Delisle & Mannion - [2022] FedCFamC1F 940

Federal Circuit and Family Court of Australia
(DIVISION 1)
Delisle & Mannion [2022] FedCFamC1F 940

File number(s): SYC 5959 of 2019

Judgment of: SCHONELL J

Date of judgment: 1 December 2022

Catchwords:
FAMILY LAW – PARENTING – Unacceptable Risk –Where there was a significant history of family violence perpetrated by the father – Where the father has issues with anger management and impulse control – Where the mother sought for sole parental responsibility and for the child to spend time with the father supervised by a professional agency and then a family member until he begins high school – Where the father sought equal shared parental responsibility and for time to progress to unsupervised time within six months – Where the father was found to pose an unacceptable risk to the child – Consideration of primary and additional considerations – Orders made for the mother to have sole parental responsibility and for the child to spend supervised time with the father until he begins high school.

FAMILY LAW – COSTS – Where the Independent Children’s Lawyer sought for his costs to be equally shared by the parties – Where the costs order was opposed by both parties – Consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – Application for costs dismissed.

Legislation:
Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC

60CC, 60CG, 61DA, 65DAA, 102NA, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Bant & Clayton (Costs) (2016) 56 FamLR 31; [2016] FamCAFC 35

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

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

Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251

Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102

Isles & Nelissen [2022] FedCFamC1A 97

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

Legal Aid ACT v Westwell (2021) FLC 94-013; [2021] FamCAFC 50

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

Mazorski v Albright (2007) 37 FamLR 518; [2007] FamCA 520

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

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

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158

Penfold and Penfold (1980) 144 CLR 311; [1980] HCA 4

Potter and Potter (2007) FLC 93-326; [2007] FamCA 350

Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22

Division: Division 1 First Instance

Number of paragraphs: 170

Date of hearing: 23 – 24 November 2022

Place: Sydney

Counsel for the Applicant: Ms Lawson

Solicitor for the Applicant: Reid Family Lawyers

Counsel for the Respondent: Mr Flanigan

Solicitor for the Respondent: Grant & Co

Counsel for the Independent Children's Lawyer: Mr Jackson

Solicitor for the Independent Children's Lawyer: Brian Samuel & Associates
ORDERS

SYC 5959 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS DELISLE

Applicant

AND:
MR MANNION

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

SCHONELL J

DATE OF ORDER:

1 DECEMBER 2022

THE COURT ORDERS THAT:
1.All previous orders as to parenting are discharged.
2.The applicant mother (“the mother”) have sole parental responsibility for decisions about the long-term care, welfare and development of X born 2014 (“X”).
3.Before making a final decision about X’s long-term care, welfare and development with regard to schooling and non-urgent medical decisions:
(a)The mother shall advise the respondent father (“the father”) by email of her proposal and her reasons for such proposal;
(b)If the father wishes to comment on the mother’s proposal he shall, within 7 days after the date of the email transmission, advise the mother by email of his views.
(c)The mother shall consider the father’s views but the ultimate decision will rest with the mother who will communicate the decision to the father within 7 days of the decision being made.

4.The father enrol in and complete an 18 week Taking Responsibility – Men’s Behaviour Change Program and provide a certificate of completion to the solicitor for the mother and the Independent Children’s Lawyer (“the ICL”).
5.X shall live with the mother.
6.X shall spend time with the father as follows:
(a)Between the date of these orders and the commencement of Term 1 2024 for periods up to six hours on the last Sunday of each month, with such time to be supervised by B Centre or such other contact supervisor agreed between the parties. The father shall be responsible for the payment of all fees associated with supervision.
(b)The father shall do all things to include his sister Ms C (“Ms C”) and niece, D in supervised visits.
(c)Thereafter, from the commencement of term 1 2024 to the conclusion of Term 2 in 2024, on alternate Sundays from 9.00 am to 3.00 pm;
(d)From the conclusion of Term 2 2024 until the commencement of Term 1 2026 each alternate weekend from 9.00 am on Saturday until 5.00 pm on Sunday.
(e)From the commencement of Term 1 2026 until the commencement of Term 1 2027 each alternate weekend from after school Friday until 5.00 pm on Sunday.
(f)Thereafter each alternate weekend from after school on Friday until 5.00 pm on Sunday, and continuing through school holidays.
(g)On Father’s Day each year from 10.00 am to 6.00 pm;
(h)On Boxing Day each year from noon until 6.00 pm; and
(i)Such other time agreed between the parties in writing.

7.Time pursuant to Orders 6(a) and 6(g) and 6(h) until the commencement of Term 1 2024 shall be supervised B Centre or such other agreed professional supervision agency.
8.Time pursuant to Orders 6(c) to 6(e) and 6(g) and 6(h) until the commencement of Term 1 2027 shall be supervised by Ms C on the condition that she provides a Court undertaking to be filed by the father in the Federal Circuit and Family Court of Australia prior to time commencing in the following terms:
(a)That she has read the documents provided to her in this matter, namely:
(i)Report of Dr E dated 22 February 2021;
(ii)New South Wales Police Facts sheet dated mid-2021; and
(iii)Written Judgement of his Honour Justice Schonell.

(b)To conduct changeover at the commencement and conclusion of time without the father being present except as otherwise agreed between the parties in writing;
(c)Not to leave X unsupervised with the father;
(d)To remove X if, in her view, the father is affected by drugs or alcohol;
(e)To remove X if the father drinks alcohol or takes illicit drugs while X is in his care;
(f)To remove X if she believes the father is behaving inappropriately; and
(g)To call the mother immediately to collect X in the event she makes a decision to remove X from the father’s care.

9.Unless otherwise agreed between the parties or the mother and Ms C, for the purposes of changeover:
(a)To give effect to Order 6(c) to 6(d) and 6(f) and 6(g) (until such time as time pursuant to Order 6(e) commences), Ms C will collect X from the maternal grandmother’s home, being F Street, Suburb G in the State of NSW at the commencement of time and deliver him back to the same location at the end of time.
(b)To give effect to Order 6(e) Ms C will collect X from school at the commencement of time and return X to the maternal grandmother’s home, being F Street, Suburb G in the State of NSW.
(c)Once time pursuant to Order 6(f) has commenced during school term the father shall collect X from school at the commencement of time and return X to the McDonalds restaurant (nominated by the mother) which is nearest to the midpoint between the mother’s and father’s residences, at the end of time. The father will deliver X to the restaurant, see him inside the restaurant and then promptly leave the location. The father is restrained from approaching the mother at any time.
(d)Once time pursuant to Order 6(f) has commenced during school holidays the father will collect X from the front of the maternal grandmother’s home being F Street, Suburb G in the State of NSW, at the commencement of time and deliver him back to the same location at the end of time.

10.The father shall ensure X’s attendance at extra-curricular activity commitments including training, sporting games and events and at social activities to which X is invited during his time with the father. The mother shall ensure the father is provided with details of such events not less than 14 days before time is to occur.
11.That the father be restrained from drinking alcohol or taking illicit drugs in the 12 hours prior to time occurring and during all time he spends with X.
12.Upon Order 6(f) coming into effect, the father is permitted to electronically communicate with X at times convenient to X’s schedule and for those purposes, the father will provide X with a device on which he can communicate, on which the mother can implement appropriate parental controls.
13.X shall be permitted to communicate by phone with the mother at 6.00 pm each day when X is in the father’s care overnight and on any other occasion requested by X and the father will do all things to facilitate such communication.
14.The father is restrained without the mother’s written consent, from leaving X with any person other than Ms C or Mr H.
15.The parties are restrained from introducing X to any new partner in the period 12 months following the date of these orders.
16.It is noted that both parties work shift work and that time pursuant to the above schedule may need to be varied due to work commitments. It is ordered that in the event the mother is not able to facilitate time on a weekend between X and the father she will provide 14 days’ notice of same and time will be made up on the following weekend.
17.The father is permitted to contact X’s school for the purpose of obtaining duplicate copies of X’s school report and school photograph order forms but is otherwise restrained from attending school events when the mother will be present. If the mother is unable to attend a school event to which parents are invited, she will give notice of the event to the father and he will be permitted to attend.
18.Pursuant to s 65Y of the Family Law Act1975 (Cth), the mother is permitted to remove X from the Commonwealth of Australia for periods up to six weeks by providing notice to the father as follows:
(a)Not less than 30 days before departure, notice of the intended trip including dates and destination;
(b)14 days prior to departure:
(i)A full itinerary of where X will be travelling to and the accommodation in which he will be staying;
(ii)Copies of return e-tickets; and
(iii)Confirmation of travel insurance and vaccinations as necessary.

And time between the father and X during the period of the holiday shall be suspended.
19.The mother is permitted to travel interstate with X during periods he is living with her and for up to two weeks of any school holiday period by provision to the father of 14 days’ notice. Any time between the father and X during the period of the holiday shall be suspended.
20.That pursuant to s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth), and without further order being required, the mother be permitted to make an application for and to maintain a current Australian passport for X without the father’s consent.
21.The father shall keep the mother advised of his residential address, email address and mobile telephone number at all times and shall advise her of any changes to these details not more than 48 hours after a change has occurred. All communication from the father to the mother shall be via …@... (being a private email address of the mother’s). Communication is to be limited to non-urgent issues specifically pertaining to X. The father is restrained from contacting the mother by text/mobile phone except to give effect to Order 22 below while X is in his care.
22.The parties shall advise each other as soon as practicable by text/phone call in the event X is injured or seriously ill such that he requires hospitalisation. Notice shall include the nature of injury/illness, the hospital to which X is admitted and the name of the treating doctor. The father is permitted to make such enquiries with X’s health provider(s) as he wishes and these orders authorise him to do so. The father is restrained from attending any hospital to which X is admitted, except with the written permission of the mother.
23.That within 14 days of final orders being made, the father is to provide to Mr J the following documents:
(a)Report of Dr E dated 22 February 2021;
(b)New South Wales Police Facts sheet dated mid-2021; and
(c)Written Reasons for Judgment of his Honour Justice Schonell.

24.That within 14 days of final orders being made, the mother or her legal representatives must provide to Ms C the following documents:
(a)Report of Dr E dated 22 February 2021;
(b)New South Wales Police Facts sheet dated mid-2021; and
(c)Written Reasons for Judgment of his Honour Justice Schonell.

and for those purposes, within 7 days of these orders, the father or his legal representatives will provide to the mother’s representatives a telephone number and email address for Ms C.
25.The application by the ICL for costs is dismissed.

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 the pseudonym Delisle & Mannion has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:

These are proceedings in relation to the parties’ child X born 2014, who is currently aged 8 years and in Year 2 at school. X currently spends time with the respondent father (“the father”) supervised by a professional agency. The parties are in agreement that X will remain living in the primary care of the applicant mother (“the mother”). They do not agree about the allocation of parental responsibility, how much time X should spend with the father, when supervision should be lifted as well as some other issues including where changeover should take place.
The overarching issue in the proceedings is whether there is a risk to X in the unsupervised care of the father. A resolution of that issue informs what orders should be made as to the time arrangement with the father and how it is to be implemented. The mother’s position is that unsupervised time should not commence until X starts high school, which would be in 2027. The mother does not propose that there be any school holiday time. The father proposes that X’s time with him should move to unsupervised in approximately six months, and that it should include half school holidays and alternate weekends and overnight time in the off week.
The mother relied upon the following documents:
(1)Amended Initiating Application filed 26 August 2022;
(2)Affidavit of mother filed 23 September 2022;
(3)Affidavit of Ms K filed 23 September 2022;
(4)Affidavit of Ms L filed 1 July 2020;
(5)Affidavit of Ms M filed 1 July 2020;
(6)Notice of Risk of Child Abuse or Family Violence filed 6 September 2019; and
(7)Case Outline document.
The father relied upon the following documents:
(1)Response to Initiating Application filed 23 September 2019;
(2)Affidavit of father filed 30 September 2022;
(3)Affidavit of Ms C filed 14 November 2022; and
(4)Case Outline document.
The Independent Children’s Lawyer (“the ICL”) relied upon a Case Outline document.
A Family Report dated 22 February 2021 was prepared by Dr E, consultant psychiatrist.
In addition, each of the parties relied upon various documents which were tendered in the proceedings.
The mother was cross-examined by the father’s counsel and counsel for the ICL. The mother’s affidavit comprehensively set out the history of the parties’ relationship and enumerated in detail a history of significant family violence, including verbal assaults, demeaning denigration, physical assaults and emotional abuse. I listened carefully to the mother during the course of her cross-examination. The mother’s affidavit accorded with what she reported to Dr E and was consistent with documentary evidence.
The mother was not cross examined on any of her evidence of family violence. The father’s affidavit did not address any history of family violence other than a denial of the allegations of inappropriate touching raised by the mother’s daughter Ms N. This was despite his affidavit being filed after the mother’s affidavit and well after receipt of the Family Report of Dr E. In those circumstances, and in particular, where there was no denial in his affidavit of any of the assertions recorded by the mother in her affidavit and as reported by Dr E as well as no challenge to the mother’s evidence in cross-examination, I accept the evidence of the mother.
The mother’s witnesses were not required for cross-examination. I accept their evidence.
The father was cross-examined by counsel for the mother and counsel for the ICL. Much of the cross-examination was directed to the father’s insight. The father acknowledged that he had been angry when he lived with the mother and that the children would have been frightened of him when he was angry.
The father said that the mother should not have any concerns about his capacity to manage his anger or his use of alcohol. He said that he regards himself as not having any issues with anger or alcohol. He gave evidence that he had been continually engaged with his psychologist Mr J on a monthly basis since about July 2019 and that he has discussed with him issues about anger management and alcohol use, including the events of mid-2021. Notwithstanding such attendance, he did not adduce any evidence from Mr J by way of an updated report subsequent to the events in mid-2021. The only evidence from Mr J is a selection of clinical notes (Exhibit 5) and a report dated 22 March 2021 (Exhibit 12).
The father acknowledged that he and the mother have not communicated in any way since before July 2019. There are aspects of the father’s oral evidence that raise concerns as to his level of insight into his significant history of family violence, violence to others, impulse control or alcohol use, and in particular, how the mother may perceive him in light of the evidence.
I accept the evidence of the father’s sister. She impressed me as a person with empathy and as someone who would comply with her obligations as a supervisor. It is to the mother’s credit, notwithstanding her significant reservations about the father, that she is supportive of his sister as a supervisor.
Each of the parties through their respective counsel and the ICL cross-examined Dr E. No challenge was made by any of the counsel as to the accuracy of the history recited by Dr E, to any assertion recorded by Dr E, or as to the opinions or recommendations as set out in the Family Report subject to those qualified by Dr E in his oral evidence. I read carefully Dr E’s Family Report and listened to his oral evidence. I found his observations and assessments of the parties and X as being well informed and insightful. His opinions and recommendations were logical and well considered. I accept Dr E’s evidence.
Background

The mother was born in 1975 and is currently 47 years of age. The father was born in 1975 and is also currently 47 years of age.
The parties commenced cohabitation either in 2011 or early 2013. Nothing turns upon the date. The parties were married in 2013.
At the time of marriage the mother had two children from a prior relationship, Ms N born 2003 and P born 2008.
The one child of the parties’ relationship, X, was born in 2014.
The parties finally separated in 2019.
The mother contends that the relationship between the parties was conflictual. Dr E in the Family Report records the mother in the following terms:
… She described him as being very volatile and becoming quite verbally abusive towards she and the girls. …
(Family Report, page 5)
The mother describes in her affidavit and to Dr E, problems on the part of the father including excessive alcohol use, driving while affected by alcohol, illicit drug use and anger management issues including an occasion when he put his hands around her throat, pushing her against a wall while choking her during an argument, an incident in 2015 when he punched a hole in her daughter’s bedroom wall, and mistreating the family pet.
The father’s affidavit comprises approximately six and a half pages. It is to say the least superficial and does not address or deal in any way with the significant issues of family violence raised by the mother in her material or raised in the Family Report by Dr E.
Dr E reports the following in relation to the father:
I asked him whether there were any things he regretted about his behaviour in the relationship. He said he regrets yelling at his wife and the children. He added that [Ms Delisle] used to yell at him as well, saying things like “you will die lonely like your father”. He conceded he had said the things which were in her letter, but he said that was only one side of the conversation.
I asked him about hitting the children. He said that he had once smacked [X]. If I understood him correctly, he got so upset about this that he left and drove back to [Q Town] crying on the way. He said he also told [Dr R] about what he had done.
…
[Mr Mannion] told me that he drinks socially when he is not working. Towards the end of the relationship he might have four cans of bourbon and coke at a time. He attributed this partly to the stress of the situation then. He denied he ever drank when he was working.
He said that early in the marriage and previously he had used a bit of [illicit substances], but he said he had not used any drugs for years. …
(Family Report, pages 21–26)
Documents reviewed by Dr E in the Family Report clearly establish that the father has had a long-standing history of alcohol and drug misuse, impulse control and anger management issues spanning decades.
On 26 June 2013, a letter from the father’s then employer recorded the following:
I refer to the incident of Sunday 23 June 2013 where a heated discussion with your supervisor occurred and you wilfully damaged a company light vehicle.
I wish to make it clear that this incident has not been considered lightly and does warrant disciplinary action on the following basis:-
a.Deliberate damage to company property.
b.Unwarranted abusive, offensive and insulting language directed at your supervisor.
(Exhibit 8)
In March 2016, the father attended upon Dr R, child family and adult psychiatrist. Dr R records as follows in his report dated 14 March 2016, which was addressed to the father’s then general practitioner:
[Mr Mannion] was seen for Adult ADD assessment on 10 March 2016. This was a most appropriate referral given his childhood history of ADHD and co-morbid [behavioural disorder]. He had experienced subsequent relationship problems associated with his impulse control issues and poor anger management. He had regularly indulged in binge drinking with occasional recreational substance abuse ...
(Exhibit 6)
In his clinical notes dated 30 November 2016, Dr R in relation to reported symptoms records “relationship difficulties, impulse control, poor anger management” (Exhibit 6).
In the same notes, in response to a question as to how much alcohol the patient consumes, Dr R records:
Intermittent use of up to 8 standard drinks 4 x Double Jack Daniels for 6 months prior to March 2016. Nil further – no excessive use since the commencement of therapy.
(Exhibit 6)
While in relation to illicit substances, the same notes record:
Nil current.
Previous use of [illicit substance] over 10 years ago. Previous experimentation with other substances. Nil significant / ongoing.
(Exhibit 6)
In July 2018, the father attended upon Mr S, psychologist. The clinical notes in relation to the attendance on 17 July 2018 record as follows:
[Mr Mannion] is a very serious man who feels that he has to fix his relationship with his family. Cautiously described being aggressive at home, short fused and swearing and shouting, not physically. [Ms Delisle], his wife, and he met at school and have always had ‘something’. He says he loves her but has been close to leaving the relationship on a number of occasions. …
(Exhibit 9)
The mother describes the following in her affidavit:
19. [Mr Mannion]’s abuse towards me started by him saying awful and hurtful things. For example, “you’re a psycho”, “go back to bed so I don’t have to look at you”, “have a look at yourself you fucken westy shezza”, “what are you going to do if I go? You’ll have nothing, go back to mum and dad’s”, “you’re a fat pig, you disgust me, do something with yourself”, “any wonder your ex left you”. This then escalated such that [Mr Mannion] threatened physical violence, for example “shut your fucken mouth before I smash you and break your jaw” and “I’ll punch your fucken head in”…
…
26. At some time in 2015, while I was on maternity leave, [Mr Mannion] and I were having a heated discussion in the kitchen. I do not recall what it was about. [Mr Mannion] stepped into my personal space and was yelling at me. I challenged him saying “don’t talk to me like that”. [Mr Mannion] put his hand around my throat and pushed me against the wall while choking me. I was beside the fridge and I couldn’t get away. When he had his hand up to my throat I said “If you’re going to hit me, give it your best shot, as it will be your last”. He then let go of me. He left the house and took [X] with him…
…
33. There were numerous other incidences of family violence during our relationship. I cannot recall them with any specificity. Various memories have come back during the course of preparing for these proceedings which have caused me significant distress. Typically, when we argued, the arguments occurred in the common living space in our home and the children were often present. More often than not, we argued about something the children had done which wasn’t up to [Mr Mannion]’s standard. He’d be yelling at the children and I’d tell him “just stop” at which time he'd turn on me. [X] often stood between [Mr Mannion] and me or hugged my leg during these arguments or physically hit out at [Mr Mannion].
34. There was a family photo in our home which the girls gifted to [Mr Mannion] on our first Father’s Day together. It was a collage of the whole family. In around December 2018, [Ms N] wrote on the glass with a white whiteboard marker various things including “you clearly don’t think me and [P] were your daughters. Come back when ur not so hurtful and rude to every one, maybe one day you’ll understand how much u hurt us, I wish you’d get help. You meant everything to me now you mean nothing, I always loved you, your words have hurt all of us! U always put us down and it’s not okay. Go and get help please. We can see you need it”. She told me she was sad that [Mr Mannion] was not celebrating Christmas with us. She said “he said he would never leave like Dad did”. On 17 April 2019, [Mr Mannion] came to the former matrimonial home in [Suburb T] (“[Suburb T]”) to spend time with [X] and take him to the Easter Show. [Ms N] rang me and said “[Mr Mannion] smashed the photo frame and left it on my bed with a note”. She subsequently sent me a photo of the smashed frame and note. The note from [Mr Mannion] said “Before you blame me for everything have a good look at yourself and how your words and actions from you and your Dad have affected my life. For nearly 10 years I put up with this”. …
I accept the mother’s evidence that she found the father to be physically intimidating and that he would often stand over her pointing his finger in her face, swearing and shouting at her. I accept her evidence that the father on many occasions told her daughters to pack their bags and go live with their father as he was “fucking sick of this” (mother’s affidavit, paragraph 18). I accept her evidence that this was delivered in an angry and threatening way by the father. Dr E in the Family Report records:
I also note [Ms N]’s counselling records from [Dr U] in which she recounts concerns about [Mr Mannion]'s behaviour on two occasions - the first on March 6th 2014 that it can be difficult at home because [Mr Mannion] gets angry which can be scary, and on September 1st 2017 that her main upset concerns [Mr Mannion] and her family - that there is lots of fighting between he and her mother and he gets angry at everyone.
(Family Report, page 38)
Dr E records the following in relation to the father:
[Mr Mannion] presented as quite a taciturn person. He did not create the impression that he was withholding things, but rather that this was his nature. He readily agreed to many of [Ms Delisle]’s allegations about his behaviour, as well as to behavioural incidents in the professional records. His mood was very calm – to the point that he showed very little emotion except for being near tears when he described the five-month break in visits. He expressed some regrets for behavioural outbursts, but generally they were accompanied by an indication of provocation.
(Family Report, page 30)
Dr E described X as having problems with insecurity and anxiety. He says:
I formed the view that [X]’s problems with insecurity and anxiety are significant. It is certainly understandable given the family climate that both parents concede existed up until the time of the separation, as well as his exposure to his father's temper, not to mention the disruption to his time with his father and other events subsequently. …
(Family Report, page 34)
He further describes X's insecurity as reflecting:
… a combination of clinging to the parent on whom he feels he can rely on most, as a legacy of frightening behaviour which he has witnessed during his parents' relationship, and to the state of emotional unrest in his mother and [Ms N] …
(Family Report, page 35)
It is clear that by the time of separation, the father had perpetrated significant family violence on the mother and the children. It is also clear that by the time of separation the father’s longstanding and unresolved anger, impulse control and inability to deal with interpersonal relationships had impacted on the mother and children in a detrimental and destructive way.
Following separation, it appears that the parties were able to reach agreement for the father to spend time with X. The precise pattern of time is unclear but included overnight time as well as continuous short blocks of time.
In mid-2019, Ms N reported to the mother allegations of inappropriate touching by the father. The mother reported the allegations to the Department of Family and Community Services (as it then was). Ms N made a statement to the police.
In mid-2019, the father was arrested and charged and granted bail. The father entered a plea of not guilty.
The mother suspended X’s time with the father.
Time between X and his father did not resume until orders were made by consent on 23 September 2019 that provided for the father to spend time with X for three hours a fortnight, supervised by B Centre. The first supervised contact session pursuant to those orders commenced on 24 November 2019. Time reduced to monthly in late 2021 at the father’s request but increased to six hours and has largely occurred with a few exceptions.
The criminal proceedings came before Local Court in early 2020. The father was found not guilty but an apprehended violence order was made for a period of 18 months in favour of Ms N.
On 3 June 2020, the father made an application to suspend the requirement for supervision. The matter was heard by a Senior Judicial Registrar over 17 and 21 September 2020 following which the father’s application for variation of orders was dismissed.
In January and February 2021, the parties attended Dr E for the purposes of preparation of the Family Report. Dr E’s Family Report was released to the parties on 4 March 2021.
Dr E records the following in relation to the father:
In my view the major cloud over [Mr Mannion]’s parenting capacity is his temper, and whether he can exhibit an appropriate level of self-restraint and patience with [X]. The records of the supervised visits do not record any directly observed inappropriate conduct, but that is hardly unexpected under the circumstances…
It is not my view that [Mr Mannion] has a particularly deep understanding of parenting. I think his strongest area will be that of the domain of care, in which he will offer [X] an appropriate range of family activities, an appropriate range of recreational activities, and will be organised within a reasonable routine. However I think his qualification in the emotional domain are more problematic. Firstly, I do not think he is very tuned into his own feelings beyond experiencing impatience or hurt, neither of which he deals with very well. Secondly, I think he has a poor understanding of managing his mood and of controlling his impulses...
…
In my view [Mr Mannion]'s positive statements about controlling his anger now are somewhat rhetorical in that not only has he attended professionals for anger management on at least three occasions prior to the separation as well as obtaining a recent report from [Mr J], but he admits to incidents of domestic anger such as punching holes in doors and at least two altercations at work which on his own description would be regarded as reflecting anger management problems. Despite this, on each occasion he has complied with the urging of another party to attend counselling focussing on his anger. Bearing in mind the above, the recent report from [Mr J], and what [Mr Mannion] told me at my assessment, it seems to me that he does not really consider he has a significant problem in this area and as a result, it is quite possible that his capacity for poor anger management remains largely unaltered. The question then is whether this could be turned on [X].
On the positive side, [Mr Mannion] describes making a number of changes in his life since the separation and particularly since the assault charges were first laid in 2019. He describes working regular day time hours, not taking on overtime, taking all of his leave, and where necessary, taking some additional leave to provide regular recreational opportunities. On his own account and that of [Ms Delisle], his workload was a very significant stressor for him which contributed to his behaviour in the home. Another factor was clearly his use of alcohol and drugs which in my view made him even more impulsive and less patient. I am not quite certain why he made these changes, but it seemed from his account that partly these were decisions which he made himself and partly [Mr J] has made a contribution as well.
In my view it is very important that he continues to see [Mr J]. I think that even though he has made these practical changes in his life, he is still strongly inclined to shift the blame to others for inappropriate behaviour and until he can take more responsibility himself, he is going to continue to be vulnerable to the type of behaviour which has occurred in the past. I also agree with [Mr S] that he does not have a great deal of appreciation of the depth his own feelings and I think it would be of great assistance if he was able to make progress in this area for two reasons. The first is because it will leave him a more contented and patient person. The second is that it will also enable him to understand his son better and to tune in better to his son's feelings. Since I am of the view that impatience and impulsive angry responses are the main threat to his parenting with [X], hopefully [Mr J] will feel that an intimate family matter like this is an excellent focus for ongoing therapy. Otherwise he may need to see someone else for parenting counselling.
(Family Report, pages 37–39)
In mid-2021, an incident took place at the home of the father’s then partner (“the mid-2021 incident”). The father’s affidavit fails to address this event in any significant way. The circumstances surrounding the incident were set out in the police Facts Sheet (Exhibit 2) as well as in a report prepared by a psychologist at the request of the father’s lawyers (Exhibit 11). A combination of the Facts Sheet and the psychologist’s report reveal that in mid-2021, the father had consumed a bottle of Jack Daniels bourbon. The father was consuming alcohol with his then partner’s son, who was 17 years of age. The father called his then partner “a piece of shit” (Exhibit 2, page 3). The Facts Sheet says that he then encouraged the partner’s 14 year old son to fight him. The father in cross-examination said that was an error in the Fact Sheet, albeit it constituted the agreed facts upon which he pleaded guilty.
The father was described as belligerent and argumentative towards his partner and her two sons. The police were called for the third time but the father had by this stage left in his motor vehicle. He then subsequently returned, became belligerent and was questioning the police. The Facts Sheet records “the accused was challenging the police to arrest him and Taser him, however, police kept informing the accused that he hadn’t done anything wrong” (Exhibit 2, page 5).
The father later kicked a police car. The Facts Sheet states:
… The accused re-entered the property again and was baiting Police to ‘come outside and have a go”. The accused was calling police ‘heros’ ‘pathetic’.
(As per the original)
(Exhibit 2, page 5)
The father then assaulted the police including what was described as “throwing numerous punches in the direction of [Constable O]” (Exhibit 2, page 6). As a consequence of his arrest, police officers were assaulted and injured. The father was subsequently charged with five offences.
A report dated 27 September 2021 by the father’s psychologist attributes the father to having suffered a “Brief Psychiatric Disorder … within the context of marked family life stressors” (Exhibit 11, page 4). It goes on to record:
Although not directly attributable, his excessive alcohol consumption on the day of the alleged commission of the offences is likely to have further exacerbated his deteriorated mental health.
(Exhibit 11, page 4)
The psychologist observed:
[Mr Mannion] presents with ongoing interpersonal difficulties associated with impulse control issues, anger management and issues with effective communication. His childhood history of ADHD and [other behavioural disorder], together with his disrupted developmental period related to DV perpetrated by his father has likely contributed to his difficulties with anger management, particularly within intimate relationships.
(Exhibit 11, page 14)
The father’s psychologist made various recommendations, including that he continue to attend upon his treating psychologist, that he engage in a facilitated men’s treatment group through Z Group and that he engage with a psychiatrist.
She observed:
… Given, that the commission of the alleged offences took place in a company of young minors (14 y/o; 17 y/o) it is imperative that a comprehensive plan for risk management and safety be developed and [Mr Mannion] be supported in its implementation.
(Exhibit 11, page 15)

The father subsequently pleaded guilty to the criminal charges and received a community correction order for a period of 9 months (Exhibit 10).
The father has continued to attend upon his psychologist Mr J. He saw a psychiatrist but has not completed a men’s treatment group as recommended by the psychologist.
Submissons of the ICL
Counsel for the ICL submitted that the Court should make orders in line with those proposed by the mother, but that if time was to occur on a monthly basis, then there should be some form of electronic communication between X and his father. Counsel for the ICL submitted that Dr E recommended that time should move to unsupervised time when X commenced high school. He submitted that Dr E provided a reasoned explanation, including that by then X would be more mature given that he was a little bit older than most of his peer group and that high school represents a significant event in the life of a child when they are more able to cope with other changes in their life.
Counsel for the ICL submitted that the father should ensure that his sister and niece are involved in the time arrangements between X and his father when it is being supervised by B Centre. He proposed that it was too early to deal with issues of school holidays and that this should await the lifting of any form of supervision given the significant changes that are ahead in X’s life.
Submissions of the mother
The mother submitted that the Court would be comfortably satisfied that the father had perpetrated family violence upon the mother, her two daughters and X, and that the father posed an unacceptable risk to X. She submitted that the Court would readily conclude that the father had not addressed his issues of anger management, impulse control and alcohol consumption, and that the Court should proceed cautiously, particularly in light of the mother’s anxieties and the anxieties of X.
In relation to time, the mother’s counsel proposed that it should remain supervised by B Centre on a monthly basis until X turned 10 as he has become used to that. Otherwise, she submitted that Dr E’s recommendations were clear that unsupervised time should await X commencing high school. Her counsel submitted that a copy of the Family Report of Dr E, the Facts Sheet arising out of the events in the mid-2021 incident (Exhibit 2) and these Reasons for Judgment should be provided to the aunt who is the proposed supervisor.
Counsel for the mother adopted the position advocated by the ICL in relation to school holidays, stating that there were a lot of changes ahead for X and that the Court should hasten slowly and defer the issue of school holidays to after the commencement of unsupervised time. She also submitted that there was no evidence to warrant the injunctions sought by the father in relation to the mother’s former partner or his partner.
Submissions of the father
Counsel for the father submitted that the father could not afford professional supervision of more than three hours on a fortnightly basis and if there was to be a change then the father would only be able to afford supervised time for three hours a fortnight or six hours a month. The father’s counsel submitted in accordance with the father’s Minute of Order and submitted that, notwithstanding the clear advice and recommendation of Dr E, there was no reason why time should not move to unsupervised within six months.
The father’s counsel submitted that the father has remained engaged with a psychologist now for a significant period of time. He submitted that the father’s issues stem back to his childhood, and that he has attempted to change his behaviour and has indicated that he will continue to remain engaged with his psychologist Mr J.
The father's counsel alternatively submitted that there was no substantive difference between moving to unsupervised time in Year 6 as opposed to Year 7, and that the move to unsupervised time should not await commencement of high school.
Does the father pose a risk of harm to X?
The High Court reminds in M & M (1988) 166 CLR 69 as follows at 76:
… it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. …
…
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw.
(Footnote omitted)
Further, the High Court states at 77–78:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A.), “an element of risk” or “an appreciable risk” (Marriage of M.), “a real possibility” (B. v. B. (Access)), a “real risk” (Leveque v. Leveque), and an “unacceptable risk”: In re G. (A minor)). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
(Footnotes omitted)
It is well settled that the observations of the High Court in relation to allegations of sexual abuse have wider application and include allegations of family violence.
In Isles & Nelissen [2022] FedCFamC1A 97 (“Isles & Nelissen”), the Full Court constituting Alstergren CJ, McClelland DCJ, Aldridge, Austin and Tree JJ had cause to reconsider the approach of earlier Full Courts in relation to a finding of risk that could be determined as unacceptable. In the course of their judgment, their Honours observed that earlier decisions of the Court in Potter and Potter (2007) FLC 93-326 and Johnson and Page (2007) FLC 93-344 no longer accurately reflect the law in so far as they suggested that unacceptable risk needed to be established on the balance of probabilities.
Their Honours observed that when allegations of harm are raised, the relevant historical facts that underpin the allegations need to be established on the balance of probabilities.
However, when assessing whether there is unacceptable risk of future harm, the possibility of a risk of harm may be based on a finding of a possibility of harm in the past, which may not have been established on the balance of probabilities. In undertaking this risk assessment, the Court is assessing both the prediction of future harm and the severity of the impact if it eventuates. At some point in the risk assessment, the possibility of future harm and severity of harm may become unacceptable.
As their Honours observed:
47.…the civil standard of proof is not the measure by which an unacceptable risk of harm is to be assessed. The civil standard of proof is reserved for the proof of facts, the positive or negative findings in relation to which could well feed into any alternate finding about the existence of an unacceptable risk of harm.
Their Honours also specifically approved of Austin J’s judgment in Fitzwater v Fitzwater (2019) 60 Fam LR 212, where his Honour observed as follows:
133. In civil proceedings, s 140(1) of the Evidence Act provides the “case of a party” must be found proven if the court is satisfied of its proof on the balance of probabilities. For that purpose, the “case of a party” is defined (in the Dictionary to the Evidence Act) to mean “the facts in issue in respect of which the party bears the legal burden of proof”. The substantive law determines where the legal burden of proof falls in respect of facts in issue.
134. It must be borne in mind that proceedings in respect of children under Pt VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at CLR 76; ALR 581; Fam LR 611; ZP v PS (1994) 181 CLR 639 at 647; 122 ALR 1 at 6; 1 Fam LR 600 at 604). The paramount consideration in Pt VII proceedings is the child’s best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character (CDJ v VAJ at [64]). The resultant orders represent the court’s discretionary judgment about how the child’s interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at [186]).
135. The conclusion reached by a court in Pt VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J C Hutton Proprietary Ltd (1990) 169 CLR 638; 92 ALR 545 (Malec)).
136. In Malec, Brennan and Dawson JJ said (at CLR 639–40; ALR 546):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur…
…
… To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation …
and Deane, Gaudron and McHugh JJ said (at CLR 643; ALR 548):
… The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring …
137. The High Court was there referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald v Karrington (2016) 55 Fam LR 344; (2016) FLC 93-726; [2016] FamCAFC 152 at [60]; Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter v Potter (2007) 37 Fam LR 208; (2007) FLC 93-326; [2007] FamCA 350 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139. Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
140. It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis v Nikolakis [2010] FamCAFC 52 at [41], [44], [49]–[53], [96]; Partington (aka Bande) v Cade (No 2) (2009) 42 Fam LR 401; (2009) FLC 93-422; [2009] FamCAFC 230 at [56]–[61]; Johnson v Page (2007) FLC 93-344 at 81,888–9; [2007] FamCA 1235 at [68], [71], [76], [77]).
141. Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the “access” order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father’s appeal was dismissed because the possibility of the child’s past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child’s future sexual abuse.
142. As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (children) (care order: future harm) [2001] 1 Fam Law R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
Their Honours also addressed specifically the use of terms such as ‘unacceptable risk’. In particular, they recorded the following:
56.It is trite but true to observe that the law is as the High Court states it to be, so the principles enunciated in M v M about “unacceptable risk” were woven into the fabric of family law in instances of alleged actual and prospective child sexual abuse. The Full Court later extended such principles to cases involving allegations of children being at risk of physical or emotional harm for other reasons (A v A (1998) FLC 92-800 at [3.14]–[3.15] and [3.24]).
57.However, courts exercising federal jurisdiction and wielding discretionary power in family law proceedings are constrained by the terms of the governing statute (Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at 386, 390, 396, 403–407, 434–435 and 439; MRR v GR (2010) 240 CLR 461 at 464–466 and 468).
58.Specifically in respect of parenting proceedings, Pt VII of the Act is now drafted much more comprehensively and prescriptively than it was when M v M was decided. The phrase “unacceptable risk” did not then appear within the Act. At that point in time, courts were required by the Act (then s 64) to make parenting orders by reference only to the paramountcy principle, the child’s wishes and the desirability of avoiding further litigation. But now, s 60CG of the Act exhorts courts to avoid making orders which expose any person to an “unacceptable risk of family violence” and, when determining how children’s best interests will be advanced, s 60CC(2)(b) of the Act obliges courts to heed any need to protect children from physical or psychological harm through their subjection or exposure to “abuse”, “neglect” or “family violence”, for which purpose the terms “abuse” and “family violence” are very widely defined in ss 4(1) and 4AB of the Act respectively.
59.As the Full Court has previously counselled, the terms of the Act are of pre-eminent importance (Simmons & Kingley (2014) FLC 93-581 at [17]–[20]). The provisions of ss 60CC and 60CG of the Act are wide enough to embrace most, if not all, assertions of an “unacceptable risk” of harm to children and so it is preferable for litigants to conduct their parenting disputes by reference to the express provisions of the Act.
I am satisfied that the father has perpetrated family violence on the mother and her other children including X. I reach that conclusion as a consequence of my acceptance of the evidence of the mother and that of Dr E for the reasons referred to earlier. That said, I make no finding in relation to the allegations raised by Ms N.
As the Full Court in Isles & Nelissen observed “s 60CG of the Act exhorts courts to avoid making orders which expose any person to an ‘unacceptable risk of family violence”’ (at [58]). The issue to be determined is whether or not the father poses an unacceptable risk to X and, if so, whether that risk can be managed through supervision or some other means.
In addressing this issue, my conclusion is informed by my findings in relation to the historical matters of family violence referred to earlier and the following:
(1)X is a child who is described by Dr E as suffering from insecurity and anxiety, as a consequence of having witnessed frightening behaviour by his father. To expose X to the risk of further frightening behaviour by his father could lead inevitably to an increase in his insecurity and anxiety, which would be contrary to his best interests.
(2)The father has a history of anger management issues. The evidence reveals, certainly as far back as 2010, the father engaging in anger management. In that respect, I accept Dr E’s evidence where he records:
I note that [Mr Mannion] was first referred for anger management with [Mr V] in September 2010, which was only a few months after he and [Ms Delisle] had formed their new relationship, and it was also about six months prior to them beginning to cohabit. It is clear from this that issues with his temper had become evident very early in their relationship. [Mr V]’s notes have several significant references, including to [Mr Mannion] putting his fist through a door even before they started cohabiting, to him "beat(ing) the shit out of" someone at work (clearly not the 2013 work incident for which he was warned) and at the last session, at which the reason for termination was not apparent, to [Mr V] regarding [Mr Mannion] as having rather rigid thought mechanisms which stood in the way of him finding alternate ways to manage his feelings (presumably apart from aggressive responses).
I also note [Ms N]’s counselling records from [Dr U] in which she recounts concerns about [Mr Mannion]’s behaviour on two occasions - the first on March 6th 2014 that it can be difficult at home because [Mr Mannion] gets angry which can be scary, and on September 1st 2017 that her main upset concerns [Mr Mannion] and her family - that there is lots of fighting between he and her mother and he gets angry at everyone.
Finally I note the brief notes of [Mr S] over four sessions in the months immediately prior to the separation. He seemed to observe the same problem in [Mr Mannion] - that while he could acknowledge the issues, it was hard to gauge how deep his understanding was and whether he was able to change.
In my view [Mr Mannion]'s positive statements about controlling his anger now are somewhat rhetorical in that not only has he attended professionals for anger management on at least three occasions prior to the separation as well as obtaining a recent report from [Mr J], but he admits to incidents of domestic anger such as punching holes in doors and at least two altercations at work which on his own description would be regarded as reflecting anger management problems. Despite this, on each occasion he has complied with the urging of another party to attend counselling focussing on his anger. Bearing in mind the above, the recent report from [Mr J], and what [Mr Mannion] told me at my assessment, it seems to me that he does not really consider he has a significant problem in this area and as a result, it is quite possible that his capacity for poor anger management remains largely unaltered. The question then is whether this could be turned on [X].
(Family Report, page 38)
(3)I have had regard to the mid-2021 incident involving his former partner Ms W and her children. Whilst the father was not the parent of his partner’s 14 and 17 year old children, the father’s behaviour at every level on that occasion was completely at odds with that expected of a responsible adult who had resolved issues of anger management, impulse control and alcohol misuse. He was consuming alcohol with a 17 year old child, he was consuming alcohol to excess in the presence of a 14 year old child, and he acted entirely inappropriately towards a 14 year old child by challenging him to a fight. He drove a car while under the influence of alcohol, kicked a police car, and challenged and assaulted police officers.
(4)I note Dr E describes the father as having a “half-hearted participation in anger management and related counselling” (Family Report, page 36). In light of the mid-2021 incident, I am of the view that the father’s anger remains unmanaged.
(5)Dr E describes the father as having a superficial view of the responsibilities of parenthood. The events of mid-2021 occurring in the presence of two children was demonstrably irresponsible.
(6)Dr E says that the father has a poor understanding of how to manage his mood and how to control his impulses. I accept Dr E’s conclusion. The events of mid-2021 reflect poor impulse control and an inability to manage his behaviour. If there were to be a repeat of that event and X was present, it would be a frightening event for X.
(7)Dr E says that the father has a “low threshold of tolerance for plaintive or attention seeking behaviour from children” (Family Report, page 37). This was amply demonstrated by the father’s behaviour in mid-2021. The children involved in that incident were aged 14 and 17. X is only aged 8. Dr E says in the Family Report:
… This is the sort of behaviour which [X] will undoubtedly manifest at times, and he will probably manifest more in his primary school years. It will be a concern if this continues to be a trigger point for [Mr Mannion].
(Family Report, page 37)
(8)The evidence discloses the father consumed a litre of Jack Daniels during the mid-2021 incident. Dr E opined that “[a]nother factor was clearly his use of alcohol and drugs which in my view made him even more impulsive and less patient” (Family Report, page 39). The events of mid-2021 are indicative of a continuing problem in the management of alcohol in a responsible manner.
(9)Dr E reports that he is “of the view that impatience and impulsive angry responses are the main threat to his parenting with [X]” (Family Report, page 39). The events of mid-2021 highlight the continuing risk to X that is posed by this sort of response.

X is 8 years of age. He is unable to protect himself at this age, nor should he have to. X looks to the adults in his life to provide protection. It is not incumbent upon him to protect himself from the adults. I am satisfied for all of the reasons referred to above that there remains significant question marks over the father’s parenting capacity and, in particular, his capacity to control his impulses and anger irrespective of the presence of or misuse of alcohol.
I am satisfied that the father poses an unacceptable risk to X. However, I am of the view, supported not only by the position adopted by the mother with the full knowledge of the events of mid-2021, but also the recommendations of Dr E, again with the full knowledge of the events of mid-2021, that such unacceptable risk as posed by the father can be managed through supervision.
The primary issue as to time remains who should supervise, when supervision should be lifted and what the time arrangement should be.
The applicable law
Parenting matters are governed by Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60CA of the Act mandates that the best interests of a child are the paramount consideration. The objects of the Act are identified in s 60B which sets out not only the objects of the Act but the principles to be applied.
Section 60B of the Act provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Pursuant to s 61DA(1), the Court is required to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility for him or her, but that presumption may be rebutted if there are reasonable grounds to believe that a parent of a child has engaged in abuse or family violence or there is evidence which satisfies the Court that it is not in the bests interests of the child for the presumption to be applied.
In the event that the Court is satisfied that the presumption applies, then pursuant to s 65DAA of the Act, the Court must positively consider whether orders should be made which result in a child spending either equal time or substantial and significant time with both of the child's parents.
Substantial and significant time is defined by s 65DAA(3) of the Act as follows:
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In determining what time order should be made under s 65DAA(1) and (2) of the Act, the Court looks to whether spending equal time or significant substantial time is in the best interests of the child, and whether as a separate consideration it is reasonably practical.
The best interests of a child are determined by an examination of the factors as set out in s 60CC of the Act. Section 60CC(2) sets out the primary considerations in determining what is in the child’s best interests. These primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse neglect or family violence.
In applying these considerations, the Court is to give greater weight to the consideration set out in s 60CC(2)(b).
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. Those considerations will be discussed further below.
In Mulvany & Lane (2009) FLC 93-404, May and Thackray JJ stated:
76.It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Emphasis in original)
In reaching my decision, I have considered all of the relevant sections of the Act, albeit that I am not required as a matter of law to specifically address each such consideration.
Primary considerations
Meaningful relationship
It is ordinarily in children's best interests to have a meaningful relationship with each parent.
The Full Court in Sigley & Evor (2011) 44 Fam LR 439 identified the following as important matters of guidance in relation to s 60CC(2)(a) at 463–464:
(1)“a meaningful relationship or meaningful involvement is one which is important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 at [26];
(2)“the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”)”: McCall & Clark (2009) FLC 93-405 at [118];
(3)“what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”: Godfrey v Sanders (2007) 208 FLR 287 at [36]; and
(4)“The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The courts obligation is to make orders most likely to promote the child’s best interests”: Champness & Hanson (2009) FLC 93-407 at [103].
On the competing applications of each party there is no issue that X should spend time with his father. The issue is the extent of time and when it moves from supervised to unsupervised. In relation to the nature of a meaningful relationship, Dr E says:
In general, children who can maintain a satisfactory relationship with both parents are less likely to experience emotional, behavioural, educational and relationship difficulties in the future. It is my view that these principles apply in this case.
(Family Report, page 41)
I am satisfied, for the reasons I give and the orders I make, that X will have, to the extent possible and consistent with his best interests, a meaningful relationship with both of his parents.
As noted, however, the Court’s obligation is to make orders that are in X’s best interests and the questions of risk and harm are not subordinate to the issue of meaningful relationship.
Section 60CC(2)(b) – Harm and family violence
The primary focus of these proceedings is the need to protect X from a risk of harm.
I refer to the findings that I have made earlier in relation to family violence and risk.
I am satisfied, upon an assessment of all of the evidence and consistent with Dr E's observations, that the issue that looms large in these proceedings is the question of risk of harm exposed by the father's anger management issues, attitude to parenting, impulse control and alcohol use. These risks pose an unacceptable risk to X having at present unsupervised time with his father.
Additional considerations
The Court must also have regard to such of the additional considerations under s 60CC(3) of the Act as are relevant.
I will to the extent that I have not already done so address the additional considerations as are relevant.
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
In Bondelmonte v Bondelmonte (2017) 259 CLR 662, the High Court stated:
34.In some cases, it may be right, in the exercise of a primary judge’s discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.
35.... whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed.
The father says X wants to see more of his father. Beyond that bald assertion, there is no other evidence of X’s views. Given his age and the risk factors, little weight would be attributed to any view he expressed that suggested he wanted unsupervised time. That said, the mother does not say that X does not want to see his father.
In the Family Report, Dr E says:
Bearing in mind [X]’s age, maturity and the current circumstances, I did not ask [X]’s views. I note however that there are a number of accounts in the supervision records of him making enquiries about spending more time with his father, and staying overnight, which appear to have been largely or entirely unprompted. I would note however that the factor which may have maintained these enquiries to some extent was that [Mr Mannion] tended to provide temporising responses in the form of inferences that change would occur relatively soon, which in tum probably also led [X] to enquire in effect, “how much longer”.
(Family Report, page 35)
As stated earlier, X is 8 years of age. Dr E has described him as being on the immature side. For all of the above reasons, little weight could be placed on his views as advanced by his father.
(b) The nature of the child’s relationship with each of the parents and other persons
Dr E addressed the issue of the nature X’s relationship with his parents. I accept the following observations of Dr E:
It seems clear that at least over the span of his memory, [X] has not had the more or less continuous presence of his father in his life. …That said, [X] and his father appear to have developed a quite close bond although like the period prior to the separation, this time together has not really allowed [Mr Mannion] to be a part of [X]'s daily routine in the way experienced by many parents after a separation. …
The mundane routine aspects of parenting are an important part of consolidating and giving depth to a relationship, so it is my view that [X]'s relationship with his father lacks this depth at the moment and it is not likely to develop if a regime like currently continues. …
I formed the view that [X] has a deep and loving relationship with his mother. I felt that she is very attuned to him and she has clearly been the primary parent over the course of his life. …
In my view [X]'s insecurity reflects a combination of clinging to the parent on whom he feels he can rely on most, as a legacy of frightening behaviour which he has witnessed during his parents' relationship, and to the state of emotional unrest in his mother and [Ms N] which arose from a combination of sources over the course of his life (the conflict between his parents, between his immediate family and [Mr Y], [P] and [Ms N]'s conflicted relationships with their father, and the chain of events which followed [Ms N]' s disclosures in July 2019).
(Family Report, pages 34–35)
(c) Extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; spend time with the child; and communicate with the child
It was not submitted that this was a relevant consideration.
(ca) Extent to which each of the parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
It was not submitted that this was a relevant consideration.
(d) Likely effects 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;
Dr E expressed the view in the Family Report that X could adjust to the father’s then proposed orders of alternate weekends and half school holidays subject to the Court being satisfied that “such an arrangement could be safe at a certain point” (at page 39).
He also expressed the view that X would in time find professional supervision restrictive. He said that if the Court were to consider such a regime as proposed by the father, then it should involve the introduction as soon as possible of members of the father’s extended family.
However, Dr E qualified this statement in his oral evidence arising out of what happened in the mid-2021 incident. In that respect, he was of the view that consequent on the events of mid‑2021, it was far too soon to move from professional supervision and that the father needed to do considerable work with his psychologist for a significant period of time before progressing to non-professional supervision.
Dr E was of the view that the mother’s proposal of a transition to unsupervised time in the year in which X started high school was an appropriate time at which such an event should occur. He observed that X would be older and more able to deal with any issues that arose, including contacting his mother should something untoward happen.
(e) The practical difficulty and expense of a child spending time with and communicating with a 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
The current time arrangement involves the payment of professional supervision. There are limitations on the father’s financial capacity to spend more time while it remains professionally supervised. There is also the issue that the father lives and works in Q Town whilst the mother lives in Sydney. These are practical considerations that impact on the length of supervised time and where it takes place.
(f) The capacity of each of the child's parents and any other person to provide for the needs of the child, including emotional and intellectual needs;
Dr E observed:
I note that the way [Mr Mannion] dealt aggressively and contemptuously with [Ms Delisle] and the children was a significant focus in [Dr R]’s therapy in 2016. Despite [Ms Delisle] putting a great deal of this domestic material “on the table”, including her letter from 2015 which included a number of the statements [Mr Mannion] agrees he made, [Dr R]’s notes seem to indicate that [Mr Mannion] repeatedly dismissed much of what she said in a somewhat disrespectful and contemptuous way at times. There are particular references to his adverse responses to [P] being “whingy and whiny” which are of particular concern in the sense that he seems to have a low threshold of tolerance for plaintive or attention seeking behaviour from children. This is the sort of behaviour which [X] will undoubtedly manifest at times, and he will probably manifest more in his primary school years. It will be a concern if this continues to be a trigger point for [Mr Mannion].
In my view the major cloud over [Mr Mannion]’s parenting capacity is his temper, and whether he can exhibit an appropriate level of self-restraint and patience with [X]. The records of the supervised visits do not record any directly observed inappropriate conduct, but that is hardly unexpected under the circumstances. …
It is not my view that [Mr Mannion] has a particularly deep understanding of parenting. … Firstly, I do not think he is very tuned into his own feelings beyond experiencing impatience or hurt, neither of which he deals with very well. Secondly, I think he has a poor understanding of managing his mood and of controlling his impulses. That said, I am hopeful that he has genuinely made some changes in his lifestyle which put him under substantially less pressure and mean that his coping mechanism will be less tested by his son. However I am of the view that parenting counselling could assist him with this, perhaps from [Mr J].
I have noted above that I felt that [Ms Delisle] had a very comprehensive understanding of her parenting responsibilities which was undiminished by a capacity for forgiveness towards both her husbands. In my view this attitude translated into a capacity for quality parenting, for which in [X]'s case she took almost the entire responsibility, and where she showed herself to be attuned to his needs and appropriately responsive to them apart from an undue patience with [Mr Mannion]’s unacceptable behaviour.
(Family Report, pages 37–38)
I agree with these observations.
(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;
No submission was put to me that this was a relevant consideration.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her culture; and the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I have addressed this consideration exhaustively above.
Dr E observed:
In my view [Ms Delisle] has demonstrated a positive, broadly based and quite layered attitude towards [X] and her parenting responsibilities. If anything, this has been somewhat undermined by a capacity for forgiveness towards [Mr Mannion] for some of his behaviour, and her patience with his rather half-hearted participation in anger management and related counselling. ...
… [Mr Mannion] lacks practical experience as a parent. I also think he has a fairly superficial view of the responsibilities of parenthood. However I do think he has the capacity to deepen this with family support and perhaps ongoing professional advice.
(Family Report, pages 36–37)

In relation to the father’s anger management issues, Dr E observed:
In my view [Mr Mannion]’s positive statements about controlling his anger now are somewhat rhetorical in that not only has he attended professionals for anger management on at least three occasions prior to the separation as well as obtaining a recent report from [Mr J], but he admits to incidents of domestic anger such as punching holes in doors and at least two altercations at work which on his own description would be regarded as reflecting anger management problems. Despite this, on each occasion he has complied with the urging of another party to attend counselling focussing on his anger. Bearing in mind the above, the recent report from [Mr J], and what [Mr Mannion] told me at my assessment, it seems to me that he does not really consider he has a significant problem in this area and as a result, it is quite possible that his capacity for poor anger management remains largely unaltered. The question then is whether this could be turned on [X].
(Family Report, page 38)
Dr E expressed his view that the father’s “capacity for poor anger management remains largely unaltered” as a possibility (Family Report, page 38). The mid-2021 incident demonstrates that the father’s anger issues and impulse control are not matters of mere history nor possibilities.
(j) Any family violence involving the child or a member of the child's family;
I have addressed this extensively above.
(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;
Whilst it is desirable to make orders that will limit the litigation between the parties, it is not always possible.
Given X is only 8 years of age and there is a long way to go until unsupervised time is to start on the respective cases of both the mother’s counsel and the ICL, they each urged that the issue of school holiday time be deferred to after he commences high school. I will address this issue later.
(m) Any other fact or circumstance that the court thinks is relevant.
No submission was made that there was any other relevant fact or circumstance.
Parental responsibility
Pursuant to s 61DA(1) of the Act, the Court is required to apply a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility.
That presumption may be rebutted if there are reasonable grounds to believe that a parent of a child has engaged in abuse or family violence or there is evidence, which satisfies the Court that it is not in the best’s interests of the child for the presumption to be apply.
The mother sought an order for sole parental responsibility while the father sought an order for equal shared parental responsibility.
The mother has been the victim of significant family violence. In and of itself, the degree and magnitude of family violence would be sufficient in my view to warrant making an order for sole parental responsibility.
Further, the mother gives the following unchallenged evidence:
102.I have been clear from the outset that I am unable to facilitate telephone contact or changeover if that involves me coming into contact with [Mr Mannion]. After the emotional, psychological and physical trauma I experienced during my marriage and the disclosures made to me by [Ms N], I have a physical reaction to seeing [Mr Mannion] or hearing his voice. I feel nauseas and anxious, my throat closes over and I feel unable to speak, I tremble uncontrollably, I get teary about the prospect of being in the vicinity of him. I used to dry retch when I heard his name. I hate that I have this reaction and even putting this in my affidavit makes me feel weak that he’ll know he has this effect on me because I believe it will give [Mr Mannion] some sick sense of satisfaction.
In light of this evidence, to require the mother to share parental responsibility with the father would potentially re-traumatise the mother.
The parties have no capacity to communicate or co-parent.
In light of my findings as to family violence and unacceptable risk, I am of the view that X’s best interests are served by an order for sole parental responsibility in favour of the mother.
Having made such a finding, I am consequentially not required to consider s 65DAA, albeit I note that neither parent sought such an order.
It is agreed that X will live with the mother.
I will now proceed to address what time X shall spend with the father.
What time should X spend with his father and when should supervision end?
The father’s position was that after a period of approximately six months, time between X and the father should move to an unsupervised regime of alternate weekends, time in the off week and half school holidays.
The father proposed that professional supervision occur either fortnightly for three hours or monthly for six hours for only six months. X has been spending time with his father on a monthly basis for approximately six hours and given the distance involved in travel, I think it more appropriate that a longer period of time, albeit less frequently, occur. There is no evidence that time once a month has been detrimental to X or has caused the father difficulties in complying. In those circumstances, I do not propose to vary the frequency.
The mother, for her part, proposed that supervision by B Centre should continue until X is approximately 10 years of age and that upon the commencement of Term 2 2024, X commence spending time once a month with the father in the presence of his aunt Ms C and that from the commencement of Term 3 2024, time progress to overnight time once a month in the presence of the aunt and when X commences high school, time progress to unsupervised once a month from after school Friday until Sunday afternoon. The ICL supported the mother’s position.
Dr E was clear and emphatic in stating that professional supervision should continue for a considerable period of time. He rejected entirely the notion that professional supervision should be lifted after six months, and was clear that the father needed to do significant more work with his psychologist and that there needed to be clear evidence of a significant change in the father’s behavioural patterns before the Court gives consideration to the lifting of professional supervision. He did not, however, express an opinion as to when time could move from professional to non-professional supervision.
X is a child who is already anxious and insecure. His mother understandably has significant concerns about him in the care of his father given the family violence that she has witnessed and has been perpetrated upon her. She gives evidence of already feeling considerably anxious and distressed at having to deal with issues involving the father. Dr E agreed that it was a relevant consideration in the determination of the time arrangements. It is not in X’s best interests that his primary carer feel that way and I am of the view that if ways can be made to lessen that burden, then doing so is consistent with all of the relevant considerations referred to in s 60CC, including s 60CG.
I am cognisant of Dr E’ recommendation that the father needed to do significant work with his psychologist before the Court gives consideration to the lifting of professional supervision. I am satisfied that it is in the best interests of X, given his stated level of immaturity, the fact that he already demonstrates anxiety and insecurity, and that his mother is his primary carer and is already significantly impacted upon by the family violence, that the issue of the lifting of professional supervision occur at or about the time proposed by the mother.
The mother proposes that professional supervision time continue until X attains 10 years of age, which is in 2024. There is no magic about the age of 10 and I am of the view that professional supervision could cease accommodating all of the above on the commencement of Term 1 2024.
Dr E said that before moving from professional supervision to time supervised by a member of the father’s family, members of the father’s family who are proposed as supervisors should involve themselves in the supervision undertaken by B Centre. I am of the view that this is important for X and therefore propose permitting X’s aunt and her child to attend on the supervision so that X becomes familiar with them. Dr E was supportive of an increase in the frequency of time.
Commencing in Term 1 2024, X’s time should move to supervision by his aunt. By that stage, time should also move to an alternate weekend arrangement such that X spends time with his father under the supervision of his aunt each alternate Saturday between 9.00 am and 3.00 pm. This arrangement should continue for two terms such that by the commencement of Term 3 2024, X can commence spending alternate weekends with his father between Saturday 9.00 am and Sunday 5.00 pm, again supervised by X’s aunt.
There does not seem to me to be a reason why there is a necessity to wait until high school for X’s time with his father to progress by another night and accordingly, I will make orders that see X’s time from the commencement of Term 1 2026 move to an alternate weekend arrangement commencing from after school on Friday until 5.00 pm on a Sunday.
The move to unsupervised time should occur in the year he starts high school in accordance with the recommendation of Dr E.
In circumstances where X’s mother is otherwise attending to the entirety of the care arrangements for X, I propose to make the orders that she broadly seeks about changeover. The father’s counsel did not address specifically those orders other than to propose a midpoint for changeover. I decline to make his order for the reasons expressed.
Both the mother and the ICL submitted that the issue of school holiday time with the father commencing in 2027 should be deferred until then, given that there are a number of significant changes ahead. The father’s counsel made no submissions on this other than to adhere to the time arrangement proposed by the father. I accept the submission of the mother and the ICL and accordingly, will not make any orders for school holiday time. In the event that by 2027 the parties are unable to resolve that issue, then they are at liberty to make such further application in relation to that aspect as they wish.
Dr E expressed the view that it would assist the father’s therapy with his psychologist Mr J if Mr J were provided with a copy of these Reasons for Judgement, a copy of the police Fact Sheet (Exhibit 2) and a copy of Dr E’s Family Report. The parties did not specifically address this in their submissions, however, I am of the view that it is essential to the father’s therapy that his therapist be provided with as much information as possible. Accordingly, I propose to make that order.
The father sought an injunction against the mother bringing X into contact with her former partner and his new partner. The mother’s counsel submitted that there is no evidence to support the making of such an injunction. The father’s counsel did not take me to any evidence to warrant the making of such an injunction nor made any submission in support of it. I am satisfied that there is no basis for the making of such an injunction.
In my view, the orders that I propose are ones that are in X’s best interests.
Costs
The ICL sought an order for costs of $12,802 to be shared equally between the parties. This was opposed by the mother and father and accordingly, I made directions for the filing of financial statements and short written submissions.
I have read those submissions and have had regard to the financial position of each of the parties.
An application for costs is governed by the provisions of s 117 the Act, which provides a general rule that each party to proceedings should bear their own costs.
Section 117(2) reposes in the Court a discretion to make a costs order in circumstances where the Court determines that there are circumstances that justify it making an order and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A).
In Penfold and Penfold (1980) 144 CLR 311, the plurality in the High Court determined that to make an order under s 117(2), the Court needs to make a finding of justifying circumstances as a preliminary prerequisite to the making of an order. Their Honours also observed that terms such as an exceptional case, special circumstances or a clear case are not necessary determiners of whether or not an order for costs should be made. All that is required or necessary is that there are justifying circumstances.
It is well-settled law that no one factor under s 117(2A) is determinative and the Court may give such weight as it considers relevant to any factor. In PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123, the Full Court observed:
41. … Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs
However, in the circumstances of a costs order sought by the ICL, s 117(3) and (4) have some application. They provide as follows:
117 Costs
…
(3) To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
(4) However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.
Dealing now with the relative subsections in s 117(2A).
(a) The financial circumstances of each party to the proceedings
The mother has filed a financial statement in accordance with my direction, the father has not. Each party has filed written submissions. Neither party could be described as wealthy. The cost of the litigation has impacted considerably on the mother. Each owes money to their lawyers. The mother’s financial circumstances reveal that she has a shortfall in her income after expenses while the father has a very modest surplus. That said, impecuniosity is not a basis for not making a costs order.
(b) Whether the parties are in receipt of legal aid
The father has been provided with legal aid pursuant to s 102NA. This, however, needs to be distinguished from a grant of aid. In Legal Aid ACT v Westwell (2021) FLC 94-013, the Full Court observed as follows:
40.We are therefore satisfied on balance, on a textual analysis of s 117, the reference to “legal aid” in s 117(4) does not include a reference to the provision of funding of a lawyer under s 102NA where that funding is from a legal aid body.
41.Further, it would be a bizarre outcome if a person who receives legal assistance by way of the provision of a lawyer under the Scheme brings with it an immunity against the costs of the Independent Children’s Lawyer to the alleged perpetrator of family violence, but the other party, the alleged victim, remains liable to pay them. Such an outcome is not consistent with the Act as a whole, with its many provisions dealing with family violence or s 102NA itself. The section, intended for the benefit of the witness party, would then be operating against them. Such an outcome would be intolerable.
42.We are thus of the view that the provision of legal assistance in the form of a lawyer to the mother for the purpose of cross-examination pursuant to the Scheme does not render her immune from an order that she pay the Independent Children’s Lawyer’s costs.
He is thus not immune from an order on that basis.
The mother does not have a grant of aid nor assistance under s 102NA.
(c) The conduct of the parties to the proceedings
What is relevant is conduct of a party, which in some way or other leads to an increase in costs by the other party. Such factors may include uncooperative behaviour, obstruction, prolonging litigation or the bringing of unreasonable or unmeritorious applications. It may include non-disclosure or a failure to comply with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) in relation to disclosure.
There is no matter of conduct that is a relevant consideration.
(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court
The proceedings required a hearing and judgment. It could not therefore be said that the proceedings were necessitated by a failure to comply with a court order. They were necessitated by the parties’ failure to compromise and reach agreement.
(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings
The term “wholly unsuccessful” refers to a situation in which proceedings as a whole have been unsuccessful, rather than necessarily an application (see Bant & Clayton (Costs) (2016) 56 FamLR 31).
Neither party has been wholly unsuccessful.
(f) Whether any party has made an offer in writing
The terms of any offer of settlement have not been disclosed.
(g) Any other matter the Court considers relevant
There is no other matter that I consider relevant.
I am satisfied that to impose an order upon the father and the mother to pay the costs of the ICL would be such as to cause the father and the mother to suffer financial hardship. I do not propose to make such an order.
Accordingly, I will dismiss the ICL’s application for costs.

I certify that the preceding one hundred and seventy (170) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.
Associate:
Dated: 1 December 2022

File number(s):	SYC 5959 of 2019
Judgment of:	SCHONELL J
Date of judgment:	1 December 2022
Catchwords:	FAMILY LAW – PARENTING – Unacceptable Risk –Where there was a significant history of family violence perpetrated by the father – Where the father has issues with anger management and impulse control – Where the mother sought for sole parental responsibility and for the child to spend time with the father supervised by a professional agency and then a family member until he begins high school – Where the father sought equal shared parental responsibility and for time to progress to unsupervised time within six months – Where the father was found to pose an unacceptable risk to the child – Consideration of primary and additional considerations – Orders made for the mother to have sole parental responsibility and for the child to spend supervised time with the father until he begins high school. FAMILY LAW – COSTS – Where the Independent Children’s Lawyer sought for his costs to be equally shared by the parties – Where the costs order was opposed by both parties – Consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – Application for costs dismissed.
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC 60CC, 60CG, 61DA, 65DAA, 102NA, 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:	Bant & Clayton (Costs) (2016) 56 FamLR 31; [2016] FamCAFC 35 Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251 Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102 Isles & Nelissen [2022] FedCFamC1A 97 Johnson and Page (2007) FLC 93-344; [2007] FamCA 1235 Legal Aid ACT v Westwell (2021) FLC 94-013; [2021] FamCAFC 50 M & M (1988) 166 CLR 69; [1988] HCA 68 Mazorski v Albright (2007) 37 FamLR 518; [2007] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76 PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158 Penfold and Penfold (1980) 144 CLR 311; [1980] HCA 4 Potter and Potter (2007) FLC 93-326; [2007] FamCA 350 Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Division:	Division 1 First Instance
Number of paragraphs:	170
Date of hearing:	23 – 24 November 2022
Place:	Sydney
Counsel for the Applicant:	Ms Lawson
Solicitor for the Applicant:	Reid Family Lawyers
Counsel for the Respondent:	Mr Flanigan
Solicitor for the Respondent:	Grant & Co
Counsel for the Independent Children's Lawyer:	Mr Jackson
Solicitor for the Independent Children's Lawyer:	Brian Samuel & Associates

SYC 5959 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS DELISLE Applicant
AND:	MR MANNION Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	SCHONELL J
DATE OF ORDER:	1 DECEMBER 2022