not living with her, and I note that DCJ has continued their involvement with Mr B and with the mother and the family.
I do note that DCJ attended the home on two dates in late 2024 in relation to disclosure two weeks earlier by D that Mr B has punished him.[32] DCJ appears satisfied in relation to the risk issue, noting “the extreme behaviours between [D] and [C] [sic]”, and I note it was Mr B who asked DCJ if he could do a drug screen, and I note the clear urinalysis report from Mr B collected in late 2024.[33]
[32] Exhibit ICL 8; Exhibit S.
[33] Exhibit Q.
While the history of family violence by Mr B is very concerning, and I do find it presents a risk to the child, I am satisfied that the mother has demonstrated capacity in immediately notifying the police, taking out an AVO, and excluding Mr B from the family home, and in only allowing him to return after an extended period of time and when she was satisfied, and also note it appeared that DCJ was satisfied – that he had addressed the issues; and noting the clear toxicology screen, and noting that, unlike the father, he did not seek to resile from his responsibility, means that although he presents a risk, he does not present an acceptable risk, and I note no one submitted that; and he does not present such a risk as to mean that somehow it makes the risk the father presents acceptable rather than unacceptable as an alternative safeguard.
Consequently, although there are risks associated with the child living in a mother's household with Mr B, the nature and extent of the father's family violence still means that there is no benefit to the child in having a relationship with the father as an alternative parent to provide a safe alternative in case Mr B commits further family violence.
INFORMING THE CHILD OF HER BIOLOGICAL FATHER
The mother's position opposing the father being on the birth certificate was concerning. I find it in the child's best interest to understand that there was a person who was their biological father, based upon, as I have said, both the expert's detailed evidence and the fact that the mother in oral evidence seemed to agree and, indeed, said she supported this.
I have considered making orders compelling the mother to tell the child; however, there is no certainty the child will ever understand. It would create issues of risk of further litigation by the father seeking compliance, which I think would not be in the child's best interests.
It is not possible to structure such orders in a way that are in the child's best interests, and, consequently, I will not make such an order.
However, I will make, as I said, an order for the birth certificate to be amended, and I will make notations advising the court's views that the child should be informed, and orders that the orders are to be provided to the child's treatment team at DD Service so that they understand what the court's view is.
Ultimately, this is not something that the court is able to make orders about today, and we will have to trust the mother to do as she said she would do, take the advice of the DD Service team, and, at the appropriate time, advise the child that there is a person who is her biological father whom she is not able to meet to reduce the risks of psychological harm to the child if she finds out and believes, which would otherwise be true, that she had been lied to.
LEGISLATIVE FRAMEWORK
Objects of Pt VII of the Act are to (a) to ensure that the best interests of children are met, including by ensuring their safety; and (b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989 (s 60B).
The paramount consideration is the best interests of the child per ss 60CA and 65AA.
Parental responsibility
I note, that parental responsibility is agreed, and it is clear that the child's best interests is reside with the mother.
There is no possibility that the parents could have co-parented even if it was safe for the child to spend time with the father, and it is not.
Child’s best interests
I note, that the child's best interests are to be determined by reference to s 60CC. It is a non‑hierarchical list.
General considerations – section 60CC(2)
Safety
I note that it starts with safety and:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
Given my findings concerning the father's persistent history of family violence, which it appears may continue even up to January 2024, combined with his refusal in oral evidence to truly accept that coercive, controlling, harassing and stalking behaviours are a form of him being “violent”, and my finding is that there is no basis on which to find the father's behaviours are likely to be anything other than they have been in the past, I am comfortably satisfied and find that there is a significant risk, if not a likelihood, that the father will continue to act in the same way towards the child and mother that he has previously acted towards the mother and other domestic partners.
In these circumstances, even if the child was not particularly vulnerable by reason for of cognitive issues, I would find, as I do, that the father presents an unacceptable risk of harm to the child, which risks cannot be ameliorated by any safety measures, and that it is not in the child's best interests to have any form of long-term, indefinite supervised time to age 18, see Isles & Nelissen.
(b) Views of child
I am required to consider the views of the child.
Given the child's age and cognitive capacity, however, and lack of knowledge of the father, she cannot express a view.
Given her age and cognitive capacity, no weight could be given to such a view.
I note the ICL was excused from speaking to the child and seeking her views,[34] therefore, the child's views cannot be taken into account; and, even if she had views at this age, they could not be given any great weight in the context of the safety issues.
[34] Orders dated 22 October 2024.
(c) Needs of child
I am required to consider the developmental, psychological, emotional and cultural needs of the child.
The child's age and complex medical and cognitive issues means in addition to the usual needs for stability in a nurturing environment free from family violence, the question of her understanding of the concept of a biological father must be introduced to her at a time at which she can comprehend it, and in a way which reduces the risk that it will interfere with her attachment relationships to the mother and Mr B. That is something the mother and the child's treatment team will need to consider.
Given the child's need for an environment free of family violence and abuse, and it cannot be in the child's best interest to have time or communication with the father.
(d) Parental capacity
I'm required to consider the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's development of psychological, emotional and cultural needs.
I note, that the mother who is proposed to have parental responsibility has demonstrated that capacity.
To the extent to which it is still relevant to the father, I find the father has little, if any, capacity to provide for the child's development of psychological, emotional and cultural needs. His propensity for family violence means he is not a person who can capably provide these. His view proposed up to the end of the evidence at trial, and maintained in oral evidence, that he should have capacity to unilaterally remove the child to his care at will, despite agreeing to orders the child live with the mother, shows a significant absence of understanding of the child's needs or what would be in the child's best interests.
As I said, the mother has a good demonstrated capacity to provide for the child's needs.
(e) Benefit of relationship
I am required to consider the benefit to the child of being able to have a relationship with the child's parents and other people significant to child were it safe to do so.

There would be a clear benefit to the child of having a relationship with the father if it was safe to do so. Indeed, if there was no issue of family violence, given the expert's evidence, both in her reports and orally, the only question for me, in my view, would be the complexity of organising for the child to be informed and then introduced to the father.
The evidence is that knowing there is a biological father will assist the child with issues of identity including of her indigenous identity through the father's family; it would assist her to avoid the many issues the research discussed by the expert around adopted and IVF children has shown can arise for children who are not informed sufficiently early of these issues, and who may feel that their identity is shaken when they discover as a teenager perhaps, that the person they thought was their biological parent isn't.
The issues that can arise, then, with trust, where they wonder what other lies these people they thought they could trust absolutely have told to them, can impact their ability to trust their parents; the risk that that would fracture the relationship with both the mother and Mr B; and the risk that it would mean that the child would then feel they could no longer trust anybody.
All these terrible psychological issues would be avoided if not only the child could be informed she has a biological father, and introduced to him.
Hence, the benefit to the child of being able to have a relationship with her father, which is supported by the Act, but also supported by all of the research evidence cited by the expert, are clear.
However, the legislation is also clear that this is to be weighed against the question of whether it is safe to do so, and, unfortunately, given the extensive evidence of ongoing family violence, of a failure to accept responsibility for, or indeed understand family violence is violent, the father is not safe, and so the child will suffer this terrible loss, but that loss must be suffered because the father is not a safe person.
(f) Other
I have considered the other relevant matters.
(2A) Family Violence
I have considered the family violence issues.
Aboriginal or Torres Strait Islander culture - section 60CC(3)
As I said previously, s 60CC(3) provides a best interest factor requiring the court to consider:
(a) the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
(i) to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(iii) to develop a positive appreciation of that culture; and
(b) the likely impact any proposed parenting order under this Part will have on that right.
Now, the child is First Nations through both parents. The mother's father is seeking to assist the mother and child to engage with their clan and to be recognised. I am satisfied the mother will promote that aspect or side of the child's First Nations heritage.
The father identifies as First Nations, but as reported by the expert,[35] he is unclear of his exact mob, although this is something he is wanting to, but has not yet explored.
[35] ICL 1, Family Report, paragraph 5.
Again, it is a tragic loss for the child, but the orders I make will necessarily likely completely exclude her engagement with her paternal First Nations heritage through a connection by her father. The extent of that loss cannot be overstated. But, again, the child's safety is and must be the primary concern, and this loss is caused solely a consequence the father’s inability to actually address and accept responsibility for his propensity for family violence.
CONCLUSION
It is in those circumstances, and keeping in mind those principles, that, as I have previously said, I must, unfortunately, make the most drastic orders that this court can make.
Those are my reasons, and those are the orders that will be entered during the proceedings.

I certify that the preceding one hundred and ninety-three (193) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith.
Associate:
Dated: 15 November 2024

File number(s):	NCC 1904 of 2022
Judgment of:	SMITH J
Date of judgment:	4 November 2024
Catchwords:	FAMILY LAW – CHILDREN – Final hearing – Oral decision – Parenting orders – Best interests of the child – Where the parties reached agreement on a number of orders – Where the mother shall have sole parental responsibility and decision-making authority – Where the child is to live with the mother – Where child has significant medical diagnoses that impair her functional cognitive capacity – where the child has not met the father – Where the child has no knowledge or understanding of her biological father – Where the child is not presently capable of understanding the concept of a biological father – Where it is unknown when the child will obtain that level of cognitive functioning – Where the father has a significant history of family violence convictions against multiple people and partners – Where the father sought to distinguish between his acts of “family violence” and him being “violent” – Where the father lacks insight into the concept of family violence despite multiple courses – Where there were risks in the mother’s household – Where these risks were not unacceptable – Where the mother is engaged with services to manage these risks –– Where the father presents an unacceptable risk of physical and psychological harm to the child – Where the child is to spend no time or have no communication with father – Where there are to be injunctions against the father given his significant history of stalking, harassment and convictions for breaching apprehended violence orders.
Legislation:	Family Law Act 1975 (Cth) Pts I, VII, ss 4, 60B, 60CA, 60CC, 65AA, 65DAAA, 68B, 68C
Cases cited:	Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 M v M (1988) 166 CLR 69; [1988] HCA 68
Division:	Division 1 First Instance
Number of paragraphs:	193
Date of hearing:	29 October 2024 – 1 November 2024
Place:	Newcastle
Counsel for the Applicant:	Mr Antill
Solicitor for the Applicant:	Toronto Legal
Counsel for the Respondent:	Mr Wilcox
Solicitor for the Respondent:	Cph Legal
Counsel for the Independent Children's Lawyer:	Mr Willoughby
Solicitor for the Independent Children's Lawyer:	Mason Lawyers

NCC 1904 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR CARLSEN Applicant
AND:	MS LIND Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	SMITH J
DATE OF ORDER:	4 NOVEMBER 2024