Crawford & Crawford
[2025] FedCFamC2F 733
•4 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Crawford & Crawford [2025] FedCFamC2F 733
File number(s): NCC 978 of 2024 Judgment of: JUDGE OBRADOVIC Date of judgment: 4 June 2025 Catchwords: FAMILY LAW – PARENTING – Findings of family violence – Benefit of a relationship with father – Arrangements that would promote safety of the children – Aboriginal culture considerations Legislation: Evidence Act 1995 (Cth) ss 55, 56
Family Law Act 1975 (Cth) ss 60CC, 60CG, 69ZT
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15
Cases cited: Australian Securities and Investment Commission v Hellicar [2012] HCA 17
Bain & Bain (2017) 319 FLR 119
Isles & Nelissen [2022] FedCFamC1A 97
Johnson & Page [2007] FamCA 1235
Jones & Dunkel (1959) 101 CLR 298
Lavell & Lavell [2012] FamCA 34
Pickford & Pickford [2024] FedCFamC1A 249
WK v SR (1997) 22 Fam LR 592
J D Heydon, Cross on Evidence, LexisNexis Looseleaf Service
Division: Division 2 Family Law Number of paragraphs: 185 Date of hearing: 14-16 May 2025 Place: Newcastle Counsel for the Applicant: Mr Bateman Solicitor for the Applicant: Hannaway Lawyers Counsel for the Respondent: Mr Teoh Solicitor for the Respondent: Lindeman Lawyers Counsel for the Independent Children's Lawyer: Ms Meares Solicitor for the Independent Children's Lawyer: Aboriginal Legal Service
Table of Corrections 4 June 2025 At [181] the words “turns 8 years old” corrected to “turns 7 years old”. 4 July 2025 Insert footnote at [94] after first sentence which says, “In the sense that it is not relevant, noting s 56 Evidence Act 1995 (Cth).” ORDERS
NCC 978 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CRAWFORD
Applicant
AND: MR CRAWFORD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
4 JUNE 2025
Amended pursuant to rule 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 4 June 2025.
THE COURT ORDERS THAT:
1.The Children, X born in 2019 and Y born in 2021 (“Children”), spend time with the father, unless otherwise agreed, on a fortnightly rotation as follows:
(a)From the date of these orders until the commencement of term 2 in 2026:
(i)In week 1, Thursday from after school or 3:00pm until 6:00pm; and
(ii)In week 2, Thursday from after school or 3:00pm until 6:00pm.
(b)From the commencement of term 2 in 2026 until the commencement of term 2 in 2027:
(i)In week 1, Thursday from after school or 3:00pm until 6:00pm; and
(ii)In week 2:
A.Thursday from after school or 3:00pm until 6:00pm; and
B.Saturday from 9:00am until 4:00pm.
(c)From the commencement of term 2 in 2027 until the commencement of term 2 in 2028:
(i)In week 1, Thursday from after school or 3:00pm until 6:00pm; and
(ii)In week 2:
A.Thursday from after school or 3:00pm until 6:00pm;
B.Saturday from 9:00am until 4:00pm; and
C.Sunday from 9:00am until 4:00pm.
(d)From the commencement of term 2 in 2028:
(i)In week 1, Thursday from after school or 3:00pm until 6:00pm; and
(ii)In week 2:
A.Thursday from after school or 3:00pm until 6:00pm; and
B.From Saturday 9:00am until Sunday 4:00pm.
(e)From the commencement of the school year in
20282029, time in accordance with Order 1(d) shall continue during school term but be suspended during school holidays.(f)From the commencement of the school year in
20282029 during school holidays:(i)At the conclusion of term 1, 2, and 3 for a block period of 5 nights as agreed between the parties, and failing agreement, from 9:00am on the first Monday of the school holidays until 9:00am on the following Saturday.
(ii)At the conclusion of term 4, for two block periods of 7 nights as agreed between the parties, and failing agreement:
A.From 9:00am on 3 January
20292030 until 9:00am on 10 January20292030 and each year thereafter from 9:00am on 3 January until 9:00am on 10 January; andB.From 9:00am on 17 January
20292030 until 9:00am on2324 January20292030 and each year thereafter from 9:00am on 17 January until 9:00am on2324 January.
2.Unless otherwise agreed, changeover shall occur at the children’s school and/or daycare or otherwise at McDonald’s at Town G Service Centre.
3.Notwithstanding any other order and unless otherwise agreed, the Children shall spend time with each of their parents on special occasions as follows:
(a)With the mother on Mother's Day from 9:00am until 4:00pm;
(b)With the father on Father's Day from 9:00am until 4:00pm;
(c)With the mother on Christmas Day in even numbered years from 9:00am to 8:00pm; and
(d)With the father on Christmas Day in odd numbered years from 9:00am to 8:00pm.
(e)With the father on the father’s birthday from 3:00pm until 7:00pm.
(f)With the mother on the mother’s birthday from 3:00pm until 7:00pm.
(g)With the father on each of the children’s birthdays in even numbered years from 3:00pm until 8:00pm.
(h)With the mother on each of the children’s birthdays in odd numbered years from 3:00pm until 8:00pm.
4.The father is restrained from physically disciplining and physically or verbally abusing the children, or permitting any other person from doing so, while the children are in his care.
5.Each party shall notify the other party as soon as possible if a child becomes ill or has to see a doctor or other health professional, or is admitted to hospital, and each shall provide relevant medical practitioners with all consents necessary for the other party to be present and discuss the child’s medical condition and treatment with that medical practitioner.
6.Both parties shall authorise the children’s schools to provide both parties with copies of all school documentation about the children, including school photograph application forms and school reports.
7.The parties are authorised and permitted to attend all functions and activities facilitated by either child’s school/pre-school to which parents are ordinarily invited or permitted to attend, including parent-teacher interviews.
8.The parties shall keep each other informed of their telephone numbers, and email addresses, and shall notify each other within 24 hours of any change.
THE COURT NOTES:
A.The orders dated 14 May 2025 made by consent and on a final basis:
(a)That the mother, Ms Crawford (‘the Mother’) have sole parental responsibility for long term decisions in relation to the care of the children, X born in 2019 and Y born in 2021, in respect of their care, welfare and development and 14 days prior to making such any decision in respect of the children’s long term care, welfare and development, the Mother shall provide written notice to the Father of her intention to make the decision and the Father shall be at liberty to provide his views on the proposed decision in writing to the Mother, except in cases of emergencies.
(b)That the children live with the Mother.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to rule 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 4 June 2025.
JUDGE OBRADOVIC:
These are parenting proceedings concerning little Y and X.
Y is 3 years old, while her older brother X is 5 years old. Both X and Y live with the respondent mother, and presently spend supervised time with the applicant father.
At the commencement of the hearing, the Court made final orders by consent for the mother to have sole decision-making responsibility in respect of long-term issues concerning the children, and that the children live with the mother. The parties could not agree what time the children would spend with the father going forward.
The parties lived together as a couple from mid-2018 until early 2023, when they separated and lived together under the one roof to mid-2023. The parties were married in 2019, but they are not yet divorced.
Following the parties’ physical separation, the children remained living with the mother but spent regular time with the father. Initially, that time was for one day per fortnight, and then from late 2023 progressed to overnight time.
In March 2024, X made an allegation that the father had choked him.
Since March 2024, the children’s time with the father has been supervised. Initially this was done informally by the maternal grandmother, but then progressed to a contact centre after interim consent orders were entered into in May 2024.
The father now moves the Court for orders that the children’s time with him progress to unsupervised and then in stages, to significant and substantial time.
The mother asserts that the father’s behaviour is such that it places the children at an unacceptable risk of physical and emotional harm, and that the children should only spend eight hours with the father per year, supervised and at 2 hours per quarter. In the alternative, the mother moves the Court for orders that the children spend daytime only with the father each alternate Saturday, and once X turns 8 years old each alternate weekend from Friday to Sunday. Each party makes proposals for school holidays and special occasions.
The Independent Children’s Lawyer’s (“ICL”) position is aligned with the mother’s primary position, namely that the children spend supervised time with the father on 4 occasions per year. The ICL submits that the father poses an unacceptable risk of harm to the children.
The allegations of physical and psychological harm to the children, and the assertion that there is an unacceptable risk of harm to the children in the father’s household are issues central to the determination of what orders are in the children’s best interest. Also of significant importance is the mother’s capacity to promote a relationship between the children and the father, in the context of her fear for the children’s safety.
For reasons which follow, the Court finds that it is in the children’s best interest to spend time with their father which is not supervised, but limited in time and only progressing to overnight when the children are older. The evidence does not establish any unacceptable risk of harm such that the risk can only be ameliorated by an order for the children’s time with the father to be supervised. While there are risks to the children in spending time with the father, such risks can be ameliorated and minimised through appropriate safety guards.
RELEVANT LEGAL PRINCIPLES
The children’s best interest is the paramount consideration in respect of any parenting orders the Court makes.
Division 2 of Part VII of the Family Law Act 1975 (Cth) (“Act”) deals with parental responsibility. Section 61C provides that each of the parents of a child has parental responsibility, subject to orders. Section 61D provides that a parenting order that deals with the allocation of parental responsibility may provide for joint or sole decision-making in relation to all or specified major long-term issues.
In determining what is in the children’s best interest, the Court must consider the matters set out in s 60CC(2) of the Act and, if the children are Aboriginal or Torres Strait Islander, the matters set out in s 60CC(3) of the Act.
Specifically, in respect of children who are Aboriginal or Torres Strait Islander, the Court must consider the children’s right to enjoy their Aboriginal or Torres Strait Islander culture and the likely impact any proposed parenting order will have on that right.[1]
[1] See Family Law Act 1975 (Cth) s 60CC(3) (“Act”).
Otherwise, s 60CC(2) of the Act specifies the non-hierarchical criteria which must be considered in all cases when arriving at a conclusion as to what is in the children’s best interests:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
In considering what arrangements would promote the safety of the children and of each person who has the care of the children, the Court must consider any history of family violence, abuse or neglect involving the children or a person caring for the children together with any family violence order that is current or has previously applied to the children, or a member of the children’s family.[2]
[2] Act s 60CC(2A).
Section 60CG of the Act further requires the Court to ensure that any parenting order it makes is consistent with any family violence order and that it does not expose a person to an unacceptable risk of family violence, but only to the extent that it is possible to do so consistently with the children’s best interest being the paramount consideration.
The issues of family violence and risk are two separate questions. It is important that they not be conflated. On the one hand, the Court may need to determine whether or not allegations of family violence are proven on the balance of probabilities, and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the allegations of family violence.[3]
[3] Isles & Nelissen [2022] FedCFamC1A 97 at [83] (“Isles & Nelissen”).
Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of violence and abuse.[4] The party alleging the fact bears the burden of proving it and the standard of the burden is the balance of probabilities.[5]
[4] WK v SR (1997) 22 Fam LR 592.
[5] Pickford & Pickford [2024] FedCFamC1A 249 at [79].
While conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.[6] The assessment of risk is still an evidence-based conclusion and is not discretionary.[7] The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not.[8] In assessing whether the risk of harm is unacceptable, the Court is not merely evaluating whether the risk will occur, but also the potential consequences of the risk being realised.[9]
[6] Ibid at [53].
[7] Ibid at [85].
[8] Ibid at [85].
[9] See for example the discussion in Johnson & Page [2007] FamCA 1235 at [62]-[74].
THE PARTIES’ CASES AND EVIDENCE
Parenting proceedings were commenced by the mother on 28 March 2024.
The final hearing commenced on 14 May 2025 and concluded on 16 May 2025.
The mother relied on the following documents:
(a)Outline of Case Document filed 12 May 2025;
(b)Amended Initiating Application filed 23 March 2025;
(c)The Affidavit of Ms Crawford filed 16 April 2025;
(d)The Affidavit of Ms B filed 16 April 2025; and
(e)The Notice of Child Abuse, Family Violence or Risk filed 29 March 2024.
The father relied on the following documents:
(a)Outline of Case Document filed 12 May 2025;
(b)The Further Amended Response filed 16 April 2025;
(c)The Affidavit of Mr Crawford filed 16 April 2025;
(d)The Affidavit of Ms C filed 16 April 2025;
(e)The Family Report of Ms D dated 24 February 2025; and
(f)The Child Impact Report of Ms E dated 12 July 2024.
The ICL relied on the Case Outline Document filed 12 May 2025 and the Family Report of Ms D dated 24 February 2025.
Both parents were impressive witnesses. They both gave evidence in a manner that was open and forthright.
The mother impressed as being concerned about protecting the children. There was a significant sense that she felt guilty for failing to protect the children in the past, albeit the evidence did not establish any such failure, and for staying in a relationship which she views as having been violent.
The maternal grandmother was also a credible witness. She had assisted the parties in the past by supervising the children’s time with the father, and while the mother had suggested that she provide supervision into the future, it was clear on the evidence that this was not appropriate.
The father impressed as being cognisant of his mistakes in the past, and of insight into his own vulnerabilities.
The father’s new partner was measured, open, and honest in her evidence. She impressed as a witness who was trying to assist the Court.
The Court was careful to remind the parties’ legal representatives that compliance with r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) had not been dispensed with.
While the Court is cognisant of s 69ZT of the Act, it appears that in preparation of the parties’ cases little heed was paid to ensuring that only relevant evidence was put before the Court and that what was before the Court could, and would, be given weight.
In this regard, the Court notes that while the hearsay rule is explicitly excluded from applying to child-related proceedings, this does not absolve the parties from ensuring that where possible evidence is given from a person who has personal knowledge of a matter, or alternatively from business records,[10] rather than second and third hand hearsay.
[10] This is not a reference to the “best evidence” rule.
Many of the opinions expressed in the Family Report appear to be based on documents which are not before the Court, such as, for example, medical records or records from allied health professionals. The fact that an expert summarises or refers to subpoenaed records does not put those records before the Court, nor does it somehow translate into evidence of the person who is noted as having said something in a particular record. At best, it is second-hand hearsay. At worst, it is an opinion about an opinion, in respect of which there is no evidence of fact. Therefore, the utility and weight of such evidence is limited.
The Court could have been better assisted in closing submissions, particularly in analysing the evidence, the weight of the evidence, and explaining how the evidence supported the orders sought. Appropriate concessions were however, made on behalf of the mother, in respect of the availability of certain findings.
FINDINGS
Background
The father was born in 1994. At the time of final hearing the father was 31 years old. The father is a qualified hospitality worker, albeit he has not worked in the hospitality industry for over 5 years. During the parties’ relationship he worked as a “[artist]” (i.e. a beauty therapist). At the time of final hearing, the father was employed on a casual basis at a store.
The mother was born in 1996. At the time of final hearing the mother was 29 years old. She is employed as an allied health worker and works 4 days per week in a local hospital.
The parties met in late 2017 and commenced living together in about mid-2018. The mother was still completing her tertiary studies while the father was employed as a hospitality worker.
The parties were married in 2019.
The parties’ first child, X, was born in 2019.
Prior to X’s birth, the mother commenced full-time employment. Following a period of maternity leave, the mother returned to full-time work. The father was X’s full-time carer until X commenced attending daycare, when he was 1 year old.
While the parties appear to agree that the father was a stay-at-home parent, the evidence suggests that they are at odds as to the reason why this was so. The father asserts that it was a joint decision made by the parties, that the mother “had worked really hard to put herself in the position to obtain her job” and that he was “bored with the hospitality industry and happy with the idea of not returning to work” following X’s birth. The Child Impact Report, the author of which was not cross-examined, asserts that “from the mother’s perspective she said that she was made to return to work because the father was fired from his employment as a hospitality worker and insisted that she find employment because she had completed her university degree as an allied health worker.” The mother’s affidavit is silent on this matter. The Court accepts the father’s evidence that the mother had commenced full-time employment prior to X’s birth and that she continued in her employment following a period of maternity leave, and that this was a decision which was made jointly by the parties.
The father returned to full-time employment when X was about 1 year old.
The parties’ second child, Y, was born in 2021. The mother took a period of maternity leave. When Y was 3 months old, she commenced attending daycare.
Both parents worked and both parents looked after the children when the children were not in daycare. They shared in household tasks.
The parties separated in January 2023 but remained living under the one roof until late July 2023.
Between August 2023 and December 2023, the children lived with the mother and spent one day per fortnight with the father. From December 2023, the time increased to overnight, and this continued until early March 2024, when X made an allegation that the father choked him.
Following the allegation that the father choked X, the children’s time with the father was supervised, initially by the maternal grandmother and then following the making of interim consent orders, through F Contact Centre in Town G for two hours each alternate Saturday.
The mother presently lives with the children in a three-bedroom home in Town G, which she purchased in September 2023, after the parties’ separation.
The father currently lives with his partner, Ms C (‘Ms C’) in a three-bedroom home, which he and Ms C lease. The father and Ms C have been in a relationship from October 2023, and they have been living together since June 2024. The father and Ms C have known each other since their youth.
Ms C has two children from two previous relationships, 12-year-old H and 1-year-old J. Neither H nor J spend any time with their respective fathers.
Ms C has had no contact with H’s father for approximately 7 years. There are parenting orders concerning H. In 2013, an apprehended domestic violence order (“ADVO”) had been made, which is now expired, for the protection of H and Ms C from H’s father.
Ms C was in a relationship with J’s father for less than 12 months. Approximately 5 months into that relationship, an ADVO was made for the protection of Ms C, and J’s father was charged with destroy/damage property. Ms C ended the relationship with J’s father after she witnessed him punch a 14-year-old girl in the face and throw her on the ground.
Ms C was a victim of family violence at the hands of J’s father. In June 2023, J’s father assaulted Ms C. He was charged with a series of offences, including common assault, threatening Ms C with a knife with intent to cause grievous bodily harm, assaulting a minor, destroy/damage property, intimidation, breach of bail and contravention of ADVO. He was sentenced and served a term of imprisonment, and he was placed on an intensive corrections order.
At the time of final hearing, there was an outstanding application before the Local Court for an extension of the ADVO made against J’s father for the protection of Ms C, such application having been brought by the Police.
Ms C was not interviewed for the purposes of the Family Report, albeit she accompanied the father to the interviews. Ms C’s children have not met X and Y, nor has Ms C.
The parties live some 22 kilometres apart.
The Children
Both parties described X to the Family Report writer in similar ways. He presented to the family observations on 4 February 2025 as a cheerful, creative, and endearing young boy. X enjoys good health. He wears prescription glasses.
X started attending daycare when he was 12 months old. The Family Report writer notes that at daycare, X was reported to have demonstrated problems with emotional regulation and socialisation, but that such incidents were not frequent.
It appears that X attended speech therapy for about 6 months until he turned two. There are no ongoing issues with X’s speech.
In early 2023, the daycare recommended that X see an occupational therapist to address his behaviours, which included swearing at other children and the staff, and defiance. When she was told about the recommendation, the mother attributed X’s behaviours to the father’s interactions with X. She “disclosed” to the daycare “what had been happening at home”. The daycare made a report to the Department of Communities and Justice (“DCJ”). That report is not before the Court.
X saw an occupational therapist on two occasions in 2023 who made recommendations which were followed, resulting, it appears, in the frequency of incidents at daycare being reduced.
In about July 2024, X started attending play therapy with a psychologist. Except through the Family Report and a few questions asked in cross-examination, there was no other evidence about X’s engagement with that psychologist. It appears that the purpose of the play therapy is to assist X in processing the changes that have occurred and to learn to regulate his emotions and improve socialisation.
X commenced kindergarten in February 2025.
In the Family Report released to the parties on 3 March 2025, the Family Report writer made a recommendation that X be assessed for autism spectrum disorder (“ASD”)/Attention-Deficit Hyperactivity Disorder (“ADHD”) before the end of 2025. The Family Report writer notes that the mother does not believe that X displays signs of neurodiversity, saying that she has discussed X with allied health professionals, including occupational therapy, speech therapy and work colleagues, who consider X’s behavioural problems to be related to exposure to family violence and early trauma.
The mother’s response to the Family Report writer’s recommendation is as follows:
I do not feel that the report writer’s view of [X] being potentially neurodiverse due to a ‘transactional’ relationship with his father or exhibiting fear and trauma response from seeing his Father out a window and being told he will be in a room alone with him and the report writer following no attempt at rapport building is indicative of neurodivergence.
It was submitted on instructions and only during closing submissions, that the mother will have X assessed for ASD/ADHD before the end of 2025. No evidence was led by the mother in this regard, nor was it explained why there had been a change in the mother’s position. At its highest, the mother’s instructions seem to be an acknowledgement that X’s behaviour might be attributable to something other than the father’s interactions with him. However, without any evidence as to these matters, the Court is not prepared to infer nor accept such a change in position by the mother.
Y was similarly described by both of her parents as a child who is kind, funny, bubbly, and energetic. There are no reported concerns about Y’s behaviour or socialisation.
When she was 5 months old, Y attended physiotherapy for delayed early gross motor skills, which resolved.
Neither X nor Y were interviewed by the Family Report writer, however, both children were observed with their parents and the maternal grandparents.
For the purposes of context, at the time of the Family Report interviews, the children had been spending supervised time with the father for over 10 months.
When the children arrived with the mother for the family observation, they appeared to be happy, albeit X appeared to be slightly shy and he stood close to his mother. The mother played with the children in a child-led manner. Y presented as a bright, intelligent and highly vocal child, whilst X was quieter and displayed a creative flair. There was no observation made of the children’s interactions with each other.
The Family Report writer noted that the children both displayed excellent concentration and remained engaged during the entire observation with the mother. The children’s interactions with the mother were said to be relaxed, playful, and productive.
When the Family Report writer prompted an end to the observation and that she would speak to the children, X began to get upset, by whining and becoming clingy to the mother. The mother repeated several times to X that he would be “safe” with the Family Report writer, however, this did not help settle X who in fact became more elevated with each refusal.
The children brightened when the Family Report writer told them that the father had arrived. X continued to request to stay with the mother, while Y was keen to see her father. Even after a short 10-minute break, X was still clinging to the mother and whining in protest. The mother reassured X that he would be “safe” with the father. Y was willing to see the father alone, and the mother was able to convince X to at least walk to the door and say hello.
When the children walked to the observation room where the father was waiting, the father bent down on his knees and gave Y a warm hug and kiss. X reluctantly entered the room, but then approached the father for a hug. X settled very quickly, with the father engaging him in conversation and offering him food and drinks.
X was observed to sit close to the father and to touch him on the leg frequently. X also directed his father in the way he wanted to play, which the father complied with.
The Family Report writer observed as follows:
The father pointed to letters for [X] to read and when he got it wrong the father prompted in a firm and direct tone “No. What is it?” he leaned his face close to [X]’s face offering no wriggle room for [X] to dismiss his prompt. There was an intensity in the father’s insistence that [X] keep trying until he reached the correct answer. The father was observed to lean into [X]’s face several times when seeking a response from [X] … there was nothing menacing in his facial expressions.
While the Family Report writer opined that the father’s gesture of leaning into X’s face is one that many children would find intimidating, she did not observe X to be so intimidated. Indeed, her observations were that X appeared to be slightly bossy and directive in his interactions with the father. The Family Report writer noted that the father might have better verbalised his thoughts and feelings to help X understand that he was being bossy, and she further opined that the father’s urge to “bristle, negate or correct [X] will not be helpful for [X]’s learning and is likely to create disconnect between them and uncertainty for [X]”.
Y appeared relaxed and comfortable with the father, frequently seeking his attention and wanting to show him her colouring in efforts. The Family Report writer noted that the father answered Y “sarcastically” when she said that he can come and sit next to her, replying “Daddy can sit next to you anyway”.
Overall, the Family Report writer noted that despite the differences in the parties’ parenting styles, and that “it should not be surprising that these young children would express a preference for the parent who offers a softer and warmer approach”, that both children remained engaged with the father. There was no suggestion that they were anything but comfortable and at ease with the father once the observations commenced.
Allegations of Family Violence
The mother asks the Court to make findings in respect of four separate events, albeit her affidavit contains very many allegations that the father was violent towards her and the children during the parties’ relationship. Similar allegations are made by the mother to the Family Report writer.
The Family Report, however, contains additional allegations said to have been made by the mother against the father, including for example an allegation of financial control because the mother had not been aware that the father was in debt at the time of their marriage. The Family Report contains allegations that the father raised a fist on several occasions to intimidate the mother, that he pushed her twice, and that he would frequently verbally abuse and demean her. Such allegations were not contained in the mother’s affidavit.
The mother’s evidence is that she kept diaries for years where she recorded such incidents, she says for the purpose of having a record and to see whether there is a pattern of behaviour. The mother’s evidence is that such diaries do not contain any reference to any event where the children might have had a positive experience with the father.
The mother’s affidavit appears to be a collection of extracts from the mother’s diaries, containing many conclusions and opinions without any factual bases. The affidavit also contains a great deal of material that is irrelevant or to which little to no weight could be given. For example, the mother deposes as follows:
On 27/12/25 [sic] I received a text message from [Mr Crawford] “good morning, love of my life x”. I am concerned that this was meant as a tactic of abuse/control as he did not recall the message, nor acknowledge it. The message remains in the text message thread to this day… [11]
[11] Affidavit of Ms Crawford filed 16 April 2025 at [163].
The difficulty with such poorly prepared affidavits is that they are of little assistance to the Court, particularly in circumstances where much of the content is not referred to in submissions. Affidavits should be carefully drafted. While criticism can easily be made at the lack of cross-examination in respect of many of the matters contained in the mother’s affidavit, it must be remembered that the purpose of cross-examination is not to make good a poorly prepared affidavit, nor to elicit information which should properly have been put in chief.
A very strong running theme in the mother’s case is that the children misbehave and act out, it appears mostly, if not solely, as a consequence of spending time with the father, including supervised time. The mother’s opinion is that since the children ceased unsupervised time with the father, their ability to regulate their emotions, temperament, ability to concentrate, manners, and wellbeing have all improved.
The mother’s affidavit pays little heed to a number of significant changes in X’s life since the parties separated. The mother’s evidence displays no insight into how commencing school might have affected him, and how he might be coping with the change from attending daycare for 4 years to now attending primary school. Furthermore, no insight is shown into how the break-up of the family unit and changes to the living arrangements might have impacted X, noting that on the evidence, the father was his primary carer for most of the first year of the child’s life.
The mother’s affidavit details, however, her observations of X prior to and after spending time with the father. This is including around the time of the child commencing kindergarten.
Notwithstanding the mother’s assertion that the children have had a positive change in their ability to regulate their emotions, temperament, ability to concentrate, manners, and wellbeing, there is nothing in the mother’s evidence which explains what the actual observed difference is in the children’s behaviour prior to March 2024 and since.
As noted elsewhere in these Reasons for Judgment, the mother’s affidavit was replete with conclusions and opinions, without any factual bases for such conclusions and opinions being set out. The difficulty with such evidence is that it is of little to no probative value to the existence of a fact in issue and, as such, not relevant.[12]
[12] See Evidence Act 1995 (Cth) ss 55–56.
While in the majority of parenting cases objections are barely if ever raised, this does not make such evidence admissible.[13] Parenting proceedings remain adversarial, notwithstanding that they are conducted under Div 12A of the Act. Being adversarial, it still stands true that those who assert must prove.
[13] In the sense that it is not relevant, noting s 56 Evidence Act 1995 (Cth).
An assertion that a parent poses an unacceptable risk of harm does not shift the burden of proof to that parent to prove that he/she does not pose such a risk. As noted earlier, a finding that there is an unacceptable risk of harm is either open on the evidence or it is not.
The underlying evidence still must not only exist, but it must be proven.
The parties’ evidence must be carefully considered by the Court.
Counsel for the ICL suggested that the Court should make an adverse credibility finding due to the father’s failure to put on evidence addressing in detail the mother’s allegations of violence.
Where an inference can fairly be drawn from evidence against the interests of a party, if findings against that party’s interests are not to be made, an evidential burden then arises. It is irrelevant whether that involves proving a positive or a negative.[14] Each of the parties is required to put before the Court all such evidence as each is willing and able to bring in support of the findings contended for and, in this Court, that is done by exchange of affidavits ahead of the trial.[15]
[14] Lavell & Lavell [2012] FamCA 34 at [127] (“Lavell”).
[15] Ibid at [128].
It is well recognised that where evidence is uncontradicted and is not otherwise inherently improbable or inherently incredible, and where the other party has not elicited in cross-examination or led in evidence some material to overcome it, either by proving the contrary or throwing the matter into doubt, it should be accepted.[16] However, this does not mean that it must be accepted.
[16] Bain & Bain (2017) 319 FLR 119 at [112].
The mother’s evidence in chief about allegations of family violence and the children’s behaviour speaks to three periods of time: firstly, the period when the parties were together and separated under the one roof; secondly, after physical separation; and thirdly, after time started to be supervised.
In respect of the first period of time, the mother’s evidence is that the father shook X when X was a 13-day-old baby, that he punched the roof of a car in frustration with baby X in the car, that he would scream and swear at X when angry at the child, for example, when X was rough with Y, when X did not listen to what the father told him to do, and that he would also pick X up with two hands and thump him down when he was angry at X for similar reasons. The mother’s evidence is that X would cry at such treatment at the hands of the father. Furthermore, the mother’s evidence is that X was misbehaving at daycare by swearing, biting, and hitting.
The father’s evidence is that X is a difficult child, and that the parties were “at wits end in terms of managing his behaviours”. The father accepts that his use of language around X has been poor. The father concedes that he did raise his voice at X, that he did get upset at X for handling his sister in a rough manner, and that he has held X down to prevent him from hurting himself and others when the child was in a rage. The father concedes he did punch the roof of the car.
The mother’s evidence gives more detailed accounts of the father’s aggressive behaviour post the parties’ separation but while living under the one roof. It may be that such behaviour by the father was more frequent, it may be that the mother was more vigilant in ensuring that it was recorded, or it may be a combination of a whole host of things which were not explored in cross-examination, including, for example, that there was high stress and conflict in the household between the parents given that they had separated but remained living under the one roof.
The father asserts that the mother “seemed to leave managing [X]’s behaviour” to the father, and “did not offer much assistance other than to pass judgment after the event”. There are some statements in the mother’s affidavit, like for example her observations of X on 5 March 2023, where she says that X’s behaviour was difficult to manage, and his emotions were difficult to regulate. The mother describes X as not listening and exhibiting defiance. She then seems to criticise the father for declining to play with X, but that she did so.
In respect of the second period of time, namely after physical separation until the commencement of supervised time, the mother’s evidence is fairly limited in scope. The mother recounts that Y was emotional and crying and that X was kicking and punching her after the children spent time with the father for the first time following the father moving out. The mother’s evidence contains observations of X, prior to commencing overnight time with the father, being upset and not wanting to go, and observations of the children’s lack of engagement with the father during FaceTime calls. It also contains what the Court infers are criticisms of the father’s parenting style, for example: “The children argued over a cat toy. [Mr Crawford] told [X] to ‘grow up’. [X] told [Mr Crawford] he did not want to talk to him. [X] declined to say goodbye to [Mr Crawford], [Mr Crawford] called [X] rude”. The relevance of such evidence was not made clear.
Lastly, in respect of the period of time following the commencement of the children’s time with the father being supervised, the mother’s evidence, in summary, is that the children were dysregulated before and after spending time with the father, that X often, if not usually, objected to spending time with the father at F Contact Centre, that he found it boring, and that the father would talk to the children about what they would experience once they started spending time with him at his home. The mother’s evidence is that such discussions with the children are inappropriate and that they are examples of the father manipulating the children.
The Family Report writer was asked some questions about X’s reactions to spending time with the father at F Contact Centre. She explained that X’s dysregulation might be explained by the fact that he does not like F Contact Centre, that he would like to spend more time with the father but is unable to do so, and that he is not able to articulate his feelings. The Family Report writer explained that it is not uncommon for children to be dysregulated, in the way the mother describes X is, in circumstances which X finds himself, particularly noting the high conflict between the parents.
The Family Report writer raised concerns as to the veracity of the mother’s allegations due to her failure to report them, in circumstances where the mother was, at all times, a person with a relevant tertiary education who worked in a professional role that entailed knowledge and understanding of family violence dynamics.
The mother was asked questions in cross-examination about why she did not report any of the allegations to the Police, the DCJ, or a doctor at the time they were occurring, particularly noting her tertiary education and her training and professional experience.
The Court accepts the mother’s explanation that she was ashamed and that she did not want people to know. It is not a new phenomenon for intelligent, capable women not to report that they are victims of family violence.
Specific Incidents in Respect of which Findings are Sought
Three of the four events which the mother seeks specific findings about, are very similar in nature. The events occurred in February 2022, on 21 December 2022, and on 25 December 2022. The father also gave evidence as to what occurred on each of these occasions.
The Court finds that on each of these occasions:
(a)X had been acting roughly towards Y;
(b)The father was in close proximity of the children when X became rough with Y;
(c)The father picked X up by his arms and lifted him up and away from Y;
(d)The father roughly placed X on the ground and/or lounge after lifting him up by his arms and chastised him for being rough towards Y;
(e)The father yelled at X;
(f)The father held X down while yelling at him; and
(g)X cried and was upset.
In February 2022, before lifting X by the arms and placing him roughly on the ground, X and the father were yelling at each other. X was refusing to do as the father said. Also on this occasion, the father swore at the mother after she intervened, and before he angrily walked out of the home.
The father concedes that each of these occasions would have been a scary experience for X, and that the father was in a position of not only authority, but also power.
Members of the mother’s extended family were present on each occasion, but did not intervene at all. The father sent the maternal grandparents a text message following his violent behaviour and outburst on 21 December 2022, apologising for his behaviour.
The Allegation that X was Choked
On 3 March 2024, after spending overnight with the father, X made a disclosure to the mother that the father had choked him.
Both parties give similar accounts in their respective affidavits, and in their oral evidence, of what occurred when the mother came to pick up the children, and the circumstances in which X said the words he did.
The gist of that evidence is that X said to the mother, in the presence and hearing of the father, that the father choked him. The father heard this and told X not to lie. He told the mother that X had been on top of Y punching her in the back, that he had removed him off her, put him on the lounge, and then placed his hand on the child’s chest to hold him back as X was attempting to run off. The father says that his hand was up near the top of X’s sternum.
Both X and Y were acting out that afternoon and evening. The mother’s evidence is that they were both oppositional and swearing at her. She seems to attribute the children’s behaviour to the father’s interactions with them, that is, that the father was aggressive and inappropriate in those interactions and that this is the reason why the children were behaving in that manner. Her underlying beliefs were not tested in cross-examination. The mother is adamant that X was choked by the father, otherwise, why would he say so?
The mother says she believes X when he says that he was choked by the father. The mother does not accept that X might have experienced the incident in a manner that was exaggerated or that his description of it might be exaggerated. There is no evidence that she has spoken to X about what occurred, nor does her very lengthy affidavit contain any references to any conversations with X post the event which might explain why she is adamant that X is telling the truth about being choked. There was no exploration in cross-examination about X’s language skills, maturity, understanding and similar, which might have shed some light on what occurred.
The mother attended the police station the following day. She told a police officer about what X had disclosed. She did not make a statement. Her evidence is that the police officer said it would be difficult to interview a 4-year-old child. There is no evidence that the mother insisted on giving a statement or of having X give a statement. There is no evidence that the mother insisted on the Police taking any action, including speaking to the father. The Police did not take any action.
The mother then attended the local hospital. X said to the staff at the hospital that “he was choked” and that he was “almost choked”. He said that he “almost had trouble breathing”. X demonstrated by putting his right hand around his throat. There were no visible marks or any symptoms. X did not appear distressed while speaking to the hospital staff, he was playing and happy.
X was interviewed by Ms E, Court Child Expert, on 11 July 2024 for the purposes of the preparation of the Child Impact Report. That report notes as follows:
28.[X] was asked if the mother is ever mean to him and he said with indignation, “Come on! My mum never says anything mean.” Then without asking about the father [X] said, “My dad, he choked me one day. [Y] took a toy off me and I took it back from her. Then I fell on the couch then daddy did this to me.” [X] demonstrated by putting his hand around his throat. He continued to say “I couldn’t speak a word. All I could do was nod by head. I hate that dad.”
…
30.When asked about why does not like to spend time with the father, [X] said, “He did everything to my whole family. He was mean to my whole family.” When asked what mean things the father has done, [X] said “He’s horrible. He says that F word all the time and says get away dumb arse.”
The Child Impact Report does not make any observations of X’s demeanour when he was telling Ms E about the father.
The Family Report also speaks to the allegation that X was choked:
55.During a FaceTime call [Ms Crawford] said she heard [Mr Crawford] calling [X] a “fucking idiot and a dumb ass” for spilling [Y]’s bubbles. He told [Ms Crawford] that she should come and pick the children up early. When she arrived at the father’s home, [X] told her that “Daddy choked my neck and I couldn't breathe,” and that he was scared. She said when they returned home [X] began hitting and biting [Y]. [Ms Crawford] reported [X]’s disclosure to [K Day Care], police and the Department of Communities and Justice, and she was advised to get [X] medically checked and to seek unsupervised contact. It is understood that a medical check cleared [X] of any injury. Collateral information indicates that [K Day Care] made a mandatory report to the Department of Communities and Justice about the incident after [Ms Crawford] had told them. Department of Communities and Justice records dated 4 March 2024 indicate “[X]’s father [Mr Crawford] told [X]’s mother [Ms Crawford] that [X] was punching [Y], his younger sister in the back so he threw [X] off her and put his hands around [X]’s neck. [Mr Crawford] said that he did not push down on [X]’s neck.” It is understood that Department of Communities and Justice did not intervene because [Mr Crawford] was no longer having unsupervised time with the children. In relation to the same incident during his intake interview with [F Contact Centre] [Mr Crawford] reported “…he witnessed [X] punch [Y] in the back, and he stopped him and told him his behaviour was not okay. [Mr Crawford] said [X] smirked and tried to run away, so [Mr Crawford] held him down to make him listen and ensure he did not hurt his sister any further. [Mr Crawford] said when [Ms Crawford] arrived [Mr Crawford] told [Ms Crawford] what happened and [Mr Crawford] said that [X] did not deserve a gift [Ms Crawford] had brought for him. [Mr Crawford] said [X] then told [Ms Crawford] that he had choked him [Mr Crawford] told [X] not to lie. [Mr Crawford] said [Ms Crawford] took [X] to the hospital as well as to the police. [Mr Crawford] said no one ever contacted him. [Mr Crawford] said the hospital cleared him of any injuries and police would not become involved due to no injury and it being a Family Court matter.”
…
58.[…] Between 29 July 2024-15 January 2025 reports of [X]’s fortnightly sessions [with his play therapist]… were made available to the Family Consultant. [the therapist].. reported that [Ms Crawford] told her that [X] had made the disclosure about [Mr Crawford] “choking him” at his daycare centre and that reports were subsequently made…[the play therapist] recorded her conversation with [X] “I want to see dad but mum won’t let me… I want to go to dad’s house. It’s always safe at dad’s house, daddy told me he said its always safe… dad only hurt me when I was three – he grabbed me on the neck and pulled me off the couch. He won’t hurt me now because I’m bigger…
The Family Report writer noted that X’s comments to Ms E about the father were somewhat negative and seemed to contrast with his comments to the play therapist. She further noted that in the information available to her (when preparing the Family Report) several different variations of events in relation to the alleged choking incident were recorded.
There is no evidence that X made any disclosures of being choked to the educators at the daycare he had been attending since he was 1 year old, either at the time of the alleged incident or after it. There is no evidence that X’s behaviour had in any way changed at daycare following the alleged choking incident, nor that any changes could properly be attributed to a trauma response or similar.
There is no evidence of any injury to X, whether physical or psychological.
Counsel for the mother accepted in closing submissions that it would be a long stretch on the evidence to find that the father had in fact choked X, and that this was not a finding that the Court could make on the balance of probabilities.
The Court accepts the father’s evidence about what occurred on this occasion.
Overall Findings about Family Violence
During the parties’ relationship, and on each of the occasions in February 2022, 21 December 2022, and 25 December 2023, the father had engaged in behaviours which were objectively intimidating and abusive. He swore at the mother, at the children, or in their presence. He had a short fuse and when confronted with stress, acted in a manner that was objectively aggressive.
These behaviours of the father lead to a finding that the father did engage in family violence on those occasions.
BEST INTEREST CONSIDERATIONS
The discussion of the best interest consideration below is informed by the Court’s findings and it is to be read together and understood in the context of those findings and in the context of these reasons for judgment overall.
Arrangements that would promote the safety of the child and each person who has care of the child
The father’s evidence and case overall is a little confusing. On the one hand, the father says that while he did engage in certain actions, such actions “were not indicative of family violence”. He however conceded during cross-examination that he now understands that some of his actions would fall within the definition of family violence. He did concede further, during questions asked of him by the Court, that X’s experience of the father lifting him up, putting him down on his back and holding him there, and yelling in the child’s face, would have been scary for X.
The Court finds that the father has some insight, albeit limited, into the effects of his actions on the children, and indeed on the mother.
The Court finds that the mother, while well-meaning and while trying to be protective of the children, has failed to appreciate that the children’s reported dysregulated behaviour is not necessarily the result of the father’s aggression towards the children. Furthermore, while the children had been subjected to some instances of family violence up to March 2024, there is no expert evidence that the effect of such violence would have an ongoing impact on the children.
There is no evidence that the children have suffered any physical or psychological injury, except to the extent of the mother’s opinion about X’s dysregulated behaviour. The Family Report writer did suggest to the mother that the children would be well served if the mother read the contact centre reports and if she took advice from the children’s educators and therapists rather than her friends and colleagues.
The Court accepts the evidence of the Family Report writer that when exposed to verbal, psychological, and physical threats, children may fail to develop strong attachments to either parent, they can experience delayed development, and react with hostility and non-compliance in their day to day interactions. It may be that some of X’s behaviours can be attributed to having been exposed to these types of threats. However, the evidence does not establish a finding that this is so.
The Court further accepts that the cumulative impact of ongoing violence on a child is they become reactive towards their environment, distracted from developing age-appropriate skills, and becoming untrusting and non-committed with social friendships. There is some evidence that X was acting in a dysregulated and antisocial manner while in daycare, albeit not frequently. There is evidence that he attended occupational therapy which assisted some of these behaviours to resolve. It may be that some of X’s behaviours can be attributed a cumulative effect of ongoing violence. However, the evidence does not establish a finding that this is so.
The Court accepts the Family Report writer’s opinion that holding a child down while yelling in his face, and similar, is not under any circumstances, an acceptable form of behavioural management strategy.
As noted earlier, the father has re-partnered to Ms C. Ms C has a history of being a victim of family violence. She and her youngest child are currently protected from that child’s father by an ADVO. There is presently an application by the Police to extend that order for a further period. The extension application remains outstanding as at the time of writing this judgment.
The evidence is that there is nothing in the contact centre notes which indicates that the contact centre staff have any concerns about the father’s interactions with the children. The children have now been spending supervised time with the father for approximately 12 months.
The Court accepts the father’s evidence that he is now aware that some of his past behaviours were inappropriate, and his present understanding that such behaviours do fall within the definition of family violence. While he denies being intentionally physically abusive or verbally abusive, he understands that such was ultimately the effect of his behaviours.
Part of the factual mosaic is that the father is in the process of having an assessment for ASD and ADHD. The assessment is pricey, and he is saving up for it. However, the Court must take the parties as it finds them. Whether there may ultimately be a diagnosis, and what that might mean for the father, are not matters which are the subject of any evidence.
The father has been consulting with a counsellor since November 2024. This is funded through victims’ services, with the father being a victim of family violence as a child at the hands of his mother and two of her partners. The Court accepts the father’s evidence that, through the counselling, the father has learnt to better understand his behaviours and is learning strategies to cope with stressful situations so that he does not act out in the manner he had while the parties were together.
The father’s evidence is said, by the ICL, to fall short in an important aspect, namely there is no direct evidence from the father’s counsellor or other medical or allied professionals who are presently treating him. It was submitted that this gives rise to a Jones & Dunkel inference.
The “rule” in Jones & Dunkel[17] may be explained as follows,[18] as far as relevant to these proceedings:
(a)The unexplained failure by a party to give evidence or call witnesses, tender documents or other evidence, may, in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted that party’s case. The inference entitles the trier of fact to more readily draw any inference fairly to be drawn from the other evidence by reason of the opponent being able to prove the contrary had the party chosen to give or call evidence;
(b)The rule does not permit an inference that the untendered evidence would in fact have been damaging to the party not tendering it. The rule cannot be employed to fill gaps in the evidence or to convert conjecture and suspicion into inference;
(c)The rule only applies when a party is required to explain or contradict something. No inference can be drawn unless evidence is given of facts requiring an answer. If there is no issue between the parties, there is nothing to answer;
(d)The rule cannot be applied unless it would be natural for the party to call the witness or the party might reasonably be expected to call a witness, i.e., a failure to call evidence which that party was plainly in a position to have given or called; and
(e)The evidence of the missing witness must be such as would have elucidated a matter.
[17] (1959) 101 CLR 298.
[18] See generally J D Heydon, Cross on Evidence, LexisNexis Looseleaf Service at [1215] (citations omitted).
The Court must weigh the evidence according to the proof which was in the power of one party to produce and in the power of the other to contradict.[19]
[19] Australian Securities and Investment Commission v Hellicar [2012] HCA 17 at [164]-[170].
In the circumstances of this case, the Court declines to draw a Jones v Dunkel inference in respect of the limited evidence in the father’s case as to his counselling, psychoeducation, and treatment.
Any views expressed by the children
The children both appear to enjoy spending time with the father.
X does not like going to F Contact Centre. He wants to see his father, as long as it is safe.
The developmental, psychological, emotional and cultural needs of the children
Both children are very young. They are of an age where they rely on their parents and caregivers for protection and wellbeing.
X requires additional support, patience, and consistency from his carers.
The capacity of each person who has or is proposed to have parental responsibility for the children to provide for the children’s developmental, psychological, emotional and cultural needs
There is already an order for the mother to have sole parental responsibility for the children.
It is not proposed that the father have parental responsibility for the children.
In those circumstances, and on a strict reading of s 60CC(2)(c), the Court need not consider the father’s capacity to provide for the children’s needs.
It is, however, clear on the evidence that the father does have a capacity to meet the children’s needs, albeit his capacity is more limited than the mother’s.
There was little cross-examination of the mother on many matters that would have assisted the Court in order to gain an insight into her views and attitudes, and also into her capacity to encourage and foster a relationship between the children and the father, these matters going to her capacity to provide for the children’s needs. While the Court has some concerns about the mother’s capacity in this regard, such concerns are not sufficient to find that the mother will not foster and encourage a relationship between the children and the father, or that there is a risk to the children as a consequence of such limitations in the mother’s capacity.
The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so
The father has a number of vulnerabilities. He has displayed some insight into his behaviours.
The children have established relationships with the father. They were both observed to be comfortable and at ease with him.
The children each have a strong and loving relationship with the mother. She is their primary carer and has been for almost two years.
Whilst the Court has made a finding that the father perpetrated family violence, those findings of historical facts do not give rise to a finding that the children are presently at an unacceptable risk of physical and/or psychological harm in the father’s care. The Court is satisfied having regard to the father’s evidence, that he has sufficient insight not to engage in similar behaviours in the future.
X is now older, and no doubt has more maturity than he did in 2022 when he was 3 years old. While he is still very young, and therefore vulnerable, he attends school and continues to attend play therapy. Those are safety guards, not only in terms of being mandatory reporters but also in terms of being independent people who are presumably experts in children’s behaviours.
While a risk still exists that the father will parent Y in a similar manner he parented X in the past, particularly if she challenges him the way X had, there is no evidence that Y’s behaviours have escalated to those of X’s. Furthermore, the father has now learnt and knows how to employ techniques to calm himself down if he starts to escalate. The evidence of Ms C is that the father is appropriate with her children, and that he has never exhibited any of the behaviours with her and her children that have been violent or aggressive, or similar in nature to what the mother alleges.
The orders which the father proposes, see the children’s time with the father incrementally increasing. This in itself was not only said to be appropriate by the Family Report writer, noting the children’s developmental needs, but is another safety guard to ensure the children’s safety.
However, the Court is not satisfied on the evidence that given the findings of family violence and the frank admissions by the father, in the context of limited evidence from appropriately qualified health or allied professionals about the father’s capacity to deal with stressful situations particularly in controlling his reactions, that the time which the father proposes is in the children’s best interest.
The mother remains fearful for the children if they are to spend time with the father. She is the children’s primary care giver, and it is inferred that such fear will have some impact on the mother and her capacity to have a relationship with the children. There is a risk that the children’s relationship with the mother may be negatively impacted by her fears, and that this in itself carries some risks for the children’s wellbeing. However, it is not a significant risk overall, and does not outweigh the risk to the children of having a very limited and curtailed relationship with the father.
Any other relevant matters
The children have not met the father’s partner, nor her children.
The Family Report writer has recommended that Ms C and her children be introduced to X and Y during the supervised time at F Contact Centre. The mother has not taken up that recommendation.
It will likely be a significant adjustment for the children to meet Ms C and her children, if they are to spend time with the father in his home.
The Family Report writer was of the opinion that, noting the children’s ages and developmental needs, the progression in time which the father proposed in his minute of order was appropriate. This has been addressed elsewhere.
The Family Report writer was also of the opinion that any changes to the children’s time with the father should commence at the start of the second school term, as the start of the school year is a stressful time for children in any event. Adding to this the stress of changing parenting arrangements was, in the opinion of the Family Report writer, unnecessary, and would be better managed by better timed changes.
Children’s right to enjoy their Aboriginal culture
The mother and the children identify as Aboriginal.
The mother engages the children in cultural activities, and supports the children to learn about their Aboriginal culture.
The father likewise supports the children to learn about their Aboriginal culture.
The mother made allegations that the father made racial slurs towards her and the children during the parties’ relationship. No submissions were made in support of any such finding. The evidence does not support any findings being made in this regard.
None of the proposed orders would impinge or otherwise impact the children’s right to enjoy their Aboriginal culture.
DETERMINATION
In all of the circumstances, it is in the children’s best interest that they have the opportunity of a relationship with their father, albeit with safety guards in place.
While the Court has identified that risks exist for the children in spending time with the father, such risks can be ameliorated by the children’s time with the father being limited to daytime only for a number of years and also a slow progression in time, which will not only ensure that the children are able to adjust but that the mother, who will remain the children’s primary carer, will be able to adjust. Such a limitation in time will also ensure that the father has the opportunity of developing his parenting skills, but not at the cost of the children’s safety.
The mother proposed, in circumstances where no unacceptable risk was established, that the children commence overnight time when X is 8 years old. The Court considers this as being too soon, as Y will still only be 6 years old by that stage. The children will start spending overnight time with the father the year Y turns 7 years old, and block periods of holiday time the following year, to ensure their safety as much as possible.
The orders will also provide for the parents to have the capacity to agree to the children spending time with the father, which may be different to the regime set out in the orders. The Court is satisfied having heard from the mother, in particular, that she will act protectively towards the children while ensuring that they do have a relationship with the father. This is what she has done to date.
A restraint on the father from physically disciplining, and physically or verbally abusing the children is also necessary to provide a further safety guard for the children in spending time with the father.
No submissions were made about the other orders each party sought, for example, in respect of notification in cases of emergency or permission to attend school functions. Noting that similar orders are sought by each of the parties and that these matters do not appear to be contentious, such orders will also be made.
The Court so orders.
I certify that the preceding one hundred and eighty-five (185) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 4 July 2025
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