Charles & Charles - [2025] FedCFamC1F 310

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE

Charles & Charles [2025] FedCFamC1F 310

File number: BRC 14053 of 2023

Judgment of: CAREW J

Date of judgment: 14 May 2025

Catchwords: FAMILY LAW – CHILDREN – Parenting Orders – Whether the father poses an unacceptable risk of psychological and emotional harm to the children – Where the father concedes that the mother does not pose an unacceptable risk of harm – Whether consideration should be given to splitting the siblings – Whether the father has inculcated the children with a “false narrative” that the mother is not a person with whom the children are safe – Where it is found that the children have been exposed to psychological and emotional harm by the father – Where it is found that there is an unacceptable risk of emotional harm to one child, but not the other three – Where the risk can be ameliorated – Where there is no evidence that the mother would fail to facilitate a relationship between the father and the children – Where the practical difficulties in returning the children to their mother’s care are considered – Where a short moratorium is imposed – Where a recovery order will lie in the registry

Legislation:
Australian Passports Act 2005 (Cth) s 11

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61D, 61DA, 61DAA, 61DAB, 62B, 64B, 65DA

United Nations Convention on the Rights of the Child

Cases cited:
Baghti & Baghti [2015] FamCAFC 71

Banks & Banks (2015) FLC 93–637

Eastley & Eastley (2022) FLC 94-094

Isles and Nelissen (2022) FLC 94-092

Johnson & Page (2007) FLC 93–344

M v M (1988) 166 CLR 69

N and S and the Separate Representative (1996) FLC 92–655

Number of paragraphs: 195

Date of hearing: 17 March, 7 – 8 April, 11 April, 14 – 17 April 2025

Place: Brisbane

Counsel for the Applicant: Ms Oakley

Solicitor for the Applicant: Crowley Greenhalgh Solicitors

Counsel for the Respondent: Mr Duplock on 17 March 2025 (withdrew), Mr Collins on 7 April 2025 (withdrew due to illness), Ms Jardine on 11, 14-17 April 2025

Solicitor for the Respondent: HCM Legal

Counsel for the Independent Children's Lawyer: Mr Taylor on 17 March 2025, 7-8 April 2025, 11 April 2025, and 14-16 April 2025, and Dr Sayers on 17 April 2025

The Independent Children's Lawyer: ELR Law
ORDER

BRC 14053 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MRS CHARLES

Applicant

AND:
MR CHARLES

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CAREW J

DATE OF ORDER:

14 MAY 2025

THE COURT ORDERS THAT:
1.The mother, Mrs Charles, has sole responsibility for making parenting decisions in respect of major long-term issues (as defined in s 4 of the Family Law Act 1975 (Cth) (“the Act”)) for the children:
(a)X born [redacted] 2010;
(b)Y born [redacted] 2014;
(c)Z born [redacted] 2016; and
(d)W born [redacted] 2018.

2.The mother is to advise the father, Mr Charles, by way of email or text message of any decision regarding a major long-term issue made by her within seven days of making the decision.
3.The children are to live with the mother other than as provided in this Order.
4.For a period of six weeks from the date of this Order or for any further period as provided by this Order, the father is restrained from:
(a)Spending any time with any of the children;
(b)Communicating in any way with the children;
(c)Coming within 50 metres of the children’s schools or any extracurricular activities in which they are involved or attending;
(d)Approaching the children;
(e)Shopping at Coles, Suburb B;
(f)Responding to any communication received from any of the children; and
(g)Requesting or facilitating any other person communicating with or approaching any of the children on his behalf.

5.In the event the father fails to comply in any respect with paragraph 4 of this Order, then the restraints imposed upon the father by paragraph 4 of this Order will continue to apply for a further six weeks.
6.In the event the father fails to comply in any respect with paragraph 4 of this Order during a second six-week period as provided for by paragraph 5 of this Order, then the restraints imposed upon the father by paragraph 4 of this Order will continue to apply for a further six weeks after the expiration of the second six-week period.
7.Conditional upon the father’s compliance in all respects with paragraph 4 of this Order, or after the expiration of such further period/s of six weeks as provided for in paragraphs 5 and 6 of this Order, the children are to live with/spend time with the father at all such times as may be agreed between the parents in writing and failing agreement, as follows:
(a)During school terms: each alternate week from after school on Friday (or 3.00 pm if a non-school day) until before school the following Friday (or 9.00 am if a non-school day).
(b)During the children’s school holidays:
(i)For the first half in even numbered years to commence at 9.00 am on the first day after the last day of school and conclude at 9.00 am halfway through the holidays; and
(ii)For the second half in odd numbered years to commence at 9.00 am halfway through the holidays and conclude at 5.00 pm the day before the children are due to return to school;
(iii)For the purpose of calculating the number of nights in each school holiday period, the school holidays shall be deemed to commence at 9.00 am on the day after the school term finishes and shall be deemed to conclude at 5.00 pm on the day before the children return to school; and
(iv)If there is an uneven number of nights in the school holiday period, then the children shall spend time with the mother for the additional night.

(c)Each year for each of the 3 match days in the National Rugby League State of Origin series, and for the National Rugby League Grand Final: from after school (or 3.00 pm if a non-school day) until commencement of school the following day (or 9.00 am if a non-school day).

8.In the event the father fails to comply in all respects with paragraph 6 of this Order, if applicable, then paragraph 7(a) of this Order will not apply and the children are to spend time with the father, during school terms, at all such times as may be agreed between the parents in writing and failing agreement in each alternate week from after school on Thursday (or 3.00 pm if a non-school day) until before school the following Monday (or 9.00 am if a non-school day).
9.The mother is to engage with an appropriate therapist or therapists to assist her and the children with the implementation of this Order, and for this purpose, the mother is to provide a copy of this Order and reasons for judgment dated 14 May 2025 to the therapist/s.
10.The father is to forthwith engage with a clinical psychologist and a psychiatrist (collectively referred to as “the practitioners”) for the following purposes:
(a)To assist him to come to terms with this Order;
(b)To assist him to understand the detrimental impact of his behaviour (as identified in the reasons for judgment dated 14 May 2025) on the children and, in particular, his exposure of the children to his anxiety that the mother is not a person with whom the children can be safe; and
(c)To treat his diagnosed, but currently untreated, chronic depression and anxiety.

11.The father is to continue to attend upon the practitioners for so long as is recommended by them and the father is to provide the mother with a letter from each practitioner confirming his initial engagement with them (such letter to be provided no later than 14 days after the father’s first appointment), and a letter from each practitioner when they recommend the father is no longer required to attend appointments (with such letter to be provided no later than 14 days after the father’s last appointment).
12.The father is to provide a copy of this Order, the reasons for judgment dated 14 May 2025 and the report of Dr C dated 6 March 2019 to the practitioners and attend upon all appointments recommended by the practitioners.
13.The father is restrained from causing any of the children to attend upon Ms D whether in a professional capacity or not.
14.A recovery order is to issue and lie in the registry pending receipt of an affidavit, in the first instance directed to the chambers of Senior Judicial Registrar Gray at [email protected], by the mother deposing to the father’s failure to return one or all the children and thereafter the recovery order is to be executed on each occasion the father fails to return one or all the children.
15.The mother is permitted to obtain and renew Australian Travel documents for each of the children without the consent of the father pursuant to s 11 of the Australian Passports Act 2005 (Cth).
16.This Order is to be explained to the children by Court Children’s Services at the Brisbane registry of this Court.
17.The father, and anyone accompanying him, shall leave the premises of this Court and its surrounds immediately following the pronouncement of this Order and receipt of a hard copy of the reasons for judgment dated 14 May 2025.
18.Following paragraph 16 of this Order being complied with, Court Children’s Services is to release the children into the care of the mother or the mother’s mother and/or the mother’s father.
19.Pursuant to ss 65DA(2) and 62B of the Act, the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

NOTATIONS
A.The mother intends to assist with the children’s transition to a return to living with her, by them living for a period with her parents and it is noted that the mother’s parents have agreed to that course.
B.It is further noted that it was the father’s proposal that he be restrained from causing any of the children to attend upon Ms D and this was agreed to by the mother and the Independent Children’s Lawyer.

ADDITIONAL NOTATIONS
C.There is no Court by the name “Federal Circuit and Family Court of Australia”. This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
D.The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Charles & Charles has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth). In addition to the use of pseudonyms for the parties, other changes have been made to the published judgment to protect the identity of a party or a witness. Such changes (other than when a letter is used instead of a name or an address) are apparent on the face of the judgment by the use of square brackets.
REASONS FOR JUDGMENT
CAREW J:

Mrs Charles (“the mother”) and Mr Charles (“the father”) have four children, namely, X born [redacted] 2010, Y born [redacted] 2014, Z born [redacted] 2016 and W born [redacted] 2018 (collectively “the children”). These proceedings continue what has been a very long dispute about their care.
After the parents separated in 2018, the children continued to live with their mother. On 2 March 2021, a final parenting order was made by consent in which the parents agreed to share parental decisions for major long-term issues and for the children to live primarily with their mother and spend regular time with their father.
In September/October 2023, the father withheld the children from the mother and stopped sending them to school. The father alleged that the mother had physically abused two of the children. The children did not see their mother again until early 2024 and then only in a supervised setting for two hours per week at a contact centre. The child, Y, has not seen his mother or communicated with her since January 2024. The meagre two hours of supervised time reduced to one hour a week when the father ceased to pay one half of the cost.
For reasons which will be explained, the children will be returned to the primary care of their mother and after a six-week moratorium, where there will be no time or communication between the father and the children, the children will commence living in a week about arrangement between their parents. To give the children the best chance of being able to have an ongoing relationship with both parents, the father will be subject to several restraints during the first six-week period and, if he breaches those restraints, the moratorium will be extended for up to a further 12 weeks.
It is intended that the restraints will provide an incentive for the father and perhaps even the older two children to be able to move forward to the equal time arrangement. If the father continues to breach the restraints, his time with the children will be limited to alternate weekends from Thursdays to Mondays. A recovery order will lie in the registry to be executed in the event the father withholds any of the children contrary to the order. It will be important for the father to obtain support from a clinical psychologist and a psychiatrist given his history of chronic depression and anxiety.
ISSUES
By the end of the trial, the issues requiring the Court’s determination had changed. Set out below are the significant issues requiring determination:
(1)Does the father pose an unacceptable risk of psychological or emotional harm to the children?
(2)If the children remain in the primary care of the father, will he encourage and facilitate a relationship between the mother and the children?
(3)If the children return to the primary care of the mother, will she encourage and facilitate a relationship between the father and the children?
(4)What are the practical difficulties in achieving a return of the children to live with the mother?
(5)Should consideration be given to splitting the siblings?
An additional issue: Does the mother pose an unacceptable risk of physical or emotional harm to the children? – was abandoned by the father at the commencement of submissions. It was conceded on his behalf that the evidence does not support a finding of unacceptable risk. Nevertheless, the father maintained that the mother posed a risk (but not an unacceptable risk) of physical harm to the children given her alleged propensity to “snap” and resort to excessive discipline. The father further contended that his fears for the children have ameliorated now that he is satisfied the maternal grandparents and the mother’s new partner are aware of his concerns and would step in to protect the children should the need arise.
PROPOSALS
The mother proposes that the children live with her, and after a moratorium of six months, the children spend supervised time with the father for two hours on alternate Saturdays and that she alone makes major long-term parenting decisions for the children. The precise terms of the order sought by the mother are set out in her Further Amended Initiating Application filed 21 March 2025. The mother contends that the father has inculcated the children with a “false narrative” that she is not a person with whom they are safe.
Until the commencement of submissions, the father proposed that the children live with him and spend supervised time with the mother for two hours on alternate Saturdays conditional upon the mother undertaking therapy. By the end of the trial, and notwithstanding the alleged continuing risk posed by the mother, the father proposed that the younger two children live with the mother and father in a week about arrangement and the older two children live with or spend time with the mother in accordance with their wishes. The father proposes that he alone makes major long-term parenting decisions for the children. The precise terms of the order sought by the father are set out in the Second Further Amended Response filed with leave on 17 April 2025 (Exhibit 9).
The Independent Children’s Lawyer (“ICL”) proposes that the mother have sole responsibility for major long-term parenting decisions and that the children live with her. After a moratorium of no time for six months, the ICL proposes that the father spend two hours each alternate weekend with the children supervised at a contact centre. The precise terms of the order sought by the ICL are set out in Exhibit 5.
BACKGROUND
Before turning to the issues that will inform the making of a parenting order that is in the children’s best interests, it will be helpful to set out some background.
The mother was born on [redacted] 1984 and works as a teacher’s aide on contract and has a history of employment in childcare. The mother lives with her partner, Mr E, who is employed in the pest control industry. The mother and Mr E commenced a relationship in February 2024 and commenced cohabitation in or about August 2024 when the mother moved into Mr E’s townhouse at Suburb B, City K, in Southeast Queensland. Mr E’s townhouse is in the same townhouse development as her previous residence where she had lived with the children for three years until late 2023 and thereafter until she moved into Mr E’s home.
Mr E has two children, namely, F, aged 10 and G, aged five. Mr E reportedly has a very good relationship with his children’s mother, and their children live in a week about arrangement.
The father was born on [redacted] 1983 and has not been employed for over 10 years. The father lives in the same suburb as the mother.
The mother and father commenced a relationship and began cohabiting in 2005, married in 2008, and separated on a final basis on 6 June 2018. They are not divorced.
In or about late 2014, the father commenced receiving a disability support pension because of his depression and anxiety. It is unclear what the father’s symptoms were at this time, but he has remained on a disability support pension for chronic depression and anxiety, seemingly, with no review, according to the father.
A protection order was made on [redacted] 2015 and expired on [redacted] 2017. The mother was the aggrieved and the father was the respondent.
The mother left the former matrimonial home with the children on or about 5 June 2018 and was placed in emergency accommodation in City L, about eight hours drive to the north of their then residence. The mother alleged that the father had subjected her to years of coercive and controlling family violence including physical assaults and threats to commit suicide. The father denied the allegations and alleged that he had in fact been the victim of the mother’s violence.

On 16 July 2018, the father commenced proceedings in the Federal Circuit Court of Australia (as that court was then known). The father did not see the children for about three months after separation. The circumstances of the mother’s departure from the former matrimonial home remained a source of complaint by the father during the current proceedings.
A further protection order was made [redacted] 2018 and expired on [redacted] 2023. It was made by consent without admissions. The mother was the aggrieved and the father was the respondent. The children and the mother’s parents were also named as protected persons.
On 2 March 2021, after several days of evidence during a contested trial, an order was made by consent for the children to live with the mother, the parents were to have equal shared parental responsibility and in the absence of agreement, for the children to spend gradually increasing block time with the father, so that by July 2023 the children were spending time with him from 3.00 pm Thursday until the commencement of school the following Monday each alternate week. Immediately prior to that, the father was spending time with the children each alternate weekend from the conclusion of school Friday until the commencement of school Monday and each alternate Wednesday from the conclusion of school until the commencement of school Thursday.
In September 2023, the father withheld the child, Y, and in October 2023, the father withheld the other three children. The father alleged that the mother had excessively disciplined two of the children.
On 24 October 2023, the mother commenced proceedings seeking recovery of the children.
On 11 December 2023, an order was made by consent for the children to live with the father and spend two hours professionally supervised each Saturday with the mother at a contact centre. The mother contended that the only reason she agreed to the order was so that she could at least see the children.
The mother has been spending professionally supervised time with three of the children each Saturday, initially for two hours, but since 31 August 2024 for only one hour given the cost of supervision and the father’s failure to pay his one half.
Y has not spoken to or spent time with the mother since 20 January 2024.
The trial was due to commence on 17 March 2025 but was adjourned because the father’s legal representatives were granted leave to withdraw on the first day of trial.
The adjourned trial recommenced on 7 April 2025 but was again adjourned when the father’s counsel collapsed and was taken to hospital.
The adjourned trial was mentioned on 8 April 2025, and recommenced on Friday 11 April 2025, with the father having retained new counsel. The trial concluded on 17 April 2025.
At the commencement of the trial, an oral application was made by the father for the children to again meet with the ICL to express any views they might have about the possibility of splitting the siblings in their living arrangements.
The mother and the ICL opposed any further interview. The ICL confirmed that she had met with the children in the presence of the Family Report writer in May last year and, given the extent to which the children have been exposed to the conflict between their parents and the numerous interviews with various persons to which they had been subjected, it was submitted that a further interview would not be in the children’s best interests.
The legal representatives jointly conferred with the Family Report writer, Ms M, who voiced strong opposition to any further interview with the children and opined that it would be traumatic for the children to be informed of the possibility of them being split. The application by the father was not pressed.
The mother has funded her own legal costs, and her estimated legal fees and disbursements are $186,000.
The father is legally aided and Legal Aid Queensland was expected to pay legal fees of about $30,000.
The ICL’s legal fees are estimated at $43,000.
APPLICABLE LEGAL PRINCIPLES
Parenting proceedings are regulated by Pt VII of the Family Law Act 1975 (Cth) (“the Act”). In addition, s 43 of the Act requires the Court to have regard to several matters including:
(a)The need to protect the rights of children and to promote their welfare; and
(b)The need to ensure protection from family violence.
Every parenting decision requires the application of the relevant parts of Pt VII of the Act which sets out the objects and matters that must be considered when determining what parenting order is proper.[1]
[1] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects of Pt VII of the Act are set out in s 60B and are to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the United Nations Convention on the Rights of the Child.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA of the Act).
The best interests of the child are determined by reference to the matters set out in s 60CC of the Act and include: arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child; any views expressed by the child; the developmental, psychological, emotional and cultural needs of the child; the capacity of each person who has or will have parental responsibility to provide for the child’s needs; the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and in considering those matters, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
Section 60CG of the Act imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. Examples of such behaviour include assault, sexually abusive behaviour, stalking, repeated derogatory taunts, intentional damage or destruction of property, unreasonably withholding financial support needed to meet reasonable living expenses of the family member or his or her child at a time when the family member is entirely or predominantly dependent on the person for financial support, preventing the family member from making or keeping connection with his or her family or friends, or unlawfully depriving the family member from his or her liberty, etc.
Abuse in relation to a child is defined in s 4 of the Act and includes a sexual assault or involving the child in a sexual activity in which the child is used, directly or indirectly, as a sexual object, or causing the child to suffer serious psychological harm, including by subjecting or exposing a child to family violence.
In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities,[2] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[3] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[4] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[5]
[2] Evidence Act 1995 (Cth) s 140.
[3] M v M (1988) 166 CLR 69 at 77 (“M v M”).
[4] Ibid.
[5] Ibid; N and S and the Separate Representative (1996) FLC 92–655.
The High Court in M v M explained at p. 78, the nature of the risk (in that case involving a risk of sexual abuse) in the following terms:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
When assessing the nature and magnitude of a risk posed by a parent or other person, all relevant evidence must be considered as part of the “matrix of evidence”[6] to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[7] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[8] Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.[9]
[6] Eastley & Eastley (2022) FLC 94-094, [31] (“Eastley”).
[7] Johnson & Page (2007) FLC 93–344 at 81,890–81,891, [68]–[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen (2022) FLC 94-092 (“Isles”) but not on this point which was subsequently confirmed by Eastley.
[8] Isles (fn 7) at [7].
[9] Ibid at [81].
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[11] on each and every factual dispute.
[10] Baghti & Baghti [2015] FamCAFC 71.
[11] M v M (fn 3) at 76.
Each parent has parental responsibility (i.e. all the powers, responsibilities, and authority which, by law, parents have in relation to a child) for a child subject to any order made by the Court (s 61C of the Act).
Section 61D of the Act provides that a parenting order can deal with the allocation of responsibility for decision making about major long-term issues, being joint or sole decision making in relation to all or specified major long-term issues. Major long-term issues mean issues about the care, welfare, and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Where an order is made for joint decision making about major long-term issues, parents are required to consult each other in relation to each such decision and make a genuine effort to come to a joint decision (s 61DAA of the Act). Where a decision is not a major long-term one, there is no such requirement to consult with the other parent (s 61DAB).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.[12]
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF PSYCHOLOGICAL OR EMOTIONAL HARM TO THE CHILDREN?
[12] Banks & Banks (2015) FLC 93–637.
Father’s history of mental illness
The father’s history of mental illness is an important aspect to consider when determining the issue of the risk he poses to the children. Unfortunately, my task is made more difficult as there is no recent medical or psychiatric evidence for the father.
It is not in dispute that the father has a long history of depression and anxiety and that he has been receiving a disability support pension since 2014 because of these conditions.
It seems that in 2014 there was an escalation in the father’s symptoms culminating in an incident on 27 November 2014, where the father threatened to self-harm. The father was in possession of a knife. The mother called the police and ambulance, and the father was transported to hospital where he remained as an inpatient for at least two weeks (I note that the father told the Family Report writer that it could have been for as long as a month). At the time, the father was given differential diagnoses including Major Depression with psychotic features and schizophrenia. The father was prescribed anti-psychotic medications, Solion and Risperidone, and a sedative, Circadin, and discharged with follow up through the Adult Mental Health Service. One month after his discharge from hospital, the father ceased attending follow up appointments and ceased taking the medication.
It is unclear whether the father consulted any further medical practitioner in relation to his mental illness before attending upon a General Medical Practitioner (“GP”), Dr N, in November 2017.
According to the mother, the catalyst for the parents’ separation in 2018, was an escalation in the father’s coercive and controlling behaviour involving damage to property and physical assault of the mother. The father denied these allegations.
As part of the previous court proceedings, the father was assessed by Dr C, consultant psychiatrist, on 4 February 2019. At that time, the father was regularly seeing his GP, Dr N, and a psychologist, Ms O, monthly. The father also had the support of his three sisters who were at that time supervising his weekly visits with the children. In the current proceedings, there was no mention of whether the father continued to receive any support from his family. None of them were witnesses.
The father acknowledged to Dr C that he had a history of depression but denied any suicidal or homicidal ideation. The father alleged that the mother had a history of rapid mood swings but made no suggestion that she was a risk to the children. Indeed, he proposed at that time that the children live in a week about arrangement with the mother and himself.
During the current trial, the father agreed that the mother was not abusive to the children during their relationship. The father said that “[a]ll she did was smack their bum” and he did not regard such acts as abusive. From his perspective, that just indicated different parenting styles.
In his report, Dr C noted that the father had been the victim of physical violence from his father when growing up but that the father denied this had affected him. Dr C also noted that the father’s father and grandfather had both died by suicide.
Dr C found no evidence of psychotic phenomena in the form of hallucinations or delusions at the time he examined the father. He opined that the father had reasonable insight and that his judgment was fair. Dr N confirmed to Dr C that the father regularly and conscientiously attended her practice and that she had no concerns about his care and attention to the children. Dr N described the father’s history of significant pain because of an Inguinal hernia which was repaired in October 2017 and for which he had been prescribed a range of analgesic medication. Dr N opined that the father was mostly stable apart from his hospital admission (it is unclear if this is a reference to his 2014 admission or the October 2017 admission). Dr N noted that the father was in receipt of a disability support pension for chronic symptoms of depression and anxiety but not requiring active treatment at that time.
At the time of his report in 2019, Dr C opined that the father suffered from “a chronic Major Depressive Disorder for which he is maintained on the Disability Support Pension” but was “currently stable and capable of having an on-going loving relationship with his children”. Dr C noted that the father was “well maintained and reviewed” by Dr N.
It is unclear when the father ceased attending upon Dr N.
As earlier noted, the previous proceedings were resolved by consent and a parenting order was made on 2 March 2021.
Father’s allegations post 2 March 2021
Within a week of the 2021 parenting order, the father was making complaints to the Department of Child Safety, Seniors and Disability Services Queensland (“Child Safety”), as it is now known, about his concerns for one or other of the children. During the current proceedings, the father conceded that he had been dissatisfied with the result of the 2021 proceedings, despite consenting to the order. In his view, he should have been the children’s primary carer and they should have spent five nights per fortnight with the mother.
On 6 April 2021, the father told the children’s psychologist, Ms D, by text message that X was “ready to open up to you” and that he (i.e. the father) had organised for the child to call “kids helpline”. During cross-examination, the father conceded that he had given X a phone and entered the Kids Helpline number into the phone. It seems that rather than convey to the child that a decision had been made about the children’s care with the consent of the parents, the father encouraged the child to be dissatisfied with the arrangements.
On or about 16 September 2021, the father commenced consulting Ms D as a client. Ms D’s notes reveal that the father’s father had been physically abusive to him and that he struggled with anxiety and sought assistance in managing his anxiety. The father disclosed to Ms D his stress over the children’s health and safety which he felt was exacerbated by the lack of communication with the mother. Throughout 2021, 2022 and 2023, Ms D’s notes reveal that the father was struggling with stress and anxiety. The notes are replete with the father’s criticisms of the mother. Nothing in the notes reveal any attempt by Ms D to allay the reasons for the father’s escalating anxiety. For example, when the father conveyed his stress about one of the children having school sores, one might have expected an experienced therapist to point out that lots of children have school sores and it is not a major issue. Ms D’s suggested strategies of meditation and having a positive attitude seem to have had little effect in allaying the father’s anxiety.
Ultimately, the father did not rely upon Ms D’s two affidavits filed in these proceedings and sought a restraint, directed to himself, from taking the children to see her in the future. The father conceded during the current proceedings that it was unwise for Ms D to treat both the children and him as it created a conflict for Ms D between her obligations as a therapist to the father and her obligations as a therapist to the children.
It is not in doubt from the material that is before me that Ms D became an advocate for the father, and it seems likely that she may have breached professional boundaries in undertaking a role as a therapist for the father and the children and seemingly becoming more than a therapist to the father and children.

In the current proceedings, the father conceded that he had been photographing any marks or injuries on the children for many years, although he was uncertain if he was doing so prior to the 2021 order. The father tendered numerous photographs of minor scratches and bruises on the children (Exhibits 16 and 17). In several of the photographs, the father appears to be holding down one or other of the children’s legs to photograph it (I assume what appears to be an adult hand is the father’s hand as he said he took the photographs). It is not in dispute that all the children enjoy sport and outdoor activities and consequently it is hardly surprising that they would have tumbles and scrapes from time to time. The father subjected the children to this constant documenting of any marks or injuries when, even on his case, many of the marks were minor.
What became apparent during the trial is that over several years the father became fixated on the children’s health and safety, particularly Y, and his focus on such matters appears to have escalated.
For example, from about late 2020, the father became convinced that Y was allergic to dairy products, yet he was resistant to undertaking testing options and was reluctant to start what is described as a “dairy pil [sic]” seemingly prescribed by Dr Q on 5 August 2022. Throughout the current trial, the father maintained various allegations against the mother, including that she had been “forcing” Y to consume dairy products, failing to obtain necessary medical attention for the children, being negligent in her attention to the children’s medical needs, etc.
During Y’s interview with police on 6 September 2023 (Exhibit 2), the child referred to the mother “tricking” him by giving him a “tablet” so that he could eat dairy “but it does not [work]”. When cross-examined about whether he was the source of the child’s information that the tablet prescribed for Y’s possible dairy intolerance did not work, the father obfuscated, but his answers demonstrated that he had dismissed the efficacy of the tablet in the child’s presence, thus undermining the mother in the child’s eyes.
17 May 2022 incident
It will be recalled from earlier in these reasons, that a protection order was made in favour of the mother against the father on [redacted] 2018 which did not expire until [redacted] 2023. There were eight conditions to the protection order, one of which prohibited the father from attending the children’s schools unless agreed to in writing or permitted by a court order.
On 17 May 2022, the father removed Y from school without telling the mother and did not return him to the mother until well after the conclusion of school that day. Understandably, the mother was very worried. The father took Y to see Dr R, a paediatric gastroenterologist, who performed a gastroscopy on the child at the Queensland Children’s Hospital.
The father was charged by police with breaching the condition of the protection order which prohibited him from attending the children’s school without written agreement with the mother. It was evident throughout the trial that the father continued to feel aggrieved about being charged. To resist prosecution, the father relied upon, among other things, a text message from the mother from 20 October 2021 which he contended provided the necessary consent. The text message from the mother was sent in the context of the father having sent hundreds of text messages and emails to the mother about the children’s physical and mental health and emotional well-being. In the text the mother said:
… the parasites have been dealt with and [Ys] poos have changed, I do not understand what you are now concerned about, however if you feel the need to take him to a specialist then that is up to you.
Ultimately, the charge against the father did not proceed. It is unclear why.
In relation to Y’s health, evidence from Dr R contradicts much of what the father alleges, other than that the mother did not immediately collect a stool sample from Y when first suggested in February 2021. Dr R’s letter dated 23 July 2022 (part of Exhibit 16) is informative as it demonstrates that while the father had concerns on 26 November 2020 about Y possibly having an intolerance to dairy, the symptoms described and thought possibly to be related to dairy were rejected as establishing a dairy intolerance because there was “not a consistent association”. When Dr R next saw Y on 3 February 2021, his examination of Y is described as “unremarkable”. On 30 March 2021, a stool sample indicated that Y was suffering from “giardia” (an intestinal infection caused by a parasite), and Dr R prescribed an antibiotic, Flagyl. A follow up stool sample on 29 May 2021 was “essentially normal”. On 22 July 2021, blood tests showed that Y had an immune deficiency (IGA deficient) which meant he was at a higher risk of coeliac disease. Dr R spoke to the mother on 21 October 2021, and she indicated that she was happy for Y to have a gastroscopy to exclude coeliac disease. Dr R put a request form in for that to be done at the Queensland Children’s Hospital (a public hospital).
Y underwent the gastroscopy on 17 May 2022 (when the father removed Y from school without the mother’s knowledge or consent). The results of the gastroscopy were normal, and the biopsies were normal, excluding coeliac disease. Dr R’s letter states that Y was presenting as well and did not require any further medical intervention at that time.
Contrary to the father’s evidence at paragraph 53 of his trial affidavit, Y did not undergo “surgery last-minute … for a parasite in his stomach”. As Dr R’s letter confirms, the gastroscopy procedure was undertaken to exclude coeliac disease, a procedure the mother had agreed to on 21 October 2021. There was nothing urgent about the procedure and ultimately the results were normal.
The whole saga which led to the father being charged with a breach of the protection order was totally unnecessary but brought about by the father not the mother.
Father’s involvement of the children in the dispute
The father has a long history of directly involving the children in the dispute.
On 18 May 2022, the father took the child, W, to see Dr Q and the child, Y, was also present. The father asked Y to tell the doctor what had happened at the mother’s house that morning. During cross-examination, the father insisted that Y wanted to tell the doctor that the mother kept leaving him home alone with the younger children. The medical notes record the following:
in with dad […]
dad asked [Y] his brother to state what happened at the house this morning .[Y] sates that his mum [i.e. the mother] left him and [W] in the house alone to take [Z] to school , so [Y] had to take care of [W]. ?was away for ?duration .happened this morning
dad would like this documented
states has informed child safety reg his concerns about care and this was documented
informed intake team child safety due to concerns raised
[a named] intake officer
who also spoke to dad regarding his concerns
dad denies any other new marks
agre will speak to child safety in detail
(As per the original)
Allegations about the mother leaving Y home alone to care for the younger children is a repetitive theme in the father’s numerous allegations against the mother and one that was frequently discussed by him in the presence of the children e.g. during the police interview on 18 August 2023 when Y was present.
When asked about the allegation of leaving Y alone, during the police interview with the mother on 7 September 2023 (Exhibit 3), the mother denied leaving Y home alone and insisted that if she went to Coles (which is next door to her home), X was also at home. Understandably, the police had no issue with the mother doing so given X’s age. It is also noteworthy that the children’s schools are very close to the mother’s residence.
May 2023 allegation
The escalation in the father’s focus on injuries to the children continued into 2023.
The children had been in the care of the mother on the evening of 25 May 2023 and went to the father on 26 May 2023. The 26 May 2023 was a school day.
W and the other children saw Ms D on the evening of 26 May 2023 between 5.00 pm and 7.00 pm. It became apparent by the questions asked of the mother during her cross-examination, that W purportedly told Ms D that the mother had dragged him up the stairs (no suggestion of being dragged up by his leg or foot which later becomes the allegation) and showed Ms D “light bruising on his left shoulder blade, purple/black bruising down his spine and on top of both buttocks … and purple/black bruising on the top of his right arm that could be from an adult sized hand grip … and a very inflamed red eye”. While Ms D’s therapy notes were tendered as part of Exhibit 19, there are no notes for the child, W. However, Ms D’s notes do reveal that the allegation was raised with X and Y that evening.
The entire record in Ms D’s notes for X on 26 May 2023 record the following:
He doesn’t know why but Mum got angry at [W] and dragged him up the stairs. He was really upset and mum was pretty angry so they all went to bed.
The entire record in Ms D’s notes for Y on 26 May 2023 record the following:
Mum tipped [W] upside down and dragged him upstairs by his foot and put him in his room. [W] was very sad and crying. [Y] felt sad for him and thinks [the mother] really hurt [W] because there are black finger marks on his legs. I thanked him for telling me and trying to help [W] feel better.
(Emphasis added)
It is curious that Ms D’s notes only deal with the issue of bruising on W when supposedly she was providing therapy to the children. Ms D has no expertise to proffer any opinion about the bruising. Appropriately, no reliance was placed by the father’s counsel on Ms D’s lay opinion but her apparent attempt to do so raises further questions about her observance of appropriate professional boundaries.
At 8.07 pm on 26 May 2023, the father sent the mother a text message and two photographs depicting W’s back, buttocks, and right arm from just above the elbow to the shoulder. The text message to the mother said:
[W] has these bruises on him. they’re quite concerning. Do you know how they have happened.
The father followed up at 8.08 pm with a further text message which said:
I know you haven’t replied in the past concerning any bruises, black eyes, burn marks on [W] however I thought I would still ask.
The father photographed the bruising on W’s back and arm (part of Exhibit 16) and Exhibit 17 purports to be an enhanced photograph (copy) of the bruising on W’s back. Exhibit 17 has dark red discolouration on the upper and lower back but it was conceded by the father’s counsel that the discolouration was a product of the enhancement rather than a depiction of injury. The child is naked in the photograph. The father included the photos of the child’s back and arm in the text message to the mother.
The follow up email from the father was accusatory in tone and unhelpful. Given the history between the parents, and the literally hundreds of emails and texts sent to the mother prior to this point, it is perhaps unsurprising, but nevertheless unhelpful, that the mother did not respond.
On 27 May 2023, the father took W (and possibly some or all the other children) to a GP, Dr S. Dr S’s notes reveal the following:
came home from mum’s last night
had therapy 5-7pm last night – psychology –[Ms D]
then dad put him in the bath
noticed bruising in several areas
[W] wasn’t able to tell him how he got the bruises and ‘shut down’ when asked about them
no communication from mum about the bruises
has come back from mums with other minor injuries – bruises and burns with no explanation
dad is not accusing mum but worried about how the bruises got there and about mum not communicating
…
O/e
bruise 1
blue/green bruise – linear – down R posterior arm, with several patchier bruises within the linear bruise
could be consistent with finger marks but i am not able to say that this is the cause due to not being forensically trained
bruise 2
top of natal cleft on L side – blue / green – about 2-3 cm diam
bruising 3
lower lumber back mainly to L of midline
blue / green bruising
dad has photos
asked [W] neutrally if he knew how he got the bruises – he shook his head and didn’t answer
advised dad to keep the photos in more than one place / save them
…
(As per the original but emphasis added)
It is significant that there is no record in Dr S’s notes of any issue with W’s eye or bruising on his legs which Y referred to as “black finger marks”. If there had been, I have no doubt they would have been documented by Dr S. It is also significant that the father told Dr S that W had not said how he sustained the bruises and that W, when asked by Dr S, indicated he did not know how he sustained the bruises.
At 10.06 pm on 27 May 2023, Ms D sent an email to the mother as follows:
Hi [the mother]
When I saw [W] he had severe bruising down his spine and under his arm can you tell me how this happened?
(Emphasis added)
The evidence does not support Ms D’s descriptor that the bruising was “severe”. It is also curious that Ms D sent the email enquiring how the bruising had occurred when it was put to the mother during cross-examination that W had told Ms D that the mother had dragged him up the stairs.
On 30 May 2023 at 9.58 am, the mother responded to Ms D’s email as follows:
Hi [Ms D],
I hadn't seen the bruising until yesterday but the only thing I can recall is Thursday night he fell off the bed and fell into the side table, I saw nothing at the time but there have been no other instances where he could have gotten the bruises as far as I know.
Notwithstanding the mother’s response, the father’s allegations that the mother physically abused W on or about 25 May 2023 have continued unabated and have even escalated.
The mother’s trial affidavit addresses the allegations as follows:
101. [The father] has alleged in [his] affidavit filed 6 December 2023 that in May 2023 I picked [W] up by his ankles, dragged him up the stairs and threw him on the floor of his room and there were bruises on his spine and lower back.
102. During the night of Thursday 25 May 2023 to Friday 26 May 2023 [W] wanted to sleep in my bed and I agreed.
103. At some stage during the evening of 25 May 2023 whilst I was downstairs, I heard [W] cry out. I went to my bedroom and found him on my bedroom floor.
104. [W] advised me and I verily believe that he had fallen off my bed in his sleep. He told me he had hurt himself on the bedside table which was next to my bed, I noticed that the top of the table had been knocked and was displaced.
105. I comforted him and he went back to sleep.
Part of Exhibit 8 is a photograph of the bedside table, the top of which the mother said during cross-examination was askew when she went upstairs to investigate after hearing W cry out and she found him on the floor.
The anxiety the father experiences around any bruising or minor injury observed on the children is evident by his persistent photographing of them, for what purpose one can only surmise but the inevitable consequence of his fixation on such matters is to draw the children into his anxiety and indirectly to the dispute between the parents. The child, Y, appears to be particularly vulnerable to the father’s anxiety over such matters.
Y’s disclosures to school
On or about 14 July 2023, Y told one of his teachers that the mother “drags him up the stairs by his feet” and that “she gives his younger brother black eyes”. The school records note that Y had no visible injuries, nor did his brother. Nevertheless, as a mandatory reporter, appropriate contact was made with Child Safety. The school records reveal that contact was made with the mother who “seemed shocked and was speechless”. It was noted that her voice sounded teary thereafter as she explained that whenever Y has marks or scratches, the father asks questions. The mother admitted to being “strict” with the children but denied ever dragging her son upstairs or giving her child a black eye.
During the current trial, the father was highly critical of the school telling the mother what Y had said and dismissive of the mother’s denials. During cross-examination, the mother admitted to speaking to Y over the weekend following contact by the school but contended she was very careful in her approach not to make any accusations. Rather, the mother contended that she was trying to understand things from Y’s perspective. The mother conceded that at times she has dealt with the children’s resistance to going to bed by putting her hands under their arms and walking them upstairs, giving the impression of ‘frog marching’ them. After the school’s intervention, the mother said she ceased doing so. In the case of Y, she said that if he resisted bedtime, she would take the other children upstairs and leave Y downstairs for a while so that he had time to reflect and could join her and the others when he was ready. The mother’s change in approach seems reasonable in the circumstances. I reject the suggestion that the mother was in some way punishing or isolating Y by adopting such an approach.
On 17 July 2023, the school checked in with Y and he said that the mother had spoken with him about why he would say what he had and that she said she had not done so. Y repeated that she did do these things. Y expanded upon what he had previously said on 14 July 2023. The school records reveal the following:
Mum said [a person from the school] rang and spoke to her about what I said on Friday. Mum was sad and said she didn’t, but she did.
Mum wanted us kids to go to bed so that she could watch a movie, I stayed on the stairs and when she told me again, I said no. Mum dragged me up the stairs by my feet. My head was bonking on the stairs and she said “that’s what you get for not going to your room”
Mum gave [W] black eyes.
Dad knows Mum hurts us and we have a therapist. Dad says I should tell her everything.
Mum has pushed [X] (age 13) into the wall when he was sneaking his money. Mum also pulls his ear when he tries to outsmart her.
Back in term 2 Mum was pulling our hands up the stairs and shoved us into our room.
When there are other people around or Mum is with friends, she is happy and everything is ok. When she is alone, that when she gets mad and hurts us.
[Y] said that he had a good weekend with his Mum but he misses Dad, after having spent longer than usual with Dad during the school holidays.
This conversation felt rehearsed and [Y] did not appear distressed in any way.
There is no evidence of any physical injuries to [Y] or [W] - now or previously.
There have been no previous concerns surrounding the level of care provided by either parent.
There has been a recent change in custody arrangement, children now seeing Dad fortnightly rather than weekly.
…
(As per the original but emphasis added)
18 August 2023 police interview
On 18 August 2023, the father took Y to the local police station where he encouraged the child to tell police about the mother’s alleged physical abuse. Exhibit 1 is the bodycam footage of the excruciating hour-long interview during which the father made all sorts of allegations against the mother in front of Y, including that Y “has been suffocated, choked and could not breathe”. Police records for this date note that the father said this incident had happened on 14 August 2023. All the allegations attributed by the father to the children and his own allegations, including that the mother is a liar who fabricated allegations of domestic violence against him, were repeated ad nauseum by the father in front of Y. At one point, the father prompted Y to tell the police officer about an alleged incident involving the mother throwing Y on a guitar. Y responded by saying that “she did it on purpose”. The father added, “bit hard to throw someone not on purpose”.
Throughout the recorded interview, Y appeared non-plussed. At times he yawned and stretched. At other times Y was smiling. At no point did he look frightened or uncomfortable even when recounting allegations against the mother such as:
She dragged me up the stairs [and how did she do that?] by my hand and feet ... she put me to the ground, pushed me to the ground and put all her weight on my tummy ... made it hard for me to breathe I wiggled … but then she pulled me back and I was sitting ... she pushed my arms to my neck so I was choking myself and she said “It’s not my fault, I am, I’m choking you because you didn’t listen to me”.

When asked by the police officer when this had occurred, Y initially said he did not remember and then said that it had happened “last week” and later in the interview said it had happened “a couple of weeks ago”. The father prompted Y to say additional things that the father said the child had told him. On and on the father goes, repeating his litany of complaints against the mother. It was appallingly abusive to have exposed the child to this behaviour. When challenged about his behaviour during cross-examination, the father blamed the police officer. It was even suggested on his behalf that given the father’s experience of alleged unfair dealings with police, the father felt constrained by fear to insist the interview occur in the absence of the child. I reject the father’s attempt to deflect responsibility. It does him little credit to do so.
I accept the submissions made on behalf of the mother, that the child’s reactions throughout the interview indicated that it was nothing new for the child to hear the father speak in such a way about the mother in his presence.
During the interview, the father also told the police officer that he had not taken Y to the doctor despite his allegation that the child had been suffocated, choked, and could not breathe. The father’s statement is inconsistent with what police records note the father told them on 13 September 2023, namely that the father “states their sons, [Y] and [W] are being choked and suffocated by the mother. [The father] states there are Drs reports documenting this”. There is no medical evidence documenting that Y and/or W had been choked and suffocated by the mother.
September 2023 withholding Y
On 4 September 2023, the father instructed his solicitor to write to the mother advising that he would not be returning the children to her care because of disclosures made by the children that related to “excessive physical discipline and emotional abuse”. The mother was further advised that the children would not be attending school until an investigation by Child Safety and Queensland Police Service had concluded.
On 7 September 2023, the mother was interviewed by police and informed that there would be no further action regarding the complaint against her.
On 9 September 2023, the children were returned to the mother’s care where they remained for the following week. The mother contends that all the children had a happy and pleasant week with her. Contrary to the 2021 order, the father had insisted that the changeover occur at the police station.
On 13 September 2023, at the father’s request, police attended at his home and spoke to him about his request for a protection order against the mother. The police notes of this attendance form part of Exhibit 19 and include the following:
… [The father] is wanting to make an application for a DVO against … [the mother]. [The father] states the [the mother] has a current DVO against him that expires in October. [The father] states that their sons, [Y] and [W] are being choked and suffocated by the mother. [The father] states there are Drs reports documenting this. … [The father] wanting to find out about how to protect the son from the mother and possibility of a DVO. [The father] states during a recent handover of children to the [mother], [Y] fought to stay with [the father] and was extremely fearful of his mother. … [The father] was unable to provide any allegations of domestic violence occurring between himself and [the mother] however stated the child harm he believes [the mother] is committing on their children is taking an emotional toll on him. …
(As per the original but emphasis added)
The reference to W being choked by the mother represents an escalation in the allegations by the father. There is no evidence to support the father’s statement to police as recorded by them. The father’s admission that his belief that the mother was harming the children was taking an “emotional toll” on him is noteworthy, particularly given his history of anxiety and depression.
On 21 September 2023, the father again attended upon Dr S with Y. The father confirmed during cross-examination that W and Z were also present, and this is consistent with Dr S's notes of the consultation. It is clear that Y (at least) was present throughout the entire consultation because the doctor’s notes record that “dad offered to go out but [Y] wanted him to stay”. Dr S’s notes go on to reveal the following:
…
complex custody issue wtih parents
police and child safety involved with allegations from [Y] about physical / verbal abuse from mum
didn't meet ( so far) police level of requirement for enough evidence
so ongoing shared care with both parents
[Y] doesn't want to go but dad has had different advice about whether [Y] can refuse or not so currently still going
[Y] reports feeling sad
having new panic attacks
has had legal advice and ongoing legal advice
issues with school bc they informed mum and let [Y] go home with mum, after [Y] confided in them that mum had abused him physically
dad is trying to get a safety plan at school
mum is in the P+C at school so this makes it more complicated
…
(As per the original but emphasis added)
This consultation is yet further evidence of the father’s lack of inhibition in discussing the parental dispute and allegations about the mother in front of the children. When cross-examined about inappropriate involvement of the children in such discussions, the father purported to recall that Y left the consultation room and that before he did, anything sensitive was written down by the father and given to the doctor. I do not accept the father’s evidence. There is no suggestion that any written document from the father was produced as part of the subpoenaed material from Dr S’s surgery. Further, the father had no qualms about discussing such matters in front of the child at the police station on 18 August 2023. Lastly, it seems likely that had the father provided her with written information or Y left the consulting room, Dr S would have referred to that in her notes given the level of detail included.
On 24 September 2023, the father failed to return the child, Y, to the mother’s care. The other three children returned to the mother’s care. Again, the changeover, at the insistence of the father, occurred at the police station.
October 2023 withholding of all the children
On 1 October 2023, the father collected X from near the mother’s home at 9.00 am contrary to the 2021 parenting order which provided for changeover to occur at 4.00 pm. The father had requested changeover at 9.00 am and the mother had refused. I am satisfied that the father had orchestrated for X to defy the mother and to meet him at 9.00 am. On 2 October 2023, the father failed to return the child, X, to his mother’s care.
On 5 October 2023, the father wrote to the school stating that Y was no longer living with the mother and that the mother had been interviewed by police for “multiple allegations made by [Y]” including leaving him alone at home with his younger siblings, constantly feeding him dairy, being overly physical with disciplining him and W including “choking and suffocating”. The father stated that as W and Z were not due to return to him until 12 October 2023, he may come to school and do his own “safety checks” on them as he had done in the past. The father asked the school not to notify the mother of his communication stating that “I strongly believe if notified about this email there could be severe consequences to [Z] and [W]”.
On 9 October 2023, the father again emailed the school. He informed them that as he was passing the school front fence, he saw W who ran up to him and appeared extremely happy. The father asked him how things were at the mother’s place and the child “changed his demeanour and straight away said that Mum had hurt him and dragged him up the stairs again”. The father said he had “checked” the child and noted a “slight bruise … on the bottom left”. The father asked the school to do a safety check.
The school responded to the father on 10 October 2023, informing the father that they had checked on W and had no concerns. The email continued as follows:
…
As an aside, it would be remiss of me not to raise with you what occurred yesterday. Whilst I know that you are [W]’s father, not everyone does, and to someone looking at your interaction yesterday with [W] through the fence, it rightly triggered some concern to my staff given you were seen lifting his shirt/lowering his pants slightly from outside the school grounds through the fence. In the future, if you have an interaction with [W] through the fence, and you have any concerns it is going to be best if you please raise that with us directly, and we’ll ensure we investigate your concerns. Whilst I know that you were acting protectively, this may not have initially been seen that way by my staff, and more so has the potential for our community to also perceive your actions in a negative way.
The father’s response was hostile and dismissive:
"Lower my child's pants". Please. Do you have documents or evidence to prove I did such a thing. Yes I lifted up his shirt and saw a bruise on the bottom left of his back and yes I checked his bum but at no stage did I lower his pants.
Details matter and if you're going to write such a thing you better have proof because I assure you at no stage did I lower my child's pants. I did however pull the waistline of his shorts back to check his bum where only I could see.
I will continue to do my own safety checks on my children when I find it necessary. My child told me what he told me in the situation he told me. I simply couldn't not just walk away.
What other people think or have a perception of does not trump my child's safety.
I'm glad the staff reported this, even if they did add a little GST. I also hope someone spoke to [W] regarding this matter.
The father’s response provides a good example of his complete lack of insight into the likely impact of his behaviour on W. The clear message was that the mother is not safe, and the message was exacerbated by the father “checking” the child. As it turns out there was, according to the father, “a slight bruise”. Rather than alleviate the father’s anxiety, the appearance of even a slight bruise seems to have exacerbated his tendency to panic.
On 10 October 2023, the father collected W and Z from school and advised the mother by text message that “our children will remain safe in my care for now” and he then withheld all four children from the mother contrary to the 2021 order.
From 11 October 2023, the father refused to allow the children to return to school for fear, he contends, that the mother would abscond with them. There is no evidence to support the father’s stated fear. The mother had consistently met her obligations under the 2021 parenting order. Indeed, apart from the first three months after separation in 2018, the father had been spending regular time with the children. The father kept all the children out of school for the remainder of term 4 of 2023. There was no justification for him doing so.
2024 school involvement
On 22 January 2024, the first day of the new school year, the father attended the younger three children’s school with them and raised various concerns he had about the school with the guidance officer. The school records reveal that the children became distressed, so the guidance officer suggested transitioning the children to their classrooms before resuming the conversation. The guidance officer noted the children’s increasing anxiety as the father began speaking to them about promises made, namely, a lunch date with Z, and finishing school early to spend time with Y. W became upset when going into his classroom, but the teacher was able to calm him. Z found it difficult to separate from the father because he was constantly going back and forward to reassure Z he would be picking her up that afternoon and engaging in conversations about picking her up early. Y settled very well but became upset when the father told him not to be sad and that he would pick him up early. The school records reveal that the father was “very anxious and overwhelmed with the transitions” of the children to their classrooms. The guidance officer then had a conversation with the father in relation to his various concerns and it appears that every effort was made to allay those concerns.
When cross-examined about events on 22 January 2024, the father was immediately hostile and dismissive of anything recorded by the guidance officer.
On 30 January 2024, the father had an altercation with the principal at the younger three children’s school. The school had a procedure in place for children exhibiting school refusal which involved them going to a room apart from their classmates so that they had time to regulate their behaviour without exposure to their peers. The room was called the “reboot” room. In the school records for this date, it is apparent that the principal had been called to the room because of the father’s behaviour. The notes include the following (Exhibit 19):
[Guidance Officer] had walked into Reboot [room] to observe [the father] speaking with … and …, he was visibly escalating as he was requested to leave the children for staff to transition to classrooms. [The father] was asked to move away from the children to speak to … but he refused. [Guidance Officer] observed children becoming upset as they witnessed [the father] heightening. Principal was called to room and removed [the father] to outside of room to discuss what was happening. Both [Z] and [Y] began to cry and ran out of the Reboot room.
P[rincipal] was called up to the Reboot room as … was concerned about the behaviour of [the father]. As P[rincipal] walked in, [the father] was quite heightened, and look[ed] at P[rincipal] and said “so you have called him in have you?” P[rincipal] asked [the father] to move outside, as the conversation that was occurring was not appropriate int he [sic] Reboot room, as it is a space for children to regulate. [The father] walked outside, and immediately claimed [the principal] was aggressive, and that he was not doing anything wrong. [The principal] explained to [the father] that the Reboot space was not an appropriate space to have the conversation he was having. … [The father’s] children then came out, and he wished to continue engaging in a heightened manner. [The principal] explained that [he] was not going to continue the conversation with the children present and stepped away. [The father] was again quite aggressive … mentioned … he was recording conversations … attempting to convince the children that this was the school’s fault. …
(As per the original)
When cross-examined about this incident, the father took issue with the school’s version. He denied he had been aggressive or heightened.
I accept the school’s account of the father’s behaviour given his previous direct involvement of the children in the dispute and his escalating anxiety reported elsewhere e.g. police records and Dr S’s notes. The father has demonstrated that he lacks a filter when discussing his complaints and allegations. The account about the father that he was attempting to convince the children that it was the school’s fault is also consistent with the father’s attempts throughout the trial to deflect responsibility for his own behaviour onto others e.g. the police, the doctor, etc.
Involvement of Dr S
On 9 February 2024, the father took Y to see Dr S. The child, Z, also attended the appointment. Dr S’s notes confirm that Y was seen with the father and Z. Y was refusing to go to school and was said to be suffering separation anxiety. The father said that Y did not want to leave him. Y became upset and said he did not want to talk about school anymore. The father spoke about Y seeing Ms D and his concern that her reports will not be “permitted” by the Court. The father said that Y did not feel “safe” at school and knows that the mother’s friends are there. The father complained that the school was not taking Y’s separation anxiety seriously and that the school had not apologised for what had happened when Y had disclosed the mother’s abuse and the school told her. The father disclosed that the school apparently feel threatened by him, but he felt they had taken the mother’s side. The father said the children want to change schools for a fresh start and to go somewhere where “mum’s friends don’t work”. This is yet a further example of the father’s exposure of the children to his complaints and anxieties. It is unsurprising, in the circumstances, that Z was also exhibiting school refusal issues.
On 31 August 2024, Dr S had a telehealth consultation with X. Dr S’s notes reveal the following:
…
feels too anxious to see mum
he has been texting her and asking if he could be excused from going, but she hasn’t been responding to his concerns
doesnt feel listened to
doesnt want to go
feels very anxious about going
…
Reason for visit:
Anxiety disorder
(As per the original)
This consultation resulted in Dr S providing the father with a medical certificate for X to avoid seeing his mother that day. The medical certificate stated only that X had a “medical condition” and was unfit to attend the contact centre to see the mother on that day. Dr S appears to have been inveigled into providing frequent medical certificates enabling the father to avoid fulfilling his parental obligation to ensure that X attended the supervised visits with the mother. Dr S provided medical certificates on 29 June 2024, 6 July 2024, 3 August 2024, 31 August 2024, 28 September 2024, 2 November 2024, 16 November 2024, and 6 December 2024. The medical certificates did not disclose what unidentified medical condition (lasting only one day) prevented X from attending the contact centre.
This direct involvement of X, by the father, in the decision of whether to see his mother or not was nothing new and placed him in an invidious position. For example, Exhibit 18 includes a photograph of a series of text messages on X’s phone between X and the mother on 20 March 2023. The father photographed the exchange and sent it to Ms D. The text messages are as follows:
The child: Mum but I don’t want to come back can you just let me stay with daddy for the day daddy said it would be ok why can’t you let me see him more can I please stay with daddy for the day
The mother: Honey like I just told you, both daddy and I have an agreement to follow
The child: That is not a reason mum stop being mean to me you can let me stay with daddy more you just don’t
The text exchange demonstrates that the mother was fulfilling her obligations as a parent. The father was not. Whether the child stayed longer with the father was a matter between the parents. The father’s behaviour directly involved the child in the dispute.
Child Safety involvement
Child Safety records reveal that between 2018 and June 2024, there were 19 child concern reports and one general enquiry. Contrary to the father’s understanding (he declined to read the Child Safety records despite having the opportunity to do so) and contrary to the mother’s recollection, Child Safety did question her about the allegations of physical abuse of W and Y.
Between 5 February 2024 and 8 April 2024, Child Safety Officers variously interviewed the mother at her home, X, W and Z at school and Y at the City K Child Safety Service Centre (he refused to be interviewed at school) and conducted two home visits with the father.
During an interview between Child Safety officers and X on 12 February 2024, X recalled hearing his parents fighting when his family were all living together. When asked about his mother, X said they had to go to bed on time every night. He referred to the mother “pushing” his siblings up the stairs. He said he only once saw his mother on top of Y, but he did not intervene, and he did not see any injuries. X said his mother would yell if the rules were not followed. He said that W and Z missed the mother but neither he nor Y wanted to see her. X said he missed his cousins (on his mother’s side of the family) and felt sad about not seeing his maternal grandparents.

On 21 February 2024, Y was interviewed by Child Safety officers. It was noted that Y repeatedly stated that his father did not hurt him. When asked if anyone had ever hurt him, Y said that his mother “choked me, and she dragged me up the stairs and she throws me on my bed and sometimes on the ground”. Y said that his mother dragged him up the stairs when he was getting his teddy bear and told him to get back to bed. Y said there were marks and bruises after this. Y said he did not want to see his mother again. Y spoke about swimming in Ms D’s pool even when not there for their therapy sessions.
On 27 March 2024, Child Safety officers spoke with W and Z. It was noted that when Z spoke about the mother she had a smile on her face. Both children spoke positively about spending time with the mother at the contact centre. W said it felt good to see his mother. Z said, “when we lived with mum she kept dragging [W] and [Y] up the stairs and hitting me”. Z said she did not want to see the mother any more than what she was currently seeing her but did not know why. Z spoke about going swimming at Ms D’s home and said the sometimes her father and Ms D also swam in the pool.
On 27 March 2024, Child Safety officers conducted a further interview with X. The school informed them that X had been in trouble that month for fighting. X said he was unsure how he felt about seeing his mother. At times during the interview, he said it was fine and he did want to see her but that it stopped him from going on sleepovers on Friday nights. At other times he said he did not want to see her and then at other times he said he did not care. X said he did not like the room in which he had to see his mother which was set up for younger children. X said he wanted to see his mother in a park but later said he would feel sad if he had to see her for more than two hours and unsupervised. He said that W would like it, but Y would not. He said W was excited to see his mother.
I am satisfied that Child Safety undertook a thorough investigation of the various allegations made, which included interviews with the parents, the children, the schools, and others. It is noteworthy that Child Safety were most concerned about the father’s inability to see how his actions and behaviours portrayed the mother in a negative light and how that emotionally impacted the children. Child Safety concluded that the father “presents with paranoia and fixations around the children’s safety and what he needs to do in order to keep them safe from harm”. Child Safety was concerned about the apparent isolation of the children by the father and that the father’s “mental health is a significant barrier for him to be able to place the emotional needs of the children first”. However, Child Safety concluded the father’s emotional abuse of the children was not a sufficient cause under protection legislation to remove them from his care.
Child Safety recorded an outcome of no immediate harm, but had ongoing concerns of perpetration of coercive control, coaching and parental alienation by the father.
The Family Report
On 27 May 2024, Ms M, a social worker, conducted interviews with the parents and the children and observed the mother with X, Z and W, and the father with all four children. Ms M spoke with Ms D on 29 May 2024 for about 20 minutes.
Ms M initially observed the father with the children in the main foyer where she noted that Y was hugging his father and appeared to be “quite anxious”. Ms M asked to speak with the father alone and noted that he appeared to be “physically shaking” and “worried” and he told Ms M that Y was “terrified” about seeing the mother and did not want to participate in an observation session with her. Ms M noted that the father quickly calmed down and was more relaxed over the course of the day.
The children (other than Y) were settled with the mother and Ms M noted mutual affection between them, strong eye contact, and no signs of anxiety.
When interviewed by Ms M, X said that some ‘not-so-good’ things about the mother’s house, were as follows:
[I]f we get into trouble she will yell and send us to our room and sometimes she would not allow us to eat dinner or put me in my room probably, some of the little ones got hurt, I saw that [W] got pushed down the stairs and [Y] told me he got choked, [W] just got bruises. … I saw [W] get pushed down the stairs, it was at night and I was in my room because I was in trouble and the door was open and my room is at the top and I saw him get pushed down the stairs … she gets angry if you don’t get out of bed or backchat her, she gets angry pretty quickly or sometimes she will give us warnings.
Ms M said that X also said he had seen the mother drag Z up the stairs and believes she was trying to get her to bed. X said the mother had never done that to him. X said that the father was nice all the time and that while the mother was nice at the contact centre and the day of the interviews, that was not what she is really like. X rated his safety with the mother at a three out of 10 and said he would prefer the time he spent with the mother to be at the contact centre so there is a supervisor present.
In her interview with W, Ms M recorded that when asked about the ‘not-so-good’ things about the mother he said that “she dragged me up the stairs, she put me in my room”, and he said he recalled having bruising on his back and legs which were still there. W said he had told the father this had happened twice and that he was aware that the mother also “pulled [Z]” up the stairs and he believes she may have had bruises too. W said he was happy to go to the contact centre and having someone to supervise them. W rated his safety with the mother at one out of 10.
When interviewed by Ms M, Z said the good thing about living with the father was that “we don’t get hurt”. When asked where Z was hurt, she replied, “at mum’s house, she choked [Y], I didn’t see it, I heard it from [Y], he said that he was in his room and was choked”. In response to a leading question whether the mother ever hurt her, she replied, “yes, she has smacked me on the bum, bum, she dragged [Y] and [W] up the stairs and I saw this”. In response to a further leading question, whether the mother had ever dragged her up the stairs, the child said she had, however she did not know if she had any bruises or marks as a result. Z rated her safety with the mother at four out of 10 and said she was happy with the current arrangements about seeing the mother and did not want this to increase.
Y indicated he was happy to speak to Ms M alone. Y said there was nothing “not-so-good” about living at the father’s home. Ms M asked Y if the father was a “safe person” and the child replied, “definitely”. They then spoke about what feeling safe means and Y agreed that it is was when you felt happy and relaxed around a person and you were not worried. Y is said to have “confirmed” that he used to live with the mother and when asked why he is living with the father, he replied, “cause mum was hurting me, dragging me up the stairs and throwing me on my guitar”. Y said the mother used to dragged W and Z up the stairs and that she used to “grab [X] by the ear”. He said that the reasons he does not want to see the mother, including on the day of the interview, included, “I’m worried she might hurt me”. Y rated his safety with the mother at one out of 10.
During his interview with Ms M, the father disclosed that his father died by suicide when he was 10 years of age and that he had ceased living with his mother after he completed grade nine because it was not a safe home due to his mother’s various boyfriends. The father denied that he had perpetrated family violence against the mother and contended that he was the victim of the mother’s coercive and controlling behaviour. The father blamed the mother for his hospital admission in 2014 and for what he contended was a misdiagnosis. The father contended that the mother had left with the children in September 2018 because she was jealous of his close relationship with the children.
The father told Ms M that Ms D had told him about the bruising to W’s back which prompted him to take photos and take him to the doctor. Inconsistent with this account, I note that the father told the doctor that he did not know how W sustained the bruising and was not accusing the mother. The father also told Ms M that “[W] has told me mum has thrown [him] on the floor on top of a guitar, there is just so much”. This is contrary to what the father told police, namely, that Y was thrown on the guitar. When the mother was asked about the allegation of throwing Y or W on a guitar she denied doing so. The mother said that only X had a guitar, and it was not damaged.
The father told Ms M that the ICL wanted the children’s psychologist to change from Ms D and for him to see a psychiatrist. He said that did not know why the ICL wanted the children’s psychologist changed but he admitted that he had cooked dinner at Ms D’s home twice.
The father showed Ms M a photo of a burn on W and explained that he had taken him to the doctor. The photo is part of Exhibit 16 and depicts a small mark on a child’s hand. There is no medical evidence suggesting that the burn was ever a significant injury. The mother explained as part of her case that W had accidently burnt himself on a glue gun (used in craft) that had not cooled down.
The father recounted to Ms M his many complaints about how he was treated in May 2022 “because I took [Y] to an operation because he had giardia and his mother wouldn’t take him”. This is an inaccurate account of what occurred as discussed earlier in these reasons.
When asked by Ms M whether the mother had physically harmed the children previously the father said, “she never did any of the parenting, she did not discipline them and did not even spend time with them”. Given that the children had lived with the mother primarily since 2018 (until withheld by the father in September/October 2023), and at the time the parents separated the children were aged eight, four, two, and three months respectively, such a statement is patently inaccurate.
The father told Ms M that Y is allergic to dairy and that he believes the mother forced him to eat dairy. As earlier discussed, there is no evidence that Y was allergic to dairy let alone that the mother forced him to eat dairy.
Ms M’s conversation with Ms D was a very one sided affair in that her comments, as reported by Ms M in her Family Report, were entirely negative about the mother. Despite this, Ms M did not give the mother an opportunity to respond to any of Ms D’s allegations, something she conceded she should have done. Many of the opinions expressed by Ms D to Ms M were entirely outside any area of expertise she might claim to have. Notwithstanding these deficiencies, Ms M conceded that she had placed considerable weight on the information provided by Ms D and the opinions she expressed.
Ms M said in her report that she “did not observe inconsistencies between the children’s account of events and their body language” contrary to observations made by Child Safety who did observe incongruence between what was said and the children’s demeanour. Ms M opined that the children were “spontaneous and consistent in their disclosures, which also aligns with information provided by their psychologist [Ms D]”.
Ms M did not have the advantage of reviewing all the evidence as presented during the trial and as already noted, Ms M relied heavily on Ms D.
Ms M recommended that the children continue to live with the father, that he have sole parental responsibility and that the younger three children change schools “if deemed suitable”. Ms M did not even consider the possibility that the father posed a risk of harm to the children, no doubt influenced by the opinions of Ms D. Ms M recommended that if the mother was found not to pose an unacceptable risk to the children, then X and Y should only spend time with the mother if they wished to do so. In relation to the younger two children, Ms M recommended that they continue to attend upon Ms D “to manage the stress from these proceedings and repair their relationship with their mother” and “gradually increase time with their mother” over about eight months so that eventually they would spend alternate weekends with the mother and half school holidays.
I am unable to place any weight on Ms M’s recommendations having regard to her apparent acceptance of all she was told by Ms D, who, although not a witness in the case, was clearly aligned with the father having regard to the evidence attributed to her.
Conclusion
On the evidence before me including from the parents, Child Safety, Dr S, the school, Ms M and Ms D (indirectly), I find that the father became fixated on “keeping the children safe”. Given the father’s chronic anxiety, which must be debilitating because it has kept him out of the work force for over 10 years, it must have been difficult for him to put things into perspective.
I accept that, like any parent, the mother became frustrated with the children from time to time, as conceded by her, and that she sometimes ‘frog marched’ the children upstairs at bedtime, yelled at them and smacked them on the bottom.
Unfortunately, it seems that every bruise or mark the father observed on the children was documented by photograph or a trip to the doctor. On his own admission, the father sent hundreds of emails and texts to the mother enquiring about bruises he observed or other marks or conditions relating to the children. As earlier observed in these reasons, it is not in dispute that all the children enjoy sport and outdoor activities and consequently it is hardly surprising that they would have bruises or other marks on them from time to time.
I have no doubt that the father’s fixation was at times overwhelming for the mother who generally did not respond to the father’s emails or texts. While understandable, her failure to respond likely exacerbated the father’s anxiety about the risk the children faced in her household.
It is apparent that the children were exposed by the father to a constant dialogue around being “unsafe” with the mother. Rather than these feelings being allayed by their therapy with Ms D, it seems her involvement as a joint therapist for the children and the father, only exacerbated their feelings, and those of the father. Having regard to the environment the children had been exposed to by the father and possibly by Ms D, it hardly seems surprising that when asked by Ms M to rate their “safety” with the mother, each of the children gave her a low rating.
The father’s behaviour has resulted in psychological and emotional harm to the children, which I find to have been significant in the case of Y. The other three children appear to have a greater resilience than Y. The father’s behaviour must be seen in the context of his chronic anxiety which appears to have been largely untreated for a significant period. No one suggests that the father does not love his children and it is not contentious that the children love the father. Indeed, the mother concedes that X “idolises” the father and has always had a close relationship with him.
In my view, while there is future risk posed by the father of psychological and emotional harm it is not an unacceptable risk in relation to X, Z and W but is unacceptable in relation to Y. Even if I am wrong in relation to the magnitude of the risk posed to Y or, indeed, in relation to the other children, I am of the view that any risk is capable of amelioration, by carefully targeted orders.
IF THE CHILDREN REMAIN IN THE PRIMARY CARE OF THE FATHER, WILL HE ENCOURAGE AND FACILITATE A RELATIONSHIP BETWEEN THE MOTHER AND THE CHILDREN?
Despite the father’s very late capitulation, the best evidence indicating whether the father will encourage and facilitate a relationship between the mother and the children is the fact that since September/October 2023, the children have either not had a relationship with the mother at all, in the case of Y, or an extremely limited relationship in the case of the other three children.
Even the final order now proposed by the father is an indicator that he will be unlikely to encourage or facilitate a relationship between the mother and the older two children because the father proposes to leave it up to those children to decide if they will have a relationship with the mother. The father has been spectacularly unsuccessful in encouraging or facilitating Y having a relationship with the mother and the father’s proposals continue to place Y and X in the middle of the parental dispute. Knowing as they must, the father’s view about the mother i.e. that she is unsafe, it seems improbable that Y would ever have a relationship with the mother and it is likely that X would also feel constrained.
The father also has a history of failing to comply with court orders and I have no confidence at all that the father will encourage and facilitate a relationship between the mother and all the children if they remain in his primary care.
IF THE CHILDREN RETURN TO THE PRIMARY CARE OF THE MOTHER, WILL SHE ENCOURAGE AND FACILITATE A RELATIONSHIP BETWEEN THE FATHER AND THE CHILDREN?
This issue was a late addition by counsel representing the father from 11 April 2025. Apart from the period immediately after separation, there is no evidence that the mother has failed to encourage and facilitate a relationship between the father and the children. Other than to point to the proposal of the mother in these proceedings that the father spend no time with the children other than supervised time, counsel for the father conceded that there was no evidence that the mother would fail to facilitate a relationship between the father and the children and comply with a court order for same.
WHAT ARE THE PRACTICAL DIFFICULTIES IN ACHIEVING A RETURN OF THE CHILDREN TO LIVE WITH THE MOTHER?
All four children, to a greater or lesser extent, have been inculcated with the father’s anxiety about them being unsafe in the mother’s care. While it is likely that the younger two children will readily settle into their mother’s care (having regard to their demeanour when speaking about the mother and when in her presence), it is to be anticipated that Y will find the transition and removal from the full-time care of the father quite traumatic. Y has refused to see his mother at the contact centre since initial attempts in January 2024 and has refused to speak to his mother on the phone during the regular weekly calls.
X is nearly 15 and while his wishes are important, so too is the need to protect him from the burden of having to make decisions about whether he spends time with his mother or not. X and the father are very close as recognised by the mother. Historically, X wanted to spend more time than the 2021 parenting order provided for, so any interruption in him seeing his father is likely to be fraught.
However, all four children need time to heal and reestablish their relationship with the mother and it is best if they have that opportunity as a sibship group. It is also likely to be helpful if the transition to their mother’s care is scaffolded by the extended maternal family, which is very large, and will probably involve the children living with the maternal grandparents for a while before resuming living with the mother.
In my view, it will be helpful for the parenting order to provide incentives for both the father and the children to transition from his full-time care knowing that if there is a moratorium they will move to extensive and regular time with the father in the not too distant future.
SHOULD CONSIDERATION BE GIVEN TO SPLITTING THE SIBLINGS?
The mother and ICL oppose separate orders for the younger and older children given their close sibship relationships. Notwithstanding the father’s evidence that Y and W are best friends, the father’s proposal would likely see a separation of the older two from the younger two children.

While X is nearly 15 years old and arguably should be treated differently to his younger siblings, I am not persuaded that to do so would be in X’s best interests as it will continue to place a burden on him of having to make a decision that may put him at odds with the father.
WHAT PARENTING ORDER IS IN THE CHILDREN’S BEST INTERESTS?
It is often said by experts in this area that children can never have too many people to love them. Unfortunately, the children in this case have been deprived, for far too long, of a relationship not only with the mother but with their extended maternal family. It is very sad indeed that the father’s chronic anxiety about the mother’s treatment of the children and the non-existent risk of her absconding with the children has brought this about.
I have come to the conclusion that the best outcome, in the circumstances, is for the children to live with the mother, or as suggested by her, with her parents for a period and with a moratorium for six weeks of no time or contact with the father but that thereafter, if the father complies with the moratorium, for an equal time arrangement.
While the fallout for the children has been significant, particularly for the most vulnerable child, Y, I am of the view that it would be counterproductive to impose a lengthy moratorium on the children seeing the father and thereafter imposing long term supervised time with him. Such an order would likely further damage the children’s relationship with the mother by causing resentment arising from the limitation to their relationship with the father. It would also be difficult to enforce particularly for the older children.
The incentive of equal time after a moratorium is intended to give the children the best chance of reestablishing their relationship with the mother and her extended family without undue interference from the father. Further, the incentive is intended to encourage not only the father but also the children, particularly Y and X, to comply with the moratorium but if the father fails to comply with the restraints I intend to place upon him, the moratorium will be extended. If the father continues to breach the moratorium/s, the long-term arrangements will revert to the 2021 parenting order i.e. alternate weekends from Thursday to Monday. This is what both parents agreed was in the children’s best interests at that time, notwithstanding the father later resiling from that agreement.
I propose to restrain the father from having any contact at all with the children during the six week moratorium and any extension of that if he fails to comply. It was agreed at the conclusion of the case that I should have regard to Google Maps to determine the distances between the father’s residence and the mother’s residence, place of work, the children’s schools, necessary routes into and out of the suburb, and shopping centres, to determine an appropriate distance to restrain the father from entering. I have done so and intend to impose a 50 metre restraint against the father from those places including requiring the father not to shop at the local Coles during any moratorium. I am satisfied that there is an alternative shopping centre in a neighbouring suburb which will be unlikely to create any great inconvenience for the father.
A recovery order will also lie in the registry to be executed in the event the father fails to return any of the children to the mother.
The father will be required to engage with a clinical psychologist and psychiatrist to manage his chronic depression and anxiety which must be debilitating given that he has not been in the work force for over 10 years.
I have considered making an order that the mother not physically discipline the children (as sought by the father) but have decided not to as such an order would likely place the children in the middle of any ongoing dispute between the parents, as the father would likely continue to ask the children and photograph the children’s apparent injuries. Further, I accept the mother’s evidence that she had already implemented an alternative approach to disciplining the children prior to the father withholding them in 2023. The mother also has significant support from her four siblings, her parents, and her partner, Mr E. I consider that any risk posed by the mother to the children is remote.
The father did not oppose the mother being able to obtain passports for the children.
I see little point in the general non-denigration provisions as again such orders would likely place the children in the middle of any dispute because they would be the only source of information about such matters.
The parties all had the opportunity to make submissions about the orders proposed by the others, and the order I propose to make is what I consider to be in the best interests of the children in the circumstances of this case.

I certify that the preceding one hundred and ninety-five (195) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.
Associate:
Dated: 14 May 2025

File number:	BRC 14053 of 2023
Judgment of:	CAREW J
Date of judgment:	14 May 2025
Catchwords:	FAMILY LAW – CHILDREN – Parenting Orders – Whether the father poses an unacceptable risk of psychological and emotional harm to the children – Where the father concedes that the mother does not pose an unacceptable risk of harm – Whether consideration should be given to splitting the siblings – Whether the father has inculcated the children with a “false narrative” that the mother is not a person with whom the children are safe – Where it is found that the children have been exposed to psychological and emotional harm by the father – Where it is found that there is an unacceptable risk of emotional harm to one child, but not the other three – Where the risk can be ameliorated – Where there is no evidence that the mother would fail to facilitate a relationship between the father and the children – Where the practical difficulties in returning the children to their mother’s care are considered – Where a short moratorium is imposed – Where a recovery order will lie in the registry
Legislation:	Australian Passports Act 2005 (Cth) s 11 Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61D, 61DA, 61DAA, 61DAB, 62B, 64B, 65DA United Nations Convention on the Rights of the Child
Cases cited:	Baghti & Baghti [2015] FamCAFC 71 Banks & Banks (2015) FLC 93–637 Eastley & Eastley (2022) FLC 94-094 Isles and Nelissen (2022) FLC 94-092 Johnson & Page (2007) FLC 93–344 M v M (1988) 166 CLR 69 N and S and the Separate Representative (1996) FLC 92–655
Number of paragraphs:	195
Date of hearing:	17 March, 7 – 8 April, 11 April, 14 – 17 April 2025
Place:	Brisbane
Counsel for the Applicant:	Ms Oakley
Solicitor for the Applicant:	Crowley Greenhalgh Solicitors
Counsel for the Respondent:	Mr Duplock on 17 March 2025 (withdrew), Mr Collins on 7 April 2025 (withdrew due to illness), Ms Jardine on 11, 14-17 April 2025
Solicitor for the Respondent:	HCM Legal
Counsel for the Independent Children's Lawyer:	Mr Taylor on 17 March 2025, 7-8 April 2025, 11 April 2025, and 14-16 April 2025, and Dr Sayers on 17 April 2025
The Independent Children's Lawyer:	ELR Law

BRC 14053 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MRS CHARLES Applicant
AND:	MR CHARLES Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CAREW J
DATE OF ORDER:	14 MAY 2025