Cosmakis & Ganiadis - [2022] FedCFamC2F 164

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cosmakis & Ganiadis [2022] FedCFamC2F 164

File number(s): PAC 1632 of 2020

Judgment of: JUDGE NEWBRUN

Date of judgment: 22 February 2022

Catchwords: FAMILY LAW – parenting - best interests of children - Orders made

Legislation: Family Law Act 1975 (Cth), ss. 60B, 60CC, 60CA, 61DA, 65DAA, 65D
Crimes (Sentencing Procedure) Act, s. 10(1)(a)

Division: Division 2 Family Law

Number of paragraphs: 367

Date of last submission/s: 31 January 2022

Date of hearing: 27, 28 & 31 January 2022

Place: Parramatta

Counsel for the Applicant: Mr Anderson

Counsel for the Respondent: Ms Lawson

Counsel for the Independent Children’s Lawyer Mr Fermanis
ORDERS

PAC 1632 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR COSMAKIS

Applicant

AND:
MS GANIADIS

Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

22 FEBRUARY 2022

THE COURT ORDERS THAT:
1.That all previous Orders be discharged.
2.That the Mother have sole parental responsibility for the children X born in 2007 and Y born in 2011 (“the Children”).
3.That when making a major decision about the care, wellbeing or development of the Children:
(a)the Mother is to notify the father 14 days prior to the decision being made via email, of the nature of the decision begin made and the options being considered;
(b)that within a further 7 days the father provide his opinion to the mother via email;
(c)the mother shall consider any proposals put forward by the father in relation to that decision, provided that the response is received within 7 days; and
(d)notify the father in writing of the final decision she has made within 48 hours of making this decision.

4.That the Mother is to keep the Father apprised of the names and contact details for:
(a)All medical and allied health professionals (including psychologists) and services attended upon by the Children or either of them; and
(b)The schools and educational services at which the children are enrolled.

5.That the Children shall live with the Mother.
6.That the Children spend time and communicate with the Father in accordance with their wishes.
7.That should the Children, or either of them, express to the Mother that they would like to spend time or communicate with the Father, then the Mother will facilitate that communication and/or time insofar as it is reasonably practicable, and in doing so will email the Father to make appropriate arrangements.
8.That the Mother will ensure that the Children have access to the Father’s email address and phone number, and for the purposes of this Order the Father is to notify the Mother’s solicitors in writing within 7 days of these Order his preferred telephone number and email address, and thereafter advise the Mother via email of any change to such details.
9.That the Father is at liberty to communicate with the Children by correspondence in the form of cards, letters and gifts at all reasonable times (up to once per month) and for the purposes of this Order:
(a)The Father shall address all correspondence and gifts to the Children care of the Mother at a postal address nominated by the Mother within 7 days of the date of these Orders (and thereafter advise of any change to such address within 48 hours);
(b)The Mother shall provide all correspondence, letters and gifts to the Children;
(c)The Mother shall facilitate the Children reading any and all correspondence sent by the Father and encourage them to respond;
(d)The Mother shall facilitate the Children sending correspondence and/or gifts to the Father whenever the children express a desire to do so; and
(e)The Children may further communicate with the Father with the discretion of the Mother.

10.That both parties are authorised to directly contact the Children’s schools, medical practitioners, allied health professionals (including psychologists) and obtain the Children’s medical reports, school reports, correspondence from the Children’s schools via the Compass School Application, and information about the children’s treatment and progress, and for abundant clarity, this Order authorises both parties to obtain such information upon provision of a copy of these Orders to the relevant educational institution, medical practitioner, or allied health professional (including psychologists).
11.That both parties are restrained from making any disparaging or negative remarks or comments about the other, either to the Children or in the presence of the Children, or within their hearing, and the parties shall each remove the Children from the presence of any third party that makes any disparaging or negative remarks or comments about the other parent.
12.That both parties will encourage, and not undermine, the Children’s relationship with the other party and with the other party’s extended families.
13.That each party shall keep the other informed of the Local Government Area within which they reside and email address, and in the event any such details change, then the party changing their details will inform the other parent via email within no less than 7 days of such change.
14.That the parties are to communicate by email only regarding the Children and all such communication is to be brief, polite and solely for the purpose of sharing information about the Children.
15.That the Father is restrained from attending upon the Children’s address (if it becomes known to him) without the prior written consent of the Mother.
16.That the Mother is restrained from attending upon the Father’s address without the prior written consent of the Father.
17.That the Father is restrained from attending upon the Children’s schools whilst the Children are in attendance (save for parent-teacher interviews and other occasions when the Children are not present), unless otherwise agreed in writing between the parties.
18.That the Mother shall hold the Children’s passports at all times and this Order authorises the Mother to solely apply for the Children’s Australia passports and any renewals and solely sign any such application without the Father’s input, consent or execution, noting that these Orders permit the Mother to travel with the Children outside of the Commonwealth of Australia.
19.That the Mother shall be permitted to remove the Children from the Commonwealth of Australia and/or state of New South Wales to travel, provided that she provide the Father with 21 days’ notice in writing of her intention to travel with the Children and provide the Father with details of the State or Country that she will be travelling to with the Children, and provided also that the Mother shall be responsible for the payment of the Children’s flights, accommodation and any other travelling expenses during the time they are travelling with her.

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 Cosmakis & Ganiadis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION

This final parenting hearing relates to the children X born in 2007 and Y born in 2011 (“the children”).
The parties commenced cohabitation in about 2005. They last lived in the same home with the children on 1 January 2019.
The youngest child Y was diagnosed with autism in 2014. In 2019 the eldest child X was diagnosed with mild autism. They both receive treatment for their autism and also anxiety.
The children have not spent time with the Father since 27 December 2019. They live with the Mother.
Proposals
The Mother’s proposals were set out in her Amended Response. Inter alia, she sought Orders that she have sole parental responsibility for the children; that the children live with the Mother; and that the children spend time and communicate with the Father in accordance with their wishes.
The Father’s proposals were set out in his Minute of Final Orders. Inter alia, he sought Orders that the parties have equal shared parental responsibility for the children; and also sought these Orders:
4.That the Mother and Father shall forthwith:
(a)attend upon Dr B, psychologist and family therapist of C Psychology and make appointments to continue to attend upon her for the purpose of family therapy with the children as recommended by Dr B;
….
(f)attend and undertake any appropriate separate counselling recommended by Dr B;
…
10.In order to facilitate re-establishing the children’s relationship with their Father and prior to the live with arrangements provided in the following order herein becoming operative and for a maximum total period of 18 months:
(a)The Mother shall ensure the children attend upon Dr B, psychologist, or such other psychologist recommended and nominated by Dr B in the event that she is unavailable, within 14 days of this order in order to develop rapport with the psychologist; and
(b)The Mother shall ensure the children attend upon the psychologist at all such times and attend all appointments at any reasonable location and times nominated by Dr B or the psychologist for such length of time as recommended by the psychologist; and
(c)Dr B or her nominee shall be authorised to provide to the children communications from the Father including greetings in various forms and gifts at her or their discretion in accordance with her or their professional judgment as to the appropriateness of those communications and gifts commencing within a period of 2 months of the date of these orders; then
(d)Dr B or her nominee shall be authorised to provide to the children pre-recorded video message(s) from the Father commencing within a period of 6 months from the date of these orders in accordance with her or their professional judgment as to the appropriateness of those communications; then
(e)Dr B or her nominee shall be authorised to provide to the children telephone or video call contact with the Father commencing within 6 months of the date of these orders in accordance with her or their professional judgment as to the appropriateness of the timing of those communications; then
(f)Dr B or her nominee shall be authorised to permit the children to spend supervised time with the Father in the presence of and under the direction of the psychologist within a period of 12 months of the date of these orders in accordance with her or their professional judgment;
…
(i)Dr B (or her nominee in accordance with the previous parts of this order) shall be provided by the Mother and Father copies of the Report of Dr D dated 3 December 2020 and his letter dated 15 March 2021, together with the Affidavit of Emeritus Professor Dr E filed 25 October 2021 within 7 days of the date of these orders.
11.The children shall live with the Father as agreed between the Mother and Father after the provisions for re-establishing the relationship with the Father have occurred in accordance with the previous order herein, and in the absence of agreement as follows:
(a)Each alternate Friday during school term from after school until the following Sunday at 10:00 am.
(b)The second half of each school holiday period.
(c)On Father’s Day from 10:00 am to 3:00 pm.
(d)When the children’s birthdays fall on a weekend from 12 noon to 3:00 pm on the birthday and when the child’s birthday is on a week day from 5:00 pm to 7:00 pm on that day.
(e)On Greek Orthodox Easter Sunday from 2:00 pm to 6:00 pm.
(f)On 25 December each year from 2:00 pm to 6:00 pm.
(g)On 26 December each year from 10:00 am to 6:00 pm.
The ICL’s proposals were set out in her proposed Minute of Order set out in her Case Outline. Inter alia, she sought Orders that the Mother have sole parental responsibility for the children; that the children live with the Mother; and that the children spend time and communicate with the Father in accordance with their wishes.
The Father relied upon the following documents:
(a)His Questionnaire Parenting filed 30 November 2021;
(b)Affidavit of Mr Cosmakis filed 1 November 2021;
(c)Affidavit of Emeritus Professor Dr E filed 25 October 2021;
(d)Affidavit of Mr F filed 2 June 2020;
(e)Affidavit of Ms G filed 1 June 2020;
(f)Affidavit of Ms H filed 1 June 2020;
(g)His Amended Application for final Orders filed 10 September 2021;
(h)Reports of Dr D filed 3 December 2020 and 15 March 2021.
The Mother relied upon the following documents:
(a)Her Amended Response filed 10 September 2021;
(b)Affidavit of Ms Ganiadis filed 1 November 2021;
(c)Affidavit of Ms J filed 1 November 2021;
(d)Single Expert Report of Dr D filed 3 December 2020;
(e)Supplementary Response by Dr D filed 15 March 2021;
(f)Child Inclusive Conference Memorandum filed 9 July 2020.
The ICL relied upon:
(a)Child Inclusive Conference Memorandum to Court prepared by Ms EE filed 9 July 2020;
(b)Single Expert Report prepared by Dr D filed 18 December 2020;
(c)Supplementary answers prepared by Dr D dated 15 March 2021;
(d)ICL Tender Bundle.
The following Exhibits were relied upon:
(a)Exhibit A: Tender Bundle of Father (21 Pages);
(b)Exhibit B: Medical Certificate of Dr K dated 25 January 2022;
(c)Exhibit C: Hand written Letter and envelope;
(d)Exhibit D: ICL Tender Bundle (122 Pages);
(e)Exhibit E: Mother’s Exhibits to Trial Affidavit of 1 November 2021;
(f)Exhibit F: Mother’s Tender Bundle (45 Pages);
(g)Exhibit G: Documents (14 pages) from the Subpoenaed Material of Mr L recently produced;
(h)Exhibit H: CIC Memorandum dated 9 July 2020, Family Report dated 3 December 2020, and Letter of Dr D dated 15 March 2021;
(i)Exhibit I: Email to Professor Dr E’s office of 28 January 2022 regarding provision of documents.
EVIDENCE
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence relevant to the Court’s determination will be considered either in this section or whilst addressing the s.60CC factors (see below).
The Father’s Affidavit
The Father is aged 48 years. The Mother is aged 49 years.
The Father presently works as a retail assistant. He holds a bachelor degree and a graduate diploma in applied finance. He has previously worked as a finance professional. During most of the parties’ relationship and marriage he worked in 2 jobs except for the times when he was made redundant and in 2019 to date. He has worked in the same type of jobs for the whole of the marriage including his current casual job for about the last 25 years.
After the birth of X, in about 2009, the Mother wrote the Father a note in respect to a proposed divorce, being annexure A to his Affidavit.
The Father asserted that the parties continued to live together under the one roof, slept in separate beds since after about 2009, and there was no sexual relationship since September 2010. The Mother did not cook the Father any meals. The Mother did not do any laundry for the Father after 2016. The Mother did not permit the children to spend time with the Father’s extended family without her being present.
The Father asserts that he did not participate in the care of the children after the birth of Y.
The Father left the former matrimonial home 1 January 2019 as a result of an incident which led to defended assault charges. The Father regrets the events of that day. He admits he reacted badly to the stresses which were present in the parties’ relationship. The Father appealed his conviction and sentence relating to the assault charges to the District Court of NSW.
The Court observes, in relation to the Father’s District Court of NSW appeal, that he withdrew his appeal against conviction and proceeded on the basis of his guilt, with the District Court Judge ultimately, whilst acknowledging the guilt of the Father, dismissing the common assault charge pursuant to section 10(1)(a) of the Crimes (Sentencing Procedure) Act.
A final ADVO (made on 27 March 2019) was in place until 26 September 2020 which protected the Mother and children from certain actions by the Father. The Order did not prevent the children spending time or communicating with the Father.
As part of the appeal to the District Court of NSW, the Father saw Dr M, psychiatrist who prepared a report dated 3 December 2019 which was used as evidence in the Father’s appeal proceedings in the District Court.
The Father annexes to his Affidavit the above report of Dr M. The report states that the doctor saw the Father on two occasions, firstly in late November 2019, and then in early December 2019.
Inter alia, the Father told the doctor that he had not seen the children for eight months; that he then had supervised visits with the Mother present; and that he had no regular contact with the children now. In relation to contact with the children, the Father referred to having, post incident, had a period of 8 months where he had no contact, and then made reference to supervised visits on 3 occasions for a period of 2 hours, the interval between these visits being 2 weeks. He stated that he had last seen the children 2 weeks prior to 26 November 2019, again supervised visits.
The Father told the doctor that since 2012 he and the Mother have lived separate lives, sleeping in separate beds.
The Father stated that X never gave him a kiss or a hug.
The Father made reference to an argument, and that he threatened to switch off the air-conditioning and indicated he wanted to go separate ways.
The doctor stated that based on the history given by the Father, the Father would conform with the DSM 5 diagnosis of Persistent Depressive Disorder (Dysthymia) arising as a response to circumstances in the context of his marriage.
The doctor stated his view that the Father would benefit from attending upon a psychologist and undergoing cognitive behavioural therapy with the aim of such therapy to address his depressive mood. The doctor advocated an initial 20 sessions of cognitive behavioural therapy at weekly to fortnightly intervals, and that after such sessions, assessment by the psychologist should be undertaken with a view to determining the results of such treatment and as to whether further sessions would be appropriate.

On 1 January 2019, the Father finished work at Employer N about 4 PM. He called the Mother and asked her to wait until he arrived home before getting in the pool with the children.
Later, after the Father returned home with McDonald’s food for the family about 6 PM, following a brief verbal exchange between the parties, the Father threw his lunchbox with his dinner inside into the kitchen sink. The Mother went upstairs to the bathroom with the children. The Father went up and asked them to come back down. The Father said he was going to turn off the air-conditioning so that they would come back to the kitchen. The Father noticed that the Mother was recording him. He prevented the door from closing by putting his foot in between the door and the jam. He took the Mother’s phone from the Mother’s hand and went to leave with her phone. The Father states he should have just walked away. He spoke loudly.
The Father refers to an incident on 27 January 2014. The Mother and her adoptive mother, Ms J, were at the kitchen table. There was a conversation between the Father and Ms J. The Father told Ms J she could leave the home and Ms J left. A short time later the Mother and Ms J came back to the house with police.
The Father refers to an incident in May 2015 involving the parties and their car in the driveway of their home.
The Father wrote a number of letters to the children after January 2019 but he received no responses.
The Father saw the children on Sunday 1 September 2019, Father’s Day, for 2 hours and he saw the children with the Mother, Ms J, and his parents. This was the first time that the Father had seen the children since January 2019. The Father sought to speak to the children. The children responded with brief or one-word answers. The Father observed the children to be hesitant and reluctant to talk with him or his parents.
The Father saw the children on 15 September 2019, 29 September 2019, 17 November 2019, 27 December 2019 albeit supervised by either the Mother, or the Mother and Ms J. The Father states he has not seen the children since 27 December 2019.
The Father made an appointment to see Dr B in relation to prospective family therapy.
The Father lives in a home in Suburb O owned by the paternal grandparents. He lives on his own.
The Father recalls that Y was diagnosed with autism when she was about 3 years old.
The Father pays child support in accordance with the assessment of his casual employee income, and he has also paid for half the school fees.
The Father has completed certain parenting courses, including for parenting children with autism.
The Father considers that the children need family therapy.The Father is concerned that the children may have made little or no progress in an isolated “cult like” environment.
Affidavit of the Father’s sister, Ms G
The Father’s sister’s Affidavit was filed 1 June 2020.
The Father’s sister is aged 54 years.
The Father’s sister spoke positively of the Father and she has always considered him a kindhearted person who would not hurt another human being. She believes the children would benefit from spending time alone with the Father.
The Father’s sister refers to a meeting with the Mother in about 2010 at a café. The meeting lasted about two hours. She and the Mother rarely spoke after this day.
The Father’s sister states that the Father first informed her that he was living separated from the Mother in separate bedrooms without sexual relations but under the one roof many years ago.
Affidavit of the paternal grandmother, Ms H
The paternal grandmother’s Affidavit was filed 2 June 2020.
The paternal grandmother, aged 80 years, was not available for cross examination due to her medical conditions and mental health state; see exhibit B.
The paternal grandmother referred to seeing the children in the presence of the Mother and others at various times in September 2019, and in December 2019. She states that he has not seen the children since 27 December 2019.
Affidavit of the paternal grandfather, Mr F
The paternal grandfather’s Affidavit was filed 2 June 2020.
The paternal grandfather passed away in 2020.
His Affidavit has a significant number of identical paragraphs as are contained in the paternal mother’s Affidavit.
The Court attaches little weight to the Affidavit evidence of the paternal grandparents where in conflict with the Mother’s evidence. They were not able to be cross-examined and their Affidavits were significantly identical.
The Mother’s Affidavit
The child X attends P School at Suburb Q in this year is in Year 9. She was diagnosed by Dr R, paediatrician, in November 2019, as having anxiety and autism.
The child Y attends S School, Suburb T, and this year is in Year 5. She has been in an Autism Support Class with Aspect run through the school. Since age 3, this child has been diagnosed with autism, with such diagnosis also having been made by Dr R in 2014. She has also been diagnosed with speech delay and severe anxiety by Dr R.
The children have not spent time with the Father since 27 December 2019. The children have not spoken to nor heard the Father’s voice since 25 April 2020.
After an incident on 1 January 2019, the Mother and children continued to reside at Suburb U until October 2019. Thereafter they moved into the residence of the maternal grandmother at Suburb U. After this incident, the Father moved into the Suburb O residence of his parents.
The Mother no longer supports family therapy.
The Mother has observed that Y becomes distressed and anxious when in unfamiliar places and with unfamiliar people. She has observed that whenever Y is scared or anxious, and her sensory issues and emotions overwhelm her, her ability to reason and regulate her emotions is also minimised. It often takes an adult Y is comfortable with to assist her in implementing calming strategies such as zones of regulation (from C) being different colour-coded levels of mood.
The Mother is guided by Y’s treating practitioners as to what is best for her. Dr R has told the Mother that for long-term education Y would be an appropriate candidate to integrate into a specialist support class for high school, such as a life skills program.
For both of the children, the Mother does all that she can to ensure that they receive the level of care and assistance for their development as recommended by the treating practitioners, whilst also doing all that she can so that their mental health and ASD does not define them.
In relation to the incident on 1 January 2019, the Father, after being in the swimming pool with X, at one point started ranting, telling the Mother that he was going to punish her and that he would cut the power and would not let the Mother have air-conditioning that night. In front of the children, and the Mother, he told the Mother that he was going to take the children from her and she would have nothing. The Father was swearing and banging his hand on the table. The Mother was afraid and she observed the children to be afraid also. Then the Mother and children walked upstairs and locked themselves in the upstairs ensuite bathroom. The Father followed them ranting angrily and verbally abusing them saying, “You will be punished. I’ll switch the air-conditioning off”, and “I’ll pull the fuses, I’ve had enough.” The Father was pacing back and forth outside the door. The Mother then started recording on her telephone. The Father would walk up to the ensuite door yelling and banging on it, then pace away from it and suddenly return. The Father was yelling and threatening, “I’m going to take you to Court”, “Let’s see what the Courts say about this”, and, “You will be punished.” The Father, after the Mother had slightly opened the door, pushed the door onto the Mother and children, hurting the Mother’s toe, and the children started screaming and were very upset crying and standing behind the Mother. The Father held onto the mother’s right arm which later caused bruising and took the phone off her. The Father said, “I’m going to smash this and you’re not going to get it back”, holding the phone as he walked back into the upstairs living room. X was hysterically crying, and she was shaking. The Mother requested the Father to give her phone back multiple times. The Father refused. A melee had occurred involving both the Mother and X at different moments trying to retrieve the mother’s phone from the Father, with the Mother’s right side of her mouth being hit by the Father’s arm. Y was crying in the bathroom throughout this time. The Father left the house. In doing so, the hinges of the back sliding door were ripped. The Father entered his car with the Mother’s phone. X ran up to the car and was holding onto the side of the car and later let go at the mother’s request. The Mother call the police via the home phone.
The Mother recounts other family violence incidents during the period that the parties were living together in the family home, perpetrated by the Father.
The Mother is scared of the Father.
The Mother has always been primarily responsible for the care and well-being of the children.
Following the birth of the children, the Father continued to work in full-time basis and often worked in excess of 60 hours per week, most weeks, and was therefore not present to assist the Mother in the care of the children. He would be out of the house Monday to Friday from about 9 AM (often not getting out of bed until after the children had already left for school) until on average around 7 PM or later usually after the children were asleep, and then also on weekends at the liquor shop. He would also, especially from 2017 when his parents moved out of their property at Suburb O, often stay over at that property by himself. Even upon the Mother’s return to part-time work following maternity leave for each child, she continued to be almost exclusively responsible for caring for the children. The maternal grandmother cared for the children when the Mother was at work.
The Father did not attend any doctors or therapists appointments for the children, immunisations, or daycare events. The Father did not often attend the children’s school events.
Since 1 January 2019, the children have shown and continued to show significant reluctance and fear to speak with, in any form, the Father, or spend time with the Father.
There was attempted but unsuccessful telephone time between the children and the Father, by agreement between the parties, through their solicitors, between early March 2020 and late April 2020, each Saturday between 10 AM and 10:30 AM. The children were reluctant to speak to the Father. The children had become increasingly distressed prior to and after the calls.
On each occasion the children were required by the Mother to spend time with the Father after 1 January 2019, they are both extremely reluctant and anxious. For example, X would complain of a headache and stomach ache prior to her time to talk with the Father. The children also became frustrated and angry with the Mother as she continually pressed them to speak to the Father.
The child X is fearful of the Father. She has said to the Mother on countless occasions since 1 January 2019 that she is scared of the Father, that she gets really anxious when she is around him, she does not want to see him, and she does not want to talk to him.
The child Y is able to express her thoughts and feelings well when she is in a relaxed and familiar environment such as at home. She has said to the Mother such things as, “He makes me scared”, and “I get worried when we have to talk to him mum”, referring to the Father.
In about 2015 and onwards, around the time Y started talking, she would run into the bathroom to hide when the Father returned home from work. Sometimes, should would also take the Father’s hand, walking to the door and say, “Bye, go to your car”.
The child X attended upon an intern at the psychology practice of Dr B from about early 2019 for about 3 appointments.
Following the child X attending upon the school counsellor in March 2020, long-standing GP Dr V then referred both children to Mr L, psychologist, and he has been the children’s psychologist since that time. The Mother has observed the children have made positive progress in his care, and he has helped them to address many issues around their respective anxieties.
In September 2020, Orders were made for X to continue her attendance with Mr L. In May 2021, this Order was varied by consent to also apply to Y.
The Mother placed her name on a waitlist with Dr B, in respect of family therapy, in about March 2020. The Mother had a meeting in early May 2020.
The parties did not proceed with family therapy following intake meetings.
The Mother is afraid of both children regressing, especially Y, if they are forced into contact with the Father and/or family therapy after all the progress they have made.
The Mother’s experience with the Father is that he is short tempered. He has not been able to manage the children’s day-to-day emotions.
The Mother was an adopted child. The Mother grew up in a loving family which the Mother has always considered as her own.
The parties have been unable to effectively communicate for many years.
The Mother has endeavoured to keep the Father apprised of major long-term decisions impacting upon the children. However, she did not notify the Father of X’s autism diagnosis in November 2019, and only disclosed this when these proceedings commenced.
Throughout these proceedings, the Mother has felt intimidated, scared and harassed by the Father.
The Mother is currently employed as a part time health care worker in a hospital at Suburb W. She works a 28 hour fortnight to enable her to care for and support the needs of the children. The Mother receives NDIS funding for both children.
The Mother’s present residence remains within a 10km radius of the former matrimonial property and the property of the maternal grandmother. The children and the Mother continue to spend regular time with the maternal grandmother each week. The maternal grandmother assists in the care of the children when the Mother is unable to care for them when she is working.
The Mother employs a consistent routine to assist in the children’s behavioural management and development. Of a school morning, the Mother wakes the children, assists them in getting ready for school, packs their food and bags and then takes them to school. Y needs assistance so the Mother helps her to get dressed, clean her teeth and eat breakfast.
The Mother takes both children to OT each Thursday afternoon and speech therapy on Friday afternoon. Y has been attending speech and OT since 2016 and X commenced attending in 2020 following her mild autism diagnosis in 2019. Y has also engaged in music therapy on Saturday since 2016.
In addition to the children’s therapists, the children attend a swimming club for children with disabilities, which they love, albeit this ceased during the Covid 19 lockdown; X engages in singing lessons; X is part of the social justice and art club at her school; and the children attend upon Mr L, psychologist. The Mother tries to build upon the work the children’s therapists teach them and provide the children with support and consistency at home to promote independence where possible in activities of daily living; for example, each evening the Mother prompts and assists Y to shower and dress herself and she assists both children with their homework.
The children have friends at their schools and spend time with their cousins regularly. Y is friends with all the boys in her class and she also joins in dance school and other carnivals and activities with the mainstream part of the school.
The children have progressed, particularly in the last year, with their schoolwork, general development and confidence. They are less anxious and are very happy. Whilst in the months after 1 January 2019 until early 2020 Y used to be afraid to go into the toilet or backyard by herself at home and at school, she will now happily do these things independently. The Mother believes she would struggle to do these things in unfamiliar environments.
The Mother is aware of the benefits of children having a relationship with their Father. The children have never really had a close relationship with the Father. Although the Mother has no doubt that the Father loves the children she does not believe that the children have felt loved and safe in his care.
The Mother intends on the children continuing to attend upon the therapist that they presently attend upon for as long as is recommended by the children’s therapists and/or doctors.
The Mother holds concerns in relation to the children’s psychological well-being if Orders were made to change the care arrangements or to reintroduce the Father to the children’s lives.
The Mother also has concerns about the children’s level of trust in her and her overall relationship with them, if the Mother is required to make them communicate or spend time with the Father when they are expressing a strong wish not to. The Mother believes that if she is required to make the children spend time with the Father that this will jeopardise the children’s trust in the Mother and make them resentful and angry. The Mother is also concerned that this would trigger difficult emotions for the children to manage. The Mother believes that the children will outright refuse.
Affidavit of Maternal Grandmother, Ms J
Ms J’s Affidavit was filed 1 November 2021.
Ms J is aged 77 years.
Ms J’s residence (at Suburb U) is only about 10 doors down the road from where the parties used to live with the children during their relationship.
The parties and X lived with Ms J in her residence from May 2008 to August 2009. Ms J assisted in the care of X. During this period she did not see the Father bathe, feed, burp, settle or care for this child.
During this period, Ms J recalls arriving home one afternoon and she could hear yelling from inside her house. She walked through the back door and saw the Father yelling at her. On enquiry by Ms J, the Mother told her not to worry, that it was nothing.
Ever since knowing the Father, Ms J has observed that the Father has always been very moody and aggressive. She stated that the Father could just switch over from being normal to an angry outburst. She stated that the Father was never a pleasant person to be around. When visiting the parties’ home, on occasion she could hear the Father yelling and swearing at the Mother from upstairs. She heard the Father criticising the Mother about her spending, the cleaning of the house and the Father would swear in Greek. Whenever this occurred, Ms J would watch as the children ran to hide, close the door, and they appeared terrified whenever they heard the yelling. Ms J observed that it was commonplace and not unusual for the Father to verbally abuse the Mother whilst pacing around the house.
Ms J stated that the Father has an explosive temper that she has witnessed “too many times to list.” She witnessed that the Father would often show this temper even in front of his own parents.
Ms J refers to an incident at the parties family home on about 27 January 2014. She had asked the Father to pick up some thongs in a doorway and the Father instantly became angry. He verbally ordered Ms J, whilst holding Y, out of the house, whilst yelling abuse. The Mother, the children and Ms J walked up the road to her house with the Mother calling the police. From that date, Ms J never returned to the parties’ home when the Father was present or potentially present due to her fear of the Father.
Ms J referred to an incident in about the latter half of 2015 when the Mother called her from her mobile phone. The Mother told Ms J that she and the children were in the bathroom and asking for Ms J’s help. Ms J called the police.
Ms J stated that there were many other times that she observed the Mother and children distressed and scared following an abusive incident with the Father. She stated that the Mother and children would often come to her home following an abusive incident with the Father.

Ms J recalls the Mother calling her with her voice trembling following an incident on 1 January 2019. The Mother told Ms J that the police had taken the Father to the police station and that she was scared because the Father would be so angry that she had called the police. Ms J stated that this was a comment that the Mother had made on many occasions to her before about being scared as to how the Father would retaliate if and when she ever did anything that she considered he may think was wrong. Ms J stated that the child X also spoke to her on the telephone in relation to the incident in the swimming pool and when the Father was driving away in his car.
Ms J states that there were countless times when she remembers the child X saying to her when she would call her after an incident with the Father, “We had to go into the bathroom.”
Ms J states that the child X, when younger, on occasion would phone Ms J asking if she could come to Ms J’s home because the Father would be coming home soon and she was starting to feel a bit worried.
Ms J states that during the parties’ relationship and in the year following their separation Y would often tell Ms J that she did not want to see the Father because he made her feel scared.
In relation to the child Y, Ms J has witnessed how this child’s emotions and anxiety can overwhelm her at times causing her enormous levels of distress, and that it can take some time to recover.
Ms J stated that the Father worked long hours and she observed he was out of the house Monday to Friday from about 8:30 AM until about 7:53 PM. He also worked on weekends at the store on Saturdays and Sundays. She stated that the Father was often gone for the large part of the day (on the weekend) not returning until dinnertime or after dinner.
Ms J stated that following the parties moving into their own residence in August 2009, and after the birth of Y in 2011, she remained involved with the family seeing and helping with the children around 3 times per week. She continued to observe that the Father did not appear interested nor committed to either child.
Ms J stated that since moving from the family home in late 2019 she has observed significant improvements in the children’s confidence, anxiety levels and development. They are much calmer and happier than she has ever seen them before. She stated that the children’s confidence and independence has continued to grow. In relation to X, she has become independent catching the bus on her own and is self-sufficient in her communication and her own care needs. She has observed X communicating with her friends whilst completing school work online. She has observed Y’s progress in her development, including in her independent thinking skills, problem-solving and communication skills which have become much clearer. Y also engages with everyone a lot more now.
Oral evidence of the Father
The Father gave oral evidence and was cross-examined.
The Father referred to having had 2 consultations with Mr Z, psychologist (on 10 and 17 January 2022), since having been referred to that psychologist by his GP on 15 December 2021. The report of that psychologist dated 17 January 2022 states, inter alia, that the Father suffers from anxiety and stress which is induced by his current family issues. The Father’s next appointment was due after his Court finish at the end of January 2022.
The Father stated that he has participated in an intake process for a Men’s Behaviour Change program, having attended three sessions. He is waiting to hear from the program as to when his next session will be. He later stated that he had attended 2, one hour sessions, and that the course had not yet started.
The Father was cross-examined by the Mother’s counsel.
The Father’s attention was drawn to paragraph 11 of his Affidavit filed 1 November 2021 in which he had stated that he had not been violent to the Mother nor to the children. The Father stated that those statements in paragraph 11 were not correct. He stated that in fact he had been violent to the children in terms of background noise. He later (in cross examination) stated that he was unaware until recently (through the AA Families Men’s Behaviour Change course) that verbal abuse is violence. (In final submissions, counsel for the Father stated that the Father conceded that his past verbal abuse of the Mother had constituted family violence.)
In relation to the incident on 1 January 2019, the Father stated that he was upset when he arrived home and saw that the children were in the swimming pool as he wanted to spend time with them in the pool. In relation to the incident, he said that he now accepts that his decision-making was poor and how he reacted with them.
In relation to the incident on 1 January 2019, the Father acknowledged that he had threatened to cut off the electricity (in the home) and that the children may have perceived that as a threat against them. He agreed that he had yelled at the Mother that she was brainwashing the children, that the children were present, and that making such a statement was making the children aware of the parties’ conflict. He later admitted that he had yelled the words “punish you”, and that he had shut the air-conditioning off to force the Mother and children to come downstairs so that he could spend time with the children. The Father admitted that he had put his foot against the bathroom door to prevent it closing (when the Mother and children were in the bathroom). He acknowledged that he now understood why the Mother and children would try to get away from him. He agreed that at the time he did not want the Mother and children to get away from him. He agreed that he had snatched the Mother’s phone after the Mother had recorded him without his consent. He agreed that snatching the Mother’s phone escalated the argument. In relation to this incident, the Father agreed that he could have just walked away.
During the assessment of the Father by Dr M, psychiatrist, in relation to this incident, the Father stated that he had not accepted that he was the perpetrator of family violence.
After the Father’s District Court appeal in relation to this incident, the Father stated that he did not comply with Dr M’s recommendations as to treatment because he was advised by his lawyers to go down the family therapy path.
In relation to the incident on about 27 January 2014, the Father admitted that he had raised his voice prior to the police arriving. He stated that there had been a verbal altercation, and that he had said to the maternal grandmother, “I don’t tell you what to do in your house”. The Father agreed that the Mother, the maternal grandmother and children had left the home in a rush and quickly. The Father acknowledged that after this incident the maternal grandmother never came back to the family home when the Father was present, from 2014 to 2019.
In relation to the incident in May 2015 involving the Father jumping on the bonnet of the Mother’s car, the Father stated that the Mother was trying to prevent him from spending time with the children. He stated that he had been trying to stop her getting away albeit that he had jumped onto the bonnet of the car when it was moving very slowly to avoid being struck by the car. He agreed that his behaviour was controlling and that she was not doing what he wanted.
The Father agreed that he had previously taken away the Mother’s keys so that he could talk face-to-face with her when the Mother wanted to leave.
The Father was cross-examined in relation to the Child Inclusive Conference Memorandum dated 9 July 2020.
In relation to X’s statement to the family consultant that the Father would “stomp up the stairs, start yelling at us saying mean stuff”, the Father stated that he may have.
In relation to an incident in 2007 when the Mother was in the last trimester of her pregnancy with the first child, and the parties were in their car, the Father stated that he may have been yelling at the Mother.
In relation to an incident in September 2012, when the Father arrived home and the children were already in bed, the Father agreed that he was upset.
The Father stated that he only spoken to Mr L, psychologist, on one occasion for about 30 minutes. He later stated, in re-examination, that he had spoken to Mr L over a year ago; he had spoken about Mr L treating both children, and he had given him his “version” over the course of about 30 minutes.
The Father stated that he had met Dr BB, area coordinator, S School, and he had spoken to teachers at the P School, including Mr CC.
The Father was cross-examined by the ICL.
The Father stated that the last time he had reached an agreement with the Mother regarding the children’s health was in about 2014/2015 in respect to tests for Y.
The Father stated that whilst he blamed the Mother’s behaviour in relation to the breakdown in his relationship with the children, his working 6 to 7 days per week did not help either.
The Father stated that he accepts that the relationship between the maternal grandmother and the children is an important relationship and he respects that relationship.
Oral evidence of the Father’s sister, Ms G
The witness stated that it was a long time ago that she last saw the children. She did not remember the date. She stated it was a number of years since she last saw them.
The witness stated that she used to have a friendly relationship with the Mother many years ago. She admitted seeing decency in the Mother at that time.
The witness was asked whether the Father had ever told her that he had engaged in family violence towards the children and the Mother, to which the witness replied in the negative.
The witness was asked whether she was aware that the Local Court had made a finding that the Father had committed a common assault upon the Mother. The witness responded that she understood that there were minor charges against the Father in relation to taking a phone from someone’s hands. The witness was asked whether she had read the findings of the Local Court, to which she responded that there was provocation between the parties. The witness did not accept that the Father had hurt the Mother in the incident.
The witness was asked whether the Father had told her that he had accepted that he was guilty of the offence. The witness stated that she did not accept that.
The witness was asked whether the Father had ever told her that he had acted physically aggressively towards the Mother and the children, to which the witness responded in the negative.
The witness was asked whether the Father had ever told her that he had verbally abused the Mother and children, to which the witness responded in the negative.
The Court does not attach any significant weight to the evidence of this witness because the witness was unaware of significant family violence perpetrated by the Father against the Mother including in relation to the incident on 1 January 2019 (in relation to family violence, see the Court’s discussions under s60CC of the Act below).
Oral evidence of the Mother
The Mother gave oral evidence and was cross-examined.
The Mother was cross-examined by the Father’s counsel.
The Mother stated that the children last saw the Father on 27 December 2019 in the presence of his parents, the Mother and the maternal grandmother. Before that occasion, there had been 5 supervised visits in September 2019, supervised by the Mother, and on all but one visit, the maternal grandmother was present. The last telephone call between the children and the Father was on 25 April 2020, however the children, over the course of about eight weeks of such telephone calls, had not engaged in these calls.
The children had seen the paternal grandfather every couple of months prior to 1 January 2019.
The Mother stated that she had asked the children whether they wanted to see the paternal grandparents after 1 January 2019, apart from supervised visits, and the children were opposed.
The Mother’s attention was drawn to the handwritten page being annexure A to the Father’s Affidavit filed 1 November 2021, purportedly written by the Mother. The Mother stated that she had no recollection of that document, and later stated that she denied writing the document. She stated that it didn’t look like her handwriting. In relation to, “2) I will change my name back to “Ganiadis”, the Mother stated that post separation she had changed her name to Ganiadis. In relation to, “6) Perhaps you could mind her when I’m working”, the Mother stated that that did not make sense because in 2009 she had returned to work from maternity leave, the Father worked when the Mother worked, and the maternal grandmother had always cared for the children when the Mother was at work. The Mother agreed that the child X had not seen the Father’s family unless she was present post 2009. In relation to, “8) I get all my furniture and belongings back from Suburb DD”, the Mother stated that everything had been moved to her maternal grandmother’s from Suburb DD prior to 2009. In relation to, “9) We continue to finished building the house, amicably”, the Mother stated that they were building a house in Suburb U in 2009. She stated that the signature at the bottom of the document was not her signature, although she stated that the first part of the signature, the “A” looked like her signature.
The Mother was cross-examined in relation to her allegations as to an incident at the family home on 27 January 2014. She stated that she did not recall what she told the police in relation to the incident. She stated, inter alia, that she had told the police the truth.
The Mother stated that prior to 1 January 2019, the children had a limited relationship with the Father. In this context, the Mother stated that the Father was rarely at home. She stated that when the Father was at home, the children were subjected to his aggression.
The Mother disputed that her perception of the Father talking loudly was an exaggeration. She stated she was softly spoken.
The Mother stated that she previously had a respectful relationship with the Father’s sister. She stated that the Father’s sister had not called the children for their birthdays over the last 8 years.
The Mother was asked whether she thought the children should have a relationship with the paternal family. She responded that it was important for the children to have access to their culture, parentage and their heritage.
The Mother was questioned in relation to the report of Prof E. Her attention was drawn to his comment that, “The fact that the children have autism does not substantially change their developmental needs.” The Mother stated that it was hard to accept this view because the professor had not met the children, and nor had he spoken to the children’s ongoing psychologist Mr L.
The Mother stated that Dr B had never carried out an assessment in relation to the children. She had seen the children once and referred them to a probationary psychologist.
The Mother’s attention was drawn to paragraph 143 of the family report writer’s report in relation to what was stated to be an enmeshed relationship between the children and the Mother and increasing problems in the future in that regard. The Mother stated that she felt that she had done everything to encourage the children’s independence from different angles through therapies.
The Mother stated that she had seen a psychologist on one occasion to address issues raised by the family report writer in paragraph 148 of the family report (relating, in the case of the Mother, to managing the challenges of separation and individuation). She had seen the psychologist at Christmas 2021 and was not asked to return to the psychologist.
The Mother stated that she did have a relationship with her adoptive brothers. She had seen her siblings at Christmas.
The Mother’s attention was drawn to paragraph 153 of the family report writer’s report which had stated, inter alia, that the Mother was unwilling to support and encourage the children’s relationship with the Father and his family, and that the Mother justified this on the basis of her alleged exposure to family violence and her view that the children were unsafe in the Father’s care. The Mother was asked whether these statements were correct. The Mother responded by stating that the children have significant fears regarding coming into contact with the Father. The Mother stated that she had no objection to the children having an engagement with the Father’s family but the children’s readiness to do so needed to be assessed by a person who had a relationship with them and was a professional, such as Mr L. When pressed, the Mother stated that she did have concerns regarding the children’s safety in the Father’s care because the Father was unpredictable.
The Mother was asked whether she accepted the Father was not a risk to the children. The Mother responded in the negative stating that she had concerns regarding incidents prior to 1 January 2019 and on 1 January 2019.
The Mother was questioned in relation to whether she had consulted the Father about sending the children for treatment with Mr L, psychologist. In this context, the Mother stated that she had sent a text message to the Father relating to a recommendation for the eldest child from the school counsellor. The Mother stated the Father did not agree and the Mother relied upon the counsellor and the referral from the GP.
The Mother stated that historically she had kept the Father apprised of the children’s appointments. In relation to taking both children to see a psychologist in Dr B’s office in 2019 she had not consulted with the Father, regrettably. In this context she had stated that she was acting (as she did) as the children were very distressed as it had been a very traumatic incident (on 1 January 2019).
The Mother was asked whether she had made efforts for the children to spend time with the Father (post 1 January 2019). The Mother responded in the affirmative. She stated that every time she raises this issue with the children they get significantly distressed. They refuse. They get angry with the Mother because they feel the Mother is not listening to them and it impacts on the Mother’s relationship with them. It takes the children a long time to recover. She later stated that the children’s distress impacts on every aspect of their lives including behaviour at home at school.
The Mother stated that Mr L psychologist is working on the children’s anxiety now. The Mother stated that the children’s therapy helps them with their independence.
The Mother stated that in light of the Father’s unpredictable and aggressive behaviour in the past, and the fact that the Father has just started treatment, she does have concerns for the safety of the children. She stated that it was yet to be determined if the Father was capable of change. She did not accept the Father’s stated remorse for the incident on 1 January 2019 but it is possible in the future she may accept it.
The ICL cross-examined the Mother.
The Mother stated that the children were presently not ready to have a relationship with the Father.
As to the Mother’s proposed Order 8 that the Father be at liberty to communicate with the children by correspondence in the form of cards, letters and gifts at all reasonable times (up to once per month), the Mother stated that she sought that Order so that the children could retain a connection with the Father, in the hope that the children could improve upon their relationship with the Father, and so that the children could feel that the Father loves them.
The Mother confirmed that the Father sent cards and letters to the children at Christmas 2021 and that she passed them on to the children. She also provided to the children some pyjamas, slippers and toys that the Father had given to the children for Christmas. She encouraged the children to open the gifts and they did so. She told the children that the Father loves them when they received their Christmas gifts.

The Mother was questioned as to her understanding of Mr L’s treatment for the children. She stated that he was doing cognitive therapy. He was addressing their anxieties. She stated that the children are progressing with Mr L. She said that they have less anxiety than when they were living in the former matrimonial home.
The Mother confirmed that she was of the view that as part of any process relating to the children spending time with the Father they would need professional assistance. In this context she stated that the professional assistance should continue with Mr L, because he has had continuity (of treatment of the children).
The Mother was asked whether she was opposed to the children attending upon family therapy for the purpose of a possible reintroduction to the Father. The Mother stated that she was opposed at this stage given the evidence, and in this regard she referred to the views of the experts, Dr D and Ms EE.
The Mother was questioned as to her commitment to prospective family therapy. She stated that she feels this would be a very difficult process due to the reluctance of the children and their fear of the Father. She stated that given the children’s vulnerability, further distress to them, and the impact on their lives and their relationship with her, that she was not committed to family therapy.
The Mother stated that Mr L had indicated that if family therapy was to occur at this stage it would be more detrimental than beneficial. She stated that Mr L does carry out family therapy. The Mother stated that (if family therapy was to occur), Mr L would be best (to carry out the family therapy) if he believed the children were ready for it.
The Mother was asked what were the disadvantages to the children in not having a relationship with the Father. The Mother stated that the Father did not have a relationship and a bond with the children, and, in this context, the Mother stated that the Father had not been there and when he was there he was aggressive. She stated that it would be ideal for the children to have a relationship with the Father but it is not something that happened in the past and it would be something new (for them).
In re-examination, the Mother was asked to clarify evidence previously given regarding Y’s autism, her reactions to heightened stress and emotion, and that after stress it takes her days to recover. She was specifically asked what her recovery looks like. The Mother stated that Y cannot sleep well, she wakes up tired, she is still heightened at school (until noon), she cannot focus, and she has outbursts of behaviour at school. When she has a meltdown, she is screaming out of control. When the event is over, (there is) the mental burden of guilt that she is unable to control her emotions.
The Mother was asked to clarify evidence that she gave regarding the Father having genuinely changed. The Mother was asked what she would need to see to believe that the Father had generally changed. The Mother responded by stating that she hasn’t come into contact with the Father for a long time. She stated that after seeing the Father in the witness box, his thoughts were still directed at blaming the Mother. She stated that the Father had only just commenced a therapy program. She stated that at least that program would need to progress. She stated that she would need to see a change in behaviour of the Father.
Oral evidence of Maternal Grandmother
Ms J, the maternal grandmother, gave oral evidence and was cross-examined.
In relation to the incident between the parties, related by Ms J in her Affidavit as occurring during the period when the parties were living with her between May 2008 and August 2009, Ms J stated that she was standing behind the Father at the time of the incident.
Child Inclusive Conference
A Child Inclusive Conference was held on 9 July 2020 with family consultant Ms EE and her Memorandum to Court is dated 9 July 2020. The Court does not propose to set out the entirety of the contents of that Memorandum.
The Father said that he and the Mother were both verbally abusive to each other at times. He denied making any threats or being physically violent towards her. He said that there were “a couple of incidents” where he acted in a controlling manner of the Mother, and described that he took her car keys because he wanted her to talk about a problem with him, rather than her leave. He denied stopping her access to friends or family. Mr Cosmakis stated that the children would have witnessed he and the Mother having verbal arguments, and noted that they would be upset and visibly distressed.
The Mother said that police have attended a number of times due to arguments and issues between herself and the Father, including that he locked her and the children out of the house. She said that he has been physically violent towards her before, including pushing her, dragging her out of bed and throwing things. She said that he slammed doors often. She stated that he would call her names, including stupid and lazy and other words in Greek. The Mother alleged that the Father would threaten her with having nowhere to live, would monitor her credit card use and ask her questions about her whereabouts. She said that she is fearful of the Father, and will be more so when the Apprehended Domestic Violence Order (ADVO) expires in September 2020.
The Father described the incident that led to the final separation in January 2019. He said that he had asked the Mother not to swim with the children on the day, but to wait for him to arrive home from work in the late afternoon. He said that, despite this, the children and the Mother were in the pool when he arrived home. He stated that he got a ball and threw it at X for them to play with, and she went to throw it out of the pool, so he stopped her from doing so. He denied pushing her under water, but said that X was upset. He stated that the Mother and the children went inside and he later also went inside, and then went and bought dinner. He reported that when he arrived home with dinner, there was a verbal argument between him and the Mother, and he threw his lunch box into the kitchen sink. He advised that she and the children went upstairs and he told them to come back downstairs as he was switching the air conditioning off. He stated that they went into the bathroom and closed the door, and he was swearing. He said that he was not initially aware, but the Mother was recording him when he “got upset” for wanting to spend time with the children. He said that when she opened the door he grabbed the phone and put his foot in the door and then started to leave with the phone. The Father stated that X jumped on his back and tore his shirt and they both fell backwards. He reported that he then went to his car, and “the screen door had come off its hinge when I opened it hastily” and X followed him and then held onto the car. He reported that he was charged with assault, but this was later dismissed. He confirmed that the Mother and the children are protected by an ADVO until September 2020.
X (then aged 12 years, 8 months) was interviewed. She presented as a softly spoken, polite girl, who appeared nervous and to be having some difficulty thinking of the appropriate words she wanted to use to convey her thoughts. She said that she felt stressed and nervous and was shaking.
X spoke positively of school, and said that she particularly enjoys art as she can express herself. She spoke positively of living with the Mother and Y at the maternal grandmother’s house. X stated that she sometimes sleeps with the Mother when she feels scared, although this has recently decreased.
X said that she has not spent time with the Father for “a while” and she feels scared of him. She recalled that she saw him while the Mother and her grandmother were present, and she said that she felt stressed and scared. X said that that was not a good experience.
X stated that she has also felt scared of the Father while talking to him on the telephone, because it has reminded her of the things that used to happen in the family home.
When asked what she was scared of, X said that she is scared of everything that has happened and does not want to be in that situation again. She recalled the incident of January 2019, and said that she and Y were in the pool and the Father came home upset because he also wanted to be in the pool. She stated that he threw a ball at her, but she did not want to play with it, so she turned her back to him and he jumped on her and pushed her underwater, which she said that felt like “drowning” and was “really scary”. X stated that the Father was yelling at the Mother, and when they went inside the Mother was recording on the telephone. She said that the Father tried to break the phone, so she tried to stop him as there were photos on the telephone she wanted. X stated that the Father punched the Mother in the face and she (X) jumped on the Father’s back to stop him hurting the Mother. She said that she also tried to hold the car door to stop him driving away.
X said that the Father would often yell when he was at home, and she does not recall any nice experiences that she has had with him. She said that she has never seen him be nice to the Mother. X said that the Father used to yell and push and hit the Mother, and the Mother would be scared all the time. She added that he often slammed the door and would “stomp up the stairs, start yelling at us saying mean stuff” which she said was sometimes in Greek. X added that the Father has caused her bruising, but he would pretend they were playing a game.
X expressed that she has told several people these concerns, and whenever she talks about the Father she gets a stomach ache, a headache, and shakes. She reiterated numerous times that talking about him makes her recall bad memories.
X stated that she has felt better since she has not had any contact with the Father.
X said that no one speaks negatively about the Father to her.
X said that she does not want to have any contact at all with the Father. She raised concerns about being made to spend time with him or have contact with him, even if she does not want to. She asked the Family Consultant various questions about what was going to happen to her and Y, and she appeared significantly anxious about this and complained of feeling stressed about being involved in the Court proceedings.
X said that she has been involved in counselling, which she has found helpful in the past. She stated that what she finds most helpful when she is worried is being with her dog.
Under the heading “Future Directions”, the family consultant stated, inter alia, that serious allegations of family violence have been raised, which have directly involved X and which both of the children have allegedly been exposed to. (The Father) indicated that the children have witnessed arguments and noted that they were distressed. The children both have additional needs, and if they have experienced trauma due to the Father’s behaviour as alleged, it is likely that having any contact with him will trigger trauma responses and/or cause already vulnerable children to experience significant negative emotional states that they are unable to manage. Although family therapy appears to be in process, it is suggested that time between the children and the Father not occur in the interim until the risk issues and their impact on the children (with consideration being given to their additional needs) is assessed.
The Court accepts the evidence of the family consultant, subject to any contrary view indicated by the Court, whether express or implied, in its discussions below under the s60CC considerations.
Family Report of Dr D, child, family and adult psychiatrist
The family report was prepared by Dr D, psychiatrist (the family report writer) and is dated 3 December 2020.
The family report writer interviewed the parties, the children, and Ms J, on 16 and 17 November 2020. He had a telephone interview with Dr B, psychologist. The psychologist Mr L did not respond to a request for interview.
At page 2 of the family report, the family report writer sets out the material perused prior to the preparation of the family report including Court documents, Child Inclusive Memorandum of 9 July 2020, certain documents of the Father and Mother including Affidavit material, and certain documents produced under subpoena.
The Father was interviewed by the family report writer.
The Father stated that since 2012, he and Ms Ganiadis had been sleeping in different bedrooms. During this period, he had worked fulltime during the week in finance and, on the weekend, for a store. This enabled him to pay the bills. He had also maintained the garden and swimming pool. Meanwhile, the children's day-to-day needs had been attended to by their mother. She had also worked one to two days a week as a health care worker in a day surgery. At these times, the maternal grandmother had provided care and support for the children.
The Father identified an incident in 2015. It had been planned for him to spend his day off with the children but Ms Ganiadis had insisted on taking the children to see the maternal grandmother. Mr Cosmakis had become upset and had stood in the middle of the driveway. He had, “in desperation”, jumped on the front bonnet of the car, damaging the bonnet, after the car had started to move and the car was revved. He acknowledged that the children may still be a bit scared of him because of the incident.
The Father referred to the incident on 1 January 2019. Inter alia, he stated that, at dinnertime, he had become upset and had thrown his dinner into the sink. He had felt angry. He had walked upstairs and threatened to turn off the air-conditioning. He remained frustrated by his inability to spend time with the children. The Mother and children had sought refuge in the bathroom. When he had seen the Mother making a recording on her phone, he had put his foot in the door to the bathroom and reached in and grabbed her phone. As he ran through the sliding door, he had pulled the screen door off the hinges. The child X had followed him to the car and demanded that he give the Mother back her phone. He had yelled in response that she should go back into the house. The Mother had called the police. The children were distressed. The police arrived. The police interviewed each of the parties separately. When asked for the Mother’s telephone, the Father had initially lied that he had broken it and chucked it in the river, but he then retreated from the car. He had been escorted to the police station by the police.
The Father acknowledged that his mood had been "up and down" in response to the family circumstances.
The Mother was interviewed by the family report writer.
The family report writer stated that the Mother’s account was consistent with her Affidavit material.
The Mother referred to the child X, in 2020, attending 8 sessions with Mr L to address her long-standing anxiety symptoms.
The Mother described Y as being overwhelmed in different environments and did not cope with sudden changes. She had been diagnosed with ASD at the age of 3. She had additional sensory needs and did not cope in noisy environments. She had also suffered from anxiety. She had difficulty coping with changes in school and in dealing with unfamiliar people and places.
The Mother opposed contact with the Father at the moment. It was her view that the children needed the opportunity to feel safe and be ready prior to all further contact. The last actual contact had been on 27 December 2019. Telephone contact had been ceased in March 2020 due to the children’s distress.
The Mother reported a long-standing history of domestic violence in the family home. She was concerned about the children’s safety and the long-term impact. This was particularly important given the children’s autism and anxiety. In the Mother’s view, contact with the Father would be disruptive, given that she was a victim of physical violence perpetrated by him.
The Mother stated that the Father’s physical violence dated back to her first pregnancy. She stated there was an ongoing cycle of violence with big outbursts. She stated that although the Father would calm down, he would blow up again.
The Mother stated that prior to 1 January 2019, the parties had slept in separate bedrooms.
The Mother stated that she was agreeable to attend family therapy if considered beneficial. The Mother stated that the children were already receiving psychological assistance. She stated that she did not think that the children would want to go, stating, “It’s really overwhelming for them.”
The Mother stated that after completing the school certificate in Year 10, she had worked in offices, in shops and as a health care worker. As a mature age student, she completed her health care training. She worked as a health care worker for several years prior to her marriage and raising children. She denied difficulties in the workplace. She had one previous significant relationship; she had a long-term boyfriend in her 20s. They, however, had grown apart.
The family report writer conducted a family observation.
The child X told the family report writer, inter alia, that she had a few close friends. She told him that she sometimes got scared: “He gets me nervous. And scared. He takes me off what I’m doing.” X commented that she found the therapy dog really calming.
The child Y repeatedly perseverated and demonstrated echolalia, repeating nonsensical phrases as she continued colouring in.
X was interviewed by the family report writer.
X told the family report writer about her family, stating the best thing was "we're calm. They're very calm and loving. They're special to me. "The worst thing about her family was "not really my family. More like somebody. It's kind of upsetting...My Father... It's sad because I'm quite scared of him. It's quite upsetting. I never really had a relationship with him in the first place. I've always been really scared. He was always yelling and he hit me a couple of times and I got bruises. And other stuff. Lots of really mean yelling. And I'd start crying. And I feel scared. And my tummy would get tied in knots. And I'd get shaky and scared. I would hear him yelling at my mum. It happened a lot. That was only when he was there. The majority of the time, half the time, he was at home yelling and slamming doors and stuff. In the second half, he would go to Suburb O, his parents."
She denied that there had been any positive experiences with Father, "because I never really had a relationship with him". When asked if she still saw her Father, X responded: ''No. Not anymore. It's been quite a lot calmer. But talking about him makes me feel shaky because it brings back bad memories. And I feel shaky and stuff."
When asked about their last contact, she explained, "It was in a supervised visit with my mum in the park area. And one of the supervisors was at the nursery at FF Store. And Yaya, his mother, was pushing me onto him and I was getting really worked up. And yeah, it was really scary."
When asked about telephone contact, she responded: "He would ring my mum and then he'd have to talk to us and I would always hide and run away. The same with my sister. Because she gets really scared. And we stopped it. We didn't stop it. But me and my sister got really scared. My mum saw that it was too much and I don't know who stopped it. All I know is me and my sister got really scared. But I was really relieved because there was less pressure. And just hearing his voice made me really scared."
She identified herself as quite happy now. She enjoyed fun stuff like cooking and playing. She liked looking at things in the shops. She enjoyed being with calm and loving people. Her mum and Nanny were the happiest in the family. The only thing that made her sad was when she thought about her dad.

The professor gave the following evidence in relation to Y potentially experiencing a heightened emotional state within the context of a reintroduction process:
HIS HONOUR:   Well, I’m not sure whether there’s some confusion between you and the professional on this question. I thought the gist of your question was if you put Y in a situation where she experiences a heightened emotional state, can – could that happening impact upon the progress she might make in other aspects of her development, such as speech – these fine motor aspects you’re talking about. Was that you were
MS LAWSON:   That’s exactly what I was asking.
HIS HONOUR:   Is that how you understood the question?   Well, yes. Well, I – it’s the – it’s the issue – put it this way. If there is trauma, it would compromise – she could – she – there could be a process of regression. I predict there would be. So that’s why this process has to be – is carefully managed and is carefully – is professionally – has to be professionally managed, and there’s also – I don’t know if you’re going to get to this, but I say it anyway. There’s the consequences of not addressing these issues in a – of not – yes, not addressing these issues constructively. That’s also not good for her development.
The professor stated that you would want the input from Y’s treating therapist (Mr L) to come to a view as to whether she was actually mentally ready for his proposed reintroduction process. He agreed that if Mr L’s input or opinion was that face-to-face time with the Father was presently contraindicated he would be very careful about dismissing that input outright.
The professor gave the following evidence in relation to the input of the children’s treating therapist in respect to the possible commencement of the reintroduction process suggested by the professor:
Professor, you have obviously heard the interchange between myself and his Honour. I want you to assume for the purpose of my question that his – sorry – that the children’s treating therapist, whether it be Mr L or someone else, indicates that they do not believe that the children are ready to commence any of the transition program that you’ve laid out, you would accept, wouldn’t you, that given they’ve met the children and are working with the children – that they would be best placed to give that view? Well, they would certainly be well – well placed. Even despite that, it’s possible that another person – suitably qualified person may come to a different view, because it’s not going to be something hard – hard and fast rule, but it – that person would – that person’s input would be critical and would be, yes – and they would be well placed, yes.
The ICL cross-examined the professor.
The professor agreed that an important aspect of his suggested graduated reintroduction process was the involvement of the children’s treating therapist.
The professor gave this evidence in relation to the need for support from the Mother in relation to his suggested reintroduction process:
Putting to one side the involvement of the children’s therapist, for those – for there to be the progression from your first stage right through to the last stages – that would require, at least from the children’s perspective, there to be support from the Mother? Yes, I think that’s correct.
And would you accept that if the Mother is unable or unwilling to provide that support – that your suggestion of a progression is likely to be unsuccessful? I – I would say that’s correct.
In re-examination, the professor stated that if Mr L, psychologist, was providing trauma focused therapy for the children that such therapy was not incompatible with his suggested reintroduction process.
Where there is any conflict between the evidence of the family report writer and Prof E, the Court prefers the evidence of the family report writer. In particular, and importantly, in relation to the views of the children in relation to the Father, and the affects upon the children of prospectively participating in family therapy and/or the reintroduction process suggested by Prof E, the Court observes that the family report writer had interviewed the parties and the children. And also importantly, the family report writer had sought (without success) to have the children meet the Father at the family report interview stage. Professor E, without any criticism of the professor, had not interviewed the Mother nor the children.
RELEVANT LEGAL PRINCIPLES
Section 60B of the Family Law Act 1975 (Cth) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
Under section 60CC(2A) of the Act, the Court, in applying the meaningful relationship primary consideration and the need to protect primary consideration under section 60CC(2) of the Act, is to give greater weight to the need to protect primary consideration.
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
The best interests of the children
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The children have a meaningful relationship with the Mother and will benefit from a continuance of those relationships. The Mother has been the children’s primary carer from birth to date, and after about the birth of Y in 2011 she was virtually the sole carer, albeit that she received significant assistance from the maternal grandmother.
The Court finds that the parties’ relationship was particularly strained in about 2009 when the Mother probably wrote the “divorce” note to the Father, which note is annexure A to his trial Affidavit. The Court finds, on the balance of probabilities, that by about the birth of Y in 2011 the parties were sleeping in separate beds and their sexual relationship significantly ceased at about that time also. It is likely that after about the birth of Y the Mother’s provision of household services to the Father, such as cooking, significantly decreased.
The children do not have a meaningful relationship with the Father. They probably have not had a meaningful relationship with him since after about the birth of Y in 2011. It is likely that there have been a number of causes of this absence of meaningful relationship. There was the significant absence of the Father in the children’s day to day lives because of his work commitments, and his inadequate attunement to the children’s emotional and developmental needs compared to the Mother and maternal grandmother. There was the adverse affect upon the children of the Father’s frustration, and anger including family violence, likely exacerbated by their developmental disability, autism. Further, the children had developed an enmeshed relationship with the Mother, the development of which was probably contributed to by the children and Mother’s experience of family violence at the instance of the Father, the Mother’s virtual sole care of the children following the birth of Y, and their developmental disability.
The Father seeks Orders, inter alia, that the parties and children attend family therapy through Dr B. He also seeks Orders (see his proposed order 10) that there be a gradual reintroduction process in relation to the children and the Father, over a period of 18 months, consistent with the reintroduction process suggested by Prof E. The Father seeks Orders for unsupervised time with the children after the occurrence of the gradual reintroduction process.
In the view of the Court, it is unlikely that such proposed family therapy and reintroduction process will be successful, and moreover, it is likely that the children will experience significant emotional trauma and related psychological harm participating in such therapy and/or reintroduction process. The Court now explains the reasons for these views.
The children, Y aged almost 11 years, and X aged 14 years, are particularly vulnerable to emotional trauma if contact was to occur with the Father, whether through family therapy or a re-introduction process. The youngest child Y has a particularly significant autism disorder and the eldest child suffers mild autism. They both suffer significant anxiety and continue in treatment for such anxiety through Mr L, psychologist.
The children are fearful of the Father. They are strongly resistant to seeing or speaking to him (and in this regard, the Court refers, inter alia, to the family report writer’s lack of success in encouraging the children to have contact with the Father, noting his extensive experience in dealing with very challenging reintroductions which have been essentially Court ordered). It is likely that the Father’s frustration, anger and perpetration of family violence against the Mother, during the time that they lived in the former matrimonial home up to 1 January 2019, and to which the children were significantly exposed, has significantly contributed to the children’s fearfulness of the Father and resistance to seeing or speaking to him. It is likely and predictable that the children will be resistant (if not refuse) to attending family therapy and the Father’s proposed re-introduction process.
It is important to observe that the children’s fearfulness and resistance to seeing or speaking to the Father should also be seen in the context of the significant absence in their lives of a meaningful relationship with the Father. The children would likely be entering the Father’s proposed family therapy and reintroduction process with an absence of significant positive memories of him.
The Father is yet to develop adequate insight in relation to the affects upon the children of the above frustration, anger and family violence, with the Court observing that despite the previous treatment recommendations of Dr M, psychiatrist, and treatment recommendations of the family report writer, in relation to the Father, the Father has only relatively recently enrolled in a Men’s Behaviour Change program and started psychological treatment with Mr Z, psychologist (with the Court observing that the “Psychological Certificate” of Mr Z dated 17 January 2022 does not refer to Mr Z having been provided with any specific information relating to, inter alia, family violence perpetrated by the Father). And further, the Father still maintains that the Mother is significantly to blame for his having no meaningful relationship with the children, both presently and historically. These matters, left unaddressed by the Father, would be a likely impediment to successful family therapy, the proposed reintroduction process, and indeed ultimate unsupervised time with the Father as proposed by him.
The Mother is not supportive of family therapy occurring. She believes that this would be a very difficult process due to the reluctance of the children and their fear of the Father. She had stated, in her oral evidence, that given the children’s vulnerability, further distress to them, and the impact on their lives and their relationship with her, she was not committed to family therapy. The Court observes that the Mother had been traumatised by family violence perpetrated by the Father historically and this was likely contributing to her lack of commitment to family therapy. The family report writer did not have confidence in the Mother’s capacity to manage that process, particularly in light of, inter alia, her enmeshed relationship with the children, and further, he considered that the Mother would be likely to see this as a significant burden and stress. The family report writer had stated that it was important, if family therapy was to work, that both parents and children should be motivated to attend family therapy.
There was an absence of evidence from the children’s treating psychologist Mr L as to whether the children were psychologically ready to participate in the Father’s re-introduction process, or indeed family therapy. Both the family report writer and Prof E had effectively stated that it would be important that Mr L assess the readiness of the children to engage in the proposed re-introduction process.
The Mother’s proposed Orders, relating to, inter alia, the children spending time and communicating with the Father in accordance with their wishes, the Mother facilitating communication and/or time between the children and the Father if either of the children express to the Mother that they would like to do so, and the Father being at liberty to communicate with the children by correspondence up to once per month, will potentially facilitate the children establishing a connection with the Father and/or assist them in exploring their personal identity. The evidence of the family consultant and the family report writer is consistent with the above view.
The Court gives significant weight to this meaningful relationship primary consideration.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Court accepts the Mother’s evidence (and the evidence of the maternal grandmother, where relevant in the current context of this need to protect primary consideration) relating to family violence, including physical violence, yelling and verbal abuse, perpetrated against her by the Father, on occasion in the presence of the children (for example, the incident on 1 January 2019, and which the Court finds was likely a frightening experience for both the Mother and children), commencing during her pregnancy with X and up to 1 January 2019, subject to the following matters.
On the balance of probabilities, the Court does not accept that the Father put both of his hands firmly around the Mother’s neck in an incident that occurred during the period between May 2008 and August 2009 when the parties and the eldest child were living at the maternal grandmother’s house. The Court does not accept, on the balance of probabilities, that the Father put his hands around the Mother’s neck at any other time.
On the balance of probabilities, the Court does not accept that in September 2012 the Father physically dragged the Mother out of bed and pushed her to the floor.
On the balance of probabilities, the Court does not accept that the Father physically manhandled the maternal grandmother on about 27 January 2014 at the parties’ former matrimonial home. Nevertheless, the Court finds that on that occasion the Father, when in an angry state, and through his verbal statements to the maternal grandmother and mother, caused them, with the children, to leave through the back door of that home.
On the balance of probabilities, in relation to the incident in May 2015, when the Mother was in the car with the children, and the Father jumped on the bonnet of the car, whilst the Court finds that the Father had been trying to stop the Mother driving away, the Court does not accept that he jumped on the bonnet of the car for that purpose, namely to prevent her driving away.
On the balance of probabilities, the Court does not accept that he belittled and pushed her causing her to hurt her arm on 14 November 2016. On the balance of probabilities, the Court does not accept that the Father caused distress to X in relation to a game with an inflatable baseball on 19 April 2018.
On the balance of probabilities, the Court does not accept, in relation to the incident on 1 January 2019, that the Father jumped on X from behind and intentionally sought to hold her underwater, as asserted by the Mother and X, although the Court does find that the Father had likely made sudden physical contact with X when he stopped her from throwing a ball out of the pool. The Court does not accept that the Father intentionally sought to hit the Mother on the right side of her mouth. The Court does not accept that the Father threw X off his back; rather he likely fell backwards as he lost his balance. The Court does not accept that the Father was aware that the child X was holding onto the car door as the Father reversed his car down the driveway.
The Court finds, on the balance of probabilities, that whilst the parties lived in the same home with the children, the Father exhibited anger and frustration towards the Mother, in conjunction with verbal abuse against her, and the children were often exposed to such anger, verbal abuse and frustration; the Court accepts the evidence of the Mother and maternal grandmother in this regard. The Court also accepts the Mother’s evidence relating to adverse verbal statements made by the Father to the children (for example, “Your Mother brainwashes you”).
The Court accepts the Mother’s evidence that by reason of her exposure to such anger and verbal abuse, and the above discussed family violence, on occasion in the presence of the children, she and the children became fearful of the Father.
The Court finds that, on occasion, certain of the above family violence probably also constituted coercive and controlling family violence; for example, the incident of 27 January 2014 (involving the Father, inter alia, verbally ordering the maternal grandmother and mother, with the children, out of the home), and the incident in May 2015 (when the Father, inter alia, was trying to stop the Mother getting away) likely fell into this category.
In relation to the Father’s family violence perpetrated against the Mother, in the presence of the children, on 1 January 2019, the Court refers, inter alia, to the findings of assault against the Father by the Local Court of NSW on 27 March 2019, and the Father’s District Court of NSW appeal wherein he withdrew his appeal against conviction and proceeded on the basis of his guilt, with the District Court Judge ultimately, whilst acknowledging the guilt of the Father, dismissing the common assault charge pursuant to section 10(1)(a) of the Crimes (Sentencing Procedure) Act.
Further, the Court refers to the Father’s admissions in his oral evidence in relation to verbal abuse of the Mother, in the presence of the children and otherwise; his admissions in his Affidavit and oral evidence, and statements made to the family consultant and family report writer, in relation to the incident on 1 January 2019; his admissions (albeit limited admissions) in his oral evidence in relation to the incident on 27 January 2014; and his admissions in his oral evidence, and statements made to the family report writer, in relation to the incident in May 2015. In relation to coercive and controlling behaviour by the Father, the Court refers to the Father’s admissions to the family consultant of controlling behaviour towards the Mother when he described taking her car keys because he wanted her to talk about a problem with him, rather than her leave.

The Father seeks to spend unsupervised time with the children after his proposed “provisions for re-establishing the relationship with the Father have occurred in accordance with the previous Order herein” (see proposed Orders 10 and 11). In the view of the Court, taking into account the above discussions under the meaningful relationship primary consideration and this need to protect primary consideration, there is presently an unacceptable risk that the children will be exposed to family violence and/or psychological harm if spending unsupervised time with the Father.
The Court should state that it does not accept, for the purposes of these proceedings, the opinions of Dr M, psychiatrist, in his report of 3 December 2019, that the Father was a “victim of abuse dating from at least 2012, if not before” at the hands of the Mother, and his related discussions in his report. In this regard, the Court refers to its discussions above under the meaningful relationship primary consideration and this need to protect primary consideration, and the limited documentary material available to Dr M (he did not have the Local Court of NSW transcript and judgment, nor the Mother’s material in these proceedings) and he had not had an interview with the Mother.
The Court does not accept the Father’s contentions that the Mother has deliberately sought to alienate the children from the Father. It does not accept that she has deliberately sought to brainwash the children against the Father, as contended by him. The Court refers to its discussions above under the meaningful relationship primary consideration in respect to the likely causes of the historical significant absence of a meaningful relationship between the children and the Father. The Court also refers to its discussions above under the meaningful relationship primary consideration and this need to protect primary consideration relating to the Father’s adverse behaviour and family violence and its adverse affect upon the Mother and children, including the development of anxiety and fearfulness in relation to having contact with the Father.
The Court does not accept the Father’s contentions that the Mother has facilitated the children living in a cult-like environment. The Court accepts the Mother’s evidence that the children are involved, to some extent, in outside activities in various spheres, and that they have experienced positive personal development.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The Court refers to its discussions above under the meaningful relationship primary consideration in respect to the views of the children and relating to the Father.
The children’s views have been consistently expressed post separation, inter alia, to the Mother, the family consultant and to the family report writer.
The Court refers to the evidence of the family report writer in relation to the views of the children and in relation to the vulnerability of children with developmental disabilities such as these children.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussions above under the meaningful relationship primary consideration in relation to the parents.
The children enjoy positive relationships with the maternal grandmother.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The Mother sought to take such opportunities.
As to the Father, prior to 1 January 2019, the Court refers to its discussions above under the meaningful relationship primary consideration in particular. Post separation, the Father has sought to take such opportunities
The Court observes that the parties’ communication and level of trust with each other is quite unsatisfactory.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The Mother has maintained the children satisfactorily in her care, both before and after 1 January 2019.
Prior to 1 January 2019, the Father maintained the children financially. Otherwise, as to his care of the children prior to 1 January 2019, the Court refers to its discussions above under the meaningful relationship primary consideration.
After 1 January 2019, the Father has paid child support and assisted with school fees.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussions above under the primary considerations.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not applicable.
(f) The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The Court refers to its discussions above under the primary considerations.
The Mother has a well-developed capacity to attend the children’s developmental needs. She has responded to their special needs in the context of their diagnosed developmental disabilities. Her day-to-day care of the children is most satisfactory.
The children have an enmeshed relationship with the Mother. The Court refers to its discussion above under the meaningful relationship primary consideration in relation to this enmeshed relationship. The Mother had obtained some psychological assistance in relation to the challenges of separation and individuation, however only involving one consultation, albeit with the psychologist not requiring the Mother to attend for further consultations.Nevertheless, and again, the Court accepts the Mother’s evidence that she has promoted the children becoming involved in extracurricular activities, at least to some extent, involving their contact with persons separate to the Mother and maternal grandmother, and that the children have experienced positive personal development.
The Father probably has the capacity to provide for the children’s intellectual needs, however he lacks adequate attunement to the children’s emotional and developmental needs compared to the Mother and Maternal grandmother who have well-developed capacities in this regard. The family report writer had stated that, in this context, that there was no indication that the Father had the capacity to take on a primary parental role, and it was difficult to envisage a successful transition to a significant parental role for the Father.
Again, the Court refers to its discussions above under the primary considerations relating to the Father’s past frustration, anger and family violence, and to which he is yet to develop adequate insight and treatment.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The Court, in relation to the parties and the children, refers to its discussions above under the primary considerations. In relation to the children, the Court also refers to the s60CC additional consideration relating to the views of the children, discussed above.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above under the primary considerations, in relation to both parents.
Again, the Mother has attended most satisfactorily to the children’s special needs in the context of their diagnosed developmental disabilities.
In relation to the initial selection by the Mother of Mr L, psychologist, as a therapist for X, the Court accepts the Mother’s evidence that she had sent a text message to the Father relating to a recommendation for X from the school counsellor, that the Father did not agree and the Mother relied upon the counsellor and the referral from the GP. In relation to Mr L, the Court would observe that Orders were made on 4 September 2020 and on 28 May 2021, in relation to the children attending upon that psychologist.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussions above under the need to protect primary consideration.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
The Court refers to the AVO proceedings against the Father arising out of the incident on 1 January 2019; a final ADVO had been made against the Father on 27 March 2019 and continued up to 26 September 2020. As to the incident on 1 January 2019, the Court refers to its discussion of the evidence and its discussion under the need to protect primary consideration.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The Court refers to its discussions above under the primary considerations. Orders providing for the children to spend time and communicate with the Father in accordance with their wishes would be least likely to lead to the institution of further proceedings in relation to the children. Imposition of the Father’s proposed Orders requiring family therapy and a re-introduction process (after which unsupervised time with the Father would occur) would significantly increase the risk of there being further proceedings in relation to the children.
m) Any other fact or circumstance that the Court thinks is relevant
As to the Mother’s proposed Order 15 that the Father be restrained from attending upon the Children’s schools whilst the Children are in attendance (save for parent-teacher interviews and other occasions when the Children are not present), unless otherwise agreed in writing between the parties, the Court is of the view that such proposed Order will be an order in the best interests of the children and appropriate for their welfare. In this regard, the Court refers to its discussions above under the primary considerations relating to, inter alia, the children’s fearfulness of the Father and resistance to having any contact with him.
In the view of the Court, the Father’s proposed Order 26 relating to the parents being permitted to attend certain school and other events will not be an Order in the best interests of the children because it carries the significant risk that should the Father attend such school and other events and thereby come into contact with the children, or the children see the Father at such school and other events, the children will experience emotional trauma.
Parental responsibility
The ICL and the Mother join in seeking an Order that the Mother have sole parental responsibility for the children; such proposed Order will be in the best interests of the children. The Mother has been the children’s primary carer from birth to date (and see the Court’s more fulsome discussion of this issue under the meaningful relationship primary consideration) and has been making the major decisions for their care welfare and development for most of their lives. The Mother remains fearful of the Father and in this regard the Court refers to its findings in relation to family violence. The parties have no co-parenting relationship in relation to the children, there is a significant lack of trust between the parties in relation to the children, and their ability to communicate with each other positively in relation to the children is poor. In these circumstances, there is a significant risk that the parties will be unable to agree upon major decisions in relation to the children in a timely fashion and without conflict. The Mother should have sole parental responsibility for the children and be required to communicate with the Father in relation to proposed major decisions for the children.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
1.That all previous Orders be discharged.
2.That the Mother have sole parental responsibility for the children X born in 2007 and Y born in 2011 (“the Children”).
3.That when making a major decision about the care, wellbeing or development of the Children:
(a)the Mother is to notify the father 14 days prior to the decision being made via email, of the nature of the decision begin made and the options being considered;
(b)that within a further 7 days the father provide his opinion to the mother via email;
(c)the mother shall consider any proposals put forward by the father in relation to that decision, provided that the response is received within 7 days; and
(d)notify the father in writing of the final decision she has made within 48 hours of making this decision.
4.That the Mother is to keep the Father apprised of the names and contact details for:
(a)All medical and allied health professionals (including psychologists) and services attended upon by the Children or either of them; and
(b)The schools and educational services at which the children are enrolled.
5.That the Children shall live with the Mother.
6.That the Children spend time and communicate with the Father in accordance with their wishes.
7.That should the Children, or either of them, express to the Mother that they would like to spend time or communicate with the Father, then the Mother will facilitate that communication and/or time insofar as it is reasonably practicable, and in doing so will email the Father to make appropriate arrangements.
8.That the Mother will ensure that the Children have access to the Father’s email address and phone number, and for the purposes of this Order the Father is to notify the Mother’s solicitors in writing within 7 days of these Order his preferred telephone number and email address, and thereafter advise the Mother via email of any change to such details.
9.That the Father is at liberty to communicate with the Children by correspondence in the form of cards, letters and gifts at all reasonable times (up to once per month) and for the purposes of this Order:
(a)The Father shall address all correspondence and gifts to the Children care of the Mother at a postal address nominated by the Mother within 7 days of the date of these Orders (and thereafter advise of any change to such address within 48 hours);
(b)The Mother shall provide all correspondence, letters and gifts to the Children;
(c)The Mother shall facilitate the Children reading any and all correspondence sent by the Father and encourage them to respond;
(d)The Mother shall facilitate the Children sending correspondence and/or gifts to the Father whenever the children express a desire to do so; and
(e)The Children may further communicate with the Father with the discretion of the Mother.
10.That both parties are authorised to directly contact the Children’s schools, medical practitioners, allied health professionals (including psychologists) and obtain the Children’s medical reports, school reports, correspondence from the Children’s schools via the Compass School Application, and information about the children’s treatment and progress, and for abundant clarity, this Order authorises both parties to obtain such information upon provision of a copy of these Orders to the relevant educational institution, medical practitioner, or allied health professional (including psychologists).
11.That both parties are restrained from making any disparaging or negative remarks or comments about the other, either to the Children or in the presence of the Children, or within their hearing, and the parties shall each remove the Children from the presence of any third party that makes any disparaging or negative remarks or comments about the other parent.
12.That both parties will encourage, and not undermine, the Children’s relationship with the other party and with the other party’s extended families.
13.That each party shall keep the other informed of the Local Government Area within which they reside and email address, and in the event any such details change, then the party changing their details will inform the other parent via email within no less than 7 days of such change.
14.That the parties are to communicate by email only regarding the Children and all such communication is to be brief, polite and solely for the purpose of sharing information about the Children.
15.That the Father is restrained from attending upon the Children’s address (if it becomes known to him) without the prior written consent of the Mother.
16.That the Mother is restrained from attending upon the Father’s address without the prior written consent of the Father.
17.That the Father is restrained from attending upon the Children’s schools whilst the Children are in attendance (save for parent-teacher interviews and other occasions when the Children are not present), unless otherwise agreed in writing between the parties.
18.That the Mother shall hold the Children’s passports at all times and this Order authorises the Mother to solely apply for the Children’s Australia passports and any renewals and solely sign any such application without the Father’s input, consent or execution, noting that these Orders permit the Mother to travel with the Children outside of the Commonwealth of Australia.
19.That the Mother shall be permitted to remove the Children from the Commonwealth of Australia and/or state of New South Wales to travel, provided that she provide the Father with 21 days’ notice in writing of her intention to travel with the Children and provide the Father with details of the State or Country that she will be travelling to with the Children, and provided also that the Mother shall be responsible for the payment of the Children’s flights, accommodation and any other travelling expenses during the time they are travelling with her.

I certify that the preceding three hundred and sixty-seven (367) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.
Associate:
Dated: 22 February 2022

File number(s):	PAC 1632 of 2020
Judgment of:	JUDGE NEWBRUN
Date of judgment:	22 February 2022
Catchwords:	FAMILY LAW – parenting - best interests of children - Orders made
Legislation:	Family Law Act 1975 (Cth), ss. 60B, 60CC, 60CA, 61DA, 65DAA, 65D Crimes (Sentencing Procedure) Act, s. 10(1)(a)
Division:	Division 2 Family Law
Number of paragraphs:	367
Date of last submission/s:	31 January 2022
Date of hearing:	27, 28 & 31 January 2022
Place:	Parramatta
Counsel for the Applicant:	Mr Anderson
Counsel for the Respondent:	Ms Lawson
Counsel for the Independent Children’s Lawyer	Mr Fermanis

PAC 1632 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR COSMAKIS Applicant
AND:	MS GANIADIS Respondent
AND:	INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	22 FEBRUARY 2022