Cizik & Jandova - [2024] FedCFamC1F 796

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cizik & Jandova [2024] FedCFamC1F 796

File number(s): PAC 2256 of 2020

Judgment of: CURRAN J

Date of judgment: 22 November 2024

Catchwords: FAMILY LAW – PARENTING – Where mother seeks children spend no time with father – Where older child is neurodiverse – Where mother alleges father perpetrated family violence during and after relationship – Where father poses risk to children arising from family violence, mental health and lack of insight – Where father alleges mother has exposed children to neglect – no evidence of neglect – Where father is a risk to the children’s and the mother’s safety – Where father has limited capacity to provide for the children’s developmental, psychological, emotional and cultural needs – Orders made for mother to have sole decision making responsibility – Where long-term supervision is considered – Where orders made for children to spend no time and have no communication with father

Legislation:
Australian Passports Act 2005 (Cth) s 11

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61B, 61C, 61CA, 61D, 64B, 65DAAA, 65Y, 68B, 114AB

Mental Health (Forensic Provisions) Act 1990 (NSW) s 32

Cases cited:
Bielen & Kozma (2022) FLC 94-123

Corporate Affairs Commission NSW v Yulli (1991) 172 CLR 319

Eastley & Eastley (2022) FLC 94-094

Isles & Nelissen (2022) FLC 94-092

Keighley & Keighley [2023] FedCFamC1A 146

Norton v Landell [2015] FamCA 125

Division: Division 1 First Instance

Number of paragraphs: 382

Date of hearing: 26, 27, 29 & 30 August 2024

Place: Sydney

Counsel for the Applicant: Mr Fantin

Solicitor for the Applicant: Jack Rigg Solicitors

Counsel for the Respondent: Ms Mattar

Solicitor for the Respondent: Choice Law Group

Counsel for the Independent Children's Lawyer: Dr McConaghy

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

PAC 2256 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR CIZIK

Applicant

AND:
MS JANDOVA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

22 NOVEMBER 2024

ON A FINAL BASIS THE COURT ORDERS THAT:
1.The mother shall have sole parental responsibility and sole decision-making authority in relation to all long-term decisions for the children, X born 2015 and Y born 2016 (“the children”).
2.The children live with the mother.
3.The children spend no time and have no communication with the father.
4.Pursuant to s 68B of the Family Law Act 1975 (Cth) the father is restrained from contacting NSW Police for the purpose of requesting a welfare check on the children.
5.Upon the expiration of the current Apprehended Domestic Violence Order in late 2025 and pursuant to s 68B of the Family Law Act 1975 (Cth), for the personal protection of the mother and children, the father is restrained from contacting the mother and children (or any of them) in any manner whatsoever, and from entering into any place where they live, work and/or attend education or extracurricular activities.
6.For the purpose of s 11(1)(b) of the Australian Passports Act 2005 (Cth) the children are permitted to have an Australian passport and travel internationally pursuant to s 65Y of the Family Law Act 1975 (Cth).
7.The mother is permitted to apply for and/or renew an Australian passport for the children and the father's consent is not required.
8.The mother shall be at liberty to travel with the children both within and outside of the Commonwealth of Australia and does not require the father’s consent.
9.Each parent is restrained from the following:
(a)Physically assaulting the children for any reason, including disciplining the children;
(b)Communicating with the children, or within probable hearing distance of the children, about any disagreement or dispute between the parents; and speaking in a derogatory manner about the other parent or any member of the other parent’s family;
(c)Allowing the children to remain in the presence or probable hearing distance of any person speaking about any disagreement or dispute between the parents or speaking in a derogatory manner about the other parent or any member of the other parent’s family; and
(d)Speaking to the children about the proceedings or showing the children any application, affidavit, report, or any other document related to the proceedings or causing or allowing any other person to do so.

10.The Independent Children's Lawyer be discharged.

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 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 Cizik & Jandova has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CURRAN J:
INTRODUCTION

These are proceedings to determine the parenting arrangements for the two children of the applicant father, Mr Cizik, and the respondent mother, Ms Jandova. The children are X (currently 9 years of age), and Y (currently 8 years of age).
The children have not spent any time with their father since 4 November 2022.
The parents each make serious allegations in respect of the safety of the children in the care of the other parent.
The father alleges that the mother has exposed the children to neglect and seeks a change of residence.
The mother alleges that the father has perpetrated family violence during and after the relationship, and that he poses a risk to the safety of the children and to her safety arising from family violence, untreated mental health issues and the lack of insight into the impact of his dysregulated behaviour. The Centrelink records say that the father has a moderate intellectual disability.
X has been assessed as having Global Developmental Delay and Autism Spectrum Disorder and Y reportedly has behavioural issues. X is supported with a NDIS package and Y is currently being assessed to receive NDIS support.
For the reasons set out herein, I find that orders, as sought by the mother and the ICL, that the father spend no time and not communicate with the children, are in the children’s best interests.
ORDERS SOUGHT
The father sought orders that he hold parental responsibility to be the sole decision maker for the children, for the children to live with him and to spend time with the mother for four nights each fortnight and half of each school holiday period. He also sought orders that either party be permitted travel overseas or interstate with the children pursuant to conditions, and various ancillary orders.
Despite his application and his ongoing instructions to seek a change of residence, when in cross examination, the father said he was seeking equal time. When asked about this change he said he acknowledged the importance of the children having the mother in their lives and he wanted to be fair.
The mother sought orders for sole decision-making responsibility, that the children live with her, and spend no time and do not communicate with the father. She said her decision to seek orders for no time followed her experience of family violence, his dysregulated behaviour including his conduct while supervised at B Contact Service. The mother sought a restraint pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) for the protection of her and the children to commence after the expiration of a current ADVO. She sought orders permitting overseas travel.
The ICL sought orders for the children to spend no time and have no communication with the father, in addition to a restraint on the father from requesting the NSW Police to undertake welfare checks. She supported orders to permit the mother to travel overseas with the children.
MATERIAL RELIED UPON
The father relied upon the following documents:
(a)Amended Initiating Application filed 10 July 2024;
(b)His affidavit filed 4 July 2024; and
(c)Case Outline Document filed 19 August 2024.
The mother relied upon the following documents:
(a)Amended Response to Initiating Application filed 14 January 2021;
(b)Her affidavit filed 4 July 2024;
(c)Notice of Risk filed 11 September 2021;
(d)Project Magellan Report dated 14 December 2020;
(e)Magellan Family report of Ms C dated 16 November 2021;
(f)Single Expert Report Dr D dated 18 June 2024; and
(g)Case Outline Document filed 20 August 2024.
The ICL relied upon the following documents:
(a)Single Expert Report of Dr D dated 18 June 2024;
(b)Magellan Report filed 14 December 2020;
(c)Case Outline Document filed 21 August 2024; and
(d)ICL Minute of Orders Sought, marked as Exhibit 67.
THE LAW
Parenting orders
Orders in respect of children are informed by Pt VII of the Act. The meaning of a parenting order is defined at s 64B.
Section 60CA of the Act provides that the court is to regard the best interests of the children as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII, being to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child (“CROC”).
Section 60CC(2) identifies the matters that the court is to take into account in determining what is in the best interests of a child, those being:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) 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;
(f)anything else that is relevant to the particular circumstances of the child.
Assessment of safety considerations
Pursuant to subsection 60CC(2)(a) of the Act the Court is required to have regard to what arrangement would promote the safety of the child and each person who has care of the child (whether or not a person has parental responsibility for the child) in determining what is in the best interests of the children.
Safety is not defined in the Act. A statutory provision, per Gaudron J in Corporate Affairs Commission NSW v Yulli (1991) 172 CLR 319 at 340, is interpreted to give its “meaning and effect according to ordinary grammar and usage”.
The definitions of “safety” according to the Macquarie Dictionary are:
1. the state of being safe; freedom from injury or danger.
2. the quality of insuring against hurt, injury, danger or risk.
The interpretation which would best achieve the purpose or object of the Act is to be preferred to each other interpretation.
To promote the safety of the child and each person who has care of the child, according to the ordinary meaning of the word, requires an assessment of the likelihood of hurt, injury, danger, or risk occurring. To make orders using this definition of safety is the interpretation which best achieves the purpose of Part VII, ensuring the best interests and safety of children.
The consideration of safety in s 60CC(2)(a) requires analysis of allegations of risk of harm and is informed by the established case law.
Per Isles & Nelissen (2022) FLC 94-092, the task of assessing risk is an evidence based analysis following the consideration of the factual circumstances, including historical conduct. Findings of past conduct will assist in the prospective assessment as to whether there is a possibility of harm arising in the future.
In Eastley & Eastley (2022) FLC 94-094 (“Eastley”), the Full Court observed the need for a trial judge to consider the cumulative effect of the whole of the evidence in determining an assessment of risk, rather than merely dealing with each individual allegation in an isolated fashion:
33.…the law did not require the primary judge to assess the potency of the risk of harm posed to the children by reference to the evidence concerning individual events in isolation from the remainder of the evidence. On the contrary, the primary judge was required to assess the level of risk posed to the children on the whole of the evidence, since the strength of the evidence lies in its cumulative effect, much like how the strength of rope derives from the combination of its individually weaker strands (Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 127–130 and 141; Savage v Lunn [1998] NSWCA 203; J.D Heydon, Cross on Evidence (LexisNexis Australia, 13th edition, 2021) at [1110] and [9040]).
To make orders that are in the best interests of the children and best promote the safety of the children and each person who has care of the children, the court must undertake an assessment of their safety in the individual circumstances of each case. In this case consideration must be made of the cumulative effect of the whole of the evidence in determining the safety of the children and the mother.
If a court determines that there is an unacceptable risk of harm on the evidence consideration as to whether risk to the child’s safety is capable of amelioration is required to be considered informed by orders that are in the best interests of the child.
The court must, pursuant to s 60CC(2A), 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.
The court must, pursuant to s 60CG consider the risk of family violence and to the extent it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence.
The children are not Aboriginal or Torres Strait Islander children, accordingly the considerations under s 60CC(3) are not relevant to this matter.
Parental responsibility
Parental responsibility is defined at s 61B of the Act. According to s 61C of the Act, each parent has parental responsibility for the child and the parents are encouraged, where it is safe to do so, to consult each other about major long-term issues in relation to the child having regard to the child’s best interests pursuant to s 61CA.
The court has the power to make parenting orders that allocate the responsibility for decision-making to the parties jointly or solely in relation to all or specified major long-term issues under s 61D(3).
The term “major long-term issues” is defined at s 4(1) of the Act:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
The definition of family violence is found in s 4AB of the Act which states
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
SECTION 60CC FACTORS
As referred to above, the court is mandated to take into account the factors in s 60CC(2) in determining what is in the best interests of a child. These six factors are addressed below.
s 60CC(2)(a) – What arrangements would 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?
After separation on 25 March 2019, the parties entered into final consent orders for equal shared parental responsibility for the children, and that the children would live with the mother and spend time with the father two nights per week from Wednesday at 3.00 pm to Friday at 3.00 pm.
Each of the parents now make allegations that the other poses a risk to the safety of the children in the care of the other and each seeks orders that the children live with them. It is necessary to make findings in relation to these allegations.
The father contends that the mother has neglected the children. Despite this, he seeks orders for the children to spend four nights with the mother despite the alleged risk of neglect. The mother denies the allegations of neglect.
The mother raises concerns regarding the risk of family violence perpetrated by the father both before and after separation. She raises concerns as to the safety of herself and the children arising from his untreated mental health issues and the impact on the children of the father’s lack of insight into his behaviours. The father denies that he has been a perpetrator of family violence and says the accusations of the mother are without foundation and are “vexatious” and fabricated or exaggerated.
Has the mother neglected the children as alleged by the father?
The father raised concerns as to the welfare of the children in the mother’s care and referred to specific incidents which he contended provided the basis for such a finding. I am not satisfied that the mother has neglected the children as alleged for the reasons that follow.
The allegation of the mother not being in a safe state to care for the children in early 2020
The father said that in early 2020 the mother stated that she would arrive late to the changeover location as she was at a medical centre and had to go to hospital. He deposes that when the mother arrived, he observed her to be in a drowsy state, unable to walk properly and with slurred speech. He did not believe that she was in a state that was safe for the care of their children. He said he handed the children over but arranged for a police welfare check of the mother due to his observations and concerns. After this, he said that the mother told him that he could no longer see the children.
The mother said that on that date she called the father to tell him that she was in need of medical attention and needed stitches as she had cut her hand. She states that she was told by the doctor that she needed to go to the hospital. She said that the father came to the medical centre and when she informed him that she had to go to the hospital and asked him to look after the children, he said “Fuck you.” She said that the parties agreed to meet at McDonalds for the children to be returned to her but as she was about to leave her home the father arrived at her front door and an incident of family violence followed.

The mother’s version of the events on this day are discussed in detail below at [115]. The father denies attending the mother’s home on this day or at any time.
As discussed at [120] below, I find that the father did attend the mother’s home. The NSW police notes record that the father reported to the police that day that he had attended the mother’s home. The police records corroborate the mother’s evidence. Accordingly, I do not accept the father’s evidence as to the events of early 2020 and do not accept the father’s evidence that the mother was not in a “safe state” to care for the children on this day.
The allegation the mother gave the children a product causing harm to them
The father alleges that the mother had given the children a product imported from Country E which he says contains a sedative. The father said that this formula makes children lethargic and sleepy and that the product is banned in Australia. There was no evidence that supported the father’s contentions. The father said he believed the product caused the children to have medical episodes and that it may have contributed to X’s developmental delays.
The father said that X had a medical episode before separation and two medical episodes after separation, and that Y suffered a medical episode when he was approximately nine months old.
Dr F, X’s paediatrician, referred to X as having recurring episodes of loss of consciousness. A G Medical Centre report dated mid-2019 states that X was being investigated for possible medical episodes by Dr F. There were no medical records in evidence that supported a finding on the balance of probabilities that either of the children had been given a harmful or sedating product as alleged by the father.
The father retained the children in mid-2018 after he says the mother’s neighbour called him and told him that the mother was still giving the children the imported product. He called no evidence from the witness. The mother denied ever providing sleeping medication to the children.
There was no evidence of a connection between the children’s medical episodes and any formula or product. The Department of Communities and Justice (“the Department”) have been involved with the children and there is no reference to any concern or investigation arising from the use of the product as alleged.
There was no evidence upon which I can be satisfied on the balance of probabilities that the imported product or any other sedating product was given by the mother as alleged.
General allegations of lack of hygiene and neglect
The father deposed that at changeovers, the children’s diapers would be full, and the children would be in desperate need of bathing. He said that X was still in nappies at the age of five and Y at the age of three. He said that the mother did not bother to toilet train the children and that he was not able to do it as they were staying with him only two days each week.
The father said that the mother’s neglect and poor treatment of the children made him angry and emotional, resulting in conflict at some changeovers.
The mother said that she has always ensured that the children have been fed and bathed, and she looked after their day-to-day needs.
The father relied upon Exhibits 62 and 63, being photographs and medical reports from 2018, in support of his position that the mother is neglectful.
The first photographs depict an injury to X’s chin. The mother gave evidence that X had fallen and cut his chin requiring stitches. The fact of an injury to a child that required medical attention does not establish neglect.
The father contended that the other photos contained in Exhibit 62 depicted bruises suffered by the children due to the mother’s neglect. The mother said the pictures were of mosquito bites.
The father relied upon medical reports from 16 February 2018, 7 July 2018, 11 August 2018, 24 October 2018, and 22 January 2019, that record the father taking the children for medical review in this time period.
Around the time of the alleged bruising (or mosquito bites) in August 2018, the Department was involved with the mother. There were numerous attendances by the Department where the children were found to be appropriately cared for by the mother. The Magellan Family Report states at [19] that “A safety assessment was conducted in September 2018 involving an unannounced visit to [the mother’s] household. No immediate dangers were identified in relation to the children and an outcome of ‘safe’ was filed.” Further Department assessments were made in May 2019 where it was found that the risk assessment was high on the basis of two factors: the children’s medical needs not being met and the family violence exposure from the father. The mother was referred to H Family Service who commenced supporting the mother in July 2019. The Department’s case was closed in July 2019 after they concluded there were no dangers or concerns with the mother’s care of the children.
The Department interviewed the mother on a number of occasions and undertook at least one unannounced home visit before they referred the mother to H Family Service for ongoing support.
The mother subsequently had support from H Family Service and sought assessment and support through NDIS to ensure the children’s medical needs were and continue to be addressed. The prospective assessments found that the children were at a moderate ongoing risk due to the father’s family violence.
A Department letter to the mother dated 14 September 2023 reported the father making 35 malicious reports to the Department about her care of the children and assessed the children as safe in the mother’s care.
The reports and photographs together with the unannounced attendances by the Department and their records do not support a finding of neglect as contended by the father. Conversely, it corroborates the mother’s evidence as to X’s injury requiring stitches. Additionally, around this time the children were seen by a General Practitioner who is a mandatory reporter on a number of occasions.
There is no basis to find that the mother has previously neglected the children or is likely in the future to neglect the children. I reject the father’s contention.
There was a suggestion or inference by the father that the mother’s fiancé, Mr J could be a source of risk to the safety of the children.
Mr J attended the report interviews and was recorded by the single expert as being a relative. The mother said that she had not explained their relationship because she was not asked. She explained that she does not live with him but that she and the children spend time together regularly.
Documents produced by the NSW Police (at exhibit 64) disclosed an unrelated family violence incident involving Mr J where his involvement was peripheral.
There is no evidence to support any finding that Mr J poses a risk to the safety of the children or the mother.
I am not satisfied on the evidence that the mother poses a risk to the safety of the children. Her evidence, which I accept, is that she cares for the children and engages with their school, therapists, doctors and other supports as recommended. Her explanation as to the cut suffered by X is supported by the fact that she sought medical treatment, from a mandatory reporter for him at the time. The evidence supports the finding which I make that the mother has sought appropriate supports including from NDIS and H Family Service.
Allegations of the mother engaging in family violence against the children
The father contends that at changeovers, he observed the mother striking the children and using derogatory expressions including “you are an animal”.
The mother reported to the single expert that occasionally, if the children have done something serious, she will smack them as a form of discipline.
Consent orders were made restraining the use of physical discipline at Order 18 of the interim consent orders dated 2 May 2021.
The mother has said that she, on occasion, has physically disciplined the children. The father seeks orders restraining the parties from physically assaulting the children for any reason, including disciplining the children. Given the history of the mother using physical punishment, I will continue the order to restrain the mother from using physical discipline with the children.
Allegations of threats against the father by associates of the mother
The father contends he was threatened by “people associated with the mother”.
The father said the mother had sent two men to threaten him in late 2019, saying to him words to the effect of “Forget about your kids or things are gonna get bigger”. He stated that he attended the police station to report the incident but that they refused to take a statement. The mother denies any knowledge of any threats being made. I cannot be satisfied on the balance of probabilities as to the alleged threat being made.
The father contended that he received several anonymous phone calls from people threatening him and blackmailing him, demanding that he move on and forgets about the children and telling him that they were going to “brutally assault him.” He also said that he received threatening messages from the mother’s father and the mother’s new partner. He alleges that he received a call from the mother’s cousin threatening “severe consequences” if he continues to contact the mother.
The father did not produce any evidence of these messages in the form of text or telephone records, nor did he give particulars of the timing of the alleged threats.
There were no police records corroborating his report of the alleged threats. It does not appear consistent with the NSW police practice to refuse to take reports of alleged threats where they have taken reports of other complaints. Such a contention lacks plausibility. I cannot on the evidence make a finding that the threats, as alleged, occurred.
Did the father perpetrate family violence during the relationship?
The mother contends that the father subjected her and the children to family violence during the relationship.
The father denies each of the allegations. In order to consider the issues of safety to the children and mother, it is necessary to make findings in respect of the allegations.
The mother alleges the following incidents of family violence prior to separation:
(a)Assault on the mother by the father in late 2015;
(b)Threats by the father to stop the mother receiving permanent residency in 2016 and to send her back to Country E;
(c)Father’s anger following firearms license being refused in 2017; and
(d)Argument over what the mother was cooking in November 2017, leading to separation.
Alleged assault on the mother by the father in late 2015
The mother said that in late 2015, the parents had an argument about money, and the father hit her shoulder, kicked her, and scratched her. She states that the police were called and they applied for a Provisional Apprehended Domestic Violence Order (“ADVO”) for her protection. In late 2015, an Interim ADVO was made for her protection against the father. The following month she applied for the ADVO to be varied as she felt pressured by the father and his family. In 2016, the police applied for a further ADVO for the mother’s protection against the father, which was issued in early 2016.
The father denies ever physically assaulting the mother during the relationship, including on this occasion.
I give weight to the fact that the mother called the police and obtained an ADVO for her protection following this event and accept her evidence as to the occurrence of family violence as she described on this occasion. I accept her evidence as to the events as I have otherwise found her to be a witness of truth, her evidence has otherwise been consistent and corroborated by third parties and as referred to elsewhere in these reasons.
Alleged threats to deport the mother back to Country E during the marriage and threats by the father to stop the mother receiving permanent residency in 2016
The mother deposed that the father threatened to send her back to Country E and take her child away from her.
The father’s sworn evidence was that “I deny threatening to send the Mother back to [Country E] without the children or to have her permanent residency revoked.”
The father did not agree that he had threatened to have the mother deported at any time during the relationship. However, he agreed that after Y was born he called the Department of Immigration on a number of occasions to seek to have the mother “sent back”. He said he wanted her to be sent back because he felt “like I was used”. In his affidavit, the father denied threating to have her permanent residency revoked, however, in cross examination, he agreed that he called the Department of Immigration after Y was born to tell them that the marriage was not going well. His evidence about when he first called immigration was difficult to understand. It was vague and non-specific.
I am satisfied that the father did threaten to have the mother deported, as she said, because it is consistent with his own evidence that he contacted the Department of Immigration seeking for her to be “sent back” and of this report after Y’s birth to the Department of Immigration that the marriage was not going well. He agreed he made calls to the Department of Immigration on multiple occasions. This conduct is consistent with the mother’s contention that he threatened to send her back. On balance, I am persuaded that the threats, as alleged, were made because of their consistency with his admitted conduct of making contact to have her sent back due to him feeling “used”.
The mother deposed that in 2016, the father called the Department of Immigration trying to stop her from receiving her permanent residency. She gave no evidence as to the basis of this allegation. I cannot be satisfied on the balance of probabilities of this occurring given the absence of any particulars or details supporting the contention.
Father’s alleged anger following firearms license being refused in 2017
The mother deposes that when the father had his application for a firearms license refused in 2017, he was angry with the mother. He said it was refused due to the “ongoing vexatious ADVO applications” from the mother.
The father, in his oral evidence, said he blamed the mother for the loss of his job and his inability to secure employment once he had his work license cancelled. There was no specific evidence from the mother of his alleged conduct or its impact on her that would support a finding that he had perpetrated family violence in the form of anger displayed by him at this time. Given the lack of evidence I cannot be satisfied on the balance of probabilities that the father exposed the mother to family violence at this time.
Alleged argument in November 2017 over what the mother was cooking
In November 2017, the mother alleges that the parties had an argument over what the mother was cooking, followed by the father kicking the mother out of the house. The parents separated on this day. The mother gave no specific details as to what occurred or what was said on this occasion.
Following this incident, the mother’s evidence is that the father’s brother came to the house to speak to the father, leading to the father returning the children to the mother. She deposes that she and the children then went to live with a maternal aunt.
The father states that in or around November 2017, the parents separated when he “peacefully vacated the family home”. In cross examination, he said he could not remember what happened before he allegedly left the house. However, he denied that there was an argument. He also denied that his brother was called to help return the children, stating that it was the mother’s uncle who was called by the mother.
I am not satisfied on the evidence of the mother that she or the children were exposed to family violence as alleged by the mother on the day of separation. The mother made general allegations that X had been in the past exposed to yelling and abuse during the relationship, however, there were no particulars of when and in what circumstances she contended this occurred. Her evidence was general and vague as to the argument around separation. Given the absence of evidence, I cannot be satisfied that the events around the date of separation involved any family violence as alleged.
Did the father perpetrate family violence after separation?
The mother alleged that there was a pattern of family violence perpetrated by the father after separation. The father denied he perpetrated family violence after separation.
The mother alleges the following incidents of family violence after separation:
(a)Verbal abuse and damage to car in early 2018;
(b)Threatening telephone calls from a friend of the paternal grandmother and her daughter in early 2018;
(c)Spraying water at the mother and throwing a bottle at her at McDonalds in mid-2019;
(d)Threatening to shoot three members of the mother’s family in late 2019;
(e)Attending the mother’s home making threats and breaking an ashtray in early 2020;
(f)Exposing the children to pornographic videos on their iPad in early 2020;
(g)Threatening telephone call in mid-2020;
(h)Threatening telephone communication following the interim orders of 3 May 2021;
(i)Incidents of threats and harassment in telephone/video communication between the father and the children;
(j)Threats made by father to third parties at B Contact Service in mid-2022;
(k)Threats by telephone in mid-2023; and
(l)Threats and harassment via his social media page in 2023.
Alleged verbal abuse of the mother by the father and damage to car in early 2018
In early 2018, the mother attended on the paternal grandmother’s business to deliver the children to the father. She said the father began to verbally abuse her, calling her names including “whore”, “slut” and “bitch”. She states that she was scared, deciding to return to her car. She deposes that as she was leaving, the father screamed “You fucking bitch” and ran towards the car, kicking the car and causing damage.
The father agreed in his affidavit that he called her names and kicked her car on this occasion, saying he was frustrated because he believed the mother had not been looking after the children properly. He also deposed that he only did so once the children were safely in his car at this time.
However, in oral evidence he denied he had kicked the vehicle and denied he called the mother names. He stated that this was his own car that he had given her and that he did not kick his own vehicle.
I do not accept his denials. He gave sworn evidence in his affidavit acknowledging his conduct and explaining why he reacted in this way. I find this was an incident of family violence and his conduct caused the mother to be fearful as she said.
Alleged telephone calls from a friend of the paternal grandmother and her daughter in early 2018
The mother said that around 2018, she received a telephone call from a friend of the paternal grandmother threatening to spread rumours about her if she went to court, and telling her to remove the ADVO. The mother states that when she told her that she would still be going to court, the person said words to the effect of “You will see what will happen”. A few days later, the mother received a telephone call from this person’s daughter stating, “don’t say anything about my mum or I’ll smash your head in”.
The next day, the mother made a statement to the police about the phone calls she received.
The father in his written and oral evidence states that he is unaware of who called the mother or why they did so, and that he did not arrange for anyone to contact the mother.
The mother does not allege the father caused the threats to be made. I am not satisfied on the balance of probabilities that the father was involved in the threats.
Alleged incident of family violence at McDonalds in mid-2019

In mid-2019, the parents met at McDonalds for changeover to the father. The mother stated that the father said to her “You are a slut. I hope you die”, that she ignored him and began walking toward the mall to get away from the father. He said “I will kill you, you slut. I hope your daughter dies”. He then grabbed a water bottle and began spraying her with water on her arm and torso area, before he threw the bottle at her, which did not make contact with her as she moved to avoid it. She said that the father then drove off with the children.
In his affidavit the father conceded that he did call the mother names and sprayed water at her. He said that, although there is no excuse for his behaviour, it was a reaction to the mother threatening him by saying words to the effect of “Unless you give me money, you will never see the kids again. I will set my family and friends against you”. The mother denied making such threats.
Initially in his oral evidence, the father did not agree with the proposition that he sprayed water on the mother. Later in his oral evidence he said “That’s normal. It’s not really throwing a big bottle, or trying to throw acid, or something”. When asked what he meant by that is “normal”, he responded that “it was a hot day”. His answers were strange and appeared to be him trying to minimise, excuse and justify his conduct.
The father eventually conceded that what was in his affidavit about his conduct on this day was correct. He conceded that the children “would have felt unhappy” observing the father spraying water and throwing a bottle at the mother.
The mother reported the matter to the police who applied for a provisional ADVO for her protection against the father. The police record that they viewed the video footage “which depicts [the father] throwing an object in the direction of the [mother]”.
The father’s denials as to his conduct were false. I find that the father perpetrated family violence towards the mother in the presence of the children in mid-2019 at McDonalds. I accept the mother would have been intimidated by his conduct on this day.
Late 2019 incident, where the police report records the father threatening to shoot three members of the mother’s family
There was an incident in late 2019, where it is alleged that at a changeover at McDonalds, the mother walked the children up to the father’s car and the father said “I swear I’m going to shoot all three of you”. It was put to the father by counsel for the ICL that he was referring to the mother, the mother’s father and the mother’s new partner. The father denied this, stating that he had never met them.
The mother reported this threat to the police shortly after, who recorded that the mother was “fearful that he was going to carry out his threat”.
Where the parties’ evidence is in conflict, other than where there is other corroborative evidence, I prefer the mother’s evidence over the father’s evidence due to the consistently corroborated evidence of the mother and the father’s false denials. Examples of the father’s false denials include the throwing of the water bottle at the mother at [110] above, the denials that he attended the mother’s home at [120] below, and the recording where the father swore at the children and asked “are you a man or a girl?’ at [164] below.
I am satisfied that the event occurred as alleged by the mother because her evidence has been reliable, often corroborated and she has consistently reported to the police incidents that have caused her fear.
Alleged incident of family violence by the father in early 2020
The mother alleges that in early 2020, she called the father to tell him that she needed to get stitches as she had cut her hand. She states that she was told by the doctor that she needed to go to hospital. She states that the father came to the medical centre. She deposes that when she informed him that she had to go to the hospital and asked him to look after the children, he said “Fuck you.”
She states that once she arrived home, the father agreed to meet the mother at McDonalds. When she was ready to leave, she states that the father was at her door and they had a conversation to the following effect:
[the father]: I want to come in.
[the mother]: No.
[the father]: I am going to rape you.
[the mother]: Rape me? That is illegal.
[the father]: You are an unbeliever.
The mother said the father grabbed outdoor furniture and pushed it over, grabbed the chairs and threw them, and grabbed the ashtray and smashed it. She states that she reported the incident to police.
The father vehemently denied this incident took place, stating that he did not know the mother's address. In his oral evidence he maintained that he did not know the mother’s address and did handover at McDonalds. However, the NSW police records (Exhibit 41) state:
The [father] stated that about 6:00pm he attended a local McDonalds where he was handing his children back for the day to the [mother]. However upon arrival the [mother] asked if he could drop the children back to his place later on that night as she stated she had to go to the doctor at the hospital, so the [father] agreed. About 7:15pm the [father] made attempts at calling the [mother] however she didn’t answer, so he went to her address to drop the kids off if she was home. Upon arrival, the [mother] came out screaming and yelling, saying “fuck you, give the kids to me, why do they want you, fuck you.” The [father] was concerned for the children’s welfare as the [father] [sic] still had the cannula in her arm, and a bandage around her hand.
The police notes record that the father told the police he had attended the mother’s home. He reported an argument between himself and the mother which also corroborates the mother’s evidence. This is consistent with the court attendance notice in evidence. This is entirely inconsistent with the father’s evidence that he did not know the mother’s address and did not attend her address on this occasion, or at all.
I accept the mother’s evidence as corroborated by the record of the father’s own report made to the police as to his whereabouts on that date.
Much was made by the father’s counsel of what was said to be an inconsistency between what was reported by the mother to the police and what she told the single expert. The police report says she reported the father said to her “I want to have sex with you”, and the single expert says the mother claimed “he threatened to rape her”. I do not accept there was inconsistency as contended. The mother was assisted by an interpreter in court and her English was limited and broken. The facts as reported remained consistent and remained so in cross examination. I accept the mother’s evidence.
The father contended that the mother had fabricated the events and that he had never been to the mother’s home. I do not accept the father’s evidence and give weight to his own report to police that same day of his attendance at her home.
I find this was a further incident of family violence as alleged by the mother.
Did the father expose the children to pornographic videos on their iPad in early 2020?
The mother travelled to Country E between mid-2019 and late 2019. During this time the children lived with the father, in the Suburb K area.
The mother said that in early 2020, she noticed that the children were touching each other’s genitals in the bath. She states that the children then sat on the couch in the lounge room, X had his iPad on his lap, and he was displaying sexualised behaviour to his brother. She took the iPad from him and saw a 40 second video of the father masturbating, which X was watching. She deposes that the video had a time stamp of late 2019.
The mother says that she went to the police station immediately, showing them the video.
The COPS record report that in early 2020 the mother “observed the iPad that both children were using at the time and noticed a video of an unknown male, assumed to be the [father] masturbating for approximately 30 seconds. The video only depicted one male with no distinct features or other persons present”.
The record goes on to say:
Police observed the video in the iPad which video details revealed it was taken [in late] 2019 in the [Suburb K], NSW area which is the home address of the [father]… Police are satisfied that the circumstances surrounding the incident were by accident and that no offences were detected as there is no direct evidence to suggest it was intentional. However, police advised the [mother] a child at risk report will be made due to the concern of the children’s mental well-being and referred to FACS.
A few days later, the mother said that the police notified her that they had spoken to the father and that he advised them he would delete the video.
The father, in his affidavit, said that this is a fabrication by the mother and that there is no such video. He contends the police did not contact him to discuss the alleged video or to ask him to remove it from the children’s iPad. The father gave evidence that he bought both of the children an iPad. In relation to the video, in his oral evidence he stated that “Well, it could be someone else. Maybe someone else. There’s a lot of males in the world, so it’s not me”. He stated that “I wouldn’t give my kids something that’s got something on it”.
The mother said that she allowed the children to spend time with the father on one occasion following this incident on the basis that the video would be deleted and may have been on the iPad by mistake. She states that when the children returned to her care, the video was still on the iPad. She said that when she confronted the father, he said words to the effect of “Fuck you. I bought the iPad for the kids and I can put whatever on it. If you delete it, I will bury you”. The father denied that he said this. He stated in cross examination “Why would I want to make threats over a video? Like, that’s not something with money or, you know, something that’s valuable”.
The police record dated early 2020 recorded that “the [father] attended [the] Police Station raising concerns about not having his iPad returned to him upon the most recent interaction with the [mother]”. In oral evidence, it was put to the father that he attended the police station for the iPad’s return, to which he responded “No. 100 per cent no”. The police record went on to state:
Police found the [mother] to inquire about the iPad in which she stated that she did not feel comfortable due to the contents of the electronic device. Police reiterated to the mother that upon their next interaction, the iPad should be returned to the rightful owner as it was determined that no offences had been committed in the original matter that was reported to police.
The father later said in his oral evidence that he did not remember attending on police, but that the police have not helped him. It is clear from the COPS record that the father did attend the police station in early 2020 seeking to have his iPad returned.
I accept that the children were exposed to a video recording of a man masturbating and that the recording was on the iPad as deposed by the mother and as observed by the police. I note the police record opined that the recording of the masturbation occurred at Suburb K, where the father lived, and that it occurred at a time when the children were in the father’s care. I am unable to make any finding that it was a recording of the father or some other man. I accept that the recording may have been seen by the boys inadvertently.
However the recording came to be on the iPad, it nevertheless was an iPad used by the children and it was inappropriate for such material to be available to them. I find that the police spoke to the father about deleting the recording on the iPad as recorded in the COPS record, but that it was not deleted. I find that the recording was saved while the children were living with the father on the iPad used by the children, exposing the children to potential psychological harm.
The father’s dishonesty about seeking the iPad’s return from the police is difficult to understand. I accept that, contrary to his denials, and as recorded in the police records, the father did seek the return of the iPad as deposed by the mother.
Alleged threatening phone call from the father in mid-2020
The mother deposes that in mid-2020, she received a call from a private telephone number, recognising the voice to be the father. She states that he said “If I don’t see the children today. You are going to die”. She states that she reported the incident to the police immediately.
The father concedes that he did call the mother on that date, that it had been three months since he had seen the children, and he was not thinking straight. He denies, however, that he made threats to the mother during the call, stating that he only said “I want to see my kids” and that it was a five second call. He stated that the mother reported it and this was a breach of his ADVO conditions, causing him to be arrested.
The father maintained the denial of making the threats to the mother in his oral evidence. The independent evidence, however, supports a finding that the father has made threats on a number of occasions in respect of the mother as set out below.
A B Contact Service report of mid-2022 states that the father, when talking about the mother said , “I am going to crack her, I am going to crack her, I have never laid my hands on a woman but honestly”. He eventually agreed in cross examination that he said this, but bizarrely tried to explain away his threat, by referring to cracking an egg. His false denials and then attempts to minimise his conduct illustrate a lack of insight and responsibility for the threats he makes.
In early 2024 the father is reported to have said to the Department “I will do my way. I will smash and burn this place and barricade myself in the home and it is only then the police and all people will listen to me”. His words were threatening and deeply concerning and were considered a threat by the Department. The father’s denial of ever making threats is not made out on the independent evidence and I do not accept his denials.
The evidence supports the finding I make that the father has made threats to third parties in respect of the mother. He has a propensity to dismiss and fails to appreciate the seriousness of the impact of the threats he has made. He also dismisses the seriousness of the impact of his conduct in causing fear. His behaviour in threatening harm to himself or others, threatening to smash and burn “this place” and barricade himself, the threat to “crack” her, and his conduct in, for example, throwing water and the bottle at the mother, are without doubt family violence as defined in the Act. The conduct both causes fear and is a course of conduct designed to cause the mother to feel fearful.
For these reasons, and the father’s lack of honesty and candour generally in respect of these proceedings as illustrated by his denial about throwing the bottle and his denial about seeking the return of the iPad, I accept the mother’s evidence about the threats made.
I find the threats the father made in mid-2020, mid-2022 and early 2024 are family violence.
Allegations of family violence via telephone communication following the interim orders of 3 May 2021
The interim orders dated 3 May 2021 provided that the children have telephone communication with their father each Monday and Thursday afternoon. The children had a separate mobile device and number from their mother’s mobile number for the purposes of communication with the father.
The mother deposes that the father would send text messages to the phone used for communication outside of the times and dates set by the orders.
On 27 May 2021, she alleges that the father contacted her by text message saying “I've called you a million Times” and “Answer the phone”. Exhibit 23 includes email correspondence from the mother’s solicitor to the father’s solicitor requesting that the father complies with the scope of the orders, referencing these messages. I note that 27 May 2021 was a Thursday, a day that the father was permitted to contact the children. It was not clear on the evidence what time the messages were sent.
On 3 June 2021, the mother’s solicitor wrote to the father’s then solicitors raising concerns about communication allegedly occurring outside of the ordered times.
The mother said that on 7 July 2021 she received 12 missed calls from the father from the middle of the day to the afternoon. This was a Wednesday.
On 8 July 2021, the father sent multiple text messages. The mother said that on 8 July 2021 the father called her eight times and video called her four times.
Exhibit 22 contains text messages sent from the father to the children’s mobile. For example, some of the texts state:
Unblock on my son’s phone and don’t touch it
It’s not ur phone
MY SON’S PHONE NOT URS
The father said that this was to the children’s phone number. There is no evidence that the message was sent to the mother’s mobile telephone, nor is there evidence as to what date many of these texts were sent.
The father said he does not recall sending the messages and he does not believe he acted as described.
A screenshot, tendered as part of Exhibit 22, shows a phone with six missed calls on a date in September 2022 that is unreadable, two missed calls on 26 September 2022, nine missed calls on 3 October 2022 and five missed calls on 10 October 2022. Notably, these dates are all Mondays, which were the days set out in the orders. There is no evidence that these phone calls were made outside of the specified time in the orders.
There are occasions that calls or messages were sent outside of the ordered times, but many of the communication attempts appear to coincide with the days ordered for communication. I am not satisfied on the evidence that the communication was family violence as alleged because the evidence is vague and general and does not support a finding on the balance of probabilities that the calls were made outside of the ordered times.
Alleged incidents in telephone/video communication between the father and the children
In or around September 2021, the mother deposes that in a video call between the children and the father, the following conversation took place with the father having a woman sitting beside him:
[the father]: I have a surprise for you.
[X]: Lollies?
[the father]: I've got you a new mum.
The father denies this occurred.
The mother deposes that on an occasion there was a video call where the father was topless and had a woman sitting on his lap. The father denied this in cross examination. It is unclear on the evidence whether this was the same occasion as the event she said occurred in September 2021 referred to above.
The mother said that the father once called X “a frog”, causing X to become upset. The father denied this in cross examination.
The mother said in a video call in late 2022, the father said to Y words to the effect of “Fuck off. Shut up, when I see you at the centre tomorrow, I will break your face”. She alleges that Y started crying and that she then recorded the exchange on her mobile phone.
A few days later, the father sent an email to the mother’s solicitor, copying the ICL, stating “Mark my words I'm a man of my words I will not call videos anymore until she says sorry for all this allegations on me otherwise I'll just wait for court simple and I will see my kids at the visits”. The father agreed in cross examination that he sent that email to the mother’s solicitor.
A police record dated late 2022 stated:
[In late] 2022 the [father] was talking to [Y] via facetime… when the [father] started to use foul language, primarily the word "fuck" whilst speaking to [Y]. The [mother] has overheard this and has begun to film the exchange. This exchange and use of language has upset [Y] who has become concerned and asked the [father] why he was using those words to which the [father] has stated "I am going to bite your face, yeah another bad word what you going to do, what you going to do" in what is clearly a misguided attempt at playfulness. The [father] continues to go on and say "I'm going to bite you tomorrow, I'm going to eat you", referring to the planned visitation […] as per the Family Law Court Orders. [Y] was still clearly upset with the language and gives the phone to his brother. Both [Y] and his brother ask the [father] why he said the word "fuck" and [Y’s] brother states that this has upset [Y]. The [father] then goes on to say words to the effect of "are you a man or a girl, be a man". The recording ceases shortly after.

The records go on to state that the police “reviewed the evidence, including the recording of the phone conversation”. The police observed Y to be upset after the phone call, however noted that he “was clearly upset by the language utilised by the [father] and not the words said”. The records state that the father “did not attempt to intimidate the victim in anyway”.
The father denied saying “are you a man or a girl, be a man”, denied swearing in the presence of the children and denied saying that he was going to eat Y. This is demonstrably false evidence from him. The police record, in circumstances where they viewed the recording, and reported what they observed, corroborates the mother’s evidence. The police recorded that the father’s comment was “clearly a misguided attempt at playfulness”. The father lacks the insight to appreciate that his behaviour is at times upsetting for the boys. This is one of many examples.
The father’s conduct does not, in my view, constitute family violence in this instance. However, the interaction illustrates the father’s lack of insight in respect of the impact of his conduct and words on the boys at times.
In cross examination the content of the conversation that the children found upsetting was positively denied by the father as set out herein:
[counsel for the mother]:…So do you recall having these conversations with the children?
[father]: No. I’ve never said to my son that “I will bite you” or “I’m going to eat you”. He’s not food.
[counsel for the mother]: And you recall swearing in front of the children, saying “fuck”?
[father]: No.
[counsel for the mother]: And you recall saying to the child, “Are you a man or a girl?”?
[father]: No.
[counsel for the mother]: “Be a man.” Do you recall saying that?
[father]: I don’t wait for the whole day, to 12 o’clock, to swear at my kids, when you haven’t seen them the whole day, so no.
[counsel for the mother]: Are these words that you would have used? You said to one of the children, “Are you a man or a girl? Be a man”?
[father]: No. My son is a boy. No.
[Her Honour]: You deny saying that?
[father]: Yes. Yes, I deny.
[Her Honour]: And you deny swearing?
[father]: Yes.
There can be no doubt that the police records detailing what they observed and listened to is consistent with the mother’s evidence and is contrary to the father’s denials. I find the father has been dishonest in his evidence where he denied saying “are you a man or a girl, be a man”, he denied swearing, and he denied saying “I’m going to eat you”. He maintained his false denial.
Alleged threat by the father at B Contact Service in mid-2022
The mother deposes that one of the workers at B Contact Service called her to inform that the father made a threat, stating words to the effect of that he does not hit women, but the mother deserves to be taught a lesson.
The B Contact Service reports of mid-2022 state that the father said “I am going to crack her, I am going to crack her, I have never laid my hands on a woman but honestly”.
With reference to this incident, the father stated in cross examination “Maybe out of anger and upsetting and all the hurt that I have been through, but it doesn’t mean that I’m going to really go and do it”. He conceded that he did say “I’m going to crack her” with reference to the mother.
I find that the threats were instances of family violence.
Alleged phone call threat by the father in mid-2023
The mother alleges that the father called her in mid-2023 and said words to the effect of “I know where you live and I am coming to take the children”.
The police records note that on that date “the [mother] received an incoming call to her mobile phone from the [father]. The [mother] answered the call and the [father] said words to the effect ‘I know where you live, and I am going to come and take the children’ prior to making threats to physically harm the [mother]”.
Police obtained statements from the mother in relation to this incident. The police record states “Police were concerned that further incidents may occur and therefore applied for a Domestic Violence Apprehended Order”.
The father denied this occurred.
I accept the mother’s evidence and I give weight to her evidence that she was concerned by the threat and reported it to the police at the time as she had in the past. I find this is an incidence of family violence and observe the behaviour was consistent with earlier threats the father made toward the mother.
Alleged threats by the father on social media in 2023
The mother deposes that in 2023, the father was making threats against her on public forums on social media.
The father denies this. He accepted that the posts he was shown were from an account with an alias of his, and that the account had a photo of him, however, denied that the posts were made by him.
The mother states that after these posts, in mid-2023, the police applied for a provisional ADVO for the protection of her and the children. She said that the father was charged for the incidents that occurred in 2023, that the charges are currently before the Local Court. The father failed to disclose details in relation to the charges to the mother’s solicitors.
The father in oral evidence said that there are several other people with the same name and maintained he did not make the posts.
Exhibit 10 is the NSW Police COPS record as to the incident. This record states
During their relationship and following their divorce, the [father] has used multiple platforms to contact the [mother] including [social media platforms]. The [father] has used multiple mobile phone numbers being …. And ….. linked to [a messaging app] to contact the [mother], and two [social media] usernames […]
Within the past two years, the [father] has been using these platforms to message the [mother] and post about her for other members of the public to view. The [father] has used offensive language to describe the [mother] on multiple posts and has disclosed the [mother’s] account name, encouraging other viewers to support him against the [mother] regarding their children.
These records state that the mother is under the impression that the father has encouraged other people to hunt her if they saw her in public, causing her to be fearful and intimidated.
The record goes on to say “the [father] is the owner of both numbers, which were used to create the [social media] accounts”.
Although I give some weight to the police records that corroborate the mother’s evidence, there is no evidence before me that links the social media page to the father. While the mother suspects it was the father and the police record their conclusion the father was the owner of both numbers used to create the social media accounts, I do not have evidence of such a link. Accordingly, I cannot be satisfied on the balance of probabilities that the alleged threats were made by the father.
Did the father perpetrate family violence after the relationship as alleged?
Based on the evidence above, I find that the father has engaged in family violence following separation, and this is both a risk to the children’s safety and to the safety of the mother.
Current ADVO for protection of the mother and the children
There is a current ADVO against the father for the protection of the mother and the children. In late 2023, the Local Court made a Final ADVO. This ADVO expires in late 2025.
The father said that he consented to this order on a without admissions basis.
The father’s mental health and insight
The mother raised concerns about the father’s mental health and his lack of insight as to the impact of his behaviour, words, and actions on the children and the mother.
The mother contends that the father may have a mental health issue as his mood often changes from being nice to abusive. On 3 June 2021, the mother’s solicitors emailed the father’s then solicitors, seeking disclosure in respect of his past and current mental health. No response was received.
In late 2023, the father reported to police he “felt dead inside” but he “did not make any threats of self- harm”. On this occasion police did not have concerns for his safety.
The police records show that in early 2024, the father was reported to be yelling and that he made threats to harm himself. He then attended the police station where he was asked what he meant when he said he wanted to harm himself and he said he was talking about how someone used to want to kill him, and this has taken a toll on his mental health. He then said he has no thoughts of self-harm.
The father in oral evidence said that he had made calls to hotlines for support, but that they misunderstood him and concluded wrongly that he wanted to self-harm.
The independent evidence supports a finding that the father has, in the recent past, expressed thoughts of self-harm to third parties but then denies thoughts of self-harm. There was no evidence as to any previous or current supports in respect of the father’s possible mental health vulnerabilities provided by the father in his affidavit.
In 2009 the father’s criminal history records that he was discharged from three charges pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The father did not recollect and made no disclosure of any mental health history. This record supports a finding that he has suffered from past mental health challenges. However, there is no evidence as to what these challenges were, nor was there any disclosure by him of any past or current diagnosis or treatment.
Only in cross examination did the father reveal he has recently attended upon a psychologist. As a consequence of this disclosure a late subpoena was issued to his psychologist. The records produced revealed that a referral under a mental health treatment plan was received in mid‑2024 and his initial session occurred a month later. The psychological assessment summary scored him at “extremely severe” for depression, “severe” for anxiety and “moderate” for stress. Reports of suicidal thoughts with no plan were recorded. After completion of the suicide risk assessment, he was found to be at medium risk. It was recorded that he would be attending court for four days next week but that “he was unclear as to why”. The diagnosis recorded was “TBC” and it was noted that “further information regarding progress and recommendations will be provided following his 6^th session”.
Despite the history of suicidal threats being voiced and a history of mental health issues (possibly dating back to 2009), there is no evidence of the father engaging with mental health supports until the week prior to the trial. His diagnosis, prognosis and recommended treatment are not known due to the father’s lack of engagement with any supports until mid-2024 and his failure to disclose.
The single expert opined at [246] of her report dated 18 June 2024, that the father appears to have little insight into how his frustration flows over into threats that could be considered intimidating. The single expert identified that the father has some mental health fragility, being a possible source of harm to himself and others, and opined that his capacity to self-regulate when placed under stress appears “unbridled”. This observation is supported on the evidence as discussed in these reasons, including his behaviour in throwing the water bottle at the mother, the threats he has made and the lack of insight as to the impact of his responses to the children during the supervised visits.
The father’s mental health is a safety issue as illustrated by the police reports of attendances upon the father for mental health issues and suicidal ideation. It is compounded by the father’s lack of engagement with supports until mid-2024.
The single expert expressed concern that the isolation from his children may have been the trigger for his mood, lack of behavioural regulation and impulsivity and that the father’s moderate intellectual disability may have also impacted his behaviour. Irrespective of the cause, the single expert was concerned as to the deleterious impact of the father’s behaviour on the children and the mother.
The evidence supports a finding, which I make, that the father has had a long history of lack of behavioural regulation and impulsivity. His pre-relationship mental health issues remain opaque but were present from at least 2009 and there is no evidence that he has meaningfully addressed them. He has, it seems, only in mid-2024 sought assistance through a mental health care plan.
The single expert observed that “it does seem, however, that since I interviewed the parties two years ago now, there perhaps have not been any significant changes for the father that would scaffold him or support him as a more attuned and sensitive parent who had worked on his mental health”. I agree. The lack of the father’s engagement in seeking any supports until very recently and his failure to disclose his mental health history means the court remains in the dark as to the impact of his mental health past and the future implications to the safety of the children and the mother.
The father has made a number of comments threatening self-harm or otherwise threatening to take action himself including as recently as early 2024. Threats of suicide, threats of assault and threats of taking action are family violence. Threats of suicide are a concerning behaviour that raises the issue as to whether suicidal ideations or threats constitute a risk to the safety of the children. There is no clarity as to the father’s mental health because, despite the period of time over which these threats have been made, there is no corresponding period where the father has had the benefit of mental health supports.
In my view, the threats the father has made together with the father’s long and largely undisclosed mental health history, his lack of engagement with mental health supports or parenting education, and his failure to engage in any behaviour change to address his mental health, all collectively and individually pose a risk to the safety of the children and the mother. It is an unacceptable risk.
Did the father undertake welfare checks on the mother as a form of harassment?
As set out below, I find that the father engaged in behaviour of vengeful use of reports to various authorities, and I find that this behaviour was a form of family violence.
The father agreed he made 50 to 100 welfare check requests to NSW Police. When asked how often he was making these requests, he said “maybe once a week or once every month.” When asked how he thinks the welfare checks would have made the children feel, he said “police are safe people and there is nothing wrong with them coming around”.
The regular welfare checks he sought present a significant safety issue for the children, as the mother’s evidence, which I accept, is that the children have now become fearful of the police. The father did not accept that the children would be frightened having the police coming to the house between 50 and 100 times. This illustrates his lack of insight in respect of the impact of his conduct on the children.
A COPS record dated mid-2020 recorded “On all occasions police have attended the children had been fine”. The record goes on to say “He has also been warned that his continued use of Police to harass the victim could be classed as harassment… Continued use of Police could constitute a Breach of the AVO”. It was reported that the father had attended different police stations “not aware of his history of vexatious requests for welfare checks on the children to continue this harassment”. Despite the records the father remained steadfast in his view that as the father of the children it is his right to request the checks.
The father in cross examination stated it was he and not the mother who had been harassed by police. This answer also illustrates a lack of insight as to the impact of his conduct on the mother.
The father agreed that he had also contacted the Department on multiple occasions to report instances of physical abuse, neglect and educational neglect by the mother. The mother has moved her residence to avoid what she perceived was ongoing harassment by the father through the police and Department reports.
The father’s conduct in making multiple unfounded police welfare check requests and allegations to the Department of neglect, constitutes vengeful harassment of the mother. It has had an impact on the children in their concern as to frequent police attendances and has caused the mother to move her residence. The behaviour is both harassing and illustrative of an incredible lack of insight on the part of the father. He showed no insight or remorse in giving his oral evidence and indeed contended it was his ongoing right as the father to continue to seek welfare checks on the children.
s 60CC(2)(b) – Any views expressed by the child
The single expert opined that the children are not of sufficient maturity, nor do they have a level of understanding to express considered views.
The single expert reported at [242] that the children were not interviewed, presenting as having compromised language and behavioural difficulties. She further opined that the children seemed to have limited cognitive capacity and that X has a formal diagnosis with a developmental delay.
The single expert noted at [242] that it would seem that the parties have implicated the children in conversations about the parenting dispute. The single expert was of the opinion that they need to be removed from involvement in the dispute and require certainty, with responsible adults making informed decisions for them. I agree with these concerns which justify an order as sought by the father for restraints on the mother denigrating the father or communicating with the children about these proceedings.
Given the evidence as to the children’s developmental vulnerabilities and their young ages, that the single expert observed them almost two years ago, and that there is no evidence of their views, I make no finding as to their views.
s 60CC(2)(c) – The developmental, psychological, emotional and cultural needs of the children
The children both have complex needs due to their vulnerabilities.
X has been diagnosed with Global Developmental Delay and has been approved for NDIS assistance, which the mother said provides learning support, a social worker at school, multiple therapists, and medical supports.
Y has been observed to be very oppositional and aggressive at times. The mother’s evidence was that the NDIS is assisting her to undertake an assessment of Y at the present time.
The single expert opined at [101] that:
The observations of the children would suggest that there is some dysregulation in their behaviour and that their attachments are chaotic. In the presence of both parents, the children demonstrated dysregulated behaviour and signs of insecurity. They vacillated between being quite hostile and oppositional and within moments attention seeking and affectionate…
X’s health issues
The mother deposes that X has been diagnosed with moderate Global Developmental Delay, receiving assistance through NDIS. He attends regular occupational therapy, speech therapy and counselling for behavioural issues, and is in a supported class at a mainstream school.
The L Medical Centre records dated early 2019 and G Medical Centre report of mid-2019 identified a number of developmental concerns and diagnosed X with Global Developmental Delay, after undertaking assessments.
The single expert reported at [68] that:
The report from [G Medical Centre] indicated that [X] continued to be in the moderate range of global developmental delay which is likely to be life long and needed more input for all areas of development. NDIS funding, regular speech and occupational therapy, and enrolment in preschool with class support were recommended. A carer’s allowance for [the mother] was also recommended.
In his affidavit, the father agrees that X suffers from developmental delay, however, he links it to the imported medication. As discussed above, there is no evidence that his diagnosis can be linked to the imported product.

The evidence supports a finding that the mother has provided for the children’s needs to a satisfactory level given her engagement with supports and the boys’ school.
As discussed at [235]-[237] above, the children’s connection to their Country E heritage can be met by the mother.
Based on the evidence above, I find that the mother has the capacity to meet the children’s developmental, psychological, emotional and cultural needs.
The single expert observed that the mother seems to be in a constant state of hypervigilance, which is a drain on her being able to attend wholeheartedly to meeting her children’s needs. I accept and give weight to this opinion. The impact of the father’s conduct on the mother’s parenting capacity in circumstances of her ongoing fears for her safety is a factor that I give some weight to in this case.
The single expert opined that the mother’s fear of the father was genuine and formed this view as the mother spoke of her concerns when leaving the interview on 31 October 2022. I accept the mother’s fears are genuine as opined by the single expert and as stated by the mother.
Allegations that the mother has been coaching the children to call the father “uncle”
The father contended the mother coached the boys to call him “uncle” to drive a wedge between himself and the children. He believed that it was something the mother had deliberately encouraged, trained and coached the boys to do.
The mother denied this was the case. Her evidence was that they refer to other men in the family and her fiancé as uncle and that she had heard Y say “uncle” on one occasion inadvertently.
The single expert noted that whilst hearing his children referring to him as uncle may have been upsetting for the father, the father’s poor response was of concern. She said:
I don’t know whether that was maybe some confusion on the children’s part. You know, we’re also dealing here with children who do have some limitations. Certainly, it is – I imagine a parent would certainly feel irate by that. I think what is more important, though, is a parent being able to step back from those feelings and be able to be reflective in their responses rather than reactive.
With reference to Y calling the father “uncle” in the presence of the single expert, the expert opined in oral evidence that:
… there could be many explanations… it may be, yes, that – that the – there has been influence from the mother as to how to address the father. But it could be that they refer to uncles in other contexts and – and there they were in the – the context of being with their father, who – confusion and excitement of the day.
The single expert did acknowledge some of the evidence of the father providing appropriate reactions and responses to the children at other times.
I accept the evidence of the mother that she has not coached or encouraged the children to call the father “uncle”. The supervision centre notes record her as reminding the children to “show respect”. There is no evidence that would otherwise support a finding that she has behaved in the way suggested, of trying to influence the children to do what is alleged. I am not satisfied on the evidence that the instances of the children calling the father “uncle” was due to the mother coaching the children or either of them.
s 60CC(2)(e) – 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
The mother has been the primary carer of the children since they were born. The father said that prior to separation they both cared for the children, however, he tended to the children more when he was not at work and during the night.
The father has not spent time with the children unsupervised since 2020. The children have not seen the father since 4 November 2022.
The single expert concluded from her own observations of the father and from reading the contact notes from B Contact Service that “he has some significant limitations in his capacity to engage with the children in a child focused and age-appropriate manner”.
The father has at times been inconsistent in spending time with the children. In early 2020 the police records report that the father said he was too tired to collect his children. In July 2021 the father stopped spending time with the children due to his financial situation, in November 2022 the father stopped seeing his children after being called “uncle” by one of his children, and in late 2022 the father communicated that he would stop making video calls.
The single expert observed that given the history of the father previously ceasing supervised time, that if that were to occur, the inconsistency of seeing him could create confusion which would not be in the children’s best interests.
Why did supervised time stop?
Following the interim orders made on 3 May 2021, the children spent time with the father six times between May 2021 and July 2021 supervised by M Contact Service. In his affidavit, the father deposed that he then experienced financial difficulties and advised the mother that he was unable to afford supervised time.
In oral evidence, however, the father stated that the mother ceased the time in July 2021. I do not accept his oral evidence that the mother ceased time in July 2021.
The mother contends that in or around November 2021, B Contact Service contacted the mother to book an intake assessment. She said the father informed the service he did not wish to proceed with the booking. She says that in or around April 2022, the father re-engaged with B Contact Service.
The father said he then tried to organise a suitable alternative supervisor and was able to arrange B Contact Service, commencing in July 2022. Time was spent at B Contact Service until 4 November 2022, when the mother ceased the supervised time.
The mother said she ceased facilitating time due to an escalation in the father’s inappropriate behaviour towards the children during the telephone calls. She said the children became more resistant to spending time with the father.
When she was asked how she would comply with any potential order for supervised time if the children were being oppositional, she stated in oral evidence that “the kids have been threatened face-to-face by their father and don’t want to go anymore, but I will try”.
In December 2022 video communication between the children and the father was facilitated. This was the last time communication was facilitated between the children and the father.
As discussed above, I find that time ceased initially by the father ceasing to engage in supervised time due to him saying he had financial constraints. I find that time recommenced from July 2022 until December 2022, when the mother ceased time, she says as a consequence of the father’s conduct, which she said was upsetting to the children. I accept the mother’s evidence as to the children becoming upset from the father’s conduct as this is corroborated by the recording as viewed by the police and as documented in the COPS records. The father’s denial as to his conduct, as I say above, is false. However, what is more significant is that the father has shown a complete lack of insight into the impact of his behaviour, of him swearing and making comments that were confusing and upsetting for the children.
s 60CC(2)(f) – Anything else that is relevant to the particular circumstances of the child
Exposing the children to the parental conflict
I find that both parents have exposed the children to the parental conflict.
The single expert reported that when the children exited from the observation with their father, the mother found it difficult to restrain from speaking about the father and his behaviour in front of the children. When this was addressed with the mother and “her cousin”, the cousin responded that the children were familiar with discussions about the father. The mother denied that she was denigrating the father in front of the children. The mother’s denials also show a lack of insight as to the impact on the children of hearing her discuss the father in their presence.
The single expert stated that there seems to be a lack of insight from each of the parties as to the impact of engaging in the dispute in the children’s presence. The evidence supports such a finding.
The single expert observed that the children have been exposed to trauma perpetrated by their parents, have been exposed to violence, are seemingly aware of the difficult adult dynamics, and are versed in the police being a part of their lived experience.
As set out by the single expert at [104]:
Children who are trapped between two warring camps and witness family protracted family violence and conflict are prone to suffer adverse consequences in their emotional and cognitive development. Depression, anxiety and temperament problems are commonly seen in such children. They also sometimes manifest disorganisation of planning and organising functions, hypervigilance, poor inhibition of inappropriate responses and attention to distractions, resulting in symptoms not unlike A.D.H.D. [X] has been diagnosed on the autism spectrum and with a moderate developmental delay. The extent to which his symptoms are due to his diagnoses or exacerbated by his exposure to trauma and family violence is unclear.
The father has exposed the children to the conflict between the parties, as discussed earlier through the incidents of family violence as perpetrated by him in the presence of the children. The evidence of the single expert also establishes that the mother has exposed the children to the conflict between the parties, in her candid discussion about the father’s behaviour in front of the children. Accordingly, I make an order as sought by the father restraining both parties from exposing the children to the conflict between themselves.
The mother’s privacy and protection
The single expert opined, and I agree, that safeguarding the mother’s privacy is a protective factor that will enable the mother to assume responsible care of the children.
CONCLUSION ON PARENTING ORDERS
I am satisfied on the balance of probabilities that many of the allegations made by the mother against the father concerning his conduct towards her are true. I have set out my specific findings above. That behaviour supports the finding that I make that the father presents a risk of physical and psychological harm to the mother. He assaulted her on more than one occasion and made threats of harm that caused her to be fearful. He also presented a risk of psychological harm to her and the children for many reasons including his conduct and his lack of insight as detailed above.
The father displayed no insight into his behaviour or its impact. He failed to engage with any professional counselling, parenting education or other meaningful supports. He took no responsibility for the impact of his actions.
In respect of the present case, s 60CC(2)(a) requires the court to consider the arrangements that would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the children, and any person who has care of the children.
The determination of arrangements that would promote the safety of the children and any person caring for the children must be considered in the context of findings as to the alleged risk posed, its gravity, the likelihood of it occurring and whether there are arrangements which may ameliorate the identified risk.
It is necessary to then consider what orders should be made that are in the best interests of the children which promote their safety. The discretion to consider which arrangements would be in the best interests of the children is informed by the characterisation of the risk.
The risks to the children from the father as set out earlier in these reasons are both physical and psychological. That exposure to psychological harm has continued notwithstanding the orders for the time to be supervised time.
The single expert opined that there was a high likelihood that if time was unsupervised the father would expose the children to psychological harm. I accept her opinion and am persuaded by it.
I consider that to be so due to the history of family violence including threats perpetrated by him against the mother, his lack of insight as opined by the single expert, the rigidity of his views about welfare checks and the boys’ diagnoses, his dishonesty and false denials as to his conduct including incidents of family violence, his minimisation of his conduct and his lack of engagement in respect of his mental health history.
The risks I have found to the children and the mother arising from the father’s conduct, identified issues of his untreated mental health, and his lack of insight leave no doubt that his proposals for orders are not in the children’s best interest. There would be a significant risk of the children and mother being exposed to family violence and his dysregulated behaviour, including at changeover. This risk arises due to the cumulative effect of the family violence, dysregulated mental health and lack of insight as to the impact of his behaviours.
If the children were to spend supervised time with the father, the physical risks to the boys’ safety may be reduced, however, the risk to the psychological and emotional safety of the children remains unacceptable. The evidence supports the finding that I make, that a contact supervisor would be unable to prevent the children being exposed to his behaviours, as occurred previously during the supervised periods referred to earlier in these reasons, as contained in the B Contact Service records, and as opined by the single expert as being harmful to the children.
There are also significant risks to the safety of the mother. I have set out above the single expert’s opinion as to the impact on the mother’s emotional health by reason of the father’s behaviour, directly by threats, and indirectly through his malicious reports and harassing welfare checks. I accept that the mother is genuine in her expressed fear of the father, her worry about the boys being exposed to the father’s dysregulated behaviour and her fear of being followed after supervised time are genuinely held fears as reported to the police and in accordance with her evidence in this court.
I find that it is likely that, given the mother’s expressed fear of the father, her capacity to provide optimal parenting is likely to be impaired if the children are to spend time with the father, even supervised. The boys have special needs. They need a parent who is able to provide them with stability and continuity of supports and treatment. Any negative impact on the mother from the father’s conduct toward her or the children should be avoided.
The orders proposed by the mother and the ICL have the benefit of protecting the children from the risks identified in these reasons.
Section 60CG(1)(a) and (b) requires me, to the extent it is possible to do so consistent with the children’s best interests, to ensure that any order is not inconsistent with an existing family violence order and does not expose the mother or children to an unacceptable risk of family violence. I consider that the mother would be exposed to an unacceptable risk of family violence should I order that the children spend time with the father.
I do not accept that the evidence supports a finding that the mother presents any risk of harm to the children as contended by the father for the reasons contained in this judgment.
The evidence as to the developmental, psychological, emotional and cultural needs specific to the children support the finding that I make that the mother has the capacity to provide for those needs and has actively been supported by the Department and by the NDIS in managing those needs.
I do not consider that the father has the capacity to provide for the children’s emotional or psychological needs, largely due to his behaviours and mental health issues as identified and observed by the single expert and the supervisors, his demonstrated behaviours towards the mother, his dishonesty and lack of accountability for his own conduct, and his lack of insight.
Should orders for long-term supervised identity contact be made rather than orders for no time with the father?
Caution must be applied in making long-term supervision orders for the reasons set out in Bielen & Kozma (2022) FLC 94-123, and as observed in Norton v Landell [2015] FamCA 125. Each case must be decided on its own facts. Considerations including the cost, the artificiality of the arrangement, and the impact on the meaningful relationship between the children and the parent subject to supervision are relevant considerations. Whilst it is undesirable, it is not an unorthodox approach at law to make orders for supervision to continue in the long-term where the court is satisfied that the time will be in the best interests of the children. This proposition was recently affirmed by the Full Court in the decision of Keighley & Keighley [2023] FedCFamC1A 146 at [130].
The ICL and mother contended that a no-contact order, as opposed to long-term supervision, was the order that meets the best interests of the children.
The evidence is finely balanced.
An obvious benefit of identity time with their father is that such orders enable the children to have some representation of who their other parent is.
It was observed that the boys have had a good relationship with the father at times. The B Contact Service reports record times when the children enjoyed and derived benefit from spending time with the father. The children were observed and recorded as being, at times, excited to see the father. The records also document interactions and experiences between the children and the father that are very positive with occasions where the father responded to difficulties with appropriate responses.
The single expert acknowledged and identified occasions where the father provided appropriate reactions and responses to the children.
These positives must be considered in light of the harm and risk to the safety of the children. Although the consideration of no time versus identity time is very finely balanced, I conclude that the risks are greater than the possible benefits and do not support an order for supervised identity time for the reasons that follow.
The single expert recommended identity contact in her report; however, she clarified in oral evidence that the recommendation of identity contact as opposed to no contact was finely balanced and her reluctance to recommend no time in her written report was because she considered no time with a parent an “extreme order”.
At the conclusion of her cross examination, she expressed that there were significant safety issues associated with long-term supervision of the children. I agree that the evidence supports the finding that I make that there are significant safety issues which are unlikely to ever be ameliorated by long-term supervision of the children.
The single expert agreed that the father may persist with attempting to locate the mother and the children and that is a problem that weighs against orders for identity contact. She said:
I don’t know whether it would be any different if there is no contact, however, whether he would still persist in trying to find the mother and the children. I mean, I guess, there has not been any contact now for a number of years and as lately as earlier in the year, this is still an issue. So – yes, I’m not quite sure what can be done about – yes. I appreciate that the mother has kept her – or been able to keep her whereabouts and her place of residence undisclosed. But there seems to be some seeping through of the father being able to locate or find a way of making contact with the mother. I agree with and give weight to her opinion particularly given the threats the father has made of self harm and of harm to the mother.

I find that given the threats the father made as recently as early 2024, that there is an ongoing risk to the mother and children’s safety if they continue to travel to and from contact centres.
Another compelling reason that weighs against long-term supervision, is that the father continues to have a real lack of insight in respect of the impact of his conduct, his words and his behaviour on the children, even when being supervised. The father’s behaviour recorded by the supervision centre, and the necessary level of intervention by the supervisors at every visit, was significant and illustrates this issue.
Additionally, despite the recommendations in 2022 from the supervisors that the father would benefit from undertaking parenting and other education, he has taken no steps to do so. In the weeks immediately prior to final trial, he engaged with a psychologist. His diagnosis and prognosis remain unknown.
It is necessary for the children to derive benefit from the time with their father, and that benefit to them should outweigh any risk to their safety. I am not satisfied that the potential benefit to the children in having the connection with their father outweighs the many identified safety risks to both the children and the mother.
Accordingly, at the present time, long-term supervision is not in the children’s best interests.
As with many cases, if the father’s circumstances change, for example he seeks the necessary supports, addresses his mental health issues, engages with parenting education or other recommended steps are taken, and he can show a significant change in his circumstances such that s 65DAAA is enlivened, there may be a time in the future where the safety concerns can be adequately ameliorated such orders for spending time will be in the children’s best interests. However, on the evidence before me, that is not the case at present.
Orders for no time
It is a serious matter to make a no-contact order. However, in this instance it would not be safe for the children to have contact or communicate with the father.
A limitation of the single expert report was that the single expert interviewed the parties and observed the children on 31 October 2022 and the report was only completed on 18 June 2024. However, despite the limitations in the report, the expert had the benefit of assessing the parties and considered the subpoenaed material together with the recently filed affidavits. For these reasons I give weight to her opinion as to the safety issues impacting the children and the mother, as to the father’s parenting limitations, and as to the father’s limited insight and history of family violence. I am not satisfied that time orders, even supervised, are in the best interests of the children.
It is the accumulation of all the factors that support an order for no contact. I accordingly make the orders as set out herein and am satisfied that such orders are in the best interests of the children in this matter.
The restraint sought by the ICL in respect of welfare check requests being made to the NSW Police
The ICL sought an order for the father to be restrained from contacting NSW Police for the purpose of requesting welfare checks on the children.
The father’s propensity to engage with authorities to arrange welfare checks is discussed in detail above.
The father made numerous and frequent requests for the NSW police to undertake welfare checks. The mother said that the police attended regularly and sometimes multiple times in a week. She described the police attending her home at all times of the day and night.
The mother described the children becoming fearful of the police. This started when the father would repeatedly threaten sending the police to them. She gave evidence that on occasion, when there was a knock at the door, even if it were not the police, the children would say, “Mum, is this the police, Mum, it’s the police”. She said this was a cause of stress and worry for the boys. The mother’s evidence was that she has gone to lengths to reassure the children that the police are attending to check on them and that it is a positive thing to assuage their concerns.
The father readily agreed that he called the police to undertake welfare checks on the mother and agreed he did so between 50 and 100 times. He contended it was justified as he alleged the mother was neglectful and posed a risk to the safety of the boys. The father in his oral evidence said it is his right to do so and saw nothing wrong with continuing to seek welfare checks.
As outlined above, I find that the father’s use of welfare checks is harassing. Allowing this conduct to continue poses a risk to the psychological wellbeing of the children and the mother for the following reasons.
Firstly, it is a form of harassment of the mother. His welfare checks are not made as a consequence of a concern, but rather, as he sees it, his right as the father.
The father’s conduct in making 50 to 100 requests that the police undertake welfare checks is a form of coercion and control, meeting the definition of family violence set out in s 4AB.
Secondly, it is upsetting and confusing for the children. X has Global Developmental Delay and has particular vulnerabilities. Y is oppositional and also likely has some vulnerabilities, as discussed above, although he is yet to be assessed by the NDIS.
Thirdly, the mother said she moved residence to avoid the ongoing harassment of the welfare checks. The necessity to move from the home in which they are familiar and away from supports is not in the best interests of the children, particularly with their vulnerabilities.
Finally, the children are both at school and X has NDIS support including a social worker who attends class with him. Both children attend upon various therapists and medical professionals. The teaching staff, social workers, and medical professionals are all mandatory reporters. This creates a network of supports and a safety net in the event the children’s welfare was in any way compromised. If there was any issue with neglect or risk, I accept that such agencies and individuals would make the required report.
It is also significant to note that the Department has had prior involvement with the family.
The mother has been the subject of around 50 reports by the father. Thirty-five of those reports were considered by the Department to be malicious. It was submitted, therefore, that 15 were not and support a finding of the mother’s neglect. I do not accept the submission. While 15 of the reports were not classed as malicious, many of the reports identified the issues of the children’s vulnerabilities and exposure to family violence as the matters of concern. The Department has closed the file after referring the mother to other appropriate supports.
I am satisfied that an injunction should be made restraining the father from making such requests in the future. As I say, there are multiple mandatory reporters and professionals who provide a safety net such that the restraint does not pose a safety concern for the children.
I note that counsel for the father in submissions stated that he has no issues with such an order being made.
The restraint sought by the mother upon the expiration of the existing ADVO
The mother sought an injunction in the following terms:
4. Pursuant to section 68B of the Family Law Act 1975 and for the personal protection of the mother and children, the father is restrained from contacting the mother and children (or any of them) in any manner whatsoever, and from entering into any place where they live, work and/or attend education or extracurricular activities.
I raised the issue of s 114AB(2) of the Act, noting that there is a current ADVO which expires in late 2025.
A court of competent jurisdiction has issued an ADVO. The mother could seek to extend the order upon its expiration. The mother contended that given the father’s behaviour, such an injunction should be made to take effect upon the expiration of the ADVO.
The children have not spent time with the father since 4 November 2022. He has, however, continued in his conduct of seeking welfare checks, making reports to the Department and behaving in a way that is threatening and causes the mother concern. As recently as early 2024, he is reported to have said to the Department “I will do my way. I will smash and burn this place and barricade myself in the home and it is only then the police and all people will listen to me”. The father was banned from Legal Aid due to his threatening conduct, and at B Contact Service said he would “crack her” which, despite his denials, was threatening. The lack of insight of the father as detailed elsewhere in these reasons, in conjunction with the family violence the father has perpetrated and his ongoing threatening conduct, supports a finding that such a restraint is necessary.
I am satisfied that I can make an order, upon the expiration of the exiting ADVO. It will remove the necessity for the mother to make a further application and engage in further proceedings with the father.
OTHER ORDERS
The father sought orders for sole decision-making for the children, for the children to live with the father and spend four nights a fortnight with the mother in addition to time in the school holidays and on special occasions, and orders providing for changeover between the parties. The father also sought ancillary orders surrounding the health of the children, communication between parents, communication with the children, restraints, interstate and overseas travel, and implementation. Each of these ancillary orders will be dealt with in turn.
Parental Responsibility
I have made orders for the mother to have sole parental responsibility and sole decision-making responsibility for the reasons that follow. Given the findings I have made above as to the father’s behaviour, the impact of his conduct on the mother, their inability to communicate, the existence of the ADVO and the father’s limited insight into the impact of his conduct, it is not in the best interests of the children for the father to hold parental responsibility and decision making. I have not found the father’ allegations of neglect by the mother to be made out on the evidence. The mother has been involved with and supported by the Department and the mother has been appropriately exercising parental responsibility, noting the special needs of both children including engaging with NDIS and other supports and this should continue.
Health
In the father’s Further Amended Initiating Application Orders 9 to 11 he seeks orders for notification as to health issues for the children and an order permitting both parents to remain at the hospital while the children receive treatment, and if just one parent is permitted to remain that it be the father.
As set out above, X has Global Developmental Delay and Autism Spectrum Disorder. He regularly attends occupational therapy, speech therapy and counselling. It would not be appropriate, noting the findings I have made above, to order that the mother inform the father every time the children receive treatment from their doctors, particularly with X’s ongoing health issues and frequent treatments.
As referred to in these reasons the mother has been exposed to multiple welfare checks and has been threatened by the father. Additionally, he lacks insight in respect of his conduct and its impact. In circumstances where I have made orders for the mother to hold decision-making responsibility, and for the father to have no contact with the children, it is in the best interest of the children to make Orders 9 and 11 as sought by the father.
Communication between the parents
The father sought orders providing for the way in which communication between the parties should occur. The mother has sole decision-making responsibility for the children. There is an ADVO in place and upon that expiring, a further injunction ordered which restrains the parties from communicating. The father’s orders sought in relation to communication between the parents are not in the best interests of the children and are refused due to the reasons set out above and due to the potential deleterious impact on the mother’s parenting of the two children.
Communication with the children
An order for the children to have no time or communication with the father has been made which prevents the father from communicating with the children. The ADVO in place and subsequent injunction ordered by this court, also operates to prevent the father from communicating with the children.
These orders are considered in the best interests of the children in circumstances where, as set out in these reasons, the father has engaged in inappropriate communication with the children as illustrated by the findings in relation to his comments and behaviour during supervised time and when having the video calls that were upsetting and confusing to the children as referred to earlier in these reasons.
The father’s orders sought for communication with the children are dismissed.
Restraints
The father’s Order 16 sought various restraints against each parent. The restraints sought in Orders 16.1, 16.2, 16.3 and 16.6 have been made.
These restraints concern the parties physically discipling the children and the parties exposing the children to parental conflict.
The mother said that she occasionally uses physical discipline on the children and has previously smacked the children. The parties were also subjected to a restraint against the use of physical violence in the interim consent orders of 2 May 2021. Although I make no finding that the mother has been physically abusive towards the children, I am satisfied that a restraint against both parties from physically assaulting the children as a means of discipline, is appropriate.
Both parties have been found to have exposed the children to parental conflict and as per my reasoning above at [300]–[308], in these circumstances, I make the orders as sought by the father restraining the parties from doing so.
Interstate and overseas travel
Interstate and overseas travel and passport orders have been made on the terms sought by the mother and the ICL. It is in the children’s best interests that they have access to their cultural connections to their Country E heritage. I am satisfied that the mother appreciates the safety issues involved with travel to Country E at the present time and accept her evidence that she will not travel to a location that is unsafe. However, if it is safe to travel at a time in the future, it is appropriate that the children be permitted to maintain a connection with their siblings who are overseas and the culture of both of their parents.
In circumstances where I have ordered the children have no contact with the father, his orders in respect of travel are dismissed.
Implementation
Finally, the father sought orders that in the event of a dispute regarding the implementation or enforcement of the orders or any other matter regarding the welfare of the children, that the parties attend counselling or mediation prior to making an application to the court to vary the orders. The rules set out the necessary steps prior to filing an application. The orders sought are unnecessary.
CONCLUSION
I am satisfied that the orders made are in the best interests of the children for the reasons set out herein.

I certify that the preceding three hundred and eighty-two (382) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Curran.
Associate:
Dated: 22 November 2024

File number(s):	PAC 2256 of 2020
Judgment of:	CURRAN J
Date of judgment:	22 November 2024
Catchwords:	FAMILY LAW – PARENTING – Where mother seeks children spend no time with father – Where older child is neurodiverse – Where mother alleges father perpetrated family violence during and after relationship – Where father poses risk to children arising from family violence, mental health and lack of insight – Where father alleges mother has exposed children to neglect – no evidence of neglect – Where father is a risk to the children’s and the mother’s safety – Where father has limited capacity to provide for the children’s developmental, psychological, emotional and cultural needs – Orders made for mother to have sole decision making responsibility – Where long-term supervision is considered – Where orders made for children to spend no time and have no communication with father
Legislation:	Australian Passports Act 2005 (Cth) s 11 Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61B, 61C, 61CA, 61D, 64B, 65DAAA, 65Y, 68B, 114AB Mental Health (Forensic Provisions) Act 1990 (NSW) s 32
Cases cited:	Bielen & Kozma (2022) FLC 94-123 Corporate Affairs Commission NSW v Yulli (1991) 172 CLR 319 Eastley & Eastley (2022) FLC 94-094 Isles & Nelissen (2022) FLC 94-092 Keighley & Keighley [2023] FedCFamC1A 146 Norton v Landell [2015] FamCA 125
Division:	Division 1 First Instance
Number of paragraphs:	382
Date of hearing:	26, 27, 29 & 30 August 2024
Place:	Sydney
Counsel for the Applicant:	Mr Fantin
Solicitor for the Applicant:	Jack Rigg Solicitors
Counsel for the Respondent:	Ms Mattar
Solicitor for the Respondent:	Choice Law Group
Counsel for the Independent Children's Lawyer:	Dr McConaghy
Solicitor for the Independent Children's Lawyer:	Ark Law Lawyers

PAC 2256 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR CIZIK Applicant
AND:	MS JANDOVA Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CURRAN J
DATE OF ORDER:	22 NOVEMBER 2024