Fermikis & Fermikis - [2021] FedCFamC1F 90

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fermikis & Fermikis [2021] FedCFamC1F 90

File number: CAC 498 of 2012

Judgment of: GILL J

Date of judgment: 30 September 2021

Catchwords: FAMILY LAW – CHILDREN – RESIDENCE – Best interests of child – Risk – Family violence issues – Parental responsibility – Whether children to remain living with the mother in different State to the father – Whether father to spend unsupervised time with the children.

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

Cases cited:
Jollie & Dysart [2014] FamCAFC 149

Marsden & Winch (No 3) [2007] FamCA 1364

Mazorski & Albright (2007) 37 Fam LR 518

Morgan & Miles (2007) FLC 93-343

M v M (1988) 166 CLR 69

Taylor & Barker (2007) FLC 93-345

U v U (2002) 211 CLR 238

Division: Division 1 First Instance

Number of paragraphs: 439

Date of hearing: 28 September – 2 October 2020; 8–9 February 2021

Place: Canberra

Counsel for the Applicant: Dr Leslie

Solicitor for the Applicant: Stanfords Solicitors

Counsel for the Respondent: Mr Howard

Solicitor for the Respondent: Neilan Stramandinoli Family Law

Counsel for the Independent Children's Lawyer: Mr Haddock

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

CAC 498 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS FERMIKIS
Applicant

AND:
MR FERMIKIS
Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

GILL J

DATE OF ORDER:

30 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.Y born in 2009, Z born in 2013, W born in 2015 and Q born in 2017 (“the children”) shall live with the mother.
2.The mother shall have sole parental responsibility for the children.
3.Subject to the father complying with Order 4, the father shall spend time with Z, W and Q as follows:
(a)During Queensland school term time in Queensland:
(i)On one weekend each calendar month:
A.Initially on a consecutive Saturday and Sunday from 11.00am until 4.00pm;
B.Following the father spending the time with the children in accordance with Order 3(a)(i)A above on three occasions and with at least two visits occurring on consecutive calendar months (whichever is the later) then from 11.00am Saturday until 4.00pm on Sunday;
C.Following the father spending the time with the children in accordance with Order 3(a)(i)B above on three occasions and with at least two visits occurring on consecutive calendar months (whichever is the later) then from 6pm Friday until 4.00pm on Sunday;

(b)During Queensland school holiday time:
(i)Following the father spending the time with the children in accordance with Order 3(a)(i)B above on three occasions and with at least two visits occurring on consecutive calendar months (whichever is the later) then for five days commencing at 12.00 pm on the first day of the period elected by the father in accordance with Order 4 and ending at 12.00pm on the fifth day of that period;
(ii)Following the father spending time with the children in accordance with Order 3(b)(i) above on two occasions then for a period of eight days commencing at 12.00pm on the first day of the period elected by the father in accordance with Order 4 and ending at 12.00pm on the eighth day of that period;

4.Each period of time with Z, W and Q as referred to in Order 3 shall occur at times in accordance with the election of the father to be provided in writing (including by electronic communication) to the mother no later than twenty eight days prior to the first day of each period.
5.Following the commencement of overnight time the father shall be at liberty to nominate by his election in Order 4 periods of time shorter than those provided for in Order 3.
6.For the purpose of transition in the periods of time as set out in Order 3, in the event that Z, W and Q are not provided to the father in accordance with an election made pursuant to Order 4, the children shall be deemed to have spent the time with the father as provided for in Order 3.
7.Order 6 does not derogate from any other remedy available to the father in respect of the mother’s non-compliance with the orders.
8.Handovers for the purposes of Order 3 are to occur as follows:
(a)At a contact handover centre booked and paid for by the mother and advised to the father 14 days prior to the handover; or
(b)At a place agreed to in writing (including by electronic communication) between the parties; or
(c)Failing the mother complying with Order 8(a) and failing agreement between the parties under Order 8(b), at the R Town Police Station at S Street, Suburb T.

9.The father shall forthwith enrol into and complete:
(a)A U Services program and provide the mother via email a certificate of completion; and
(b)An anger management course and provide the mother via email a certificate of completion.

10.The parties shall notify each other immediately or at least within one (1) hour of any medical emergency involving any of the children.
11.Neither party denigrate the other or members of the other’s family in the presence of the children and shall use their best endeavours to ensure that no other person does so.
12.The children, including Y, shall be at liberty to communicate, whether by telephone or otherwise, with either parent in accordance with their wishes.
13.The parties shall communicate via an agreed parenting application with such communication to be restricted to matters related to the care, welfare and development of the children.
14.The parties are permitted to contact the children’s doctors or other specialists to obtain any necessary information that parents usually receive in relation to children.
15.The parties are permitted to contact the children’s daycare/school to obtain any necessary information that parents usually receive and in relation to the children’s progress.
16.The mother will notify the father in writing (including by electronic means), of any decisions she makes in relation to the long term needs of the children.
17.The parties are at liberty to vary the time that the children spend with the father by agreement in writing (including by electronic means).

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fermikis & Fermikis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
INTRODUCTION

The trial in this matter concerns parenting proceedings in relation to four of the children of the relationship, Y aged almost 12 years, Z aged almost 8 years, W aged 6 and Q aged 4 years. The children have an older sibling X who is now an adult.
The parties both make allegations of serious violence by the other. The mother alleges that the father has sexually abused her and the children. The father alleges that the mother has been deliberately obstructive of his relationship with the children, particularly as she, during the proceedings, and contrary to Court orders, relocated with the children from V City to Queensland. This resulted in a significant hiatus in the time the children spent with the father. Each alleges that the other abuses illicit substances or alcohol. Each alleges significant deficits in the parenting capacity of the other.
It is helpful to start at the positions advocated by the parties during their closing submissions, as these identified both a commonality in respect of some issues, and a markedly differing approach in respect of others.
Orders sought by the mother
In final submissions, the mother sought orders in accordance with her Minute of Order, marked as Exhibit Y1.[1] This exhibit is provided in full at Annexure A of this judgment.
[1] Transcript 9 February 2021, p. 564 line 26.
The mother sought to have sole parental responsibility for the children, and for the children to remain living with her in Queensland.
The mother sought for X and Y to spend time with the father in accordance with their wishes.
In the event Z, W and Q are permitted to live in Queensland, she sought for them to spend supervised time with the father at AA Services once per calendar month on Saturday and Sunday for not less than four hours each day.
In the event Z, W and Q are not permitted to remain in Queensland and are to return to the Australian Capital Territory, she sought for the children to spend supervised time with the father at D Services once per fortnight for not less than two hours.
The mother sought an injunction to restrain the father from attending upon the children’s places of residence or education. She also sought to prohibit the parties from denigrating or permitting any other person from denigrating the other party or any member of the other party’s household in the presence or hearing of the children or any of them.
The mother sought for each party to actively promote and encourage the relationship between the children and the other parent and members of the other parent’s extended family.
The mother sought for the parties to liaise with whichever school the children may attend in relation to the children’s progress at school, and for the parties to request, at their own expense, copies of any school documents relating to the academic and extra-curricular activities of the children.
The mother consented to Order 13 of the Independent Children’s Lawyer’s (the ICL) minute which related to the father enrolling in a U Services program, and an Anger Management Course.[2]
[2] Transcript 9 February 2021, p. 545 line 20.
The mother consented to Order 16 of the ICL’s minute, for the parties to contact each other immediately or at least within one hour of any medical emergency involving any of the children.[3]
[3] Transcript 9 February 2021, p. 545 line 21.
Finally, she consented to Order 18 of the ICL’s minute, for the parents to communicate via an agreed parenting application, with such communication restricted to matters relating to the care, welfare and development of the children.[4]
[4] Transcript 9 February 2021, p. 545 line 21.
Orders sought by the father
The orders the father sought are set out in his Case Outline document, marked as Exhibit F1. This exhibit is provided in full at Annexure B of this judgment.
The father sought for X to live with each of the parents in accordance with his views.
In final submissions, the father consented to Order 2 of the ICL’s minute that Y, Z, W and Q should live with their mother.[5] He also conceded that the mother should have sole parental responsibility.[6]
[5] Transcript 9 February 2021, p. 547 lines 42–43.
[6] Transcript 9 February 2021, p. 543 line 44.
The father sought for the mother to return the children to the ACT. The father’s counsel proposed that this should occur within four weeks.[7]
[7] Transcript 9 February 2021, p. 543 line 41.
The father consented to Order 6 of the ICL’s minute for the parties to engage a psychologist to undertake family therapy to rebuild the relationship between Y and the father.[8]
[8] Transcript 9 February 2021, p. 544 lines 3–6.
The father consented to Order 7 of the ICL’s minute that Y shall be invited and encouraged to attend the time Z, W and Q spend with the father, pursuant to Order 8 of the ICL’s minute.[9]
[9] Transcript 9 February 2021, p. 544 line 7.
The father sought for unsupervised time with Y, Z, W and Q, and for time with Z, W and Q to transition gradually to a five/nine arrangement, favouring the mother.[10]
[10] Transcript 9 February 2021, p. 544 lines 13–15.
In relation to holiday time, it was sought for the children to spend half the holidays with the father.
The father consented to Order 11 of the ICL’s minute in relation to changeovers.[11] He however sought to add an additional subparagraph which would allow for changeovers to also occur at BB Business at F Centre in accordance with Order 8 in his Case Outline.[12]
[11] Transcript 9 February 2021, p. 544 lines 29–30.
[12] Transcript 9 February 2021, p. 544 lines 30–31.
The father agreed with Order 12 of the ICL’s minute that funds for the bond and rent of a rental property for the mother upon her return to V City could be taken from the monies in trust but noted there were no property matters before the court.[13]
[13] Transcript 9 February 2021, p. 544 lines 33–40.
The father consented to Order 13 of the ICL’s minute to complete the U Services program and an Anger Management Course.[14]
[14] Transcript 9 February 2021, p. 544 line 40–41.
The father consented to Orders 14, 15, 16, 17 and 18 of the ICL’s minute.[15]
[15] Transcript 9 February 2021, p. 544 lines 44–45.
The father also sought to arrange for W’s dental treatment, and for the parties to have access to information from medical health providers, and from the schools of the children.
Orders sought by the ICL
The orders sought by the ICL are set out in the Minute of Orders, marked as Exhibit ICL6.[16] This exhibit is provided in full at Annexure C of this judgment.
[16] Transcript 9 February 2021, p. 543 lines 1–5.
The ICL sought for Y, Z, W and Q (“the children”) to live with the mother, for the mother to have sole parental responsibility for the children, and for the mother to notify the father of any decisions she makes in relation to the long-term needs of the children.
The ICL sought for the children to be returned to the V City/DD City region within eight weeks of the date of the orders or the commencement of the new school term after the orders are made, whichever is later.
The ICL sought for X to live and spend time with each of the parents in accordance with his wishes.
It was sought for the parents to engage a psychologist to undertake family therapy with a view to rebuilding the relationship between Y and the father.
The ICL sought for Z, W and Q to spend time with the father in accordance with the terms in Order 8, and for Y to be invited and encouraged to attend during these times.
In Order 11, the ICL set out the arrangements for changeovers that occur during the time the children spend with the father in V City.
In relation to the accommodation of the mother and the children in the V City/DD City area, the ICL sought for the bond and upfront rent to be paid from the funds held by TT Solicitors in their trust account arising from the sale of the DD City property.
The ICL sought for the father to enrol into and complete a U Services program, and an Anger Management Course, and to provide the mother with certificates of completion.
The ICL sought that neither party denigrate the other or members of the other’s family in the presence of the children, and for the parties to use their best endeavours to ensure no other person does so.
In relation to medical care, the ICL sought for the parties to notify each other immediately or at least within one hour of any medical emergency involving the children, and for the mother to vaccinate the children and keep them vaccinated.
Finally, the ICL sought for the children to be at liberty to communicate with either parent according to their wishes, and for the parents to communicate with each other via a parenting application, with such communication restricted to matters relating to the children’s care, welfare and development.
Material relied upon by the parties
The mother relied on the following:
(a)Mother’s affidavit filed 18 August 2020;
(b)Affidavit of Ms EE filed 18 August 2020;
(c)Affidavit of Mr FF filed 18 August 2020; and
(d)Family Report of Mr GG.
The father relied on the following:
(a)Father’s affidavit filed 1 September 2020;
(b)Affidavit of Ms N filed 1 September 2020;
(c)Affidavit of Ms P filed 1 September 2020;
(d)Affidavit of Ms HH filed 1 September 2020;
(e)Affidavit of Mr M filed 1 June 2020; and
(f)Subpoenaed material to be tendered.
The ICL relied on the following:
(a)Affidavit of Mr FF filed 18 August 2020;
(b)Affidavit of Ms EE filed 18 August 2020;
(c)Mother’s affidavit filed 18 August 2020;
(d)Mother’s initiating application filed 8 February 2019;
(e)Father’s affidavit filed 1 September 2020;
(f)Affidavit of Ms P filed 1 September 2020;
(g)Affidavit of Ms N filed 1 September 2020;
(h)Affidavit of Ms HH filed 1 September 2020;
(i)The father’s response to the mother’s initiating application filed 22 February 2019;
(j)Tender bundle containing CYPS and AFP material;
(k)Mother’s tender bundle;
(l)Father’s tender bundle;
(m)Family Report of Mr GG; and
(n)The ICL’s case outline document filed 24 September 2020.
Summary of contest as to orders
By the close of the case the parties and the ICL agreed that the children should live primarily with the mother and that she should hold sole parental responsibility, although they differed regarding some aspects of the exercise of such.
In terms of the resolution of the matter, the key areas of divergence related to whether the children, and thereby the mother, would return to live in the ACT, the degree of time that the father would spend with the children, and whether that time would be supervised either for a short period or on an ongoing basis.
There were other issues that remained at large between the parties, including as to whether an order should be made to compel the vaccination of the children, and whether an order ought to be made for therapy between Y and the father. An idea was floated as to whether orders ought also be made to cause a portion of the proceeds of sale of the family home to be applied to any relocation by the mother to the ACT, although absent any property application this appeared to be without jurisdictional basis.
Differing approach of the parties
The parties and the ICL all urged that the court should not conclude that any of the children are at unacceptable risk of harm, either sexually or physically, at the hands of the father.
The parties disagreed as to the necessity to make findings about the allegations against the father made by the mother, or as to particular findings of violence between the parents.
The mother asserted that such findings are unnecessary, and that all that is required is a finding that there has been family violence between the parties that the children have been exposed to. However, despite this position, the mother still harboured what were termed “concerns” as to sexual and other risks, which she asserted supported an order for the time to be limited to supervised time.
The father asserted that findings are necessary to demonstrate that the allegations were made maliciously by the mother, in a manner demonstrative of there being poor prospects of her support of relationships between the children and the father. His position was that, absent a return of the children to the ACT there would be no relationship with him, by virtue of the difficulties imposed by distance, and by the mother’s unwillingness to foster the relationships.
PRINCIPLES
Approach to the considerations

The paramount consideration in determining what order should be made is, pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), the best interests of each of the children. That is to be determined on consideration of the matters set out at s 60CC of the Act, and in accordance with the objects and principles set out in s 60B and the reasoning process set out at s 65DAA. As to the considerations in this case the reasoning process at s 65DAA will not have application given the parties’ sensible position that parental responsibility should not be equally shared. Their conclusion as to such accords with the allegations of violence made by each and a palpable incapacity of the parties to cooperatively decide what is in the best interests of the children.
As to the considerations, in Jollie & Dysart, the Full Court observed:
What the Act mandates is a “consideration” — a mental process of analysis — that has proper regard to such of the enumerated matters as are judged to be relevant to the particular circumstances of the child H involved…
Yet, neither s 60CC nor any other section or Part of the Act requires a judge’s reasons to deal seriatim with each of the s 60CC considerations. Indeed, doing so can sometimes obfuscate the matters which are judged, properly, to be central to the ultimate determination of a child’s best interests and the orders which best meet them.[17]
[17] Jollie & Dysart [2014] FamCAFC 149, [49]–[50].
In Marsden & Winch (No 3), Warnick and Thackray JJ observed in relation to the interplay between the considerations, that a primary judge is
of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.[18]
[18] Marsden & Winch (No 3) [2007] FamCA 1364, [78].
However, their Honours also noted that:
It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case. Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions. That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.[19]
[19] Marsden & Winch (No 3) [2007] FamCA 1364, [77].
The two primary considerations focus upon the benefit to the child of a meaningful relationship with both parents, and the need to protect the child from being subjected to abuse, neglect or family violence. Section 60CC(2A) requires the Court to place greater weight upon the second of these two primary considerations, that is, protecting the children from abuse, neglect or family violence.
The primary considerations, described as the “twin pillars” upon which the considerations rest by Brown J in Mazorski & Albright,[20] frequently subsume a number of the additional considerations. For example, protecting a child from family violence will frequently require an examination of the additional consideration at s 60CC(3)(j) which concerns family violence involving a child or member of the child’s family.
[20] (2007) 37 Fam LR 518, 519.
Similarly, and noting Warnick and Thackray JJ’s analysis in Marsden & Winch (No. 3), that the Act places focus, not on meaningful relationship as an end in itself, but rather in terms of the benefits to a particular child of meaningful relationship with a particular parent, the nature of the child’s relationships (s 60CC(3)(b)) and parenting capacity (s 60CC(3)(f)) will often comprise a part of this consideration.
In considering these matters to determine best interests, it should be seen that the objects and principles may point in conflicting directions, and toward different outcomes. Similarly, the s 60CC considerations may point in opposing directions. It is their synthesis that determines best interest.
Particular issues concerning relocation
A key aspect of the dispute in this case is as to where the children will live. While there is no separate category of relocation cases, cases involving a proposal that a party will move (or remain moved away) with a child pose hard questions with difficult consequences. Often a move will be of great importance to the party who wishes to move. Often the moving party will be the parent who has the primary care of the child. Often a move will result in fundamental changes in the way in which a left behind parent may be involved in a child’s life. The preferred approach is not to deal with the relocation as a discrete issue but, where possible, “as just one of the proposals for the child’s future living arrangements”.[21]
[21] Taylor & Barker (2007) FLC 93-345, 81,912 [53].
In Morgan & Miles, Boland J further observed that:
It follows from my exposition of the legislation, that earlier core principles:
– that the child's best interests remain the paramount but not sole consideration;
– that a parent wishing to move does not need to demonstrate “compelling” reasons;
– that a judicial officer must consider all proposals, and may himself or herself be required to formulate proposals in the child's best interests; and
– the child's best interests must be weighed and balanced with the “right” of the proposed relocating parent's freedom of movement,
remain valid.[22]
[22] Morgan & Miles (2007) FLC 93-343, 81,870 [80].
In this case the mother’s tacit position was that if the children were to return to the ACT to spend time with the father, then so would she. In dealing with the parties’ proposals, the comments of Gaudron J (although in dissent) in U v U must be born in mind:
It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was made clear in AMS v AIF.[23]
[23] U v U (2002) 211 CLR 238, 248 [37] (citation omitted).
At the same time, and in the same case, Gummow and Callinan JJ determined that the parties’ positions do not set the boundaries for the determination of the case:
We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. … But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s 68F [now s 60CC] and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child’s best interests.[24]
[24] U v U (2002) 211 CLR 238, 260 [80]–[81].
Accordingly the Court here is obliged to not only give careful consideration to the positions of the parties, but also to alternative arrangements that will better provide for the best interests of the children, to the extent to which such alternatives are before the parties in the proceedings.
THE EVIDENCE
The general history of the parties’ relationship
The parties initially commenced their relationship in 2000, when the mother was aged 19 years, the father aged 41 years. Their relationship, and the birth of their children took place across two periods, the parties separating during an intervening period during which they litigated in the family law jurisdiction.
Little attention was given to the relationship prior to the first separation, which took place in December 2011. Rather, significant emphasis was placed upon events during that period of separation and the reconciliation that followed, and then upon events leading up to and following the second separation in October 2018.
The first part of the relationship
The mother alleges the first interaction between the parties occurred prior to their relationship, in that prior to the commencement of their relationship, when she was only fifteen years old, the father sexually assaulted her while she was not conscious.[25]
[25] Mother’s affidavit filed 18 August 2020, [10].
This allegation was late arriving in the proceedings, and the mother was challenged as to the allegation being a recent invention on her part. The mother’s trial affidavit filed on 18 August 2020 was the first time this allegation was raised in the proceedings.[26] Although the mother asserted that she had spoken about the incident with counsellors, her parents and to police,[27] it remained unclear when the mother first told anyone about this allegation.
[26] Mother’s affidavit filed 18 August 2020, [10]; Transcript 29 September 2020, p. 193 lines 29–43.
[27] Transcript 29 September 2020, p. 193–4.
The mother explained that she did not know that this event had occurred until the father told her about it. Although at [10] of her trial affidavit the mother set out the alleged admission, neither timing nor context was provided,[28] undermining the report of the admission.
[28] Transcript 29 September 2020, p. 193–4.
The father denied this allegation, and denied that he knew the mother when she was a minor. He was not cross examined about either the alleged admission or the incident itself.
The parties commenced their relationship in about 2000. The mother alleged that this followed the father’s proposition to her that he would supply her with drugs for sex.
Both the above allegations are wholly reliant on the mother’s credibility, which for reasons later discussed, is insufficient to sustain them.
The mother alleges violence during this part of the relationship, including that on 2 May 2003 the father placed his hands on her throat. The father denied having done so.
X was born in 2003 and Y in 2009.
The first separation
The parties separated in about December 2011, commencing proceedings in the Federal Circuit Court. Those proceedings involved allegations that the father was a sexual risk to the children, an allegation later abandoned by the mother before being re-taken up in the current proceedings.
A central aspect of the allegation of risk at that point concerned allegations made by the mother in respect of the preparation of the family report, which was authored by Ms JJ, a family consultant at the V City Registry, with the interviews taking place on 10 September 2012.
Following the interview sessions with Ms JJ the mother contacted the local welfare agency (CYPS) and alleged that the father had sexually abused Y during the assessment session with Ms JJ.
This allegation was not put to the father during his cross-examination.
When asked to justify the making of this complaint, the mother explained that X (then aged 9 years) had described that Ms JJ had left Y with the father for a substantial time, that the father had sat beside Y, that Ms JJ had not checked on her and that Y had been upset at what “daddy” had done.[29] While the mother initially said that X gave no indication about what the father had done, she changed her answer to say that something was said about a nappy.[30]
[29] Transcript 28 September 2020, p. 76–77.
[30] Transcript 28 September 2020, p. 80 lines 10–19.
In sharp contrast Ms JJ described that she was with X in another room from the father and Y, for about five minutes, and that she was able to observe Y during this time through the venetian blinds.[31]
[31] Exhibit F7, p. 275–77.
Ms JJ sought to arrange for a subsequent attendance by the mother and the children, but the mother said that she would not attend.
When asked whether she genuinely believed that Y had been sexually abused during the session, the mother said that she believed what the children had told her. It should be observed that when the mother said that she believed the children, nothing that she asserted was said by the children even hinted at sexual abuse. There was no reasonable basis to form a belief that the father sexually abused Y during the assessment process, nor to make such an accusation.
In the current proceedings the mother said that she still believes that Y was sexually abused by the father during this assessment process, and that the family consultant was lying.
The mother was asked about incidents prior to the interview with Ms JJ that she considered indicated sexual abuse of Y.[32]
[32] Transcript 29 September 2021, p. 113.
After some prevarication the mother accepted that she had, in December of 2011, taken Y to the general practitioner because she suspected sexual abuse. This suspicion arose from Y suffering from persistent thrush and from Y sometimes kicking out when her nappy was being changed.
The mother also said that she had caught the then 9 year old X playing with his penis and was concerned that this might indicate sexual abuse.
These were not matters that provided a reasonable basis, even in combination with what X had purportedly said to the mother about the assessment process, to infer sexual abuse. The allegation made by the mother about the assessment process is entirely unreasonable.
Two conclusions become reasonably available from the allegation about the preparation of the family report. Either the mother cynically sought to manipulate and undermine the family report process by a concocted sexual abuse complaint or, if genuine in her subjective belief as to sexual abuse, the mother is utterly lacking in reasonable judgment of what might suggest sexual abuse. Which of these more accurately describes the mother will fall to be determined on the consideration of other evidence.
The resumption of the relationship
The parties subsequently reconciled in 2012[33] approximately one month after the interviews with Ms JJ. The mother described this as a gradual process, that commenced with her arranging for the father to spend time with the children while she was present.
[33] Mother’s affidavit filed 18 August 2020, [102].
The resumption of the relationship is somewhat incongruous with the notion that the mother genuinely held the belief that the father sexually abused Y in the family report interview process. The recommencement of the relationship by the mother bears upon the assessment of the genuineness of the mother’s assertions in respect of the family report interview.
Accepting that the dynamics of relationships can be complex, particularly where, as the mother says here, the relationship is one that has been characterised by family violence, there are cases in which there may be a good way to understand the resumption of a relationship in the face of genuine suspicion of abuse.
That, however, is not the case here.
The mother sought to reconcile the resumption of the relationship with her assertion as to abuse occurring in the family report interviews in a number of ways.
The mother said that she ensured that she was present when the father spent time with the children.[34]
[34] Transcript 29 September 2020, p. 118.
The mother further explained that the father nominated his friend, Mr KK, as being the person who had abused Y[35] (whilst the children were in the father’s care). However, the first time the mother suggested that the father had pointed the finger at Mr KK was in her interview with Mr GG, the single expert in these proceedings. She accepted that this explanation appeared nowhere else.
[35] Transcript 29 September 2020, p. 120.
A difficulty with this explanation, as identified to the mother under cross-examination, is that Mr KK could not have been responsible for sexual abuse of Y at the family report interview as he was not there.[36]
[36] Transcript 29 September 2020, p. 121 lines 14–15.
The mother then said that the explanation of Mr KK had not eased her mind completely about whether the father abused Y.
The mother’s explanations do not adequately counteract the effect of the resumption of the relationship with the father as undermining the mother’s assertions that she genuinely thought that the father had abused Y during the interview process. Coupling this with consideration of the patent unreasonableness of the mother’s claims about Ms JJ points to the claims of sexual abuse in the first proceedings as being disingenuous, rather than genuinely but unreasonably made.
This undermines the genuineness of the mother’s claims in these proceedings as to the father constituting such a risk.
Following the recommencement of the relationship, Z was born in 2013, W in 2015 and Q in 2017.
Events leading up to the second separation
Each of the parties asserts that the other was abusive and violent to the other. The focus of their attention to this issue was reasonably confined, starting at the period leading up to the end of their relationship in October 2018.
In support of his assertions as to aggression on the part of the mother in the lead up to separation, the father tendered text messages from the mother from 11 May 2018, saying “come home and I’ll stab u cunt,” “come home and I’ll cut your fucking dick off,” and “go to sleep in my house and I’ll cut your dick off.”[37]
[37] Exhibit F7, p. 180.
The parties agree that an altercation took place between the parties on 19 June 2018, although they disagree about what occurred.
The father alleges that the mother asked for money, and when he said he did not have any, she punched him in the face, breaking his teeth and causing the loss of two teeth. The mother accepted that she had struck the father, but explained that she had been attempting to flick his glasses, and had caught his lip with her ring, ripping his lip.[38]
[38] Transcript 29 September 2020, p. 200 lines 9–25.
The father says that he then had a shower, the mother coming in and biting him on the elbow, when he stopped her from taking his phone and wallet.
Adding credence to the father’s account are the messages that then passed between the parties. The mother messaged the father saying “whatever obviously don’t worry about talking we are done I didn’t mean to break your tooth I barley touched u”.
In response to the father messaging “barely touched doesn’t break something look at my face..”, the mother sent the message “obviously break my heart I break your face”.[39]
[39] Exhibit F7, p. 182.
These supported the notion that whatever the mother had done to the father, she understood at the time that she had broken his tooth.
Events surrounding separation
The parties finally separated in November 2018. This marked the commencement of a significant break in the time that the father spent with the children. He spent no time with the children apart from a short 1.5 hour visit on 2 February 2019 until interim orders were made on 25 February 2019.[40]
[40] Father’s affidavit filed 1 September 2020, [18(a)].
The father alleges that a reason for the separation was that X and Y were not attending school and the mother was having X lie to the father about it. In the 2018 school year, the father asserted that X missed “[n]early all of school”.[41] The mother accepted that X “didn’t go to school almost ever” and that his school attendance was “barely above zero per cent”.[42]
[41] Transcript 8 February 2021, p. 464 line 39.
[42] Transcript 29 September 2020, p. 188 lines 11–21.
The father says that he left the home and started sleeping in his car on 5 November 2018, due to what he described as the mother’s ongoing violence.[43]
[43] Father’s affidavit filed 1 September 2020, [73].
The mother alleges[44] that on 8 November 2018 the father sexually assaulted her, after saying that she owed him sex four times per week for the cannabis that he had been growing (and inferentially that she had been using).
[44] Mother’s affidavit filed 18 August 2020, [153]–[157].

The mother describes that the father not only said that he was owed sex by the mother, but that when she initially declined he pushed her against the clothes dryer and pulled her pants down, saying “come on open up and join in”. She says she complied with his demand, but then unsuccessfully struggled to push him off. She said that he did not stop. She says that she was enraged by the sexual assault.
This raised a number of contested issues, relating to the father’s cultivation of cannabis, his use of those plants in relation to the mother, and, of greater significance, his sexual assault of the mother.
The mother accepted that the first time she raised this allegation of sexual assault in these proceedings was in her affidavit of 1 April 2019. However, it may be seen that the mother raised the general issue of sexual assault in her Notice of Risk document filed 8 February 2019. The mother further accepted that she was willing to raise issues of sexual abuse with the police by 21 November 2018 when she spoke to them. She, however, did not make this allegation to the police at that stage.
For reasons discussed further later in the judgment, the mother’s allegation in relation to this sexual assault is not made out, largely due to her unreliability as a witness. Other aspects of her evidence, regarding the cannabis crop, and the father’s pressure of the mother in relation to sex are adequately supported despite the other difficulties with the mother’s evidence.
The father initially said that he did not grow cannabis at the DD City property.[45] However, the father’s denials in relation to his responsibility for the crop cannot be accepted.
[45] Transcript 8 February 2021, p. 478 lines 12–13.
Firstly he accepted that there were cannabis plants grown at their property during their relationship.[46] He described that there was “one hydroponic unit” and “a little one that [the mother] started out the back”.[47] Under cross-examination, the father stated that the mother had made THC oils and had asked him to “run it here and there occasionally”, but he said he “never received moneys or any benefit from that”.[48]
[46] Transcript 8 February 2021, p. 478 lines 15–17.
[47] Transcript 8 February 2021, p. 478 lines 19–20.
[48] Transcript 8 February 2021, p. 475 lines 26-30.
Secondly, the father ultimately accepted that he had derived benefits from the crop. While at [131] of his affidavit filed on 1 September 2020, the father asserted he “never sold drugs in exchange for sex”[49] and, under cross-examination, initially denied ever providing drugs to anyone for money, for sex, for a photograph, or for them doing anything else in exchange,[50] the father was unable to maintain this position. He subsequently accepted that there was one occasion where he provided cannabis to women in exchange for nude photographs.[51] This was inconsistent with his previous evidence. This undermined the father’s initial denials in respect of his involvement in the cultivation of cannabis at the home in two ways. Firstly the inconsistency in his evidence undermined his credibility. Secondly, and more importantly, the concession that he made use of the crop for his personal ends negatived his denial of responsibility.
[49] Father’s affidavit filed 1 September 2020, [131].
[50] Transcript 8 February 2021, p. 475 lines 7–22.
[51] Transcript 8 February 2021, p. 477 line 7–8.
Thirdly, the father used the crop as leverage upon the mother. Although under cross-examination the father initially denied that he told the mother that he would stop caring for the marijuana plants without payment,[52] he subsequently conceded that he had said to the mother words to the effect “You’ve got 10 minutes to take your clothes off and give me a perve if you want me to continue tending the plants”.[53] In a similar vein, under cross-examination, he also accepted that there was another occasion in which he told the mother he would not give her money to buy groceries unless she had sex with him.[54]
[52] Transcript 8 February 2021, p. 478 lines 21–35.
[53] Transcript 8 February 2021, p. 479 lines 5–9.
[54] Transcript 8 February 2021, p. 493 lines 39–40.
This leads to the conclusion that his denials and minimisation regarding his involvement with the cannabis plants were false, as was his previous contention that he had not traded the cannabis for benefits. This is not to suggest that the mother did not also make use of the crop, a matter that she accepted. The father noted that the mother wanted to make the oil “to give to her dad as a pain relief” and that she “used the oil on Y’s back”.[55] The mother conceded that during her relationship with the father, she applied THC oil on Y’s back to “calm her down”.[56] However, while apparently accepting that she had done this, the mother denied using THC oil on Y since separation.[57]
[55] Father’s affidavit filed 1 September 2020, [135].
[56] Mother’s affidavit filed 18 August 2020, [374].
[57] Mother’s affidavit filed 18 August 2020, [374].
The evidence as to cannabis does, on the whole, call into question the father’s reliability as a witness, and indicate that he exercised control over the crop, which he in turn used to place pressure upon the mother.
9 November 2018 marked the separation of the parties, along with an incident of significant violence, although the parties dispute who the aggressor was.
Some conflict appears to have occurred in relation to drug possession. The father accepted that on the morning of 9 November 2018 he had cocaine in his possession, which he asserted was brought to the house by the mother.[58] He said he objected to the mother bringing the cocaine to the house and said he “took it back down to the lady who [the mother] got it off, and said, “Don’t bring it here””.[59] The father accepted that he then sent a text to the mother at 8 am that day telling her that he returned the cocaine to someone referred to as “old mate”.[60] This lent support to the father’s explanation.
[58] Transcript 8 February 2021, p. 476 lines 23–27.
[59] Transcript 8 February 2021, p. 476 lines 26–28.
[60] Transcript 8 February 2021, p. 476 lines 39–41.
The conflict between the parties accelerated during the day.
The mother subsequently reported to police on 21 November 2018, that on 9 November 2018, before the father returned home, she texted him in relation to nude photos and messages to a female that she had recently located and believed to be evidence of an affair he was having. She reported that “she asked him not to return home and give her some space to process the incident.”[61]
[61] Transcript 29 September 2021, p. 205 lines 33–46.
This seemed a somewhat vanilla description of the actual interactions between the parties.
The father chose to return to the home in the face of a barrage of abusive and highly threatening messages sent by the mother. Their key theme was as to the father having an affair, a matter that clearly enraged the mother.
The mother accepted that the exchange involved some 260 messages from her, and some 80 from the father. The father produced the full set of the messages that passed between the parties[62] (the mother having failed to do so despite previous orders by Judge Hughes directing her to do so).
[62] Exhibit F7, pp. 209–42.
The messages commenced at 9:12 am, with the mother messaging the father:
You cheating fucking cunt there is my proof now fuck off your shits out the front waiting for you
I HATE YOU go find somewhere else to live cunt not here and not on my fucking birthday cheating whore you are
Infact im sending all that to [Ms N] to show her why I’m leaving your lying arse go fuck yourself[63]
[63] Exhibit F7, p. 210.
The messages continued and generally reflected extreme aggression on the part of the mother. The messages from the mother threatened to cut the father’s dick off, fuck him up the arse with a dildo (non-consensually), implicitly to kill him and bury him in the bush, and to attack him with a baseball bat. The mother told the father that she had “someone to bash your head in too cunt.”
The fierce exchange between the parties was used to attempt to undermine the mother’s current allegation that she had been sexually assaulted the day before, as the mother was cross-examined regarding the lack of reference in her messages to the allegation that the father had sexually assaulted her on 8 November 2018.
The mother denied that there was a lack of raising the claim, asserting that a reference to there being “nothing worse you can do to me than this”[64] in the messages as a reference to the sexual assault. Contextually, the reference appears to be to his unfaithfulness, as “this” appears to refer to the surrounding complaint about the father’s unfaithfulness.
[64] Exhibit F7, p. 227.
The mother also explained that the lack of reference stemmed from the fact that she had sought to raise sexual assault with the father via SMS previously, but that he had subsequently hurt her. However, despite this claim, there were references made by the mother more generally to sexual abuse by the father. For example, at 10.09 am the mother messaged the father:
He’ll go fuck her up the arse that’s what you like or how about I do it back to you when you get home I’ll have a dildo waiting see how you fucking like it when you don’t want it cunt
You rape me all the time your sick you’re an evil cunt
Go to hell[65]
[65] Exhibit F7, p. 214.
Further, at 1:50 pm the mother messaged:
You took sex once a week even if I didn’t want it what a sick twisted cunt you are taking your wife while fucking her in the arse fuck off[66]
[66] Exhibit F7, p. 229.
At 2:01 pm the mother messaged:
Typical cheater gets caught blames her ffs I have tried even given into your disgusting sexual demands and you still go fuck other bitches now fuck off I have nothing to be sorry for other than believing you and I was pregnant with babies while you were out getting you dick wet now fuck off[67]
[67] Exhibit F7, p. 230.
The mother said that this referred to non-consensual sex taken by force, because she was threatened by the father.
Hence, while there was no specific reference to the alleged assault of 8 November 2018, the messages were replete with allegations by the mother that the father had dealt with her sexually without her consent.
This leaves the position that the mother did not raise the 8 November assault in those exchanges with the father. This cannot have been due to a fear to raise such matters, as she did, in fact raise them. However, absent a reason being identified to specifically raise that allegation, the lack of specific reference to the alleged 8 November 2019 assault is not a matter that particularly undermines that allegation, where more generic allegations were made.
While the father adopted an apparently more conciliatory tone the mother complained that the messages were not the full interaction between the parties on that day, as she asserted that the father had also telephoned her and behaved more aggressively in the calls.
The mother says while she was half-way through sending the father the SMS messages on 9 November 2018, the father called her and said words to the effect of “you better be dressed up and ready to go when I get home because you owe me three more for the week as I only got one last night”.[68]
[68] Mother’s affidavit filed 18 August 2020, [160].
While it was put to the mother that there had been no calls from the father and that all of the communications were by SMS, the SMS exchange provided support for the mother’s contention.
At about 1:14 pm, the father messaged the mother:
…U are screaming I can’t understand you[69]
[69] Exhibit F7, p. 226
It may be accepted that the SMS do not show the whole interaction. However, even without regard to oral exchanges, the father’s messaging was also aggressive and threatening.
For example, at 9:27 am the father threatened:
I’ll show the cops your garden. Bite pics and texts..fuck u..U can loose the kids to if u do sqealer..and a threat just then to add..we would both get burned if u c pigs[70]
[70] Exhibit F7, p. 211.
This can be seen as little other than a threat to use the police against the mother, resulting in the loss of the children. The reference to a garden was apparently a reference to the cannabis crop.
Further, at about 3:16 pm, the father messaged the mother:
Home soon. Can’t wait to destroy u to..[71]
[71] Exhibit F7, p. 237.
The father sought to explain this as a reference to engaging in consensual sexual activity with the mother. Given the mother’s messaging to him there was no reasonable basis to think that consensual intercourse was on the cards. Rather, the message should be taken to be threatening.
At 3:51 pm on 9 November 2018, the mother messaged:
No sex no marriage no wife we are over done like 5 years ago done and yes it’s called sexual coinhersion (coercion) in a relationship and its preferred by sick evil cunts yes
Its called sexual abuse
I’ll add it to the other
Usually cheaters belittle their wife even more in the bedroom that’s why I have pnd because if you and a fucked up body forever for your ugly cheating dick not love you are not capable of that[72]
[72] Exhibit F7, p. 238.
The mother accepted that her reference to coercion was a reference to the father bribing her for sex (inferentially with drugs). She said that this is what she meant by sexual abuse.
At 4:21 pm, the mother sent the father a picture of a baseball bat, accompanied with the message “Waiting for you to come home like”.[73]
[73] Exhibit F7, p. 241.
The father says that at about 4:30 pm, that is, shortly after receiving the picture of the bat, he returned home.
It was at this point that there was a physical confrontation between the father and the mother, the mother wielding a baseball bat, the father a laundry basket.
The father says that he entered the kitchen, then went to the laundry and got a clothes basket and retrieved some clothes. He says that as he re-entered the kitchen the mother was about 1 metre away and swung the baseball bat from above at the top of her head. He says he defended himself with the basket, but received a blow to the head and almost passed out. He said that the mother continued to attack him with the bat and he defended himself with the basket, until he could pin the bat and remove it from the mother.[74]
[74] Father’s affidavit filed 1 September 2020, [99].
The father says that after he left the house and walked to the garage, the mother followed with the children and said “come on cunt I want this”, throwing punches at the father.[75]
[75] Father’s affidavit filed 1 September 2020, [100].
The mother denied hitting or pinching or punching the father, saying he had pushed her over a table, in the shed.
The mother described that the father went into the laundry, collected his clothing and approached the mother in the kitchen, holding a washing basket. She said that he came in, charging and paused, at which point she raised the bat. She said he then charged again. She did not give this description in her affidavit.
She says that she swung the bat, without connecting with his head, and the father smashed the tub into her hand causing her immediate pain. He removed the bat and threw it outside.
The mother reported that the father tried to strike her in the head with his hand as she walked away, however, she ducked and he missed. She reported that she went outside and the father followed her, and moving in close behind her, put his hands around her neck and that she felt like she was going to pass out when the father let go of his hold on her neck. It was unclear when this happened. The mother also said that she attempted to lock the father out, and then went out later to have a cigarette, and to speak with him to tell him to leave.[76]
[76] Transcript 30 September 2020, p. 267–271.
At 4:50 pm, following the altercation the mother messaged:
You broke my finger and I’m gonna tell the hospital exactly what happened[77]
[77] Exhibit F7, p. 241.
The father responded:
Good idea…whilst stopping my wife bashing me with a baseball bat. She breaks her finger. Then of course blame me.[78]
[78] Exhibit F7, pp. 241–2.
The mother responded to this, observing “anyway my word against yours.”[79]
[79] Exhibit F7, p. 242.
Although there was no dispute that the mother had wielded the bat against the father, and was injured when the father took the bat from her, both the circumstances of, and manner of use were contentious. They were the subject of criminal proceedings against the father, in which the father was acquitted.
Those proceedings took place from in March 2020, in the ACT Magistrates Court before Magistrate LL, in respect of charges against the father of choking and assaulting the mother.[80]
[80] Father’s affidavit filed 1 September 2020, [115].
At the hearing, Magistrate LL found the mother “to be a witness who was not always telling the court the truth” and that “she was not truthful about her allegation of sexual assault being reported to police”.[81]
[81] Exhibit F7, p. 261.
Y gave evidence during the hearing that the father choked the mother. Magistrate LL commented that Y “believes her mum, is on her mum’s side as she said in her interview and was and is vulnerable to her mum’s influence and has a desire to support her mum”.[82]
[82] Exhibit F7, p. 262.
Magistrate LL also found the father’s record of conversation to be a “sophisticated self-serving attempt” and that his “lies were unravelled easily when confronted with evidence”.[83]
[83] Exhibit F7, p. 262.
Neither party was assessed as reliable, in a context where the exercise that the Learned Magistrate was engaged in was determining whether the charges were established beyond reasonable doubt. The father was acquitted. The mother then suspended the children’s time with the father.
The incident may be understood as an episode of mutual violence by the parties. There was a high degree of aggression in the communication between the parties prior to the father’s attendance at the home. In that communication the mother made clear that she had a weapon to use on the father, that she presented with on his attendance. In the face of such threats the father attended the premises and approached the mother whilst she held the bat. An altercation ensued in which the mother was injured. They should be considered to both be aggressors in this interaction.
In November 2018, Sergeant MM[84] attended the DD City property in response to a reported disturbance as information received indicated a male and female were arguing at that location and there were children present at the address. Sergeant MM asked the mother to accompany her to the front yard out of sight of the children and the father.
[84] Exhibit F7, p. 186.
The mother informed the police that “there had been arguing, it was verbal only and there was no physical violence.” The mother stated “that the arguing was between herself and the Defendant”.
Sergeant MM stated that the mother “advised that she had just learned that her husband was cheating on her, she had seen photos and texts on his phone, she again advised there was no violence involved and they had just been arguing”.
Sergeant MM did not observe any injuries to the mother at this time and the mother expressed that it was her intention to get out of the house and go shopping.
The mother made no allegation of sexual abuse.[85]
[85] Exhibit F7, p. 185–91.
On 12 November 2018, the police again spoke with the mother who stated that an assault occurred on 10 November 2018. She said that she had contacted police that evening because she had a verbal argument with the father earlier that day and was fearful of what he might do. While the police offered to take her statement, she declined because of “her current home situation with the children”.[86]
[86] Exhibit F8, p. 5
On 21 November 2018, the mother further reported to the police that on 10 November 2018, she had asked the father to leave the house. She said that the father went outside to the shed in the rear yard, and the mother followed him, asking him to leave. They started arguing about the alleged affair and when the father grabbed her, they fought, with the father trying to strike the mother in the head. The mother alleged that the father struck her in the arm, pulled her across the room, where she landed heavily on her back, striking her head on the ground.

The mother described that when the police had arrived at the house on 10 November 2018 (presumably Sergeant MM), the father pointed towards the cannabis room and said “if you talk, you’re gone.”[87] She explained that she feared for her safety, so she did not disclose what had occurred that day, or the day before, to attending police.
[87] Mother’s affidavit filed 18 August 2020, [177].
The father described it differently, saying that it was mother that grabbed his arm and he “suggested that [the mother] keep quiet about it or she will end up getting charged” by the police.[88]
[88] Transcript 8 February 2021, p. 487 lines 45–47.
The mother did not then report to the police the sexual assault the previous day that she now alleges.
Family violence orders obtained
The father applied for an interim Family Violence Order against the mother on 13 November 2018.[89]
[89] Father’s affidavit filed 1 September 2020, [112].
The mother obtained a family violence order against the father, initially on 16 November 2018, which was served on the father on 17 November 2018.[90]
[90] Mother’s affidavit filed 18 August 2020, [192]–[196].
The parties each had orders being made on a final basis by consent on 25 January 2019.[91]
[91] Mother’s affidavit filed 18 August 2020, [5].
The father accepted that he sent an SMS message to the mother on 16 November 2018 where he said to her “I’d keep quiet, or your arse goes too”.[92] However, he denied this message was a threat to the mother.[93] Under cross-examination, the father later accepted that the message was a threat.[94]
[92] Transcript 8 February 2021, p. 487 lines 35–37.
[93] Transcript 8 February 2021, p. 487 line 39.
[94] Transcript 8 February 2021, p. 488 lines 4–5.
This adds credence to the mother’s description above of the father’s threats compromising her reports to the police.
The father also accepted that he threatened suicide on 16 November 2018 by texting the mother “Watch the news. I’m off the cliffs in about an hour”.[95] The father characterised this as him trying to convey his feelings to the mother,[96] about “just being down, for all these lies being told about me”.[97]
[95] Transcript 8 February 2021, p. 488 lines 10–20.
[96] Transcript 8 February 2021, p. 492 lines 26–27.
[97] Transcript 8 February 2021, p. 492 lines 29–30.
On 21 November 2018[98] the father further breached the orders by communication through SMS. While the communication involved no abuse or threat, the father breached the mother’s order, in that he engaged in written communication that went beyond what was allowed, moving from dealing with the children to dealing with the property of the parties. The mother described the messaging from the father as manipulative. Even within the messaging the father conceded that his conduct was probably in breach of the order.
[98] Exhibit F7, p. 266–7.
The father was sentenced on 24 March 2020 for breaching the 2018 Family Violence Order by sending the text messages on 21 November 2018.[99] The father pleaded guilty to the charge and was placed on a six-month good behaviour bond.[100]
[99] Transcript 8 February 2021, p. 435.
[100] Father’s affidavit filed 1 September 2020, [116].
The mother also complained that the amount of messages sent by the father (presumably relating to the children) was harassing. She however accepted that from the date of separation until orders were made in the Circuit Court on 25 February 2019 the father only saw the children on one occasion, on the basis that the mother would only agree to time occurring on a single occasion in the presence of her stepfather. Where arrangements to spend time with the children were not in place it is difficult to be critical of ongoing contact about the children.
Proceedings commenced in the Federal Circuit Court
On 8 February 2019 the mother applied to the court for orders that would permit her to relocate to the NSW coast with the children. She says that she then visited the coast with the children.
On 25 February 2019 orders were made in the Federal Circuit Court for the father to spend supervised time with the Z, W and Q for five hours each week. These orders restrained the mother from changing the children’s place of residence from the ACT until further order.[101] That order remained extant until it was discharged on 4 June 2020, roughly two months after the mother moved to Queensland with the children without the father’s knowledge.[102]
[101] Orders 25 February 2019, Order 10.
[102] Orders 4 June 2020, Order 2.
On 4 April 2019, those orders were varied enabling the father to spend time with Z, W and Q on alternate weekends from 10 am Saturday until 5 pm Sunday and from 10 am to 5 pm on the alternate Friday. During the father’s time with the children, nominated persons were directed to be “in substantial attendance”.[103] Those nominated persons were Ms N, Ms P or Mr M or another person agreed to in writing. Those persons were required to file an undertaking with the court seven days prior to commencing their role in relation to the father’s time with the children.[104] Undertakings were filed on 11 April 2019.
[103] Orders 4 April 2019, Minute of Orders Order 7.
[104] Orders 4 April 2019, Minute of Orders Order 8.
Issues in relation to handovers
The orders provided for the parties to register at D Services for handovers, a step that would have meant that there was no need for the parties to come into contact with each other. The father registered. Despite the matter being raised with the mother on a number of occasions between April and September 2019, she did not register. Although she claimed that she thought that she had registered, this sat poorly with her concession that the issue continued to be raised with her over a number of months. Ultimately the mother conceded that she became aware that she had not registered with D Services.
The result of this was that handovers were, in default of the availability of D Services, to occur at the BB Business at F Centre. Such handovers were then to be to the nominated supervisors and the father was entitled to be present, although not to approach within 5 metres of the mother.
The mother made a number of complaints to the police regarding the father having attended. The mother sought to explain that she thought that the orders meant that he could not attend.
Police records from 9 July 2019 report that the mother complained that the father had breached the order by approaching within 100 metres, to which the mother had responded by shouting at him that he was not permitted to be there. The mother confirmed that the police had explained that there was nothing to prevent the father being there unless he approached within 5 metres. The mother also said that she had complained that the father had approached within 5 metres. No such complaint was recorded by the police. The mother further agreed that she has made no allegation in her affidavit material that the father approached within 5 metres.
The mother also complained as to the conduct of the family members who supervised, and as to the efficacy of their supervision of the father. Each contradicted the mother’s complaints in their affidavit evidence. None were challenged under cross examination.
Continued interaction between the parties
The parties continued to message each other in the interim.
The mother complains that the father, in the face of a family violence order, made implied threats to circulate nude pictures of the mother.
On 27 April 2019 mother said:
Just so it's clear I will never give you a pic of me after seeing your ph get one of them
The father responded on 2 May 2019 at 8:26 pm:
I did not do it in revenge you wanted sex and so did I.. we can't help fait.i also have heaps of recordings because I no u were..apparently I can't use them in act unless really necessary like murder e.g… nsw is fine.ive got some doozys.[105]
[105] Exhibit F3, p. 41.
On 2 May 2019 at 8:28 pm the mother messaged:
Ditto except fate it was deliberate and most of the time I didn’t want sex you did I did it or cop your anger.[106]
[106] Exhibit F3, p. 41.
The father replied at 8:31 pm:
That’s not true and u no it.and I don’t forget that stuff.u cum like no tomorrow Every time and with respect magnificent[107]
[107] Exhibit F3, p. 41.
The mother replied at 8:35 pm:
It was fake[108]
[108] Exhibit F3, p. 41.
The father replied at 8:36 pm:
“I don’t care magnificent. Not to”.[109]
[109] Exhibit F3, p. 41.
Regarding the threats to circulate nude pictures, on 17 May 2019 at 4:20pm father messaged:
"No u did nothing I worked then minded kids etc oil is contaminated. And mixed. With both oils .yes I looked at all pics including your 43 in dress up nude kneeling on coffee table . In front of bench I have 3…nude clothed and dressed up all doing one thing".[110]
[110] Exhibit F3, p. 73.
The reference to oil is an apparent reference to cannabis oil. The references to “pics” are apparent references to intimate pictures of the mother in the father’s possession.
Although there was no threat of physical violence by the father in this messaging, the mother asserted implied threats to circulate nude pictures of the mother, and further a threat to remove the house.
It is difficult to conceive of these communications as other than an indication by the father that he held intimate pictures of the mother and that it was within his power to use them.
The mother accepted that this exchange between the parties that spanned some 40 odd pages of messages involved both parties traversing matters beyond what was permissible under the FVO.
The mother alleges further breaches where the father had said that if she continued with the criminal case against him that she would go to gaol and lose the children, where he had offered her money for sex and admitted to stalking her at a shopping mall.
The mother alleged that there were many SMS communications from the father that threatened violence to her. Although the mother initially asserted that these included threats of physical violence, she changed her position to say that they were threats of family violence rather than physical violence. The mother was asked to identify, across a break in proceedings, where she had set these out in her material.
These other instances were not made apparent by the mother in her material.
In July and August 2020[111] the father again breached the family violence orders through use of a communication app, used by the parties in relation to the children. The father was subsequently charged with the breach. The complaint was that the father had gone outside what was allowable in terms of the subject matter of communications under the FVO. What was allowable pursuant to the orders was for the father to contact the mother only for the purposes of facilitating contact handover of the children or to discuss their safety and welfare.[112]
[111] Mother’s affidavit filed 18 August 2020, [214].
[112] Exhibit F7, p. 97.
However, the communication, while ostensibly about the children, was in fact abusive, with the children forming the subject matter of the abuse.
The mother identified aspects of this communication that she reasonably considered to be abusive, being the father’s reference to the mother having “2 faces,” and being described as lying about the father choking her, saying that she should “rot in hell” and that she had destroyed 6 people’s lives and that she had a sick mind.
The mother said that she had reported the father in relation to each breach, but that he had only been charged in relation to three of them.
The father was sentenced for breaching the Family Violence Order on 6 October 2020 after pleading guilty to the charge and was placed on a 12 month good behaviour bond.[113]
[113] Transcript 8 February 2021, p. 435 lines 21–24.
The relocation to Queensland
The mother asserted that on 22 March 2020 she “began bleeding badly from [her] vagina and was in incredible pain”.[114] The mother said she contacted a “doctor from home” service which told her words to the effect of “you need to go to the hospital and probably have an urgent hysterectomy”.[115] Following this, the mother said she contacted her mother saying “I have been told I need to go to hospital. I can’t with the kids. I don’t know what to do can you please help me”.[116]
[114] Mother’s affidavit filed 18 August 2020, [332].
[115] Mother’s affidavit filed 18 August 2020, [333].
[116] Mother’s affidavit filed 18 August 2020, [334].
On 23 March 2020, the mother’s parents travelled down from R Town, Queensland to V City to assist the mother with the care of the children.[117]
[117] Mother’s affidavit filed 18 August 2020, [335]; Transcript 29 September 2020, p. 105 lines 34–35.
On 25 March 2020, the mother asserted she formed the view she was “too unwell to care for the children without the support of [her] family”.[118] Subsequently, the mother and the children travelled to and arrived in R Town, Queensland on 26 March 2020.[119]
[118] Mother’s affidavit filed 18 August 2020, [337].
[119] Mother’s affidavit filed 18 August 2020, [338].
It should be observed that the mother concealed this move, which was in breach of the orders, from both the father and the court.
The bona fides of the mother’s explanation for this move were challenged at trial. (T106ff)
The mother was asked why she did not seek medical treatment in V City and instead travelled to Queensland given the severe nature of her asserted medical issues. She asserted this was because her parents needed to get home before the border with Queensland was shut due to the COVID-19 pandemic.[120]
[120] Transcript 29 September 2020, p. 105 lines 37–43; Transcript 29 September 2020, p. 106 lines 7–8.
However, the mother later accepted that the border closure did not necessarily prevent her parents from entering Queensland, but rather meant that, in a worst-case scenario, her parents would be subject to home isolation once they returned.[121]
[121] Transcript 29 September 2020, p. 106 lines 5–15.
The mother accepted that she did not present any evidence to the Court that related to her current medical issues, nor any material updating her medical condition. The only evidence about the mother’s medical condition was presented by the father who presented a letter from Dr E dated 17 June 2020 describing the mother “experiencing menorrhagia and pelvic pain” and that she was “awaiting gynaecologist review for possible hysterectomy”.[122]
[122] Exhibit F7, p. 100.
The mother’s assertions as to why she moved have not been made out. Rather it appears that the claims as to her medical condition formed a pretext to justify the move. Even accepting that the mother has experienced medical difficulties, and further accepting that in the face of such people do not always act in the most rational manner, the move to Queensland sits poorly with the mother’s description of her state, and the lack of follow up in pursuit of what she claimed was urgent medical intervention further undermines her explanation.
This assessment is not conducted under any notion that a person must demonstrate compelling circumstances to justify a move. Rather, where the move occurred contrary to court orders, and in a clandestine manner, the explanation put forward by the mother is significant to assessing both her approach to parenting and likely compliance with orders. In this instance her explanation is disingenuous.
The mother accepted that from March 2020 she ceased to provide the children to the father.
On 26 March 2020, the mother advised the father that his time with the children would be suspended due to the COVID-19 pandemic.[123] However, at this stage, the mother had already relocated herself and the children to Queensland, and as a result could not comply with the orders regardless of whether there was a COVID-19 pandemic or not.[124]
[123] Father’s affidavit filed 1 September 2020, [87(z)].
[124] Transcript 29 September 2020, p. 173 lines 28–37.
On 29 April 2020, the mother filed an affidavit in the Federal Circuit Court where she first alleged the father had sexually abused the children in these proceedings. In the affidavit, the mother failed to disclose that she and the children had relocated to Queensland, and even stated her place of residence as DD City, Australian Capital Territory. Under cross-examination, the mother stated that it “wasn’t set in stone that I was staying in Queensland. So technically, yes, my address still was the DD City property”.[125]
[125] Transcript 28 September 2020, p. 96 lines 1–2.
On 30 April 2020, the mother appeared before Judge Hughes via telephone. On this occasion, she failed to disclose that she and the children had relocated to Queensland.[126]
[126] Transcript 28 September 2020, p. 96 lines 15–24.
On 30 April 2020, orders were made transferring the matter to this Court.
It was noted in orders made by me on 7 May 2020 that the mother had advised the Federal Circuit Court “that she was not providing the children in accordance with the orders” and further that “[t]he Mother asserts that there are matters of unacceptable risk which justify her taking such a course.”[127] It was further noted that “[d]espite the current orders not providing for supervision, but rather providing for a person to be in substantial attendance”, the father and nominated persons were to “give [an] undertaking such that any time with the father will be supervised by those persons.”[128] It was further ordered that the father and the nominated persons were to file undertakings that the father’s time with the children would be supervised.[129] These undertakings were filed on 8 May 2020.
[127] Orders 7 May 2020, p. 2.
[128] Orders 7 May 2020, Order 18, p. 4.
[129] Orders 7 May 2020, Order 19, p. 4.
On 7 May 2020, the mother appeared before me via telephone. Again, the mother did not advise the court that she and the children had moved to Queensland.[130]
[130] Transcript 28 September 2020, p. 96 lines 26–32.
Under cross-examination at the final hearing, the mother accepted that her non-disclosure constituted a deception on the court.[131]
[131] Transcript 28 September 2020, p. 96 lines 34–35.
The mother raises risk with the court
At the 7 May 2020 hearing, the mother indicated her intention to file an application for the children’s time with the father to be suspended on the basis of risk.
Such application was filed on 25 May 2020, at which stage the move to Queensland was revealed. Upon hearing the application, the father’s time with the children provided for under the 27 September 2019 orders were discharged on 4 June 2020.[132] The mother was permitted to remain in Queensland, in large part because of the benefits to the children of the support of the maternal family.[133]
[132] Order 4 June 2020, Order 3, p. 2.
[133] Order 4 June 2020, Order 1, p. 2.
On 17 July 2020, all previous orders with respect to X, Y, Z, W and Q were discharged.[134] Orders were made for the children to live with the mother and for Z, W and Q to spend time with the father at a supervised contact centre in Brisbane.[135]
[134] Orders 17 July 2020, Order 1, p. 2.
[135] Orders 17 July 2020, Orders 2 and 3, p. 2.
Sexual abuse issues
Despite not pursuing a case of unacceptable risk, the mother made a series of sexualised allegations against the father, reliant on incidents alleged to have occurred in the post separation period.
These commenced in August 2019, where the mother alleges that the children presented in a manner that raised concerns for her that they were at sexual risk with the father. At [242ff] of her affidavit, the mother asserts that the children have exhibited sexualised behaviour, and made disclosures following spending time with the father. For many of the identified events, the mother conceded that she was uncertain as to whether they indicated sexual abuse, and that they may be capable of innocent explanation. However, the mother identifies these matters as justifying a concern that should shape what orders should be made in the children’s best interests. The father denies any sexualised dealings with the children.

Despite these positions of the parties, it was necessary to assess the evidence in relation to the allegations of sexual, physical, and other abuse and family violence as those matters inform issues of parental capacity, and the degree of unwillingness of the mother to support the relationship between the children and the father.
The mother made a number of claims of sexual abuse of both the children and herself. None of those factual allegations put by the mother were made out and allegations made by the mother regarding the sexual abuse of the children during the family assessment process may be considered positively to be wrong, and the product of a disingenuous and manipulative approach by the mother. It may be observed that even if an unacceptable risk of sexual abuse case had been pursued by the mother, it would not have been made out as the evidence in support of the matters that she raised was so unreliable as to not permit any reliance to be put upon it in assessing such a risk through the lens set out by the High Court in M v M.[302]
[302] (1988) 166 CLR 69.
Rather, the allegations made by the mother were disingenuously used to undermine the children having a relationship with the father. This, and the mother’s unilateral ending of the children’s time with the father, has been harmful to the children. Further, the aggressive and violent manner in which the mother has dealt with the father, at least partly in the presence of the children, is illustrative of deficiencies in her parenting capacity.
However, whilst the mother has behaved in a manner that is highly destructive of the children’s relationships with the father, it is important to acknowledge that a portion of the destruction of the relationships falls at the feet of the father for the manner in which he has treated the mother in the presence of the children, as seen in the single expert’s assessment of Y and her attitude to the father.
The father’s conduct is demonstrative of deficits in his parental capacity, and to his attitudes to the responsibilities of parenthood. The making of threats to the mother, the carrying through of which would have caused the children to be taken into care and removed from either of the parents, is particularly deficient. His attitude to the mother as shown by the abusive and controlling manner in which he has dealt with her, and his engagement in violent conduct (although mutual) in the presence of the children at separation are detrimental to the children. They are indicative of limited capacity to emotionally care for the children, as each involves an instance of engaging in conduct hurtful to the children.
The culmination of the parenting capacity deficits of both parents, and the exposure to family violence, can be seen in the result observed by the single expert that for the younger children to have a relationship with the father it would not be an exercise of rebuilding a relationship on the foundation of a current relationship, but rather would be the father and younger children starting again.
Although the father has contributed to this position, there are multiple layers to the mother’s undermining of the children's relationship with the father that have brought this about, and which lead to the conclusion that the mother is highly unlikely to support a relationship between the father and the children.
Following separation, the mother refused time between the father and the children (save for a single occasion) prior to making of orders, then, once orders were made, failed to provide the children in accordance with the orders. As noted above, the mother falsely alleged sexual abuse by the father upon the children. Further, contrary to court orders, the mother unilaterally suspended the father’s time with the children and removed them to Queensland. These matters demonstrate that, even with some compliance by the mother following orders for supervised time in Queensland (noting that the mother was tardy in registering for the supervision facility) there can be no satisfaction that the mother is supportive of the relationship with the father or would be compliant with orders that facilitated the relationship with the father. Rather, the conclusion should be drawn that contrary to orders the mother is likely to undermine the children’s time with the father in the future.
This is a significant deficit in the mother’s parental capacity in her ability to emotionally care for the children and to foster a relationship between them and the father.
The deficiencies in the parents operating together can be seen in X’s disengagement from schooling. Although the father seeks to assign responsibility for that to the mother, he is unable to divest himself of responsibility, given his claims of being a primary carer at that point. Following separation it may be seen that all of the children, while they remained in V City, have disengaged from school whilst in the care of the mother. These circumstances speak to incapacity on part of the parties either together or separately, if unsupported, to adequately care for the children.
Their joint limitations are also illustrated by their cultivation of cannabis at the family home, and even further by the mother’s choice to apply cannabis oil to one of the children.
Further limitations may be seen in the father’s proposals for the care of the children should they live in V City. He displayed little, if any, understanding of the particular needs of the children. His proposal as to the persons who would facilitate care of the children lacked any indication of understanding of the children’s needs, or how he might meet them.
While, now that the relationship has come to an end, there is a reduction in the risk of exposure to family violence due to a reduction in the interaction of the parties, there remains some risk of such as evidenced by the parties’ aggressive post separation conduct and the multiple convictions for breach of family violence order against the father.
This negative picture of each of the parents is not, however, the whole picture.
The father has demonstrated strong commitment to the pursuit of the relationships with the children following separation. He has spent time with the children despite the limitations imposed by the orders and despite the mother’s undermining. He has undertaken the expensive and arduous task of attending supervised time in Queensland. He now doubts that he will be able to continue to resource visits to the children in Queensland.
The father’s engagement with the younger children in exercising supervised time appears appropriate and focussed on the children. The nature of the father’s engagement with the younger children was, despite the interruption of their relationship, sufficient to negative the need for ongoing supervision.
There is also the assessment of the mother and children by the single expert. He identified that the mother is the primary relationship for the children and the heavy reliance of the children upon the mother. He observed an easy and appropriate interaction between the mother and the children during the assessment process. He further observed positive interaction between the siblings.
The current capacity of the mother should not be assessed in a vacuum. Pivotal to the interim arrangements that permitted the mother to remain in Queensland pending the final hearing was the support that she and the children have from her mother and stepfather there.
The mother is currently living in circumstances where she has the close support of her mother and stepfather, both of whom gave evidence in the proceedings. They have demonstrated a strong commitment to the mother and to the children in a manner which has seen the children become settled in Queensland and where there can be confidence that they are not simply reliant upon the mother, with her compromised capacity as a parent for their upbringing.
Further, Y’s description of her current school experience to the single expert was far more positive than her experience in V City, and while the evidence established that the children’s interaction with school in V City was seriously deficient, the same issues have not been demonstrated to have arisen in Queensland.
As identified above, the best interests of the children are to be determined on the basis of the considerations of s 60CC of the Act. The above factual assessment points to a subset of those considerations as pivotal in determining the best interests of these children. That subset involves the benefits of meaningful relationship with the father for the children, the children’s characteristics, the nature of the children’s relationships with each parent and the parental capacity to provide for the children including on an emotional and practical basis. The impact of a change in the children’s circumstances looms large as a significant consideration. Issues of neglect are also raised, but more usefully looked at through the lens of parental capacity. Further, the views, particularly of the almost teenaged Y have significance. Those matters point to no easy resolution in this matter.
The single expert identified that there are a number of potential benefits if the younger children are able to achieve meaningful relationship with their father in terms of identity and personal and psychological development. However, at present the father does not have a relationship that would give those benefits. The children enjoying such benefits is reliant on, but not guaranteed, by the formation of a sufficient relationship.
Those are not benefits which can come to Y by forcing Y into such a relationship. This has been recognised by the father, in seeking that Y engage in family therapy, and be merely encouraged to spend time with him with the younger children.
The father is correct that, if the children and the mother remain in Queensland rather than being caused to return to V City, the prospects of the building of a relationship with the younger children, and reconnecting with Y, are poor. Neither of the parties is in a good position to undertake the travel to support regular time with the father, and certainly not at a high frequency. There is a risk that the mother will not comply with orders or otherwise facilitate the relationship, even if the father travels to Queensland. He is also correct to identify that enforcement is easier if both parties are in close proximity as, for example, it is a much more realistic option to modify arrangements and provide for make-up time if the parties are in close proximity. Non-compliance in the context of expensive and long distance travel is harder to deal with, particularly where both parties are of limited means, and where a non-compliance can have serious practical effects. For example, if the mother was to fail to deliver the children for time with the father after he has travelled to Queensland, it is not simply possible to order or arrange for makeup time in the following weeks, a prospect that may be available if the parties were proximate to each other.
That does not mean that there are no prospects for relationship if the children remain in Queensland, although there are significant practical barriers. In order to facilitate such a relationship it would be necessary both to build in flexibility in respect of travel for the father, but also to impose clear obligations on the mother.
One aspect of time with the children in Queensland is that an added layer of complexity, and an added barrier both financially and practically, is created by the imposition of an obligation to either use a handover facility or a supervision facility. Whatever the arrangements are for handover, either in V City or in Queensland, it is important that the parties are kept separate from each other, to avoid exposing either the parties or the children to toxic interactions. While this points to the use of a formal handover facility, the use of such a facility should not impose too great a practical impediment in what will already be difficult circumstances. That is, one should only be used if it is proximate and appropriately available.
While the initial position of the single expert was that the time with the younger children should commence with supervision, this position softened. The single expert was of the view that the disposition of the younger children was supportive of the formation of a relationship with the father. While he initially thought that the introduction should be mediated by supervision, this option became less necessary where, as here, the time that has already occurred through supervision has proven to be positive. The reports from OO Services indicate that the younger children adapted well to time with the father, with the time being characterised by positive interactions.
While there is a benefit identified to easing into time with the father through supervision, where the children have already demonstrated that they have adapted to time with the father through the current arrangements, the added difficulty and complexity of an introductory period under supervision is not justified.
What that means is that either in Queensland or V City the younger children should immediately move to unsupervised time, to progress their relationship with the father to a point where they may receive the benefits that come from a meaningful relationship with him.
The single expert identified that the arrangement for time should provide for high frequency time. The nature of the time varies dependent upon whether the children are in Queensland or the ACT. Provision of opportunities for high frequency time in Queensland may not occur due to the practicalities. The father may not be able to fund the travel, and the changing arrangements for the movement between the States and Territories in the current COVID-19 crisis are notorious. The single expert recommended that if the time was in Queensland, then provision should be made for time with the children on consecutive days (as a starting point). In the ACT, higher frequency time could be provided for.
The key issue then is whether the children will remain living in Queensland, or return to the ACT.
It may be anticipated that the prospects of meaningful relationship with the father are enhanced if they return to the ACT, enhancing the prospects of the younger children obtaining the benefits of that relationship. Those benefits should be weighed in the context of limited parental capacity on the part of the father, speaking to limited benefits flowing from time with the father. This is not to suggest that there is an absence of benefit, merely that the benefits may be expected to be limited.
It remains, in either case, uncertain that there will be a development of a fresh relationship with the father for the younger children, although the single expert thought there were prospects for that given the manner in which the younger children presented to him.
Against the move is the fact that the children are settled at present. Remaining in Queensland means that they will not face the disruption, adjustment, nor being called upon to cope with the change.
A move to the Australian Capital Territory involves significant loss for the children, not simply because they would be uprooted from where they now live but because of the loss of immediate support of the extended family. The single expert indicated that they could cope with the move, although in describing it in such a manner, accepted that this covered a spectrum of how the children might deal with the move. It may be anticipated that the move would be taxing upon them and uncertain as to how they would readjust. Importantly, neither the mother nor the children would have the immediate support of the mother’s mother and stepfather. Their support may be seen to be a significant protective mechanism for the children, ameliorating some of the deficits that the mother has previously shown in her parenting. These matters bring into sharp focus the need to consider the potential change of circumstances thrust upon the children if the father’s course of action is adopted.
Importantly, the children, as best as can be ascertained, appear at present to be doing well. Their functioning, interaction with each other and interaction with the mother as observed by the single expert was positive. Importantly, the mother, as their primary carer, and as their main source of personal support, also appears to be well supported in Queensland. They have to hand the support of the maternal grandmother and step-grandfather, who have demonstrated a strong will to support the mother and the children.
Where the children come from a background of a dysfunctional parental relationship, and a place of compromised parental capacity, they are now supported. Although the mother still displays limitations in her capacity in respect of the support of the relationship with the father, otherwise the children appear to be doing well, supported by the mother who is in turn supported by her mother and stepfather.
It is uncontested that the children will remain in the primary care of the mother. They are directly impacted by her support of them as their primary carer and, at present, she is well supported to care for them. Her circumstances, and their circumstances in V City are not identified to have that sort of scaffolding, and it should not be thought that the children spending time with the father will substitute for the support that the mother currently enjoys.
Despite the appalling attitude and conduct of the mother in undermining the relationship with the father, the balance of these matters favours the children remaining in the primary care of the mother in Queensland. Their living circumstances, the support they and the mother enjoy, the amelioration of parenting deficits through that support, and the fact that the children appear to be progressing well outweigh the possible benefits of a move insofar as the move increases the prospects of the children receiving the benefits of meaningful relationship with the father.
Although there is a risk that the mother will undermine the future relationship between the father and the children, orders should be made to, as best as possible, support such a relationship.
CONCLUSION
As agreed by the parties the children will live with the mother, and she will exercise sole parental responsibility for them.
No order will be made requiring the return of the children to the V City area, although orders will be made to permit the father to spend time with Z, W and Q. Orders will also be made to provide for communication by Z, W, Q and Y with the father. Optimally orders would also be made for family therapy between Y and the father, and for Y to spend time with the father with the other children should she choose to. However, the uncertainty as to the facts that may trigger such an obligation mean that an order mandating such a result should not be made. That does not prevent Y from attending should she choose to.
Although there is some doubt as to the father’s capacity to travel to Queensland to spend time with the children, his commitment to doing so to date suggests, despite his own doubts, that if he can find a way to do so he will. In any event, despite his own doubts he sought that orders be made for time even if the children are to remain in Queensland. Given the difficulties with travel, the father will be accorded flexibility in the arrangements, such that he may nominate the timing of the visits. The visits during term time will occur in Queensland, while in school holiday time they will not be restricted to Queensland.
The single expert recommended a frequency of visits between monthly and six weekly. Given the uncertainty as to how the father will manage the travel, orders will be made that provide for him to spend time with Z, W and Q, at his election, at up to a monthly frequency to start with, transitioning to holiday time. The monthly time itself will transition from short periods across consecutive days to overnight periods.

Given the emphasis on regularity by the single expert, the transition to both overnight time and school holiday time with be contingent upon the father having recently exercised the option to spend regular time with W, Z and Q.
Given the mother’s previous non-compliance, in the event that the children are not provided in accordance with the orders, for the purpose of transition they will be deemed to have spent the relevant time with the father. This will not derogate from other remedies that the father might pursue in the event of non-compliance by the mother, but will limit her capacity to undermine the progression of time with the children.
These considerations will lead to undesirably complex orders in order to facilitate the development of relationship with the younger children.
Ultimately, if the father is unable to travel to Queensland there will be no transition and it may be anticipated that the relationship with the father will not develop.
The parties agreed to orders proposed by the ICL that the father take part in programs as proposed by the ICL, being the U Services program, and an Anger Management Course, and to provide the mother with certificates of completion.
Orders will be made, again as proposed by the ICL, that neither party denigrate the other or members of the other’s family in the presence of the children, and for the parties to use their best endeavours to ensure no other person does so.
Although the mother is to exercise sole parental responsibility, it is appropriate that the father know the children’s medical and school arrangements. This will assist the father to have a better understanding of what is going on for the younger children when he spends time with them.
In relation to medical care, the parties should notify each other immediately or at least within one hour of any medical emergency involving the children.
Finally, the ICL sought for the children to be at liberty to communicate with either parent according to their wishes, and for the parents to communicate with each other via a parenting application, with such communication restricted to matters relating to the children’s care, welfare and development. This gives an appropriate and recordable mechanism for communications between the parties, which is a necessary safeguard given the multiple breaches of family violence orders.
The parents will be at liberty to agree to alternate arrangements.
Orders will be made in accordance with the requirements identified above.

I certify that the preceding four hundred and thirty-nine (439) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.
Associate:
Dated: 30 September 2021
ANNEXURE A
Minute of Order Sought by the Applicant Mother
PARENTAL RESPONSIBILITY: -
1.That the Mother shall have Sole Parental Responsibility for the children X born in 2003, Y born in 2009, Z born in 2013, W born in 2015 and Q born in 2017 (“the children”).

LIVE WITH: -
2.That the children shall live with the Mother.
3.That the children shall be permitted to relocate with the Mother to R Town.

SPEND TIME WITH: -
4.That the children X and Y shall spend time with the Father in accordance with their wishes.
5.That in the event that the children are permitted to relocate with the Mother to R Town, that Z, W and Q shall spend time with the Father, supervised by AA Services in R Town, once per calendar month on Saturday and Sunday for not less than four (4) hours each day.
6.That so as to facilitate Order 4 hereof that the parties shall: -
a.   Within seven (7) days of the date of these Orders do all things and sign all documents necessary so as to complete an intake with AA Services in R Town and register for supervised contact.
b.   That the Mother shall be solely liable for any costs or fees associated with AA Services, R Town providing supervision of the Father’s time with the children.
c.   That the Father shall be solely liable for any costs or fees associated with travelling to and from AA Services, R Town to spend time with the children.
7.That in the event that the children are not permitted to relocate to R Town and are Ordered to return to the Australian Capital Territory, that Z, W and Q shall spend time with the Father, supervised by D Services, ACT, once per fortnight for not less than two (2) hours.
8.That so as to facilitate Order 6 hereof that the parties shall: -
a.   Within seven (7) days of the date of these Orders do all things and sign all documents necessary so as to complete an intake with D Services, ACT and register for supervised contact.
b.   That the Father shall be solely liable for any costs of fees associated with D Services, ACT providing supervision of his time with the children.

MISCELLANEOUS: -
9.That pursuant to s68B the Father shall be and is hereby restrained, by way of injunction, from attending upon the children place of residence or education.
10.That neither party denigrate or permit any other person to denigrate the other party or any member of the other party’s household in the presence or hearing of the children or any of them.
11.That each party do all things within their power to actively promote and encourage the relationship between the children and the other parent and members of the other parents extended family.
12.That each party is at liberty to liaise with whichever school the children may attend from time to time in relation to the children’s progress at school and request that the school forward directly to the party, at the parties expense, copies of each of the children’s reports, school photographs, merit cards, newsletter and any written material pertaining to the each child’s academic and extracurricular activities.

ANNEXURE B
Final Order Sought by the Respondent Father
The Respondent Father seeks the following Orders, that:
1.All previous Orders be discharged.
2.The parties have equal shared parental responsibility for the children X born in 2003 (“X”), Y born in 2009 (“Y”), Z born in 2013 (“Z”), W born in 2015 (“W”), and Q born in 2017 (“W”) (collectively called “the children”).
3.Within 7 days of these Orders, the Mother return the children to the ACT area.
4.Absent compliance with Order 3 herein, pursuant to section 67U of the Family Law Act 1975 (“Cth”), a Recovery Order issue directed to the Marshal of the Federal Circuit Court of Australia and all officers of the state and federal police of the Commonwealth of Australia, AUTHORISING THESE AGENCIES ONLY to enter and search any premises or places, and to stop and search any vehicles, vessels or aircraft for the purpose of finding the X born in 2003, Y born in 2009, Z born in 2013, W born in 2015 and Q born in 2017, with such assistance as they may reasonably require and if necessary by force to recover the children and return them to the Respondent Father.
5.The child live with their parents as follows:
5.1 X shall live with each of his parents in accordance with his views.
5.2Y, Z, W and Q, live with the Father and spend time with the Mother as may been agreed between the parties and failing agreement for 5 nights each fortnight.
5.3In the event this Honourable Court does not make order for the children to live primarily with their father, Y, Z, W and Q live with the parties on either an equal time basis or with the children having substantial and significant time with their Father.

6.During the Term 1, Term 2 and Term 3 school holiday periods, unless otherwise agreed to in writing between the parties:
6.1 Y, Z, W and Q shall spend the first half of each school holiday period with the Father in holidays which commence in even numbered years and the second half of each school holidays period with the Father in holidays which commence in odd numbered years;
6.2 Y, Z, W and Q shall spend the first half of each school holiday period with the Mother in holidays which commence in odd numbered years and the second half of each school holidays period with the Mother in holidays which commence in even numbered years.

7.The following arrangements apply for the Christmas (December/January) school holiday
7.1 Y, Z, W and Q spend time with each parent from 3pm on the first Friday at the end of Term 4, as follows:
7.1.1 In holidays which commence in even numbered years:
7.1.1.1 with the Father for the first 8 nights including up to 2pm Boxing Day;

7.1.1.2            the following 8 nights with the Mother;
7.1.1.3            the following 14 nights with the Father;
7.1.1.4            the following 14 nights with the Mother.

7.1.2 In holidays which commence in odd numbered years:
7.1.2.1with the Mother for the first 8 nights including up to 2pm Boxing Day;
7.1.2.2the following 8 nights with the Father;
7.1.2.3the following 14 nights with the Mother;
7.1.2.4the following 14 nights with the Father.

8.For the purposes of facilitating non-school handovers, non-school handovers shall occur between the parties at the BB Business in F Centre AND IT IS NOTED THAT the parties shall remain 5 metres apart at handovers.
9.The Mother and Father forthwith do all such acts and things and sign such documents as may be necessary to authorise the children to be vaccinated according to the Childhood Immunisation Schedule.
10.The Father be entitled to urgently arrange for W’s dental treatment.
11.Both parties be permitted to contact the children’s doctors or other specialists to obtain any necessary information that parents usually receive in relation to the children.
12.The parties keep each other informed within a reasonable timeframe about any welfare issues relating to the children including medical care, health issues and doctor’s appointments, schooling etc. In the event of a medical emergency, serious health issue or injury or significant incident relating to either child the parties forthwith advise the other. In the event either child is hospitalised, both parents be permitted to attend.
13.The parties shall communicate about the children’s health and welfare and matters relating to their financial matters through their existing parenting app, and otherwise by text message only urgent welfare matters.
14.Both parties be permitted to contact the children’s daycare/school to obtain any necessary information that parents usually receive and in relation to the children’s progress.
15.Both parents be entitled to attend the children’s school events, extra-curricular activity or functions that parents are usually entitled to attend.
16.The parties can vary the terms of these Orders by agreement in writing.

ANNEXURE C
Minute of Orders Sought by the ICL
1.All previous orders are discharged.
2.The children, Y (DOB: … 2009), Z (DOB: … 2013), W (DOB: in… 2015) and Q (DOB: …2017) (“the children”) live with the mother.
3.The mother have sole parental responsibility for the children and for the purpose of this Order the mother will notify the father, by email, of any decisions she makes in relation to the long term needs of the children.
4.Within 8 weeks of the date of the orders or the commencement of the new school term after the orders are made whichever is later, the children return to the V City/DD City region.
5.The child, X (DOB: … 2003) live with and spend time with each of the parents in accordance with his wishes.
6.The parents shall agree to engage a suitably qualified psychologist and failing agreement the psychologist will be nominated by the ICL to undertake family therapy with a view to rebuilding the relationship between the child Y (DOB: … 2009) and the father and for the purpose of this order the following shall apply:
a.   The mother shall obtain a mental health care plan for Y from the child’s general practitioner;
b.   The costs of the Family Therapy be paid from the DD City property sale proceeds held in trust by TT Solicitors and this order acts as an authority for the payment of family therapy fees and in the event the parties disburse the sale proceeds by way of a property settlement then the costs of the family therapy shall be shared equally between the parties;
c.   That each parent and the child engage with the psychologist to the extent, and in the manner recommended from time to time by the psychologist;
d.   The psychologist be provided with a copy of these orders and His Honour’s written judgement.
e.   The parties do all things necessary to instruct the psychologist to provide feedback to both parents throughout the period of his or her engagement with the family.
7.The child, Y (DOB: 10 Nove…mber 2009), shall be invited to attend and encouraged to attend the time the children spend with the father pursuant to Order 8.
8.The children Z (DOB: … 2013), W (DOB: … 2015) and Q (DOB: … 2017) spend time with the father as follows:
a.   Until such time as the children return to the V City/DD City region at the OO Services in Brisbane, in accordance with Order 9 below.
b.   Upon the children’s return to the V City/DD City region each alternate weekend from afterschool/preschool/daycare on Friday to until 6pm on Sunday supervised by the paternal aunt Ms N or Ms P for no more than 8 visits.
c.   After the conclusion of the 8 supervised visits provided for in Order 8(b) above the time outlined continues each alternate weekend but moves to unsupervised time from after school/preschool/daycare on Friday to 6pm on Sunday.
d.   After a further period of 6 months the children spend time with the father from afterschool on Friday until before school on Monday.
e.   Each alternate Christmas from Christmas Eve at 4pm to Christmas Day at 1pm commencing in 2021.
f.    Each alternate Christmas from 1pm on Christmas Day to Boxing Day at 4pm commencing in 2022.
g.   Each school holiday period as follows:
i.Until Q attends primary school the father’s time with the children continues in the school holiday periods except such time is to conclude a 5pm 2 days after it would ordinarily conclude by virtue of the above orders.
ii.Upon Q commencing primary school the father’s time with the children during school holiday period shall be the first half in all years ending in even numbers and the second half in all years ending in odd numbers.

h.   On Father’s Day each year if the children are otherwise not in the father’s care from 9am to 6pm on Father’s Day.
9.Notwithstanding any orders herein, the children shall be in their mother’s care as follows:
a.   Each alternate Christmas from Christmas Day at 1pm to Boxing Day at 4pm commencing in 2021.
b.   Each alternate Christmas from 4pm on Christmas Eve until Christmas Day at 1pm commencing in 2022.
c.   On Mother’s Day each year from 9am to 6pm on Mother’s Day.
10.For the purpose of Order 7(a) herein the father shall spend supervised time with the children at OO Services in Brisbane and the following provisions shall apply:
a.   The father shall be responsible for all fees associated with spending time with the children.
b.   The father shall advise the mother via email (…) through Mr FF as to the dates and times when he wishes to spend time with the children.
11.For the purpose of these orders, changeovers that occur during the time the children are spending time with the father in V City shall occur as follows:
a.   For Order 8(d) from the conclusion of school/preschool/day care with the father to collect the children from their respective locations at the commencement of his time and to return them to those locations at the conclusion of his time.
b.   All other changeovers shall occur at D Services or such other location as agreed between the parties provided that such changeover is facilitated by an agent and the parties do not come into contact with each other.
12.For the purpose of Order 4 herein the bond and any upfront rent that the mother is required to pay on a private rental in the V City/DD City area be paid from the funds held by TT Solicitors in their trust account arising from the sale of the DD City property and in the event that the funds are disbursed by the parties by way of a property settlement the mother will be solely responsible for the payment of any bond or upfront rental payments required to secure accommodation for herself and the children.
13.The father shall forthwith enrol into and complete:
a.   A U Services program and provide the mother via email a certificate of completion.
b.   An Anger Management Course and provide the mother via email a certificate of completion.
14.That all children be at liberty to communicate, whether by telephone or otherwise, with either parent in accordance with their wishes.
15.That neither party denigrate the other or members of the other’s family in the presence of the said children and shall use their best endeavours to ensure that no other person does so.
16.That the parties shall notify each other immediately or at least within one (1) hour of any medical emergency involving any of the children.
17.That despite the allocation of sole parental responsibility to the mother, the mother is to vaccinate the children and keep the children vaccinated, including the provision of any required booster shots, without such vaccinations recommended for children of that age by the National Immunisation Program.
18.The parents shall communicate via an agreed parenting application with such communication to be restricted to matters related to the care, welfare and development of the children.

File number:	CAC 498 of 2012
Judgment of:	GILL J
Date of judgment:	30 September 2021
Catchwords:	FAMILY LAW – CHILDREN – RESIDENCE – Best interests of child – Risk – Family violence issues – Parental responsibility – Whether children to remain living with the mother in different State to the father – Whether father to spend unsupervised time with the children.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA
Cases cited:	Jollie & Dysart [2014] FamCAFC 149 Marsden & Winch (No 3) [2007] FamCA 1364 Mazorski & Albright (2007) 37 Fam LR 518 Morgan & Miles (2007) FLC 93-343 M v M (1988) 166 CLR 69 Taylor & Barker (2007) FLC 93-345 U v U (2002) 211 CLR 238
Division:	Division 1 First Instance
Number of paragraphs:	439
Date of hearing:	28 September – 2 October 2020; 8–9 February 2021
Place:	Canberra
Counsel for the Applicant:	Dr Leslie
Solicitor for the Applicant:	Stanfords Solicitors
Counsel for the Respondent:	Mr Howard
Solicitor for the Respondent:	Neilan Stramandinoli Family Law
Counsel for the Independent Children's Lawyer:	Mr Haddock
Solicitor for the Independent Children's Lawyer:	Boland Legal Family Lawyers

CAC 498 of 2012
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS FERMIKIS Applicant
AND:	MR FERMIKIS Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	GILL J
DATE OF ORDER:	30 SEPTEMBER 2021