Donlon & Donlon - [2022] FedCFamC1F 57

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Donlon & Donlon [2022] FedCFamC1F 57

File number(s): SYC 2184 of 2017

Judgment of: SCHONELL J

Date of judgment: 14 February 2022

Catchwords: FAMILY LAW – PARENTING – Where the father seeks an order for sole parental responsibility and the mother also seeks an order for sole parental responsibility – Where the father alleges that the mother may abduct the children and relocate them to Country Z – Where the mother alleges that the children are at risk in the father’s care because of allegations that he sexually abused his half-sister when they were children – Consideration of what is in the children’s best interests – Consideration of whether there is an unacceptable risk if the children are in the unsupervised care of the father – Where it was found that there is an unacceptable risk – Consideration of whether supervised time for the purposes of identity contact with the father is appropriate – Consideration of whether the mother should be able to travel overseas with the children – Where orders are made for the mother to have sole parental responsibility and for the children to live with the mother – Where orders are made for the children to spend supervised time with the father for the purposes of identity contact – Where orders are made for the mother to be able to travel with the children after 18 months from the date of the orders.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 60CA, 61DA, 65DAA

Cases cited:
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

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

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

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Division: Division 1 First Instance

Number of paragraphs: 239

Date of hearing: 31 January 2022 – 4 February 2022

Place: Sydney

Counsel for the Applicant: Mr Greenaway

Solicitor for the Applicant: David H. Cohen & Co.

Counsel for the Respondent: Mr Mando

Solicitor for the Respondent: Pinnacle Lawyers

Counsel for the Independent Children's Lawyer: Ms Karagiannis

Solicitor for the Independent Children's Lawyer: Legal Aid NSW
ORDERS

SYC 2184 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR DONLON

Applicant

AND:
MS DONLON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

14 FEBRUARY 2022

THE COURT ORDERS THAT:
1.That the respondent mother (“the mother”) have sole parental responsibility for the children X born 2013 and Y 2015 ("the children").
2.That the children live with the mother.
3.That the mother and the father shall each keep the other informed of an email contact address, which they can use to communicate solely for the purposes of matters arising from the implementation of these Orders.
4.That the mother inform the father as soon as is practicable in the event of any medical or other emergency relating to the children.
5.That within 14 days the mother do all things necessary to contact the N Psychologists (or other service proposed by the ICL) to arrange for the children to meet with a child therapist to provide the children with psychological and therapeutic support and the mother shall:
(a)Provide the N Psychologists with a copy of these Orders and Reasons for Judgment;
(b)Follow all reasonable directions of the N Psychologists including facilitating the children's attendance upon the therapist as and when is required;
(c)Following all reasonable recommendations of the N Psychologists including attending to any further referrals that the therapist may recommend for the children or each of them;
(d)Pay all costs associated with the children's therapy; and
(e)In the event that the mother has not arranged for the children to engage with such therapist within 3 months of the date of these orders, the father's time pursuant to paragraph 8 of these orders shall proceed.

6.That within 14 days the parties do all things necessary to enrol in, attend and complete the course "Keeping Kids in Focus" run through the E Group and each party shall be solely responsible for their own costs of participating in this course.
7.That within 14 days the parties do all things necessary to contact F Contact Service (or such other supervisory service as may be agreed) to arrange for re-engagement with the supervised contact service.
8.That the children spend time with the father under the supervision of F Contact Service (or such other supervisory service as may be agreed) on four separate occasions in each calendar year and for the purposes of that supervision:
(a)Unless otherwise agreed, the father's time with the children shall occur on the first Saturday in March, June, September and December of each year, save and except in the 2022 year, in which the father's first period of time with the children shall occur unless otherwise agreed on the first Saturday in June 2022;
(b)The parties shall follow all rules and directions of the Contact Centre;
(c)The father shall be solely responsible for the costs of supervised time at the Centre;
(d)The father shall be permitted to give the children appropriate gifts, cards and letters in accordance with the rules of the Contact Service;
(e)The children shall attend for supervised time with the father until they attain the age of 15 years and thereafter they shall be permitted to attend in accordance with their wishes.

9.That in the event that the father cancels time arranged pursuant to these provisions on two consecutive occasions, the time spent at the Centre thereafter shall be suspended.
10.That the Independent Children's Lawyer has leave to provide a copy of these Orders and Reasons for Judgement to F Contact Service or other agreed service.
11.That both parties be and are hereby restrained from the following pursuant to Section 68B of the Family Law Act 1975:
(a)Denigrating either parent or that parent's family to or in the presence or hearing of the children;
(b)Discussing any aspect of these proceedings with the children;
(c)Showing or reading to the children any Court documents and or Reports filed in these proceedings;
(d)Questioning the children about the other parent's household;
(e)Relocating the children's residence outside the Commonwealth of Australia;
(f)Showing or reading to the children any email communication sent as between the parents;
(g)Filming and or recording the other parent; and
(h)Contacting or attempting to contact the other parent via social media.

12.That for the personal protection of the mother and the children, the father be and is hereby restrained by injunction from entering at or coming within 100 metres of the place of residence of the mother and the children and any school or educational institution attended by the children.
13.That the father be and is hereby restrained by injunction from contacting or attempting to contact the children via social media and / or skype.
14.That the mother be and is hereby restrained by injunction from:
(a)Changing the children's names including either formally or informally for any purpose whatsoever; and
(b)Making an application for the children to have citizenship with Country Z or to hold a Country Z Passport without the written consent of the father.

15.That the father be at liberty to provide a copy of these Orders to the Country Z Consulate.
16.That the father is hereby restrained from removing the children from the Commonwealth of Australia and the father, Mr Donlon born 1973 and his servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the children X born 2013 (also known as X) and Y 2015 (also known as Y) ("the children") from the Commonwealth of Australia.
17.That the mother for a period of 18 months from the date of this order is hereby restrained from removing the children from the Commonwealth of Australia and the mother, Ms Donlon born 1986 and her servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the children X born 2013 (also known as X) and Y 2015 (also known as Y) ("the children") from the Commonwealth of Australia.
18.It is requested that the Australian Federal Police give effect to this order by placing the name/names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist for the said period, or until the Court orders its removal.
19.Within six (6) months, the father shall pay to Legal Aid NSW the sum of $11,637.00 being half of the costs of the independent representation of the children herein.

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

The applicant father (“the father”) and the respondent mother (“the mother”) in these proceedings are the parents of two children, X born in 2013 and Y born in 2015. The parties finally separated in January 2017 and since separation the children have remained in the mother's primary care.
The father commenced proceedings on 6 April 2017. For approximately nine months after separation, the father spent no time with the children other than on one occasion on 4 June 2017 for two hours.
On 15 September 2017, further orders implemented a regime of time initially in the presence of the father’s mother for four hours and after three months one day each week from 10.00 am to 5.00 pm. Time continued until 8 July 2019, where following the release of an expert psychiatric report orders were made for sole parental responsibility to the mother and supervised time at a contact centre each alternate Saturday. Time at the centre ceased in November 2020.
Each party contends there are risk factors. The father contends the mother has alienated the children, that she has attempted to groom the children to be Country Z spies, that she has links to Country Z espionage and to criminal organisations, that there was an assassination attempt on his life, that she may abduct the children and attempt to relocate them permanently to Country Z and that the children were not safe.
The mother contends that there are numerous concerns about the father including his mental health, that he poses a risk because of allegations of past sexual assault on his half-sister, that he committed acts of family violence during the relationship and that he poses a risk to their safety and welfare. Each party denies the others allegations.
For the reasons, which follow, I have determined that there is a risk of harm to the children in the father's care. I have determined that it is in the children's best interests that they live with their mother, that she have sole parental responsibility and that orders be crafted largely in accordance with the recommendations of the Independent Children’s Lawyer (“ICL”). I note that such proposals accord with the recommendations of both the expert psychiatrist Dr O and the family report writer Ms P.
FATHER’S ISSUES IN DISPUTE
The following matters were identified by the father as the issues in dispute (Exhibit 6):
1. With whom the children should primarily reside.
2. To whom sole parental responsibility should be granted.
3.The time the children should spend with the other parent, and whether such time should be initially supervised.
4.Whether the mother should be permitted to remove the children from the Commonwealth of Australia.
5.Whether the mother should be restrained from changing the names of the children both in Australia and with Country Z.
6.Whether or not the mother has prevented a meaningful relationship of the children with the father, and if so the likely effect upon the children in the short and long term.
7.The likely effect upon the children upon the making of the respective orders sought by each party in the short and long term.
8.Whether the allegations of the mother as to sexual abuse by the father upon his sister are an unacceptable risk to as to the children.
9.Whether the father has any mental health issues which may effect (sic) his parenting ability.
MOTHER’S ISSUES IN DISPUTE
The following matters were identified by the mother as the issues in dispute (Exhibit 6):
1Parental Responsibility;
2Who the children will live with and how much time if any, will the children spend with the other parent;
3Whether time spent with the other parent who the children do not reside with is supervised and payment for that service;
4Whether or not, Ms Donlon has connections with Country Z organised crime networks and whether or not it poses a risk to the children;
5Whether or not the (sic) Mr Donlon has a gambling addiction and whether or not this may pose a risk to the children;
6Whether or not Mr Donlon has a history of perpetrating and experiencing childhood sexual abuse and if so whether or not this might affect his parenting;
7Whether or not Mr Donlon suffers from any form of mental health conditions and:
a        Whether this has been properly diagnosed or not?
b        How, if mental conditions exist be treated and by whom?
c        How, if mental conditions exist may affect his parenting?
d        How, if mental conditions exist, may be a risk to the children?
8Are there any risks associated with the children, if they have contact with the applicant father's family;
9Possible overseas abduction of the children; and
10Whether or not the children remain on the airport watch list.
BACKGROUND AND RELEVANT PROCEDURAL HISTORY
The father was born in Australia in 1973 and is currently aged 48 years.
The mother was born in Country Z in 1986 and is currently aged 35 years.
The parties met and commenced a relationship while working together in or around October 2009. They became engaged in May 2010 and were married in Country Z in 2011.
The mother applied for a visa and migrated to Australia in or about August 2012.
As stated earlier, the parties have two children X born in 2013 and Y born in 2015. The children are currently eight and six years of age respectively.
The parties separated in January 2017, when the mother left the matrimonial home with the children and went to stay at a refuge.
The father commenced family law proceedings in the Federal Circuit Court of Australia on 6 April 2017.
On 31 May 2017, orders were made by consent for the father to spend supervised time with the children on 4 June 2017 and for the children to be placed on the Airport Watchlist.
Following separation, except for the one occasion on 4 June 2017, the father did not see the children again until orders were made by Judge Harper (as he was then) on 15 September 2017.
These orders provided for the father to initially spend time with the children for a period of three months in the presence of the children's paternal grandmother Ms B and, thereafter, to spend unsupervised time with the children.
On or about 7 July 2017, the car used by the mother was removed from its place outside the refuge occupied by her and the children. The mother asserts that the father found out where she was residing with the children and removed the car. The father denied removing the car.
Following this event, the mother moved to stay at another refuge.
On 15 January 2018, the mother filed for divorce. The father filed a response on 19 March 2018 seeking to dismiss the application for divorce on the basis that proper arrangements for care, welfare and development of the children had not been made, and that the marriage was subject to an investigation by the Department of Home Affairs for being a contrived marriage.
On 4 March 2018, the father failed to return the children to the mother’s care. The father asserted that he did not return the children because he had concerns that she was going to remove them from Australia and take them to Country Z with the assistance of her friend.
On 6 March 2018, orders were made for the father to return the children to the mother and for both parties to surrender their passports.
On 7 March 2018, the father reported the mother's friend to the Australian Federal Police on the basis that he had received information from their daughter X that there were possible arrangements in place to remove the children from Australia.
On 12 March 2018, the father attended X's school and had his details added to her enrolment in circumstances where the mother had failed to include the father’s details on the enrolment documents.
On 16 March 2018, the father received a visit from two officers of the New South Wales Family and Community Services ("FACS") after the mother made a complaint to them about the father.
On 24 March 2018, the father collected the children from F Contact Service ("F Contact Service"). The mother made a complaint to the police and alleged that the father had abducted the children. The father phoned the police and informed them that he would return the children at 6.00 pm that day in accordance with the court orders of 15 September 2017.
On 28 March 2018, the mother made a complaint to the Legal Services Commissioner about the father’s solicitor.
On 30 March 2018, the father requested that the police conduct a welfare check on the children. He asserted that this was because he was unable to communicate with the children as the mother had disconnected her phone.
On 1 April 2018, the mother failed to facilitate face-to-face contact between the father and the children as she had been injured in March 2018 and was unable to drive.
On 13 April 2018, the mother went to the Country Z Consulate General in Sydney seeking protection from the father who was accusing her of trying to take the children to Country Z.
On 4 May 2018, FACS wrote to the father and informed him that the child protection file had been closed as it had not been established that there was a high level of risk to the children.
On 8 May 2018, a contravention application was filed by the father. The father asserted that the mother contravened the orders of 15 September 2017 by failing to facilitate phone conversations between the father and the children. He also alleged that the mother contravened the orders of 6 March 2018 by failing to surrender her passport to the Court.
On 26 September 2018, orders were made allowing the mother's solicitor to hold her passport or passports for her on his undertaking that he would not return them to the mother without an order from the Court. Further on, orders on 19 December 2018 were made to allow the mother's solicitor to attend the Department of Home Affairs with the mother and deliver her passport to an officer of the Department of Home Affairs on the basis that it would be returned to and kept by the solicitor.

On 8 July 2019, all previous parenting orders were discharged and orders were made that the father attend upon a forensic psychiatrist; that the children be placed on the Watchlist; that the mother have sole parental responsibility of the children with the exception of changing their names; and that the father spend time with the children under supervision at F Contact Service. The mother was also ordered to facilitate phone conversations between the father and the children via Skype and/or facetime.
On 4 November 2019, orders were made allowing the father's treating clinical psychiatrist Dr H to be deemed a forensic psychiatrist for the purposes of the orders made on 8 July 2019.
On 5 November 2019, the ICL wrote to Dr H and informed him that he was deemed a forensic psychiatrist for the purposes of the orders made on 8 July 2019.
In November 2019, several men with firearms broke into the father's home located at J Street, Suburb D NSW. The father was not living there at the time of the break in.
On 27 March 2020, F Contact Service closed due to COVID-19. It was reported that there were a couple of weeks where there was no contact between the father and children except for Skype sessions facilitated by the parents.
On 9 May 2020, the family was brought back to F Contact Service, with the visit being facilitated via Zoom. Significant negative changes in the children's behaviour became apparent and face-to-face supervision at F Contact Service resumed on 23 May 2020.
On or around 30 November 2020, the father's supervised time with the children at F Contact Service was suspended because of the children's disruptive behaviour and concerns about comments made by the father. The father was also unwilling to meet the children at F Contact Service because of safety concerns arising from his beliefs about Country Z espionage.
Between November 2020 and September 2021, the father asserted that only about 10% of Skype conversations with the children occurred.
After September 2021, no Skype communication between the father and the children occurred.
On 2 December 2020, an expedition application was made by the father. The application was refused on 16 December 2020 and it was ordered that the matter be allocated the first less adversarial trial before any judge.
The father is currently residing in a three-bedroom apartment owned by his friend, with whom he has a private rent arrangement. He did not wish to disclose where he is residing as he does not want the mother to know where he lives.
The mother currently resides with the children and a female friend at the friend's property. The mother did not wish to disclose her address or describe the property for fear that the father would find out where she is residing.
The trial commenced on 31 January 2022 and concluded on 4 February 2022.
THE FATHER’S PROPOSALS
At the commencement of the hearing the father sought orders as set out below (Exhibit 1):
1.That the children, X born 2013 and Y born 2015 live with the Father.
2.That the Father have sole parental responsibility for each of the children provided that:
(a)The Father shall notify the Mother in writing of any proposed change of school which the children or either of them are to attend, not less than 28 days prior to such proposed change;
(b)The Father shall ensure that the details of the Mother are included in the enrolment details for the children and each of them in each school or schools which the children or either of them may from time-to-time attend;
(c)The Father shall authorize the school or schools which the children or either of them may from time-to-time attend, to provide the Mother with copies of school reports and all other documents which parents would ordinarily receive and for the purpose of authorization by the Father, this order shall be deemed sufficient.
3.That in the event that the children or either of them suffer any illness or accident which requires admission to hospital, the Father as soon as practicable shall notify the Mother in writing of the details of same including but not limited to the hospital of admission.
4. That the Mother spend time with the children as follows:
(a)For an initial period of three months supervised;
(b)Then for a further period 3 months, each (Saturday or Sunday) from 10am until 5pm;
(c)Then for a further period of 3 months each alternate weekend from 10am Saturday until 5pm the following Sunday;
(d)Thereafter each alternate weekend from after school Friday until commencement of school the following Monday, or Tuesday in the event of a public holiday, together with one half of each school holiday period and special days;
(e)That whilst the children are with the Father, the Mother be permitted to communicate with the children by “Skype” each Wednesday at 6.30pm with the Mother initiating such communication and the Father shall ensure that the children are available for such communication;
(f)In addition to order (e), the Father shall permit the children to communicate with the Mother at all reasonable times upon their request.
5.That neither party denigrate the other in the presence and hearing of the children or either of them, nor permit any third party so to do.
6.That for the purposes of facilitating the Orders for time with the children the Mother shall cause the children to be delivered to the Father at a Contact Centre at the commencement of and the Father shall cause the children to be delivered to the Mother at a Contact Centre at the end of such time, unless such changeover is to occur at school.
7.That the Father continue to attend upon Dr H as recommended by him, or in the event that Dr H becomes unavailable such other psychiatrist as may be recommended by Dr H.
ORDERS SOUGHT BY THE FATHER IN THE EVENT THAT THE COURT DOES NOT MAKE ORDERS PURSUANT TO ORDERS ONE (1) AND TWO (2) OF THE ORDERS SOUGHT BY THE FATHER
8.That the children live with the Mother.
9.That the Mother have sole parental responsibility for each of the children provided that:
(a)The Mother shall notify the Father in writing of any proposed change of school which the children or either of them are to attend, not less than 28 days prior to such proposed change;
(b)The Mother shall ensure that the details of the Father are included in the enrolment details for the children and each of them in each school or schools which the children or either of them may from time-to-time attend;
(c)The Mother shall authorize the school or schools which the children or either of them may from time-to-time attend, to provide the Father with copies of school reports and all other documents which parents would ordinarily receive and for the purpose of authorization by the Mother, this order shall be deemed sufficient; and
(d)That in the event that the children or either of them suffer any illness or accident which requires admission to hospital, the Mother as soon as practicable shall notify the Father in writing of the details of same including but not limited to the hospital of admission.
10. That the Father spend time with the children as follows:
(a)For an initial period of three months, supervised;
(b)Then for a further period 3 months, each (Saturday or Sunday) from 10am until 5pm unsupervised;
(c)Then for a further period of 3 months each alternate weekend from 10am Saturday until 5pm the following Sunday;
(d)Thereafter each alternate weekend from after school Friday until commencement of school the following Monday, or Tuesday in the event of a public holiday, together with one half of each school holiday period and special days.
11.That for the purposes of facilitating Orders for time with the children, the Mother shall cause the children to be delivered to the Father at a Contact Centre at the commencement of and the Father shall cause the children to be delivered to the mother at a Contact Centre at the end of such time, unless such changeover is to occur at school.
12.That whilst the children are with the Mother, the Father be permitted to communicate with the children by “Skype” each Wednesday at 6.30pm with the Father initiating such communication and the Mother shall ensure that the children are available for such communication;
13.That the Father continue to attend upon Dr H as recommended by him, or in the event that Dr H becomes unavailable such other psychiatrist as may be recommended by Dr H.
14.That until further Order, each party Mr Donlon born 1973 and Ms Donlon born 1986, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said children X born 2013 and Y born 2015 from the Commonwealth of Australia.
15.That the Mother be and is hereby restrained by injunction from changing or attempting to change the names of the children or either of them and that such restraint and injunction upon the Mother shall include but is not limited to changing or attempting to change the names of the children, or either of them in or with Country Z.
16.Leave granted to the Father to serve a sealed copy of these Orders upon the Country Z Embassy Canberra.
During submissions, the father’s counsel indicated that in the event that the Court found against each of his alternate proposals, he would then agree with some of the orders proposed by the ICL. Consequentially, the father was directed to file a further Minute of Orders identifying his position. A consolidated Minute of Orders was filed, becoming Exhibit 18, and is recorded below:
1.That the children, X born 2013 and Y born 2015 live with the Father.
2.That the Father have sole parental responsibility for each of the children provided that:
(a)The Father shall notify the Mother in writing of any proposed change of school which the children or either of them are to attend, not less than 28 days prior to such proposed change;
(b)The Father shall ensure that the details of the Mother are included in the enrolment details for the children and each of them in each school or schools which the children or either of them may from time-to-time attend;
(c)The Father shall authorize the school or schools which the children or either of them may from time-to-time attend, to provide the Mother with copies of school reports and all other documents which parents would ordinarily receive and for the purpose of authorization by the Father, this order shall be deemed sufficient.
3.That in the event that the children or either of them suffer any illness or accident which requires admission to hospital, the Father as soon as practicable shall notify the Mother in writing of the details of same including but not limited to the hospital of admission.
4.That the Mother spend time with the children as follows:
(a)For an initial period of three months supervised;
(b)Then for a further period 3 months, each (Saturday or Sunday) from 10am until 5pm;
(c)Then for a further period of 3 months each alternate weekend from 10am Saturday until 5pm the following Sunday;
(d)Thereafter each alternate weekend from after school Friday until commencement of school the following Monday, or Tuesday in the event of a public holiday, together with one half of each school holiday period and special days;
(e)That whilst the children are with the Father, the Mother be permitted to communicate with the children by “Skype” each Wednesday at 6.30pm with the Mother initiating such communication and the Father shall ensure that the children are available for such communication;
(f)In addition to order (e), the Father shall permit the children to communicate with the Mother at all reasonable times upon their request.
5.That neither party denigrate the other in the presence and hearing of the children or either of them, nor permit any third party so to do.
6.That for the purposes of facilitating the Orders for time with the children the Mother shall cause the children to be delivered to the Father at a Contact Centre at the commencement of and the Father shall cause the children to be delivered to the Mother at a Contact Centre at the end of such time, unless such changeover is to occur at school.
7.That the Father continue to attend upon Dr H as recommended by him, or in the event that Dr H becomes unavailable such other psychiatrist as may be recommended by Dr H.
ORDERS SOUGHT BY THE FATHER IN THE EVENT THAT THE COURT DOES NOT MAKE ORDERS PURSUANT TO ORDERS ONE (1) AND TWO (2) OF THE ORDERS SOUGHT BY THE FATHER
8. That the children live with the Mother.
9.That the Mother have sole parental responsibility for each of the children provided that:
(a)The Mother shall notify the Father in writing of any proposed change of school which the children or either of them are to attend, not less than 28 days prior to such proposed change;
(b)The Mother shall ensure that the details of the Father are included in the enrolment details for the children and each of them in each school or schools which the children or either of them may from time-to-time attend;
(c)The Mother shall authorize the school or schools which the children or either of them may from time-to-time attend, to provide the Father with copies of school reports and all other documents which parents would ordinarily receive and for the purpose of authorization by the Mother, this order shall be deemed sufficient; and
(d)That in the event that the children or either of them suffer any illness or accident which requires admission to hospital, the Mother as soon as practicable shall notify the Father in writing of the details of same including but not limited to the hospital of admission.
10. That the Father spend time with the children as follows:
(a)For an initial period of three months, supervised;
(b)Then for a further period 3 months, each (Saturday or Sunday) from 10am until 5pm unsupervised;
(c)Then for a further period of 3 months each alternate weekend from 10am Saturday until 5pm the following Sunday;
(d)Thereafter each alternate weekend from after school Friday until commencement of school the following Monday, or Tuesday in the event of a public holiday, together with one half of each school holiday period and special days.
11.That for the purposes of facilitating Orders for time with the children, the Mother shall cause the children to be delivered to the Father at a Contact Centre at the commencement of and the Father shall cause the children to be delivered to the mother at a Contact Centre at the end of such time, unless such changeover is to occur at school.
12.That whilst the children are with the Mother, the Father be permitted to communicate with the children by “Skype” each Wednesday at 6.30pm with the Father initiating such communication and the Mother shall ensure that the children are available for such communication;
13.That the Father continue to attend upon Dr H as recommended by him, or in the event that Dr H becomes unavailable such other psychiatrist as may be recommended by Dr H.
14.That until further Order, each party Mr Donlon born 1973 and Ms Donlon born 1986, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said children X born 2013 and Y born 2015 from the Commonwealth of Australia.
15.That the Mother be and is hereby restrained by injunction from changing or attempting to change the names of the children or either of them and that such restraint and injunction upon the Mother shall include but is not limited to changing or attempting to change the names of the children, or either of them in or with Country Z.
16.Leave granted to the Father to serve a sealed copy of these Orders upon the Country Z Embassy Canberra.
ORDERS SOUGHT BY THE FATHER IN THE EVENT THAT THE COURT DOES NOT MAKE ORDERS PURSUANT TO ONE (1) T0 SEVEN (7) OR ALTERNATIVELY ORDERS EIGHT (8) TO SIXTEEN (16) OF THE FATHER’S PROPOSED MINUTE OF ORDERS BEING EXHIBIT ONE (1) IN THE PROCEEDINGS.
1.That the Mother have sole parental responsibility for the children, X born 2013 and Y 2015 (“the children”).
2.That the children live with the Mother.
3.That the Mother and the Father keep each other informed of an email contact address by which they can use to solely communicate matters arising from the implementation of these Orders.
4.That the Mother inform the Father as soon as is practicable in the event of any medical or other emergency relating to the children by way of email.
5.That within 14 days the Mother do all things necessary to contact the N Psychologists (or other service proposed by the ICL) to arrange for the children to meet with a child therapist to provide the children with psychological and therapeutic support and the Mother shall:-
a.Provide the N Psychologists with a copy of these Orders;
b.Follow all reasonable directions of the N Psychologists including facilitating the children’s attendance upon the therapist as and when is required;
c.Following all reasonable recommendations of the N Psychologists including attending to any further referrals that the therapist may recommend for the children or each of them;
d.Pay all costs associated with the children’s therapy; and
e.In the event that the mother has not arranged for the children to engage with such therapist within 3 months of the date of these orders, the father’s time pursuant to paragraph 8 of these orders shall proceed.
6.That within 14 days the parties do all things necessary to enrol to attend in and complete the course “Keeping Kids in Focus” run through the E Group … and each party shall be solely responsible for their own costs of participating in this course.
7.That within 14 days the parties do all things necessary to contact F Contact Service … (or such other supervisory service as may be agreed) to arrange for re-engagement with the supervised contact service.
8.That the children spend time with the Father under the supervision of F Contact Service (or such other supervisory service as may be agreed) on four separate occasions (at approximately 3 monthly intervals) with each calendar year and for the purposes of that supervision:
a.The parties shall follow all rules and directions of the Contact Centre;
b.The Father shall be solely responsible for the costs of supervised time at the Centre;
c.The Father shall be permitted to give the children appropriate gifts, cards and letters in accordance with the rules of the Contact Service;
d.The children shall attend for supervised time with the Father until they attain the age of 15 years and thereafter they shall be permitted to attend in accordance with their wishes.
9.That in the event that the Father cancels time arranged pursuant to these provisions on two consecutive occasions, the time spent at the Centre thereafter shall be suspended.
10.That the Independent Children’s Lawyer has leave to provide a copy of these Orders and Reasons for Judgement to F Contact Service or other agreed service.
11.That both parties be and are hereby restrained from the following pursuant to Section 68B of the Family Law Act 1975:
a.Denigrating either parent or that parent’s family to or in the presence or hearing of the children;
b.Discussing any aspect of these proceedings with the children;
c.Showing or reading to the children any Court documents and or Reports filed in these proceedings;
d.Questioning the children about the other parent’s household;
e.Relocating the children outside the Commonwealth of Australia;
f.Showing or reading to the children any email communication sent as between the parents;
g.Filming and or recording the other parent; and
h.Contacting or attempting to contact the other parent via social media.
12.That for the personal protection of the Mother and the children, the Father be and is hereby restrained by injunction from entering at or coming within 100 metres of the place of residence of the Mother and the children and any school or educational institution attended by the children.
13.That the Father be and is hereby restrained by injunction from contacting or attempting to contact the children via social media and / or skype.
14.That the Mother be and is hereby restrained by injunction from:
a.Changing the children’s names including either formally or informally for any purpose whatsoever; and
b.Making an application for the children to have citizenship with Country Z or to hold Country Z Passport without the written consent of the Father.
15.That the Father be at liberty to provide a copy of these Orders to the Country Z Consulate.
16.That the parties be and are hereby restrained from removing the children from the Commonwealth of Australia AND each party, Mr Donlon born 1973 and Ms Donlon born 1986 their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the children X born 2013 (also known as X) and Y 2015 (also known as Y) (“the children”) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist for the said period, or until the Court orders its removal.
17.Within 6 months, the Father shall pay to Legal Aid NSW the sum of $11,637.00 being half of the costs of the independent representation of the children herein.
DOCUMENTS RELIED UPON BY THE FATHER

The father relied upon the following documents:
(1)Affidavit of father sworn 21 January 2022;
(2)Affidavit of Ms B sworn 1 February 2022; and
(3)Medical reports of Dr H dated 4 July 2017, 16 December 2019 and 17 July 2020.
THE FATHER’S WITNESSES
The father, the paternal grandmother and the father’s consultant psychiatrist, Dr H, gave evidence and were cross-examined by both counsel for the mother and the ICL, save and except in the case of the paternal grandmother, who was not cross-examined by the mother's counsel.
The father’s evidence was at times tangential, non-responsive and did not engage directly with the question that was asked. When the father answered questions directed to him particularly by the representative for the ICL, he did not demonstrate insight into the needs of his children and the impact that his proposals would have on them. Whilst he acknowledged that a separation of the children from their mother would be upsetting for them, he did not demonstrate significant insight into the troubles that he would face in caring for the children particularly given his own experience of difficulties engaging with them during periods of supervised time and the obvious loss that would be occasioned by the orders he sought.
It is clear from the evidence of his treating psychiatrist that the father did not disclose to him a complete history including his past involvement with the police, his concerns about the mother’s involvement with Country Z espionage or about the assassination attempt on his life. I treat the father’s evidence with caution.
The father's treating psychiatrist Dr H was cross-examined. He commenced treating the father in June 2017 and has for at least the last two years seen the father at approximately six-weekly intervals. He prepared three reports. I accept that Dr H is an experienced consultant psychiatrist. He acknowledged he is not a forensic psychiatrist. He impressed as a highly professional and skilled psychiatrist. He did not present as an advocate for the father's case but rather attempted to assist the Court by carefully answering all questions he was asked and making appropriate concessions.
It is apparent, however, that he was not aware of all of the facts in the case and was not aware of many of the matters that were the subject of the evidence and in particular assertions made by the father. Dr H, during the course of cross-examination conceded that there was information that had been withheld from him including: that the father did not tell him about being questioned by the police in relation to the allegations of sexual assault of his half-sister, which he said he would have expected the father to inform him about; that the father did not tell the doctor that he believed he had been followed; that the father did not inform him that he believed that there had been an assassination attempt on his life by Country Z spies when they came to his home; or that time at the contact centre had been suspended in part at the request of the father out of fear that he might be assassinated or disappear.
Dr H agreed that the conclusion in his report that the father denied any suspiciousness was inconsistent with statements made by the father as referred to earlier, about which he was not aware. Dr H agreed that the father's assertions of a risk of assassination and assassination attempts on his life could be viewed as a delusional thought process.
As a consequence of the deficits in his knowledge due to the father’s failure to fully inform him of all relevant matters, I place no weight on the opinions expressed by Dr H regarding the father’s mental health. To the extent that it conflicts with the evidence of the single expert psychiatrist Dr O, I accept her opinions.
The father sought leave to call evidence from the paternal grandmother. The affidavit was filed on the second day of the trial and counsel for the mother objected to leave being granted. The mother's objection was based upon the late filing of the affidavit in circumstances where trial affidavits were required to be filed by 21 January 2022 and in those circumstances, this affidavit was filed approximately ten days after the filing date. Consequentially, the mother’s counsel submitted there was prejudice occasioned to the mother in not being able to meet it. The mother's counsel also contended that the evidence was irrelevant. In light of such submission, one wonders what mischief could have been occasioned by its admission into evidence and why it was the subject of objection.
In light of the mother's counsel's submissions as to prejudice, he was asked whether he would wish to seek an adjournment. Counsel for the mother indicated that he would not be seeking an adjournment. Leave was granted as the Court considered it relevant evidence. Curiously and despite the assertions by the mother's Counsel as to prejudice, when leave was granted to rely upon the affidavit, the mother's counsel did not seek to cross-examine.
The paternal grandmother was cross-examined by the ICL. She maintained the assertions and denials contained in her affidavit.
THE MOTHER’S PROPOSAL
At the commencement of the hearing the mother sought orders as set out below:
1.That the children of the marriage X born 2013 and Y born 2015 live with the mother.
2.The mother is to have sole parental responsibility of the children.
3.That the father spends no time with the children.
4.That the father is hereby restrained from attending at the mother's residential address, work address or children's school.
5.That the names of the children (X and Y) be removed from the Airport Watch List.
6.That the passport of the Respondent - Ms Donlon in the possession of Pinnacle Lawyers be returned to the Respondent.
7.Costs be awarded to the Respondent for the proceeding.
During submissions, the mother’s counsel was asked what orders in the ICL's Minute of Orders she agreed with. Her counsel indicated there were some orders with which the mother agreed with. Consequentially, the mother was directed to file a further Minute identifying her position. The mother filed a further Minute, which was more than just a consolidated Minute and includes new orders about which no party had notice or the ability to respond. No leave to reopen was requested. To have regard to those new orders not addressed in either the evidence or submissions would be unfair and they will be ignored. The mother’s new orders are as follows:
1.That the Mother have sole parental responsibility for the children X born 2013 and Y 2015 (“the children”).
2.That the children live with the Mother.
3.That the children have no contact with the Father.
4.In the alternative, the children spend time with the Father under the supervision of F Contact Service (or such other supervisory service as may be agreed) on two separate occasions each calendar year and for the purposes of that supervision:
a.That prior to contact occurring the Father will be required to attend and provide proof of consultations and treatment with a forensic psychiatrist to;
(i)Diagnose any mental illness;
(ii)Continue treatment and consultations as necessary; and
(iii)Follow the advise and recommendations provided, including treatment, medication and any further treatment for mental illness.
(iv)Once the Contact Centre and the Mother are satisfied with the progression and treatment of the Father, then contact can occur.
(v)That the forensic psychiatrist is provided with a copy of Dr O’s report dated 5 June 2019, Ms P report dated 6 December 2021 and Ms K’s affidavit dated 22 January 2022.
b.The parties shall follow all rules and directions of the Contact Centre;
c.The Father shall be solely responsible for the costs of supervised time at the Centre;
d.The Father shall be permitted to give the children appropriate gifts, cards and letters in accordance with the rules of the Contact Service;
e.The children shall attend for supervised time with the Father until they attain the age of 15 years and thereafter they shall be permitted to attend in accordance with their wishes.
5.That within 28 days the Mother do all things necessary to a child psychologist to arrange for the children to attend psychological and therapeutic support. This therapist location shall be kept confidential from the Father. The Mother shall:-
a.Provide the child psychologist with a copy of these Orders;
b.Follow all reasonable directions of the child psychologist including facilitating the children’s attendance upon the therapist as and when is required;
c.Following all reasonable recommendations of the child psychologist including attending to any further referrals that the therapist may recommend for the children or each of them;
d.Pay all costs associated with the children’s therapy.
6.That within 28 days the parties do all things necessary to enrol to attend in and complete “Keeping Kids in Focus” course (or similar course) and each party shall be solely responsible for their own costs of participating in this course.
7.That both parties be and are hereby restrained from the following pursuant to Section 68B of the Family Law Act 1975:
a.Denigrating either parent or that parent’s family to or in the presence or hearing of the children;
b.Discussing any aspect of these proceedings with the children;
c.Showing or reading to the children any Court documents and or Reports filed in these proceedings;
d.Questioning the children about the other parent’s household, or household or school location;
e.Relocating the children outside the Commonwealth of Australia;
f.Showing or reading to the children any email communication sent as between the parents;
g.Filming and or recording the other parent; and
h.Contacting or attempting to contact the other parent via social media.
8.That for the personal protection of the Mother and the children, the Father or his family be and is hereby restrained by injunction from contacting, entering at or coming within 100 metres of the place of residence of the Mother and the children and any school or educational institution attended by the children.
9.That the Father be and is hereby restrained by injunction from contacting or attempting to contact the children via social media and / or skype.
10.That the Mother be and is hereby restrained by injunction from:
a.Changing the children’s names including either formally or informally for any purpose whatsoever; and
b.Making an application for the children to have citizenship with Country Z or to hold Country Z Passport without the written consent of the Father prior to the children turning 16 years old.
11.That the Father be at liberty to provide a copy of these Orders to the Country Z Consulate.
12.That the Mother and Father have no contact with each other whatsoever.
13.That the children be removed from the airport watchlist and the Mothers passport returned so the family may travel should they wish to do so.
14.That in the event the Mother becomes incapacitated or passes away, the Father does not get custody of the children by default.
15.Within 28 days, the Father shall pay to Legal Aid NSW the sum of $11,637.00 being half of the costs of the independent representation of the children herein.
16.Such further order as this Honourable Court deems appropriate.
NOTATION:
A.It is agreed that the children have not spent time face to face time with the Father since November 2020.
B.It is agreed that the children spent time with the Father under supervision at F Contact Service for the period from 20 July 2019 to 28 November 2020 inclusive for 2 hours once per fortnight and that that service was suspended by the Centre.
C.It is noted that the Mother is from Country Z and holds a Country Z Identity Card. The Mother maintains that the children do not hold Country Z Passports or Country Z Citizenship.
D.It is noted that the Mother agrees to leave a deposit, work agreement or whatever the court deems necessary should the family wish to travel overseas.
E.It is agreed that the child psychologist, therapist at the N Psychologists or other agreed service is at liberty to contact F Contact Service if necessary (and vice versa), to support the children in spending supervised time with the Father.
DOCUMENTS RELIED UPON BY THE MOTHER
The mother relied upon the following documents:
(1)Affidavit of mother sworn 25 January 2022; and
(2)Affidavit of Ms K sworn 22 January 2022.
THE MOTHER’S WITNESSES
The mother and Ms K (the father's half-sister) gave evidence and were cross-examined by counsel for the father and the ICL.
The mother was an unimpressive witness. She consistently sought to avoid engaging with questions, was evasive, and sought to add at times matters that were not responsive to the question. Many of her answers involved speeches or attempts to justify past behaviour. She was repeatedly critical of the father in her non-responsive answers. The Court will treat her evidence with caution.
Ms K was also cross-examined. Her affidavit contained allegations of past sexual assault perpetrated upon her by the father when each of them were children. It also contained allegations that the father had said he would kill her if she told anyone about the allegations. She was cross-examined by the father's counsel tactfully and gently. She was very distressed throughout her cross-examination. She did not resile from her allegations.
THE ICL’S PROPOSAL
The ICL proposed orders at the end of the trial as follows:
1.That the Mother have sole parental responsibility for the children X born 2013 and Y 2015 (“the children”).
2.That the children live with the Mother.
3.That the Mother and the Father keep each other informed of an email contact address by which they can use to solely communicate matters arising from the implementation of these Orders.
4.That the Mother inform the Father as soon as is practicable in the event of any medical or other emergency relating to the children by way of email.
5.That within 14 days the Mother do all things necessary to contact the N Psychologists (or other service proposed by the ICL) to arrange for the children to meet with a child therapist to provide the children with psychological and therapeutic support and the Mother shall:-
a.Provide the N Psychologists with a copy of these Orders;
b.Follow all reasonable directions of the N Psychologists including facilitating the children’s attendance upon the therapist as and when is required;
c.Following all reasonable recommendations of the N Psychologists including attending to any further referrals that the therapist may recommend for the children or each of them;
d.Pay all costs associated with the children’s therapy; and
e.In the event that the mother has not arranged for the children to engage with such therapist within 3 months of the date of these orders, the father’s time pursuant to paragraph 8 of these orders shall proceed.
6.That within 14 days the parties do all things necessary to enrol to attend in and complete the course “Keeping Kids in Focus” run through the E Group … and each party shall be solely responsible for their own costs of participating in this course.
7.That within 14 days the parties do all things necessary to contact F Contact Service … (or such other supervisory service as may be agreed) to arrange for re-engagement with the supervised contact service.
8.That the children spend time with the Father under the supervision of F Contact Service (or such other supervisory service as may be agreed) on four separate occasions (at approximately 3 monthly intervals) with each calendar year and for the purposes of that supervision:
a.The parties shall follow all rules and directions of the Contact Centre;
b.The Father shall be solely responsible for the costs of supervised time at the Centre;
c.The Father shall be permitted to give the children appropriate gifts, cards and letters in accordance with the rules of the Contact Service;
d.The children shall attend for supervised time with the Father until they attain the age of 15 years and thereafter they shall be permitted to attend in accordance with their wishes.
9.That in the event that the Father cancels time arranged pursuant to these provisions on two consecutive occasions, the time spent at the Centre thereafter shall be suspended.
10.That the Independent Children’s Lawyer has leave to provide a copy of these Orders and Reasons for Judgement to F Contact Service or other agreed service.
11.That both parties be and are hereby restrained from the following pursuant to Section 68B of the Family Law Act 1975:
a.Denigrating either parent or that parent’s family to or in the presence or hearing of the children;
b.Discussing any aspect of these proceedings with the children;
c.Showing or reading to the children any Court documents and or Reports filed in these proceedings;
d.Questioning the children about the other parent’s household;
e.Relocating the children outside the Commonwealth of Australia;
f.Showing or reading to the children any email communication sent as between the parents;
g.Filming and or recording the other parent; and
h.Contacting or attempting to contact the other parent via social media.
12.That for the personal protection of the Mother and the children, the Father be and is hereby restrained by injunction from entering at or coming within 100 metres of the place of residence of the Mother and the children and any school or educational institution attended by the children.
13.That the Father be and is hereby restrained by injunction from contacting or attempting to contact the children via social media and / or skype.
14.That the Mother be and is hereby restrained by injunction from:
a.Changing the children’s names including either formally or informally for any purpose whatsoever; and
b.Making an application for the children to have citizenship with Country Z or to hold Country Z Passport without the written consent of the Father.
15.That the Father be at liberty to provide a copy of these Orders to the Country Z Consulate.
16.That the parties be and are hereby restrained from removing the children from the Commonwealth of Australia AND each party, Mr Donlon born 1973 and Ms Donlon born 1986 their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the children X born 2013 and Y 2015 (“the children”) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name/names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist for the said period, or until the Court orders its removal.
17.Within 28 days, the Father shall pay to Legal Aid NSW the sum of $11,637.00 being half of the costs of the independent representation of the children herein.
18.Such further order as this Honourable Court deems appropriate.
NOTATION:
A.It is agreed that the children have not spent time face to face time with the Father since November 2020.
B.It is agreed that the children spent time with the Father under supervision at F Contact Service for the period from 20 July 2019 to 28 November 2020 inclusive for 2 hours once per fortnight.
C.It is noted that the Mother is from Country Z and holds a Country Z Identity Card. The Mother maintains that the children do not hold Country Z Passports or Country Z Citizenship.
D.It is agreed that the therapist at the N Psychologists or other agreed service is at liberty to contact F Contact Service if necessary (and vice versa), to support the children in spending supervised time with the Father.
E. It is intended that the children shall have commenced therapy pursuant to these Orders prior to the children’s time with the Father commencing.
DOCUMENTS RELIED UPON BY THE ICL

The ICL relied upon the following documents:
(1)Child Dispute Conference Memorandum by Ms G dated 31 May 2017;
(2)Family Report by Ms G dated 21 February 2019;
(3)Confidential Psychiatric Report by Dr O dated 5 June 2019; and
(4)Updated Family Report by Ms P dated 6 December 2021.
THE ICL’S WITNESSES
Ms G was not required for cross examination. I accept her evidence.
Dr O and Ms P were cross-examined by each party. Each of them are highly experienced experts in their fields. They gave evidence in a professional manner, were responsive to the questions and demonstrated insight into the dynamics of the family, the needs of the children and the issues before the Court.
I accept the evidence given by each of the experts in large measure because much of it was not the subject of any cross-examination.
I prefer the evidence of Dr O to that of Dr H for the reasons referred to earlier, in circumstances where much of the undisputed factual history was not known to Dr H.
I will return to aspects of their evidence in these reasons.
Each of the parties tendered various documents, which I have had regard to in preparing my reasons and making my orders.
Each party's affidavit was lengthy and traversed numerous criticisms and failings of the other. Such misguided focus meant there was almost no evidence as to the history of time between the children and their father between the date of separation and trial in either party's affidavit. Despite or perhaps in keeping with the prolix and discursive nature of the affidavits, most of the content was not the subject of any cross-examination.
Each affidavit contained numerous annexures. In the case of the father, it constituted over 199 pages and in the case of the mother, 201 pages. With the exception of approximately three pages, none of them were the subject of cross-examination or submission. One wonders what the point of the documents was.
The irrelevancy of much of the content of the affidavits and annexures was made even more apparent by the absence of reference in the course of submissions.
THE APPLICABLE LAW
Parenting matters are governed by Part VII of the Family Law Act 1975 (Cth) (the "Act").
Section 60CA of the Act mandates that the best interests of a child are the paramount consideration. The objects of the Act are identified in s 60B which sets out not only the objects of the Act but the principles to be applied.
Section 60B of the Act provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Pursuant to s 61DA(1), the Court is required to apply a presumption that it is in the best interests of a child for the child's parents to have equal shared parental responsibility for him or her but that presumption may be rebutted if there are reasonable grounds to believe that a parent of a child has engaged in abuse or family violence or there is evidence which satisfies the Court that it is not in the bests interests of the child for the presumption to be applied.
In the event that the Court is satisfied that the presumption applies, then pursuant to s 65DAA of the Act, the Court must positively consider whether orders should be made which result in a child spending either equal time or substantial and significant time with both of the child's parents.
Substantial and significant time is defined by s 65DAA(3) of the Act as:
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)       the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In determining what time order should be made under s 65DAA(1) and (2) of the Act, the Court looks to whether spending equal time or significant substantial time is in the best interests of the child, and whether as a separate consideration it is reasonably practical.
The best interests of a child are determined by an examination of the factors as set out in s 60CC of the Act. Section 60CC(2) sets out the primary considerations in determining what is in the child's best interests. These primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents and
(b)the need to protect the child from physical or psychological harm or being exposed to abuse neglect or family violence.
In applying these considerations, the Court is to give greater weight to the consideration set out in s 60CC(2)(b).
Section 60CC(3) sets out additional considerations in determining what is in the child's best interests. Those considerations will be discussed further below.
In reaching my decision, I have considered all of the relevant sections of the Act, albeit that I am not required as a matter of law to specifically address each such consideration.
I have read all of the evidence relied upon in the proceedings, but do not propose to repeat it in these reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]:
… A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not property considered the losing party's case.
PRIMARY CONSIDERATIONS
Meaningful relationship
It is ordinarily in children's best interests to have a meaningful relationship with each parent.
The Full Court in Sigley & Evor (2011) 44 Fam LR 439 identified the following as important matters of guidance in relation to s 60CC(2)(a) at pages 463–464:
(a)“… a meaningful relationship or meaningful involvement is one which is important, significant and valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518 at [26];
(b)“… the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child's best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”)”: McCall & Clark (2009) FLC 93-405 at [118];
(c)“… what the legislation aspires to promote is a meaningful relationship, not an optimal relationship”: Godfrey v Sanders (2007) 208 FLR 287 at [36]; and
(d)“The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The courts obligation is to make orders most likely to promote the child’s best interests …”: Champness & Hanson (2009) FLC 93-407 at [103].
The mother conceded in cross-examination that there should be identity contact between the father and the children, albeit her counsel in submissions sought to resile from such concession.
On the basis of such concession, noting its withdrawal, it is clear that each party and the ICL deemed it desirable at least until submissions for there to be some relationship between the children and the parents.
I am satisfied for the reasons I give and the orders I make, that the children will have to the extent possible, consistent with their best interests, a meaningful relationship with both of their parents.
As noted, however, the Court’s obligation is to make orders that are in the child's best interests and the questions of risk and harm are not subordinate to the issue of meaningful relationship.
Section 60CC(2)(b) abuse and family violence
The primary focus of these proceedings was on the need to protect the children from harm. In that respect each of the parties made allegations of risk against the other.
The father made a series of assertions including: that the mother has a second passport which she failed to surrender to the Court; that the mother can add the children's names to the second passport and use it to travel with the children despite them not having their own passports, thereby avoiding the Family Law Watchlist; that the mother applied for the children to become Country Z citizens in order to receive maternity benefits from a Country Z pension fund; that the marriage was contrived by the mother to obtain Australian citizenship; that the mother made false allegations of violence and abuse against him so that she could stay at a refuge where she would be 'safe and protected' to continue her espionage mission; and that he had to dismiss his previous lawyer because the mother and lawyer were connected outside of court through involvement in Country Z community groups. With the exception of the existence of a second passport, which the mother denied, these allegations were never put to the mother, nor was she cross-examined about them. No submission was made about them. I consequentially make no finding about them.
The father contends that the mother was aware of the sexual abuse allegations made by his half-sister prior to their marriage. This allegation was never put to the mother nor was she cross-examined about it and no submission was made about it. I consequentially make no finding about it.
The father contends that the mother alienated the children from him and did not facilitate contact with the children This will be addressed in more detail below.
That father contends a series of allegations about the mother and Country Z including that the mother may remove the children from Australia and relocate them to Country Z. This will be addressed in more detail below.
The father also contends that the mother is in some way involved in Country Z espionage; that she is grooming the children to be spies; that the mother is a sleeper spy for Country Z and that she obtained Australian citizenship to gain access to Australian intelligence. He also alleged that armed men from Country Z broke into his house and tried to assassinate him. He later contends that he does not know who broke into his house but that it was suspicious that the break in occurred four days after he filed an Affidavit, which contained information about the mother being involved in Country Z espionage. This will be addressed in more detail below.
The father’s allegation of alienation
The father contended that the mother had attempted to alienate the children. The father relied upon the breakdown in his relationship with the children as confirmatory in part of the mother's alienation.
The father did not pursue with Dr O whether she was of the view that the mother had alienated the children. When that question was asked of Ms P, she said that she did not have that impression. However, she did say she that the mother had a negative view of the father and had contemplated that her life might be easier if the father was not in the children's life, and that she felt frustrated and disappointed that time between the children and the father had stopped.
I accept Ms P's view and do not find that the mother has alienated the children.
There is no doubt that in the period following separation, that the mother, it would appear, took no steps to ensure the children had a relationship with their father. Her conduct in that respect meant that she failed to place the needs of the children at the forefront. They would almost certainly have missed their father. As much is apparent from the observations of the good relationship between the children and their father by both Ms G and Dr O in 2019. In that respect, I note Ms G reported at paragraph 42:
42.About the children’s time with Mr Donlon, Ms Donlon said that the children are usually happy to go with their father, and that they usually have a good time with him. She said, “He buys them McDonalds, and takes them out everywhere” …
And further, Ms G reported and observed the following at paragraphs 58 to 59:
58.The children both expressed reluctance to participate in observations with Mr Donlon. Y said, “No, not Daddy, I love Mummy”. Both children, however, were eventually persuaded to spend time with Mr Donlon in the observation room. Both X and Y appeared a little hesitant and awkward upon entering the observation room and neither child made much eye contact with Mr Donlon at first. Y sat on Mr Donlon’s lap, but his smile appeared forced and he kept his hands folded tightly in his lap. Y asked, “Where’s Nanna?” to which Mr Donlon responded, “Do you want me to get L?” (it later became apparent that L is the children’s cat). Mr Donlon began engaging the children in conversation, and the Family Consultant noted that Mr Donlon spoke and laughed very loudly. Mr Donlon spoke to the children about a recent trip to Location M, and asked them if they had enjoyed it. He sat on the couch with the children and showed them a video he had taken of them all on one of the rides at Location M. The children appeared to enjoy this, and X said, “Oh Daddy!” Both children began to appear more at ease with Mr Donlon, and leant in toward him, laughing at the video. X said, “We went on the ride a billion trillion thousand times!” Mr Donlon asked the children where they would like to go on the following Saturday. X replied, “Shopping!” The children began to run around noisily, and climbed on Mr Donlon who remained seated on the couch. The children moved to the small table and began drawing. Mr Donlon joined them and showed an interest in the children’s artwork. X attempted to write a word, however, she made a mistake and wanted to throw the page in the bin and start again. Mr Donlon tried to stop X from crumpling the paper, not realising why she was unhappy with it. Mr Donlon suggested the children draw on the whiteboard, and X drew a picture of Mr Donlon that made everybody laugh. Y drew what he said was a “picture of Nanna” which made Mr Donlon and X laugh, and tease Y, who appeared embarrassed. Both children began scribbling on the whiteboard in a disorganised, almost out of control manner. The children and Mr Donlon became louder as the observation progressed, with the children becoming very animated and silly. Both children engaged in overly rough play with Mr Donlon, climbing on him and hitting him repeatedly, which Mr Donlon did not seem to mind. Mr Donlon then picked up X and pretended to ‘fly’ her around the room, which caused X to laugh. The children then appeared to become irritable with each other, and Y hit X with a pillow. Mr Donlon made no attempt to direct or organise the children’s play, but allowed them to run amok and make a mess. At one point X asked Mr Donlon if he could take her to Queensland. Before Mr Donlon could respond, X said, “We could live with you forever”. X then looked at the Family Consultant, pointer her finger and yelled, “Don’t write that!” At the conclusion of the observation, the Family Consultant told the children that it was time to play a game with Ms Donlon. Y responded to this by saying, “No! Want to stay with Daddy”. When Y said this, Mr Donlon looked triumphantly at the Family Consultant, and said to Y, “good boy” but made no attempt to facilitate the children’s next transition.
59.The children ran to Ms Donlon in the waiting room, and embraced her enthusiastically, smiling broadly and making strong eye contact. Y excitedly told Ms Donlon, “We just saw Dad!” to which Ms Donlon responded positively, saying “Oh good” …
I note Ms G's conclusion at paragraph 64 as follows:
64.Of concern are Y's comments about Mr Donlon telling lies and possibly being incarcerated. This idea must surely have been introduced to the children by Ms Donlon. It is unclear how much comprehension the children would have regarding prison, but it likely to be quite frightening for the children to be told that their father will be imprisoned. This idea might also cause the children to form the idea that they too may be imprisoned if they tell lies. It is suggested that Ms Donlon reassure the children that their father will not be imprisoned for lying.
It is to be noted that the mother denied saying that the father would be sent to prison. She did admit telling the children that he lies. There is no doubt that the mother was not enthusiastic about the relationship between the children and their father, and that she said inappropriate things to the children about the father. But that falls a long way short of alienating the children. Indeed, it would be open to conclude that had she attempted to alienate the children, their presentation before Ms G and Dr O would not have been as described. I also note that Dr O observed in interviews with the children in April 2019, the following at page 3:
Ignoring PGM, a positive Y smiled at father’s roar at their reunion. Mr Donlon quickly established rapport with him as they chatted. PGM engaged X, who was responsive to her but only approached her father after he invited her to come to him. She turned her check to him when he kissed her and appeared happy to sit on his lap.
And further, the following at page 6:
X presented as a pretty, relaxed nearly six year old. She stated she was not aware her father was coming later in the day and thought it was “good” he would attend. To my query, she nodded in agreement that her parents do not live together.
…
To a query what it was like seeing him, X shrugged. Responding to further questions, she indicated she would like to see him more often, have a sleepover and live in both of her parents’ homes.
On 8 July 2019, orders were made suspending what had then been the unsupervised daytime contact between the children and their father, with a regime of supervised time being implemented in its place.
There is paucity of evidence as to the nature of the children's relationship between that date and the final suspension of time in November 2020. In that respect, Exhibit 14, a letter dated 30 November 2020 from F Contact Service, identifies the following on page 1:
Up until February 2020, there were no significant issues in supervised contact apart from [the father] struggling to set clear boundaries when the children weren't listening or demonstrating inappropriate behavior.
It would appear that as a consequence of COVID-19, a number of visits were suspended and time resumed in May 2020. The letter goes on to record:
Since this time, there has been significant disruption to the visits as a result of the children's behavior. The children's engagement with Mr Donlon has been very aggressive both physically and verbally and the children frequently report they want to leave F CONTACT SERVICE and go home to mum. Mr Donlon occasionally will address the children's behavior but there is no consistency and more often than not he does not address their behavior rather laughs at it telling the children they are funny.
…
The children's behavior has declined so significantly F CONTACT SERVICE has no option but to suspend the matter due to the disruption this is causing other family's also using the centre. F CONTACT SERVICE is also concerned in relation to the breakdown in the relationship between Mr Donlon and the children.
…
Mr Donlon has raised concerns in relation to his safety with the Country Z Espionage and his ability to remain attending the centre safely. Mr Donlon has also reported issues with the Skype sessions but has not elaborated but reports he is addressing these with his lawyer Mr Cohen.
And further at page 2, the letter records:
Mr Donlon has also frequently taken up with the Manager having issues with staff and stating that he will not be supervised by certain members of staff. Whilst the manager has attempted to address these issues it has left F CONTACT SERVICE with limited choice of staff to supervise his sessions due to Mr Donlon’s demands.
F CONTACT SERVICE is of the view the family needs intensive intervention in the form of family counselling particularly the children who are presenting with increasing anger and inappropriate behavior. The parents would also largely benefit from a course such as "Keeping kids in focus ".
F CONTACT SERVICE is mostly concerned about the impact supervised contact is having on the children's relationship with Mr Donlon as well as the level of anger the children are presenting with and is evident in their behavior.

The mother asserts that she is concerned that the father may harm the children in the same way that he sexually assaulted his half-sister. This will be addressed below.
Risk of harm from father’s family
The mother's contentions as to risk of harm posed by the father's family included the mother's allegations in relation to the paternal grandmother and by implication the paternal uncle Mr W. The allegations included that the paternal grandmother had not protected the father’s half-sister from assault and sexual assault, that she had been a neglectful parent, that she had been violent and had assaulted her, and that the father's brother had threatened her and assaulted her.
They are very concerning allegations. There was little, if any, probing cross-examination on the specific issues by the mother's counsel of the father. He elected not to cross-examine the paternal grandmother. There was no submission made by the mother's counsel about these matters other than that I should find the father and his mother to be untruthful witnesses. In circumstances where I propose to make an order for supervised time, I am satisfied that the risk of harm to the children is addressed.
Gambling
The mother made a series of allegations about the father gambling. It was put to the father that he had lost $500,000. The father was not cross-examined upon any documents that would enable the assertion to be established. The father admitted he had lost approximately $40,000. I am simply unable on the evidence to make any determination about the extent of the father’s gambling losses beyond his admission.
Risk of harm arising from allegations of sexual assault
The mother contended the father posed a risk of harm to the children as a consequence of the allegations of sexual assault said to have been perpetrated by him upon his half-sister Ms K.
Ms K gave evidence that her first memory of sexual assault occurred around the age of four years. In her affidavit, she gave evidence that the father had allegedly attempted to put his penis inside her, that she would cry and that he said he would kill her if she said anything to anyone. These acts were said to have occurred between 1982 and 1987. Ms K says that the father assaulted her by throwing a boom box cassette at her head causing a concussion.
She also alleged that the children’s paternal grandmother reported to her that the father in these proceedings had also allegedly raped the paternal grandmother. She further asserted that the father raped the family dog.
Ms K gives evidence of a dysfunctional relationship with the paternal grandmother as she alleges that the paternal grandmother physically and verbally assaulted her. Ms K says that she reported the sexual assault allegations to a school counsellor and subsequently to the Department of Community Services (“DOCS”). She also says that she reported the allegations to the paternal grandmother who called her a liar and that she was then physically assaulted by her brother Mr W. She subsequently reported the allegations to the police.
The father and paternal grandmother denied all of Ms K's allegations.
The cross-examination of the father on these allegations was at best cursory and the father maintained at all times a denial to the allegations. He was, however, cross-examined at length about a COPS entry dated 10 February 1995, which records as follows at page 1:
The suspect, Mr Donlon was spoken to and denied the allegations. Further that during the period of the allegations the suspect was between the ages of 10 to 13 old. When asked if he knew that it would be wrong to have had sexual intercourse with a person the suspect stated that at that age he would not have known that it would have been wrong as he had not been educated in relation to sexual behaviour. Due to this point of law the suspect was not charged with the offences. The victim was informed of police action.
The mother's counsel sought to suggest that this in some way constituted an admission by the father. The father denied the proposition.
The mother did not contend at any time in the proceedings that the father had sexually assaulted either of the subject children. The mother gave evidence in her affidavit that at a time following separation when the father was apparently having unsupervised time with the children, their daughter told her that she was lying on the bed with her father. The mother contended in her affidavit that she was not sure why the father spends time with the children in his bed. The mother also referred to an incident on 4 March 2018, when the children reported that they slept with the father in the same bed. She says in her affidavit that the children reported that the father called the children words such as “sexy kids, sexy girl, sexy boy” (at paragraph 150).
These allegations were not the subject of any cross-examination of the father. There was no submission about these matters.
The mother contended in the proceedings that the father may harm the children in a similar way to that allegedly perpetrated by him upon his half-sister.
The allegations of alleged sexual abuse have not been the subject of any pointed inquiry by any of the experts in the proceedings.
Ms G in her report concluded at paragraph 65:
65.It is difficult to make any informed comments regarding the claims about Mr Donlon possibly experiencing and perpetrating child sexual abuse. … It is not uncommon for child victims of sibling perpetrated abuse to go on to abuse younger children. If the allegations by Ms C are true, this may be a significant factor in Mr Donlon’s mental health concerns and could have implications for his parenting of X and Y. Having said that, the Family Consultant is unable to comment further about whether or not Mr Donlon’s alleged experiences/behaviours during childhood are relevant factors to consider in the determination of this matter.
Dr O in her report records the following at page 23:
Understandably Ms Donlon became very concerned by her sister-in-law Ms K's allegations about her brother. Fearing Mr Donlon could be a threat to the children, she has recently written to the Prime Minister, wanting the legal matter (which followed Ms K's allegations) re-visited. Accurate facts or a finding on the balance of probability about these allegations need to be known to do a Risk of Harm to the Children's Assessment.
Ms P in her report took the matter no further.
Dr O said that one could not say that just because a person had been a perpetrator of sexual abuse as a child, it followed that they would be a perpetrator of sexual abuse as an adult.
Dr O in cross-examination said that the allegations gave rise to a risk. She was not challenged on this proposition. I accept her evidence.
The mother through her counsel submitted that I could make a positive finding that the father had sexually abused his half-sister, but that it was unnecessary to do so.
In submissions, her counsel contended that I could make a credit finding against the father relying upon the disputed evidence about the removal of the car from outside the refuge, the allegations of gambling, the contents of a COPS report (Exhibit 8), the evidence of Ms K including annexure A of her affidavit, the father’s conduct in relation to an attempted gift of an electric car, his assertions that the mother practised witchcraft, allegations that she said she would kill him, and matters relating to the orders sought by the father, which were said to be a 'game'. It was contended that I should find the father to be an untruthful person.
I found the submission discursive. Beyond a recitation of the various propositions, it was not said how I could resolve the disputed allegations. There was no elaboration as to how the propositions of witchcraft or the gift of the electric car went to truthfulness. I was provided with no assistance by her counsel as to how on the disputed allegations, I could, consistent with the applicable standard of proof and having regard to the factors in Briginshaw v Briginshaw (1938) 60 CLR 336 make such a finding.
Likewise, in relation to the paternal grandmother, he contended that her evidence was biased and that she was under the influence of the father and his brother Mr W. These were remarkable submissions given he elected not to cross-examine the witness. It was not submitted how I could make such a finding. While I accept that she is not an objective witness, I could not find that she was biased or under the influence of the father or his brother.
As the High Court reminds in M & M (1988) 166 CLR 69 at page 76:
… it is mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegations of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence …
In considering an allegation of sexual abuse the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336.
And further, the High Court states at pages 77–78:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases such as the present case in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court m denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A (1976] VR 298 at 300), "an element of risk" or "an appreciable risk" (In the Marriage of M (1987) 11 Fam LR 765 at 770 and 771 respectively), "a real possibility" (B v B (Access) (1986] FLC 91-758 5 at 75,545), a "real risk" (Leveque v Leveque (1983) 54 BCLR 164 at 167), and an "unacceptable risk" (Re G (a minor) (1987] 1 WLR 1461 at 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's 10 paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The allegations of Ms K are clearly very disturbing. Given the disputed allegations and the paucity of cross-examination on the topic, I am unable to make findings that it occurred as alleged, nor is it necessary for me to do so.
Notwithstanding that I am unable to make a finding that the father sexually abused his half-sister, I accept the evidence of Dr O that they remain risk issues within the wider pantheon of risk issues.
In circumstances where I propose to make an order that the father spend only limited supervised time with the children, then consistent with the observations of the High Court, I find that the magnitude of the risk is addressed.
For the reasons referred to in the preceding paragraphs, I find that the children are at an unacceptable risk in the unsupervised care of the father.
ADDITIONAL CONSIDERATIONS
The court must also have regard to such of the additional considerations under s 60CC(3) of the Act as are relevant.
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
In circumstances where the father has not seen the children on a face-to-face basis since November 2020, he was unable to place before the Court any up-to-date or recent evidence in relation to their views. The mother gave evidence that the children do not wish to see their father.
In her report, Ms P addressed the views of the children. Ms P records at paragraphs 56 to 57:
56.… They both said that they do not feel like speaking to him and do not like him. X said that this is because he gives them “junk food” and because he “eats like a pig”. Y said that his father did not give him his birthday present last year, only a toy car. They said that they do not miss him.
57.When asked about enjoyable times they spent with their father, X and Y said that they enjoyed going to the aquarium and to the wildlife park. They said that they also saw their paternal grandmother but do not like this either, although neither child could remember why.
At paragraph 59, Ms P records:
59.There was further conversation about Mr Donlon and possible contacts with him. X indicated that she would be receptive to receiving a card from Mr Donlon; Y seemed more agitated by this suggestion and said that he would take the card if there was money in it. X also seemed open to seeing her father and said that she does not know why she does not see him. In response to the Court Child Expert, she also said that she does not know if she enjoyed the previous time she spent with her father, or not.
At paragraph 61, she records:
61.X and Y presented as friendly children who were reasonably comfortable talking to the Court Child Expert. They gave an impression of wanting to change the subject and talk about things other than their father and parenting arrangements. Y seemed more overtly angry at Mr Donlon, whereas X seemed more thoughtful about her responses.
And further, Ms P records at paragraphs 63 to 64:
63.X and Y presented as likeable and pleasant children, but as somewhat confused by their parenting arrangements. Some of their comments (such as about the way their father eats and comments about junk food) are possibly a reflection of their mother’s views. However, the children also seemed genuinely perplexed by their father’s behaviour and the intermittent nature of their arrangements with him.
64.… There is a sense the children would like to have relationships with their father (as most children do) but that they have been put off by the intermittent nature of the arrangements and by Mr Donlon’s behaviours. However, X and Y are young children who cannot be expected to have an informed overview of the situation and, therefore, only limited weight can be placed on their views.
I accept the observations of Ms P. It was not the subject of challenge in cross-examination or submissions. There is no evidence that allows me to assess the children's maturity. I find, consistent with the above, that the children seem to be ambivalent about their relationship with their father. However, given their ages and the high level of distrust between the parents and the possible influence of their mother, I place limited weight on their views.
(b) The nature of the child’s relationship with each of the parents and other persons
The father's evidence does not suggest that the children do not have a good relationship with their mother. There was no submission put to me by the counsel for the father to the contrary.
In relation to the children's relationship with their father Ms P observed the following at paragraphs 43 to 45 in her report:
43.Ms Donlon said that the children were happy to see their father at the contact centre and that they enjoyed their time with him. She said that they also enjoyed the (earlier) unsupervised time and claimed that Mr Donlon would spoil them and buy them things. She said that she has followed the Orders for phone or video calls and that the children were, initially happy to talk to their father. Ms Donlon perceives, however, that the children were put off because they (allegedly) saw him screaming at her during a call, and because the children are aware that Mr Donlon has called the police on a number of occasions (prior to 2021) to do welfare checks.
44.Ms Donlon also claimed that Mr Donlon would ask the children about their living circumstances and who they live with, but never about their activities at school or with their friends. Ms Donlon said that Mr Donlon has “no manners” and claimed that he would put his eyes close the camera, or pick his nose during the conversation. She claimed that he would hold presents for the children in front of the camera, which was frustrating for them. Ms Donlon said that Mr Donlon still calls but does not insist on talking, and just says “goodbye” to the children. Ms Donlon said that the children had a positive relationship with their father, but that now they do not because of his alleged behaviours.
45.Ms Donlon said that, generally, X and Y are doing well and that they seem to enjoy their activities and that they have regular routines. She said that they enjoy riding bikes, bushwalking and camping. She said that the children are close to her and also have a close relationship with each other, although they also fight sometimes, as siblings do.
It is clear that the children at one stage did enjoy a relationship with their father. That relationship does not currently exist.
No submission was put to me about any other significant relationship that was relevant to my consideration.
(c) Extent to which each of the parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; spend time with the child; and communicate with the child
It is clear that in the period post-separation, the mother has assumed almost the entirety of the day-to-day care of the children and made most, if not, all of the long-term decisions in relation to the children.
For the first nine months following separation, the father, other than on one occasion had no time with the children and, thereafter, it was limited for a period of about two years to initially in the presence of his mother and, thereafter, on a weekly basis. It was a clear abrogation of her responsibility as a parent to deny the children time with their father in the first nine months following separation. It is clear that the mother has taken a proprietorial role in relation to the children, formed she says out of her fears of the father. When one of the children was enrolled at school, she failed to include the father's details on the enrolment form.

It is a function of the dysfunctional relationship and the high conflict between these parents that one parent has unilaterally assumed such a role rightly or wrongly.
The father has by his various applications before the Court attempted to spend time with the children. Time stopped in November 2020 for the reasons earlier referred to. It was in part a function of the father's mental health that it ended. He has, apart from seeking expedition, made no attempt to reengage with supervised time with the children or sought to vary the location.
Both parents have at various times either failed to participate or prevent the other parent from participating in making long term decisions as well as preventing the other parent from spending time with the children or taking steps to spend time with the children.
(ca) Extent to which each of the parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
The mother has almost alone supported the children financially in the period since separation.
The mother was critical of the father's failure to pay Child Support but it would appear that the mother does not have a current application for Child Support, nor are there any arrears.
The father referred to past claims for child support as 'ransom'. Being as generous as one could be allowing for it as an outburst in cross-examination, it was unedifying and was, but a further example of his lack of insight and poor judgement.
(d) Likely effects of any changes in the child's circumstances including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The mother's orders provided for no time with the father, albeit in cross-examination she indicated she would agree to identity time and her final minute of orders proposed it as an alternate position.
The father had three alternative proposals, with the first proposal being that the children live with him, he have sole parental responsibility and that they spend increasing periods of time with the mother. In the event that the Court was not inclined to make those orders, his alternative proposal was that the mother have sole parental responsibility, the children live with their mother and that they spend increasing periods of time with him. In the event that order was not made, then he largely supported the orders sought by the ICL
I am concerned about the father's primary proposal for the children's removal from their mother. The children have now lived in the primary care of their mother since separation in January 2017. They appear to be doing well and it would be disruptive to their living arrangements to substantially change it, and so I find that it would not be in the best interests of the children based on the opinions expressed by the various experts.
In her report, Ms P observed at paragraphs 72 and 73:
72.The information gathered for this Report suggests that it would not be in the children’s interests to change their care arrangements from their mother to their father, as proposed by Mr Donlon. Even a week-about arrangement would be a significant disruption for the children, who would be completely unprepared for such a drastic change.
73.While it is recognised that Mr Donlon believes he is being protective, these particular proposals seemed insensitive to the children’s needs for continuity in their relationships and experiences of basic care. Indeed, Mr Donlon gave an impression that he sees his concerns about Ms Donlon as being the paramount issue for the children, even if the content and manner in which he expresses his concerns results in interruptions to the children’s relationships with him.
I accept Ms P's observations.
Dr O was of the view that the father's primary proposal demonstrated a lack of insight into the needs of the children. It reflects poorly on the father's insight to, in the face of such unchallenged evidence, prosecute an application seeking their removal from her. I accept Dr O’s opinion.
I accept that the orders that I propose will involve a change to the time arrangements that have existed to date.
I am of the view, however, that a return to the arrangement that existed under the current orders or the arrangement as proposed by the children’s father would not be in their best interests for the reason identified earlier.
(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
This is not a relevant consideration and it was not submitted by either counsel that it was.
(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;
I have significant concerns about both parties' capacity to provide for the children's emotional needs.
In the case of the mother, she failed to have regard to the children's needs to have a relationship with their father in the nine-month period post separation. Ms G's observations referred to earlier demonstrated poor insight on the part of the mother.
I have, however, greater concerns about the father's capacity to provide for the children's emotional needs.
His continuing insistence that the mother is somehow or other engaged with Country Z espionage, and is attempting to either solely or with others remove the children from Australia or to groom them as spies has had a detrimental effect on both parties and the children. I note the observations of Ms P at paragraph 70 as follows:
70.… In fact, Mr Donlon's continued raising of these issues seems to have played a part in sabotaging his arrangements with the children and causing stress and distress to Ms Donlon, the children's main carer.
The father reported the following matters to Dr O (at pages 16–17):
Describing the outcome from the proceedings he hoped for, Mr Donlon wrote in a questionnaire “sole custody and decision making by the children’s father. Child’s mother to be deported to [Country Z]. Mother to not return to Australia. No contact to children by mother. Children’s names to be changed for protection” (sic).
For the above reasons, I am concerned about the father's capacity to provide for the children's emotional needs in other than a supervised setting. I find that the mother is better placed to meet the children's emotional needs.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
No submission was put to me that this was a relevant consideration.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her culture; and the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I have addressed this consideration exhaustively above.
(j) Any family violence involving the child or a member of the child's family;
I have addressed this consideration earlier in these reasons.
(k) Any relevant inferences that can be drawn from a family violence order, if it applies
There is no family violence order.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
These parties have been in litigation about their children for nearly five years. It is in the children's best interests for the proceedings to end and for the children to have stability in their lives. The orders I make are ones that have been the subject of approval by each of Dr O and Ms P, and have the support of the ICL. They are orders, which are least likely to lead to further proceedings.
(m) Any other fact or circumstance that the court thinks is relevant.
There is no other matter that I consider relevant.
PARENTAL RESPONSIBILITY
Pursuant to s 61DA(1) of the Act, the Court is required to apply a presumption that it is in the best interests of a child for the child's parents to have equal shared parental responsibility.
That presumption may be rebutted if there are reasonable grounds to believe that a parent of a child has engaged in abuse or family violence or there is evidence, which satisfies the Court that it is not in the best's interests of the child for the presumption to be applied.
Each of the parties including the ICL contended that I should not make an order for equal shared parental responsibility.
In her report, Ms P said the following at paragraph 75:
75.Regarding the issue of parental responsibility Ms Donlon has been the children’s main carer and as such has been making decisions for the children in terms of their day-to-day care and their longer term needs. There does not appear to be any scope for the parents to collaborate in their decision making for the children and it would be in X and Y’s best interests for Ms Donlon to hold sole parental responsibility.
I agree with the observations and conclusions of Ms P. The high level of conflict and disputation between the parties is such that an order for equal shared parental responsibility would not be in the best interests of these children. For the reasons stated earlier in relation to matters of risk, I propose to make an order for sole parental responsibility in favour of the mother.
Having made such a finding, I am consequentially not required to consider s 65DAA. I will now proceed to address what time the children shall spend with the other parent.
WHICH PARENT SHOULD THE CHILD LIVE WITH AND WHAT TIME SHOULD THE CHILD SPEND WITH THE NON-RESIDENTIAL PARENT
In view of my findings, that the mother should have sole parental responsibility, it must logically follow and is consistent with my findings that the children shall live with the mother. I further note that it was the father's case that in the event that I make an order that the mother have sole parental responsibility, then an order should be made that the children live with the mother.
The mother was opposed to any time between the children and the father by way of the orders that she initially sought, albeit she conceded in her cross-examination that she would agree to orders for identity purposes rather than relationship building.
In submissions, her counsel sought to resile from such a proposition and suggested in some way that the mother was not comfortable with identity contact, and in essence could not cope with it. He submitted that support for the mother’s position could be found in Dr O's evidence.
In her evidence, Dr O was supportive of identity contact. Any caveat was expressed in terms of ensuring that the mother did not become highly anxious and that it was not too disruptive to the children or to the mother’s mental health.
The mother was at all times in her cross-examination forthright about expressing how she felt. She was unequivocal in her cross-examination about agreeing to identity contact. If she had not wanted to agree to it, I am confident, she would have said so.
She was aware having read Ms P's report what identity contact involved. In her report, Ms P said at paragraph 74:
74.Therefore, it is difficult to envisage arrangements between the children and Mr Donlon that will occur in the regular, predictable and continuous way that would benefit X and Y. If it is considered better for the children to spend time with their father, rather than no time at all, it may be possible to resuscitate the supervised arrangements. This could occur once per month, or even every two or three months, for the purposes of identity rather than for relationship-building. Ideally, the time would occur at a contact centre, but if the supervised time occurs in the community, it is important that the conversations between the children and Mr Donlon are closely supervised.
No attempt was made to re-examine the mother on this topic.
What is proposed by identity contact is less than what Ms P said in her report. I reject the mother’s counsel’s submission.
I further note that in the orders that she submitted at the conclusion of the trial, she agreed in the alternative to identity time.
The father proposed by his Minute of Orders that if an order were made that the children live with the mother, then he sought orders that he spend time with the children for an initial period of three months supervised and, thereafter, for subsequent periods of time on an unsupervised basis, such that within approximately nine months he would be spending alternate weekends and half school holidays with the children. The father's initial time with the children was to take place on a supervised basis at a contact centre. In addition, the father sought orders for Skype time between himself and the children.
I note the father did not propose an order for ongoing supervision of the type that ceased in November 2020. An order for regular ongoing supervised time in the context of the father's personality dysfunction would just lead to further interruptions in the relationship between the children and the father. That would not be in the best interests of the children.
In view of the orders that I propose to make by way of supervised time, I do not consider it to be in the children's best interests for there to be a continuation of Skype. It is clear to date that it has not worked and it would be a further source of conflict between these parties to continue an arrangement that has not worked. The father did not address me or give me any submissions as to how Skype communications could be improved. I am not confident that they could.
I have earlier identified the questions of risk that can only be ameliorated by orders for supervised time.
In light of my findings about the impact on the children of the father's mental health, the risks arising as a consequence of the allegations of sexual abuse and in relation to the father's extended family, and my concerns about the father's level of insight in relation to these children demonstrated by some of his proposal, both in the past when he informed Dr O that the outcome he hoped for included the children's mother being deported to Country Z or his current proposals, I propose to make orders along the lines of that suggested by the ICL.
Each of Ms P and Dr O were supportive of the idea of identity contact between the children and their father. The identity contact canvassed in cross-examination involved approximately three to four occasions per year, which is less than that identified by Ms P in her report. In my view, in light of the findings about risk, the father's mental health and lack of insight, it is a matter of striking a balance. In my view, the balance is appropriately struck as identified by the ICL in her Minute of Orders.
I propose to ensure that the children will have some therapeutic counselling as envisaged by each of Dr O and Ms P, prior to time commencing with the father. To enable that to happen, the father’s first visit will be in June 2022.
WATCHLIST AND OTHER ORDERS
The mother seeks an order that the children's name be removed from the Watchlist and that she be permitted to remove the children from Australia to enable the children to visit other parts of the world, including travelling to visit her family in Country Z. The mother in her evidence indicated that her mother is in her seventies and that if she became unwell, there is no-one in Australia who would be able to care for the children if she had to return to Country Z.
In relation to overseas travel, Ms G concluded at paragraph 63:
… it would benefit the children to be introduced to their Country Z cultural and familial connections, as it would enhance their identity formation.
The father adduced no evidence in the proceedings that would enable the Court to conclude that the mother is involved with Country Z espionage, that she is a member of some Country Z espionage organisation or that she would attempt to leave the country with the children under different names.
The father agreed in cross-examination that the mother had in the period since separation in January 2017, made no attempt to leave the country.
The mother is an Australian citizen. I accept the mother's evidence that she wishes to remain living in Australia and only ever intends to travel overseas for the purposes of a holiday. The mother agreed that she could lodge a bond of $10,000.
The ICL submitted that because of the lack of trust and because Country Z is not a convention country, I should not allow the mother to travel overseas with the children.
I am of the view that it would be of benefit to the children to know their wider cultural heritage, including their family members in Country Z. I accept there are always risks in a general sense that a party may not return and those risks are greater involving travel to a non-convention country.
In my view, the children need a period of time in which they have certainty in their lives and to settle, after what has been nearly five years of litigation between their parents. The mother did not indicate that she had any current intention to travel overseas.
I will restrain the mother from taking the children outside of Australia for a period of 18 months. That 18 month period will give the children sufficient time to settle and to restore through identity contact, their relationship with their father.
At the expiration of 18 months, the mother can make application to travel overseas should she wish to do so.
The mother agreed to orders that she would not change the children's name and that the orders could be registered with the Country Z embassy. I propose to make such orders.
I have considered the orders I propose to make in light of the evidence and find they are in the children's best interests.

I certify that the preceding two hundred and thirty-nine (239) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.
Associate:
Dated: 14 February 2022

File number(s):	SYC 2184 of 2017
Judgment of:	SCHONELL J
Date of judgment:	14 February 2022
Catchwords:	FAMILY LAW – PARENTING – Where the father seeks an order for sole parental responsibility and the mother also seeks an order for sole parental responsibility – Where the father alleges that the mother may abduct the children and relocate them to Country Z – Where the mother alleges that the children are at risk in the father’s care because of allegations that he sexually abused his half-sister when they were children – Consideration of what is in the children’s best interests – Consideration of whether there is an unacceptable risk if the children are in the unsupervised care of the father – Where it was found that there is an unacceptable risk – Consideration of whether supervised time for the purposes of identity contact with the father is appropriate – Consideration of whether the mother should be able to travel overseas with the children – Where orders are made for the mother to have sole parental responsibility and for the children to live with the mother – Where orders are made for the children to spend supervised time with the father for the purposes of identity contact – Where orders are made for the mother to be able to travel with the children after 18 months from the date of the orders.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CC, 60CA, 61DA, 65DAA
Cases cited:	Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 M & M (1988) 166 CLR 69; [1988] HCA 68 Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division:	Division 1 First Instance
Number of paragraphs:	239
Date of hearing:	31 January 2022 – 4 February 2022
Place:	Sydney
Counsel for the Applicant:	Mr Greenaway
Solicitor for the Applicant:	David H. Cohen & Co.
Counsel for the Respondent:	Mr Mando
Solicitor for the Respondent:	Pinnacle Lawyers
Counsel for the Independent Children's Lawyer:	Ms Karagiannis
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

SYC 2184 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR DONLON Applicant
AND:	MS DONLON Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	14 FEBRUARY 2022