Diop & Gueye (No 2) - [2023] FedCFamC1F 786

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Diop & Gueye (No 2) [2023] FedCFamC1F 786

File number(s): SYC 9309 of 2020

Judgment of: CURRAN J

Date of judgment: 14 September 2023

Catchwords: FAMILY LAW – PARENTING – final hearing – final parenting orders made by consent – where the children spend no time with the father – where the mother has not facilitated time with the father – where the children have disabilities – where one child has a medical condition – where one child has 3 autism spectrum disorder – where the parties are unable to communicate – where the children have significant needs – where there are mutual allegations of family violence – whether the father should spend time with the children – whether the father’s time with the children should be supervised – whether the children are able to spend time with the father – whether the children’s names should be changed – where the father’s immigration status is pending – where orders made for sole parental responsibility – where orders made for the father to spend no time and have no communication – where the expert evidence was that the children could not cope with reintroduction to the father – where there is an unacceptable risk of harm to the children to spend time with the father – where the unacceptable risk to the children is a risk to their medical progress in therapies – where the father is authorised to request information from the children’s medical treaters

Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CC, 61B, 61DA, 64B, 65DAA, 69ZW

Cases cited:
Amador & Amador (2009) 43 Fam LR 268

Briginshaw v Briginshaw (1938) 60 CLR 336

Fitzwater v Fitzwater (2019) 60 Fam LR 212

In the Marriage of A (1998)22 Fam LR 756

Isles & Nelissen (2022) 65 Fam LR 288

Jones v Dunkel (1959) 101 CLR 298

M v M (1988) 166 CLR 69

Division: Division 1 First Instance

Number of paragraphs: 215

Date of hearing: 17 – 20 July 2023 and 13 September 2023

Place: Sydney

Counsel for the Applicant: Mr Cairns

Solicitor for the Applicant: Kassira Law

Counsel for the Respondent: Ms Abdelraheem

Solicitor for the Respondent: Branston Neville

Counsel for the Independent Children's Lawyer: Ms Treherne

Solicitor for the Independent Children's Lawyer: Khalil Family Lawyers
ORDERS

SYC 9309 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR DIOP

Applicant

AND:
MS GUEYE

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

14 SEPTEMBER 2023

BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous orders be discharged.

Parental Responsibility
2.The mother have sole parental responsibility for the children X also known as Z born 2018 and Y born 2019 (Children).
3.In the exercise of her parental responsibility, the mother:
(a)must not denigrate or otherwise speak in negative terms about the father with or in the presence or hearing of the children;
(b)must remove the children from the presence of any third-party denigrating or speaking in negative terms about the father; and
(c)will not show the children any documentation filed in these proceedings or discuss details of these proceedings with or in the presence or hearing of the children.

4.The children live with the mother.
5.The children shall spend no time with and have no communication with the father.

Information dissemination
6.The father shall be at liberty to obtain any reports issued to or from the NDIS about the children and their progress with treatment and the mother shall forthwith do all things and sign all documents to enable that provision of information to the father.
7.The mother provide the father the children's NDIS plans within 14 days of obtaining a copy to the father to his nominated email address.
8.The mother notify the father of:
(a)The children's current treatment providers, home address and schools / daycare within 14 days of the date of these orders; and
(b)Any change to the children's treatment providers, home address and schools / daycare within 14 days of the change;

by sending the father an email to his nominated email address.
9.The father keep the mother informed of any change to his email address by sending an email to her from the new address for the sole purpose of informing her of the change to the email address.
10.The mother keep the father informed of her current email address and advise of any change within 72 hours.
11.This order is sufficient authority for the father to approach the children's school(s) to obtain copies of their school reports and school photos at his own cost.
12.The father be at liberty to approach any of the children's treating medical practitioners to commission a report as to the progress in their treatment and diagnosis at his sole cost PROVIDED THAT such request is made not more than once per year.

Restraints
13.Pursuant to s 68B of the Family Law Act 1975 (Cth), the father is restrained by injunction from:
(a)attending at or contacting any day-care, preschool, school or other educational facility that either of the child attend from time to time; and
(b)attending upon any medical practitioner that either of the children attend from time to time; and
(c)attending any function or other event at the children's day-care, preschool, school or other educational or other facility that parents are ordinarily permitted to attend; and
(d)attending within 50 metres of the children's address being, Q Street, Suburb R, in the State of New South Wales; and
(e)otherwise contacting the mother directly, other than in accordance with these orders.

14.Leave be granted to provide a copy of the Orders to Ms S at T Psychology and the children's case workers at NDIS and any future treatment providers.

Passport
15.The mother has sole parental responsibility for giving consent to making arrangements for the application and issue of an Australian passport for each of the children.
16.Pursuant to section 11(1)(b) of the Australian Passports Act 2005, the mother is permitted to apply for and obtain the issue and renewal of Australian passports for the children under the provision of the Australian Passports Act 2005 without the father's knowledge or consent.
17.Pursuant to section 65Y of the Family Law Act 1975, the children are permitted to travel internationally including outside the Commonwealth of Australia, with the mother and without the father's consent.

Change of Name
18.The mother shall be:
(a)permitted to apply to the Registrar of Births, Deaths and marriages for the State of New South Wales to change the name of the child X born 2018 to Z and it is requested that the Registrar of Births, Deaths and Marriages for the State of New South Wales, upon the application of the mother, give effect to this Order by doing all acts and things necessary to register the change of name pursuant to section 28 of the Births, Deaths and Marriages Registration Act 1995 (NSW) notwithstanding the consent of the father has not been obtained; and
(b)at liberty to provide a copy of these Orders to the Registrar of Births, Deaths and Marriages.

Other
19.The Independent Children's Lawyer be discharged.
20.Pursuant to Sections 62B and 65DA of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

THE COURT FURTHER ORDERS THAT:
21.This Order is sufficient authority for the father to request any information from any medical practitioner or health professional who may treat the children from time to time, other than T Psychology.

THE COURT NOTES THAT:
A.The father's nominated email address is …@….
B.The mother's nominated email address is …@….

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 Diop & Gueye has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CURRAN J:
INTRODUCTION

These proceedings concern the best interests of the children X born 2018 aged 5 years old at the time of the hearing, and Y born 2019 aged 4 years old at the time of the hearing ("the children").
Both children have significant special needs. X has an intellectual disability and Y has autism as well as a medical condition.
At the conclusion of the evidence in July 2023 there was no evidence before the court as to the impact on the children of them resuming spending time with their father in the context of their individual special needs. Accordingly, the matter was adjourned for evidence to be put before the court.
On the final day of the hearing, following the concurrent evidence from the Court Child Expert Ms U ("the Court Child Expert") and Ms S, Principal psychologist of T Psychology ("Ms S"), where the children receive psychological treatment, the parties reached an agreement by consent in respect of all matters other than the issue of the father's contact with treatment providers for the children and the payment of the ICL's costs.
The applicant, Mr Diop born in 1991 ("the father") and the respondent, Ms Gueye born in 1991 ("the mother"), met as children in Country C. The parties commenced their relationship in or about 2009. The mother moved to Australia in 2011 and in late 2016 the father immigrated to Australia. The parties were married in late 2016. Final separation occurred on or about 15 January 2019.
The children currently live with the mother and have not spent time with the father in person since separation. There have been orders made for time to be spent with the father, however that time has not occurred.
Telephone and video communication had taken place since orders were made on 19 March 2021. It is the father's evidence that his calls had been rejected by the mother and that the time has not occurred since August 2022. The mother disputes this allegation. There is no doubt that the video communication was highly problematic. Ultimately, no party sought orders for video or telephone communication.
LITIGATION HISTORY
The father commenced proceedings on 23 December 2020 following the finalisation of the parties' divorce in November 2020.
The matter came before Judge Monahan on 1 February 2021 and orders were made for: the parties to attend a Child Dispute Conference; the appointment of an independent children's lawyer ("ICL"); the children to communicate with the father each Thursday at 10.00am by video call; the children's names to be placed on the Family Law Watchlist; and for both parties to attend B Contact Centre ("B Contact Centre") to complete intake.
On 19 March 2021, Judge Monahan ordered that: the mother contact B Contact Centre to complete intake; that the children have a video call with their father each Thursday at 10.00am for a maximum of 10 minutes; the father complete a hair follicle test at the request of the ICL; and that a family report be prepared.
On 8 September 2021, Judge Monahan ordered that: the mother obtain a referral for Y to attend a specialist at D Hospital and attend same to obtain a report in relation to Y's health, diagnosis, and the suitability of supervised time; and the father complete a hair follicle test upon request of the ICL.
On 10 February 2022, following an interim hearing, Judge Monahan made orders that the children live with the mother and spend time with the father upon a vacancy at B Contact Centre, that within 24 hours before time is to occur the father is to undergo a RAT test, that within 4 days of time the father is to do a PCR test, that the father is to have two doses of the COVID-19 vaccine prior to commencing time and to have a third dose once available.
On 5 April 2022, the father filed an Application for Contempt against the mother alleging that: she had contacted B Contact Centre during the interim defended hearing; she had contacted B Contact Centre within hours of orders being made after the interim defended hearing; she had contacted Dr E unsolicited in the presence of the children; she had failed to comply with orders for telephone/video call time; and that she had failed to comply with the orders to complete intake with B Contact Centre.
On 3 May 2022, the family report by Ms U was released.
On 5 August 2022, the father filed an Application for Contempt against the mother alleging that she had failed to comply with orders for telephone/video call time and failed to comply with orders for supervised time.
On 1 November 2022, Schonell J made orders following an interim hearing that the father's contempt applications were withdrawn and dismissed and that the mother had leave to make an oral application for indemnity costs. His Honour also made trial directions on this date and listed the matter for final hearing in August 2023.
On 3 November 2022, Schonell J delivered judgment in relation to costs and ordered that the father pay the mother's costs assessed in the sum of $2,500 within 12 months.
On 9 December 2022, a Judicial Registrar made orders standing the matter from the list in circumstances where the parties were going to undertake a mediation assisted by Legal Aid NSW.
On 16 December 2022, Schonell J varied the trial directions made on 1 November 2022, allocating the matter to me.
On 20 February 2023, the father filed an Contravention Application alleging that the mother had 30 contraventions against orders for the children to have supervised contact with the father.
On 22 February 2023, I made orders that the trial be set down for final hearing in July 2023.
On 6 April 2023, a Senior Judicial Registrar adjourned the father's Contravention Application to the first day of final hearing.
On 9 June 2023, I ordered that the mother was to provide the father with the names of the children's service providers and provide consent for the release of the NDIS file and that the father was to file an undertaking that he would not contact any of the service providers of the children.
On 16 June 2023, I made orders that the mother was to provide written consent to the NDIS for release of the NDIS file to the parties as well as orders pursuant to s 69ZW of the Family Law Act 1975 (Cth) ("the Act") to the Department of Communities and Justice and NSW Police.
The final hearing commenced on 17 July 2023 until 20 July 2023 and resumed on 13 September 2023.
ORDERS SOUGHT BY THE PARTIES
Applicant Father
The applicant father sought an order for equal shared parental responsibility and for an increasing regime of time, initially supervised, leading to each weekend to be spent with him. In evidence he appeared to explain he was asking the children to live with him and spend time with the mother on weekends. The father also sought orders to have Y's middle name changed.
On the final day of the hearing the father consented to all orders proposed by the ICL and abandoned his previous application. It was submitted on his behalf that, after hearing the expert evidence, he accepted and understood that that due to the special needs of the children it would not be in the children's best interests to spend time or communicate with him. His consent to the orders sought after hearing the expert evidence shows insight on his behalf.
Respondent Mother
The mother sought orders for her to have sole parental responsibility for the children, that they live with her, and spend no time and have no communication with their father. The mother also sought orders to permit the children to travel internationally with her, to change X's name and for restraints on the father knowing where the mother and the children reside.
On the final day of the hearing the mother consented to all orders proposed by the ICL and abandoned her previous application, other than opposing the orders sought in respect of the father's communication with treatment providers and her payment of the ICL's costs.
Independent Children’s Lawyer
The ICL sought orders for: the mother to have sole parental responsibility for the children; the children to live with the mother; the father to spend no time and have no communication with the children; the father to be restrained from attending the children's daycare, school, medical practitioners, or any other school function where the parents are ordinarily permitted to attend; X's name to be formally changed to "Z"; the father to be at liberty to obtain medical reports from and approach the children's treating medical practitioners; the mother to be permitted to travel internationally with the children without the father's consent; and for the mother pay the costs of the ICL.
Even though the majority of orders sought by the ICL were made by consent, the ICL sought that the issue of family violence be determined in this judgment and I consider that an appropriate course given the circumstances of this case and the foreshadowing of a possible application in the future, should the children's conditions alter to the extent that they would benefit from time with their father.[1]
MATERIAL RELIED UPON
[1] Rice v Asplund (1979) 6 Fam LR 570.
Applicant Father
The father relied upon the following documents:
(a)Initiating Application filed 23 December 2020;
(b)Affidavit of Mr Diop filed 3 July 2023;
(c)Affidavit of Mr V filed 7 July 2023; and
(d)Case Outline filed 14 July 2023.
Respondent Mother
The mother relied upon the following documents:
(a)Affidavit of Ms Gueye filed 6 July 2023;
(b)Notice of Child Abuse, Family Violence or Risk filed 2 May 2022; and
(c)Case Outline filed 12 July 2023.
Independent Children’s Lawyer
The ICL relied on the following documents:
(a)Family Report of Court Child Expert Ms U dated 3 May 2022;
(b)Child Dispute Conference Memorandum of Family Consultant Ms K dated 1 February 2021;
(c)Case Outline filed 14 July 2017; and
(d)Two reports from Ms S from T Psychology dated 5 September 2023 (which became exhibits 26 and 27).
Expert Evidence
Evidence of Ms U
The Court Child Expert Ms U holds a masters in social work and has over 30 years of experience as a social worker. Her report commented that "without a clearer picture of the children's needs, and without a treatment plan in place, it is not possible to adequately explore proposed changes to the children's routine". She identified in her report that, if the children were to be reintroduced to the father, their special needs should be supported by the father attending individual counselling or specialised parenting programs as recommended by the childrens' treaters and that any planned contact occur within the children's therapeutic support structure.
At paragraph 89 of her report she opined that "As they have no established bond with their father, it would seem unlikely that the children would suffer psychological harm from not spending time with their father." This is significant in the circumstances where all parties, including the father, consented to orders at this time, for there to be no time between the children and their father.

On the fourth day of trial, before the matter was adjourned, she was called to give some limited evidence on the appropriate approach for the parties to take in the interim period where the matter was adjourned. Her oral evidence was that, having read all of the updating material not available to her at the time of final hearing, her recommendations had not changed and that orders for the children to spend supervised time with the father and to communicate with him by telephone should be suspended pending the evidence of the children's treating practitioners.
On the final day of trial, Ms U was recalled to give evidence concurrently while Ms S gave her evidence, which is set out below. Ms U's evidence was that her recommendations did not change having listened to the expert evidence, in circumstances where her recommendations were that the children spend time, if any, supported by the children's therapeutic structures.
When asked whether she would recommend that the father spend no time after having heard the evidence of the expert, Ms U stated that it would not be her recommendation that the father spend no time but that "no time occur at this point…it's about whether the court decides that it is safe for the children eventually in the context of the therapeutic structure".
Evidence of Ms S
Ms S gave evidence pursuant to a subpoena issued by the ICL. Ms S is a registered psychologist who treated both children and prepared diagnostic reports for them. Both children currently attend her practice at T Psychology. Her evidence was unequivocal that it would not be in the children's best interests to spend time with the father. She set out her opinion in exhibits 26 and 27 (reports dated 5 September 2023) and maintained her opinion in her oral evidence. I give significant weight to her opinion and that of Ms U.
Her opinion in relation to X, contained in a letter to the ICL dated 5 September 2023 marked Exhibit 26, was that:
(a)X experiences heightened anxiety when confronted by unfamiliar individuals, particularly those of male gendered appearance;
(b)X displays a pronounced reliance on her mother's presence for emotional security, particularly when in unfamiliar environments;
(c)X's capacity to regulate her emotions is noticeably challenged in escalated environments, particularly when her sister displays aggressive behaviour;
(d)X's condition may render her less likely to display overt signs of abuse; and
(e)Introducing additional caregivers into her life may have the potential to disrupt her therapeutic intervention.
Her oral evidence was that X would not derive benefit from spending time with her father and that it was not in the best interest of X to spend time with her father supported by the therapeutic structures as, in effect, X's special needs meant she would not tolerate such time without a significant deleterious impact on her psychologically. She also noted that she does not think that X has any awareness of her father or who he would be.
Her opinion in relation to Y, contained in a letter to the ICL dated 5 September 2023 marked Exhibit 27, was that:
(a)Y displays high levels of anxiety when placed in new environments and that she is unable to transition to new environments without the presence of her mother;
(b)Y has significant difficulty separating from her mother and her grandmother, during psychology sessions she becomes distressed if her mother cannot be seen, and her communication difficulties exacerbate this problem significantly;
(c)Y exhibits physically aggressive behaviour when she is feeling anxious, raising concerns for the safety of those around her during potential contact with the father;
(d)Y has a history of trying to leave or escape due to dress and anxiety;
(e)Y is unable to communicate verbally which impacts her ability to express basic needs and to form secure relationships with caregivers and therapists; and
(f)Forced visitations could exacerbate Y's anxiety and potentially lead to an increase in her aggressive behaviours during her various therapies.
Her oral evidence was that Y's sensitivity to change means being introduced to a new person including the father, whether in an unsupervised or supervised context, would place Y at risk of harming herself and also place the father, and any other person in the same room at risk.
She also stated that, even one session where the children would be introduced to the father would have a negative impact on the progress of both children's overall therapies and goals.
Another concern raised by Ms S, in her reports is the risk of abuse to the children, being that due to the children's limitations with communication, they would be unable to report if the father were to be violent or aggressive. When asked whether her recommendations would change if she disregarded the history of family violence reported by the mother, she said they would not.
When asked whether she, or her practice, could facilitate some communication with the father to allow him to be abreast of the children's needs and progress, her evidence was clear that her practice does not work with families in that way. She said that they "try not to do administrative work" which does not go towards the therapy of the children. It was clear on her evidence that time between either of the children and their father occurring in the context of the T Psychology therapeutic structure would not be able to be facilitated. The evidence provided by Ms S was frank and crucial to the determination of this court.
It is to the father's credit that he accepted her recommendations and abandoned his proposed orders to spend time with the children, having heard how it may disrupt each carefully constructed treatment plan, which are both still in early stages and would likely cause a deterioration in the behaviours of both children with flow on effects to their overall therapy and welfare.
When asked whether X might have a greater capacity to engage with her father than Y, Ms S's evidence was firmly that both children have lifelong issues and that each would be negatively impacted in their ongoing therapeutic goals by spending time with their father. She did not see any benefit to either girl in spending time with their father due to their individual significant special needs and the concerns of the negative impact that would be occasioned by such time.
THE CHILDREN’S SPECIAL NEEDS
X (known also as Z) was born 2018. She was diagnosed as having a moderate intellectual disability. The report of W Psychology dated 16 October 2022 (Exhibit 13) provided a comprehensive assessment of her special needs and diagnosed her as having a moderate intellectual disability and made recommendations that she attend speech pathology, occupational therapy, attachment therapy and a specialist preschool for children with intellectual disabilities.
Y was born 2019. She was diagnosed as having autism spectrum disorder. The report of W Psychology dated 27 August 2022 (Exhibit 12) provided a comprehensive assessment of her special needs and recommended that she attend speech pathology, occupational therapy, attachment therapy, applied behavioural analysis, and that she attend a specialist preschool for children with autism spectrum disorders.
Neither parent was aware during the relationship of the diagnosis of X. The mother first became aware of X's diagnosis following the assessment of psychologist Ms S of, at that time, W Psychology on 16 October 2022.
The parties separated prior to the birth of Y. Y was diagnosed with a chromosomal disorder the day after her birth. The father first became aware of the diagnosis through the court proceedings. The mother became aware that Y had a preliminary diagnosis of autism when she was assessed by paediatrician Dr KK on 6 April 2022, after being ordered to attend a paediatrician for assessment of Y's medical condition. She was advised of the formal diagnosis on 27 August 2022 following the assessment of Ms S.
The mother did not advise the father at that time but had her lawyers serve various reports through lawyers on 14 July 2022, 9 September 2022, and 1 November 2022.
The mother worked in the health care sector, albeit working mostly with adults and adolescents. She said in evidence that the youngest child she had worked with that had autism was 12. The mother, despite her training, did not appreciate that Y was autistic or that X had moderate intellectual disability until she was first advised by the paediatrician and then engaged in assessments and therapies. The mother told the Court Child Expert that she thought Y was just going through the "terrible twos".
Since becoming aware of the diagnosis, the mother's evidence under cross-examination was that she has done courses through her employment and had completed the free course, Autism Aspects, in January 2023, as required by the contact centre. There is no doubt the mother has a huge task in managing the individual special needs of each of the children with multiple therapeutic support appointments each week, school for X, and her employment as a health professional. Several times during evidence it was evident that the burden on the mother is significant. She gave two examples of difficulty. The first was that in managing Y she has had to cut her hair short as Y lashes out and pulls at hair and eats it. The second was that Y was suspended from her occupational therapy due to her increasing behaviours including aggression where she bites, scratches and kicks. The impact on the level of care required, in particular for Y, must be significant. To the mother's credit, she has managed the children as a single parent with virtually no financial support and while also maintaining her employment.
The mother has had access to information from all of the NDIS approved therapists and medical supports. The mother and maternal grandmother take the children to multiple therapies each week. Since X has started school this year, some of her therapies are facilitated through her school. X has also recently started sport which the mother gave evidence that she enjoys.
The mother was critical of the father's understanding of the children's conditions and cited this as one reason she did not want him to have time.
The father's evidence was initially that he had not read the mother's trial affidavit and then he clarified that he had not read "all of the mother's trial affidavit". It is incredible and reflects poorly on him that he had not read all the material filed by the mother containing details of the children's needs, therapies, routines and challenges when he was seeking to spend increasing and unsupervised time with them.
The father stated he did not read it because the mother would just make "further allegations".
The father arrived in Australia in 2016 and spoke no English. To his credit he has learnt English and his evidence is that he also speaks BB Language, Country N Language and CC Language. It may be that having English as a second language contributed to his apparent lack of appreciation of the children's conditions. He described X as having social and communication issues from "being in a bubble", that Y has "[autism]", and that he understood from the Building Tots information session he completed, run by DD Organisation, that he needed to be patient with her.
The mother has a very detailed understanding and appreciation of the special needs of each of the children and is engaged with the treatment providers and therapies that have been recommended for the children and she manages all of their NDIS supports and their daily needs.
COMMUNICATION BY THE MOTHER WITH THE FATHER OF THE CHILDREN’S SPECIAL NEEDS
The mother will not communicate directly with the father. When asked about whether she would communicate with the father after the proceedings without the involvement of lawyers her evidence was "I would not want to speak to him at all". To her credit she has consented to a number of orders to provide updating information to the father in relation to the children by email.
The mother provided the father with some information in respect of Y in 14 July 2022, when her lawyer emailed the father's lawyer and enclosed the Kids First Speech Pathology report dated 10 July 2022 and attached a letter from EE Health Service paediatrician Dr KK dated 6 April 2022. There was no explanation as to why this EE Health Service letter was not provided to the father earlier.
On 9 September 2022, the mother's lawyer emailed the father's lawyer eight reports, including the reports provided on 14 July 2022, dated from April until August 2022.
On 1 November 2022, the mother's lawyer emailed the father's lawyer a psychology report in respect of X dated 16 October 2022 and a NDIS plan approval in respect of both children dated 19 September and 17 October 2022.
The mother's was critical of the father's lack of understanding of the children's needs in circumstances where she refused to provide him with any authority to obtain information from the NDIS about their diagnosis or treatment. This issue came to a head at a case management hearing on 9 June 2023 where the father's legal representative submitted on his behalf that he had been unsuccessful in requesting the names of the children's treating practitioners from the mother, preventing him from being able to issue any subpoenas to those treaters or entities. On this occasion orders were made requiring the mother to provide the names of service providers to the father and provide consent for the children's NDIS file to be released.
The father wishes to be informed of the children's conditions and treatment and has been prevented from receiving that information by the conduct of the mother. For her to criticise his lack of knowledge in such circumstances is unjustified. For the father to have not read the mother's affidavit to inform himself of the children's circumstances is also regrettable. The orders that the mother authorise treatment providers and schools to inform the father of the children's progress addresses this previous impasse and is in the best interests of the children.
THE FATHER’S EFFORTS TO INFORM HIMSELF ABOUT THE CHILDREN’S SPECIAL NEEDS
The mother is critical that the father hasn't been willing to take any steps to inform himself about the children's special needs and maintained that criticism in submissions
The father's evidence is that he had read the reports that have been provided. He said he researched autism and contacted Autism Spectrum Australia to obtain information. He completed the Building Tots Community information session, but said he otherwise was on a waiting list for any courses that were free due to his limited income. The father gave evidence that he had contacted NDIS on 19 July 2022 to make enquiries about his daughters and produced a note he made about an inquiry he made as to whether he was listed as the father. I accept that the father took these steps to inform himself.
It is not in dispute that the mother required the father to provide an undertaking restraining him from contacting the NDIS before her consent to the release of the file would be given. Orders were made to that effect on 9 June 2023. The mother sought a finding that the father lacked insight and had not done enough to inform himself about the children's needs. Where the father was actively prevented from being informed, and was required to provide such an undertaking which prevented him from accessing information and potentially services available for parents, no such finding is open.
THE FATHER’S IMMIGRATION STATUS
The father's evidence is his migration case is currently awaiting the allocation of a date from the court. As at February 2023, his lawyer advised that it could be another year or possibly two before it will be set down for hearing. His evidence was that his lawyers had told him he has reasonable prospects of succeeding in his application. I accept that evidence.
THE MOTHER’S NON-ATTENDANCE AT CONTACT ON 16 JULY & 30 JULY 2022
There is no dispute that the mother failed to make the children available at B Contact Centre on 16 July 2022 in accordance with orders dated 19 March 2021, reiterated in orders dated 4 May 2022 that the parties were to advise B Contact Centre that the father's time with the children would commence.
The date of 16 July 2022 was offered to the parties as an available appointment for the father to spend time with the children at B Contact Centre. The father's evidence is that the date was confirmed, whilst the mother's evidence was that it was offered to the parties and she had to decline due to the children's medical appointments that were conflicting.
The mother's lawyer received an email from B Contact Centre on 14 July 2022 which provided that, having been apprised of Y's recent diagnosis and needs and the fact that Y has a conflicting appointment to attend at the contact time, the centre was prepared to place the matter back on the waitlist if the parties reached an agreement to do so and informed the centre by 3.00pm on Friday 15 July 2022. The mother's lawyer proposed that the parties consent to postponing the commencement of supervised time and communicate same to the centre. The father's solicitors declined to postpone the time slot. The following day, after 3.00pm the mother's solicitors wrote to B Contact Centre and noted that the father had not consented and asked that the centre advise of another time slot that would not take place on a Saturday morning.
The mother gave evidence that the Y had occupational therapy with FF Health Service, although these appointments were cancelled at late notice, after the time at the contact centre had been postponed. The emails sent by her legal representatives to the father's legal representatives on 14 July 2022 record that the Y had occupational therapy and speech pathology appointments on the morning of 16 July 2022. When cross-examined by the ICL it became apparent that the assessment had been undertaken on 28 June 2022 and the completed assessment was received by the mother on 19 July 2022.
There is no dispute that the mother failed to make the children available at B Contact Centre on 30 July 2022 in accordance with the orders dated 19 March 2021.
The date of 30 July 2022 was a Saturday that the children were scheduled to spend supervised time with their father at B Contact Centre, but the mother did not attend with the children.
The mother's evidence was that she did not attend because the children were required to undergo assessment by their treating psychologist Ms S during this scheduled time. That evidence then became that she needed to be on standby due to an ongoing process of assessment being conducted by Ms S. This issue was not explored with Ms S.
The mother maintained that the assessment that was undertaken was ongoing for three weeks, and my understanding of her evidence was that she was effectively on-call in case Ms S called her to ask questions, discuss Y's behaviour or ask them to come in to see her.
I accept the mother's evidence that the burden of caring for special needs children and managing the assessments, appointments and treatment was, and no doubt still is, arduous, stressful and time consuming. It is apparent and I find that the mother was prepared to use whatever justification she could for not making the children available to spend time at B Contact Centre due to her (reasonably held) apprehension about how the children would cope with reintroduction of time between the father and X and the introduction of the father to Y.
Sensibly the Contravention Applications, including in respect of alleged breaches of the 16 and 30 July attendances at B Contact Centre, were withdrawn by the father. There may well have been ambiguity about whether the time was scheduled or whether there existed a reasonable excuse for non-attendance given the recent and serious diagnoses of significant issues impacting both children.
APPLICABLE LEGAL PRINCIPLES

Orders in respect of children are informed under Part VII of the Act. The meaning of a parenting order is defined at s 64B.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Part VII. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
The Act applies a rebuttable presumption that a child's best interests are served by an order allocating equal shared parental responsibility for the child to the parents pursuant to s 61DA. Parental responsibility is defined at s 61B. The presumption does not apply in certain circumstances if there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence according to s 61DA(2). Pursuant to s 61DA(4), the presumption may be rebutted if the Court is satisfied that it would not be in the child's best interests for the parents to have equal shared parental responsibility.
In the event an order is made allocating equal shared parental responsibility, the Court must consider whether it is in the best interests of, and practicable for, the children to live in an equal time arrangement, or alternatively consider substantial and significant time with the other parent pursuant to s 65DAA.
If the presumption does not apply or is rebutted, the manner and allocation of parental responsibility is determined by consideration of the child's best interests.
The presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in family violence.
Family violence is defined in the Act at s 4AB(1) as "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family(the family member), or causes the family member to be fearful." Some examples of behaviour listed at s 4AB(2) as family violence include assault, repeated derogatory taunts, intentionally damaging or destroying property, and unreasonably denying the family member financial autonomy they would otherwise have had. A positive finding that family violence has occurred cannot be made unless the Court is satisfied that the allegation can be proven on the Briginshaw standard of the balance of probabilities.[2]
[2] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; see M v M (1988) 166 CLR 69 at page 76 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ).
PARENTAL RESPONSIBILITY
In this case, for the reasons that follow, I find that it is in the children's best interests for the mother to have sole parental responsibility as sought by consent.
There is overwhelming evidence of the inability of the parties to communicate. The parties have had little to no capacity to co-parent due to the hostile nature of their relationship. The mother admitted during cross examination that she does not want to speak directly to the father at all. The father agreed during cross-examination that his relationship with the mother had completely broken down.
The mother has not permitted the father to meet Y and has not facilitated any time between the children and their father since separation.
Of real significance against the background of an inability to communicate in any manner and the open hostility between the parents is that both children are neuro-diverse and have significant special needs requiring therapeutic intervention and support through the NDIS. The risk where these parents cannot communicate and agree is that the necessary therapeutic supports will not occur or there will be delays with same arising from the parental conflict. This concern of itself in my view is sufficient to warrant an order for one parent to be responsible for the decisions of the children and to liaise with NDIS and the relevant therapeutic treatment providers.
In these circumstances there is no option other than to allocate parental responsibilities for the children exclusively to one party, and as such I find that it is in the best interests of the children to order that the mother have sole parental responsibility for the children such order being made by consent.
FAMILY VIOLENCE
The ICL has sought that findings be made in respect of the allegations family violence. I consider that appropriate in circumstances where both parties have made serious and concerning allegations which have been denied by each of them and where the orders have been made by consent without any admissions as to risk posed by family violence. The risk that has been identified in this matter and accepted by both parties is that of the risk posed by the children's high level of vulnerability and inability to cope with changes due to their respective diagnoses. As set out below I am not satisfied on the balance on probabilities that the family violence as alleged has occurred to each of them by the other.
Allegations of Family Violence made by the father
The father alleges that he was the victim of family violence during the relationship at the hands of the mother. These allegations include that the mother:
(a)Threatened to make false reports about the father to police;
(b)Threatened to cancel the father's partner visa;
(c)Did not provide him with money that was deposited into the joint account by his parents;
(d)Threaten that he would not see X or Y until they each turned 18; and
(e)Threaten to remove him from the family home and cause him to live in the streets.
The specific allegations made by the father are contained below.
Police incident
The father alleged that during the first few weeks of the parties' marriage, the mother came into the living room late at night and accused him of speaking to girls on his phone before taking his phone and throwing it against the wall. His evidence is that the mother then grabbed a glass cup and threatened to break it and slice her wrist, saying "I will tell the police you did this to me, they will believe me." The father asserts that the police then attended the home and conveyed him to the police station, and that an Apprehended Domestic Violence Order ("ADVO") was put in place following this incident.
The father asserts that, following this incident, the mother threatened the father using his fear of police throughout the course of the marriage.
It is unclear if this incident the father is describing is the same incident that occurred in late 2016 involving the mother wearing a skirt, a phone being smashed and the police being called, although the police records from late 2016 recall a time of around 1.00pm, and the father deposes that this occurred late at night.
If it is indeed a separate incident, it was not explored in evidence in chief or in cross-examination. If it is not a separate incident, my analysis of the evidence is contained below in the examination of the allegations made by the mother.
Being locked outside
The father alleged that in 2017 the mother would threaten to lock the father out if he was not home by a certain time and that she did to lock the father out of the home when he went out, including going to the gym in the evenings after work.
The father was asked during cross-examination if he was lying when he alleged the mother would lock him out of the house and he maintained that she did.
This allegation was not put to the mother.
Knife Incident
The father alleges that in mid-2018, he borrowed a car from a friend, which angered the mother. His evidence is that, whilst holding X the mother shouted words to the effect of "return the car to [Mr V] now” and “do not borrow anything without my permission” before pulling a knife from the drawer and shouting “return the car to [Mr V] now or I will blow the tyres up." The father's evidence is that he did not report this event due to his fear of police and fear that the mother would twist the incident against him.
It was put to the father that he was making this allegation up and he maintained that it did occur, and that the mother did so because "she doesn't want me to have friends. She doesn't want me to interact with other people and I don't know why is that. She wanted to be in control."
The mother was asked if she remembered being upset because the father had borrowed somebody's car and she said she did not remember it. The use of a knife was not put to her.
Forced intimacy and sexual assault
The father alleged that the mother would pressure him into being intimate when he did not want to by saying words to the effect of "you are not intimate with me every day, what kind of man are you?" He also alleged that he would occasionally wake up to find the mother touching his body or his genitalia while he slept. His evidence was that he did not report this to police because he did not know it was a crime, because of his fear of police and because he feared the mother would "twist the story on me". His evidence was that he suffered from a sleeping disorder due to the sexual assault, for which he has been prescribed medication.
This allegation was not put to the mother.
The father was challenged on this allegation and when put to him that he was making it all up that the mother would touch his genitalia whilst he slept, he maintained that she did.
Forcing work
The father asserts that he was studying in Country C prior to moving to Australia. His evidence is that he intended to continue his study in Australia but the mother threatened to revoke his partner visa if he applied to study here and did not work five to seven days per week. As a result, the father asserts that he worked difficult jobs like in construction, recycling and in retail.
When asked in cross-examination, the mother denied that the she threatened to cancel the partner visa and have the father deported during the course of the relationship. The allegation that she threatened him against continuing his study was not explored in oral evidence.
The father failed to call evidence from a number of witnesses who may have corroborated his evidence, such as the friend who he borrowed the car from or medical records in relation to his claimed sleep disorder or depression. Whilst I am not precluded from making a positive finding of family violence without corroborative evidence, I am not persuaded by the evidence of the father alone in respect of his allegations.
As such, on the basis of the limited evidence supporting the allegations made by the father and the testing of same, I do not find that, on the balance of probabilities, the mother perpetrated family violence against the father as alleged above.
Allegations of Family Violence made by the mother
The mother alleges that she was the victim of family violence leading up to and at the time of separation.
The father denied all allegations of violence. The father was cross examined in relation to some of the events, which he steadfastly denied. His oral evidence was that he is "not a violent person."
Family violence allegations are typically difficult to prove as there are often only the two parties present, as the Full Court stated in Amador & Amador (2009) 43 Fam LR 268 (“Amador”):
Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or document or an admission.[3]
[3] Amador & Amador (2009) 43 Fam LR 268 at [79].
An incident where the events could have been corroborated by a witness were the allegation of the father locking the mother, the maternal grandmother and child in a room for five hours. The maternal grandmother reported to the Court Child Expert that she had witnessed the father being violent to the mother whilst she was pregnant with Y. The mother's evidence was that she did not call the maternal grandmother as a witness as she would have nobody to look after the children whilst they were both at the court. The maternal grandmother could have provided an affidavit corroborating the mother's evidence about the family violence she was said to have witnessed, the allegations of the assault at the court and the threats made that she was said to have subsequently discussed. The mother did not call this witness where she was available and her evidence would have been probative. I find in accordance with the principle in Jones v Dunkel that the maternal grandmother's evidence would not have assisted the mother's case.
The mother alleged further incidents of family violence, in particular while she was pregnant. Her evidence was the father's violent assaults preceded two miscarriages. Her evidence was the act of kicking her with his leg caused her to fall to the floor feeling a sharp pain after which she started bleeding and had a miscarriage while on a trip to Country GG together. The mother alleged further incidents of violence including in early 2017, where he held her by the throat and pushed her down the stairs causing her second miscarriage. The mother's Notice of Child Abuse, Family Violence or Risk reported that she went to hospital and received medical care after suffering these miscarriages. There were no medical records relied upon by the mother in support of these allegations.
The mother alleged that the report to the police in 2019 followed a report being made by the midwives at D Hospital. This was also asserted by the mother to the Court Child Expert. Again, what was available third party evidence, such as the police report of the report by the midwife or the records from D Hospital, were not obtained or tendered in evidence. This absence of corroborative evidence as evidence in chief by the mother when it was likely available to the mother supports the inference that it would not have assisted the mother's case.
A number of the allegations made by the mother are examined below.
Late 2016 allegation of family violence
The mother's evidence was that when the father first saw her in her uniform wearing a skirt, he said "how can you go to work looking like a prostitute" and "you should be hanged to death for the way that you are dressed." The mother's evidence is that an argument escalated and he struck her a number of times, resulting in an ADVO being issued.
The ICL tendered the COPS record relevant to this incident. The notes made by the police record "the VICs IPhone 6 mobile phone has been damaged." The father in evidence denied that he had thrown the mother's phone but rather that she had thrown his phone against the wall and damaged it. When questioned, the father suggested "how did she call the police then if the phone was damaged? My phone was damaged, she was using her phone to call the police." The mother's evidence was that the phone was smashed but still worked. There are however a number of significant inconsistencies between the record and the mother's account. The mother asserts that the father "struck me a number of times" in her evidence but in cross-examination did not speak of being struck. The fact of the phone being damaged is not mentioned in her evidence contained in her affidavit. She also gave evidence that the phone was smashed into the front door of the house, not the bathroom door as alleged, and that she was in the bathroom getting ready to leave when the father came in rather than, as recorded by the police, that he "picked her up against her will and placed her in the bathroom."
These inconsistencies in the narrative from the mother are one of a number of matters that cause me to have reservations about her evidence in respect of the family violence she alleged. What is clear, however, is that there was an incident involving at least an argument between the parties where the police were called and where a mobile phone was damaged. On that basis alone I am satisfied that there was family violence on this occasion between the parties.
Country GG
The mother alleges that, whilst on a holiday with the father in Country GG, the father kicked her, causing her to fall to the floor and have suffer a miscarriage.
In cross-examination the mother gave evidence that she had two holidays to Country GG with the father, the first of 25 days, and the second (and last) holiday prior to his arrival in Australia was for 15 days. Her affidavit evidence was she had been on three holidays. Her evidence as to which holiday the father kicked her on was confusing. Her evidence was that the last holiday prior to the father's arrival in Australia was 15 days, but her evidence was that the occasion she became pregnant was the 25 day holiday. Her evidence was on that occasion, after the father had been granted a visa to enter Australia, she became pregnant and had a miscarriage following an assault on her by the father. Her evidence was "We had an argument during which he kicked me with his leg, and I fell on the floor. As I fell to the floor from his kick, I felt a sharp pain. Subsequently I started bleeding, and I had a miscarriage.
The Notice of Child Abuse, Family Violence or Risk relied upon by the mother states that she attended hospital as a result of this incident. No medical records were produced.
Counsel for the ICL put it to the mother that to fall pregnant and have a miscarriage within 25 days is not anatomically possible. The mother disagreed.
When put to the father in cross-examination he denied kicking the mother during a holiday in Country GG. The mother did not obtain any medical records of the incident despite her assertion that they existed. Her failure to provide available third-party evidence does not assist her case. I am not satisfied on the evidence that the incident she alleged occurred.
Father’s conduct and belief
The mother asserted that the husband was restrictive, and suggested that the father wanted the parties to marry so that his visa would be approved. This issue was not put to the father.
The mother asserted that the father insisted that he have custody of her credit card and sole access to her accounts and dictated how the money would be spent, sending substantial amounts to Country C. The father denied this allegation in cross-examination, his evidence was that he did not have a card to access the joint account. Exhibit 2 is an account confirmation of the joint account from the Commonwealth Bank of Australia, signed by both parties, which states that there was a card requested for each the mother and the father. The father maintained that he did not have a card for that account. The document signed by both parties' supports a finding that two cards were issued. There was, however, no evidence of the use made by either of the parties of the cards and I make no finding.
The mother also asserted that he drove her car because he believed a woman should not drive a car. This was not put to the father.
The mother alleged that the father was a supporter of Islamic terrorism, her evidence being that the father has often said "Muslims should take over Australia. Terrorism is the best way to force Australians to be Muslim and expand the religion." The mother also alleged that he kept all her friends away from the house, and told her that she must obey him, as a woman must listen to her husband. The mother asserts that the father did not want X to go to school in Australia and that he said "she would be around non-believers. That would make her sinful." This allegation was not put to the father in cross-examination.
The mother alleged that the father was a user of drugs and alcohol and hence sought that the father undergo hair follicle testing and he did so on 19 August 2021 and 28 September 2021. The father called Mr V to give evidence. Mr V was cross examined. I accepted him as a witness of truth. He gave evidence that he was a friend of the mother initially. He gave evidence that he saw the family multiple times each week prior to separation and that the father did not ever drink alcohol, despite it being offered, and he did not observe him to take drugs. The father also provided hair follicle tests negative for drugs and alcohol as ordered by the court. There is no evidence of the father using alcohol or drugs as alleged by the mother.

Mr V was also asked about the child X. He was unfamiliar with the name X and said "my ears have not known that name" but recollected the eldest child was called and known as "Z." I accept his evidence in this regard.
Early 2017 miscarriage
The mother asserted that when pregnant in early 2017 the father held her by the throat and then pushed her down the stairs, after which she had her second miscarriage. There was no medical evidence in relation to the second alleged pregnancy or miscarriage. This allegation was not put to the father.
There were no medical records provided in respect of the allegation made by the mother of a miscarriage on this occasion which may have supported the mother's narrative. The mother failed to call corroborative evidence in the form of medical records, which she asserted in her Notice of Child Abuse, Family Violence or Risk existed. This allegation has not been made out.
Hospitalisations
The mother's evidence was that she was in hospital twice due to physical abuse perpetrated upon her by the father while pregnant with their first child (X or Z). Her evidence was that he would push her, hit her in the face and hit her in the stomach.
The mother called no medical evidence of having been in hospital twice during that first pregnancy which must have been available and may have corroborated her evidence.
The mother reports that in late 2017 they had an argument which became physical. The mother's evidence was that she attended hospital and stayed there for three days due to extremely high blood pressure. She asserts that she was asked if she was being abused at home but she lied in fear that the father would become more violent if she told the truth. The father denied the incident and said that he didn't recall the mother being in hospital for three days due to high blood pressure during a pregnancy. He gave evidence that on one occasion during her pregnancy with X they attended the hospital because the mother was concerned about the baby not moving. Again, no medical records were relied upon.
The mother also gave evidence that in early 2018 the father pushed her over and she went to the hospital because of pain in her lower abdomen. Again the mother asserts a hospital attendance as a consequence of an assault but failed to provide any evidence of the hospital attendance, which must be available if it occurred. The father denied this when it was put to him by the mother's counsel.
This is another example of a failure by the mother to include documentary evidence of her hospital attendances which must have been available and may have corroborated the mother's evidence.
Events in Early 2019
The mother gave evidence in relation to the event where the father was escorted from the family home in early 2019 by the police.
Her evidence was that she attended an antenatal appointment at D Hospital during which she broke down and spoke to a social worker and that the social worker advised her that they had to call the police based on her disclosure. This was also reported by her to the Court Child Expert.
The mother's evidence was that she spoke to police and arranged to call them when the father arrived home from work so they could attend and remove him.
The ICL tendered material subpoenaed from the Department of Communities and Justice (Exhibit 21) containing a report that the mother disclosed verbal and physical abuse at an antenatal appointment in early 2019.
When asked in cross-examination, the mother stated that this event was the first time that she reported the family violence to anybody.
The ICL tendered material subpoenaed from NSW Police being a COPS record dated early 2019 (Exhibit 22) demonstrating that the police had attended the mother's home in early 2019 as she had wanted to report incidents that occurred on two dates where the father was alleged to have said "I will kill you", "I will bash you", and "you are a prostitute." An ADVO was then taken out against the father.
These events took place before the mother reported her allegations during the antenatal appointment on or about early 2019. There are no records of the police being contacted by any staff from D Hospital or by the Department of Communities and Justice in relation to the mother's reports.
The police records as to the dates that the ADVO was taken out and the father left the home do not support the mother's contention about the report being made by staff at D Hospital. I do not accept the mother's evidence about this timeline.
Disclosures to professionals
There is a record of the mother reporting family violence to the paediatrician Dr KK in Exhibit 11 - which is a report dated mid-2022. The paediatrician reports that the mother "stated she was pushed during her pregnancy." This report was made well after separation. It is difficult to reconcile that when reporting an incident of family violence, that the mother reported having been pushed and did not report the horrific extreme events she alleged of being assaulted, held at knife-point, forced into a car and the threats made that she deposes to in her evidence.
Circumcision of X
The mother makes very serious allegations of the father's intention to have X circumcised including that he took photographs of her vagina after a bath to send to his mother, and said on another occasion "the clitoris needs to be cut before she is 5".
The mother accepted that she discussed the matter with her mother who said that she did not think there was anything to worry about as long as the children don't go to Region LL. The maternal grandmother was not called as a witness in circumstances where again, she could have corroborated the alleged conversation. In relation to the circumcision allegation, the father's direct evidence in response was "we don't do that in my country." The failure to call the maternal grandmother on this significant issue causes me to conclude that her evidence would not have assisted the mother's case. I am not satisfied on the evidence that this incident occurred.
Allegation of being forced into the car at knifepoint and the father deliberately crashing the car
The mother alleged that after a similar incident where the father said he was "checking if she is born virgin", he held a knife to her throat and said "do you know I can destroy your entire family back home you slaves, I can get your entire family back home killed" and "look at [X]. I can kill both of you and bury you very far away when no one will find you. You are beginning to ruin my plans and I cannot let it happen, I am in Australia for a reason, and nothing is going to stop me."
The mother alleged that the father then forced them into the car while she was holding the baby with the knife still on her throat, and said "say your life prayers" and, after driving around for a while, he drove into a dead-end street and reversed the car deliberately into a tree.
The events alleged are very disturbing and frightening examples of family violence being forced into a car at knifepoint and believing she, her child and her unborn baby would die. The mother attached a photograph of the damaged car to her affidavit as evidence of the event.
The father denied this allegation and his evidence was that the mother had crashed the car, he said "that was on Thursday, I will never forget that day because we used to go on shopping night." I am unable to make a finding in respect of this allegation.
Local Court allegation
During her oral evidence the mother made an allegation that had not previously appeared in the evidence before the court, that there had been an assault against her and her mother in the presence of the children at City HH Court. The father's evidence in relation to this day was that it was the last time he saw X, he saw her in the Local Court and shouted her name, to which she turned around and "recognised" the father.
The mother states that she, her mother and the children attended City HH Court for a hearing in relation to an ADVO against the father. The mother asserts that the father was on the top level filming them as they walked in and through the security screening. The mother asserts that the father then approached her and attempted to see one of the children. It is unclear whether the mother refers to X or Y being covered up in the pram.
She asserts he then started to push the mother and the maternal grandmother. The mother's evidence was that this occurred at the security screening point in front of security or the sheriff's officers who she asserts witnessed the incident.
This is another instance where there must have been evidence available, including reports by security made to the police, or CCTV footage from the court, to support the mother's claim that was not produced by her.
The ICL submitted that it was significant that this allegation was made, in circumstances where there would have been witnesses who saw the alleged assault occur in the presence of the children, camera footage that could have been subpoenaed from the Local Court, and that it was not included in the mother's affidavit and as such the father had no notice of it. I accept the submissions of the ICL in relation to this allegation and I find that it cannot be supported on the evidence before me.
I am unable to make a finding due to the parties' competing narratives and lack of independent evidence. Noting Amador, that a court would not require corroborative evidence from a third-party, document or other source to make a positive finding of family violence which is notoriously difficult to prove, given my concerns about the mother's credibility set out above, I am unable to rely on the mother's evidence alone to make any positive findings of family violence.
BEST INTERESTS OF THE CHILDREN – PRIMARY CONSIDERATIONS
I am required to balance the benefit to the children of having a meaningful relationship with both of their parents and the need to protect them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. In balancing these considerations I must give greater weight to the need to protect X and Y from harm pursuant to s 60CC(2A) of the Act.
Meaningful relationship
It is, ordinarily, in the best interests of a child to have a meaningful relationship with both parents.
It is clear that the children have a meaningful relationship with the mother and also with the maternal grandmother, who are their primary carers, and I make that finding.
It is difficult to ascertain the relationship between the father and the children, as he has not spent time with X for a significant period of her life and has not yet met Y in person. Notwithstanding this, the father does love his children.
Unacceptable risk
I must consider whether the children would be at an unacceptable risk of harm in the care of father as alleged by the mother. In M v M, the High Court of Australia set out the test for unacceptable risk in that case as "whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk."[4] This test has since been built upon, and it is clear that the test does not only apply to a risk of sexual abuse but extends to a risk of physical or emotional harm.[5]
[4] M v M (1988) 166 CLR 69, page 77 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ).
[5] In the Marriage of A (1998)22 Fam LR 756 at [3.24].
It is not necessary for the Court to positively find that any abuse or family violence has occurred on the balance of probabilities in order to also find that an unacceptable risk of harm exists. In the decision of Isles & Nelissen,[6] the Full Bench of the Full Court analysed the assessment of the primary judge, stating:
Though both are evidence-based, the primary judge correctly approached the two separate questions without conflation: on the one hand, whether or not allegations of abuse are proven on the balance of probabilities; and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the frank allegations of abuse.
In this instance, the primary judge inferred the existence of an unacceptable risk of harm to the children from a combination of facts and circumstances, including: the elder child's plausible but unproven allegations of sexual abuse by the father; the evidence of the father's sexual interest in other adolescents; and evidence of the father's interest in child exploitation material.
The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant v Clayton is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children's best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.[7]
(citations omitted)
[6] Isles & Nelissen (2022) 65 Fam LR 288.
[7] Isles & Nelissen (2022) 65 Fam LR 288 at [83]-[85].
The Full Court went on to cite the dissenting judgment of Austin J in Fitzwater & Fitzwater, on the assessment of unacceptable risk with approval:
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. Risks of harm must be heeded even if they are improbable eventualities. [8]
[8] Fitzwater & Fitzwater (2019) 60 Fam LR 212 at [50].
Risk of harm – alleged by the mother
The mother conceded that family violence could not, on the evidence, be established but also submitted that the allegations of family violence should be taken into consideration when assessing whether the father presents an unacceptable risk of harm to the children. The mother made significant and serious allegations of family violence in her evidence as set out above.
On the evidence before me it is not open to make a finding that the father had perpetrated family violence as alleged. Other than the mother's allegations of family violence which I do not accept occurred as alleged, there is no other evidence before me such as that the father has a criminal history or violent tendencies which would suggest to me that he has previously acted in a manner that could be harmful to the children or that he would do so in the future. As such I do not find there is the possibility of future harm to the children arising from family violence.
It was submitted on the mother's behalf that, leaving the family violence allegations to one side, the children were at risk arising from the fact that the status of the father's migration matter was unknown until he was cross-examined and by virtue of the fact that there was limited evidence as to where he resides or has resided. I am not persuaded by this submission that these two factors pose a relevant possible risk to the children.
The ICL and the mother submitted the children were at unacceptable risk of harm arising from the impact on the children of spending time with the father given their special needs, as identified by the two experts. In essence the risks identified were to the ongoing therapeutic interventions being disrupted and a negative impact on the therapeutic outcomes to date if there was an introduction or re-introduction to the father to either of the children. This risk was detailed by the experts as referred to above and was accepted by the father as a basis for him to consent to the proposed orders for no time to be ordered.
Risk of harm – alleged by the father
Whilst the father made allegations that the mother had perpetrated family violence against him, namely of sexual abuse and through coercive control, the father admitted under cross-examination that he believes the children would be safe in the mother's care. Accordingly there is no allegation that the children are at unacceptable risk of harm in the care of the mother.
Risk of harm – identified by the experts
I accept, as all parties did, that it would pose an unacceptable risk to the children for them to spend time with the father at this point in time due to their special needs. The expert's evidence demonstrated that the children are highly sensitive to change, that change negatively impacts their behaviour and this includes heightened levels of anxiety for X, and increased physical aggression in relation to Y. The children are heavily reliant on the mother and seek her out for comfort. The evidence of Ms S indicated that the mother and the maternal grandmother struggle to go to the bathroom in their own home without distressing the children. The evidence was clear that to disrupt the children by introducing the father would negatively impact their ongoing treatment and progress. The evidence of Ms S that the risk to these highly vulnerable children is so potent as to support an order for no time. This opinion was supported by the court child expert as referred to earlier in these reasons.
Having accepted that this risk exists, I must consider whether it can be mitigated in order to consider whether orders should be made for the children to have a relationship with their father. The evidence of Ms S was that her practice would not facilitate the father's involvement with, or introduction to, the children.
The children's other service providers have withdrawn recently due to what appears to be Y's escalating behaviour. To put the children in a position where that behaviour continues to escalate due to the introduction of the father would place her therapies at risk should the newly appointed speech or occupational therapists then withdraw due to Y's increased instability. The mother's evidence is that she does not want to see the father, and Ms S's evidence was clear that it would not be possible for the children to have supervised contact with the father without the mother in the room due to the heightened distress that the children, particularly Y, experience in her absence, and the consequential risk of physical harm to the children or to any other adults in the room. No party maintained any application that time occur at a supervised contact centre in circumstances where the experts determined it would not be appropriate and that any time would need to be in the context of the children's therapeutic supports being involved.
Unfortunately, there is no way that the children's time with the father could be facilitated in a way where the risk is mitigated and the children's needs are supported.
FATHER’S TIME WITH THE CHILDREN
It is accepted that the father has not spent time with the children since separation in January 2019, he has never met Y who was born in 2019. Orders were made for the children to spend supervised time with the father at B Contact Centre on 10 February 2022.
The mother acknowledged that she has never taken the children to spend time with the father as ordered. Her evidence under cross-examination was that she did not, at this time, really want the children to spend time with the father. When asked why, she explained because the children are extremely sensitive to change and to new people, because she does not believe the centre is the appropriate venue or that the staff there have capacity to meet the children's high needs and because the father is not aware of ASD and what the children have. The mother's evidence was that their reintroduction to the father should be facilitated with the assistance of the children's treatment providers and therapists if that is what was recommended by them. Significantly, the expert evidence identified that the risk to the children and to the success of the ongoing therapeutic interventions was significant if the father was to spend time with the children.

The evidence of the experts, as set out as a whole earlier in this judgment, overwhelmingly indicates that it would not be in the best interests of the children to spend time with the father. Ms S's evidence as to X was clear that, in her opinion and at this point in time, there would be no benefit to X spending time with the father. As for Y, her evidence was that spending time with the father, supervised or unsupervised, would place both Y and the father at risk of physical harm due to Y's needs and inability to cope with change. As such, I find that it is in the best interests of the children to make the orders sought by consent.
It should be emphasised that, whilst I have made a limited finding that family violence has occurred between the parties, arising from the late 2016 incident, the reason for the father spending no time with the children (by consent) is the overwhelming evidence of the children's treatment providers as to risk posed by virtue of their extremely high special needs and their absolute inability, at this stage in time, to cope with any change in their circumstances or to cope with the reintroduction to the father.
BEST INTERESTS OF THE CHILDREN – ADDITIONAL CONSIDERATIONS
60CC(3)(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
Apart from having sporadic video calls with the father, the children have had no contact with him. On account of their young ages and their neurodiversity, the children's views have not been ascertained through any report and even if they had been, I could place little weight on them.
60CC(3)(b) – the nature of relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
It is uncontested that the mother has positive relationships with the children. The mother is the primary carer of the children. Ms U observed in her report that, during video observations, X came up to the mother and clung to her and sought her prompting to answer questions asked of her by Ms U. In relation to Y, Ms U observed that she did not engage with the screen or the mother, which is not surprising given that the court and the parties are now aware of Y's autism diagnosis. I find that the children have a positive relationship with the mother.
It is difficult to assess the nature of the children's existing relationship with the father in circumstances where he has not met Y and has not spent time with either Y or X since separation in January 2019. It is possible that the children recognise the father from their sporadic video calls which took place, but there is no evidence before me to suggest that and, in fact, the evidence of Ms S is that X may not have an awareness of her father and of who he is. On the evidence available, the only finding that is open to me is that the children do not have a relationship with the father.
The maternal grandmother has lived with the mother and the children since late 2018. The mother's evidence in cross examination was "I reckon the children know her more than me if you want the honest truth". I accept that the maternal grandmother shares the caring responsibilities for the children as described by the mother including taking them to and attending their various therapies and caring for the children when the mother is away. I accept the mother's evidence in this regard and I find that the children have a positive and close relationship with the maternal grandmother.
60CC(3)(c) - the extent to which each of the child's parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child, and to spend time and communicate with the child.
The mother's evidence was that after separation in January 2019, the father only made contact with her twice prior to filing, once in 2019 by text message to ask if X was walking and again in mid-2019 by email. The father's evidence is that he sought advice through Legal Aid initially and eventually commenced proceedings seeking to spend time with the children.
The father has been effectively blocked by the mother from being able to participate in any decision-making for the children, particularly in relation to their medical treatments and therapies. The mother's non-compliance with the orders that had been made to attend supervised time has also prevented the father from spending any time with the children. The parties agree that telephone/video call time is problematic. It is the mother's evidence that the father has not taken every opportunity to utilise the telephone/video call time as ordered and frequently calls late and terminates the call after four to six minutes rather than using the entire ten minutes allowed The father's evidence is that the mother has not answered his calls since August 2022.
As a result, there is no evidence before me that would assist me in making a finding about the extent to which the father would take up opportunities to participate in the children's lives.
60CC(3)(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
The father's evidence is that he had been transferring $250 per fortnight into the parties' joint bank account for the children but that the mother closed that account preventing him from doing so. Exhibit 3 is a statement of the joint bank account from 10 December 2019 until the accounts closure on 30 January 2019, there is no evidence of any deposit made by the father in the amount of $250 in this period, although I note the account closed just weeks after separation. The father also gave evidence that he contacted the child support agency and was told that the mother to had to apply for it. An email from the father to the mother dated 19 August 2019 is annexed to the father’s affidavit where the father says “I gave all my details to child support if you ask for support. I will always look. I’m ready to support financially if you want cash or card whatever you want.” I understand that the mother has not applied for child support.
The father also gave evidence that he attempted to gift the mother clothes for the children through a friend but that she refused to accept them. The mother refuted this allegation, her evidence was that the friend, Mr JJ, had attended the father’s home and called the father to arrange to pick up the clothes but that the father lied to Mr JJ about not being at home, unaware that Mr JJ was at his home and could see the father speaking to him on the phone. Her evidence was that the father had told Mr JJ “don’t worry about it she won’t take it.” Neither party called this witness and I can make no finding about this.
The father has no capacity to work and no income pending his immigration status being determined. The father gave evidence of the paternal grandparents sending $1,000 to the mother (verified by bank records). The mother asserted that she had requested $3,000 from the father to pay half of one of the children’s tonsil operations and she thought the $1,000 deposit was in accordance with that request. There was no evidence of any other support being paid by the father.
I accept that, since separation, the mother has borne the costs of maintaining the children. The father’s evidence was that, when he is able to work, he intends to contribute financially to the maintenance of the children. I accept his evidence that he currently has no capacity due to his circumstances and I accept the mother’s evidence that she has met the financial cost of the care of the children almost entirely herself since 2019.
60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or person (including grandparent or other relative of the child) with whom he or she has been living
The children will remain living with their mother and the maternal grandmother.
There will be no change in the children’s circumstances at this time and I note the expert evidence about the particular sensitivity of both children to change.
60CC(3)(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
There is a significant practical difficulty in finding a supervision service or a therapeutic service that is able to facilitate any time between the children and their father. On all the evidence in relation to the children’s needs and behaviours, it would significantly disrupt the children’s therapies for the children to adjust to a new routine, in a new place, with a new person, being the father. The expert evidence does not support orders for time being made given this evidence.
60CC(3)(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
The mother has had the sole care of the children since separation, assisted by her mother. The mother is the parent who has engaged with NDIS and other private medical providers to facilitate the children’s diagnoses and treatment. The mother has been providing for the children’s challenging needs to the best of her ability.
The father has little insight into the needs of the children, summarising his understanding as X having “social skills and communication problem” and Y having “[autism]". I find that the father has little capacity to provide for the emotional and intellectual needs of the children, though I note with further education and advice from appropriate therapists and experts this capacity could improve. The Court Child Expert opined similarly that the father should attend individual counselling or parenting programs to increase his capacity to understand their needs.
60CC(3)(j) & (k) any family violence involving a child or a member of the child's family; and if a family violence order applies, or has applied, to the child or a member of the child's family - any relevant inferences that can be drawn from the order taking into account the following: the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order, and any other relevant matter.
The father was charged with offences against the mother in early 2019. One count was withdrawn and the other charges were dismissed following hearing. At the hearing for this matter in mid-2019 the father accepted, without admission, a final ADVO against him. There is no current ADVO.
THE APPLICATION FOR THE CHILDREN’S NAME CHANGES
The mother sought orders that X's name be changed from X to Z. It is not controversial that X is known as Z, Ms S noted in her report dated 16 October 2022 that X prefers to respond to the name Z and introduces herself to others as Z.
The mother's evidence is that the father insisted on naming their first daughter X, even though they had previously discussed that her name would be Z. The mother's evidence is that the child is named X after a cousin of the father to please his family, the mother asserts that the father also referred to her as Z.
The father opposed this change of name, his evidence being that the names X and Z mean the same thing and that the name X has a cultural and familial significance to him. When pressed in cross-examination, the father said that if the court found that it was in her best interests, he would agree that it is important that her legal name reflects the name she is known as.
The father's witness Mr V also gave evidence that prior to separation X was known as Z. As referred to above, I accept his evidence. The parties ultimately consented to the name change as proposed by the ICL which added the name Z, which the child is known as and responds to, while keeping the father's family name of X. I agree that this outcome is in the best interest of the child, particularly in light of the expert evidence.
The father initially sought orders that Y's middle name be changed. The father provided no evidence as to why he sought Y's name be changed, apart from saying during cross-examination that it was because "that's what we agree on, she would pick the first name I would pick the middle name".
The order for X's name to be changed to Z was made by consent. On the final day, the father did not press the order sought to change Y's name. I agree, as put by the ICL during her cross‑examination of the father, that the children's names are important and will inform their sense of identity and that X is known to all and knows herself as Z. As such, I find that it is appropriate to make this order by consent.
PAYMENT OF THE ICL’S COSTS
The ICL sought that the mother pay the ICL's costs in the amount of $5,964.75. The mother opposed this order in circumstances where her financial means she asserts are limited. There was no evidence before me as to the financial circumstances of the mother. However, it was fairly identified by counsel for the ICL, which was adopted by counsel for the mother, that the mother's circumstances are unique. Although employed she has the full time care of two children with significant special needs, she receives no financial support from the father as he is unable to earn an income due to his visa and is dependent on his own parents for support, and that is unlikely to change until the determination of his visa status which, on the evidence could take between one to two years to finalise. The entire burden of the financial care of the children rests with the mother. I accept the submissions. For those reasons, I decline to make the order proposed that the mother pay the costs of the ICL.
THE ISSUE FOR DETERMINATION
The ICL and the father sought an order that the father be permitted to obtain information from and speak to any medical practitioner or health professional who may treat the children.
Counsel for the mother contended that the mother was concerned the father would in effect unduly harass or disrupt treatment providers which may impact their willingness to provide ongoing therapy for the children. When asked, there was no evidence I was taken to that he had done so in the past or was likely to do so.
The children's previous occupational therapist and speech therapist recently ceased providing services for the children. It was not clear to on the evidence why this had occurred other than possibly increasingly difficult behaviour of Y.
Ms S gave evidence that T Psychology has a focus on therapeutic engagement with children. Her evidence was that parental conflict could interfere with the children's therapies and that their focus is on the children. She was clear that if there is conflict between the parents T Psychology may cease providing their services. Ms S, both personally and through her practice, has provided ongoing therapeutic support for Y and Z since mid-2022 commencing at W Psychology and continuing at T Psychology. She will not provide any supports or education for parents, including in this case.
If the supports for the children cease any therapeutic improvements or milestones reached may be lost resulting in therapies having to start again with new and unfamiliar therapists. This, according to the expert evidence, would likely significantly set the children's progress back.
There is not capacity to engage with parents in conflict or to engage in education with the father in this case by T Psychology. Ms S was called as the only expert as to the children's disabilities in this case. The risk to the children of such an important service provider ceasing to support such a high needs family outweighs the possible benefit to the children of the father seeking information from them. This is particularly the case when the father will receive any reports that are prepared for the NDIS from T Psychology through orders consented to for that to occur.
It is reasonable however, for the father to be able to request information from the children's other providers such as the children's paediatrician, GP or other providers of services, who may treat the children for everyday illnesses and injuries not necessarily related to NDIS. This is particularly so in circumstances where the mother is not required to notify the father of any illnesses or injuries sustained by the children, where she does not communicate with him, and where he is otherwise only able to commission a report from the children's treatment providers once per year.
As such I order that the father be permitted to request information from medical practitioners and health professionals who may treat the children, excluding T Psychology.

I certify that the preceding two hundred and fifteen (215) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Curran.
Associate:
Dated: 14 September 2023

File number(s):	SYC 9309 of 2020
Judgment of:	CURRAN J
Date of judgment:	14 September 2023
Catchwords:	FAMILY LAW – PARENTING – final hearing – final parenting orders made by consent – where the children spend no time with the father – where the mother has not facilitated time with the father – where the children have disabilities – where one child has a medical condition – where one child has 3 autism spectrum disorder – where the parties are unable to communicate – where the children have significant needs – where there are mutual allegations of family violence – whether the father should spend time with the children – whether the father’s time with the children should be supervised – whether the children are able to spend time with the father – whether the children’s names should be changed – where the father’s immigration status is pending – where orders made for sole parental responsibility – where orders made for the father to spend no time and have no communication – where the expert evidence was that the children could not cope with reintroduction to the father – where there is an unacceptable risk of harm to the children to spend time with the father – where the unacceptable risk to the children is a risk to their medical progress in therapies – where the father is authorised to request information from the children’s medical treaters
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 60CC, 61B, 61DA, 64B, 65DAA, 69ZW
Cases cited:	Amador & Amador (2009) 43 Fam LR 268 Briginshaw v Briginshaw (1938) 60 CLR 336 Fitzwater v Fitzwater (2019) 60 Fam LR 212 In the Marriage of A (1998)22 Fam LR 756 Isles & Nelissen (2022) 65 Fam LR 288 Jones v Dunkel (1959) 101 CLR 298 M v M (1988) 166 CLR 69
Division:	Division 1 First Instance
Number of paragraphs:	215
Date of hearing:	17 – 20 July 2023 and 13 September 2023
Place:	Sydney
Counsel for the Applicant:	Mr Cairns
Solicitor for the Applicant:	Kassira Law
Counsel for the Respondent:	Ms Abdelraheem
Solicitor for the Respondent:	Branston Neville
Counsel for the Independent Children's Lawyer:	Ms Treherne
Solicitor for the Independent Children's Lawyer:	Khalil Family Lawyers

SYC 9309 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR DIOP Applicant
AND:	MS GUEYE Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CURRAN J
DATE OF ORDER:	14 SEPTEMBER 2023