Clifford & Spring - [2022] FedCFamC1F 165

Federal Circuit and Family Court of Australia
(DIVISION 1)
Clifford & Spring [2022] FedCFamC1F 165

File number(s): SYC 3696 of 2011

Judgment of: CAMPTON J

Date of judgment: 1 April 2022

Catchwords: FAMILY LAW – CHILDREN – Where it is uncontroversial that the child should live with the mother – Where the remaining issues to be decided are parental responsibility and the time that the father should spend with the child, if any – Where the Court is satisfied on the evidence that the father perpetrated physical violence and coercive control towards the mother as alleged – Where it is recommended by the Court Child Expert that if the court is satisfied that the father perpetrated family violence, the child should spend no time with the father – Finding that the child would be at an unacceptable risk of harm should he spend unsupervised time with the father – Where in the circumstances, the accumulation of risk factors weigh against the child spending permanently supervised time with the father – Order that the child spend no time with the Father.

Legislation:
Australian Passports Act 2005 s 11

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 60CG, 61B, 65D, 65DA, 65Y

Cases cited:
Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196

B & B (1993) FLC 92-357

Bayer & Imhoff [2010] FamCA 532

Blinko & Blinko [2015] FamCAFC 146

Briginshaw v Briginshaw (1938) CLR 336; [1938] HCA 34

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76

Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96

G & C [2006] FamCA 994; [2006] FamCA 994

Gorman & Huffman & Anor [2016] FamCAFC 174

Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235

Keane & Keane & Anor (2021) 62 Fam LR 190; [2021] FamCAFC 1

Lennox & Lennox [2016] FamCA 367

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

Mazorski & Albright (2007) Fam LR 518; [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108

Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76

Re Andrew (1996) 20 Fam LR 538

Slater & Light (2013) 48 Fam LR 573 [2013] FamCAFC 4

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Division: Division 1 First Instance

Number of paragraphs: 317

Date of hearing: 14 – 16 February 2022; 22 February 2022

Place: Sydney

Counsel for the Applicant: Mr Hill

Solicitor for the Applicant: Jacqui Griffin Mobile Solicitor

Counsel for the Respondent: Ms Carr

Solicitor for the Respondent: David H Cohen & Co

Counsel for the Independent Children’s Lawyer: Ms Blackman

Solicitor for the Independent Children’s Lawyer: Legal Aid NSW
ORDERS

SYC 3696 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR SPRING

Applicant

AND:
MS CLIFFORD

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

CAMPTON J

DATE OF ORDER:

24 March 2022

THE COURT ORDERS THAT:
1.All prior parenting orders in relation to X, born in 2009, (“X”), be discharged.
2.The mother, Ms Clifford, have sole parental responsibility for X.
3.X live with the mother.
4.There be no order as to time spent between the X and the father, Mr Spring.
5.That save and except for in compliance with Order 6 below, the father shall be restrained from communicating with X.
6.The father be at liberty to send one card and one gift to X at Christmas, Easter and X’s birthday in each year to a postal address to be nominated by the mother in writing within 14 days of the date of this order, and the mother be at liberty to read the card and open the gift before providing the card and/or gift to X so as to ensure that the card and/or gift is appropriate for the child to receive.
7.That the Independent Children’s Lawyer provide a copy of these orders and reasons for judgment to X’s treating psychologist, Ms B.

AND BY CONSENT IT IS ORDERED THAT:
8.The parties forthwith do all things to ensure X’s name is removed from the Airport Watchlist.
9.Pursuant to s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), X be entitled to have an Australian travel document including but not limited to an Australian Passport, and to give effect to this Order, the mother is permitted to complete, sign and lodge any application for issue and/or renewal of X’s Australian passport, or any other document required to allow X to travel outside the Commonwealth of Australia, without the need to obtain the Father’s consent.
10.It is requested that the Department of Foreign Affairs and Trade (Australian Passports Office) issue and renew an Australian Passport for X upon application of the Mother alone in accordance with Order 9 hereof.
11.For the purposes of s 65Y(1)(c)(ii) of the Family Law Act 1975 (Cth) the mother is permitted to take or send X outside the Commonwealth of Australia without the need for the Father’s consent.

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

The father, Mr Spring (“the father”), is the applicant to these proceedings and the mother, Ms Clifford (“the mother”) is the respondent. Each party seeks orders as to the parenting of their child, X, born in 2009 (“X”). X is approaching 13 years of age and has just commenced high school.
The parents began living together in 2008 and separated in late 2010. At that time X was nearly two years of age.
Litigation as to the parenting of X first commenced in the Federal Magistrates Court (as it was then) on 17 June 2011 and concluded by way of final consent orders made on 11 April 2013. The parenting dispute was reignited by the father filing an Initiating Application on 21 February 2015. The parents have engaged in litigation for over nine years of X’s life.
Following the parties’ separation in late 2010 X has lived with his mother. It is agreed that X will continue to live with his mother.
X is a vulnerable child. His treating paediatric specialist recorded that X lives with diagnoses of Autism Spectrum Disorder (“ASD”), Attention Deficit Hyperactivity Disorder (“ADHD”), cognitive ability in the low to low average range, learning difficulties and anxiety. His parents at trial referred to X’s vulnerabilities as including a “mild intellectual disability” and a “global developmental delay”.
The mother contends that X would be exposed to an unacceptable risk in the event he spends time with his father, even if that time is supervised. It is her case that her own and X’s experience of family violence occasioned by the father has adversely impacted on her mental health and created great stress and anxiety for her and X. She contends that the father’s capacity to control his anger and rage is deficient and that this will lead X to experience further developmental deficits and mental health challenges upon further exposure to family violence as he progresses into adolescence. It is further her case that any continuation of the hostile and dysfunctional co-parenting relationship of she and the father as X’s parents will compromise her capacities as the uncontested and sole parent with whom X is to live. She says that places her in a position of vulnerability should X continue to spend even supervised time with his father.
The mother has lived with mental health challenges since her teenage years, including severe depressive illnesses and anxiety. She is currently treated by way of a prescribed regime of medication and has the benefit of her treating psychologist, Mr C, whom she has engaged for about ten years.
The father gives a different version of intense physical violent exchanges between the parties, directing responsibility for those exchanges to the mother. He is critical of the mother’s day to day parenting of X. He contends that the mother has manufactured evidence for perceived forensic gain in this long running parenting dispute. He submits that the mother has no capacity to facilitate a meaningful relationship between himself and X. He seeks an order for equal shared of parental responsibility and to spend unsupervised time with X on weekends and during school holidays.
At the commencement of the trial the Independent Children’s Lawyer (“ICL”) expressed a view that an order for sole parental responsibility should be made in favour of the mother. In submissions, she sought orders that X continue to spend supervised time with the father at J Services (“J Services”), but that the frequency of that time be reduced to four occasions per year.
For the reasons that follow the mother shall have sole parental responsibility for X, X shall live with the mother and spend no time with the father. The father shall be permitted to send X a card and a gift on his birthday, Easter and Christmas. To the extent that it is required, X shall be permitted to travel overseas with his mother, and she shall be permitted to apply for an Australian Passport for X without the father’s consent.
X
The mother has established a scaffold of professionals who assist X in the management of his challenges, including a regular treating general practitioner, an orthopaedic therapist, a speech pathologist, a psychologist and a specialist paediatrician. X has an NDIS plan that commenced in early 2020.
Each of the parents in their oral evidence said that the observations made by X’s occupational therapist in her most recent assessment of X on 10 March 2021 were accurate. Those observations included that:
•[X] can often do things a harder way than is needed.
•He can be stubborn and uncooperative and have temper tantrums.
•He needs positive support to return to challenging tasks, can get frustrated easily, is sensitive to criticisms, and can be too serious.
•He has definite and predictable fears (currently, lizards and the house burning down).
•He needs more protection from life than others.
•He becomes distressed with changes in plans, routines, or expectations. He will ask repetitively about why things have changed.
•He has difficulty reading body language or facial expression and has difficulty making and maintaining friendships.
•[X] struggles to maintain attention and will watch all actions happening in the room.
X experiences sensory sensitivities including noise and touch. He has encountered challenges at school compounded by intellectual and learning difficulties. He has found it difficult to form and retain friendships. His mother said he has been bullied at school. He has exhibited violence towards other children, including using scissors against another child and on a separate occasion, punching another child.
X has recently started High School in Year 7 at a new school, M School. The mother at trial said that since the start of the school year, she has been called into the school twice to address concerns raised about X’s behaviour.
The mother in her affidavit said that:
150.[X] finds it very hard to make and keep friends. His autistic traits seem to grow each year, and bring new challenges. He fixates on things, and cannot let something go. He will keep asking the same questions over and over, and he finds it extremely hard to tell the difference between something said seriously or in jest.
This evidence of the mother is unchallenged and I accept it.
The evidence
The father relied upon the following documents:
·His Amended Response, filed on 22 July 2021;
·His affidavit, sworn and filed on 27 October 2021; and
·His Case Outline, filed on 8 February 2022 and marked as Exhibit “F1”.
The mother relied upon the following documents:
·Her Response to an Initiating Application, filed on 25 June 2021;
·Her Notice of Risk (as it was then), filed on 26 May 2015;
·Her affidavit, sworn and filed on 25 June 2021;
·The affidavit of Mr D, sworn and filed on 25 June 2021;
·Her Case Outline, filed on 7 February 2022 and marked as Exhibit “M1”; and
·A tender bundle comprising four documents and 21 pages, and marked as Exhibit “M2”.
The ICL relied on the following documents:
·A Case Outline, filed on 7 February 2022, and marked as Exhibit “ICL1”;
·A tender bundle comprising 69 documents and 248 pages, marked Exhibit “ICL2”;
·A supplementary tender bundle containing supervisor reports for the period 31 October 2020 to 29 January 2022, comprising 46 pages and marked Exhibit “ICL3”.
Each party also relied on the report of the Court Child Expert, Ms E, published on 7 August 2020 (“the Family Report”).
Exhibits
·CRTX1          Family Report of Ms E, dated 7 August 2020
·F1                   Father’s Outline of Case
·M1                  Mother’s Outline of Case
·ICL1              ICL’s Outline of Case
·ICL2              ICL’s tender bundle
·ICL3              ICL’s Supplementary tender bundle
·M2                  Mother’s tender bundle
·ICL 4              ICL’s Minute of Orders Sought
I have read all of the evidence relied upon in the proceedings, but do not propose to repeat it in these reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]:
… A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not property considered the losing party's case.
The competing applications
Although not specifically sought by either parent or the ICL, it was agreed during the trial that all existing parenting orders in relation to X should be discharged.
Orders sought by the father
The father sought orders in the following broad terms at the commencement of the trial:
(a)That the parents have equal shared parental responsibility for X;
(b)That X live with the mother;
(c)That X spend unsupervised time with the father every second weekend from the conclusion of school Friday to the commencement of school Monday, for one half of each terms school holiday period; and
(d)That each parent is to encourage and facilitate telephone communication between X and the other parent when he is in their care.
In the course of closing submissions, the father’s counsel said that the father would agree to an order that the mother have sole parental responsibility “on conditions”. He did not specify the conditions. He said that changeover for unsupervised time spent should occur at J Services, at times suitable to that service. No evidence was adduced as to whether or when the service could facilitate such changeovers.
Judgment was then reserved at 2.35 pm on 16 February 2022.
At 5.21 pm on 16 February 2022 the solicitor for the father forwarded to my chambers by email a Minute of Order containing different terms to the Minute of Order prosecuted at trial and contained in Exhibit F1. The proceedings were relisted on 22 March 2022 in anticipation of an application by the father to reopen.
On that date, the solicitor for the father appeared. The Minute of Order received in chambers on 16 February 2022 was marked as MFI-Z. I sought from the solicitor for the father clarification as to any amendment to the orders to be sought by the father as identified Exhibit F1 or as partially identified in submissions. The solicitor for the father advised that the father did not require an opportunity to reopen the proceedings and that he does not prosecute the relief contained in the Minute of Order marked as MFI-Z. She was otherwise unable to clarify for the Court the terms of the amended orders sought as referred to but not articulated with any particularity in submissions identified by the father’s counsel at trial.
Absent the legal representatives for the father seeking leave to prosecute an alternate Minute of Order sought and/or accepting the opportunity afforded by the Court to apply to reopen the father’s case or clarify with some precision any variation to the terms of the parenting orders he seeks, I will determine the matter on the basis of his proposal as identified at the commencement of the trial in Exhibit F1.
Orders sought by the mother
The mother sought orders in the following broad terms:
(a)That the mother have sole parental responsibility for X;
(b)That X live with the mother; and
(c)That there be no order made as to time spent or communication between the father and X.
Orders sought by the ICL
The ICL sought orders in the following broad terms:
(a)That the mother has sole parental responsibility for X;
(b)That X live with the mother;
(c)That X spend time with the father on four occasions during the school holidays each year, supervised at J Services; and
(d)That the mother inform the father in the event of any medical illness, medical emergency, or accident which requires X to be hospitalised.
Agreed issues
·That X be permitted to travel overseas, that his name be removed from the Airport Watchlist, and that the mother be permitted to apply for a passport on X’s behalf.
Background
The mother and father commenced their relationship in early 2008 and began living together in early 2009.
The father has a child from his previous relationship, Mr Q, born in 2001 (“Mr Q”). Mr Q was about seven years old at the time of the parties’ cohabitation and was living in a shared care arrangement between the father and his previous partner, Mr Q’s mother.
X was born prematurely in 2009. He remained in hospital for some weeks after his birth.
The mother at that time was working but took time off as maternity leave. She returned to work on a part-time basis three months after X’s birth, initially for about 15 hours per week and then increasing to three days per week from early 2010.
The mother was diagnosed with post-natal depression in mid-2009. It was uncontroversial that she has encountered mental health challenges since her teenage years, including both major depression and anxiety. Her depression persisted from that time. She has been prescribed and complies with a regime of anti-depressant medication.
In late 2010, the mother was admitted to F Medical Services, a mental health treatment facility, where she remained until late 2010, being a period of about seven weeks. X was cared for by the father during this period.
The mother lived at her aunt and uncle’s home after her discharge from F Medical Services. She returned to the former family home where the father, X and Mr Q lived, to care for X during the day.
The mother asserts that the father was violent towards her throughout their relationship, culminating in a physical altercation between the parties in late 2010. Each party contends a different version of events of that date, which I will return to later in these reasons. This physical altercation in late 2010 marked the parties’ ultimate separation.

In total, the parties cohabited for less than two years.
The mother remained at her aunt and uncle’s home for some time after separation and X came to live with her. Although the father gave affidavit evidence of not seeing X between when he was one year old (being at separation) to the time that he was three years old, it became obvious from the parties’ oral evidence that was not the case. My overall impression from the evidence was that X lived between the parties for part of this period in a shared care arrangement. He lived predominantly with the mother and spent approximately each alternate weekend with the father. Mr Q remained living between the father’s and his mother’s homes after separation.
There were a series of incidents between the parties after separation resulting in the mother successfully obtaining an interim AVO against the father in mid-2011. One day prior, the parties engaged in an argument at changeover for X, where the father ended up on the roof of the mother’s car (“the mid-2011 incident”). Each party blamed the other for that incident. The AVO became final in mid-2011 for a period of two years. The mother alleged a number of breaches of the AVO by the father. He was convicted of five breaches of the AVO.
The mother commenced proceedings in the Federal Circuit Court on 17 June 2011.
On 11 April 2013 the parties entered into final parenting Orders by consent (“the 2013 Orders”). The regime of care for X prescribed by the 2013 Orders provided for X to live with the mother, that she have sole parental responsibility for most major long-term decisions, and for X to spend time with his father each alternate weekend and for additional time in the school holidays. The Orders also provided a mechanism for the renewal of X’s passport and for him to travel overseas with the parties, being:
13.THAT neither party shall unreasonably withhold their consent in relation to the obtaining and issuing of a passport for [X].
14.THAT prior to any overseas travel with the child occurring, other than for the purpose of a family emergency, the party intending to take the child overseas must:
14.1Provide at least 28 days’ notice to the other party of their intention to travel overseas with [X]; and
14.2Provide no less than 14 days prior to [X’s] departure, a copy of the [X’s] itinerary, return airfare ticket and details of where [X] will be staying whilst overseas to the other parent.
At trial the parties each put into issue the other’s compliance with the 2013 Orders.
The mother commenced a relationship with her current partner, Mr D, in February 2014. Mr D and the mother do not live together however spend time together with X on the weekends.
The mother instituted a process of compliance with the 2013 Orders in August or September 2014 to allow her to travel with X and Mr D to Country P in early 2015. There were some issues with obtaining a passport for X, which were eventually resolved.
The mother intended to depart Australia with Mr D and X for Country P in early 2015. One day prior, the father made an urgent application to the Federal Circuit Court that X be placed on the Australian Federal Police’s Airport Watchlist. His application was granted on that same day, preventing X from holidaying in Country P with the mother. I will return to this event later in these reasons.
On 10 March 2015 the father recommenced proceedings in the Federal Circuit Court by way of an initiating application seeking a variation of the 2013 Orders. The father’s application renewed and elevated the level of conflict between the parties. In March 2015 a further series of incidents occurred between them causing the mother to apply for a further interim AVO against the father in mid-2015. That interim AVO was made final in early 2016 for a period of six months.
The conflict between the parties continued into and beyond 2016. The mother contended that the father persisted with what she described as controlling and abusive behaviour towards her. He was charged in 2016 with two breaches of the AVO made in early 2016. The proceedings were transferred from the Federal Circuit Court to the Family Court of Australia on 23 July 2015.
As discussed later in these reasons, in late 2016, the father assaulted his son Mr Q, while X was in his care and present. He was charged with and convicted of an offence upon Mr Q, following a defended hearing at Suburb K Local Court.
On 21 February 2017, interim orders were made by a Senior Registrar providing for the father to spend supervised time with X at O Contact Centre, Suburb N on 21 February 2017. The father, by his own election, did not spend any time with X from that date until after the making of orders by Henderson J on 23 May 2019.
The father did not have contact with X for a period of some two years and seven months, being between February 2017 and September 2019.
From 21 September 2019, the father has exercised supervised time with X at J Services in accordance with the 2017 orders.
Family Violence
The mother’s case was that family violence is a central issue in these proceedings and that it is necessary to make findings about these allegations in order to determine the best interests of X. She contended that if findings of family violence are made in accordance with her allegations, then such findings explain her extreme reluctance to facilitate a relationship between X and the father.
The Court Child Expert pivoted her conclusions and recommendations in the Family Report substantially on the Court’s findings as to family violence.
Family violence is defined in s 4AB(1) of the Act as:
(1)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 4AB(2) provides a non-exhaustive list of behaviour that may constitute family violence, and relevantly for these proceedings includes:
(a)       an assault; or
(c)       stalking; or
(d)      repeated derogatory taunts; or
(e)       intentionally damaging or destroying property; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member or any member of the family member’s family, of his or her liberty.
Section 4AB(3) states that a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”. A further non-exhaustive list of situations that may constitute a child being exposed to family violence is given at s 4AB(4), and includes relevantly for this matter:
(a) overhearing threats of death or personal injury by a member of the child’s family to another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
In cases involving allegations of abuse or family violence, a positive finding of abuse should not be made unless the Court is so satisfied on the burden of proof, and having regard to the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding” (M v M (1988) 166 CLR 69 (“M & M”), citing Briginshaw v Briginshaw (1938) CLR 336 at 362). The Court’s reasonable satisfaction “should not be produced by inexact proofs, indefinite testimony or indirect inferences”.
The Full Court held in Amador & Amador (2009) 43 Fam LR 268 (“Amador”) that a trial judge should make findings in relation to abuse or violence between the parties if “they are available and necessary to determine what is in the best interests of the child”. The Full Court went on at 269:
(v)It is important not to confuse what has been said by the High Court and the Full Court as to the obligations on a trial judge to make positive findings of fact in relation to allegations of abuse or sexual abuse against a child where parenting orders are sought and where the test to be applied is “unacceptable risk”, with the circumstance in a parenting case where allegations have been made of domestic violence and/or assault by one party upon another. In the latter case it will be necessary for the court to make findings where the evidence enables that to be done.
Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable (M v M at 77).
Each aspect that directs towards a finding of unacceptable risk need not be proved on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or only some of which are proved to that standard, although “a judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof” (see Johnson & Page (2007) FLC 93-344 at [68]).
In addition to the provisions of ss 60CC(2)(b), 60CC (3)(f)(i)(j) and (m), which are referred to in Amador as matters which may be significantly impacted by findings that a party has assaulted another party. In these proceedings there are a number of specific contentions about matters relating X’s best interests that depend upon findings as to the family violence. This includes issues as to parental responsibility.
According to the mother’s affidavit, the father perpetrated family violence against her throughout their relationship and after separation. She asserted that the father was also a perpetrator of family violence towards his previous partner, Mr Q’s mother. The father generally denied that characterisation, although he made some concessions as to violent conduct under cross-examination. He said it was not him but the mother who was the perpetrator of family violence during their relationship. In his affidavit evidence, the father said that “the angry outburst (sic), strong mood swings and use of foul language was from [the mother]”.
I will not make a general credit finding in relation to the parties and then accept or reject each party’s case on this basis. Rather, I will approach the making of findings by looking to matters such as consistency of a particular version with undisputed facts, corroboration by other evidence that is independent and/or likely to be reliable, concessions made under cross-examination and internal consistency with each party’s case. Some allegations made by the mother are not specifically disputed in the father’s affidavit and were not challenged under cross-examination. Conversely some concessions of the father in cross-examination were inconsistent with his general position denying family violence.
2007 Incident
In late 2007 the father was convicted of an offence following an incident between him and the brother of his former partner (being Mr Q’s mother) earlier that same year. Police records of the incident formed part of the mother’s tender bundle at Exhibit M2. The police records depict an intensely violent attack by the father on his former partner’s brother, being that the father punched him in the face and the victim fell to the ground.
In cross-examination the father’s account of the incident emerged to be that he engaged in an argument with his former partner outside his residence in early 2007 when she attended to collect some of her items. He said that at the time he and his former partner had obtained AVOs restraining their conduct and behaviour directed as against the other. He said that during the course of their argument, his former partner’s brother arrived at his property and became involved in the dispute, and that he punched the partner’s brother “once or twice”. He recalled the brother falling to the ground and crying out. The father’s explanation was that punching his partner’s brother with such force that he fell to the ground screaming in pain was a “reflex action” taken in “self-defence”.
The father entered a plea of guilty to the criminal charge and was convicted.
On the father’s version of events alone, he was on this occasion a perpetrator of serious family violence against his former partner and her brother and I so find.
Violence during cohabitation
The mother in her affidavit said that the father perpetrated family violence against her throughout the relationship. Her evidence as it pertains to this period is broad and generalised. She said that the father was verbally abusive and constantly critical of her. She said that he denigrated her and was controlling towards her, for example, by directing the way in which she parented X. It was her evidence that the parties argued frequently. She said that the father’s conduct towards her during the relationship “adversely impacted on [her] health, both mentally and physically”.
At some unspecified point during their relationship, the mother said that the arguments between the parties “escalated and became louder and more frequent”, and that the father became physically aggressive towards her. Her affidavit recorded:
21.When I would leave to avoid confrontation in the presence of the children, [the father] would block my way and berate me. He had to have the last word. If I managed to get to the door, he would take away my keys as well as my mobile phone so I could not leave or call someone to pick me up. [The father] would often have angry outbursts when [X] and [Mr Q] were present which was very distressing for them.
She also alleges that the father leveraged her poor mental health as threats towards her, for example, by him saying “I am going to ensure you get committed” and “…you should save everyone the time and effort and just lay down on the railway line.”
As to the mother’s experience of family violence during the parties relationship, the Court Child Expert expressed:
95.By [the mother’s] account, [the father’s] predominant behaviour during their relationship was characterised by physical, emotional and verbal abuse, and an array of other severely controlling, manipulative and domineering tactics. The intensity of such physical violence, if true, is extremely worrying, and would suggest that [the father] may have acted deliberately or lost control and flew into a blind rage. This would indicate that [the father’s] behaviour may be unpredictable and, as such, his apparent response to stress may pose significant risks to [X].
The father’s affidavit was largely silent as to the incidents of family violence described by the mother during the relationship, save to say that he “[did] not agree”. He did not provide an alternate version of events where he said he did not accept the mother’s version.
During his interview with the Court Child Expert, the father countered the mother’s allegations by directing the focus of his interview to the mother’s conduct, which he alleged to have been characterised by family violence perpetrated against him. The Family Report records:
49.[The father] claims that [the mother] was “very difficult” to live with. He said that she was verbally abusive of him, “yelling and screaming” at times. He claims that [Mr Q] once disparaged [the mother] “you’re a psycho”, and [the mother] hit [Mr Q] “with rings on the back of her hand”. [The father] alleges that he has witnessed [the mother] engage in “hair pulling and slapping” during a heated argument with her cousin or her cousin’s daughter. He claims that [the mother] was controlling of him and that she would “dictate when and where I could work”. He said that such controlling behaviour extended to his diet, by way of her restricting certain foods he could eat, such as bread and “not eating yeast for two weeks”.
50.[The father] alleges that [the mother] chased him around the former marital residence with wooden [figures] and “threatened to crack my head open”. He said that [the mother] once threw a heavy [object] at his head and pushed and shoved him. He said that [the mother] would sometimes “push me to get a reaction out of me”. [The father] acknowledged that “things have been said” about him, but that “sometimes you can get pushed so far you get pushed to breaking point”. He asserted that there are always two sides to every story. He said, “I’m not saying I’m an angel, but she’s not Snow White either”.
The father did not prosecute a case as to the mother’s alleged family violence at trial, nor did he contend that she presented a risk to X resulting from her mental health issues.
During his cross-examination the father denied that he was verbally abusive towards the mother during their relationship but then conceded that he said some insulting things to her from time to time in the course of heated arguments, and that he could recall the mother pushing him and him pushing her back.
The father in cross-examination said that he raised his voice at the mother “on occasion”, but that he didn’t scream at her. He admitted calling her a “bitch” and said that he had called her “psycho” once or twice. As to the mother’s contention that he was “constantly critical” of her, the father said “that’s a subjective view”. He said that “she may have felt that [he] was being critical, but whether [he] was being critical is a matter of subjectivity” and that the mother might have gotten it wrong. That answer did him little credit.
He admitted he could have blocked her from leaving a room on occasions but said that he did not recall if he had taken her keys or phone as she alleged.
The mother’s evidence as to the father taking her keys and her phone and restricting her ability to leave the home on occasions when they fought is consistent with his conduct towards the mother at other times as recorded later in these reasons, on which other specific findings have been made.
On the evidence available, I am unable to make general findings as to the mother’s experience of family violence at the father’s hands during the relationship. I find that the father:
(a)Called the mother a “bitch” or “psycho” on the occasions identified above;
(b)Engaged in heated arguments when he may have pushed her occasions; and
(c)Blocked the mother from exiting the home on occasions.
And that on these occasions, he perpetrated family violence against the mother within the meaning given by s 4AB of the Act.
Late 2010 Incident – the date of separation
Each party provides a different version of the events of late 2010 (“the late 2010 incident”), which became the date of the parties’ final separation.
The mother said that the parties were engaged in an argument at the family home. She said that she attempted to leave the home but that before she could do so, the father grabbed her keys and phone and said words to the effect of “I will not give these back to you until you start behaving yourself”. Her evidence was that she walked out of the home and the father followed her, pinning her up against the car with his arm across her throat so that “[she] could not breathe”. She said while the father had her restrained in that position, she bit him on the arm “to get some air in [her] lungs”. On the mother’s account, the father responded to her bite by saying “I am going to hit you”, and then punched her in the face with a closed fist. After the physical assault, the mother said the father did not allow her to leave the home and instead “kept [her], while [she] was bleeding a lot from the broken nose, for an hour, shouting at [her]”. That the mother’s nose was broken was not confirmed by way of medical evidence.

It was common ground that the mother sustained injuries to her face on that day. Both parties recalled her nose bleeding at the time of the altercation.
There is some photographic evidence taken at a family gathering in late 2010 showing significant darkening, bruising and swelling to the mother’s face. Those photographs were taken only three days after the incident.
The father’s account of events in late 2010 was that an argument took place between the parties about who was to care for the children on that day. Under cross-examination he said that despite them previously agreeing that the mother would remain home while he went to work, she “decided to change the arrangements” and attempted to leave the home. He denied grabbing the mother’s phone or keys. He said that as the mother was leaving, the parties began “talking… within one metre of each other”, facing one another. He said that in the course of their discussion, the mother “bit [him] extremely hard on one of [his] upper shoulders… which left a mark that was still there two years later”. He changed his evidence in cross-examination to that she bit him on “his arm”, and identified by illustration in the witness box by pointing at or about his left bicep. He deposed to having “swung [his] arm around in a reflex action, and the tips of [his] fingers struck her nose causing it to bleed”. He further changed this evidence when I sought to clarify the events with him, saying that the “back of [his] hand clipped her nose”. The father denied placing his arm across the mother’s throat, pinning her against a car, or hitting her with a closed fist. The father maintained that he had acted in self-defence, or that the contact was made as a reflex response to the mother’s biting.
The father’s version of the event disassembled by way of his answers to a number of simple questions. He said that the mother’s bite was so hard that it left a mark for two years, but he could not remember which arm was bitten or the location of the bite on either his arm or shoulder. His description of the contact he made with the mother’s face was not consistent with the extent of her injuries, and as a matter of practicality, he could not explain how swinging his arm out to his side in a reflex action could have caused injury to the mother’s face, given that she was standing in close proximity (within one metre) in front of and facing him.
The injuries evident on the photographs were inconsistent with the father’s fingers merely clipping her nose and making it bleed. They were significant. The father contended that either the images had been “digitally altered” or that “makeup had been applied under [the mother’s] eyes to create the illusion that her injuries appear to be worse than they were”.
I find the father’s account was improbable and not plausible.
I am satisfied to the requisite standard that the mother’s version of this event ought to be accepted. Her evidence was consistent with the injuries recorded in the photographs. The father’s was not. His assertion that she had tampered with the photographs was absent evidentiary foundation and did him little credit.
I find that this was a terrifying life-threatening experience for the mother by way of serious physical family violence.
My impression of the father’s oral evidence is that he exhibits no remorse for his conduct. Consistent with his interview with the Court Child Expert, he was unable to accept responsibility for the injuries suffered by the mother or appreciate his own role in the conflict.
Mid-2011
The mother said she received a text message from the father in mid-2011 stating that he intended to pick X up, X being in the mother’s care at that time. She did not respond. The mother then received a phone call from the father requesting to collect X. They engaged in an argument. The mother deposed that shortly after their exchange the father arrived at her aunt’s residence, where she was staying. She said he began to verbally abuse her outside the home, including saying to her “I am going to take [X] and ensure you never see him again until your mental issues are sorted out”. Both X and Mr Q were present at that time. The mother’s affidavit recorded X as being “scared and distressed”, and asking the mother if she would go inside with him, which she did so. The mother said she kept silent throughout the father’s verbal abuse.
The mother then said that the father followed her towards the home, demanding that she give X (who was at this stage holding the mother’s hand) to him. She said he “grabbed her left hand and twisted it to the side to forcible remove [X] from [her]”. She deposed to worry that she “was not going to see [X] ever again”.
The mother’s aunt was present for the incident. She requested the father leave the property. The mother deposed that he responded with words to the effect of “you are nothing but another fucking [Country P] bitch”.
The mother reported the incident to police who attended the home that evening after the father left with Mr Q and X. Statements were taken from both the mother and her aunt. She deposed to the police telling her that they intended to charge the father with an offence and obtain an AVO on the mother’s behalf. Her contemporaneous account to police recorded in the police records was consistent with her evidence given at trial, both by way of her affidavit and in cross-examination, save for that the police records indicate they did not intend to charge the father.
The father did not engage in his affidavit with the mother’s depiction of the events of mid-2011, except that he did not agree with it. The father was cross-examined about the argument. He could not recall attending the aunt’s home on that specific occasion. He denied threatening to take X from the mother. Notwithstanding that, it was uncontroversial that prior to mid-2011 X was in his mother’s care and that he transitioned to his father’s care on that day. The mother strongly contests she did not consent to that happening.
The mother did not call on her aunt as a witness in her case. The evidence of her aunt would have assisted the finding of fact as to what occurred between the parties in mid-2011.
Overall, the mother’s evidence was unshaken in cross-examination. Her evidence on this subject matter impressed me. The father said he could not recall the event. He did not engage with the mother’s allegations save to deny them.
The consistency of the mother’s evidence with the police records ground a finding as to my acceptance of the mother’s version of this event. I accept the father was not charged with a criminal offence arising from this incident.
A recurring theme in the mother’s case was that the father had on several occasions “taken” X from her care without her consent and at times without warning. She said this caused both her and X to hold a fear that the father would unexpectedly “take” X for many years after separation. The mother’s fears are recorded in a volume of clinical notes of X’s medical practitioners and specialists. X is recorded to have told his clinicians about a fear of being “taken away from [his] mother”. I find that the father did make such threats, and that the fears held by the mother were both legitimate and caused her to experience great stress and anxiety by way of the father occasioning family violence.
Mid-2011 Incident – the mother’s car
This occurred two days after the previous incident, in mid-2011.
According to the mother’s affidavit, at about 10.30 am she received a text message from the father requesting that she collect X from his home. The mother said she did not reply but drove to the father’s home, arriving around half an hour later. Upon arriving she observed the father sitting in his car in his driveway and X sleeping in his car seat in the back. She transferred X from the father’s car to her own.
The mother said the father began to question her about the terms of the AVO sought against him two days prior. The evidence suggests the mother was at this time in the driver’s seat of her car and the father was standing adjacent to her, by the side of her car. The mother said he became agitated and aggressive, demanding that she provide information about the AVO. The father conceded he asked the mother “what was in the AVO”, but that he could not recall being “aggressive or violent”. He did not deny this was the case. The mother responded that she “could not remember” the terms of the AVO and that she had to leave.
She alleged the father reached into her car and grabbed her car keys out of the ignition. The father denied this in cross-examination. The mother said she was fearful for her and X’s safety and reached for her phone to call the police. At that point she said the father threw her keys back into the car. She said she grabbed them and immediately began to drive away.
Both parties agree that the father then moved to the front of the mother’s car. The mother said despite her having already begun to drive, the father “spread his arms across the bonnet, preventing her from driving off”.
The father said in his affidavit that he was in front of the mother’s car because he was on his way back into his home, but that the mother:
59.…drove her car into [him] causing [him] to fall on the bonnet of the car. [The mother] then accelerated the car down the street for between 50 and 100 metres while swerving from side to side causing me to end up on the roof of the car. The damage to [the mother’s] car was as a result of her driving it into [him] and [his] attempts to get off the car.
The mother’s evidence of the event sits in contrast, she saying that the father:
63.…jumped onto the bonnet and scrambled onto the roof of [her] car. He started to jump on the roof of [her] car causing a large dent […] in the centre of the room. [The father] stomped on the windscreen which [she] thought was going to smash as he jumped on the front windscreen and then jumped off from the windscreen to the bonnet causing a large dent in the bonnet. He then jumped off [her] car to the side of the road.
She said that X, who was two years of age and sitting in the mother’s car at this time, “woke up with a fright and started crying and screaming”.
On either parties’ account, this incident in mid-2011 was a flashpoint in their intense conflict and I find it was undoubtedly a terrifying experience for each of them and X.
The police records of this event record that the father was the first to report the incident to police. He attended the Suburb G Police Station less than half an hour after the event to claim that the mother “had run him over”. He gave an interview which was recorded electronically, during which he insisted that any damage to the mother’s vehicle had been caused by her running him over. While the father was at the police station, the mother contacted the police by phone to report the incident. She was asked to attend the station later that day. She gave a statement upon her attending the station, the damage to her vehicle was sighted by police, and the relevant records show that:
…police are of the opinion [the damage] is consistent with [the mother’s] version of events… Police believe being struck at this speed is inconsistent with [the father] being projected onto the roof of [the mother’s] vehicle. [The father] could not explain how he came to be on the roof.
The damage to the mother’s car was recorded by the police as “extensive”.
The father was arrested at Suburb G Police Station just after 1.00 pm on the same day, and charged with an offence. He was convicted of that offence following a defended hearing in late 2011 before the Suburb G Local Court, and sentenced to imprisonment on a suspended order and placed on a good behaviour bond. The father’s criminal history contained within the ICL’s tender bundle records that there was an appeal upheld by the District Court in relation to the matter. The evidence is unclear as to whether it was the conviction or penalty aspect of the appeal that was upheld.
In cross-examination on this issue the father presented as belligerent. He issued blanket denials and asked unhelpful rhetorical questions in answer to the propositions put to him, including when asked whether he stomped on the mother’s windscreen, he responded, “was the windscreen broken?” His default response was that he could not recall the details of what had happened, or what he said, but that those details would be recorded in the police records. For example, when asked of the time of his arrest he said, “if it says I was arrested, I was arrested”. He said that he didn’t know if X was upset or crying, given that he was not in the car, and that the mother’s word would have to be taken on this point. His only firm contention which he repeated multiple times, was that “the car was driven into [him] and that [he] ended up on the roof”.
The father conceded damage to the roof of the mother’s car a result of the incident. His explanation as to how it had occurred was both insufficient and bewildering. I accept and find consistent with the recorded observations of the police that the damage to the mother’s car could not have resulted from her running into the father, and that he could not have ended up on the roof of her car with the mother driving at a low speed (which he conceded his interview to the police).
I am satisfied as to the accuracy and integrity of the mother’s version of the incident in mid-2011, and I so find. The mother was firm in her account. She did not falter when it was put to her that the circumstance of the father being on the roof of her car was her fault, or accidental. The reported damage to her car roof was consistent with her explanation. Her explanation was consistent with the known identified facts of the event.
I find that the father on this occasion perpetrated a serious event of family violence upon the mother, and that X was exposed to the father’s violence.
The first AVO
The day after the previous incident in mid-2011, an interim AVO was sought and obtained by the police against the father, listing the mother as a protected person. That same day, the police reports contained in the ICL’s tender bundle record a report received from an individual associated with X’s day care stating that the father attended the day care and informed staff he would return later that day to collect X. The report records:
[The father] has later called the Day Care Centre and informed that… if [the mother] attends the daycare centre in her […] vehicle that the next time she will be attending as a corps.
(As per the original)
Under cross-examination as to the statement, the father said “I think that’s a fabrication. Surely if I said that, the day-care centre would have made a report of that to the police, there’d be a report of that somewhere”. There was a police report of the event. It stated that upon the police “made an urgent change to [the mother’s] AVO” following the receipt of the report, such as to extend the AVO to protect X as well.
The interim AVO was exhibited to the mother’s affidavit, and included standard orders restraining the father from, inter alia, assaulting, harassing, threatening or otherwise interfering with either of the protected persons, being the mother and X. Additional orders were made that the father not go within a certain distance of the mother’s residence, or destroying or deliberately damaging or interfering with the protected persons’ property.
Following a court appearance in mid-2011, the interim AVO was varied to remove X as a protected person. The mother says that at the conclusion of the court event, the father immediately collected X from his day care, notwithstanding that there was no agreement between the parties for him to do so.
The interim AVO was made final a month later in mid-2011 (“the first AVO”), and was in force for a period of two years. X was not included on the final AVO.
The father’s breaches of the first AVO
The police documents included in the ICL’s tended bundle reveal that the father breached the first AVO on at least five occasions, being:
(a)On a date in mid-2011, the father made upwards of 20 phone calls to the mother’s personal mobile, and almost double that to her aunt and uncle’s mobiles and landlines, and sent each of them a number of text messages. He was charged the next day with contravening an apprehended violence order and taken into police custody. The matter was heard by the Suburb G Local Court the next day, and the father was released on bail subject to various conditions.
(b)On the same day as the court appearance, the father attended the mother’s residence without warning or her consent. In police records, the mother complains that the father showed up at her door and refused to leave, causing the mother to feel “intimidated and harassed, especially as [the father] had only been released from police custody two hours earlier”. She said the father’s attendance caused her to “physically shake and become teary”. The father was again arrested and charged with a further offence of contravening an apprehended violence order and one of breaching bail conditions. The police records note a request made of the Court that the father’s bail conditions be expanded so that he not be allowed to come within a certain distance of the [mother’s] home… as the [father] shows no regard for his current bail conditions or directions given to him by police of the arrested and charged”.
(c)A few days later, the parties attended Suburb G Local Court in relation to the AVO proceedings. The parties each left the Court at a similar time in their respective vehicle. The father drove slowly in front of the mother’s vehicle for a period of time, sporadically applying his brakes in a manner that risked causing a collision. When the mother eventually arrived home, the father drove past the property and called out words to the effect of “give me back my son you fucking whore”. In cross-examination the father said he did not agree to each of the facts detailed in the police records but that he agreed to the “basis” of the description. He was charged with three offences.
(d)In mid-2011, the parties attended the Sydney registry of the Federal Magistrates Court (as it was known then) in relation to their family law proceedings. The mother’s uncle attended with the mother. The father, outside the courtroom, approached the mother and engaged in a conversation with her. The mother’s uncle told the father to leave, placing a hand on his shoulder as he did so. The father was escorted away from the mother and her uncle by a Court security guard. He returned sometime later with a cup of hot tea and threw its contents over the mother’s uncle. Following the hearing the mother attended Suburb G Police Station to report the event. While she was there, the father attempted to call her mobile and sent her a text message stating “Goodbye give [X] a kiss from me was nice knowing you”. A police officer sighted the missed call and text message on the mother’s phone. The father was charged with two offences.
(e)In mid-2011, the father attended X’s day-care centre while the mother was present collecting X. He approached the mother’s car, where X was sitting in the backseat. The mother asked him to leave, to which the father responded words to the effect of “it’s so unfair that you are keeping my son away from him, I haven’t seen him for eight months”. The father opened the door to the car nearest to where X was sitting. A teacher from the day-care centre called the police and requested their attendance. The father was arrested and charged with a breach of the AVO and a breach of his bail conditions.
The father was convicted of the charges laid on each occasion outlined above. He appealed his convictions in relation to incidents on three of the occasions. Each conviction was upheld by the District Court.
In cross-examination, the father could not recall how many times he breached the AVO, although he acknowledged that he had. His guess was that it may have been “two or three” times. His contention was that his breaches were not “violent”.

The Court Child Expert at paragraph 51 of the Family Report:
When asked about his breaching of AVOs, [the father] said, “the two year AVO I breached a couple of times”. He strenuously asserted that he has never breached an AVO “with violence”. He explained that he once drove past [X’s] day-care or preschool and that, another time, he “tapped on the window when I was talking to her [the mother] in her car”.
I find that the father’s repeated breaches of the AVO during this period and his manifest indifference to the effect of such breaches on the mother, leaves no doubt that he engaged in further episodes of family violence of the kind described by s 4AB(1) of the Act. His breaches provide credence to the mother’s assertions that the father has a general absence of capacity to regulate his behaviour.
Country P events
In mid to late 2014, the mother began a process of complying with the 2013 Orders so as to enable her to take X on an overseas trip to Country P with her and her current partner, Mr D. It was uncontroversial that she notified the father of her intention to travel with X in approximately September 2014.
By late 2014, the mother had completed the required documents to apply for an Australian passport for X. She invited the father to sign those documents. She said the father told her that he “would only agree to sign the passport application if [she] were to sign Consent Orders for him to spend more time with [X]”. In cross-examination the father denied making that comment.
The mother deposed to her numerous attempts to have the father sign the documents over the late months of 2014. She said that the father frustrated the process by oscillating between agreeing to sign the application, then changing his mind, then offering his conditional agreement dependent on the mother’s willingness to facilitate additional time between him and X. The tenor of the mother’s evidence was that the father weaponised the passport application as a tool to coerce her into agreeing to change X’s care arrangements.
The father’s version of events as contained in his affidavit was that “on various occasions, [the mother] provided me with passport applications to sign. These applications were either blank or had been filled out incorrectly”.
The 2013 Orders were in force at this time. Order 13 as recorded at paragraph 43 of these reasons made clear that neither party was to unreasonably withhold their consent to X obtaining a passport. Nonetheless in cross-examination the father conceded that:
(a)He had eventually signed the passport application;
(b)The mother had informed him of her intention to travel to Country P before asking him to sign the application; and
(c)He knew when the mother intended to depart Australia with X.
The father adduced no evidence as to rectifying the alleged errors on X’s passport application, or offering to complete a fresh application himself. Even on his own case, being that the mother’s conduct was the cause of the delay, the father did nothing to assist the mother in obtaining a passport for X, knowing of her intention to travel with him to Country P in the months that followed.
I find that the evidence establishes that the father delayed in signing the passport. He did not properly engage with the mother’s contention that he refused to sign the passport application occasions other than when it may have contained errors, and could provide no reasonable justification for withholding his consent.
In compliance with the 2013 Orders, the mother provided the father with a copy of an itinerary, details of her accommodation in Country P, and X’s plane ticket in early 2015, being more than one month prior to her intended departure date.
The mother booked flights for she and X to depart Australia to travel in early 2015. It was uncontroversial that the parties had obtained a passport for X by this time.
The mother’s affidavit records that on the day before the departure date she received a text message from the father as follows “Hi, I have been advised to inform you that [X] will be unable to travel tomorrow.” She said that:
103.I telephoned Australian Federal Police and was advised that the Court made an ex parte Order to place [X] on the Airport Watch List. I was not served with [the father’s] Application to the Court restraining [X] to travel outside Australia.
104.As the tickets had already been paid and not refundable at the last minute, we decided to leave [X] to be cared by my aunt and uncle. [X] was extremely upset and distressed.
At trial, the mother characterised the events surrounding X’s failed travel to Country P as her “watershed moment”. She said that prior to early 2015, her position was that it was important for X to maintain a relationship with her father. Upon the father causing X to be placed on the Airport Watchlist, she said that she realised the father had “no boundaries that he is willing to stick to”, and that she felt his actions were a “way to control what [she did]… to get back at [her]… and to hurt [her]”, which was his “method of operation” since the parties’ separation.
In cross-examination the father agreed that he had known for “some time” that the mother and X were due to leave Australia at around 10.15 am on a date in early 2015, he agreed that he sent a text message to the mother as recorded above, and that he bought an ex-parte application to put X on the Airport Watchlist the day prior to their departure. He gave his reasons as:
… the day before I took [X] back to [the mother’s] residence in [Suburb H], […], and I had both my boys with me, and they went down there and they were gone for a bit too long. So… I’m not supposed to go down there but I went down there to get the older boy, and what I saw down there led me to believe she was going to [Country P] and not coming back, the way that things were being packed up. And then when I walked out with the older boy… the male figure of the house at the front whose name happens to also be […], said to me “she’s a month behind in the rent and she’s going to [Country P] tomorrow, what’s going on?” And I saw a lot of packing up going on downstairs, and that’s what led me to make a call to the telephone service of the Court.
His evidence was that before he left the mother’s residence with Mr Q, he and the mother engaged in the argument where she “yelled and screamed” at him.
The father’s case was that he had genuine concerns that the mother intended to relocate with X to Country P permanently. For the following reasons I do not accept his contended “genuine concern”.
The father adduced no evidence as to holding a belief that the mother would relocate with X prior to early 2015. No such issue had been brought to the Court’s attention in the first set of proceedings commenced by the mother in 2011. He gave no evidence at trial of this belief persisting after the mother’s return to Australia in early 2015, although he reported to the Court Child Expert in his interview on 7 July 2020 that he “perceives that [the mother] may deprive him of access to [X] indefinitely by way of returning to live permanently in [Country P]”.
The father’s alleged “genuine concern” could not have been said to be founded in conduct or comments of the mother that may reasonably have led him to believe she intended to remain in Country P for longer than the period she had told him she would travel. The mother had booked and provided the father copies of return airplane tickets to Australia. She had dispensed all of her responsibilities prescribed by the 2013 Orders. In cross-examination she said that she had offered to the father to take Mr Q with her as well (subject to Mr Q’s mother’s consent), the implication of which being that she had every intention of returning to Australia and return both Mr Q and X with her.
At its highest, the father’s evidence was that he observed the mother packing up at her home in early 2015 and that her neighbour commented she was in arrears on her rent. The mother was travelling internationally for one month the following day. The father did not consider this as a reason for the mother packing.
The father’s oral evidence was that he was only “half-way down the road” from the mother’s residence when he made a telephone call to the Court seeking X urgently be placed on the Airport Watchlist. He had not by this point put his alleged concerns to the mother or given her any notice of his intention to prevent X from travelling to Country P. It was apparent that he had not weighed into his decision the consequences of his actions on X. The evidence is clear that the father knew of the mother’s travel plans for many months and he waited until the day before her departure to menace them.
To my mind the father’s conduct on this occasion had all the hall-marks of coercive and controlling behaviour and I so find. It was ill-considered and cruel. Its consequence was that X was deprived of an opportunity to travel with his family, a plan which had been in place for many months and which X was undoubtedly excited about. It provides insight as to his absence of capacity to prioritise X’s best interests.
Screws on driveways
The mother returned to Australia from Country P in early 2015.
She recorded in her affidavit that four days later, she observed that “large screws and nails had been place on [her] driveway in front of [her] car”. She said that caused her to become concerned for her and X’s safety.
The mother obtained CCTV footage from her landlord, which she said showed a vehicle driving past her property on the previous night, and showed screws and nails being thrown out of the window of that vehicle towards her car as it passed the property.
A few days later, the mother found “the same large nails and screws” on her partner’s driveway in Suburb N. The mother’s partner, Mr D, gave affidavit evidence of he and the mother comparing the screws found on each of their driveways and confirming that they were “identical”. He too remained firm in his oral evidence that he believed the father was the cause of the screws on his driveway.
The mother reported her discovery of the nails and screws to the police. At trial her firm evidence was that she believed they were placed on her and her partner’s driveways by the father. Police records contained within the Independent Children Lawyer’s tender bundle confirm that the police conducted a vehicle search of the father, and that at the time he owned a vehicle similar to that alleged to be identified by the mother in the CCTV footage. The mother’s affidavit evidence was that she became “fearful to go home alone” following the incident. She was not challenged on that evidence at trial.
The father’s affidavit was silent on the mother’s allegations as to the screws and nails on her driveway. He responded to Mr D’s allegations as follows:
106.I cannot comment [as to the screws] except to say that it is either not true or [Mr D] and [Ms Clifford] [the mother] or somebody else placed screws on the driveway. This could have been teenagers playing a prank.
The mother at the time was residing in Suburb G. Her partner, Mr D, was residing in Suburb N. In cross-examination it was put to the father that it would be an extraordinary coincidence for teenagers to play the same prank on two separate residences in distant suburbs of Sydney, to which he responded:
If they were on both driveways, yes. But maybe [Ms Clifford] and [Mr D] [the mother and her partner] placed those screws on both of their driveways or perhaps teenagers played a prank on one driveway, and they said “oh well maybe if we put them out on the next driveway we can try and blame [the father] for it”.
In his oral evidence the father accepted that there had been screws on both the mother and her partner’s driveways, and that he had no evidence to suggest that the mother had indeed attempted any “self-sabotage” by placing them there herself. He said that he was not driving a vehicle matching the description at the time of the screws incident but that he did have a vehicle of that description.
There is insufficient evidence for me to safely find that the screws were placed on the mother and on her partner’s driveways by the father. However, I accept that it is the mother’s genuine belief that it was the father who placed them there, which I find to be a reasonably held belief in light of the fact that:
(a)The mother and her partner live at separate residences that are a very significant distance from one another; and
(b)The screws at each location were identical; and
(c)The father owned a vehicle of a similar to that identified by the mother in the CCTV footage.
I accept that the discovery of the screws on the mother and Mr D’s driveways contributed to her perception that the father had been following her, and to her fear of the father.
Welfare checks
Around the time that the mother discovered the screws on the driveways, she gave evidence of being subjected to a number of welfare checks by the police in relation to X. Between early and mid-2015, the mother asserted that she was contacted by the police at the father’s request on at least four separate occasions for the purpose of conducting a welfare check for X. The police records indicate that on each occasion a welfare check was undertaken they held no concern or fear
The mother’s partner, Mr D, gave evidence as to police attending his home “regularly” to conduct welfare checks on X. He said in cross-examination that this occurred at least “two or three times”.
It was not the father’s case at trial that X was at risk in either of the mother or her partner’s care. Notwithstanding that, he did not deny contacting the police with concerns for X’s welfare in the mother or her partner’s care.
The second AVO
According to the mother’s affidavit, in mid-2015, she and the father became involved in an argument at changeover for X. She said that she attended changeover with Mr D on that occasion, and that he facilitated X getting out of his car to transition to the father’s care while she remained inside the car. She deposed that:
119.…[the father] was verbally abusing [Mr D] and me in the presence of [X], saying words to the effect [of] “Don’t think I am afraid of you. I will do as I please and there is nothing you or that [Country P] bitch can do about it.” [The father] also punched [Mr D’s] car.
Mr D also deposed to the events of that day in his affidavit, recalling that he assisted in X’s changeover at Location L. He said that as he was taking X out of the car and getting him ready to go into his father’s care, the father approached him, speaking in an “agitated and aggressive” manner. He said that X became upset. Mr D deposed to returning to his car, and once inside he “clearly heard a loud punching noise from the back of [the] vehicle”. He then got out of the car again, and said to the father “what are you doing, why did you punch the car”, to which he alleged the father responded, “I never did anything”. In cross-examination Mr D conceded that no damage was caused to his car on this occasion, but maintained that the father had punched it. He was unshaken in his cross-examination.
The father in his affidavit said that the mother and Mr D were “concocting stories about [him] punching [Mr D’s] car despite causing no damage.” In his oral evidence he was firm that he had not “punched” Mr D’s car, but was fixated on the fact of there being no damage to the car. That fact was conceded by Mr D in cross-examination.
The mother and Mr D reported the incident to police, who sought an AVO on their behalf against the father. That AVO was made final by the Suburb G Local Court in early 2016 and remained in force for a period of six months thereafter (“the second AVO”).
Each of Mr D and the father remained firm in their evidence at trial.
I am unable to make a positive finding of fact as to what transpired between the parties on this occasion although I accept that it marked another eruption of the conflict between them, to which X was exposed.
The father’s assault on Mr Q
In late 2016, the father engaged in an argument with Mr Q in the presence of X while visiting his mother. That argument became physical and concluded with each of the father and Mr Q punching the other. The father was charged and convicted with an offence following a defended hearing. At the time of the altercation, Mr Q was 15 years old and X was seven years old.
X gave an account of the altercation to the Court Child Expert, recorded in the family report as follows:
70.[X] said that he was once spending time with [the father] when an argument erupted between [the father] and [Mr Q]. He said that “they were punching each other and Nan said, “I’ll call the cops”. [X] said that he was scared and crying during this altercation. [X] said that [the father] then “drove off with me”.
The mother in her affidavit said that in late 2016, X disclosed to her that there had been a fight between the father and Mr Q which resulted in the police attending the father’s home. She said X told her he was scared and cried, because the father and Mr Q “were punching each other”.
The records produced under subpoena by the Department of Communities and Justice, which were included in the ICL’s tender bundle, depict a serious act of violence between the father and Mr Q on this date.
The tendered documents record that the father’s mother (X’s paternal grandmother) reported the incident to police, who then attended the location and interviewed both Mr Q and the paternal grandmother. In her statement to police, the paternal grandmother reported that sometime after 3.00 pm on a date in late 2016, the father and Mr Q engaged in a verbal argument sparked by Mr Q calling the father a “wanker”. The argument escalated, and the father confronted Mr Q by standing closely in front of him and saying “show some fucken respect” (sic). It is reported that Mr Q put his arm up in front of him, so as to block the father from coming any closer, but that the father grabbed Mr Q’s arms, and “with force tackled [him] backwards and onto the couch.” The grandmother said that she observed Mr Q restrain the father. Mr Q told police that he did this “because [he] was angry and [he] needed him to stop and to try and not hurt me”. This initial outburst of violence calmed, and the father decided to leave the paternal grandmother’s home.
It is then recorded in the contemporaneous police notes that the father, as he left the home, said to Mr Q “you better listen to authority”, to which Mr Q responded, “fuck, you’re the one to be talking about authority, aren’t ya?”. The conflict again erupted between them, and the father approached Mr Q and grabbed him. There was a struggle between them, during which the father restrained X. Mr Q attempted to wriggle out of the father’s grip, including by kicking him on the leg, and using an “uppercut style punch” to his face. Upon Mr Q punching him, the father retaliated, grabbing Mr Q in a “crouched position” and punching him in the face repeatedly. Mr Q told police that he “felt three to six punches”. The paternal grandmother told police that she witnessed the father punch Mr Q “three to five times in the face with his closed fists”.
The father provided no evidence of this incident in his affidavit.
In cross-examination the father said that he had also called the police after the altercation. He accepted that there was a verbal altercation between him and Mr Q, which became physical. He accepted that the conflict settled briefly, and that he started to leave the home, but that it flared up again and resulted in further physical violence between him and Mr Q.
For the most part he said that the police records reflected his recollection of events, save for that he denied punching Mr Q on this occasion and that he could not recall X screaming. The father said he “used an open hand” and that the “injuries [Mr Q] had were not consistent with being punched with a closed fist”. In a later response to a question, the father said that Mr Q’s injuries may have “been partially the result of [his] punches” but that he already had marks on his head. I clarified this evidence with the father, to which he said that it was his recollection that he had only used an open hand.

The father has a propensity to litigate to achieve his objectives. In my view this is a weighty matter and inference can be drawn from his conduct in prior criminal and AVO proceedings where he pursued matters to trial and appealed decisions he did not accept.
Parental responsibility
It is uncertain as to whether the father agrees with the position of the mother and the ICL that the mother should have sole parental responsibility for X. Although the expression “sole parental responsibility” is not defined in the Act, having regard to the definition of parental responsibility in s 61B, the order sought by the mother and the ICL means that the mother would have all the duties, powers and responsibilities and authority which by law parents have in relation to X and that the father would have none of these duties, powers, responsibilities and authorities in respect of X.
Where the Court is to determine parental responsibility the starting point is s 65DA. That section provides when making a parenting order in relation to X the Court must apply a presumption that it is in the best interests of X for the parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of X or another child or family violence (s 61DA(2)). The presumption may be rebutted by evidence satisfying the Court that it would not be in X’s best interest for the parents to have equal shared parental responsibility s61DA(4).
Having regard to my findings as to family violence the presumption does not apply. In circumstances where the parents have not communicated for the past five years except through their lawyers and they have no capacity to make joint decisions in the best interests of X I find it would be both impractical and create further conflict if an order was made for equal shared parental responsibility.
In light of my findings the presumption of equal shared parental responsibility does not apply. However, as the father seeks such an order in relation to X it must be considered.
The findings made herein as to:
(a)family violence; and
(b)the complete dysfunction in the relationship between the parents; and
(c)there being no meaningful communication between them over the past 5 years; and
(d)the absence of confidence or trust between parents,
In circumstances where it is agreed X will live with his mother, leads me to be satisfied that it is not in X’s best interests for his parents to share parental responsibility for him. It is in his best interests for his mother to have sole parental responsibility.
Time arrangements
The impact of time spent on the mother’s capacity as the uncontested parent with whom X shall live
The mother’s attitude to the father being a part of X’s life is entrenched. She strongly submits that continued time spent by X with his father in any form is contrary to his interests. I find that she has an objective reasonable foundation for this strong position having regard to her experiences of the father. It is unsurprising that the mother has heightened reactivity to any engagement with the father. She obtains assistance from her long time psychologist Mr C to cope with this source of stress and anxiety.
The mother’s unwavering position was that even if a finding were to be made that the father does not present an unacceptable risk to X, there should be no orders for time between him and the father because of the impact it would have on her own wellbeing, which would in turn impact on X. She said that a situation whereby X suffered vicariously from her own stress of facilitating time between him and the father would not be in his best interests.
It is well established that even where the Court does not find that a parent represents an unacceptable risk of harm to a child, it may nonetheless be appropriate for that parent to have no contact with the child taking into account the genuine, but not necessarily rational, belief of the child’s primary-carer that the other parent presents such harm (see e.g. Keane & Keane & Anor (2021) 62 Fam LR 190 at [82]). The foundation for such an order is not that an unacceptable risk to the child does exist, but that the primary caregiver’s parenting capacity may be discernibly impaired by an order requiring the child to continue to spend time with the other parent (see e.g. Re Andrew (1996) 20 Fam LR 538 at [201]; Bayer & Imhoff [2010] FamCA 532 at [177]).
In the Family Report, the Court Child Expert opined that if the mother were required to continue to facilitate X’s relationship with the father and the Court found she had suffered family violence at the hands of the father, then “she would likely experience inordinate stress… and the possibility of her mental health deteriorating would seem considerable.” The Family Consultant reinforced her opinion in cross-examination.
The evidence revealed that the mother, at the time of her interviews with the Court Child Expert, was struggling significantly to cope with X’s behaviour. That evidence included an email sent by the mother to X’s treating psychologist sent on 21 April 2020, which formed part of the ICL’s tender bundle, where the mother expressed:
I don’t find [X] funny or clever, and really in light of the fact that he is SO rude and ungrateful to me all the time, I often find myself thinking that I could place him into foster care and be done with raising him. Because despite my very best efforts to love, guide and protect him, he is turning out to be a reprehensible person with absolutely no consideration for anyone (Autistic Trait) and I wonder what kind of unpleasant, lonely life he is going to have or if he will try to kill me and go to jail.
No nexus was drawn by any of the parties between the mother’s apparent desperation at that time, or X’s violent behaviour at school, and the father’s re-entry into X’s life. Such conclusion would not be available on the evidence.
It was the mother’s own evidence in cross-examination that she had come a long way from the place she was in at the time of writing that email.
The mother did not adduce evidence from her treating psychiatrist or any other treating mental health professional. This may have assisted her case. I am mindful of the opinion of the Court Child Expert at paragraph 208 of these reasons. The mother’s contention did not find support in the remainder of the evidence before me. In the context of time occurring already at J Services, the mother said in cross-examination that she copes “extremely well” with the everyday demands on her life, including the parenting of X. Her evidence was that her mental health is well-managed and does not impede on her daily life in any way.
As observed in Lennox & Lennox [2016] FamCA 367 by Austin J, a finding that the mother’s parenting capacity would be impinged so as to desist from making orders sought by the father must have an evidentiary basis, and the opinion of the Child Court Expert “would not be a sufficiently strong foundation for that purpose”.
I accept that the mother finds facilitating time between X and the father, at least in the context of J Services, to be burdensome and stressful, but her evidence fell short of demonstrating she was at serious risk of losing her parenting capacity should such time continue at J Services. That said, the impact on the mother should unsupervised time occur would be a different consideration, and the impact on the mother “is itself a consideration worthy of weight in the discretionary process” should supervised time continue (see Lennox).
Unsupervised time
It was not submitted in this case that X’s vulnerabilities will reduce in the future so as to ensure that he could be taught and implement any protective behaviours or be in a position to clearly report matters of concern arising from during time spent with his father. I have made findings as to whether the father has “insight” as to the fact and impact of his conduct or exhibited any capacity to change.
For the reasons given I am satisfied that there is an unacceptable risk of the father engaging in future family violence in the event he were to spend unsupervised time, to which X may either be exposed or the subject of. I accept the evidence of the Court Child Expert that such future exposure is likely to cause compounding risks for X arising from his presentation and other vulnerabilities to experience further developmental deficit and mental health problems. It is imperative that any Court Orders made protect X from this possible outcome.
Supervised time
In Blinko the Full Court confirmed that in circumstances where the Court is satisfied that a parent presents an unacceptable risk of harm to a child the Court is to consider steps that can be taken to ameliorate this risk including “supervision of any time or communication between the parent and the child”.
Community-based supervision
Community based supervision on first impression would be superior to the environment at the J Services. It is less artificial and would allow a real sense of the world and more relaxed interactions during time-spent. However, the Court Child Expert opined that if the Court was to make findings as to the father’s conduct amounting to family violence, she said as to supervision:
107.…Supervision which occurs at an accredited contact centre and provided by a trained professional with expertise and knowledge of family violence would potentially mitigate the risks to [X] and likely provide [the mother] with considerable peace of mind.
I accept this opinion. Additionally, the specialised person would need to have an understanding of X’s special needs and presentation. I find that the mother would need to be satisfied as to the qualifications and experience of the supervisor and both she and X have confidence in that person. There was no evidence before the Court of such a service or individual who would have sufficient skills and child focus to convey the necessary environment of safety to X from a community based supervision service or to the mother. I am not confident that community-based supervision would shelter X from the risk of unacceptable harm at his father’s hands and I so find.
Professional Supervision
While the making of orders for supervised time is an exercise of discretion, statements from the Full Court have sought to give specific guidance where such orders are to be made for an indefinite or indeterminate period (see Moose & Moose (2008) FLC 93-375 at [119]).
In Gorman & Huffman & Anor [2016] FamCAFC 174 the Full Court confirmed, that while a trial judge has a broad discretion when considering whether to make an order for supervised time, clear and cogent reasons need to be provided for an order that provides for supervision on an indefinite basis.
The mother conceded in cross-examination that supervision of time at J Services creates an environment where any physical risk of harm to X is mitigated. She conceded in her evidence that the risk of the father retaining X in his care has now dissipated.
The mother conceded that if the Court was to order a continuation of time at J Services she would comply with that order. Putting it another way, it is important when evaluating that concession that the mother’s position was, in reality, that she would comply with the orders of the Court notwithstanding her firm and unequivocal view that it was not in X’s best interests for such supervised time continuing. Her genuine belief is that X’s relationship with his father is not meaningful and that time being spent by him with the father is not in X’s best interests.
The reality of this litigation is that all parties are aware that X would not be deprived of his mother’s ongoing care. To her credit the mother has not taken the position for the purposes of the hearing of a fait accompli and to, in reality, argue backwards that she cannot and will not facilitate any time spent in the circumstance of she being X’s uncontested resident parent.
I am mindful of the mother’s continued facilitation of time between X and the father causing adversely impacting upon her insofar as it is burdensome and stressful. These matters attract weight.
I accept the Court Child Expert’s evidence as recorded at paragraph 219 of these reasons that time between X and his father requires the mother’s endorsement to be successful. It will require X knowing that his mother supports the time-spent. That is not the reality for this family. The mother’s absolute, entrenched position is that she will not overtly support any continued time in the future. The mother struggled in her cross-examination to imagine a situation where the father could possibly redeem himself in her mind. The Court Child Expert opined that in such a circumstance, time spent will inevitably be unsuccessful. This expert evidence attracts weight.
Three people will be affected by the orders made. Two are adults and one is a child.
The gravamen of an overall reading of the Court Child Expert report and oral evidence was that an order for long term supervision of time would be contrary to an overall assessment of X’s interests.
The ICL contended that the long term supervision order would ensure the continuation of some relationship between the father and X. The ICL’s proposal for time to be spent on a two hour occasion once each school holiday period would ensure significant periods of uninterrupted care by the mother of X in her home. The proposal was not formulated until after the Court Child Expert gave evidence. The Court Child Expert was not requested to opine on the proposal having regard to the conclusions recorded in her report.
The ICL submitted that J Services could facilitate time spent throughout the balance of X’s adolescence until he was 18 years of age. I accept that the ICL has made enquiries so as to assist the Court, however there was no evidence as to that.
Practical difficulty and expense exists should time be spent on a continued supervised basis over the next six years pending X obtaining the age of 18 years. The cost of J Services is currently equally shared between the parents.
The ICL’s proposal gives insufficient weight to the emotional and psychological harm that may be presented on X challenging his mother about attending in the future.
There was little material evidence as to the practical long term effects on X of an indefinite order for professionally supervised time spent at a contact centre, except by way of an overall reading of the Child Court Expert’s report.
An undercurrent of the ICL’s submissions was that X recently expressed a wish to the ICL that he did want to continue to see his father. There was no evidence of that presented at trial.
Conversely, it is uncontroversial that X is currently expressing an unwillingness to his mother to attend supervised time with the father. Her evidence was that there is stress involved in getting X ready for time with his father, that X says “I don’t want to go”, that this causes conflict between them, and that she persuades him to attend by telling him “you don’t have a choice, you have to go, it’s court ordered”. It was generally accepted by the parties and the Court Child Expert, and I find, that expressing to X that his time with his father is “court ordered” is likely to cause X anxiety about spending time with his father and reinforce any pre-existing negative emotion he may have about that time.
I find that the challenges exhibited by X in his behaviour as he becomes an adolescent and progresses through school are likely to increase. Against this background, I accept that X’s continued reluctance to spend time with his father will be a point of friction between him and his mother and that this is contrary to X’s best interests.
The finality of the proceedings is a weighty factor in promoting X’s best interests. The implicit effect of the ICL’s proposal is that it is in the best interest of X not to provide any review mechanism of the limited supervised order. There is no capacity in the orders proposed by the ICL in the event X does achieve a stage of development where he would express his own strong views about spending time with his father so as to attract sufficient weight that the time would cease or otherwise be subject to his expressed wish. Again this is a circumstance likely than not to lead to further conflict between the parents and further litigation whether by way of contravention or variation proceedings. It is also likely to lead further stress and anxiety and potential fractures in with X’s fundamental relationship and reliance on his mother and the father may seek to shift supervision from J Services to a community based contact organisation or even unsupervised time.
It is plainly the father’s case that he does not accept that he ought never again spend unsupervised time with X. It is self-evident that the father would have the capacity to bring a further application at some time in the future for the provision of supervision at the contact centre to be removed. As discussed during the course of submissions the capacity for disputes as to when and how time spent would occur at J Services would be almost limitless. The prospect of the father filing a contravention application and his capacity to seek a variation of the supervised time orders as part of that contravention process is more than likely.
As identified by the Full Court in Slater & Light (2013) 48 Fam LR 573 the fact that the father can bring an application to vary the orders grounded from him establishing a significant change in circumstances but before being permitted to have his case heard on merits would not prevent the making of such application. A conclusion of the conflict regarding X’s parenting is imperative to the promotion of his best interests. The father’s pursuit of a right at law to seek a future change to the supervision order represents a risk for X.
A significant consideration in this matter is the requirement in X’s interest to avoid the institution of further proceedings as to his parenting. I accept the opinion of the Court Child Expert as recorded in paragraph 204 of this judgment, that “if [X] continues to be at the centre of this dispute, it would seem likely that further allegations and accusations would be made, and [X] would pay the ultimate price”, such that it is imperative the Court makes Orders protecting him from this possible outcome.
For X it is important to consider the accumulation of all factors arising from the evidence.
Given the likely outcomes for the X should the orders be made as the ICL proposes, I am satisfied that there is an unacceptable risk of harm to X should orders be made for indefinite professionally supervised time.
Recognition Communication
Each of the mother and the ICL opposed orders for what was referred to at trial as “identification contact”, being orders permitting the father to send cards and presents to X on his birthday and other important calendar dates.
The ICL’s opposition to recognition contact was founded in a contention that it would “confuse X” and that it would mean that the father would be “invited into the orbit of the mother”, or that it would overburden her. That position was inconsistent with the ICL’s support for a regime of “identification time” being X spending time with his father on four occasions per year. It was not explained how the mother would not be able to facilitate X receiving gifts but would be able to facilitate him spending time with his father at J Services four times per year.
I accept and find that the father is committed to X and has a strong desire to remain part of his life. I accept that, in at least some way, X too has a desire to retain some form of relationship with his father. It was accepted by each party and the ICL that he would experience at least a limited sense of loss should his father be restrained from having any presence in his life whatsoever.
I find that it is important that X is aware that his father maintains an interest in him, and that the father has an opportunity to express to X that he still thinks of him and is concerned about his life.

Orders will be made permitting the father to send one card and one gift to X on three occasions each year, being on Easter, Christmas and X’s birthday.
Conclusion
In identifying the future parenting regime for X the decisive issue is and always remains his best interests. All other issues are subservient.
I have found that the father presents an unacceptable risk of harm to X. He has occasioned a broad range of intense physical violence and psychological abuse upon the mother. He has been the subject of a number of Apprehended Violence Orders (“AVOs”) and convictions for breaches of those Orders. The father engaged in a brutal and intense punch up with his older son Mr Q in the presence of X and the paternal grandmother in late 2016. The father has engaged in coercive controlling and intimidating behaviour directed to the mother over an extended period of time.
I have not accepted that the risk will be militated by that time being supervised on an ongoing basis. Orders for indefinite supervised time spent will lead to further conflict, dispute, and ultimately litigation between the parties. It is in X’s best interests for him to cease to be the centre of the dispute between the parents and that any genesis for further allegations and accusations between the parents dissipate.
In my view X’s interests are best met such that there be no order as to time. This outcome is most likely to lead to an absence of the institution of any further proceedings. This factor carries significant weight in determining his best interests.
Having regard to all of the foregoing best interests considerations for the reasons explained, I am satisfied that the orders at the forefront of these reasons are in the best interests of X. Therefore, for all of the foregoing reasons I make orders as set out at the forefront of this judgment.

I certify that the preceding three hundred and seventeen (317) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton.
Associate:
Dated: 1 April 2022

File number(s):	SYC 3696 of 2011
Judgment of:	CAMPTON J
Date of judgment:	1 April 2022
Catchwords:	FAMILY LAW – CHILDREN – Where it is uncontroversial that the child should live with the mother – Where the remaining issues to be decided are parental responsibility and the time that the father should spend with the child, if any – Where the Court is satisfied on the evidence that the father perpetrated physical violence and coercive control towards the mother as alleged – Where it is recommended by the Court Child Expert that if the court is satisfied that the father perpetrated family violence, the child should spend no time with the father – Finding that the child would be at an unacceptable risk of harm should he spend unsupervised time with the father – Where in the circumstances, the accumulation of risk factors weigh against the child spending permanently supervised time with the father – Order that the child spend no time with the Father.
Legislation:	Australian Passports Act 2005 s 11 Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 60CG, 61B, 65D, 65DA, 65Y
Cases cited:	Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196 B & B (1993) FLC 92-357 Bayer & Imhoff [2010] FamCA 532 Blinko & Blinko [2015] FamCAFC 146 Briginshaw v Briginshaw (1938) CLR 336; [1938] HCA 34 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76 Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 G & C [2006] FamCA 994; [2006] FamCA 994 Gorman & Huffman & Anor [2016] FamCAFC 174 Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235 Keane & Keane & Anor (2021) 62 Fam LR 190; [2021] FamCAFC 1 Lennox & Lennox [2016] FamCA 367 M v M (1988) 166 CLR 69; [1988] HCA 68 Mazorski & Albright (2007) Fam LR 518; [2007] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Moose & Moose (2008) FLC 93-375; [2008] FamCAFC 108 Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76 Re Andrew (1996) 20 Fam LR 538 Slater & Light (2013) 48 Fam LR 573 [2013] FamCAFC 4 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division:	Division 1 First Instance
Number of paragraphs:	317
Date of hearing:	14 – 16 February 2022; 22 February 2022
Place:	Sydney
Counsel for the Applicant:	Mr Hill
Solicitor for the Applicant:	Jacqui Griffin Mobile Solicitor
Counsel for the Respondent:	Ms Carr
Solicitor for the Respondent:	David H Cohen & Co
Counsel for the Independent Children’s Lawyer:	Ms Blackman
Solicitor for the Independent Children’s Lawyer:	Legal Aid NSW

SYC 3696 of 2011
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR SPRING Applicant
AND:	MS CLIFFORD Respondent
INDEPENDENT CHILDREN’S LAWYER

order made by:	CAMPTON J
DATE OF ORDER:	24 March 2022