Ellul & Castelli (No 2) - [2025] FedCFamC2F 259

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ellul & Castelli (No 2) [2025] FedCFamC2F 259

File number(s): PAC 3112 of 2021

Judgment of: JUDGE OBRADOVIC

Date of judgment: 28 February 2025

Catchwords: FAMILY LAW – PARENTING – Where the child is to spend no time with the respondent and live with the applicant – Where the child makes serious allegations of sexual assault by the applicant that are unfounded – Where the respondent perpetrated family violence being physical violence and coercive or controlling behaviour – Where the child has been a primary and secondary victim of the respondent’s family violence - Where the respondent poses an unacceptable risk of harm to the child – Where the respondent has intentionally and constantly undermined the child’s relationship with the applicant – Where the child holds strong views towards the applicant – Where the child’s views are given little weight – Where the child was estranged from the applicant until interim orders were made in November 2024 that caused an immediate change in residence – Where the respondent’s evidence was dishonest

Legislation:
Family Law Act 1975 (Cth) ss 60CC, 60CG, 61C, 61D, 67U, 68B

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.01

Cases cited:
Briginshaw v Briginshaw (1938) 60 CLR 336 at 343, [1938] HCA 34

Carter & Wilson [2023] FedCFamC1A 9; [2023] FLC 94-129; (2023) 66 FamLR 238

Illgen & Yike [2018] FamCA 17

Isles v Nelissen [2022] FedCFamC1A 97

Johnson & Page [2007] FamCA 1235

Leventis & Leventis [2024] FedCFamC1A 141; (2024) FLC 94-204

Pickford & Pickford [2024] FedCFamC1A 249; (2024) FLC 94-230

Ramzi & Moussa [2022] FedCFamC2F 1473

WK v SR (1997) 22 Fam LR 592

Division: Division 2 Family Law

Number of paragraphs: 479

Date of hearing: 4-8, 19-20, & 28 November 2024

Place: Parramatta

Counsel for the Applicant: Ms Trad

Solicitor for the Applicant: Legal Aid NSW

Counsel for the Respondent: Mr Vizzone

Solicitor for the Respondent: Supreme Justice Lawyers

Counsel for the Independent Children's Lawyer: Mr Schroder

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

PAC 3112 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ELLUL

Applicant

AND:
MR CASTELLI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

28 FEBRUARY 2025

THE COURT ORDERS:
1.That the applicant have sole decision making in relation to major long-term issues concerning the child Q born in 2012 (‘the child’).
2.That the child live with the applicant.
3.That the child spend no time with the respondent.
4.That the respondent have no communication with the child by any means whatsoever including but not limited to electronic means, via social media, computer, text message, iPad or the like, encrypted apps, or by using or acquiescing with a third party contacting the child, including P and Ms AA.
5.That in the event the child communicates with or contacts the respondent in any manner or by any means whatsoever be it in person, by any means referred to in Order 4 (including through P or Ms AA) the respondent is to immediately terminate the contact and immediately notify the applicant of the contact by communication (as authorised in accordance with these Orders as specified below) that he has terminated the contact.
6.That in the event the child seeks to bring himself into the care or presence of the respondent or in fact brings himself into the care or presence of the respondent, the respondent shall refuse same and immediately inform the applicant of his refusal and do all things to immediately facilitate the return of the child to the applicant’s care.
7.In accordance with s 67U of the Family Law Act 1975 (Cth) a Recovery Order be made, that in the event the respondent fails to comply with Order 6 and immediately facilitate the return of the child to the applicant’s care then the Marshall of the Court, all Officers of the Australian Federal Police and all State and Territory Police Officers are requested to find Q born in 2012 and deliver the child to the applicant and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found.
8.That the Recovery Order as specified in Order 7 herein, shall remain in place until the child turns 14 years of age.
9.That pursuant to s 68B of the Family Law Act 1975 (Cth), save and except where permitted pursuant to these orders, an injunction is hereby issued restraining the respondent, whether by himself, his servants, or agents from:
(a)Entering or remaining:
(i)In a place of residence or approaching to within 500 metres of the place of residence of the applicant or the child, or
(ii)In a place of employment or education of the applicant or the child or approaching to within 500 metres of such place of employment or education, or
(iii)In a place the child is attending to receive the benefit of medical, or other allied health services, or extra-curricular activities or approaching to within 500 metres of such place of medical, or other allied health services, or attending extra-curricular activities.

(b)Using any carriage service or social media or any form of electronic platform to make contact or attempt to make contact with the applicant or the child, or through any social media application the child uses for any reason.
(c)Making any inquiries as to where the child is being educated or receiving any medical, or other allied health services, or attending extra-curricular activities.
(d)Making any inquiries of any school at which the child is enrolled in relation to the child’s education or progress at the school.
(e)Taking possession or care of the child or attempting to do so, or permitting, acquiescing or requesting any other person to take possession or care of the child.
(f)Instructing, acquiescing in or requesting any other person to do any of the acts referred to in this Order including but not limited to Ms AA and P.

10.That the above Order 9 is made for the personal protection of the applicant and the child and is an order to which the power of arrest without warrant attaches pursuant to s 68C of the Family Law Act 1975 (Cth).
11.That in relation to the education of the child:
(a)The applicant shall be at liberty to forthwith enrol the child in a school of her absolute discretion without the necessity of obtaining the consent of the respondent to that enrolment.
(b)That the respondent’s name be placed on the enrolment form so as to identify him but the applicant is to ensure that no other contact details for the respondent be placed on the enrolment form or be provided to the school.
(c)That the school be provided with a copy of these Orders by the applicant at the time of the child’s enrolment so that the school is aware of the restrictions in relation to the respondent approaching or entering upon the school or making any inquiries in relation to the child’s education.

12.That the consent of the respondent in relation to obtaining a passport for the child be dispensed with.
13.That pursuant to s 11 of the Australian Passports Act 2005 (Cth) the mother Ms Ellul born in 1983 have sole parental responsibility in relation to the issue of a passport in relation to Q born in 2012, and without the necessity of obtaining the consent of the father Mr Castelli born in 1953.
14.That the applicant be at liberty to travel internationally with the child without the consent of the respondent.
15.That the Independent Children’s Lawyer, as soon as reasonably practicable, meet with Q for the purposes of explaining the Court’s reasoning and the outcome of these proceedings to him.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part QIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:

This is a highly complex and difficult parenting matter. It was heard over a total of 8 hearing days, with an additional mention after the fifth day of hearing.
Twelve-year-old Q (‘Q’), is the only child of the applicant Ms Ellul (‘applicant’), and the respondent Mr Castelli (‘respondent’).
From April 2019 and until 8 November 2024, Q had been living with the respondent and with his half-sister P (‘P’). Presently Q lives with the applicant and spends no time with the respondent, following an interim parenting decision[1] delivered on 8 November 2024, during the course of the final hearing.
[1] Ellul & Castelli [2024] FedCFamC2F 1592.
The relationship between Q and the applicant has been severely disrupted over the course of the last number of years. The respondent alleged abuse of Q by the applicant, including sexual assault, and Q had increasingly become more and more resistant to spending time with her. Time between Q and the applicant completely stopped by December 2022, and as at the final hearing it had been almost two years since he had last spent any time with her.
The applicant is fearful of the respondent, who was a jealous and violent tyrant while they were together and indeed remained so post-separation. The respondent has maintained a level of control over the applicant, using Q as a pawn in his game of domination over the applicant, and engaging in systems abuse for his own benefit. The domination had extended to the applicant complying with the respondent’s requests for sexual intercourse in order to spend time with her only child.
For reasons which follow, the Court finds that the respondent poses an unacceptable risk of harm to Q, and that it is not safe for Q to live with the respondent or indeed spend any time with him. The Court also finds that the respondent has intentionally undermined Q’s relationship with the applicant, and falsely and negatively influenced Q’s view of the applicant.
The Court well understands that the orders it hereby makes will have a profound impact on all of Q’s relationships, however, such orders are ultimately in Q’s best interest.
In coming to its decision, the Court has had regard to the oral evidence given in the proceedings, the affidavits which have been read, and the exhibits.
All of the affidavits which were relied upon and the exhibits have been carefully read. The Court has also had the benefit of reading the entire transcript of the proceedings, re-reading significant parts of the transcript many times over, and hearing detailed closing submissions by counsel which were supported by written outlines.
While not all of the evidence and submissions have been referred to and discussed in these Reasons for Judgment, all of it has been considered.
EVIDENCE
Documents relied upon in the Proceedings
The applicant relied on the following documents:
(a)Case Outline Document filed 31 October 2024;
(b)Initiating Application filed 8 June 2021;
(c)Affidavit of the applicant filed 10 May 2024;
(d)Affidavit of Mr CC filed 31 October 2024; and
(e)Affidavit of Mr DD filed 31 October 2024.
The respondent relied on the following documents:
(a)Case Outline Document filed 31 October 2024;
(b)Response to Initiating Application filed 12 May 2022;
(c)Affidavit of the respondent filed 7 June 2024;
(d)Affidavit of Dr EE filed 15 May 2024; and
(e)Affidavit of Dr Z filed 7 June 2024.
The Independent Children’s Lawyer (‘ICL’) relied on the Case Outline Document filed on 31 October 2024, and the Family Report of Ms FF (‘Ms FF’) dated 27 November 2023, released on 4 December 2023.
Exhibits
The following documents were tendered in the proceedings:
(1)Exhibit 1 being a Helpline Assessment referred to as a Department of Communities and Justice (‘DCJ’) report dated 28 January 2020 (11 pages).
(2)Exhibit 2 being notes and attachment details of the DCJ dated 31 January 2020 (2 pages).
(3)Exhibit 3 being notes of an interview between Q, and case worker, Ms AE, dated 31 January 2020 (7 pages).
(4)Exhibit 4 being a provisional Apprehended Domestic Violence Order (‘ADVO’) made against the applicant for the protection of Q, dated January 2020 (6 pages).
(5)Exhibit 5 being Narrative 1 of 1 of COPS Event with event reference …, dated April 2019 (2 pages).
(6)Exhibit 6 being a medical certificate from AF Medical Centre at Suburb T dated 23 August 2021, in relation to Q (1 page).
(7)Exhibit 7 being photographs taken by the applicant of her and Q during a visit on 18 September 2021 (2 pages).
(8)Exhibit 8 being a video recording taken by the applicant of the respondent on 17 December 2018.
(9)Exhibit 9 being a medical certificate signed by Dr EE, dated 24 December 2022, in relation to Q (1 page).
(10)Exhibit 10 being Narratives 1 of 2 and 2 of 2 of COPS Event with event reference …, dated February 2020 (4 pages).
(11)Exhibit 11 being ‘Keeping Kids in Mind’ Certificate of Attendance for the applicant dated 1 December 2022 (1 page).
(12)Exhibit 12 being Narrative 1 of 2 of COPS Event with event reference …, created 28 January 2020 (2 pages).
(13)Exhibit 13 being the enrolment application form for ‘GG School’ for P dated June 2016 and signed by the respondent (7 pages).
(14)Exhibit 14 being the enrolment application form for ‘GG School’ for Q dated August 2017 and signed by the respondent (7 pages).
(15)Exhibit 15 being Student Chronicle of Q, Counsellor HH, Entry ID … dated 11 June 2024 (1 page).
(16)Exhibit 16 being screen shot of email with the subject line ‘Draft Affidavit’ from the respondent to …@... dated 3 June 2024 (1 page).
(17)Exhibit 17 being the draft Affidavit of Mr JJ dated June 2024 (4 pages).
(18)Exhibit 18 being COPS Event with event reference … dated September 2017 (1 page).
(19)Exhibit 19 being Narrative 2 of 2 of COPS Event with event reference …, reported date 9 July 2022 (2 pages).
(20)Exhibit 20 being Narratives 1 of 3, 2 of 3, and 3 of 3 of COPS Event with event reference … dated mid-2015 (2 pages).
(21)Exhibit 21 being Narrative 1 of 1 of COPS Event with event reference … dated January 2020 (2 pages).
(22)Exhibit 22 being Minute of Consent Order provided to the Court dated 16 August 2021 bearing the signature of the solicitor for the applicant and the signature of the solicitor for the respondent (3 pages).
(23)Exhibit 23 being a letter dated 18 September 2021 headed ‘Support Letter for [Q] in regards to custody decision’ from Ms KK, LL Services (1 page).
(24)Exhibit 24 being the provisional ADVO granted in November 2024 at Region MM Police, made against Mr DD for the protection of Q (7 pages).
(25)Exhibit 25A being the judgment of Judge Street dated 7 September 2023 in Castelli & Castelli [2023] FedCFamC2F 1172 (24 pages).
(26)Exhibit 25B comprising of: letters and reports of Dr NN dated 10 July 2024, 7 June 2023, and 26 April 2023; Dr OO’s letter dated 31 March 2021; Dr NN’s letter dated 24 October 2018; the respondent’s email to Dr NN dated 5 April 2023; and the respondent’s email to Dr NN dated 1 April 2023 (8 pages).
(27)Exhibit 25C being Narratives 1 of 2 and 2 of 2 of COPS Entry with event reference …, report dated 28 January 2020 (2 pages).
(28)Exhibit 25D being notes of Dr Z in respect of Q for consultations commencing on 7 April 2022 through to 29 August 2024 (8 pages).
(29)Exhibit 26 being document from Dr EE addressed to ‘LL Services’ certifying as to Q being examined and being unfit to be with the applicant, dated 28 March 2023 (1 page).
RELEVANT LEGAL PRINCIPLES
These proceedings were heard and determined after the commencement of the Family Law Amendment Act 2023 (Cth). The children’s best interest remains the paramount consideration in respect of any parenting orders the Court makes.
Division 2 of Part VII of the Family Law Act 1975 (Cth) (‘Act’) deals with parental responsibility. Section 61C provides that each of the parents of a child has parental responsibility, subject to orders. Section 61D provides that a parenting order that deals with the allocation of parental responsibility may provide for joint or sole decision-making in relation to all or specified major long-term issues.
Parental responsibility orders may be made in favour of a parent or some other person.[2] Even if an order provides for joint decision-making, thus requiring the parties who hold parental responsibility to consult and make a genuine effort to come to a joint decision, there is no requirement for a person, before acting on a decision, to establish that the decision has been made jointly.[3]
[2] Family Law Act 1975 (Cth) s 64C (‘Act’).
[3] Act s 61DAA.
In determining what is in the children’s best interest, the Court must consider the matters set out in s 60CC(2) of the Act and, if the children are Aboriginal or Torres Strait Islander, the matters set out in s 60CC(3) of the Act.
Specifically, in respect of children who are Aboriginal or Torres Strait Islander, the Court must consider the children’s right to enjoy their Aboriginal or Torres Strait Islander culture and the likely impact any proposed parenting order will have on that right.[4]
[4] See Act s.60CC(3).
Otherwise, s 60CC(2) of the Act specifies the non-hierarchical criteria which must be considered in all cases when arriving at a conclusion as to what is in the children’s best interests:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)        the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)       the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)       anything else that is relevant to the particular circumstances of the child.
In considering what arrangements would promote the safety of the children and of each person who has the care of the children, the Court must consider any history of family violence, abuse or neglect involving the children or a person caring for the children together with any family violence order that current or has previously applied to the children, or a member of the children’s family.[5]
[5] Act s.60CC(2A).

Section 60CG of the Act further requires the Court to ensure that any parenting order it makes is consistent with any family violence order and that it does not expose a person to an unacceptable risk of family violence, but only to the extent that it is possible to do so consistently with the children’s best interest being the paramount consideration.
The issues of family violence and risk are two separate questions. It is important that they not be conflated. On the one hand, the Court may need to determine whether or not allegations of family violence are proven on the balance of probabilities, and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the allegations of family violence.[6]
[6] Isles v Nelissen [2022] FedCFamC1A 97 at [83] (‘Isles v Nelissen’).
While conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.[7] The assessment of risk is still an evidence-based conclusion and is not discretionary.[8] The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not.[9] In assessing whether the risk of harm is unacceptable, the Court is not merely evaluating whether the risk will occur, but also the potential consequences of the risk being realised.[10]
[7] Ibid at [53].
[8] Ibid at [85].
[9] Ibid at [85].
[10] See for example the discussion in Johnson & Page [2007] FamCA 1235 at [62]-[74].
Family Violence
Family violence is defined in s 4AB of the Act, to mean violent, threatening or other behaviour by a person that coerces or controls a family member of the person's family, or causes the family member to be fearful.
Examples s 4AB provides are: assault, sexual assault or other sexually abusive behaviour, stalking, repeated derogatory taunts, intentionally damaging or destroying property, intentionally causing death or injury to an animal, unreasonably denying the family member the financial autonomy that he or she would otherwise have had, unreasonably withholding financial support needed to meet the reasonable living expenses of the family member or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support, preventing the family member from making or keeping connections with his or her family, friends or culture, unlawfully depriving the family member, or any member of the family member's family, of his or her liberty. Furthermore, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
As recently reiterated by the Full Court,[11] it is not enough if one of the behaviours identified falls within the examples given in s 4AB(2) of the Act, what is required is an analysis of how such behaviour coerces or controls a member of the person’s family or causes the family member to be fearful and a subsequent finding of it doing so. Context is all important.[12]
[11] Leventis & Leventis [2024] FedCFamC1A 141 at [15].
[12] Carter & Wilson [2023] FedCFamC1A 9 at [17].
The Act, in the definition of family violence, speaks to ‘behaviour by a person that coerces or controls’. It has been noted that the two concepts of ‘coerces or controls’ are closely related, together forming an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command, in the context of conduct that was not inherently violent or threatening.[13]
[13] Carter & Wilson (2023) FLC 94-129 at [12]-[13], citing Illgen & Yike [2018] FamCA 17 and Ramzi & Moussa [2022] FedCFamC2F 1473.
The determination of what constitutes behaviour ‘that coerces or controls’ must be considered in the context in which the conduct occurred.[14]
[14] Carter & Wilson[2023] FedCFamC1A9 at [15].
While these Reasons for Judgment were reserved, Pickford & Pickford[15] was handed down. In Pickford the Full Court considered, inter alia, the definition of family violence, and the role intent has to play in findings of coercion or control . While it was a bench of five, three separate judgments were delivered in which there is disagreement about the definition of family violence. Such disagreement is not relevant for the purposes of determining these proceedings, and in any event, there is a majority position in that regard.[16] It is clear however, that there was a common position in Pickford that intent on behalf of the perpetrator is not an essential ingredient of a finding of family violence taking the form of coercion or control.[17] The Court notes respectfully, that this is not a new proposition and one which is consistent with earlier authority.[18]
[15] [2024] FedCFamC1A 249.
[16] Arguably, the Full Court’s comments may be considered obiter dicta, noting the issues in those proceedings, with McClelland DCJ agreeing with the reasoning of Aldridge and Williams JJ in respect of a more expansive definition of family violence: See Pickford at [3]. The Court notes respectfully, that it will be interesting to see whether the apparent conflict between the majority decision in Pickford and the unanimous judgment in Leventis is ever taken up.
[17] Pickford see e.g. [2], [18], [22], [46], [47], [51], [111].
[18] See e.g. Carter & Wilson [2023] FedCFamC1A9 at [80].
It is apposite to be reminded of the wording of s 140 Evidence Act1995 (Cth):[19]
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject - matter of the proceeding; and
(c)       the gravity of the matters alleged.
[19] See s 69ZT of the Act with respect to the relevant parts of the Evidence Act 1995 (Cth) which do not apply to child-related proceedings. Chapter 4 remains applicable.
In order to be satisfied as to proof of any act, the Court must feel an actual persuasion of its occurrence or existence before it can be found:
It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of the given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect references.[20]
[20] Briginshaw v Briginshaw (1938) 60 CLR 336 at 343, [1938] HCA 34 at [32].
Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of violence and abuse.[21] The party alleging the fact bears the burden of proving it and the standard of the burden in the balance of probabilities.[22]
[21] WK v SR (1997) 22 Fam LR 592.
[22] Pickford at [79].
CREDIT
The respondent’s credit loomed large in these proceedings.
His evidence was generally unreliable, whether because it conflicted with other evidence in his case or with independent documents (as explained where relevant), or whether because of his lack of ability to recall during the proceedings many relevant matters, including his own oral evidence given during the course of the hearing.
During cross-examination, the respondent was often unable to recall certain events and instances, failing to provide meaningful answers with phrases like ‘I can’t remember’, ‘I’m not sure’, ‘I don’t remember’, ‘I can’t recall’, and ‘I can’t answer that’, which occurred approximately 260 times during two and a half days of cross-examination, including over 200 replies of ‘I can’t remember’. The respondent was asked about his inability to recall information, to which he would respond, ‘I’m very stressed out because of the court case’, ‘This case is really confusing my mind and my concentration’, ‘ I end up getting a blank from the stress’, and ‘It’s a blur’. The respondent’s memory was so deficient that during cross-examination on 19 November 2024, he was questioned on his attendance at Court on 13 November 2024, 6 days prior. When asked whether he was present in Court, the respondent said ‘It’s a blur. I can’t remember… I would assume I was, but I can’t remember’.
In the circumstances, and as explained where relevant, the Court finds that the respondent was dishonest in respect of certain evidence he gave and that he embellished events to suit his case.
The respondent was not a witness of truth.
The applicant gave evidence in a forthright and honest manner. She did her best to recall events, she was careful and measured, despite the difficult circumstances of her relationship with the respondent and the impact which this has had on her relationship with Q.
The parties’ evidence is in significant disagreement as to the length and nature of their relationship, and as to many events in respect of which evidence is given.
Overall, where the two are in conflict the Court prefers the evidence of the applicant over that of the respondent.
FACTUAL FINDINGS
Background
The respondent was born in 1953. He is currently 71 years old.
The respondent does not work. He is in receipt of the age pension and family tax benefit payments. He also receives child support payments.
The respondent was first married to Ms PP (‘Ms PP’), and they have three adult children together, who are aged 34, 39, and 41.[23] The respondent is estranged from those children.
[23] Exhibit 25A being Reasons for Judgment in Castelli & Castelli [2023] FedCFamC2F 1172 at “Chronology”.
The respondent has a fourth child, thirteen-year-old P, who is the only child from a relationship of the respondent and Ms AA (‘Ms AA’). P lives with the respondent.
The applicant was born in 1983 in Country BB. She is currently 42 years old.
Prior to migrating to Australia, the applicant worked as an educator from 2001 until 2006. She presently works at a hospitality venue on a casual basis. The applicant married her husband, Mr CC, in 2023, and they live with her brother, Mr DD (‘maternal uncle’) in a rental property in Suburb ZZ.
Brief Chronology
The parties met in or around late 2010/early 2011, and commenced their relationship in 2011.
In 2011, Q’s paternal half sibling P was born.
In early 2012 the parties travelled to Country BB to meet the applicant’s family and to participate in a religious ceremony.
The parties commenced living together in about late March or early April 2012.
In 2012, Q was born.
The applicant and Q moved out of the respondent’s home shortly after Q’s birth.
Between late 2012/early 2013 and early 2016, Q lived with the applicant and spent time with the respondent.
In early 2013 and early 2014, the applicant travelled to Country BB. The respondent did not consent to Q travelling with the applicant, and consequently Q remained with the respondent for the weeks that the applicant was overseas.
In early 2016, the applicant and Q moved back in with the respondent.
Q has been attending W School since 2018, the same primary school at which P commenced in 2017.
The respondent alleges that in late 2017/early 2018, Q made a disclosure to him of being sexually abused by the applicant.
In April 2019, the applicant moved out of the respondent’s home. Q remained living with the respondent. Later that same year, P commenced living with the respondent and Q.
Between April 2019 and December 2022, Q spent time with the applicant, although time was irregular and problematic.
In January 2020, further allegations that Q had been sexually abused by the applicant were made.
A provisional ADVO was made for Q’s protection in January 2020 and withdrawn in February 2020, following police investigation and a finding that the allegations of sexual abuse were not substantiated.
In June 2020, the applicant participated in a police interview disclosing details of the respondent’s family violence towards her, including an incident in December 2018 involving knives.
The applicant commenced these proceedings on 8 June 2021.
Interim parenting orders were made on 16 August 2021, 29 November 2021, and 14 June 2022. The interim parenting orders have not been complied with.
On 1 September 2021, Q attended his first session with his psychotherapist and counsellor Ms KK (‘Ms KK’).
On 7 April 2022, Q commenced seeing his paediatrician, Dr Z (‘Dr Z’).
Time between Q and the applicant stopped by December 2022.
In 2024, P commenced attending high school. Q completed year 6 in 2024. Q was due to commence high school at the start of 2025.
On 8 November 2024, interim parenting orders were made for Q to live with the applicant and spend no time with the respondent.
On 13 November 2024, the court granted an interlocutory injunction pursuant to s 68B restraining the respondent from contacting or attempting to contact Q, or allowing or directing any third party from doing so.
In November 2024, a provisional ADVO was made for Q’s protection, naming the maternal uncle as the defendant, arising out of a complaint to the police by the respondent and an interview by the police of Q in November 2024.
Q has remained living with the applicant pursuant to interim orders made on 8 November 2024.
Further Interim Application
While these Reasons for Judgment were reserved, the respondent filed an Application in a Proceeding on 2 December 2024, which was amended on 18 December 2024. In support of the application, the respondent has filed two further affidavits on 2 December 2024 and 18 December 2024 respectively. The interim application is first returnable before the Court on 3 March 2025 at 10am. The respondent makes application as follows:
1.   The orders dated 8 November 2024 and 13 November 2024 be Set Aside.
2.   That the case be dismissed or quashed to ensure fairness and procedural justice, OR
3.   THAT HER HONOUR MAY MAKE SUCH FURTHER OR OTHER ORDERS AS THE COURT DEEMS APPROPRIATE IN THE CIRCUMSTANCES, SUBJECT TO THE CHILD NOT BEING FORCED TO SEE THE APPLICANT/MOTHER AS ADVISED BY THE CHILD’S DOCTORS.
The Court, in coming to its determination in respect of the final parenting orders has not had regard to, nor has it read, any of the evidence which has been filed by the respondent in support of the interim application after final judgment was reserved.
On the making of final orders in a proceeding, any interlocutory order made in the proceeding pending further order is automatically discharged and ceases to have continuing effect.[24]
[24] Rule 5.01 Federal Circuit and Family Court of Australia (Family Law) Rules (Cth).
Final orders in this matter are being made before the respondent’s Amended Application in a Proceeding is first returnable before the Court. By the making of these final orders any pending interim application is finalised.
The Dynamics of the Parties’ Relationship and Other Relevant Matters
It is the respondent’s case that in early 2011 the parties commenced a ‘consensual intimate relationship’ where they would occasionally live together in an ‘on and off again’ relationship until around 19 January 2020. Such a case has not been established on the evidence.
The parties met in late 2010/early 2011, when the applicant was working at a retail store and the respondent was a customer. They commenced a relationship in 2011.
In 2012, a few weeks after learning that she had fallen pregnant with Q, the applicant moved into the respondent’s home at Suburb D.
After the applicant moved in with the respondent, he asked her to convert to Catholicism, but the applicant refused to be baptised.
Throughout the parties’ relationship, the applicant owned a property at Suburb D, where the parties had spent time and/or lived together at relevant periods, this being a property he purchased in about 1993.[25] The respondent has remained living at the Suburb D property at the time of final hearing.
[25] Exhibit 25A at “Chronology”.
After moving in together and for a period of about 4 months, that is until about mid-2012, the respondent accompanied the applicant every time she left the house. He attended her workplace at least 3 times per week, and stood at the front counter during the applicant’s shift. The respondent would explain to the applicant that he did not trust her, and that he wanted to be there in case a customer asked her out. This stopped in about mid-2012, when the respondent told the applicant that he no longer needed to attend her work, as nobody will want her now because she looked like a pregnant woman.
Between mid to late 2012, the respondent would not return to the parties’ home in Suburb D on 2-3 occasions per week. In the circumstances, it is open to infer that on the days that he was not sleeping at the Suburb D home, the respondent was staying with Ms AA. No such admission was ever made to the applicant by the respondent, and indeed at the time the applicant was unaware of the respondent’s relationship with Ms AA.
The applicant worked at the store until the day prior to Q’s birth. In 2012, the respondent took the applicant to Y Hospital where she gave birth to Q. Following complications during the birth, the applicant required surgery and remained in hospital for a week.
During the applicant’s convalescence in hospital, the respondent told her that he wanted to bring his daughter and her mother to live in the same home with the parties. The applicant was not aware that the respondent had a young daughter with another woman, and believed that when he approached her in hospital he was referring to his former wife and one of their children. The applicant told the respondent that neither her nor Q would live with the respondent’s former partner and their child.
After being discharged from hospital with Q, the applicant returned to the respondent’s home where she saw beds and pink children’s clothing. The applicant then said to the respondent ‘I have to go to my brother’s house. I can’t stay here if you are moving someone else in. I am taking [Q] with me.’ The applicant and Q were then picked up by the maternal uncle from the respondent’s home, and they lived with the maternal uncle for one month before moving to a rental property on their own.
In 2013, when Q was around four weeks old, the applicant expressed a wish to the respondent during a phone conversation to have Q blessed at her church. The respondent replied ‘No. I don’t want my son to be [the mother’s religion]. I am going to baptise my son a Catholic.’ In 2013, Q was baptised. The applicant attended the baptism.
During the time that the applicant and Q lived in their own rental premises and away from the respondent’s home, P and Ms AA lived with the respondent.
Between January and April 2013, the respondent spent time with Q each Friday from 3pm to 5pm at the applicant’s home.
In 2013, the applicant travelled to Country BB for a period of two weeks as her father was unwell. While the applicant wanted to bring Q with her, the respondent would not give consent for Q to travel, and consequently she left Q in the respondent’s care while she was away.
In 2014, the applicant travelled to Country BB following her father’s death and Q stayed with the respondent, again, because the respondent refused to consent for Q to travel with the applicant.
The respondent asserts that the reason he did not allow Q to travel with the applicant is because of a threat that the applicant made, namely that she was thinking of taking Q and never letting him see the respondent again. The Court does not accept the respondent’s evidence in this regard. The applicant was travelling to Country BB following her father’s death. The respondent’s allegation is fanciful. It is part of his narrative in respect of the applicant being unfaithful, seeing her former boyfriends, and threatening to kill him. It is nonsense.

Upon the applicant’s return to Australia, the respondent refused to hand Q over to her until she accepted his Facebook request. Such a request by the respondent, is part of the controlling or coercive pattern of behaviour he has consistently exhibited towards the applicant during not only their relationship, but also afterwards.
Between January 2014 and January 2016, Q lived with the applicant and spent time with the respondent from 8am each Thursday until 7pm each Friday. The applicant would work on Thursdays and Fridays while Q was in the respondent’s care.
It is the respondent’s evidence that in or about mid-2014, the applicant threw a stiletto shoe which hit and shattered a large glass photo frame following an argument where the respondent objected to the applicant visiting ‘a new love interest’. The respondent claimed that the applicant wanted to leave Q in his care and go see ‘a rich man’. The respondent’s evidence is that he would not allow it and that he wanted the relationship to be exclusive for Q’s sake. The respondent says that the applicant then tried to strangle him, but that he was able to wrestle her hands off his throat. None of these matters were put to the applicant in cross-examination. The respondent’s evidence about these matters is part of a running theme in the respondent’s case of the applicant’s many alleged infidelities.
The reason why the story is important, is because Q complained about the applicant throwing a shoe at the respondent, when he spoke to the police on 31 January 2020. At the time of the police interview Q was 8 years old. Q would have been about 18 months when the stiletto throwing incident was meant to have happened. There is little to no possibility, and very high improbability, that he remembered any such event. Furthermore, it is highly concerning that this is one of the cluster of reasons he gives as to why he says he does not like the applicant.
In or about mid-2014, while the applicant was working in a shop, the respondent would regularly attend her work. The respondent asserts that Q was usually left alone in the applicant’s unit and that this is the reason he would attend her workplace. During cross-examination, the respondent agreed he would attend the shop, that he would go into the shop through the back or through the front and sometimes buy food. The respondent said that the applicant knew that he was coming. When asked whether his behaviour in this regard was deceptive, the respondent replied that he had the applicant’s approval, thus suggesting she consented to being checked upon and controlled in this manner. The Court does not accept the respondent’s evidence that he had the applicant’s approval and indeed finds that the respondent’s explanation and reasoning is supportive of a finding of the respondent engaging in coercive or controlling behaviour.
The respondent claimed that on or about 9pm in mid-2014 he visited the shop. He noticed Q was nowhere to be seen, and that the applicant then told him that Q was alone in her unit. The respondent then apparently told the applicant Q should not be left alone, and he drove to the applicant’s unit and stayed the night after waiting for the applicant to return. During cross-examination, the applicant was asked about this. The applicant’s evidence is that she had stopped working by 9pm as the shop was closed by this time, and that she did not leave Q in her unit alone while working at the shop.
The respondent claimed that on the following day, he took Q to stay for a couple of days with him and P.
If the respondent’s allegation that the applicant left Q alone and unattended in her home, while she was at work for hours at a time, is true, the applicant would then be guilty of neglect. If the respondent knew that this was happening, as he suggests in his evidence, then leaving Q in the applicant’s care in those circumstances makes him just as culpable.
The Court does not accept the respondent’s evidence that he attended the applicant’s work to check on Q on this occasion or indeed any other occasion, but rather that this was part of a pattern of coercive or controlling behaviour which he engaged in, by attending the applicant’s work, checking up on her, and exerting his control even further by staying the night at her home.
In mid-2015, the parties travelled to Country BB. The respondent describes a certain event occurring during the parties’ trip, which is referred to in more detail later. It forms part of the allegations the respondent makes against the applicant and/or members of her family.
In or about January 2016, the applicant and Q moved back in with the respondent, and lived at Suburb N, after the respondent told the applicant that P and Ms AA no longer lived with him. This is where the applicant lived with Q and the respondent, until April 2019. The property in Suburb N was purchased by the respondent in about mid-2015 and sold in mid-2019.[26]
[26] Exhibit 25A at “Chronology”.
In about February 2016, the respondent started sleeping elsewhere two to three nights throughout the week. When the applicant asked the respondent where he had been sleeping, he replied to the effect ‘I have been at the club… You should be happy. I have given you a house to live in with [Q]…’.
In June 2016, the respondent applied for P to attend W School at Suburb T to commence in 2017.
In August 2017, the respondent applied for Q to attend W School, Suburb T to commence in 2018.
In September 2017, the respondent contacted police in relation to the applicant. The police record notes:[27]
About 10pm on Saturday […] September 2017, the victim wanted to give his son some milk as he was asking for some. The PN refused him to give him milk as he and already had some and this started a verbal argument. The argument continued for some even the PN standing in front of the fridge not allowing him to get the milk. The victim managed to get the milk from the fridge after threatening to contact Police and gave it to his son. The victim contacted Police the following day for advice on what he should do in future if this happens. Police spoke with the victim and offered some advice. The PN was not home at the time as she had gone to work. Police checked on the children who appeared well. Police attended the workplace of the PN and spoke with her also.
(errors in original)
[27] Exhibit 18.
The respondent’s complaint to the police is extraordinary, as is the fact that the police attended to check on P and Q, and spoke to the applicant about the respondent’s complaint.
In or about late 2017 or early 2018, the respondent claimed Q made a disclosure to him of a sexual nature in respect of the applicant, which is referred to in more detail later. It forms part of the allegations of sexual abuse the respondent makes against the applicant and/or members of her family.
In about 2018 the respondent said to the applicant ‘You are not allowed to go to [Q]'s school to pick him up because you do not pay for [Q] 's private school fees. If anyone sees you there, they will ask you to pay ... You're not Catholic so you're not allowed on the school grounds.’
In December 2018, there was an incident between the parties involving knives, which is referred to in more detail later. It forms part of the allegations of family violence the applicant makes against the respondent.
In about March 2019 the applicant contacted a real estate agent about finding a rental property for Q and herself. At the time, the respondent was accessing the applicant’s emails. When he saw an email from the real estate agent, he said to the applicant ‘Don’t find a rental property or I will give you trouble.’
During cross-examination, when asked whether she gave the respondent access to her emails, the applicant said that she did not give him permission to access her emails. The respondent, during cross-examination, stated the applicant had given him access to her emails and that he would access the emails for the purpose of contacting migration agents and for other reasons which he later explained to be because of the applicant’s ‘fraud’ and he needed evidence. The respondent also said that he would access the applicant’s Facebook account to check if she was doing anything other than what she had told the respondent, as she had told him she was going to be hiding her properties overseas and that she was seeing other men.
On the respondent’s own evidence, he was clearly exercising control over the applicant.
The parties separated in April 2019, when the applicant moved out of the respondent’s home. Q remained living with the respondent.
The respondent claimed that in late-2019 the applicant said to him ‘I will avoid paying child custody to you by disclosing less income. I don’t want to be stuck paying wasted child support money like “[…]” [my friend’s husband] does to his ex-wife.’ The respondent further claimed that on or about 3 May 2020, the applicant again made similar comments. Such allegation, that is that the applicant was trying to avoid paying child support, was repeated by Q to Ms FF. This is part of the false narrative which the respondent built up around the applicant to Q.
The respondent maintained in these proceedings that the parties had not separated until January 2020. During cross-examination, the respondent said on the one hand that separation occurred when the applicant left the home, but on the other hand that he did not think that was going to be permanent, and that he considered separation on a final basis was in January 2020. The respondent further said that he believed the parties were in a relationship for about nine years, even though the applicant was having affairs with other men ‘because I was trying to win her over’. The refusal of the respondent to accept that the applicant had decided to separate from him and end the parties’ relationship is part of a pattern of behaviour of coercion or control exercised by the respondent over the applicant.
The Day of Separation
In April 2019, the applicant had planned to leave the respondent, and take Q with her. In preparation she had packed a bag of clothes and items for Q and her, and had left the bag in her car. She went to work, driving her car as usual. When the applicant finished work the bag of clothes was missing from the back seat of her car.
The respondent had a spare key to her car.
The applicant then tried to call the respondent twice just after 4pm but he did not answer. She guessed Q was with the respondent. The applicant waited for her boss to finish at 9pm because she was scared to go home by herself.
The applicant arrived at the house in Suburb N after 9pm but the respondent’s car was not in the driveway. The applicant then drove to the respondent’s property in Suburb D but the respondent was not there, after which the applicant drove back to the house in Suburb N and called the police who arrived at around 10pm.
After the police arrived the applicant entered the property and begun to pack a bag as she spoke to the police. The respondent and Q arrived home about ten minutes after the police.
The police spoke to the respondent, following which one of the officers said to the applicant ‘If you don’t feel safe, you go. But don’t take [Q] with you. It is too late. Leave him here with his dad. You go to your friend’s house and if you feel better after a few days, you can come back home.’
In a COPS entry for April 2019, the police record that the applicant called them saying that she was locked out of her house and that her ex-partner is her landlord. Following this, the report noted that:[28]
Police arrived a short time later to find the PN sitting in her car at the loc. The PN has the house keys and stated she was scared, but would not explain why. The PN told Police her ex husband had taken her things, and that he was not home. Police accompanied the PN inside the location as requested. The PN would avoid Police questions and answers she did give were unclear. The PN stated that the VIC did not live at the location. Police asked if he had items there, and she replied “yes, in his room”. Police were unsure exactly what she meant however upon entering the home discovered that the VIC had the master bedroom set up with his belongings and appeared to reside there. A short time later the VIC arrived in his vehicle, with their son. The VIC informed Police that he was of the believe that the PN may be experiencing mental health issues, and that though they are separated having been living together, in separate rooms. The VIC stated that the PN gets excessively paranoid and even knocks on neighbours doors to say that the VIC is holding her there. The VIC states the PN will tell people that he has threatened her with a knife before, however Police are of the opinion this had not occurred, as the PN stated many things and appeared to be lying as her stories changed constantly in such a short time of conversation with Police. Police confirmed that the VIC does indeed reside full time at the location. The PN kept asking for her laptop and other items however Police explained this was a civil dispute. Police negotiated that the PN stay with her family for the night, and the VIC and their son stay at the location as this is where their son lives, and the VIC. At the end of this negotiation, the PN states she would not leave until she gets her laptop. Police stated they will not tolerate ongoing civil arguments and that the child comes first. The PN left. Verbal only, no further action.
(errors in original)
[28] Exhibit 5.
The applicant was cross-examined about the police record. She denied that she had told the police that the respondent was her landlord, as he was not her landlord. The Court accepts the applicant’s evidence. It is likely that the police misunderstood the applicant and came to a conclusion which did not accurately reflect the living arrangements between the parties. The respondent did at the time have a property at Suburb D. The applicant’s evidence throughout these proceedings is that the respondent was not staying full-time with her and Q, but that he would be away from the home some nights each week. The police notes can be understood in the context of the applicant’s evidence. When so understood, they are not inconsistent.
Furthermore, the police conclusion that they are of the opinion that the applicant had not been threatened with a knife by the respondent is just wrong. She had been so attacked. It appears that the police did not speak to the applicant about this at all at that point in time, and that they just accepted what the respondent had been telling them. This is concerning.
This was also not simply a ‘civil argument’. It was the respondent exercising control over the applicant, who was vulnerable in all sorts of ways: English is not her first language, she had been under the respondent’s surveillance and control for some time through her emails, by him coming to her work regularly and watching her while she worked, by having a key to her car, and by the many concerning things that he said to her over the period of their relationship, some of which are noted in these reasons.
The respondent was cross-examined about the events of the day of separation.
He stated that the parties had many arguments and that although he could not recall specifically when, on one occasion during an argument, he had a pair of scissors in his hands as he was cutting craft work for Q, and that the applicant went to the neighbours and told them that he had pulled a knife on her. The respondent said that he did not do anything to the applicant. Such evidence was given in answer to the question ‘So you wanted her to stay?’[29] It was volunteered information and non-responsive to the question that was asked, as was typical of the way the respondent answered many of the questions put to him in cross-examination.
[29] T:206.21-29.
The following day the applicant told the respondent that she wanted Q to live with her and for him to move schools. The respondent said no. The applicant then asked if she could see Q on weekends to which the respondent said ‘You can only see your son if you come back to live with me in [Suburb N].’
During cross-examination, the applicant stated that she did knock on the neighbour’s door once when the respondent threatened her with scissors. Initially she said that this happened two days prior April 2019, but later in cross-examination she said that this happened a couple of days after she made a report to the police, in April 2019. It is possible that the applicant is mistaken about the later date, given that the respondent mentioned a similarly described event when he spoke to the police in April 2019. It is not an event otherwise mentioned in the applicant’s evidence.
Q’s time with the Applicant after April 2019
Between April and August 2019, Q spent time with the applicant every Saturday and Sunday for about three to four hours at a time in the presence of the respondent.
Between August 2019 and January 2020, Q spent time with the applicant on the weekends from 5pm on Friday. The overnight time occurred at the applicant’s home, and it was usual practice for Q to co-sleep with the applicant. Such time was conditional upon the applicant engaging in sexual intercourse with the respondent, as discussed at [233] below.
On occasion, the respondent and P would also be present when Q was spending time with the applicant. These matters were determined by the respondent. One such occasion was in October 2019, which is referred to in paragraph [357].
On 21 October 2019 at 8pm, the applicant was face-timing Q who was in his school uniform. When she asked him if he was alone, Q said he was for ‘Just one minute’. The applicant said that she was on the phone with Q for sixteen minutes before the respondent and P returned, when the call was ended abruptly after Q held the phone close to the respondent’s face.
On or around 19 December 2019, the applicant received a call from Q at about 11pm asking her to call the respondent as he had not returned home. Q was crying and she could hear P crying in the background. The applicant tried to call the respondent who did not answer, and she then called the police who said they would attend the house. The applicant then called Q back and told him she was coming over. At around 11:30pm, the applicant drove to the respondent’s house in Suburb D. It was then that the respondent sent her a text message not to come and that he was asleep in the second bedroom. When she arrived, the applicant saw the respondent’s car in the driveway, but she did not want to go inside to see the respondent in case it caused an argument, and drove back to her house.
On 26 January 2020, Q spent the long weekend with the applicant, including going to the zoo with her. On the following day the respondent took Q to the police to make a report about an alleged disclosure of sexual abuse of Q by the applicant. These matters are discussed in detail at [267] below.
Around 7 March 2020, the applicant started contacting the respondent regularly about seeing Q.
On 2 April 2020, in reply to a request to see Q the respondent answered, ‘The corona virus risk is too great. I am waiting for medical advice before you can see him’.
On 3 April 2020, in reply to a request to see Q the respondent answered, ‘Medical professionals are not keen to recommend anyone visiting during the corona virus outbreak ... [Q] does not want to see you’.
On 17 April 2020, in reply to a request to see Q the respondent answered, ‘You can see him only if you have a corona virus check up’.
On 20 April 2020, in reply to a request to see Q the respondent answered, ‘asked him but he doesn't want to talk to you sorry’.
On 10 May 2020, the respondent had agreed for Q to spend time with the applicant, but only in his presence. While they were at QQ Shopping Centre the respondent said to the applicant in front of Q and P ‘If you want to see [Q] every day, come back to me. Be a good wife’.

On 23 May 2020, Q spent time with the applicant, with the respondent being present and refusing to leave. The same occurred on 30 May 2020 and 8 June 2020.
On 14 June 2020, Q spent time with the applicant. The respondent was present and refused to leave. The respondent claimed that on or about this date he met up with the applicant and Q at QQ Shopping Centre, that the applicant tried to hug and kiss Q numerous times, and that Q feared getting coronavirus, but that the applicant ignored his pleas. The respondent claimed the applicant stormed off when Q told her he did not want to get coronavirus. The applicant’s evidence is that she said ‘I might as well go home, if that’s the case’ as Q was not speaking to her, and that she accepted his instructions not to kiss and hug him. The Court accepts the applicant’s evidence about what occurred on that occasion.
On 18 June 2020, the applicant was speaking to Q on the phone and he said to her ‘After you talk with us- with me- you just meet other men… Stop chatting with other men. Mummy it's not the right thing to do ... Do what the Catholics do. Get together again with daddy, pray to Jesus and be a good mother. Imagine how we feel, not just you ... You should be a good mother especially like the ones who believe in Jesus…’.
On 21 June 2020, Q spent time with the applicant, with the respondent being present and refusing to leave.
Time between Q and the applicant then essentially stopped until after the commencement of proceedings.
On 17 July 2020, the applicant messaged the respondent after trying to call Q. The respondent replied, ‘I don’t want to talk to a person who labelled me a rapist.’
On 12 August 2020, the applicant received the following text message from the respondent:
You have now made [Q] more traumatised by getting the police to call over at his home at 8:30pm tonight ... You made him more worried and scared of you ... The police are aware that you are getting desperate to force [Q] to be controlled by you...
Apart from the assertion in the respondent’s text message to the applicant, there is no evidence before the Court that the applicant contacted the police in August 2020. The applicant’s evidence is that she did not contact the police to make any reports in August 2020.
During cross-examination, it was put to the respondent that since 2020 he has continued to use Q as a means of furthering his control and coercion over the applicant, because she did not abide by the respondent’s rules for her. The respondent said ‘No, I would never do that to my son’. The respondent’s actions speak exactly to him doing so. Not only did the respondent manipulate the applicant to suit his own perverse needs, he also manipulated Q.
On 8 March 2021 at 8:45am, the applicant received a call from Q’s phone number that she answered but there was silence for about twenty-three seconds before the call ended. The applicant called back immediately, and the respondent answered the call, and said ‘wrong number’ before ending the call. At 9:55am the applicant received a text message from the respondent’s number:
Sorry I must have accidentally dialled your number this morning with his phone ... It is his phone given to him by a mother who has never offered unconditional love towards her son. [Q] told me, the psychologist and his sister that he does not want to be forced to see you. But you could have at least offered remote parent approval on important Apple updates including the COVID-safe app before he is comfortable enough to trust and see you.
On 20 March 2021, the applicant ran into Q, P and Ms AA at QQ Shopping Centre. Q smiled and hugged the applicant, and that she and Ms AA had a conversation as follows:
Applicant: “…I haven't seen my son since June.[30] [Mr Castelli] made allegations about me, but they weren’t true.”
[Ms AA]: “He did the same thing to me. He took [P] to the police station to make a report about me too. Then [P] went to live with him... [Mr Castelli] has only just started letting me see [P] again... I will just agree to see [P] when [Mr Castelli] allows me to.”
Applicant: "Are you with [Mr Castelli] now? Like together?"
[Ms AA]: "No. I am not in a relationship with [Mr Castelli].”
[30] It is unclear what allegation the respondent made against the applicant in about June 2020.
The applicant and Ms AA then took the children to lunch. After about fifteen minutes P answered her phone, Q looked at P and stopped what he was doing. The applicant then leant closer to Q but he moved away, expressing concern about the coronavirus, and the applicant replied that she did not have coronavirus. The applicant could see Q was very worried, and she then said goodbye and exchanged phone numbers with Ms AA.
On 27 March 2021, the applicant received a call from Q asking her to visit QQ Shopping Centre. The applicant then met Q, P, and Ms AA for a second time. The visit lasted for half an hour. Q appeared to the applicant to be relaxed. He hugged her and told her ‘I love you mummy. I miss you.’
On 8 April 2021, Q video-called the applicant to tell her that he was staying at Ms AA’s house that night. They spoke for about thirty minutes.
On 28 May 2021, Q called the applicant from Ms AA’s phone and said ‘Hi mummy, I am staying at aunty [Ms AA]’s house. I miss you. I want to see you, but daddy says it is not the right thing to do.’
On 16 August 2021, interim parenting orders were made by consent for Q to live with the respondent, for Q to spend time with the applicant from 11am until 3pm each Saturday, and for Q to communicate with the applicant each Wednesday between 5:30pm and 6:30pm and any other reasonable time Q may request. During cross-examination the respondent said that as far as he remembered he did not consent to the orders, and that his solicitors made the orders without his express instructions or consent.
There was never any application to the Court to discharge the orders made on 16 August 2021, on the basis that they were not consented to. There is no evidence that the respondent ever made any complaint against his solicitors, who remained on the record until 7 January 2022. The Court does not accept the respondent’s evidence that his solicitors had consented to orders on his behalf without his instructions.
The respondent claimed that on or about 20 August 2021 Q spoke to a counsellor at Helpline, that Q was asked to write a list of things that made him feel calm and safe, and that he saw Q write ‘Be close to my Dad and Sister; My Dad loves me; I am at Daddy’s House; My Mum is not here’. He was asked questions about this in cross-examination. The respondent said he called Kids Lifeline at the request of Q, when asked if he thought it was a good idea the respondent replied ‘Well, I wasn’t told otherwise’. When the respondent was asked about what Q had written down during the call and it was suggested that Q was disappointed the applicant was not part of the household, the respondent replied ‘I don’t know if he was disappointed about that’ and that to him what Q had written was a complaint about the applicant.[31]
[31] T:265.27 to T:268.14.
On 23 August 2021, a medical certificate was obtained for Q to provide to the applicant. The certificate read ‘We are in COVID Pandemic and I recommend strict health and safety measures should be enforce[ed] so maintaining distance of 1.5 metres/face mask should be worn/avoidance in crowded place’.
As noted earlier, on 1 September 2021, Q attended his first session with his psychotherapist and counsellor Ms KK.
On 4 September 2021, the applicant was to spend time with Q. The applicant arrived at Suburb RR McDonald’s with her friend Ms SS (‘Ms SS’), as permitted by Court orders, at around 10:50am. At around 11:08am the respondent arrived, with Q and P who exited the car and walked over to the applicant’s car. The applicant got out of her car, and Q then handed her the certificate dated 23 August 2021 from his doctor and said ‘Mummy, I don’t want to get in the car with you because I don’t want to get corona virus from you.’
The doctor’s certificate was from a general practitioner who was neither Q’s nor the respondent’s usual doctor.
The applicant read the doctor’s certificate which set out general recommendations for the pandemic and she then told Q she did not have coronavirus. The respondent exited his car and walked over, and the parties had a conversation. The respondent said ‘[Q] wanted to go to the doctors to get the certificate. The covid restrictions do not allow for visits to take place in people’s homes… I am going to make a phone call to NSW Health to check.’
The respondent then walked away to make a phone call which lasted for five minutes, and when he returned they had the following conversation:
Respondent: "Look, why don't you just go into McDonald's and sit with [Q] and [P] in there or we can all go to a public place?"
Applicant: "McDonald's aren't letting people dine in at the moment because of the restrictions. I want [Q] to come with me only and leave [P] with you."
Respondent: "No. [P] is going with you if you are spending time with [Q]."
Applicant: "Please [Mr Castelli], can I just take [Q] with me now?”
Respondent: "No. You're not allowed to have him in your home."
Applicant: " [Mr Castelli], we agreed on the Orders that I can spend time with [Q]."
Respondent: "You should talk to your solicitor and review the Orders. You should withdraw your application to the Court and do a formal arrangement where you spend time with [Q] at the park."
The applicant bought meals for Q and P, handed them to the children sitting in the respondent’s car, and when Q did not say anything, she asked if he wanted to come with her and Q said no.
The respondent’s oral evidence about the reason for obtaining the doctor’s certificate was troubling.
During cross-examination, the respondent said that he took Q to see the doctor on 23 August 2021 because Q was highly distressed. The respondent said that Q asked the doctor for the certificate because ‘with all the meetings beforehand…’ the applicant wanted to hug and kiss him. Q got scared and ‘didn’t want to end up hugging and kissing mum’. When Q said no the applicant persisted, and that Q was ‘terrified for that happening again’. The respondent said that Q was in high stress, that he did not want that to happen, and that the applicant threatened Q that if Q did not hug and kiss her that she would go home and that Q would never see her again.
The following extract[32] is an example of the respondent’s attitude to Q spending time with the applicant in that period, the evidence was given after the respondent explained why he took Q to see the doctor on that occasion, as noted directly above:
[32] T:152.43-153.29
Counsel:When – so you just told me now that [Q] expressed these fears to you about the mother hugging and kissing him?
Respondent:     Also to the doctor.
Counsel:        Yes. And this happened on 23 August 2021?
Respondent:     No, it happened before that. It happened before that. When she used to get together with us at [QQ Shopping Centre] she was saying those comments. And so he was afraid because she resisted. And she came over with a doctor’s certificate. And she actually showed it to [Q] that she was off work for three days. And [Q] ended up hearing what the mum was saying because she said she still wanted to hug and kiss him, even though she had a doctor’s certificate. She had a virus. And [Q] didn’t want to hug and kiss her, and she persisted to do it. And then she said to me that she was going to go to work the next day in the COVID pandemic because she is the most valued customer – valued staff member there. My son heard all this, and he knew a lot because he was very conversant with all the pandemic at the time. He was quite scared of getting it from people. And [Ms Ellul] said to him, “don’t worry, [Q], I’ve had the vaccine.” This is in a later time, after that time that she came with a doctor’s certificate. But at that particular time, he was scared. He didn’t want to hug and kiss her. She resisted. And she said she was going to go to work the next day, irrelevant of the doctor’s certificate. So I actually reported her – I shouldn’t be saying this, because I didn’t want her to know because I’m scared for my life. But I reported it to the police, and they said they were going to contact her, because she showed me the certificate. She still persisted. My son was scared. I wasn’t scared. I wasn’t worried about it. Right? Because I don’t think I would get COVID because I would keep myself fit, or then. But - - -
Counsel:        So - - -?
Respondent:     Go on. Sorry.
Counsel:you reported to Crime Stoppers that the mother showed you a doctor’s certificate which said she is away from work for three days?
Counsel:No. I told him that she persisted to hug and kiss him, irrelevant of the doctor’s certificate, and didn’t care about it - - -
Counsel:        Is a crime to hug – for a parent to hug and kiss a child?
Respondent:     If she has got a COVID – COVID vaccine. She is not living in the house. And my son was scared. He didn’t want to hug and kiss her. She didn’t care about what he thought.
On 11 September 2021, Q was to spend time with the applicant. The applicant was at Suburb RR McDonald’s and called the respondent at 11:10am to ask where they were. The respondent said he was at the McDonald’s in Suburb UU, and he asked the applicant to drive over there. The applicant declined. The respondent then arrived at change over with the children at about 12:11pm.
As Q and P got out of the car Q said to her ‘I am scared of getting COVID-19 from you. I don’t want to go in your car, mummy.’ The applicant then showed Q the message from NSW Health confirming her negative test result dated 10 September 2021.
The respondent then got out of his car, and she showed the respondent the same message. However, the respondent said ‘The kids don’t want to go with you. It is not me. They are very smart. They have learned from school… we’re leaving now.’ The applicant said goodbye to Q and they left. During cross-examination, the respondent said he could not remember what he said, but that Q did not want to see the applicant on that occasion.
On 18 September 2021, Q spent time with the applicant. When they arrived Q and P walked to the applicant’s car, and Q said he did not want to get COVID-19 from her. The applicant told Q that they could go for a walk in the park, and when she approached the respondent to tell him they were going to the park the respondent said ‘[P] is going with you. They like to go everywhere together. [P] will keep an eye on you and [Q].’
As P, Q, Ms SS, and the applicant walked away from the carpark the respondent exited his car and followed at a distance. Q looked back with a worried look on his face, but after a few minutes they could not see the respondent anymore. The applicant spent time with Q between 11:10am and 1:20pm. During this time P answered her phone approximately three to four times, and each time P answered the phone Q stopped what he was doing and went to P. P then approached them and said ‘We have to go back now’.
The applicant walked the children back to the McDonalds carpark, she bought them lunch from McDonalds, and at 2:08pm she walked the children back to the respondent’s car. Q did not say goodbye but did give a little wave before getting into the car.
On 18 September 2021, Ms KK authored a “Support Letter for [Q] in regards to custody decision” in which she confirmed that Q attended a session with her on 1 September 2021 in person and on 18 September 2021 online, and that there was another online session booked for 28 September 2021. That letter read:
I am writing this letter to clarify and confirm that during [Q]’s individual psychological sessions with myself, he has self-disclosed that he has been feeling anxious and unsafe when he has to leave his dad, [Mr Castelli], to meet his mum. There were panic moments reported by [Q] when he met mum 4th September. Situation 1: when [Q] was requested to get into his mum’s care; Situation 2: when [Q]’s mum tried to give him cuddles and kiss; Situation 3: when mum requested to take him to a park nearby individually. [Q] expressed his fears in getting germs that could cause the flu or COVID and requested mum to keep social distancing but failed. On top of it, [Q] self-disclosed that he felt extremely anxious when he had to leave dad from a distance.
(errors in original)
Questions were asked of the respondent as to why he took Q to Ms KK, initially he said he could not remember but, when pressed, he said it was because Q told him he was stressed about his mum. The respondent conceded that the report did not mention any disclosures of sexual assault.
On 25 September 2021, Q was to spend time with the applicant. When the respondent arrived with Q and P, Q said he wanted the respondent to go with them or he would not go with the applicant. The applicant refused to have the respondent accompany them, and she said goodbye to Q. The applicant and Ms SS then went to the park. At about 12:50pm she saw the respondent and the children arrive at the park. She waved at Q who waved back before changing his expression. The applicant then watched Q eat his lunch before she left the park.
On 2 October 2021, Q spent time with the applicant. The respondent arrived with Q and P at 11:25am, and Q said to her ‘I want daddy to come with us to keep an eye on me.’ The applicant replied ‘oh, it’s okay [Q]. We will go to the park?’ Both Q and P nodded and walked with the applicant to the park.
The applicant watched the respondent start his car engine and follow slowly in his car. After five minutes of walking she glanced behind but could not see the respondent’s car. They arrived at the park at about 11:35am. P and Q were playing on the playground, when the respondent approached at about 12pm. Q’s movements were slower and he kept looking over to the respondent. Q did not stand close to the applicant after the respondent arrived, and at 12:20pm Q said he wanted to go. The applicant walked Q and P over to the respondent, said goodbye to Q, and left.
At each visit between 9 October and 27 November 2021 Q would approach the applicant’s car and tell her that he did not want to spend time with her without the respondent present, and then walk back to the respondent’s car before driving away after five to ten minutes.
On 29 November 2021, Orders were made by consent for changeover to occur by way of the supervision service VV Centre. The applicant said she contacted VV Centre in accordance with the Orders.
On 4 December 2021, Q was to spend time with the applicant. The applicant had an extensive text message exchange with the respondent as noted below, and time did not occur.
Applicant: Good morning, [Mr Castelli], I will see you today at [Suburb RR] McDonalds at 11am.
Respondent: Good morning [Ms Ellul]. My solicitor told me that [Q] is no longer required to see you at [Suburb RR] ... [VV Centre] are now handling “changeover” as agreed in Court for the best interest of [Q]...
Applicant: Only both parents contact them. I have done since Monday but they didn't hear from you. So they can't do anything, this week still the same.
Respondent: I was present in Court with my solicitor. My solicitor later confirmed that the previous parenting Order is now “quashed.” Since then, no one contacted me except [VV Centre] until 5pm last night. Please urgently contact your solicitor again.
Applicant: The legal aid is closed today.
Respondent: …My solicitor told me that we (as parents) have to put [Q] first. He is suffering. Please check with your “translator” or [VV Centre] if your solicitor is not available.
Applicant: [Mr WW] from [VV Centre] called me last night ... I don't have to call them again. I filled out the form since Monday.
Respondent: you MUST call him again. I also talked to [Mr WW] last night. We must think of what [Q] wants.
Applicant: I just do what the family law ask me to do.
Respondent: Please call [Q] now.
Applicant: My solicitor told me it is the parents solution.
Respondent: I don 't understand you. Please urgently call [Q]... He wants to talk to you.
Applicant: He can talk to me when I see him. [Mr Castelli] I will see you at 11am at [Suburb RR] McDonalds today.
Respondent: What have you decided for [Q]? He is very stressed out. Please let me know urgently on behalf of [Q]. I have contacted the family law after hours assistance line […].
Applicant: Hi [Mr Castelli]... I am at [Suburb RR] McDonalds now.
Respondent: The previous number was given to me by police. “[…]” took the call. Escalation number […].
Applicant: I don't understand.
Respondent: [Q] does not want to see you. Please give him a call. Please look at page 15 of your signed [VV Centre] agreement (third last paragraph) If you don't understand please show someone who can translate for you. If you still want me to drive to [Suburb RR], I will do it. But I have to “pressure” [Q] to see you. This is against your agreement with [VV Centre].
Applicant: I followed the Court Order on 16/08/2021. I am at [Suburb RR] McDonalds. Wait for you more than 20 minutes now ...

Dr EE is a general practitioner. He was a witness in the respondent’s case. Dr EE prepared an affidavit dated 9 May 2024. Despite two subpoenas being issued to Dr EE for his consultation notes for Q, no such documents were produced to the Court.
Q is a patient of Dr EE. So are both the respondent and P. At every doctor’s visit, the respondent was present with Q.
Not unlike Dr Z, while Dr EE is a treating medical practitioner and as such not a single expert witness, he is still a professional and presumably has expertise in the medical field. Not unlike Dr Z’s evidence, Dr EE’s evidence too was given in a partisan and biased way. Once again, to appreciate the lack of impartiality and bias of the evidence, it is instructive to reproduce the entirety of the affidavit:
[1]      [Mr Castelli] and his young children, are my patients.
[2]      They are seen together in my surgery as a close, loving, and caring family unit.
[3]Master [Q] has confided in me on numerous occasions, expressing that he lacks the confidence to see or talk to his mother.
[4][Q] has disclosed repeated psychological and physical abuse by his mother.
[5]       [Q] overheard his mother threaten his father’s life.
[6]      She also threatened and hurt [Q], even attempting abduction.
[7]In one instance, she gave him a black eye by pushing him into her motor vehicle.
[8][Q] has also revealed that his mother ignores his words and lack sympathy or empathy for him.
[9]       [Q] has sought help from numerous doctors and psychologists.
[10]He also regularly sees [Dr Z], a paediatrician, due to his mother’s psychological and physical abuse.
[11]In my opinion, [Q] is unfit to see or talk with his mother until he feels confident to do so.
Dr EE did not prepare the affidavit which he signed, and he could not recall if the respondent had prepared it. Dr EE suggested that there was another person who had come in with the respondent, and that this person might have prepared the affidavit. When he was asked about specific allegations that were contained in the affidavit and that he must have had access to his notes in order to refer to a particular event in the affidavit, Dr EE said ‘I didn’t make this affidavit.’
Dr EE confirmed that the information which Q provided to him during his consultations with the child, was provided in the presence of the respondent. In respect of the black eye, Dr EE said he did not observe that Q had a black eye, it is just what he told him. He was not able to say on what date Q had told him this.
When it was put to Dr EE that he must have some notes about when Q told him things, he replied with ‘I don’t have the time to look at them’.
In respect of the medical certificate dated 24 December 2022, Dr EE said that Q had come in with the respondent for that consultation, and when asked about the examination he conducted Dr EE said that ‘He has always mentioned that he doesn’t want to be with his mum. And he is afraid to go to his… mother place, you know. He always mentioned like that all the time’. The respondent had told Dr EE that there were problems with custody during the same appointment. The consultation notes which Dr EE referred to during his cross-examination did not make mention of much, just that the respondent had shown him a letter from Dr Z. Dr EE’s opinion as set out in the certificate dated 24 December 2022, was based on what Q had expressed to him.
In respect of the medical certificate dated 28 March 2023, Dr EE’s consultation notes do not shed light on what occurred during the consultation on that day, except to show a referral to a psychologist.
The provision of medical certificates to Q, to support Q not spending time with the applicant, on the strength of the word of the child only, given in the presence of the respondent, is most concerning. So is the fact that Dr EE has sworn an affidavit that he did not write, and that was clearly not prepared by reference to his consultation notes. The lack of understanding by a medical professional as to the gravity of an affidavit and being a witness in parenting proceedings, is astounding. As is the lack of accountability as to what is contained in the affidavit.
Dr EE’s opinion is given no weight.
In a similar vein to enlisting Dr Z and Dr EE, to support his narrative, the respondent has attempted to have Q’s school principal give evidence in his case[68] and he has taken Q to see a psychologist over many years.
[68] Exhibit 15.
FAMILY REPORT
The Family Report dated 27 November 2023 was prepared by Ms FF. In the preamble to the report, Ms FF noted two limitations being Q declining to engage in an observation with the applicant, and the applicant’s husband Mr CC being unavailable for interview.
After outlining the family context and summarising the parenting dispute, Ms FF identified the proposals of the parties and identified the following issues as being in dispute:
(a)The most appropriate arrangements for Q to live and spend time with each parent;
(b)Q’s views and wishes, plus the weight and context to be placed on his views;
(c)Allegations of risk that may be relevant to Q’s care and spend time with arrangements;
(d)The context of Q’s reported refusal to spend time with the applicant and the possible origins of such refusal; and
(e)Q’s relationship with P and the impact of any separation of the siblings.
Ms FF described the applicant presenting as timid by her body language and quietly spoken, and that she appeared to become emotional consistently throughout her interview. Ms FF noted that the applicant expressed being fearful of the respondent, and while she seemingly acknowledged that the respondent loves Q, she identified a number of concerns in respect of the respondent including her relationship with him, and Q’s mental health and emotional well-being.
Ms FF described the respondent as presenting as quite confident and articulate yet self-conscious at times, providing extended answers to questions and often apologising for talking too much. Ms FF made note that the respondent made comments throughout the interview about his sexual activity in the past and physical appearance which she would deflect. Ms FF also noted that the respondent said he loved the applicant when they were together, that despite the allegations made against the applicant he believes in ‘forgiving and forgetting’, that he believes the applicant and him can manage the care and spend time with arrangements for Q between themselves without having the matter before the Court, and that he feels Q’s wishes need to be heard and that he should not be forced to spend time with the applicant.
Ms FF observed Q to be quite withdrawn, and his affect to be extremely flat except when interacting with the respondent and P. Ms FF noted that Q appeared reluctant to answer questions, that his responses were disjointed and not related to the questions asked, and that when asked about the applicant he discussed all of the allegations unprompted and stated he feels ‘very scared’ when he sees the applicant and that he would feel scared if he saw the applicant for even one second, especially without the respondent present. When asked about any positive aspects of his relationship with the applicant, he continued to make negative comments such as the applicant not wanting to pay ‘child custody’ and that she has properties in Country BB she is ‘hiding’. During her interactions, Ms FF observed that Q appeared to avoid eye contact, seemed nervous, was fidgety, looked down to the floor, and spoke in a quiet and timid tone.
In respect of P, Ms FF noted she presented as confident and animated, and made eye contact and smiled. P told Ms FF that her and Q’s relationship was ‘strong’, and that Q’s relationship with his mother was ‘broken’. When talking about the applicant, P told Ms FF that the applicant would hit her and not give her milk when she spent time with her.
Parental understanding of risk
When considering the risk of family violence, Ms FF outlined a number of the parties’ allegations, noting that both the applicant and the respondent denied the allegations made by the other.
Under the heading ‘Child Safety and Wellbeing’, Ms FF outlined the concerns each party raised in relation to the other. The respondent stated to Ms FF that there were several incidences where the applicant would make Q uncomfortable while she was spending time with him and provided an example, that the applicant would always treat P poorly and was violent towards her, and that the applicant would threaten Q that she would kill the respondent if Q told the respondent about her ‘fake marriage’. The applicant told Ms FF her concerns for Q as she believes the respondent leaves Q and P at home alone when he gambles, and that the respondent is manipulating Q and telling him vexatious stories about her and the way she has treated Q.
When considering drugs and alcohol, Ms FF noted the respondent’s concern the applicant gets ‘drunk quite easily’, and that the respondent reported concerns for the applicant’s mental health. The respondent also informed Ms FF of his diagnosis of depression and that he has been on antidepressant medication for the last thirty years. The applicant told Ms FF that the respondent has anger issues and had threatened to commit suicide in the past.
Parental understanding of the child’s needs
The applicant expressed that she likes Q to have a structured routine, and that it is important for children in separated families to be encouraged to have a positive relationship with both parents so that the child knows they are loved. The applicant also identified that there are things she needs to work on in relation to her parenting, stating she can be ‘a bit weak’ and ‘maybe oversensitive’ causing her to become quiet and feel anxious. Ms FF noted that the applicant appeared to be struggling significantly with the loss of the relationship with Q, and that she was teary throughout the interview and found it difficult to articulate strategies to mend the fractured relationship.
The respondent described himself as a good parent, and that this is about ‘not being forceful’ and not making the children do only what he wants so he does not ‘control or coerce’ them. He said that he engaged Q with professional help after he stopped seeing the applicant to discuss his feelings and work through his trauma, and that all the professionals have informed him not to force Q to see the applicant. Ms FF noted that the applicant has not had any involvement with the professionals Q is engaged with. Ms FF also noted that the respondent seemed to place great emphasis on Q’s and P’s relationship, saying they are extremely close and cannot be separated.
Evaluation
Ms FF stated that the assessment had identified serious concerns in relation to Q’s emotional wellbeing, development and family relationships, possibly due to the impact of family violence and associated physical abuse, psychological abuse, and/or possible sexual abuse of Q.
In respect of the applicant, Ms FF noted that it appeared the applicant attempted to leave the relationship numerous times, however her allegations suggested that she did not leave due to being fearful of her life. Ms FF noted that the applicant’s circumstances of limited family support in Australia and lack of knowledge of professional services would have reduced her options to safely leave the relationship. Also, if the respondent did make such threats, that the risk to the applicant could be considered as extremely high at that time noting that victims who leave a relationship where there is family violence and the partner wants to maintain the relationship are at significantly higher risk of homicide, and that the physical and psychological risks to the children are also significant. Ms FF opined that the applicant’s description of the respondent’s behaviour was consistent with an ongoing pattern of coercive and controlling family violence during and after the relationship, such as social isolation, stalking, and possessive behaviours. In respect of the applicant’s report that the respondent forced her to have sexual intercourse with him as a way of controlling her relationship with Q, Ms FF viewed that, if this occurred, this could be a way of the respondent exerting control over the applicant and using Q as a means to continue such abusive tactics, possibly being the factor behind Q’s estrangement from the applicant.
Ms FF noted that the respondent, during his interview, spoke regularly and unprompted about his sexual experiences and relationships. Ms FF stated that he appears to have a pattern with his intimate relationships with the applicant and Ms AA both being from overseas and English not being their first language, noting that such women generally have increased vulnerability, and they rely heavily on their partner for financial and general support. She also noted that there seems to be a pattern of behaviour in regard to what the respondent has alleged in relation to the applicant and Ms AA. Earlier in her report when discussing the parties’ proposals, in respect of the respondent seeking that both he and P be present to supervise any time between Q and the applicant, Ms FF noted that the respondent did not show an understanding of how he and P’s presence may affect the interactions between Q and the applicant. Despite the significant risk issues identified by the respondent, Ms FF suggested that such conditions, and requiring the applicant to ‘actively address her mental health’, may also be suggestive of ongoing coercion and control. Noting that the applicant recognises she is suffering with mental health issues attributed to her experiences of family violence, Ms FF found it somewhat troubling that addressing mental health concerns seemed to be the respondent’s condition for time, particularly in view of the sexual assault allegations.
In respect of the respondent’s allegations of the applicant behaving violently towards him, of having sexually abused Q, and of having physically and psychologically abused Q and P, if such an account has substance, Ms FF suggested such behaviour by the applicant could be considered family violence, or it could be a way for the applicant to resist the alleged violence she herself was experiencing. Another possibility raised by Ms FF was that such behaviour could be due to poor emotional regulation, potentially a result of poor mental health, and if it did occur could have significant impacts on Q such as poor mental health, issues with forming healthy and secure attachments, and poor sense of identity and self-esteem. Ms FF set out her observations of the applicant and opined that the applicant’s presentation and the way she reflected on the situation during the interview process was not consistent with the respondent’s description of her. However, she also suggested that it was possible the applicant experienced issues with emotional regulation and is placing pressure on Q and, if this is the case, she would need to seek support with strategies to regulate her emotions and to understand the impact it may have on Q.
In relation to the sexual assault allegations, Ms FF stated that if found to be true the risk to Q’s safety in the care of the applicant is high, but if unfounded then it is possible Q is being unduly influenced and coached by the respondent, which could be an extension of a coercive controlling family violence dynamic.
When evaluating Q’s presentation during the interview, Ms FF suggested his presentation could be indicative of him being apprehensive of the assessment and Court process, and/or a possible fear of saying the wrong thing, and/or because he has been interviewed by multiple professionals, including police, DCJ, and other mental health professionals. Alternatively, it could be due to potential past trauma experienced, the allegations and family dynamics, or an indicator of some form of neurodivergence, and that these possibilities would significantly increase Q’s level of vulnerability. Ms FF opined that, unless the Court finds that there is a risk of sexual harm, that limited weight be placed on Q’s views due to the complexity of the concerns identified.
Considering Q being solely positive in relation to the respondent and solely negative in his narrative of the applicant which he based on the applicant abusing him and P, Ms FF suggested that there could other reasons for his rejection of the applicant and apparent sole alignment with the respondent. In the circumstances where there is the applicant’s concern of the respondent negatively influencing Q and the Court finding no evidence to support the allegations of sexual abuse, Ms FF stated this likely being a matter of psychological manipulation, as an extension of coercive and controlling violence by the respondent. Furthermore, comments made by Q may indicate that the respondent is not protecting him from adult related information and that, if such a dynamic is occurring, it is likely to be negatively influencing Q’s views of the applicant.
In respect of Q’s and P’s relationship, Ms FF noted they seemed to have a close, and in some ways quite co-dependent sibling relationships where P appears to have assumed a protective and, in some ways, parentified role with Q. Ms FF noted that both children appear to have been estranged from their mothers, which may have cemented the parentified relationship that P has been required to assume.
Despite both parents expressing a willingness to communicate with the other, Ms FF noted that neither have demonstrated their ability to communicate effectively to date as the level of conflict has only increased since separation. For this reason, Ms FF believed a shared parental responsibility would not be viable. It would also not be feasible for any shared care arrangement or one whereby Q spend unsupervised time with the other parent given the serious concerns identified in the assessment. Accordingly, Ms FF opined that, if the Court finds the risks to Q in either parent’s care cannot be mitigated, then he would need to live with the most suitable parent and spend no time with the other parent.
If Q was to live with the applicant, Ms FF recognised that this would mean some level of separation from P and that while such a separation may have a detrimental impact on Q and P, Q’s safety and well-being is paramount. Such a change would also likely involve Q not having a relationship with the respondent which could be difficult and impact his sense of well-being. Ms FF recognised that such a change would likely take a great deal of effort by the applicant and professional support to support her and Q’s reconnection, but such a move would provide the opportunity to rebuild their relationship.
If Q was to continue living with the respondent (as he was at the time of the report), Ms FF stated that little would change and would likely mean that Q would not have a relationship with the applicant. Furthermore, if concerns that the respondent uses Q as a tactic of coercive and controlling behaviour have substance, then Ms FF stated Q’s mental health and general well-being would be highly compromised.
If Q was to live with one parent and spend supervised time with the other, Ms FF strongly recommended a third party of professional service supervise such time. However, Ms FF also stated that supervised time is a short-term option only, and there would be no functional benefit to long-term supervision for Q.
Recommendations
At the conclusion of her report, unless there is evidence before the Court to suggest otherwise, Ms FF recommended that the parents be referred to the Family Advocacy Support Service and:
(a)If the Court finds the applicant did perpetrate sexual abuse against Q, that Q live with the respondent and spend no time with the applicant; and
(b)If the Court finds the respondent has perpetrated coercive and controlling family violence against the applicant and used Q as an extension of this as a tactic to estrange Q from the applicant, then it may be in Q’s best interest for Q to live with the applicant and spend no time with the respondent.

During cross-examination, when the truthfulness of the respondent’s account was raised with Ms FF, she acknowledged that, if the information provided by the respondent was incorrect and it was found he was not telling the truth, then her ‘recommendations would possibly be very different.’[69] Also, when asked about the possibility of identification time for Q with the respondent, Ms FF acknowledged this being an option, but that Q would need to build a relationship with the applicant first and recommended a period of time where Q did not spent time or communicate with the respondent.[70] However, for the greater part and without further information, Ms FF was not moved from her recommendations.
[69] T:401 line 30.
[70] T:402 lines 7-25.
Ms FF further explained in her oral evidence risks which she identified for Q, if he was to remain living with the respondent and absent a relationship with the applicant, and what the risks to Q were as a consequence of the repeated disclosures through various interviews with medical professionals.
BEST INTEREST CONSIDERATIONS
The discussion of the best interest consideration below is informed by the Court’s findings in the preceding 86 pages of its reasons. It is to be read together and understood in the context of those findings.
Arrangements that would promote the safety of the child and each person who has care of the child
The Court notes its earlier findings that the applicant has not sexually abused Q.
There is no objective or probative evidence to prove the existence of an unacceptable risk of harm to Q as to sexual abuse, inappropriate sexual conduct or similar, at the hands of the applicant or members of her extended family. Such assertions and allegations are fanciful.
As explained earlier, the Court is satisfied that the respondent has engaged in family violence.
Such family violence included coercion or control of the applicant by requiring her to have sexual intercourse with the respondent in order for him to facilitate time between her and Q, threats on the applicant’s life, monitoring of the applicant’s email and social media, and attending the applicant’s workplace for the purpose of monitoring the applicant. It also included physical violence in form of a knife attack. Q was a witness to such violence as earlier referred to.
Furthermore, Q has been both a primary and a secondary victim of the respondent’s family violence. The respondent has subjected Q to ongoing consultations and attendances at multiple health professionals and police interviews, thus propagating the false narrative in respect of the applicant and damaging Q’s relationship with her. The Court accepts the applicant’s submissions that the respondent took advantage of the social health climate surrounding COVID-19 to foster a fear of the child contracting the virus from the applicant, and used the restrictions in place at the time in a dishonest and manipulative manner to limit Q’s time with the applicant.
Q has parroted many of the respondent’s allegations against the applicant, in circumstances where he could not have had any personal knowledge or memory of such events, such as the stiletto throwing incident, or the applicant apparently having affairs. Even if she had, it would not make her morally corrupt as suggested by the respondent’s narrative of her.
Should Q live with the respondent, he would be placed at an unacceptable risk of harm, not only resulting from the risks associated with family violence as demonstrated by the respondent in the past, but also from the likelihood of the respondent engaging in similar behaviours in the future.
The respondent has in the past manipulated circumstances to suit his own needs, he has been dishonest in his dealings with the police, and in his evidence to this Court. He has been undermining of Q’s relationship with the applicant, to Q’s significant detriment.
The respondent has completely disregarded the parenting orders which have been in place. There was no compliance with the interim orders, such that all time between Q and the applicant ceased despite orders requiring such time to occur. The respondent bears the responsibility for the cessation of time.
Any views expressed by the child
Q has expressed very strong views in respect of spending time with the applicant. Indeed, he has expressed very strong views of the applicant.
By the time of final hearing and indeed at the time of the family report interviews, Q’s relationship with the applicant had been whittled away to a ghoulish shadow of its former self. The blame for the destruction of that relationship lies squarely at the feet of the respondent, who had time and time again taken active steps in discouraging Q from having a relationship with the applicant and from feeling safe in the applicant’s presence, and for creating and feeding a picture of the applicant as a sexual abuser and a bad person overall, that has no basis in reality.
It is in that context that Q’s views have to be taken into account and considered, and consequently given little weight.
The views which Q expressed are very strong. They have been formed by a false narrative of what the applicant is like. If Q remains living with the respondent, such false narrative will continue. Q will likely continue to express a belief that the applicant sexually abused him, he will likely continue to express a belief that she does not care for him and that she is in essence, not a good person. Such expressions of belief will in the long term, have a negative impact on Q, this much is clear from Ms FF’s evidence. These matters carry significant long terms risks for Q.
If Q is to live with the applicant, it is likely that there will be a period of adjustment while he comes to terms with the false narrative that has been built around the applicant and what that means for Q. His lived experience of the applicant is likely to be very different to the false narrative that has been built around her, and it may be that he will struggle with integrating the two. He may rebel, he may run away, he may act out. These are all immediate and significant risks to Q.
The applicant is however, in the Court’s assessment of her, a parent who has the capacity to deal with these challenges that having Q live with her will impose.
Indeed, she has already demonstrated a capacity to keep Q safe, having talked him down from running away and keeping him safe after the interim orders were made on 8 November 2024.
The developmental, psychological, emotional and cultural needs of the child
Q is a vulnerable child who although, 12 years of age, has had a difficult childhood. He has been manipulated by the respondent who has denied him a relationship with the applicant.
The Court recognises that Q must have been having a challenging time adjusting to his living arrangements since 8 November 2024, and that the changes would have been tough to accept. To be thrown into the deep end as he has been must have had a psychological impact on him.
The respondent’s conduct, in corresponding with Q in the manner that he did after Q commenced living with the applicant, speaks volumes to the risks which Q faces in the respondent’s home. There was no reassurance offered, nothing which might help Q trust the applicant and the maternal family. Just a further undermining of those already tenuous relationships. When Q was particularly vulnerable, the respondent chose to pray on those vulnerabilities.
Q’s estrangement from the applicant is objectively unwarranted.
The possible effect of pathological rejection or estrangement from a parent, could have an effect on Q’s brain development, on his education, his social development and his ability to form and maintain healthy relationships, both short term and long term, as he grows older.
The consequences of this rejection may have significant long term implications for Q it they are not addressed. Much damage has already been inflicted on Q, however, it is damage that may be repaired and certainly future risk of similar damage ameliorated and in fact eliminated, by orders which will see Q live with the applicant.
The respondent has been dismissive of the importance of Q’s cultural heritage on the applicant’s side. There is no evidence that he has taken any steps, despite the fact that the child has for all intents and purposes been in his sole care for about 4 years, to assist Q learn about Country BB, its culture and its language.
The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
The applicant has the insight, the patience and the willingness to help Q deal with the change in his living arrangements, and the significant impact that this will have on him. She has already demonstrated such insight and capacity to deal with Q in very difficult circumstances when he came to live with her after the making of the interim orders on 8 November 2024.
The evidence does not establish that the respondent has the capacity to provide for Q’s needs.
Indeed, Q’s presentation at the family report interviews was very concerning. He appeared timid and withdrawn. His interactions with the respondent were noted by Ms FF to be somewhat reserved and stilted. It was only when he was with P that he behaved freely, but even then, P took on a parentified role in respect of Q. She is only 1 year older than him.
The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so
There is no relationship which Q can have with the respondent that does not pose a risk of harm to him. However, consideration is given to whether the risks of harm which are posed could be ameliorated by limiting the time which Q is to spend with the respondent and by ensuring that such time is supervised.
While orders for long term supervision are far from ideal, in the circumstances of this case, it is an option which was recognised by Ms FF as being a possibility as opposed to an order for no time, but only in circumstances where Q had been given the opportunity of rebuilding a relationship with the applicant. Ms FF agreed with the proposition that it may be an option in those circumstances, to have a lock out period of no time, and then limited amounts of supervised time 3-4 times per year.
There are of course risks to Q if he is not given the benefit of any time with the respondent at all. In weighing up the risks, the Court determines that the risks to Q in having any type of relationship with the respondent, even one that is strictly supervised and only for short periods of time, is likely to cause him more harm than good. The respondent is highly likely to carry on in his interactions with Q as he has to date. He will manipulate and undermine Q’s sense of worth and his trust in the applicant. Even with supervision, the risk is significant. The benefit to Q of spending any time with the respondent is outweighed by the risk.
The Court has serious concerns about the risks to Q from not only a continuing relationship with the respondent, but also a continuing relationship with his sister, due to the present unhealthy nature of it. If P continues to live with the respondent, the risks to Q of a continued relationship with her are also unacceptable. She has been used as a tool by the respondent to undermine Q’s relationship with the applicant.
DETERMINATION
For reasons explained, the Court finds that it is in Q’s best interest that he live with the applicant.
For reasons explained, the Court finds that it is in Q’s best interest that he spend no time with the respondent.
Parental Responsibility
In circumstances where the Court has found that the respondent has engaged in coercive and controlling violence as well as physical violence against the applicant, and in circumstances where the Court has found that Q too has been a victim of family violence, any order except for one where the applicant has sole decision making, is likely to place both the applicant and Q at risk.
It would also be highly impractical for the parents to have joint decision making authority.
For reasons explained, the Court finds that it is in Q’s best interest that the applicant have the benefit of an order for sole decision making in respect of long-term decisions concerning Q.
Further Protective Orders
As occurred following the making of the interim orders on 8 November 2024, and notwithstanding an order for no time between Q and the respondent, without an injunction prohibiting the respondent from contacting or attempting to contact Q, it is likely that the respondent would do so, particularly noting his disregard for Court orders in the past.
It is also important to protect Q from himself. While the Court accepts the applicant’s evidence that Q has started to settle into her care, and has become more relaxed, there still remains a risk that he may put himself in harms way as a result of a desire to see the respondent and/or P.
In light of Q’s age and his vulnerabilities, particularly to being manipulated by the respondent, in order to ensure his safety, a further order will be made that if Q takes it upon himself to return to the respondent’s care, that the respondent refuse to allow him to do so and that he ensure that Q is returned to the applicant’s care. If he fails to do so, a recovery order will issue. Such an order will remain in effect until Q turns 14 years of age. By then, he would have been living with the applicant for a period of approximately two years, and in the Court’s assessment this will hopefully give the applicant and Q sufficient time to repair as best possible their relationship.
Provision of Reasons for Judgment to Department of Communities and Justice
Throughout the proceedings, the Court has felt uneasy about P’s welfare, more so after the findings of fact contained in these Reasons for Judgment.
Following the Court’s interim decision, at the invitation of the Court, the ICL had some limited communications with Ms AA and notified her of the listing on 13 November 2024. The Court was advised that Ms AA had sought her own legal advice, and had made the decision not to seek to intervene in these proceedings. By way of transparency, the ICL had prepared an aide-memoire which had been circulated to all of the parties, but not the Court.
On 13 November 2024, the Court granted leave to the ICL to provide to Ms AA and her legal representatives, the settled reasons of the interim judgment dated 8 November 2024, concerning Q.
Following the conclusion of the final hearing and judgment being reserved, the Court received a request from the DCJ to view the Court file. That request has not been answered. Except through the provision of these Reasons for Judgment, the parties have not otherwise been notified by the Court as to that request.
Given the Court’s concerns and its findings, in all of the circumstances, it is appropriate in so far as Q’s best interests are concerned, that a copy of these Reasons for Judgment, as well as the settled reasons in the interim decision, is provided to the DCJ.
Passport and Overseas Travel
The applicant has ties to Country BB, not only through her own family but also her husband’s family. She may in the future wish to acquaint Q with his cultural heritage and roots. She may also want to take him on an overseas holiday, or have him engage with international travel for other valid purposes.
It is for those reasons that it is appropriate for the applicant to be able to obtain a passport for Q without having to obtain the respondent’s consent, and also to be able to travel with him.
ICL to Explain Outcome to Q
The Reasons for Judgment in this matter are very lengthy, as warrants the complexity of the issues. It is important that Q have an explanation, in terms which he can understand, as to why the Court has determined that it is best that he live with the applicant and have no time with the respondent (and consequently his sister).
It is for that reason, that the Court will direct the ICL to explain to Q, as soon as reasonably practicable, the outcome of these proceedings and the reasons why.
The Court so orders.

I certify that the preceding four hundred and seventy-nine (479) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.
Associate:
Dated: 28 February 2025

File number(s):	PAC 3112 of 2021
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	28 February 2025
Catchwords:	FAMILY LAW – PARENTING – Where the child is to spend no time with the respondent and live with the applicant – Where the child makes serious allegations of sexual assault by the applicant that are unfounded – Where the respondent perpetrated family violence being physical violence and coercive or controlling behaviour – Where the child has been a primary and secondary victim of the respondent’s family violence - Where the respondent poses an unacceptable risk of harm to the child – Where the respondent has intentionally and constantly undermined the child’s relationship with the applicant – Where the child holds strong views towards the applicant – Where the child’s views are given little weight – Where the child was estranged from the applicant until interim orders were made in November 2024 that caused an immediate change in residence – Where the respondent’s evidence was dishonest
Legislation:	Family Law Act 1975 (Cth) ss 60CC, 60CG, 61C, 61D, 67U, 68B Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.01
Cases cited:	Briginshaw v Briginshaw (1938) 60 CLR 336 at 343, [1938] HCA 34 Carter & Wilson [2023] FedCFamC1A 9; [2023] FLC 94-129; (2023) 66 FamLR 238 Illgen & Yike [2018] FamCA 17 Isles v Nelissen [2022] FedCFamC1A 97 Johnson & Page [2007] FamCA 1235 Leventis & Leventis [2024] FedCFamC1A 141; (2024) FLC 94-204 Pickford & Pickford [2024] FedCFamC1A 249; (2024) FLC 94-230 Ramzi & Moussa [2022] FedCFamC2F 1473 WK v SR (1997) 22 Fam LR 592
Division:	Division 2 Family Law
Number of paragraphs:	479
Date of hearing:	4-8, 19-20, & 28 November 2024
Place:	Parramatta
Counsel for the Applicant:	Ms Trad
Solicitor for the Applicant:	Legal Aid NSW
Counsel for the Respondent:	Mr Vizzone
Solicitor for the Respondent:	Supreme Justice Lawyers
Counsel for the Independent Children's Lawyer:	Mr Schroder
Solicitor for the Independent Children's Lawyer:	Shedden & Associates

PAC 3112 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS ELLUL Applicant
AND:	MR CASTELLI Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	28 FEBRUARY 2025