Cornwall & Cornwall (No 2) - [2025] FedCFamC1F 99

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cornwall & Cornwall (No 2) [2025] FedCFamC1F 99

File number(s): CSC 1014 of 2020

Judgment of: JARRETT J

Date of judgment: 24 February 2025

Catchwords: FAMILY LAW – CHILDREN – With whom a child spends time – Where the applicant asserts that the respondent presents an unacceptable risk of harm – Where it is agreed that the child should live with the applicant – Where the applicant seeks that the child spend no unsupervised time with the respondent – Where the respondent ultimately seeks unsupervised and overnight time with the child – Where the child derives value from his relationship with the respondent and his sibling – Where the Court considers that ongoing supervision is appropriate

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60B, 60CC, 61DAA, 62G, 64B

Cases cited:
B and B (1993) FLC 92-357

Bielen & Kozma (2022) FLC 94-123

Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96

Division: Division 1 First Instance

Number of paragraphs: 135

Date of hearing: 11, 12 & 13 November 2024

Place: Cairns

Counsel for the Applicant: Ms Stocks

Solicitors for the Applicant: Miller Harris Lawyers

Solicitors for the Respondent: Litigant in person

Counsel for the Independent Children’s Lawyer: Mr Hartwell

Solicitors for the Independent Children’s Lawyer: Meade Legal

ORDERS

CSC 1014 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR CORNWALL

Applicant

AND:
MS CORNWALL

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

24 FEBRUARY 2025

BY CONSENT THE COURT ORDERS THAT:
1.All previous parenting orders and parenting plans are discharged.
2.Y born 2013 shall live with the applicant.
3.X born 2009 shall live with the respondent.
4.The parties shall:
(a)not denigrate the other parent or the other parent’s family or partner in the presence or hearing of the children and shall remove the children from the presence of others who may be doing so;
(b)respect the privacy of the other parent and not question the children about the personal life of the other parent or the partner of the other parent or allow a third party to do so;
(c)speak of the other parent respectfully and use their best endeavours to ensure other third parties do so in the presence or hearing of the children and if the children are present and this is occurring, remove the children;
(d)not discuss with the children any issues in dispute between the parents, including but not limited to the care arrangements for the children with the children, or allow a third party to do so;
(e)not ask either child who they want to spend time with or live with; and
(f)not expose the children to any form of family or domestic violence.

THE COURT FURTHER ORDERS THAT:
5.The applicant has sole decision-making responsibility for Y, including the sole authority to apply for, and renew, passports for Y.
6.The respondent has sole decision-making responsibility for X including the sole authority to apply for, and renew, passports for X.
7.Save for the case of a genuine emergency, when either party proposes to make a decision concerning a major long-term issue (as that term is defined in the Family law Act 1975 (Cth)) for the child in their care, that party shall:
(a)give seven days’ written notice of the proposed decision and the reasons for that proposed decision to the other parent;
(b)in the event that the parent’s proposed decision is based upon advice received from a professional person such as (but not limited to) a doctor, psychologist, counsellor or school teacher then the content of that advice shall also be revealed and (if the advice is in writing) a copy of the advice provided at the same time as the written notice of the proposed decision is given;
(c)the other parent shall, within four days of receiving the written notice of the proposed decision, provide any written response they consider appropriate together with the reasons for that response; and
(d)notify the other parent in writing of any decision made in respect of the proposed decision within seven days of it being made.

8.X shall spend time with the applicant (and with Y at the discretion of either X, Y or the applicant) at all times as may be agreed between the parties in writing, but at least:
(a)from 12.30 pm to 8.30 pm each Saturday and with the respondent to deliver X to the applicant’s residence at the commencement of his time with the applicant and the applicant to return X to the respondent’s residence at the conclusion of this time;
(b)subject to X’s wishes expressed to the applicant:
(i)on Thursdays from 5.00 pm to 9.30 pm with the applicant to collect X from the respondent’s residence at the commencement of this time and return X to the respondent’s residence at the conclusion of this time and if X returns to full-time education this time will conclude at 8.30 pm instead;
(ii)during the school holidays between 12.30 pm and 8.00 pm on days agreed between the parents in writing with the respondent to deliver X to the applicant’s residence at the commencement of this time and the applicant to return X to the respondent’s residence at the conclusion of this time;
(iii)on Christmas day for not less than four hours, unless otherwise agreed, with the respondent to deliver X to the applicant’s residence at the commencement of this time and the applicant to return X to the respondent’s residence at the conclusion of this time; and
(iv)on Father’s Day from 12.30 pm until 8.00 pm, unless otherwise agreed, with the respondent to deliver X to the applicant’s residence at the commencement of this time and the applicant to return X to the respondent’s residence at the conclusion of this time.

9.Commencing from 1 July 2025, Y shall spend time with the respondent at all times as might be agreed between the parties in writing, but at least for no more than one occasion per week for no more than two hours per occasion:
(a)for the first four occasions, in the presence of Y’s psychologist or therapist at times and dates as stipulated by that psychologist or therapist. In the absence of Y’s psychologist or therapist consenting to be present for Y’s time with the respondent pursuant to this order, the person to be present shall be another psychologist or therapist nominated by Y’s then treating psychologist or therapist;
(b)thereafter at times and dates as stipulated by a children’s contact service agreed between the parties to undertake supervision of Y’s time with the respondent. In the absence of agreement as to the identity of the children’s contact service, Y’s time with the respondent shall be supervised by M Family Services.

10.X and Y shall communicate at all reasonable times when X is not spending time with the applicant and Y via Discord or other electronic messaging platform or telephone or video.
11.X and the applicant communicate at all reasonable times when X is not spending time with the applicant via Discord or other electronic messaging platform or telephone or video.
12.The respondent is at liberty to communicate with Y through letters, cards and gifts on special occasions such as Y’s birthday, Christmas and Easter and otherwise not more than once per month, to be screened by and passed through the applicant, with the applicant having the absolute discretion not to pass on any letters, cards or gifts that discuss parenting, adult or other issues which may cause emotional harm to Y.
13.The applicant will facilitate Y responding to the respondent’s letters, cards and gifts, by screening them for appropriate content and passing them onto the respondent, unless the applicant assesses the communication is not in Y’s best interests.
14.For the purposes of their own communication with each other, the parents shall:
(a)use SMS for urgent matters; and
(b)use email for other matters.

15.The applicant and the respondent shall keep each other informed of their current residential address, email address and telephone contact numbers and advise each other within seven days of any change of those addresses.
16.Each parent shall inform the other parent as soon as reasonably practicable of any medical emergency (including hospitalisation) that relates to the child who lives with them.
17.Both parents will authorise the children’s doctors, treating health and allied care professionals and specialists to provide to each parent copies of all reports, documents and information in relation to the child not in their care and failing the provision of any such authority by either parent, this order shall of itself operate as such an authority.
18.In the event of any new therapy or medical intervention or change in the children’s educational arrangements, either parent is authorised to provide a copy of this order to the provider.
19.In the event of any new therapy or medical intervention or change in the children’s educational arrangements, the parents must request that the medical or education provider is to contact both parents regarding the arrangements being made.
20.Each parent shall ensure that the other parent is kept regularly informed of the ongoing counselling for the child living with them.
21.The respondent is restrained, and an injunction hereby issues restraining her, by herself, her servants or agents, from:
(a)communicating with Y by any means whatsoever, including using X for the purposes of communicating with or conveying messages to Y, except as provided for in these orders;
(b)attending Y’s school, any school function at the school or elsewhere, or any sporting or training event whenever Y is present in the school grounds or present at the function or event wherever that might be; and
(c)requesting or encouraging any other person to act as an agent for her to communicate with Y on her behalf.

22.Each party is authorised to suspend the time spending arrangements in these orders between the child that lives with them and the other parent on two occasions each calendar year during the school holiday periods for a period not exceeding 10 days, provided that the party gives to the other party at least four weeks prior written notice of their intention to do so.
23.Each party is authorised to travel overseas with the child that lives with them on one occasion each calendar year for a period not exceeding four weeks, provided that the travelling parent gives to the other parent at least four weeks prior to departure:
(a)a copy of the itinerary;
(b)copies of any airline tickets; and
(c)contact addresses and telephone numbers for the child travelling with them.

AND THE COURT DIRECTS THAT:
24.In respect of the applicant’s application for costs:
(a)no later than 4.00pm on 7 March 2025 the applicant file and serve upon the respondent any further written submissions he wishes to make in respect of that application;
(b)no later than 4.00pm on 21 March 2025 the respondent file and serve any written submissions she wishes to make in respect of that application; and
(c)the application be decided without an oral hearing, except in the event that either party requests a further oral hearing in their written submissions filed in accordance with orders 25(a) and 25(b) hereof respectively.

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

This case concerns parenting orders for two children, X, aged 15 years (16 in 2025) and Y, aged 11 years (12 in 2025). Presently X resides with his mother, the respondent in these proceedings. Y lives with his father, the applicant in these proceedings. Pursuant to interim orders made on 1 June 2022, X spends five hours each Saturday afternoon with the applicant and Y. Y spends no time with the respondent. Those interim orders also provide for the applicant to have sole parental responsibility for the major long-term issues for Y and for the applicant and respondent to have equal shared parental responsibility for the major long-term issues for X.
Neither party now argues for a change to the living arrangements for the children. They agree that X should remain living with the respondent and Y should remain living with the applicant.
At the commencement of the trial, there were two significant outcomes in dispute. The first was focused upon decision making for the major long-term issues for the children. The second concerned the way in which and for how long, Y should spend time with the respondent.
As to the first, initially each party sought an order for joint parental responsibility in respect of the child in the other’s care, while also seeking an order for sole parental responsibility for the child in their care. However, by the conclusion of the trial, the respondent accepted that the applicant should have sole decision-making responsibility for the education, health and medical needs for Y. In substance, this was a concession by her that the applicant should have sole parental responsibility for Y. The applicant, supported by the independent children’s lawyer, continues to press for an order that there be joint decision making for the major long-term issues for X.
As to the second matter, and notwithstanding the various minutes of order proffered in the lead up to and at the commencement of the trial, the parties agree that Y’s time with the respondent should be supervised. They are at odds about when the time should start (I think) and whether it should progress, both in terms of the quantity of time and whether it should remain supervised. To her credit, the respondent recognised that in light of the evidence of two family consultants who prepared reports pursuant to s 62G of the Family Law Act 1975 (Cth), Ms H and Dr N, the position set out in her draft minute of orders given to the court on 12 November 2024 was probably not maintainable.
In addition, there remains what I consider to be a relatively minor dispute about the time that X will spend with the applicant – it is presently five hours each Saturday. The applicant contends that it should increase to eight hours each Saturday. He also seeks an order formalising some informal arrangements whereby X has been spending time with him on some Thursdays.
Finally, there is also a dispute about orders sought by the applicant, the effect of which will be to restrict the respondent’s ability to contact and communicate with Y, access Y’s school and obtain information from his treating healthcare professionals.
The orders sought by the applicant are set out in a draft minute of orders handed up to me at the commencement of the hearing. Save for a couple of discreet matters, those orders accord with the orders foreshadowed by the independent children’s lawyer in a draft minute published by her on 8 November 2024. The differences are underlined in the applicant’s document. They concern the restraints on the respondent, to which I have just referred which are not supported by the independent children’s lawyer.
It is necessary to set out some background so as to understand how the parties have arrived at their present positions. To give that background some context however, it is necessary to understand a bit about the children and the parties.
THE CHILDREN
X
X was born in 2009 and is presently 15 years of age. He is of large physical stature – over six feet tall and he weighs approximately 90 kilograms. He has a long history of problematic behaviour. The earliest episode revealed by the evidence occurred in 2015 when, in Prep, X pushed Y (then about 2 years of age) down some steps. A few months later, a medical practitioner noted that X yells and swears and will hit others when he is unhappy. He was recorded as being violent to Y and the applicant. About one month later he was suspended from school for hitting his teacher (he was in grade 1 at the time). He was aggressive to other students.
Since then, X has been engaged with a number of health care professionals. Initially, he saw Dr K, a paediatrician and he was also engaged with Ms T, psychologist. In mid-2016 he was diagnosed with Autism Spectrum Disorder. This diagnosis was subsequently reviewed in April 2024. He has also been diagnosed with Attention Deficit Hyperactivity Disorder – combined inattentive and hyperactive type, developmental trauma, generalised anxiety disorder and major depressive disorder.
I have in evidence a detailed report from Mr O, psychologist dated April 2024. I have paid close attention to this detailed and thorough report which clearly articulates X’s challenges and the extensive support needed by him and his carers by reason of these challenges.
X’s disorders have impacted his ability to attend school regularly. In fact, the evidence suggests that he has never attended school for any length of time on a regular basis. From early in grade 1 he was attending only about 2½ hours per day, four days per week. By the end of grade 3 he was being suspended from school on an almost weekly basis and was attending only two hours per day.
His disorders have also led to him becoming violent and threatening to others. He has physically assaulted Y, threatened Y with harm and threatened to kill him. He has physically assaulted other adults including parents, teachers and health practitioners. He has also threatened physical harm, including threats to kill the applicant, his wife, her son and one of the family consultants in this case. There is little benefit to be derived from a complete recitation of all the incidents set out in the evidence in which X has been aggressive or threatening towards others. It is common ground between the parties that his violent and aggressive behaviour which can manifest with little or no notice, represents a risk to others, although the respondent’s acceptance of this proposition was reluctant.
I have two reports prepared by Ms H, the first released in late July 2021 and the second released in May 2022. In her first report, Ms H expressed the view that from her observations of both children and their interactions with their parents, there were very few boundaries applied to X’s behaviour by the respondent. Ms H thought he had learned that his demanding ways were very effective in achieving what he wanted. She thought there was an element of control to his behaviour because he demonstrated that he was able to behave appropriately and respond appropriately to others around him when he chose to do so. Ms H formed the view that X’s attitudes were “infecting his younger brother”. She gave an example of why she thought that so.
Ms H concluded her first report by observing that X presented with little impulse control, no boundaries and experiencing positive reinforcement (regaining attention and nurturing) as the consequences of his behaviours on others. She described his difficult behaviour as having been “indulged” by the respondent. Ms H thought that X (and Y) needed urgent counselling and appropriate role modelling. She thought that with boundaries and socialisation it was likely that they would develop more confidence and self-esteem to achieve more peaceful and appropriate interactions.

At the time of the second family report by Ms H in April 2022, X was not attending school. At the time of trial before me, he was also not attending school although the respondent gave evidence that he was about to recommence school the following week. Apart from her oral testimony about that, which I do not accept, there is no other evidence that supports what she says. The evidence is that X spends his time “on the computer” playing video games and the like. Ms H considered that the respondent was not meeting X’s psychological and emotional needs and she thought that it was unlikely that the respondent would be able to contain his behaviours and impulses.
The respondent says that X’s behaviour has moderated over the last two years and his violent outburst have become less frequent. Indeed, she says that he has not been violent in the “last two years”. That may be so, but according to Dr N the author of the third family report released in May 2024, that is probably because he has been able to organise his world his way. That is to say, he gets to live how he wants: no school, late nights, late mornings, sitting on the couch on his computer. All of this is facilitated by the respondent.
In her oral submissions to me at the conclusion of the trial, the respondent was critical about the lack of acknowledgment she received as a parent of a child with autism. She suggested that it was unfair that she was criticised for her “low demand parenting”, something which was employed by some parents of children with autism. I have no doubt, having regard to the evidence before me, that parenting X is very challenging. There are various theories about how children with autism ought be parented. There is, however, next to no evidence before me about any of those matters. I do have Ms H’s evidence and Dr N’s evidence, none of which was the subject of successful challenge.
Y
Y was diagnosed with several disorders in January 2022. But his symptoms of those disorders, and in particular his anxiety, manifested well before then.
It seems that upon the parties’ separation, Y’s anxiety became florid. It is uncontroversial that it manifested in various ways, such as not going to school, being unable to be in a room by himself, being distressed, shaking and crying if he was left alone and not separating from either of his parents when taken to school.
The evidence of Dr N was to the effect that at least in part, Y’s anxiety can be sourced to his experiences with X, who regularly threatened and assaulted him. It was also sourced in his experience of the conflict between his parents and his observations of that conflict. The respondent’s behaviours, including the negative and denigratory things she has said to Y about the applicant, her own threats of suicide to the children and a threat by her to kill the applicant made in the presence of the children, have also played their part in his anxiety.
I will deal with Y’s present state of health later in these reasons.
THE PARTIES
The applicant
The applicant is presently 46 years of age. He is a medical professional employed by a government department. He is married to Ms P. The applicant and his present wife live in a suburb of City Q, Queensland. Y lives with them.
The applicant’s wife, Ms P, is presently 40 years of age and works as a manager. She and the applicant commenced a relationship in early 2019 and married in 2024. She has three children of other relationships, two whom are over the age of 18 years and live independently. The third is aged nine years and lives in an equal time arrangement between his father’s home and the Cornwall residence.
For the purposes of this application, the applicant was assessed by Dr J, a general adult and forensic psychiatrist. I have a report from Dr J dated November 2021 which is annexed to an affidavit sworn by her and filed on 31 January 2022. Dr J was cross-examined before me. Her opinion about the applicant was not challenged.
I accept Dr J’s opinion concerning the applicant. She opined that the applicant would not meet the Diagnostic and Statistical Manual of Mental Disorders (5th edition) criteria for any serious mental illness, personality or substance use disorder. She considered that the applicant had full capacity in respect to legal, financial, and medical matters.
Unsurprisingly then, the applicant manages the care of Y with the assistance of his present wife without any particular difficulty. His commitment to both children, their welfare and their relationship with the respondent cannot be questioned.
The respondent
The respondent is presently 52 years of age. She continues to reside in the parties’ former matrimonial home at Suburb R, City Q. X resides with her.
The respondent is a health professional, and she has been employed by a government department since 2004. Since 2008, she has worked in a health assistance role.
The respondent was diagnosed with a mental health condition when she was about 20 years old. She suffered from anxiety in 2003 after X was born. The respondent had a pregnancy terminated for medical reasons in 2011. She was left with many unresolved issues. The place at which she was then working insisted that she continue to work in her particular role, something that in the circumstances she found confronting and difficult. She said they were uncompromising and refused her request to transfer. She says that she was bullied and was left with post-traumatic stress disorder as a result. She said that the applicant did not support her then and her situation deteriorated.
She has required psychological and psychiatric intervention through the years. In early 2021, a psychiatrist diagnosed her as having a disorder with chronic depression and anxiety. A few months later she saw another psychiatrist, but the respondent led no evidence from that person, or otherwise, about her interactions with that psychiatrist.
In 2021, when talking to Ms H, the respondent said that apart from dealing with the challenges presented by the children, she also had to cope with her own mental health, anxiety and long-standing depression. She has been prescribed psychotropic medications and at the time of trial was taking antidepressant medication.
The respondent too, was assessed by Dr J. Dr J was of the opinion that the respondent demonstrated an impairment in her personality functioning. She said:
Personality traits represent patterns of thinking, perceiving, reacting, and relating that are relatively stable over time. Personality disorders exist when these traits become so pronounced, rigid, and maladaptive that they impair work and interpersonal functioning. These social maladaptation’s can cause significant distress in people with personality disorders and for those around them. People with personality disorders lack insight and do not usually experience discomfort with their own thoughts and feelings. But distress is caused by the consequences of their socially maladaptive behaviours.
…
[[Ms Cornwall] was assessed as having at (sil. an) impairment in personality function that manifest (sil. manifests) in an impairment in self-functioning, both identity and self-direction and interpersonal functioning (empathy and intimacy) with the presence of pathological personality traits in the domains of negative affectivity, disinhibition, and antagonism.
Dr J characterised the personality impairment as fitting the DSM-V criteria for a mental health disorder. Dr J sets out in her report, at length, what she observed in the respondent that led her to this conclusion and the likely effects that such a disorder would have upon the respondent’s functioning. Dr J recorded her concerns that the respondent was not a reliable historian, with her objective testing suggesting inconsistency with her reported history, collateral information, presentation and reported subjective experiences.
Ultimately, Dr J concluded:
[Ms Cornwall’s] history, collateral information, presentation and reported subjective experiences was not always in keeping with objective assessment and psychometric testing. I am of the opinion that [Ms Cornwall] would meet the International Classification of Diseases (ICD-11) criteria for complex Post traumatic stress disorder, currently in remission and the Diagnostic and Statistical manual of mental disorders (5th edition) DSM-5 criteria for [a mental health] disorder.
Although the respondent challenged Dr J’s conclusions in cross-examination, her opinions remain sound and I accept them. A consequence of Dr J’s opinions and observations was her recommendation that:
[Ms Cornwall] will benefit from holistic multidisciplinary mental health care and interventions. She will require biological management with an appropriate dose and possibly augmentation or combination antidepressant medication to address her significant mental health symptomatology.
The gold standard of treatment for personality disorders is psychotherapy, specifically dialectic behaviour therapy-based intervention. Both individual and group psychotherapy are effective if the patient is motivated to change.
…
[Ms Cornwall] has disorders that coexist with the mental health disorders (complex PTSD), which make treatment challenging, lengthening time to remission, increasing risk of relapse, and decreasing response to otherwise effective treatment.
…
[Ms Cornwall] will benefit from having regular access to her children, but this needs to be in a safe, nurturing, and positive environment. I would not recommend that she has more than 24 hours per week care of her children. This can be evaluated and slowly increased depending on her mental health stability.
I am satisfied that the respondent will not undertake any treatment or therapy to assist her to deal with the effects of the mental health disorder diagnosed by Dr J. She does not accept it and described Dr J’s diagnosis to Dr N during her interviews for her family report with, I find, “stunned disbelief and outrage”. She made no inquires after receiving Dr J’s report about the diagnosis notwithstanding that she continued to be engaged with her general practitioner and her psychologist. She did say in cross-examination that she had made enquiries about dialectical behaviour therapy but that she did not follow through with it.
The respondent continues to see her psychologist once a month although at the time of the trial her psychologist had moved to Brisbane. The respondent hoped to continue consultations by some form of electronic means.
I have no doubt that the respondent is committed to the welfare of the children, although her actions have not necessarily been in their best interests. Whilst she has developed methods to deal with X’s behaviour, the evidence of Ms H and Dr N satisfies me that her methods are less than optimal because they amount to appeasement of X, which reinforces his poor behaviour and exposes Y to psychological or perhaps physical risk of harm when Y and X are together in the respondent’s care. The respondent was dismissive of these concerns in her evidence.
In her second family report, Ms H summarised the respondent’s capacity to meet the children’s needs in the following way:
82. From this assessment, the mother has been unable to maintain boundaries, made inappropriate comments to the children and undermined their important relationships. In my opinion, if they were returned to live with her now ([X] with her and [Y] “week about” as the mother suggests), then the children will likely reject their father as well. She will certainly undermine the father’s future attempts to encourage independent growth and development for the boys to reach their full potential.
Whilst I acknowledge that this opinion was rendered in May 2022 for the purposes of the hearing that was scheduled for 16 May 2022, in my view very little has changed. The respondent’s evidence satisfies me that in her mind, and notwithstanding that she now concedes that Y should live with the applicant, she is the only parent who can properly meet the children’s needs. I am satisfied that in the event that she had uncontrolled and unrestricted contact with Y, there is a very real likelihood that Y’s relationship with the applicant will suffer, to Y’s detriment.
BACKGROUND
Exhibit 1 in this proceeding is a chronology agreed upon by the parties. I have had regard to the facts as agreed between them and I have, and will continue to refer to them where it is necessary to do so. The significant narrowing of the disputed outcomes in the proceedings means that many matters deposed to by the parties and set out in other evidence before the court are no longer relevant.
The parties met in Brisbane in 2001. The applicant was 23 and the respondent was 30. They commenced living together in 2003 and married in 2006. X was born in 2009. The parties moved to City Q in 2011 with X. Y was born in 2013 in City Q. Separation occurred in March 2018, however the parties continued to live under the one roof until October 2018. At that point, the applicant moved to a different residence.
Upon their physical separation, the parties could not agree about the children’s parenting arrangements. The applicant contended for an equal time arrangement and the respondent thought the children should have more time with her. The parties settled on an arrangement of three nights with the respondent and two nights with the applicant each week.
The evidence is plain that the parents’ interpersonal relationship was fraught. It is not surprising then that the arrangements the parties had settled on did not last. In November 2020, the parties’ dispute took a turn for the worse after an incident during a meeting they held to discuss financial matters.
I am satisfied that the respondent’s behaviour around this time was particularly problematic. She told the children that she “was not going to be around” – something she accepted meant that she intended to commit suicide. Y in particular was very anxious and would not leave the respondent. He was barely attending school. He was not able to be in a room by himself at home. He would become distressed, shake and cry. When the applicant would attempt to take Y to school, he would not separate from him either. At this time, Y was constantly in the respondent’s company and he would accompany her to Centrelink and the bank. He witnessed when she could not pay for groceries and she broke down crying in distress. He also heard the respondent say that she wanted to kill the applicant because she was so angry with him for removing her access to a credit card.
The financial issues that consumed the parties spilled over to their parenting arrangements. The applicant commenced these proceedings. In return, the respondent applied for parenting orders to permit her to reside with the children in Town S, New South Wales.
Interim parenting orders were made by agreement in March 2021. According to those orders, the children were to live with the respondent and spend time with the applicant two nights every week. A family report was ordered.
The first six months of the 2021 calendar year were particularly difficult for the parties and the children. The facts agreed in exhibit 1 and the parties’ evidence show a family in significant crisis. The respondent was not coping with the breakdown of the parties’ relationship or the behaviour of the children. I doubt the applicant was either. Records show that the respondent reported significant suicidal ideation and had difficult interpersonal relationships with the children’s treating healthcare professionals and schoolteachers. On her own admission to her psychologist, she was not coping and her suicidal ideation was becoming “overwhelming”.
In the meantime, X’s behaviour was out of control. He was being physically aggressive to Y. He was aggressive to his schoolteachers and threatened to kill the Principal’s children while she watched. He threw a chair at her. He was rude and obnoxious to his own psychologist who eventually ceased consulting with him. He threatened a worker from U Organisation with a weapon during a home visit. These are but a few of the incidents revealed by the evidence.
Y’s anxiety worsened. There was no effective coparenting between the applicant and the respondent. The applicant knew very little detail about the respondent’s inability to cope with the children and in particular he did not know about her suicidal ideation and other threats made by the respondent. When he discovered these and other matters as a result of reading material produced on subpoena in the proceedings in early July 2021, he decided to retain the children in his care.
Ms H’s first report was released to the parties on 29 July 2021. For the purposes of this report, Ms H attempted to interview both children but was unable to do so. As to her attempts, she records:
61. Unfortunately, they were not able to be interviewed due to their behaviours. Both boys regress under pressure and at times manifest extreme behaviours. For example, [X] acts out and behaves aggressively, threatening others (adults and children) when he is thwarted. Alternately, [Y] becomes inappropriately introverted, hiding away from others when he is under pressure.
Ms H thought that Y was anxious, but when freed of his anxiety through absorption in a particular task, he began to behave more normally. He forgot to be so anxious and presented as warm, loving and appropriate.
Ms H thought that Y presented as bullied and intimidated. She says that he lacked in confidence and self-esteem and that he was “regressed with characteristics of a child from a much younger age and stage of development, manifesting insecure, anxious attachments to both parents”. Ms H identified two sources of Y’s difficulties.
The first was X’s aggression towards him. The second was the respondent’s impaired capacity to cope with X’s behaviour and protect Y from it. Examples given by Ms H of the interaction between X and Y and Y and his mother demonstrated that she would impose upon Y to modify his behaviour (for example to give X a toy) rather than to deal with X’s demanding behaviours.
Significantly, as a result of her observations in July 2021, Ms H records;
116. So too, [Y’s] exposure to [X’s] violent behaviours means he is progressively becoming more anxious, disabled and victimised. He is regressing and unable to separate from his parents. By pathologising his traumatic reactions (“absolute fear of [X]”, crying, shaking with fear, anger and frustration at times), defining his ongoing trauma from exposure to his big brother’s serious attacks, as “disability “(applying for an NDIS) is missing the point. In my opinion, it is [X’s] behaviours that are the problem, and [Y] needs to be protected and rescued from it.
…
120. With [Y] clinging to his parents, anxious and unable to separate even to go to school, his lack of self-esteem and self-confidence is undermining the natural development of self. Being regularly bullied by [X], he needs constant reassurance, protection and support….
…
124. It is not surprising [Y] is chronically anxious and withdrawn. He is terrorised by [X], whose behaviour is now out of control. There are no safety plans for his protection and he continues to be exposed to [X’s] cruel behaviours. Both parents need to discuss this with the child therapist.
The application returned to court on 30 July 2021. The parties spent most of the day negotiating but nothing was resolved. The application was adjourned and to stabilise the children’s circumstances in the meantime, an interim order was made for the children to live with the applicant, for them to spend time with the respondent for three hours each Saturday and for them to communicate electronically with her three times per week.
An addendum to the first family report was prepared by Ms H on 11 August 2021. A further interim hearing was scheduled for 13 August 2021. On that day, the parties reached an agreement to maintain the orders made on 30 July 2021.
After the orders of 13 August 2021, the respondent remained living in City Q. The applicant took four months leave from his work to care for the children.

By the orders made on 30 July 2021, the children came to live in the applicant’s care. I accept the applicant’s evidence that while initially the children’s behaviour improved over time, their behaviour progressively declined in the way and for the reasons described by him in his affidavit of evidence-in-chief filed on 21 October 2024 (paragraphs 152 – 170). X became increasingly aggressive towards the applicant, Y and others. X told his psychiatrist that he wanted to kill Y. There were physical altercations between X and Y and X and the applicant. All this culminated in X attacking the applicant in March 2022. The applicant concluded that he could not keep Y safe if X remained living with them and so he arranged for X to return to live with the respondent. I accept the applicant’s evidence about these matters. Thereafter, X spent no time with the applicant for a considerable period.
The parenting application was listed for final hearing before another judge of this court on 16 May 2022. In preparation for that hearing a second family report was ordered. It was completed by Ms H and filed on 10 May 2022. By that time the applicant sought orders that X should remain living with the respondent so as to keep Y safe from X.
The final hearing listed to take place on 16 May 2022 did not occur. Instead, on 9 May 2022 orders were made vacating the final hearing date and listing the application for a contested interim hearing on 16 May 2022.
Reasons for judgment and orders made on the interim hearing conducted on 16 May 2022 were delivered on 1 June 2022. These are the orders that remain extant. By these orders, X lives with the respondent and Y lives with the applicant. X spends five hours each Saturday afternoon with the applicant and Y. Y spends no time and has spent no time since the making of the orders, with the respondent. The applicant has sole parental responsibility for Y and the parties have equal shared parental responsibility for X.
Since the interim orders were made in June 2022, Y has progressed both socially and academically. Y’s mental health has improved significantly. He has no difficulty separating from the applicant and he attends extra-curricular activities. The applicant’s observations are borne out by other objective evidence. Y’s school performance as recorded in his reports show marked improvement. There are no complaints about absences.
Y’s progress can also be seen in the observations of Ms H and Dr N.
When Ms H interviewed Y in April 2022 for the purposes of her second report, Y had been living in the applicant’s care since July 2021 and living without X in the same household since March 2022. Ms H thought that Y exhibited substantial gains. Y was able to speak with her independently, which she considered to be an indicator of increased confidence. He expressed pride in attending school full-time, having friends and attending sport regularly. Ms H thought these demonstrated “remarkable changes in less than 12 months”.
Ms H thought that the changes she was able to observe were due to the applicant’s efforts to help Y find a new pathway forward. She thought that the applicant was successfully helping Y overcome his anxiety to step out of his comfort zone, resulting in personal growth for Y. I accept Ms H’s opinion about these matters.
However, Ms H considered that the personal gains that Y had made were fragile given their infancy and his history of anxiety. She considered that at that point Y should remain living with the applicant and not have any unsupervised time with the respondent.
The interim orders of June 2022 provide for Y to have no communication with the respondent. The evidence shows, and I find, that the respondent was not accepting of this, or the interim orders more generally. The respondent attempted to contact Y using Skype messages in the weeks immediately following the making of the orders on 1 June 2022.
The orders provided for X to spend time with the applicant and for changeovers to take place at the beginning and end of that time with the respondent’s father at a McDonald’s restaurant, and specifically on the basis that the respondent was not present at the changeover. Those arrangements did not last long because the respondent would not or could not comply with them, but the evidence demonstrates that she refused to put in place any alternative arrangements other than the applicant attending at her home to collect X and then dropping him back at the conclusion of X’s time with the applicant. That presented a difficulty if Y was with the applicant because the orders also provided that Y “shall not spend any time or have any communication with” the respondent. The difficulty was usually surmounted by the applicant and Y remaining in a motor vehicle and X getting himself to the car however, on occasions the respondent would be present in the garden.
Y stopped attending with the applicant to collect X from the respondent after an occasion near Christmas 2022 when the respondent was in the garden when the applicant and Y arrived to collect X. She had a cake for Y. According to the applicant’s evidence, which I accept, this meeting caused Y conflict and discomfort because Y knew that his mother was not to have contact with him. In an attempt to de-escalate the situation, the applicant says that he suggested to Y that he give his mother a hug which he did. The respondent then engaged Y in conversation. After this episode, Y requested that he stay home around changeover times and he has not attended since. Whilst the respondent has a different version of this episode, I prefer the evidence of the applicant about this.
Dr N prepared a report pursuant to s 62G of the Act on 24 May 2024. In that report Dr N says that the advances that Y has made (as observed by Ms H) have consolidated and provided a foundation for further growth. Dr N agreed that Y’s “newfound emerging confidence and emotional stability could very easily be destroyed should he be exposed to any anxiety arising from conflict or comments made about his father being to blame for him not seeing his mother”. Dr N suggested that it was difficult to be confident that the respondent would not seek to undermine Y’s relationship with the applicant and she did not think that Y was yet sufficiently resilient to manage time with the respondent without the risk of significant relapse in his anxiety.
I am satisfied, and I find, that in the applicant’s care, Y has made considerable gains in his personal growth. His levels of anxiety have reduced, his school attendance has improved and his academic performance has improved. I am satisfied that these things are directly attributable to the applicant’s care of Y and his lack of exposure to the respondent.
Insofar as X’s time with the applicant is concerned, the evidence shows that the parties have agreed for X to spend additional time with the respondent on Thursday evenings for a couple of hours. This occurs generally according to X’s wishes and does not happen every week.
CONSIDERATION
Part VII of the Family Law Act 1975 (Cth) supplies the legal context in which the questions posed for my consideration must be determined. The orders I am asked to make in this case are each a parenting order as defined by the Act (s 64B). In determining whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration: s 60CA. To assist in determining what is in a child’s best interests, the court must pay attention to the prescriptions set out in s 60CC of the Act. These matters are all considered in the context of the objects of the Act established in 60B of the Act, namely to ensure that the best interests of children are met, including by ensuring their safety; and to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
When first commenced, the respondent’s case focussed upon questions of risk and specifically the risks presented by the applicant to her and the children by reason of what she claimed was his historical emotionally and financially abusive behaviour. Those matters, in part, informed her then desire to reside with the children in New South Wales, closer to her own family. She thought that the children’s needs would be better served by better access to services in New South Wales. Those issues have now fallen away.
The applicant’s case initially focussed upon what he claimed to be the respondent’s failure to properly follow up the children’s health care needs and highlighted her failure to follow professional advice. Further, he thought the children’s relationship with him would suffer because the respondent and her family would not promote those relationships if the children lived in New South Wales (where the respondent had then proposed to live with the children).
The course of the litigation and the arrangements that have been put in place, both by order of the court and by the parties’ own agreement, have led to a reshaping of the disputed outcomes. Informed by his experience of the improvement in the well-being and behaviour of the children initially when they came into his care, his observation of the deterioration of that behaviour after the commencement of unsupervised time with the respondent and the ultimate deterioration to the point where the children must live in separate households so as to manage X’s behaviour and keep Y safe, the applicant’s focus has shifted to ensuring that the gains made by Y since June 2022 are not eroded by reigniting his fears and anxieties that have been identified by both Ms H and Dr N.
Decision making
The parties remain in dispute about decision-making for X. The applicant seeks an order for joint decision-making and the respondent seeks that she be solely responsible for decisions for X.
The independent children’s lawyer submits that neither parent has the same parenting priorities, strategies, discipline techniques, therapeutic interventions or routines for the children. I accept that so much is clear from the evidence. The independent children’s lawyer also submits that having regard to the parties’ interactions for the past eight years or so, it is not likely that the parents will agree on any important issues moving forward, or indeed about much at all and the respondent is unlikely to share information with the applicant, at least in a timely manner. I accept all of these submissions. They accord with my views of the evidence.
The evidence is that the respondent has habitually made decisions for X about, amongst other things, his schooling and healthcare. It is uncontentious that before making most decisions for X the respondent has not consulted or sought input from the applicant about them. That is notwithstanding there being in place an order for equal shared parental responsibility for some time now. In his evidence, the applicant acknowledged that the respondent had effectively been making unilateral decisions for X for as long as he could remember. He conceded that she had not observed the order for equal shared parental responsibility and he had made no attempt to enforce it. This failure to discharge her obligations under the order for equal shared parental responsibility is entirely consistent with Dr J’s assessment of the respondent.
In those circumstances it is difficult to understand how an order for joint parental responsibility could work. Indeed, that was the evidence of Dr N who recommended that the parent with whom each child lives should have responsibility for making long-term decisions in respect of that child. The parties’ inability to communicate effectively and the respondent’s borderline personality traits tell against any other order.
I have no confidence at all that the respondent would genuinely consult with the applicant about X’s welfare if there was an order for joint decision-making. I am satisfied that if there was such an order and she did inform him of a decision that needed to be made, she would simply make the decision whether he agreed with her decision or not. It is clear from his evidence that the applicant shares my lack of confidence about that.
Notwithstanding these rather obvious conclusions, counsel for the applicant and the independent children’s lawyer both argued that I should nonetheless make an order for joint parental responsibility (“shared joint parental responsibility” in the case of the independent children’s lawyer).
Counsel for the independent children’s lawyer argued that given the applicant’s presentation in the proceedings and his obvious parenting capacity, he was a prime candidate for decision‑making for both of the children. I agree with those observations. Counsel for the independent children’s lawyer further argued that an order for “shared joint parental responsibility for decision-making” would allow the applicant to “obtain information for himself from doctors and other persons from whom [X] received treatment”. The submission recognised that whilst that end could be achieved by a different order (an order authorising the provision of information for example) “third parties are less likely to pay attention to him and have regard to what he says if he is not seen as a joint decision-maker”.
Whilst I understand the submission and I appreciate the earnestness with which it was made, I cannot accept it. Once one concludes that the respondent will not act cooperatively with the applicant to make decisions for X, as her past conduct has demonstrated and as the applicant accepts, there is in my view no room for making an order for joint decision-making. To do so would be an exercise in futility.
Counsel for the applicant argued that, having regard to s 61DAA(1), an order for joint parental responsibility would not require the parties to make decisions about major long-term issues for X together, but it would impose upon the respondent an obligation to consult with the applicant in relation to each such decision and make a genuine effort to come to a joint decision.
Counsel developed her argument by pointing out that the text of s 61DAA does not expressly impose an obligation on the parties to make any decision jointly. Rather, the obligation is to consult with each person in relation to a relevant decision to make a genuine effort to come to joint decision about it. She argued that this should be contrasted with the precursor to s 61DAA, s 65DAC. By s 65DAC(2) (now repealed), an order by which two or more people shared parental responsibility for making decisions about major long-term issues for a child was to be taken to require the decision to be made jointly by those persons. This subsection is conspicuously absent from s 61DAA and so, counsel argues, it should be presumed that the legislature no longer intended that such decisions must be made jointly. Thus, where there is an order for the parties to have joint responsibility for major long-term decision making for a child, the Act does not impose an obligation for such decisions to be made together by the people invested with joint decision-making capacity.
I accept that an order that parties have joint responsibility for decision-making for a child will engage s 61DAA of the Act and will require persons in whom joint decision-making is vested to consult with each other and make a genuine effort to come to a joint decision in relation to decisions covered by the section. However, I consider that such an order will also require such decisions to be made jointly. I do not accept the conclusion that an order for parties to have joint responsibility for major long-term decision-making for a child means that they can make such decisions severally as the applicant contends.
When determining the obligations cast upon parties by an order of the court, the starting point is the text of the order. The order proposed here by the applicant – that “the mother and father have joint decision making responsibility” for X – would by the terms of the order impose an obligation on them to make decisions for X (whether they be decisions relating to major long-term issues or otherwise) together. The terms of the order proposed by the applicant would not engage s 61DAA because that section only applies “if a parenting order provides for joint decision-making by persons in relation to all or specified major long-term issues in relation to a child” (my emphasis). The order proposed by the applicant does not do that.
In any event even if it did, the terms of the order would impose the obligation to make the decision jointly. The phrase joint decision making responsibility proposed by the applicant, in my view, means just that – decision making by two or more people together, not separately. Nothing in the Act would suggest that an order in those terms should be read down or given anything other than its ordinary and natural meaning. The absence of a provision analogous to s 65DAC(2) from the present version of the Act supports this conclusion rather than points against it as the applicant contends. Its absence is unsurprising given the way in which the obligations set out in s 65DAC came to be engaged when that section was in force. It was engaged if there was an order for shared parental responsibility – a phrase that no longer appears in the Act and which carries with it no directive that decision-making should be undertaken jointly. The content of the phrase shared parental responsibility was supplied by s 65DAC, which by s 65DAC(2), required decisions to be made jointly.
In the absence of s 61DAA(1), the phrase joint decision-making has a meaning commensurate with the ordinary meaning of the words that make it up. The work done by s 61DAA(1) is to supply further context to that phrase where that subsection is otherwise engaged.
The applicant’s desire to be informed about and have input into decisions for X’s welfare is entirely understandable. The evidence demonstrates, however, that joint decision-making for X, whether that be for major long-term decisions or otherwise, is not a realistic possibility. The court should not make orders which are bound to fail. An order for joint decision-making in respect of X is bound to fail. That is not to say, however, that the ends that the applicant hoped to achieve by such an order cannot otherwise be accommodated by orders crafted to that purpose.
I decline to make an order for joint decision making in respect of X. It is in X’s best interests for the respondent to have sole parental responsibility for decisions that need to be made about X’s health and education. However, it is necessary, I think, to cast upon the respondent an obligation to inform the applicant about the decisions that she intends to make for him in a timely way so that the applicant has the opportunity to make his views known to the respondent. She will then have the opportunity to take those views into account. There will be orders to that effect.
Y’s time with the respondent
All parties agree that Y should spend time with the respondent. There is agreement that the time should be supervised. In final submissions the respondent proposed that Y’s time with her be supervised. However, I do not accept that her proposal is a concession on her part that Y is at a risk of harm in her care. Rather, it seems to me to be nothing more than an acceptance that, having regard to the evidence, particularly that of Ms H and Dr N, an order for supervision of Y’s time with her was likely inevitable.
Amongst other things, I am obliged to consider what arrangements would promote Y’s safety. That requires an identification of harms that might befall him and an assessment of the magnitude of the risk that those harms will materialise.
The case advanced by the applicant and the independent children’s lawyer is that Y is at risk of harm if he spends unsupervised time with the respondent. The risks are twofold. The first is a risk of physical and emotional harm from X that the respondent will not be able to manage. The second is a risk of emotional or psychological harm posed by the effects of the respondent’s words and actions upon Y’s anxiety.

As to the first risk, at the outset it is important to recognise that Y has a relationship with X that is important to him. Notwithstanding their difficulties, it is plain from Dr N’s observations that the relationship is an important one to Y. But, it is also plain that Y has in no small way been the target of X’s violence in the past. It was such that in March 2022 the applicant, with the respondent’s agreement, saw that the only way forward was for the boys to live in separate residences.
In submissions, the respondent argued that when the boys had lived with the applicant, Y was the target of X’s aggression on many occasions. Thus, the risk existed in the applicant’s household just as much as it did in hers. She argues that the applicant was powerless to do anything about it. His only solution was to place X back with her. She suggests that this demonstrates that she represents no risk to the children. She also argues that since X has been in her care for the past two years, there has been no occasion of violence from X towards her or the applicant or Y.
When cross-examined about how she might manage X’s aggression to Y if he was in her unsupervised care, the respondent described how she has managed X in the past when he was physically aggressive towards Y. But in her own words, X is over six feet tall and 90 kg and she is unable to physically restrain him. She told me in submissions that when she observed X attacking the applicant in February 2022, she was unable to physically intervene “due to my size”. Nonetheless, she submitted that she thought that she would be able to placate X and protect Y from him should she need to do so. I am not so confident.
I am satisfied that the evidence clearly establishes that X presents a risk of physical and psychological harm to Y arising from X’s aggression and violence.
The respondent points out that X has been able to spend time with the applicant and Y since the orders were made in June 2022 without incident. The evidence bears this out. Presently, X and Y have contact with each other when X spends time with the applicant. According to the applicant’s evidence, that time has proceeded relatively smoothly because the time is limited and the boys are usually engaged in computer orientated activities. That tends to indicate that the risk of harm to Y is relatively low, at least in the circumstances that exist when X is spending time with the applicant. I am not so sure, however, that the risk would be of the same magnitude in the respondent’s household, particularly if Y’s time extends to more substantial overnight time as the respondent proposes. As a matter of impression, I consider it likely that the present arrangements provide a sufficient opportunity for the boys to maintain their relationship, but the time is not so long as to lead X to feel that Y is getting on his nerves or annoying him.
Whilst I find that the risk of physical harm from X is a real risk to Y’s well-being should X and Y be together in the care of either parent, I consider that the risk is low enough to be considered “acceptable” if the time that Y spends with X in the unsupervised care of the respondent is limited. This risk of harm is really measured by X’s tolerance for Y. The current experience in the applicant’s household suggests that X can cope with the six hours he presently spends with the applicant and Y on a Saturday. I expect he could probably do the same for five or six hours per occasion in the respondent’s household. I consider it likely, however, that the risk of harm to Y will increase such that it would be unsafe for him to spend more time than that on any one occasion whilst in the unsupervised care of the respondent. So that it is clear, I do not consider that the risk of harm to Y from X is such that when spending time with the respondent, Y’s time with her should be supervised by others, provided the time is limited in the way I have suggested. But that its not to say that it should not be supervised for other reasons.
X also presents as a source of a risk of psychological harm to Y. X has a part to play in engaging Y’s anxieties for reasons other than his violence or aggression towards him. Dr N explains:
57 … [Y's] responses suggest to me that while he does miss his mother he is aware at some level, that contact could have negative repercussions for him. I think a supervised contact may still be somewhat risky, and in the past has apparently been insufficient to avoid upsetting comments. If the Court were to approve any contact for [Y] with his mother I think it needs to be without [X] being present and under close supervision such as a psychologist's office. At interview [X] was very clear that [Y] should be with himself and their mother at her house and I think he would likely to express that view to [Y] if his mother is present, possibly with some allegations about [Mr Cornwall's] role in preventing that from happening. That would not be good for [Y]. [Ms Cornwall] would have to undertake to avoid making such comments to [Y].
(emphasis added)
Before leaving the question of the risk that X presents to Y, I will consider the applicant’s proposal for time between him and X. X’s tolerance for Y also informs the orders sought by the applicant for X to spend with him. The orders sought by the applicant represent an increase of some three hours each Saturday over the existing arrangements. Whether X can cope with that time is not answered by the evidence, However, notwithstanding that, I do not consider that the risk of harm to Y from X is the same in the applicant’s household, primarily because it is not suggested that the applicant does not have the physical ability to protect Y should that be required. The applicant proposes that X’s time with him be enlarged (although to no more than eight hours on Saturdays) so as to permit X to have a meal with the applicant or he and Y. In my view the evidence does not suggest this is inappropriate. I consider that it is in X’s best interests for his time with the applicant to be extended in the way in which the applicant suggests.
Returning to the question of Y’s time with the respondent, the second and more significant risk for Y, in my view, is the re-emergence or exacerbation of his anxiety should he have unsupervised time with the respondent. The respondent’s submissions were underpinned by the proposition that Y suffered from significant anxiety. She also accepted that while living with the applicant Y is doing well at school and his anxiety has improved. She also submitted that if Y was to spend time with her “we need to manage his anxiety in those arrangements”. These statements are consistent with the views expressed by Ms H at paragraphs [106] – [109] of her second family report when talking of the period between August 2021 and May 2022. They are also consistent with Dr N’s views expressed at [54], [58] of her report.
Nonetheless, the respondent suggested that the time could move to unsupervised time. However, to determine if such a move should be ordered, it is necessary to understand the sources of Y’s anxiety.
The evidence of Dr N is that although it is much improved, Y still suffers anxiety. That anxiety is a product of his past experiences of the conflict both between his parents, his experiences with X and his experiences with the respondent. In the latter respect, it is the way in which she has talked to and acted towards Y in connection with the applicant. The evidence demonstrates that the respondent has regularly said disparaging and denigratory things about the applicant to Y when she has had the chance to do so and that, according to Dr N, raises Y’s anxiety levels. There are other ways in which the respondent’s conduct might trigger Y’s anxiety. Dr N said:
55 … She also explains [X's] aggressive behaviour as due to his ASD and the lack of understanding from others. There does not seem to be significant insight regarding the impact of [X's] behaviour on [Y] and I think by "excusing" [X] in this manner and any comments being made about [Mr Cornwall] not allowing her to see [Y] would induce considerable anxiety for [Y]. For [Y] it is the thought of conflict and all which might follow thus leaving him emotionally confused and anxious, and, potentially re-traumatised, [Y] also has a big developmental milestone coming up in 2025 - commencing secondary school at a new school - and it could be helpful if he can maintain his social and emotional equilibrium.
According to Dr N, careful management of Y’s anxiety is necessary to ensure that it does not impact upon his relationships with the respondent, nor his relationship with the applicant nor increase again such that it becomes an impediment to Y’s functioning as it once was. She considered that if Y’s anxiety was increased, it would take a “considerable time” to restore his equilibrium.
I am satisfied that Y’s relationship with the respondent is important to him. Dr N was of the view that Y is likely to get a benefit from a relationship with the respondent in the long term. Indeed, Y misses the respondent although he is torn about how he might continue his relationship with her. In cross-examination, Dr N referred to the comment made to her by Y that he would like to see the respondent but cannot quite work out how that is going to work. Dr N thought that the broad effect of that statement was an indication that Y is presently anxious about how that would play out if he was to see the respondent. It was indicative of his anxiety.
The respondent pointed out that there were times in the past when Y expressed a desire to return to living with his mother. Indeed that is so. When he was interviewed by Ms H he told her on both occasions that he wished to live with the respondent but more recently in his interview with Dr N he expressed a desire to remain living in the applicant’s care. This is, I think, a reflection of the reduction in Y’s anxiety in the applicant’s household and the progress that has been made in his personal growth.
To manage Y’s anxiety, Dr N had the firm view, from which she did not depart in cross-examination, that any time between Y and the respondent should be supervised. Dr N gave evidence, which I accept, that the purpose of supervised time is to manage Y’s anxiety, to ensure that his anxiety does not thwart his relationship between the respondent and him or his relationship between the applicant and him.
Importantly, Dr N did not consider that the time should start immediately because Y has just commenced at high school and there were many changes happening in his life that she thought ought settle down before he should be asked to deal with his relationship with the respondent again. Dr N thought that a delay in the commencement of time between Y and the respondent until middle of 2025 was appropriate. I accept Dr N’s evidence about that. His transition to high school needs to go smoothly before he is asked to deal with the prospect of spending time with the respondent again.
Dr N thought that on balance Y should be prepared for the commencement of time with his mother rather than it being announced to him with very little warning. She considered that Y’s therapist was an appropriate person to prepare him for supervised time with the respondent. Indeed, Dr N went further and suggested that at least in the first instance the time between Y and the respondent should take place in the presence of Y’s therapist or psychologist if that person was willing to do so.
The respondent argues that a move to unsupervised time between Y and her is appropriate because she no longer thinks that Y should live with her. She says that she will not undermine Y’s relationship with the applicant. However, I have no confidence that the respondent will not attempt to undermine Y’s relationship with the applicant or upset the progress that he has made in the applicant’s care. I find that it is likely that she will do so. I reach that conclusion because:
(a)the respondent’s mental health disorder means that there is a real risk of disinhibited and antagonistic behaviour towards the applicant;
(b)the respondent has a demonstrated history of breaching orders made by the court that regulate the communication she has with Y. On her own evidence she knowingly breached those orders; and
(c)she also knowingly breached the orders providing for she and the applicant to have equal shared parental responsibility for X.
Neither Ms H nor Dr N could offer any time-frame in which they considered that Y would become sufficiently resilient to manage any perception of parental conflict induced by the respondent’s words or conduct without risk of significant relapse in his anxiety.
In the absence of an ability to form a view on the evidence that there is a point in time when Y’s supervised time with the respondent should become unsupervised, I am left with the prospect that Y’s time will remain supervised.
There is a generally accepted and well-understood aversion to making orders for long-term supervised time between children and parents. The imposition of an order for long-term supervision is an arrangement that the Court adopts in rare circumstances (see B and B (1993) FLC 92-357). However, that where the evidence supports it, the making of such an order is open to the court (see for example Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96 cited with approval in Bielen & Kozma (2022) FLC 94-123).
Dr N’s evidence did not favour a move from supervised to unsupervised time between Y and the respondent without first being satisfied that Y was comfortable with that progression and it was unlikely to aggravate or exacerbate his anxiety. In her view, such guidance should be taken from Y’s psychologist or therapist. I agree. It is impossible to determine at this point just what the effect spending time with the respondent will have upon Y and his anxieties. These are matters for careful consideration by those trained to consider them.
For the reasons I have set out above, in terms of the time that Y should spend with the respondent, I have concluded that the orders which will best promote Y’s safety are orders which will see Y spend supervised time with the respondent commencing in July 2025. I am not satisfied on the evidence that it is presently in Y’s best interests for the time between he and the respondent to become unsupervised because so much depends upon Y’s reaction to spending time with the respondent. It might be that the parties will be able to agree to Y spending some unsupervised time with the respondent depending upon Y’s reaction to supervised time with her and advice received by the parties from Y’s psychologist or therapist.
ORDERS
I have set out the orders that I will make in these proceedings at the commencement of these reasons. I have addressed the significant outcomes that were in dispute in these proceedings above.
As to the order that provides for the applicant to have sole decision-making responsibility for Y, I have included a reference to the sole authority to apply for renewed passports for him. That is not a matter to which the respondent consented but given her concession that the applicant should have sole decision-making responsibility for Y, it is something included for the sake of clarity. I have made a similar inclusion in respect of X.
Order 8 imposes an obligation on each of the parties to inform the other about any proposed decisions that they intend to make concerning the child in their care. The orders follow, more or less, the text suggested by the applicant.
Insofar as the orders for X to spend time with the applicant are concerned, I have included orders for him to spend time with the applicant on Thursdays, during school holidays and on special occasions but that those times be subject to X’s wishes. It seems to me that to make orders in those terms is consistent with what has been occurring. I have not made the primary order for X to spend time with the applicant from 12.30pm to 8.30pm each Saturday subject to X’s wishes because I consider it important that there be some enforceable obligation on the respondent to ensure that X spends time with the applicant in accordance with this order.
I have made the orders that the applicant seeks in respect of communication between the children, he and X and the respondent and Y. For the reasons expressed by Dr N, it seems to me that communication between the respondent and Y needs to be tightly circumscribed.
The applicant sought a restriction on the respondent’s ability to obtain information from Y’s doctors treating health and allied care professionals and others. I think that restriction is inappropriate. Notwithstanding that the applicant will have sole parental responsibility for Y, in my view, it is entirely appropriate for the respondent to have the capacity to inform herself about Y’s progress. The order for sole parental responsibility in favour of the applicant will ensure that the respondent does not have the capacity to interfere in any treatment plans or the like in respect of Y.
The orders authorise both parents to obtain medical and other information about both children. Importantly, however, it should be understood that the orders do not (and cannot) oblige any third party, such as doctors or schools to provide information about a child to a parent that does not have parental responsibility for that child.
The applicant seeks an order that each parent will be responsible for the medical and allied health expenses incurred for the child living with them. That seems to me to be an order concerned with child support and I decline to make it.
The applicant seeks an order requiring the parents to facilitate the regular attendance at school of the child living with them and inform the other parent of any significant absences from school. I do not propose to make that order. X does not go to school and having regard to the evidence, I doubt he ever will. Y is attending school, but the respondent will have the capacity to obtain details about Y’s attendance and the like from his school.
The applicant also seeks to restrict respondent’s ability to attend Y’s school, including any school function at school or elsewhere or any sporting or training event for Y wherever that might be. To the extent that this order seeks to restrict the respondent’s ability to contact school and seek information about Y, I decline to make the order. I do not consider that in Y’s best interests. Nor do I think that a blanket injunction against the respondent from attending Y’s school on any occasion is appropriate. It is appropriate that the respondent not attend the school when Y is present and that she not attend any school events when Y is present, but beyond that, the respondent has a legitimate interest in attending the school to speak with Y’s educators and attend events such as parent teacher interviews. I have made an order which reflects those matters.
No party addressed me in any detail on the balance of the orders within their respective drafts. I have been left to figure out for myself whether any of those orders are in the children’s best interests.
The applicant suggests differing orders about overseas and interstate travel for each of the children. No submissions were addressed as to why this should be a difference. In my view, it is appropriate to authorise both parents to travel overseas with the child in their care on one occasion each calendar year for a period not exceeding four weeks. Leaving aside the operation of s 65Y of the Act, an order to that effect is necessary because an absence from Australia for that period of time will necessarily interfere with the regular time spending arrangements that are otherwise set out in the order. I have made orders requiring the provision of information before such overseas travel occurs.
No order is necessary for the purposes of intrastate travel. However, an order allowing each parent to suspend the regular time spending arrangements so as to permit them to spend a holiday period with the child in their care is appropriate. I have accommodated that in the orders.

I have also made directions about the outstanding costs application.

I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett.
Associate:
Dated: 24 February 2025

File number(s):	CSC 1014 of 2020
Judgment of:	JARRETT J
Date of judgment:	24 February 2025
Catchwords:	FAMILY LAW – CHILDREN – With whom a child spends time – Where the applicant asserts that the respondent presents an unacceptable risk of harm – Where it is agreed that the child should live with the applicant – Where the applicant seeks that the child spend no unsupervised time with the respondent – Where the respondent ultimately seeks unsupervised and overnight time with the child – Where the child derives value from his relationship with the respondent and his sibling – Where the Court considers that ongoing supervision is appropriate
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60B, 60CC, 61DAA, 62G, 64B
Cases cited:	B and B (1993) FLC 92-357 Bielen & Kozma (2022) FLC 94-123 Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96
Division:	Division 1 First Instance
Number of paragraphs:	135
Date of hearing:	11, 12 & 13 November 2024
Place:	Cairns
Counsel for the Applicant:	Ms Stocks
Solicitors for the Applicant:	Miller Harris Lawyers
Solicitors for the Respondent:	Litigant in person
Counsel for the Independent Children’s Lawyer:	Mr Hartwell
Solicitors for the Independent Children’s Lawyer:	Meade Legal

CSC 1014 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR CORNWALL Applicant
AND:	MS CORNWALL Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JARRETT J
DATE OF ORDER:	24 FEBRUARY 2025