Cary & Cary - [2021] FedCFamC1F 151

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1
Cary & Cary [2021] FedCFamC1F 151

File number(s): PAC 864 of 2021

Judgment of: HANNAM J

Date of judgment: 22 October 2021

Catchwords: FAMILY LAW – CHILDREN – Interim Parenting – Review of a Registrar’s decision – Where interim orders were made providing that the two younger children live with the mother and spend supervised time with the father – Where interim orders were made providing that the older daughter live with the father and spend time with the mother in accordance with her wishes – Where the father seeks a review of interim orders in relation to the younger children’s time with him – Where the mother seeks that all three children live with her and spend supervised time with the father – Where there are serious allegations of family violence perpetrated by the father – Where there are serious allegations of coercive and controlling conduct perpetrated by the father – Where there are significant interconnected issues of risk – Where the eldest daughter has not spent time with the mother for almost 12 months – Where it is inappropriate for a child of age 12 to determine her parenting arrangements – Where it is likely to be found at final hearing that the father has perpetrated family violence – Where orders are made as sought by the mother – Where a Recovery Order issue in default if the father does not return the eldest daughter to the mother.

Legislation:
Family Law Act 1975 (Cth) s 60CA, 60CC, 67U, 67V

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 14.07(1)

Cases cited:
Bondelmonte v Bondelmonte [2017] HCA 8
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
SS & AH [2010] FamCAFC 13
Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Division: Division 1 First Instance

Number of paragraphs: 209

Date of hearing: 14 October 2021

Place: Parramatta

Counsel for the Applicant: Ms De Vere

Solicitor for the Applicant: Barkus Doolan

Counsel for the Respondent: Mr Givney

Solicitor for the Respondent: McAuley Hawach Lawyers

Solicitor for the Independent Children's Lawyer: Ark Law Lawyers
ORDERS

PAC 864 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CARY

Applicant

AND:
MR CARY

Respondent

INDEPENDENT CHILDREN'S LAWYER

Other

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

22 OCTOBER 2021

THE COURT ORDERS THAT:
1.Orders 15 and 16 of the Interim Orders made by Senior Registrar Murdoch on 26 March 2021 be discharged.
2.Order 4 of the Interim Orders made by Senior Registrar Murdoch on 15 June 2021 be discharged.

THE COURT ORDERS THAT PENDING FURTHER ORDER:
3.The child X born … 2009 (“X”) shall live with the mother.
4.The father shall return the child X to the mother at 2pm on Friday 22 October 2021 with changeover to occur at C Street, Suburb D NSW.
5.Forthwith upon the return of X to the mother the mother’s legal representative is to notify the court by email at …@fcfcoa.gov.au.
6.In the event the child is not returned to the mother by 2pm today, pursuant to section 67U of the Family Law Act 1975, a recovery order is to issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the child X born … 2009 (“the child”) and to deliver the said child to Ms Cary and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.
7.X shall spend time with the Father in accordance with the same regime of supervised time that the children Y and Z spend with the Father pursuant to the Interim Orders of 15 June 2021. Such time is to be supervised by B Contact Centre or such other supervision agency as may be agreed between the parties and the Independent Children's Lawyer.
8.The Father shall be responsible for and shall continue to pay the supervisor's costs for facilitating time as between the Father and the children.
9.Pursuant to s 68B of the Family Law Act 1975 (Cth), the Father is restrained from taking any steps including through a third person to contact the children, receive contact from the children, have the children or any one of them returned to his care, to live with him or spend time with him other than in accordance with Orders of the Court. This is an order to which a power of arrest attaches.
10.The Mother is permitted to provide a copy of these Orders to the principal and staff at the schools attended by the children to ensure that the schools are informed of the same.
11.The Mother is at liberty to facilitate X's attendance upon her treating General Practitioner for the purposes of obtaining a referral for X to engage in ongoing consultations with a treating psychologist or psychiatrist, and the Mother shall inform the Father and keep him informed of all treating medical professionals upon whom X might attend.
12.The Father's Application in a Case seeking review filed 22 June 2021 is dismissed.

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

On 6 November 2020, the parties (“the mother” and “the father”) physically separated having experienced difficulties in their 20 year relationship. About six months prior to this date, the parties had ended their relationship but continued to both remain living in the former family home with their three children then aged 11, 10 and six (“the children”).
The event that precipitated the parties’ separation was a physical altercation at the home which involved police. The father was subsequently charged with and convicted of assaulting the mother and an Apprehended Domestic Violence Order (“ADVO”) was made for her protection against him.
Following separation, all three children initially remained living with the mother in the former family home.
A few days after physical separation on 12 November 2020, the father collected the oldest child a daughter then aged 11 (“the older daughter”) from the former family home and took her to live with him. The older daughter has remained living with the father and has not spent any time with the mother since this date.
The parties subsequently reached agreement that the two younger children were to remain living with the mother and the mother maintains she had no alternative than to accept that the older daughter was to remain living with the father. An informal arrangement was instituted for the two younger children to spend time with the father including overnight time.
After proceedings were commenced there have been various court events including two hearings concerning interim parenting arrangements for the children. The later interim orders made by a Senior Registrar on 15 June 2021 provide for the two younger children to live with the mother and spend supervised time each alternate week with the father and for the older daughter to remain living with the father and spend time with her mother in accordance with that child’s wishes.
The father subsequently filed an application to review the Senior Registrar’s Orders of 15 June 2021 that related to his time with the two younger children.
Rule 14.07(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provides that such an application for review is to be heard as an original hearing.
The mother contends that the older daughter will not receive the benefit of having any relationship with the mother for so long as she remains living with the father. The mother also contends that there is a need to protect all of the children from harm from being subjected to psychological abuse and family violence by the father and that the father has significant shortcomings in his capacity to provide for the needs of the children. She proposes orders to mitigate this alleged harm and to foster the older daughter’s relationship with her which will see all of the children live with her and to spend supervised time with the father.
The father now seeks orders that would see the two younger children’s time with him be significantly increased to four nights per fortnight. He contends that the two younger children are experiencing significant emotional loss as a result of the limited time they spend with him and that this increase in time will meet the children’s best interests. It is his case that the older daughter’s relationship with the mother is so fractured that it is in that child’s best interests to remain living with him and that therapeutic intervention be provided to the older daughter and mother to repair this relationship prior to introducing any time between the two.
The Independent Children’s Lawyer (“ICL”) contends that it is in the interests of the older daughter to continue living with the father as he proposes and that there also be additional orders providing for that child to have electronic communication with the two younger children and to engage in therapy with the mother to repair the fractured relationship between them. So far as the younger two children are concerned, the ICL supports the orders proposed by the mother that they continue to live with her and spend supervised time with the father.
BACKGROUND
The parties who are both 44 formed a relationship when they were adolescents and began living together in early 2005.
The older daughter who is now 12 was born in 2009 and the parties’ son was born the following year and is now 11. The parties’ youngest child, a daughter, was born in 2013 and is almost eight.
The parties married in 2015.
It is the mother’s case that the father behaved in a coercive and controlling manner towards her throughout much of the relationship. The mother’s affidavit is replete with examples of the father making derogatory remarks to her, controlling her access to money and engaging in intimidating, harassing and provocative actions including filming her undertaking various activities without her consent.
The mother deposes to beginning to feel depressed and anxious as a result of the father’s conduct towards her from about mid-2019. There is no dispute between the parties that the mother’s alcohol consumption increased significantly from around this time. The mother contends that she misused alcohol as a form of self-medication in an effort to block out her experience of the father’s constant harassment and intimidation of her in the home and in an effort to improve her own feelings of wellbeing.
The mother’s case is that she only drank after she had put the children to bed and did not ever place their wellbeing or safety at risk. Gaining an understanding of the father’s position in relation to this matter and in relation to any risk said to be posed by the mother is difficult and hampered by the fact that for reasons which have not been explained the father did not file a consolidated affidavit for the purposes of this hearing as directed even though it was he who initiated the review.
There is however no dispute between the parties that in December 2019 the mother attended her general practitioner for help and subsequently was admitted voluntarily into a clinic as an inpatient for three weeks for assistance with her consumption of alcohol and to improve her mental health.
The mother deposes that the father showed no support or compassion to her about her alcohol misuse and mental health difficulties and instead berated and belittled her about the matter.
The mother also contends that she arranged for her parents to care for the children for two weeks during this admission and that the father was to care for them during the remaining week, but the father changed the arrangements and proposed that he care for the children during the entire three weeks but ultimately did not take time off work and left the children at home by themselves during the day.
The mother claims to have ceased drinking alcohol following the assistance she received at the clinic and deposes to the father continuing to taunt her about her difficulties with alcohol.
There is no dispute between the parties that the mother had a relapse in her problematic drinking and returned to the clinic voluntarily as an inpatient for a further two weeks in February 2020.
The mother deposes to the father continuing to criticise and verbally abuse her and belittle her about her attendance at rehabilitation.
It is common ground between the parties that from around April 2020 their marriage was at an end though each continued to live separately within the former family home. On occasions the mother slept in a caravan, including occasions on which she deposes that the father demanded that she do this and insisted that he care for the children. On other occasions the mother deposes to the father being away from home for up to four nights on each occasion and that during these periods she cared for the children alone.
According to the mother’s affidavit the father continued his criticisms and verbal abuse causing her to feel scared and overwhelmed at times.
During this period the mother sought telephone assistance from domestic violence counsellors and on two occasions sought assistance from police about the situation in the home, including the father becoming intoxicated and abusing her.
The mother deposes to ceasing consuming alcohol altogether from October 2020. She has also attended upon and consulted her treating psychiatrist and attended various Alcoholics Anonymous meetings. She has also received private counselling through a family violence victim’s support program and attended upon a counsellor associated with a support program in which the children are enrolled. In the course of submissions is it was conceded on the father’s behalf that there is no evidence that she has returned to problematic alcohol misuse.
From around October 2020 the mother deposes to the older daughter who was then 11, engaging in similar behaviour towards her as the father such as filming her on that child’s mobile phone.
On 27 October 2020 the father questioned the mother alleging that she had driven recklessly in the car with the children. There is no evidence to suggest that the mother was interviewed about the allegation of reckless driving or that any other action was taken by police. There is also no evidence form the father about his reasons for making this allegation about the mother.
From around 4 November 2020 officers of the Department of Communities and Justice (“the Department”) became involved with the family, it would appear as a result of notifications that the father had made concerning the mother’s mental health and alcohol abuse. The children were also interviewed by these officers and enquiries were made at the children’s school.
On 6 November 2020 there was an incident between the parties which I understand to be a matter of significant dispute. There is no dispute however that the father was charged by police with assaulting the mother and that he was removed from the home and an ADVO was made against him for the mother’s protection. The father was subsequently convicted of this offence and although he did not appeal that conviction he maintains in these proceedings that he did not assault the mother.
Following this incident the father moved to live in the paternal grandmother’s home. All three children remained living with the mother but it appears to be common ground between the parties that the older daughter blamed the mother for the father’s arrest and became increasingly defiant and rude towards her.
On 12 November 2020 the older daughter had an argument with the mother which escalated to some form of physical interaction in which the older daughter alleged that the mother assaulted her. About 15 minutes later the father and paternal grandmother arrived at the property, taking the older daughter with them in the family car which the father also removed from the property. This child has lived with the father at the paternal grandmother’s home since this date. Later that evening two police officers attended at the mother’s house informing her that the paternal grandmother had complained that the mother threatened to kill the grandmother. The mother denied making any threat and there is no evidence to suggest that this complaint was taken any further. This incident and the older daughter’s behaviour at around this time is a matter to which I will return.
Following the incident on 12 November 2020 and the father’s removal of the older daughter from the mother’s care, the officers of the Department attended the mother’s place of work and questioned her about her health, medication, alcohol use and associated matters. The mother deposes that the departmental officers were also concerned about her impending weekend away with the two younger children and informed her that the children had expressed not feeling safe when with her. The mother took the children for their weekend away as planned but contacted one of the caseworkers as had been requested upon their arrival.
On 17 November 2020 the parties attended family dispute resolution and reached an in-principle agreement about the living arrangements for the children which the mother deposes to feeling pressured into. Although this in-principle agreement was never formalised as a parenting plan, the following day the father sent the mother a text message which purported to contain a summary of the agreement reached including the specific days and times the children were to live with each of them and how the parties were to inform the children. The father then sent the same text message to the older daughter.
From the following week the two younger children began spending time with the father at the home of the paternal grandmother each Monday and Tuesday overnight and each alternate weekend. The father has not ever facilitated the older daughter spending any time with the mother. It is the mother’s case that the father’s harassment of her and influence over the older daughter continued after he removed this child from the family home. This is a matter to which I will return.
From late December 2020 the mother’s lawyers sent letters to the father regarding the mother’s concerns about the older daughter, to which the father did not respond. These include a letter on 22 December 2020 seeking the father’s permission for this child to attend upon a counsellor or therapist for professional assistance, on 15 January 2021 requesting that the father return this child to the mother’s care and on 10 February 2021 to the father’s solicitors in relation to parenting issues and arrangements for the children.
On 6 February 2021 the mother received a text message from the older daughter referring to her as the “worst Mum ever” and accusing her of selling the family’s caravan and informing her that the son “doesn’t want to be with you anymore”.

On 10 February 2021 following a defended hearing, the father was found guilty and convicted of assaulting the mother and a final ADVO was made for her protection against him for two years.
On 16 February 2021 the mother received a telephone call from a police officer advising that the father had contacted them alleging that the children were at risk and unsafe in her care. Later that evening two officers visited the mother’s home and conducted a welfare check. Later that evening the son accused the mother of being a liar and accused her of lying against the father in court and about everything, referred to her as a kidnapper and told her that the father tells him everything as he is old enough to know.
On 22 February 2021 the mother commenced these proceedings seeking final and interim parenting orders for all three children to live with her.
Throughout March 2021 the mother continued to be involved with the Department and a new caseworker was allocated to the family.
On 26 March 2021 at an urgent interim hearing before a Senior Registrar, orders were made providing for the two younger children to live with the mother and spend supervised time with the father each fortnight and for the family (including the older daughter) to participate in family therapy. Between April and mid-June 2021, the younger two children spent time with the father supervised by a private supervision agency and the older daughter was also brought along when this occurred.
Although the mother continued to request through the parties’ legal representatives that the father facilitate the older daughter spending time with her, the father has declined to do so. On one occasion in May 2021 the father did arrange for the older daughter to spend one hour with the maternal grandparents at a park but did not invite the mother to attend. After this occurred the child sent a message to the maternal grandmother informing her that she did not feel comfortable seeing her.
On 17 and 18 May 2021 the family were seen by a family consultant for the purposes of the Child Responsive Program and on 27 May 2021 a Memorandum to Court was issued including a Children and Parents Issues Assessment (“CAPIA”).
CAPIA
When assessed by the family consultant, the mother was proposing that the children live with her and that she have sole parental responsibility for them. Although she did not make specific proposals for the children’s time with their father, the mother told the family consultant she would like this to occur provided the father does not denigrate her or undermine her relationship with the children.
The father at that time proposed that the parties have equal shared parental responsibility and that the children live in an equal time alternate week care arrangement provided that the mother remains abstinent from alcohol.
Particular matters of note recorded in the Memorandum include that it did not appear to be in dispute that the mother was primarily responsible for caring for the children during the relationship, that the father often worked 12-14 hour days and that prior to the parents’ separation the older daughter had a close and loving relationship with the mother and this changed in the months leading up to the parents’ separation. It was noted that the older daughter’s account of her relationship with the mother contrasted with the parents’ account.
When the older child was interviewed by the family consultant she reported that her relationship with the father had changed significantly since the parents separated, that they spend a lot of time together engaging in a range of activities and when her parents were separating she felt worried for the father and explained “he only had me”.
The older daughter reported to the family consultant that she and the mother previously had a good relationship up until a few years ago and that the mother would drink alcohol, leave for days, be angry towards the children, once threatened to kill herself and said a few times she never wanted the children and was going to leave. This child also reported that she felt responsible for caring for the two younger children and often felt criticised by the mother for not doing household jobs properly.
The older daughter also reported that prior to separation her parents were “constantly fighting” and that the father would yell and the mother would “take it really far by hitting Dad”. She reported that she often felt scared and worried for her father and said that although he would get angry she could not recall him physically hurting the mother. The older child said she did not want to spend time with the mother because she finds it too upsetting to see her and needs time to recover from her reported experiences. This child reported feeling “mentally hurt” by the mother and not believing that the mother had changed. The older daughter was 12 when interviewed.
The son when interviewed was 10 years of age and expressed some concern about both parents, particularly the father being able to read about his interview.
The son provided an account of various incidents and gave information which appeared to the family consultant to have been provided to him by the father, the paternal grandmother and possibly the paternal aunt, such as that the mother caused the father’s arrest. The son reported that he was taken to a police station where he and the older daughter had to “call the police on Mum”. This child initially did not want to tell the family consultant about who he wanted to live with but later said he wanted to live with the father primarily because the father allows him to play on his devices and is more fun.
The younger child, who was aged seven when interviewed, described her relationships with each parent positively but appeared not to have clear views about her parenting arrangements. She also said that prior to her parents separating she recalled many fights and arguments between her parents, stating that they would swear at each other and that it made her feel uncomfortable, sad and angry.
When considering the risk factors for the family, the family consultant first reported on family violence. Each parent reported that the father had been charged with and convicted of assaulting the mother but the father denied that he had done so.
The mother reported similar matters to those deposed to in her affidavit such as that the father constantly put her down during the relationship, was extremely critical of her housekeeping skills and following separation threatened her by saying she “will never see the kids again” and that he would take all of the money.
The mother informed the family consultant that the children started behaving in a similar manner towards her as the father towards the end of the relationship such as calling her derogatory names. The mother also reported that physical violence was not generally used by the father although she alleged he pushed her on occasion. She reported however that the father used verbal and emotional abuse and controlling behaviours throughout the relationship including financial control. She also alleged that the father has utilised the police and the Department to harass and intimidate her and that she felt that he was manipulating the older daughter to provide inaccurate information to her about these agencies which may be further undermining this child’s relationship with her.
The mother also reported that the father used her alcohol use as a tool to further denigrate her, undermine her relationships with the children and put pressure on her.
There is no reference in the CAPIA to the father’s response to the allegations in relation to denigration, verbal abuse and controlling behaviour, though the father denied allegations that he had assaulted the mother and made counter allegations that the mother had assaulted him on several occasions during the relationship. The father also reported that he would often call to the older daughter for assistance when the mother was being aggressive towards him.
In relation to the use of alcohol and substances, the mother reported her use and misuse of alcohol consistently with her affidavit evidence.
Generally, the family consultant opined that if there is substance to the mother’s allegations it may indicate that the father has perpetuated coercive controlling violence and set out in her report the risks for children if this has occurred. The family consultant went on to recommend that if there is veracity to the mother’s allegations, a conservative approach may be required in determining the arrangements for the children to spend time with the father in order to protect them from risks associated with the perpetration of family violence, which as she explained are often associated with significant parenting deficits.
The family consultant also considered that the father perpetrating family violence may have been a precursor to and exacerbated the mother’s reported difficulties with alcohol and diagnosed mental health conditions. If this were the case, the family consultant opined that it may be necessary to consider parenting arrangements that protect the mother and the children from risks associated with the father’s problematic behaviour including those related to adverse impacts on the mother’s parenting capacity particularly as it appears the father does not acknowledge his use of violence which may suggest limited capacity for him to change his behaviour.
The family consultant assessed the father’s account of family violence as appearing to be more akin to conflict instigated family violence and that the mother’s misuse of alcohol may have further contributed to increased levels of conflict and impacted her capacity to manage the conflict with the father. The family consultant considered it however to be of “significant concern” that the father had reportedly drawn the older daughter into the parents’ conflict. This factor, the family consultant considered, may be contributing to this child’s belief that the mother is the perpetrator of violence which is likely to undermine her relationship with the mother but may also lead to that child feeling an increased sense of responsibility towards the father.
The mother alleged that the father used alcohol to excess, stating that he would often drink three to five nights per week until he was “paralytic”. The father denied problems arising from his use of alcohol and reported that he generally drinks beer once a week and will have eight to 10 beers while watching the football at home. The father said that he did not have any concerns about the mother’s alcohol use up until a couple of years ago and reported that the mother drove while intoxicated while the children were in the car with her and that the children have found bottles of wine hidden around the house.
The family consultant considered that the mother’s use of alcohol and associated behaviour may be a contributing factor to the older daughter’s rejection of her but also opined that the father may be behaving in a manner which serves to undermine this child’s relationship with the mother. The family consultant recommended that if this were the case then the younger two children may also be at risk of the father undermining their relationships with the mother if they continue to spend time with him and this risk may increase if the children were to spend additional time with him, particularly unsupervised time.
The family consultant sets out in her report that the children may have been at risk of harm in the mother’s care when she has been misusing alcohol and identified and explained the negative impact upon children when this occurs. The mother had reported to the family consultant that she is abstinent from alcohol but the family consultant opined that the Court may need to be satisfied that the children are not at unacceptable risk of harm should the mother reinstate her problematic use of alcohol or if her account of this matter is not accurate.
A final matter of particular significance to this application is the family consultant’s observation:
Supervised time may not be providing [the two younger children] with a realistic picture of the [father]’s behaviour and interactions with the children. And if [the father]’s apparent attitude towards [the mother] as identified during his interview is reflective of his general attitude towards her, it would seem unlikely that he would be able to protect the children from his attitude towards [the mother].
On 3 June 2021 there was a further interim hearing and on 15 June 2021 the orders under review were made, providing for the two younger children to live with the mother and spend supervised time each alternate weekend with the father and that the older daughter remain living with the father and spend time with the mother in accordance with that child’s wishes. The orders also provide for the father to have telephone communication with the two younger children which has been exercised but according to the mother the father has engaged in inappropriate discussions during these telephone calls.
From mid-June 2021 the children’s time with their father was temporarily interrupted by the restrictions associated with the COVID-19 pandemic. The father was offered weekly supervised video conferences but declined to avail himself of these.
The mother has also had some telephone communication with the older daughter but deposes to various complaints about the father’s conduct during these calls.
On 26 July 2021 the mother received a letter from the Department advising that there would be no ongoing involvement with the Department.
THE COMPETING APPLICATIONS
As touched upon earlier in these Reasons, the mother does not seek to vary the interim orders that provide for the two younger children to live with and spend supervised time with the father each alternate weekend. She seeks an order that the older daughter also move to live with her and also spend supervised time with the father. The mother seeks liberty to facilitate this child’s attendance upon a psychologist or psychiatrist. She does not seek a discharge of orders in relation to family therapy but seeks an order with respect to the father engaging in the same. She also seeks an extension on the injunction restraining the father in taking steps to have the two younger children returned to his care (including through a third person) to include the older daughter as well.
The father seeks a discharge of the orders in relation to the younger children’s time with him and the restraint on himself or anyone on his behalf collecting or removing the younger children from school or causing those children to come into his care. The father does not seek to disturb the current interim orders which provide for the older daughter to live with him and the younger two children to remain living with the mother. He proposes however a significant increase in the younger two children’s time with him. In his Minute of Order relied upon in the proceedings the seeks hat this occur each Wednesday overnight from after school to the commencement of school the following day (though it appears that he did not press for such an order at the interim hearing) and each alternate week from after school Thursday to the commencement of school the following Monday, for half of the school holidays and on special days.
So far as the older daughter is concerned, the father does not propose any orders for defined time with the mother and contends that this should remain to be in accordance with this child’s wishes and not begin until therapy has commenced in order to repair the relationship between this child and her mother.
Although at the hearing both parties appeared to agree that family therapy ought to occur as ordered in March 2021, the therapists specified in those orders have not been available and considerable time and effort was spent at the interim hearing to identify an appropriately qualified alternate therapist. Such a person was identified and is able to begin seeing the mother and older daughter in December 2021 and I had understood that agreement had been reached in relation to this matter. However, when I directed that draft orders to be made with the consent of the parties be forwarded to chambers it became apparent that there was a further area of disagreement relating to whether the therapy should be reportable for the purposes of these proceedings or not.
Orders were made for the parties to forward their respective proposed orders in relation to this therapy to chambers within 14 days and an order was made that upon receipt of those submissions that issue would also be reserved. However, for reasons which will become apparent I am of the view that consideration of the parenting proposals arising in these proceedings is urgent and accordingly these Reasons will not be delayed to allow for those submissions to be received. The issue of whether the agreed upon therapy for the older daughter will be reportable will be further considered when these Reasons are delivered.
THE LAW AND DISCUSSION
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode (2006) FLC 93-286 (“Goode”).
Goode sets out a framework for the conduct of interim proceedings which involves identifying competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts.
Assessment of Risk
When considering interim orders, the Court may, and in some circumstances must, also have some regard to the matters in dispute. There is a long line of authority to the effect that a court must make an assessment of disputed facts relating to alleged risks to children.
In SS & AH [2010] FamCAFC 13 their Honours said at [100]:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
In Deiterv Deiter [2011] FamCAFC 82 (“Deiter”) the Court was particularly concerned with the situation where the contested facts related to an assessment of risk. The Full Court said at [61]:
Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
It is the central contention of the mother in this application that it is beneficial for all three children to have a meaningful relationship with her and that these relationships are at risk of being undermined by the father’s actions if any or all of them live with or have unsupervised time with him. The mother also contends that there is a great need for the children to be protected from harm associated with being the victims of and exposed to family violence perpetrated by the father.
So far as I understand it, the father challenges the mother’s contention that he has at any time undermined the relationship between she and the children and contends that the presentation of the older daughter who expresses significant resistance to a relationship with the mother is a result of that child’s lived experience of the mother rather than anything he has done. I also understand that he denies at least some of the mother’s allegations in relation to family violence though as noted earlier, his evidence as to many matters including family violence is difficult to ascertain given his failure to file a consolidated affidavit for the purposes of this application. It is clear however that he does deny at least that he assaulted the mother notwithstanding his conviction relating to the incident on 6 November 2020.

Accordingly, I must assess the probabilities of each of the competing claims. First, I am required to make an assessment of the mother’s claims that the father has engaged in undermining the children’s relationship with her and that there is an unacceptable risk that he will do so in the future. I also must assess the mother’s claim that the father has engaged in family violence against her to which the children have been exposed and in conduct towards the children themselves that falls within the definition of family violence or abuse.
The mother’s contentions about the father undermining the children’s relationships with her and perpetrating family violence are inextricably linked. As touched upon when setting out the background to this dispute, the mother alleges that during her relationship with the father and following separation the father engaged in conduct towards her that falls within the definition of family violence[1] and in particular engaged in coercive and controlling conduct towards her as well as physical assaults. The mother also deposes to specific behaviours that are defined examples of behaviour that may constitute family violence in S 4AB(2) being assault, repeated derogatory taunts, unreasonably denying her the financial autonomy that she would otherwise have had and unreasonably withholding financial support needed to meet the reasonable living expenses. The father’s conduct after separation in failing to facilitate the older daughter spending any time with the mother also may amount to preventing the mother from keeping connections with this child.
[1] Family violence is defined in s 4AB(1) of the Family Law Act 1975 (Cth) as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
Family Violence allegations
According to the mother’s affidavit, throughout the relationship the father engaged in a range of controlling and coercive behaviours which intensified over time.
The mother deposes to the father drinking to excess on a number of nights each week and in particular on Friday nights and arriving home in the early hours of the morning, waking her by bashing on the window, demanding her to be let in and becoming enraged at her which made her frightened.
The mother also deposes to the father increasingly making taunts about her physical appearance throughout the marriage and being highly critical of her. She deposes to his insults increasing towards the end of the marriage giving examples such as the father waking her up to tell her that he hated her and on one occasion during a family holiday in the presence of friends asking her “why don’t you hang yourself?”.
The mother deposes that throughout the marriage the father was highly critical of her homemaking and in particular criticised her for being lazy. She deposes to a particular instance in about April or May 2020 when she was cooking dinner for the family and the father began criticising and verbally abusing her causing her to become so scared that she stopped cooking, left the house and sat in the car sobbing for several hours just to get away from him.
The mother also deposed to the father undermining her parental authority by telling the children that they did not need to do what she had asked and deposes that he “often used the children to gang up on” her and belittled her in their presence.
The mother deposes to the father taunting her verbally over many years, saying things such as “you’re a fucking bitch”, “you need to get a job and work 9-5”,”I can’t afford you”, “everyone hates you, no one likes you” and telling her she had mental disorders such as schizophrenia or bipolar without any foundation. The mother describes the father’s verbal taunts as “frequent and relentless” and that they made her feel worthless and hopeless. Of significance for this application the mother also deposes that over time the children started to copy and repeat the father’s verbal taunts prior to physical separation.
According to the mother’s affidavit from about 2019 the father started video and audio recording her without her consent using his mobile telephone. On many occasions she says that after he arrived home from work the father sought her out while holding his mobile phone up at her and announcing “I want to let you know I am filming you” which made her feel intimidated and harassed. The mother deposes there were even occasions when the father woke her up and video recorded her after she had gone to bed.
The mother does not deny that she often reacted and yelled at the father and that the two of them each engaged in swearing at one another. According to her affidavit, at times where she did not react to the father’s taunts including when he was filming her without her consent he provoked her by physically pushing or nudging her with his hand and then waited for her reaction which he would record. On many occasions the mother says the father also involved the older daughter in his taunts and having captured this child’s attention alleged that the mother was assaulting him.
In relation to physical abuse, the mother deposes to the father pushing and using his body to nudge her on several occasions during the relationship and also deposes to the incident on 6 November 2020 which resulted in the parties’ physical separation and his arrest. On that occasion, the mother deposes that the father returned to the family home, intoxicated. She says the father berated her and an argument ensued and she then retrieved her phone from the bedroom for the purpose of contacting some of the father’s friends to ask them to come and collect him. Neither of the two friends were able to do so. The mother deposes that the father accused her of being on the phone to her boyfriend and then when he realised that was not correct he rang his friend and verbally abused him.
According to her affidavit, as the mother walked past the father he blocked her way and then started filming her while yelling “you’ve ruined my life”. When in her bedroom she could hear the father speaking to the children saying words to the effect of “your Mum is crazy. She is not well.” She then left the bedroom to ask that he not involve the children in the argument. She deposes that the father then approached her in the hallway of her home and came up close to her, putting his body right in front of hers and his face to her face and then pushed her with force to her chest, causing her to fall to the ground. The mother then used the older child’s mobile telephone to dial 000 for emergency police assistance and police subsequently attended. This incident occurred in the presence and hearing of the children.
The mother deposes that when police arrived she was distraught, crying and shaking and felt scared. She says that the father verbally abused her in the presence of police and was subsequently arrested and charged with assault and removed from the home.
As previously noted, the father defended this charge but was found guilty at a hearing in which the mother gave oral evidence and was cross-examined. The father was convicted and a final ADVO was made for the protection of the mother for two years. The father did not appeal the conviction or sentence.
The mother also deposes to the father being financially controlling in relation to the family money and his income including requiring her to specifically ask him for money. For example, she annexes a text message from September 2018 in which the husband says “in future talk to your husband about purchases over $100”. She also gives the example of an occasion where she was at the hardware store and needed to purchase a new mop and called the father to seek his permission for that purchase and request the money. The father approved her request and transferred the exact amount of money into her bank account to enable her to purchase the item.
The wife deposes that since separation the father has provided no financial support for herself and the two younger children living with her.
In summary, the mother deposes to experiencing the husband as a demanding, domineering bully and expresses fear of him and having any contact with him.
The mother provides significant detail in relation to her increased consumption of alcohol from around July 2019 when the parties’ relationship had significantly deteriorated and of her attempts to manage the father’s harassment and intimidation of her in their home through excessive alcohol use which had previously not been a problem for her. She also deposes to a deterioration in this point in her mental state which she believes was connected with her experience of the father and her excessive drinking, matters which were subsequently confirmed by a psychiatrist. The mother deposes that when she sought help, and in particular at the time of her admission to a clinic in December 2019 the father showed no support and began making derogatory and demeaning remarks to her about her alcohol misuse and mental health problems and often laughed at her. After her first admission at the clinic she deposes that he taunted her by opening cans of his beer close up to her face.
Although the mother stopped drinking alcohol following her first admission at the clinic, in early 2020 circumstances in the home deteriorated further and the mother experienced a relapse in her alcohol misuse, resulting in a second admission to the clinic in April 2020. Following the second admission, the mother deposes to the father continuing to verbally abuse, denigrate and criticise her including over the fact that she had been to the rehabilitation clinic.
According to the mother’s affidavit, from around April 2020 she and the father were effectively separated but continuing to both live in the family home. She deposes to the father constantly referring to the children “living 50/50” and that he “will be having 50% custody” in a demanding manner and that he pressured her to reduce such an arrangement for the children in writing. The mother did not agree and says that the father then threatened her on several occasions to the effect that unless she agreed with his proposal he “will get full custody of the kids” and she “will never see them again” which scared the mother.
As a result of the father’s pressure, the mother agreed to a trial of an arrangement in which they both shared the care of the children within the family home which was apparently not successful and was the source of further arguments.
The allegations of undermining
The mother contends that the father has alienated the older daughter from her, that is, he has caused this child to align with him and reject her for reasons which are unfounded. The mother also maintains that the father’s actions in removing the older daughter from her care and maintaining physical separation undermines her parenting and demonstrates the father’s lack of ability to encourage and promote the children’s relationships with her.
There is no dispute between the parties that the father attended upon the family home on 12 November 2020 (six days after his arrest and removal from the home) and collected the older child, then aged 11, after there had been an incident between the mother and this child following an argument. I understand that there is no dispute that the father also removed a family car from the family home at that time.
It is the mother’s case that the father’s behaviour, including removing the older daughter from her care and his ongoing failure to facilitate this child’s relationship with her, has caused this child’s alignment with him and rejection of her.
The mother deposes to the father engaging in conduct within the family home from around October 2020 which she says caused chaos and disruption and was orchestrated by the father for that purpose. She deposes to believing that the father did this in an effort to create a situation from which he could assume primary care of the children.
The mother deposes that from about October 2020 the older daughter was making video recordings of her on that child’s mobile telephone as the father had done.
The mother also deposes to an event on 27 October 2020 when she had driven with all of the children in the car and upon arrival at home in the evening the father started questioning her, alleging that she had driven recklessly. According to the mother’s affidavit she went to the bedroom and in an effort to avoid conflict with the father got into bed and pulled the covers over her but the father would not leave her alone and pulled off the covers and tried to engage in questioning her. She deposes that the father then video recorded an interview with the children about this allegation.
The mother says that the father was absent from the family home for a few days after this event and that while he was gone police officers attended at the home and conducted a welfare check of the children based upon a complaint they had received from the father. She deposes that the police were satisfied that the children were not in any harm or danger.
The mother deposes that the removal of the father from the family home on 6 November 2020 was a significant and traumatic event for herself and the children. She deposes to being aware of the older daughter attempting to make contact with the father in the days that followed and of this child communicating with the paternal grandmother. In her affidavit, the mother expresses concerns that the older daughter blames her for the father’s arrest and his removal from the family home and that both the father and the paternal grandmother encouraged this child to hold that view.
The mother also deposes that following the father’s arrest the older daughter started to become increasingly defiant and rude towards her which was out of character for this child and at odds with the close relationship they had enjoyed until that point in time.
The mother believes that the removal of the older daughter from the family home was planned. In her affidavit the mother deposes to text messages sent by the paternal grandmother a few days after the father’s arrest in which she encourages the older child to tell police “what your Mum does to your Dad” or “they will never let him see you”. In that message the paternal grandmother tells this child that the grandmother didn’t think the father will be able to return home “as your Mum has told some lies” and in a further message the paternal grandmother advised the child to delete the messages and requested that the child find and keep the keys to the family car. In a message from the older daughter she advises the paternal grandmother that she has found the keys to the car to which the grandmother advises “hide them”. The child responded that she would put them in her pocket “and if Mum tries to take them I will hit her”. These text messages are annexed to the mother’s affidavit.
According to the mother a few days after the text messages were sent, on 12 November 2020 the older daughter started arguing with her about doing her homework and the mother’s request that this child stop using her mobile telephone. She deposes that when she asked this child to pass her the phone, the child replied “no. Dad pays for it and Dad bought it” adding “you cannot tell me what to do…even if you take it off me, Dad will give it back to me anyway”. The mother says that as she and the older child exchanged these words, the mother reached over and took a cardboard box of cereal out of the child’s hands and in doing so the edge of the cereal box lightly scraped on the child’s chin, to which the child immediately exclaimed “you just assaulted me!” and then walked away and rang the father. About 15-20 minutes later the father and paternal grandmother arrived at the family home in the grandmother’s car and collected the older daughter and removed her from the mother’s care.
As noted earlier in these Reasons, following the incident on 12 November 2020 officers of the Department again attended the mother’s place of work and questioned her about her health, medication, alcohol use and associated matters.
The mother also deposes that after she was away from the home for a weekend soon after this incident the father accessed the home and removed many items of personal property including the children’s property.
From the following week the two younger children began spending time with the father each Monday and Tuesday overnight and each alternate weekend.
A few days later the father arrived at the family home in the company of two police officers without notice and the two younger children were present at the time. The father made allegations to police of the mother stealing his belongings and tools for work and asking the younger daughter whether the mother had sold anything.
On 12 December 2020 the older daughter posted a message to a social media platform blaming the mother for the fact that the father was fined for driving a motor vehicle with an unregistered trailer. The caption included this child using offensive language and derogatory terms towards the mother.
On 22 December 2020 while the mother was in a public place with the two younger children, the father, who was with the older daughter, approached and tried to encourage the younger children to come with him. There was a similar incident on 5 January 2021 when the father approached the mother who was with the two younger children, began filming her without her consent and informing the children that he would take them home. When the mother refused the father raised his voice, reminding the mother that “these are my children…I will take them” and “you cannot take my child”.
The day after this last mentioned event the mother received a call from the police about the incident at the shopping centre and informed her that the father alleged that she had assaulted him. There is no evidence to suggest that this allegation was taken any further by police. The mother also received a phone call a few weeks later from a case worker from the Department in relation to this incident.
In the affidavit relied upon by the father in the proceedings, the mother’s allegations of family violence are not addressed. In written submissions made on the father’s behalf, the mother’s allegations of family violence which are central to her position in these proceedings are also largely unaddressed.
In oral submissions it appeared to be advanced on the father’s behalf that the allegations of family violence in these proceedings are not a matter of great significance as the father has completed some courses relevant to this matter. I am not of the view that any courses undertaken by the father and outlined in his affidavit of 2 June 2021 do address the issue of him taking responsibility for family violence. The father did not undertake any course voluntarily but was required to complete a course titled “Taking responsibility – a course for Men” pursuant to the orders of 26 March 2021. According to his affidavit, he was not able to secure a position in that course but undertook another course instead. Although he sets out the topics covered by the course that he did undertake, there is no recognition in his affidavit that the father acknowledges he is a person who engages in family violence. The father was also required by the orders of 26 March 2021 to engage on a continuing basis in a particular program after completing the “Taking Responsibility” course but deposes in his affidavit to nothing more than an intention to engage in this support group after he has continued the course that he was enrolled in as at June 2021.
Of great significance to the issue of family violence in my view is that the father maintains that he did not assault the mother on 6 November 2020 notwithstanding that he has been convicted at the criminal standard of that offence (which he did not appeal) and an ADVO was made for two years for the protection of the mother.

Further, as was identified in submissions made on the mother’s behalf answers given by the father to police in his recorded interview upon his arrest are consistent with the mother’s evidence about his conduct on the relevant day and about his position generally in relation to family violence.
For example in his recorded interview, when asked about his wife, the father immediately began a litany of complaints including that she had relapsed following two admissions in rehabilitation, that she “drink-drives with my children all the time” and that “she’s bipolar, schizophrenia, she’s on tablets as long as your arm”.
In my view there is also an admission in one of the father’s answers in his police interview that he may have assaulted the mother on 6 November 2020 as she alleges. When the allegation was first put by police that the father pushed the mother during this incident, the father denied assaulting her alleging that the mother’s “a good spinner, mate”. However, he then went on to say “if she (sic) if I did push her she would have been in my face, into me”. He then said that he didn’t recall pushing her, he then alleged to police that his wife “bashes him” and “belts me all the time”. The father’s statements about his alcohol use are also consistent with the mother’s allegations.
In my view there is also some corroboration for the mother’s allegations about the conduct of the father more generally in other answers given in his police interview. For example, in her affidavit and when assessed by the Family Consultant the mother alleges that the father has utilised the police and the Department to harass and intimidate her. In his police interview the father, without any apparent relevance to the question, alleged that the mother “drink drives with my children all the time” and also added “I’ve put her into the police a couple of weeks ago” and that after reporting this conduct to police “[the Department] came out on Wednesday. Gave her a talkin’ to”. It is also of some significance in my view that when interviewed in May 2021, the son informed the family consultant that following the father’s conviction he and the older daughter were taken to a police station (it appears by members of the paternal family) as they had to “call the police on Mum”.
The mother’s allegations of the father video recording her and the children on his phone are also confirmed by the father’s own answers in his recorded interview. When the father referred to this the alleged drink-driving in his interview he also said that “I’ve got it [the children’s versions] on video on my phone”. Further, in her affidavit the mother deposes to the father pushing her on occasions in an effort to provoke a response and to the father recording that response on his phone while alleging that the mother assaulted him. In his interview with police when asked about the particular allegation on 6 November 2020 the father answered by alleging that the mother “belts me all the time” adding “I’ve got it on my phone”.
It is also of note in my view that although the father alleged to both police and the family consultant that the mother assaults him all the time and although he was prepared to report the mother to police in relation to an allegation of drink-driving, he had not ever complained to police that the mother assaulted him.
In assessing the competing allegations as to the father’s family violence, I also attach weight to the father denying that he assaulted the mother (in relation to the matter of which he was convicted) to the family consultant when assessed in May 2021. I also note that the mother’s allegations in relation to the father’s varying actions and behaviour other than the physical assault described to the family consultant are consistent with her affidavit. It is recorded by the family consultant the father denied allegations that he assaulted the mother and made counter allegations that she had assaulted him. There is no reference to the father denying his engagement in coercive and controlling conduct when assessed by the family consultant or in the limited affidavit relied upon in these proceedings nor was this contended on his behalf in submissions at the hearing.
As previously noted, in submissions made on behalf of the father at the hearing, the allegations of family violence were largely not addressed. However, in the course of submissions made on the father’s behalf significant attention was given to the circumstances prevailing in the family home prior to the parties’ physical separation and to the reports made by the children, and the older daughter in particular, about the mother’s conduct. The complaints included a report by the older daughter that prior to separation that her parents were “constantly fighting” and that the mother would “take it really far by hitting Dad”.
In my view weight cannot be attached to the perceptions of a 12 year old child about who she considered to be the aggressor in incidents of family violence when determining whether the events occurred, given that there is no dispute between the parties that this child was caught in an extremely conflicted environment in the family home during the months prior to physical separation. Further, the family consultant opined:
It is however of significant concern that [the father] has reportedly drawn [the older daughter] into the parent’s conflict and this may be contributing to her belief that [the mother] is the perpetrator of violence…
Taking all of the foregoing matters into account, I am of the view that the father has been the perpetrator of family violence at least by assaulting her in November 2020, a matter for which he was convicted. Further, as the father has not specifically denied the other controlling and coercive behaviour alleged by the mother and for the reasons explained I consider there is some corroboration of these allegations, I assess that there is a real possibility that her allegations will be found proven at final hearing.
The second domain of risk identified by the mother in these proceedings which is also related to the father’s perpetration of family violence concerns the actions the father has allegedly taken to cause the children to align with him and to undermine their relationship with her. This was also not a significant focus of the father’s case at the proceedings, though it was touched upon to a greater degree than the issue of family violence.
Although my understanding of the father’s evidence in relation to these matters is hampered by his limited affidavit, it does not appear that many of the significant events relied upon by the mother in this regard are matters in dispute. Rather, submissions made on behalf of the mother and father lead to differing inferences which each support the orders they propose. In particular, there is no dispute between the parties that the father unilaterally removed the older daughter from the mother’s care six days after his arrest and removal from the family home and that he has not facilitated the older child spending any time with the mother since that date.
Although the father does not depose to the circumstances following his arrest and in the days leading to the removal of the older daughter from the mother’s care, I understand that he disputes the authenticity of text messages that the mother deposes were sent between the paternal grandmother and the older daughter at this time. It is the mother’s case that these messages reveal significant collusion by the grandmother and father in planning for their forthcoming action in removing the child and taking the family car from the home. This is a matter that undoubtedly will be resolved at the final hearing.
In considering the likelihood of this claim being accepted I attach weight to the fact that the mother has annexed the text messages in question to her affidavit and the contents are consistent with other matters which are not in dispute, such as that when the father and paternal grandmother attended the home and removed the child they took the family car from the home as had been foreshadowed in those text messages.
There is also no dispute between the parties that although there have been discussions about family therapy and the need for the older daughter to engage with a psychologist or counsellor and the father contends that it is not in this child’s interest for her to have any contact with the mother prior to this therapy beginning. It is also unchallenged that the mother made requests that psychological support be arranged by the father from as long ago as December 2020 to which no response was given and agreement had still not been reached about this matter as at the date of the hearing. Further, it is common ground that the mother has made a number of proposals requesting that the father facilitate the older daughter’s time with her but none of these have been agreed to by him. Another very significant issue about which there can be no doubt is that the child, who was only 11 when she was removed from the family home and is now 12, has been empowered (in a most inappropriate way in my view) by the father to determine important matters such as contact with her mother. This inappropriate empowerment has most unfortunately been re-enforced by court orders to the same effect.
The mother’s evidence about text messages and other communications from the older daughter to her after November 2020 are a matter of dispute between the parties which cannot be resolved at this interim stage. However, some weight must be attached to the messages said to be sent by the child and posts to social media attached to the mother’s affidavit. These include a post in December 2020 when the child is describing her difficult circumstances and writes “hurt by my own mother physically and mentally. Mum won’t let siblings come from Christmas (sic)”. In a message on 12 December 2020 the older daughter blames the mother for not giving the father his mail which caused him to be fined for having an unregistered trailer and also refers to the mother as a “bitch” and in a message on 6 February 2021 the older daughter refers to the mother as being “#1 worst Mum ever” and informs her that “your son doesn’t want to be with you anymore”.
The mother also deposes to the son accusing her in February 2021 of lying in Court against the father, lying about everything and being a kidnapper and telling the mother that “Dad tells me everything. I am allowed to know everything.” This child also informed the mother later the same evening that “my Nan and my aunty took me and [the older daughter] to the police station last week” which in the context can be inferred to be a reference to the paternal family.
In relation to the question of whether the father has influenced the children and caused them to align with him (and in the case of the older daughter, reject the mother), significant weight is attached on the father’s behalf to the reports of the children’s supervised time with him between 11 April 2021 and 26 June 2021 before that time was suspended due to the restrictions associated with the COVID-19 pandemic. It is submitted on the father’s behalf that there is no evidence in any of the supervision reports that indicate that the father is doing anything untoward in the nature of undermining the children’s relationship with their mother.
It is apparent from the supervision reports that the father is not recorded as overtly influencing the children or making obvious remarks which would indicate him undermining her relationship with the children. I accept the submission made on the father’s behalf that overall the reports are positive and describe a warm interaction between the father and the children.
The mother’s case however is that the father’s influence upon the children and undermining of the relationship has been both overt and much more subtle and a number of instances of such conduct were identified by the mother’s counsel from the reports of supervised.
For example in a supervision report dated 24 April 2021 it is recorded that in the context of talking about items that the father could bring during the children’s supervised time with him, the father said “well we only have two times left to worry about it”. This was said at a time when there soon was to be an interim hearing in which the father’s application for an increase of the children’s time with him which he proposed not be supervised was to be considered.
On the next occasion the children spent supervised time with the father on 8 May 2021 it is recorded that the father noticed that the younger daughter had a number of mosquito bites and as he wiped this child’s legs suggested the children spray their rooms of an evening before going to bed. It is recorded that the son told the father that “Mum does not spray the room”. In a similar vein, on 24 April 2021 it is recorded that when the father asked the son if he was hungry the son refused food and also mentioned that he did not eat breakfast and had nothing to eat except some popcorn.
On 22 May 2021 at supervised time it is recorded that there was a conversation in which the son asked the father if he knew that the mother had sold the pool table. The father said he knew and when the son asked why the father said he didn’t know. The son continued with “it’s not fair, she knows we liked playing with it” to which the father commented “don’t worry mate” adding “when I get my own place, I will get one”. On the same occasion it is later recorded that the younger daughter asked the father whether he remembered going to the football to which the father responded “yes, I have season family tickets for the Panthers and maybe we can all go one day”. When the child asked whether that included the mother, the father told her “there are only four tickets” to which the child commented “well there are five of us” before adding “actually there are more if you count the lizards or other family”.
It is the mother’s submission that each of these remarks may be considered to be consistent with the children feeling that they need to make negative comments about the mother when in the father’s presence and that the father cannot resist conveying subtle messages to the children even under supervision which are consistent with minimising the importance of the children’s relationship with their mother or implying to them that the current arrangements will soon be at an end, falsely raising their expectations about their parenting arrangements.
In considering whether subtle undermining of this type has occurred even at supervision, I attach weight to the following extracts from the family consultants’ Memorandum/CAPIA of May 2021:
It may be that [the mother’s] alcohol use and associated behaviour is a contributing factor to the [older daughter’s] rejection of her but it may also be that [the father] is behaving in a manner which serves to undermine the [older daughter’s] relationship with [the mother]. If the latter is more accurate than the two younger children may also be at risk at [the father] undermining their relationships with [the mother] if they continue to spend time with him and this risk may increase if the children were to spend additional time with him particularly unsupervised time…
the [older daughter] appeared highly attuned to [the father’s] needs and allegations have been made that [the father] has spoken negatively of [the mother] to the children.
It is necessary for parents to distinguish their own needs from the children’s, as children who feel responsible for meeting and managing their parents are at risk of psychological difficulties and it may negatively impact the relationships between the children and one or both parents. Supervised time may not be providing the younger two children with a realistic picture of the father’s behaviour and interactions with the children. And if the father’s apparent attitude towards the mother as identified during his interview is reflective of his general attitude towards her, it seems unlikely that he would be able to protect the children from his attitude towards the mother.
I have regard to the undisputed matters upon which the mother relies in relation to her contentions about the father undermining the children’s relationships with her and give some weight to the other allegations she makes in this regard for the reasons given.
While at this stage, being an interim hearing, I do not make any positive findings but rather assess the likelihood of the competing claims I consider it more likely than not that the father has played a role in causing the older daughter to reject the mother and align with him. It was the father who removed this child from the mother’s care and has failed to facilitate her spending anytime with the mother. Moreover, it is recorded by the family consultant that in May 2021 it did not appear to be in dispute between the parents’ that prior to their separation that the older daughter had a close and loving relationship with the mother and that this changed in the months leading up to the parent’s separation. The older daughter also reported to the family consultant that when the parents were separating she felt worried for the father and explained “he only had me” and that she and the paternal grandmother “were worried about Dad”. It is also a matter of significance in my view that this child has been living with her father in the paternal grandmother’s household and has had no reality check or experience of the mother’s parenting for almost a year.
So far as the son is concerned I attach weight to the family consultant’s assessment that this child appeared to be have given information by members of the paternal family such as that the mother was responsible for the father’s arrest and to this child’s reports to the family consultant and the mother that he and the older daughter had been taken to a police station to “call the police on Mum”.
In weighing the probabilities of the parties’ assertions, I assess that it is less likely that the older daughter’s current presentation and fractured relationship with her mother arises solely from her lived experience of the mother’s care.
In this regard I note that the family consultant expresses a view about why a child’s understanding of violence may not be accurate where the child has been drawn into the parents’ conflict. Other documents relied upon by the father concerning the children’s lived experience of the mother’s care prior to separation do not in my view attach significant weight such as records of the Department and records of the opinion of school teachers given the time and circumstances in which the children were interviewed and the fact that they are second and third hand hearsay accounts with little evidentiary value.
BEST INTEREST CONSIDERATIONS
Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) provides that in deciding whether to make a particular parenting order in relation to children, a court must regard the best interests of the children as the paramount consideration.
The Court must make such orders as are in the best interests of the children as a result of consideration of the matters set out in s 60CC.
The primary considerations, which are contained in s 60CC(2), are:
(a)The benefit to the children of having a meaningful relationship with both of the children’s parents; and
(b)The need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the children from harm than to the benefit to them of having a meaningful relationship with both parents.
Although the meaning of “meaningful relationship” is not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[2]
[2] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].

The proposal of the father which would see the older daughter continue to live with him and spend time with the mother in accordance with that child’s wishes and only after therapy between this child and the mother has commenced, is unlikely in my view to foster this child having a meaningful relationship with her mother. As discussed at some length in these Reasons, the parties have been unable for various reasons to have facilitated this child receiving psychological support or engaging in family therapy. Even at the interim hearing when this issue was still unresolved to some extent, the earliest possible date for the commencement of family therapy is some months away. There also can be no certainty that the older daughter will engage in this therapy or having engaged will choose to spend time with the mother.
In my view the older daughter has had an inappropriate and unreasonable burden placed upon her though the order that her time with the mother is subject to her wishes. Her decision to “choose” not to engage with the mother is likely in my view for the reasons given to have been at least in part influences by the father. It is also questionable whether the daughter’s choice not to engage with the mother is necessarily in her best interests. As the High Court found in Bondelmonte[3], whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and most aptly in these proceedings children may not appreciate the long term implications of separation from one parent or the child’s siblings.
[3] Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 at 35.
Given the time that has already elapsed in which the older daughter has had no meaningful relationship with her mother, in my view it is imperative that the child is not deprived any longer of the benefit of this relationship. The only proposal under consideration that has certainty of fostering this relationship is the proposal of the mother.
The central plank in the father’s submission that it is in the best interests of the younger two children for their time with him to significantly increase and become unsupervised, relates to the distress he contends they are experiencing at having such limited time with him. He contends that an increase in time and the removal of supervision is required in order to foster a meaningful relationship between he and these children.
It has been held by the Full Court that the word "meaningful" is qualitative rather than quantitative and the phrase has not been interpreted as requiring the Court to craft orders to support an optimal relationship.[4] Although the children’s time with the father is limited and somewhat artificial the current arrangement is sufficient in my view, having regard to the authorities, to foster a meaningful relationship between the two younger children and the father.
[4] Godfrey & Sanders [2007] FamCA 102 at 36.
So far as the second of the primary considerations is concerned, for the reasons given there is significant need to protect all of the children from psychological harm in particular from being subjected to or exposed to family violence. If it were found that the father has also consciously undermined the children’s relationships with their mother and diminished the significance of her in their lives this may also be seen to amount to abuse from which the children require protection.
If the older daughter were to continue to live with the father as he seeks (and is supported in this regard by the ICL) there is no safeguard for this child against this potential domain of harm. This is especially the case in my view as this child is to continue to live with the father in the home of the paternal grandmother under his proposal. I consider it likely on the basis of undisputed facts such as the paternal grandmother taking the older daughter and son to police to complain about the mother and her assistance to the father in removing the older daughter from the family home, that in the grandmother’s home the negative views that the father holds about the mother are reinforced.
In considering that it is likely that the father continues to hold negative views about the mother I attach weight to the family consultant’s observations and opinions. In this regard the family consultant reports that when interviewed the father seemed preoccupied with identifying the mother’s alleged shortcomings as a parent and partner even when questions were asked directly in relation to his relationships with the children or other general information about the children. The family consultant reports that the father spoke primarily negatively about the mother and it seemed that he had very little respect or trust towards her.
The family consultant also opined that if the father were found to be behaving in a manner which serves to undermine the older daughter’s relationship with the mother then the other two children may also be at risk of the father undermining their relationships with the mother if they continue to spend time with him and this risk may increase if the children were to spend additional time with him, particularly unsupervised time. The family consultant in this regard seemed to go so far as to suggest that there may be risks associated with the children continuing to spend any time with the father. The family consultant also opined that supervised time may not be providing the two younger children with a realistic picture of the father’s behaviours and interactions with the children and identified that if the father’s apparent attitude towards the mother as demonstrated in his interview is reflective of his general attitude towards her, it would seem unlikely that he would be able to protect he children from his attitude towards the mother.
In the foregoing circumstances, I have some concerns about the efficacy of the current supervision arrangements protecting the children completely from psychological harm. I consider however that such supervision which is proposed by the mother (and supported by the ICL) to continue does provide some safeguard and protection for the children and there is in any event no other proposal under consideration such as that the children spend no time with the father to mitigate the risk of harm he poses to them.
Views expressed by the children
The nature of the relationship of the children with each of the children’s parents, and other persons
I do not consider the various statements made by the children to their parents or conveyed in any other manner such as through text message or social media comments as views properly put in relation to parenting arrangements as contemplated in this consideration.
The children did give some expression of their views to the family consultant albeit in the limited confines of the Child Responsive Program and some opinions were expressed by the family consultant about the children’s relationships with each parent.
As noted previously, it did not appear to be in dispute between the parents that prior to their separation the older daughter had a close and loving relationship with each of her parents and that the relationship between this child and her mother changed in the months leading up to the parents’ separation though each parent has differing explanations for this change. The parties also agree that there has been no opportunity for this child and the mother to address the disruption in their relationship.
The older daughter’s current fractured relationship with the mother and statements that this child made to the family consultant about the nature of that relationship prior to separation are central to the father’s contention that it is not in this child’s best interests for time between she and the mother to recommence and that it would be a particularly risky move for this child to be required to move to live with the mother as the mother proposes.
The older daughter told the family consultant when interviewed that her previous good relationship with the mother had begun to deteriorate a few years ago when the mother began drinking alcohol problematically. It appears to be undisputed between the parties that the mother began her problematic drinking in about mid-2019 and the mother also deposes from around this time to leaving the home from time to time due to the father’s demands and on other occasions as she could not cope. The older child also reported to the family consultant that she felt “mentally hurt” by the mother and does not believe that the mother has changed. When various proposals were explored with this child she said that she may be able to spend one or two hours with the mother but would anticipate being quite upset if she had to.
The ICL who supports the father’s application that the older child remain living with him, placed particular emphasis upon this child’s views and the nature of her relationship with the mother. The ICL submits that there are concerns that this child’s views and the nature of her relationship with the mother could be a result of the child’s lived experience but also concedes that there is no doubt that this child had been influenced by the father’s views in forming the perception that the difficulties for the family were the fault of the mother. Given the current fractured state of this child’s relationship with the mother the ICL is concerned that there are real risks that this child could become more resentful and rebel against the mother and/or experience a deterioration in her psychological state if “required” to live with the mother. For this reason the ICL supports the father’s proposal that the relationship between the mother and older daughter requires rekindling through therapy before such time between the two is to be spent.
In assessing the weight to be attached to the older daughter’s views and considering the nature of this child’s current relationship with her mother and possible reasons for its deterioration, the family consultant considered it a matter of significant concern that the father had reportedly drawn this child into the parents’ conflict. The family consultant opined that this factor may be contributing to this child’s belief that the mother is the perpetrator of violence which is likely to undermine her relationship with the mother and may also lead to the child feeling an increased sense of responsibility towards the father.
As also previously noted the family consultant opined that it may be that while the mother’s alcohol use and associated behaviour is a contributing factor to the older daughter’s rejection of her it may also be that the father is behaving in a manner which serves to undermine this child’s relationship with the mother. The family consultant also observed that this child appeared highly attuned to the father’s needs.
In my view, at this stage despite the strength of the older daughter’s views of her relationship, I do not attach the weight to those views as has been urged on behalf of the father and the ICL. I am of the view that given the complexity of this matter which has in the words of the family consultant “several areas of risk that may be interconnecting” I must attach greater weight to the risks of harm as assessed or arising from the undisputed facts than to the views of a 12 year old. This is particularly so where those views have emerged in the context of a complete absence of contact with the mother, likely regular exposure to the father’s negative views of the mother and has lived for the last 12 months in the paternal household.
I also attach weight to the particular features of coercive, controlling family violence as identified by the family consultant including that the perpetrator may use children as a means of further controlling the victim and to the absence of a recommendation by the family consultant that it is necessary for the older daughter to receive family therapy as a precondition to restoring her relationship with the mother. Finally as noted, while a child’s view ought to be given proper consideration, children’s views are but one of a number of considerations to be taken into account in the overall assessment of a child’s best interests[5].
Capacity of each parent and other persons to provide for the children’s needs, including emotional and intellectual needs
[5] Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 at 35.
Attitude to the children and responsibilities of parenthood demonstrated by each parent
It is central to the mother’s case that the father has serious limitations in his capacity to care for the children associated with his perpetration of family violence, his alcohol misuse and as he has no insight into the needs of the children to have a meaningful relationship with the mother and the harm he has occasioned to the older daughter in particular by undermining that relationship. There is significant overlap in these contentions with matters that have already been considered in these Reasons.
In this regard I also attach weight to the following opinions expressed by the family consultant in her Memorandum:
Significant allegations relating to family violence have been identified and, if there is substance to [the mother’s] allegations it may indicate that [the father] has perpetrated coercive controlling family violence. Coercive controlling family violence may utilise psychological abuse, financial control, sexual assault and the perpetrator may use children as a means of further controlling the victim. Incidents of actual harm do not need to be frequent or severe for the perpetrator to maintain power over the victim. If there is veracity to these allegations, a conservative approach may be required in determining the children’s spend time arrangements in order to protect them from the risks associated with the perpetration of family violence. Coercive controlling violence is also associated with significant parenting deficits such, (sic) a limited capacity to separate a child’s needs from the perpetrator’s own needs.
The children have been reported to have been interviewed by several professions within the NSW Police, [the Department], the ICL and now a family consultant. Whilst it may be necessary for the children to be interviewed to be assessed for the children’s safety and wellbeing, there may be some risks to the children by being interviewed by several professionals as it may be reinforcing a narrative that the mother has behaved in a manner which is unsafe to the children. Additionally if there is not a need for the children to be assessed by the associated services, then doing so may also be causing the children psychological harm.
…Although the children have described [the father] as being supportive, providing them with opportunities, toys, gifts and pets and they each described good relationships with him there is some indication that, despite his concerns about the children’ safety and wellbeing, he may not have adequately protected the children or is able to prioritise the children’s needs over his own. If [the mother’s] account of [the father] is accurate, then his behaviour, during the relationship and following separation may have not only undermined her capacity to parent but his behaviour may have in fact created further risk to the children’s wellbeing and/or he may have failed to protect the children. For example, it does not appear that he sought or engaged with any supportive services prior to separation and, if accurate, [the mother’s] account is that he refused to support her recovery from alcohol misuse.
In these proceedings the father did not pursue a case that there is currently a risk to the children posed by the mother such as any risk arising from her use of alcohol or mental health difficulties.
The only shortcomings in the mother’s capacity contended for by the father in this application relates to a contention that the older daughter’s current presentation and apparent fractured relationship with the mother is a result of that child’s lived experience of the mother’s care which was less than optimal for some period to physical separation. This contention is based to a large extent on statements made by this child to the family consultant about her experience of the mother in the years prior to separation. For the reasons given when considering the views of the older daughter I do not accept her statements about her experiences with the mother are entirely reliable given the circumstances in which this child has come to form those views which effectively hold the mother responsible for all of the difficulties within the family including events such as the father’s arrest.
The contentions of the father about shortcomings in the mother’s parenting capacity which he maintains are based on the older daughter’s statements concerning the mother’s care and current stance towards the mother are matters about which the court is likely to require expert evidence. Once again, the issue of any alleged impairments in the mother’s parenting capacity is likely to be interconnected with other matters raised in these Reasons as observed by the family consultant in her Memorandum. The family consultant opined that the father’s perpetration of family violence may have been a precursor to, and exacerbated the mother’s reported difficulties with alcohol and diagnosed mental health conditions.
The likely effect of any changes in the children’s circumstances
The ICL and father consider this to be a particularly salient matter to which great weight should be attached in relation to the parenting arrangements for the older daughter. There is considerable overlap between those contentions and other matters already considered in these Reasons, in particular to the views expressed by this child and the apparent nature of her relationship with the mother.
In my view the likely effect of a change in this child’s circumstances that would be brought about if orders are made as sought by the mother is a significant factor this application. Real difficulties may very well be experienced by the mother in the management of this child should she move to live with her for which the mother is likely to require some professional assistance particularly as this child has been given so much power in the last 12 months to determine her own circumstances. For these reasons I do attach weight to this matter but having regard to all of the considerations particularly the primary considerations I do not consider it to be so weighty to be effectively determinative so far as the older daughter is concerned as contended by the father and the ICL.
In my view, a real benefit would accrue to all of the children from the change of circumstances that would occur if orders were made as proposed by the mother as her orders would see all of the children live together in one household. It is apparent from comments made by the children contained in the reports of their supervised time with the father that they have a close bond as siblings, miss one another and have been detrimentally affected by being separated in two homes. The mother’s proposal is the only one under consideration that will see all of the children living together under the same roof.
The father also attaches significant weight to this consideration in relation to his proposal for the two younger children. I do consider it an important matter in relation to these children as clearly they spend much less time with the father than was previously the case as a result of the orders made in March 2021 when the time was reduced and supervision imposed.
The practical difficulty and expense of a child spending time with and spending time with a parent
A submission was made on behalf of the father about the ongoing cost associated with supervision of the children’s time with him for which he is wholly responsible. Although this is a factor to which some weight should be given it was not suggested on his behalf that this cost is prohibitive or unsustainable such that it would ultimately effect the children’s rights to maintain personal relations and direct contact with him on a regular basis.
Family Violence

As is apparent from these Reasons, the issue of family violence looms large in these proceedings. It has been considered at some length and is also interconnected with other considerations as has been explained.
There is currently an ADVO in place for the protection of the mother against the father which was made consequent upon his conviction for assault and which will remain in place until February 2023.
THE RESTRAINT
One of the matters of significant focus in the proceedings relates to the practicalities of ensuring that the orders in relation to where the children (and the older daughter in particular) live are adhered to. This raises the question of appropriate means to reduce the possibility of the children or the older daughter in particular voting with her feet and attempting to move back into her father’s care, especially as she appears to be particularly concerned about his wellbeing.
This issue it appears had also been foreshadowed in relation to the two younger children when orders were made in concerning their living arrangements in March 2021 that resulted in a significant reduction of their time with the father as a restraint along these lines was made in relation to the two younger children and that time.
In this application in addition to the parenting issues, the mother seeks that this injunction upon the father pursuant to s 68B of the Act be continued.
The father seeks discharge of the order imposed on 26 March 2021 restraining him from collecting or removing the two younger children from their school including permitting others to do so on his behalf or from permitting the two younger children to come into his care or be removed into his care at any time.
Under s 68B of the Act, the Court is empowered to grant such injunctions as it considers appropriate for the welfare of a child. These injunctions may relate to the personal protection of a child or parent and may include restraining a person from entering or remaining in the place of employment, residence or education of that child or parent.
I take the following matters into account in considering whether it is appropriate to make the order sought by the mother which as explained is effectively a continuation of a restraint currently in existence in respect of the two younger children and extended to the older daughter.
It is a matter of particular significance in my view that the older daughter has been empowered through the approach taken by the father and later as a result of court orders to make her own decisions in relation to a matter as significant as spending time with her mother. In short she is used to getting her own way in relation to this matter. I also consider it of significance that the older daughter has formed the view which may be found to be unreasonable and unfounded, that her mother is responsible for all the difficulties faced by the family including her father’s arrest. It was quite apparent to the family consultant that the older daughter reflected upon her relationship with the mother during the time prior to physical separation when the parties were separated but still living in the family home in a much more negative terms than both parents. The older daughter reported to the family consultant that her relationship with the father has changed significantly since the parents separated and explained that they now spend a lot of time together engaging in enjoyable activities and that when her parents were separating she felt worried for the father and explained “he only had me”.
The son also told the family consultant that he wanted to live with the father primarily because the father allows him to play on his devices and that he is more fun. The youngest daughter did not appear to have clear views about her parenting arrangements but said it would be unfair to live with one and only spend time with the other parent.
The mother also identifies numerous occasions including at the children’s supervised time with the father where the father engages in conversation that suggests to the children that their parenting arrangements should or will be changed as he seeks even though he is aware there are orders in place with which he is expected to comply.
In evaluating the family at the preliminary assessment the family consultant opined that the older daughter appeared highly attuned to the father’s needs and also opined that supervised time may not be providing the two younger children with a realistic picture of the father’s behaviour and interactions with the children.
In the foregoing circumstances, in my view there is some risk that the children may behave quite disruptively and contrary to their best interests if orders are made as sought by the mother and in an effort to show support for the father or in an effort to change their parenting arrangements. Any orders made by the court are those considered proper and in the children’s best interests. In these circumstances, it would be appropriate for the welfare of the children to restrain the father from taking any steps to have the children live or spend time with him contrary to such court orders or to in effect allow the children themselves to act in a manner inconsistent with those orders. For this reason, if I were to make orders as sought by the mother it would be also appropriate in my view to make the restraint upon the father as she seeks. Similarly, for so long as the two younger children are to remain living with the mother (even if the older daughter remains with the father) the same rationale concerning the continuation of restraint with respect to the two younger children applies and this it is appropriate for that restraint to continue.
THE RECOVERY ORDER
Section 67U of the Act provides that subject to section 67V the Court may make such Recovery Order as it thinks proper. Section 67V provides that, in deciding whether to make a Recovery Order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The mother seeks an order that in the event that the older daughter is to live with her that the father be required to deliver that child to her by a specified time. She also proposes that in the event the father fails to deliver that child to her that a Recovery Order be made to ensure that the older daughter returns to her care. The father opposes a Recovery order being made and submits that he has an obligation to comply with orders of the Court but may have a reasonable excuse for non-compliance and for this reason urges that the Court not make such an order.
Although the ICL does not consider that an order that the older daughter live with the mother is in that child’s best interests she does not oppose the making of a Recovery order if the Court considers that necessary.
The principal matter relied upon by the mother when seeking a Recovery order is that it must be made clear to the father and through him to the older daughter that the orders of the Court should be complied with. It is submitted on the mother’s behalf that such an order is necessary if the father does not return the child to her care in circumstances where the older daughter is used to having her wishes acceded to. It is the mother’s case that the Court could not be satisfied that the father will comply with the court order as he has on more than one occasion failed to comply with other orders of the Court including filing documents for the purposes of the hearings as he has done in these proceedings. It is submitted on the mother’s behalf that the father only pays lip service to court orders. In this regard the mother attaches significant weight to the father’s failure to facilitate any time between the older daughter and the mother since he removed that child’s from the mother’s care notwithstanding the onus has been on him to facilitate that child’s time with the mother.
I accept the submissions of the mother in relation to the question of concerns about the father’s likely compliance with the orders of the Court. There is also a practical reality to consider if an order were made for the father to deliver the older daughter to the mother for the purposes of living with her and that order was not complied with, given the current circumstances and lack of resources within the Court there can be no assurance that a Recovery Order could be obtained on short notice. If an order is to be made bringing about such a dramatic change in that child’s circumstances, in my view it is in her best interests that such change happen immediately rather than allowing for additional time in which the child may behave in a manner which is not in her best interests.
CONCLUSION
Having regard to each of the best interests considerations as discussed and attaching particular weight to the two primary considerations as well as the other matters referred to, I consider it proper to make all of the orders proposed by the mother as I am of the view that those orders are in the best interests of the children.

I certify that the preceding two hundred and nine (209) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.
Associate:
Dated: 22 October 2021

File number(s):	PAC 864 of 2021
Judgment of:	HANNAM J
Date of judgment:	22 October 2021
Catchwords:	FAMILY LAW – CHILDREN – Interim Parenting – Review of a Registrar’s decision – Where interim orders were made providing that the two younger children live with the mother and spend supervised time with the father – Where interim orders were made providing that the older daughter live with the father and spend time with the mother in accordance with her wishes – Where the father seeks a review of interim orders in relation to the younger children’s time with him – Where the mother seeks that all three children live with her and spend supervised time with the father – Where there are serious allegations of family violence perpetrated by the father – Where there are serious allegations of coercive and controlling conduct perpetrated by the father – Where there are significant interconnected issues of risk – Where the eldest daughter has not spent time with the mother for almost 12 months – Where it is inappropriate for a child of age 12 to determine her parenting arrangements – Where it is likely to be found at final hearing that the father has perpetrated family violence – Where orders are made as sought by the mother – Where a Recovery Order issue in default if the father does not return the eldest daughter to the mother.
Legislation:	Family Law Act 1975 (Cth) s 60CA, 60CC, 67U, 67V Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 14.07(1)
Cases cited:	Bondelmonte v Bondelmonte [2017] HCA 8 Deiter & Deiter [2011] FamCAFC 82 Goode & Goode (2006) FLC 93-286 SS & AH [2010] FamCAFC 13 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92
Division:	Division 1 First Instance
Number of paragraphs:	209
Date of hearing:	14 October 2021
Place:	Parramatta
Counsel for the Applicant:	Ms De Vere
Solicitor for the Applicant:	Barkus Doolan
Counsel for the Respondent:	Mr Givney
Solicitor for the Respondent:	McAuley Hawach Lawyers
Solicitor for the Independent Children's Lawyer:	Ark Law Lawyers

PAC 864 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS CARY Applicant
AND:	MR CARY Respondent
INDEPENDENT CHILDREN'S LAWYER Other

ORDER MADE BY:	HANNAM J
DATE OF ORDER:	22 OCTOBER 2021