Fujioka & Fujioka - [2024] FedCFamC1F 695

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fujioka & Fujioka [2024] FedCFamC1F 695

File number(s): PAC 6324 of 2022

Judgment of: ANDERSON J

Date of judgment: 18 October 2024

Catchwords: FAMILY LAW – PARENTING – Family violence and abuse – Where the mother is the unchallenged residential parent – Consideration of the impact on the mother and her parenting as a consequence of family violence and abuse – Consideration of long-term supervision

Legislation:
Australian Passports Act 2005 (Cth) s 11

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 61DAA, 61DAB, 64B, 65AA, 65D, 65Y, 67ZC, 68B, 114, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 8.15

Children and Young Persons (Care and Protection) Act 1998 (NSW)

Cases cited:
Attwood & Attwood [2022] FedCFamC1F 6

Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222

Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34

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

H v R [2006] FamCA 878

Hedlund v Hedlund (2021) 64 Fam LR 458; [2021] FedCFamC1A 84

Hickson & Matthew [2022] FedCFamC1A 161

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1

In the Marriage of Line (1996) 136 FLR 149; [1996] FamCA 145

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

N and S and the Separate Representative (1996) FLC 92-655; [1995] FamCA 139

Norton & Landell (Consent Final Parenting Orders) [2015] FamCA 96

Oberlin & Infeld (2021) 63 Fam LR 88; [2021] FamCAFC 66

PBF & TRF (2004) 33 FamLR 123, [2005] FamCA 158

Slater & Light (2013) 48 Fam LR 573; [2013] FamCAFC 4

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

Division: Division 1 First Instance

Number of paragraphs: 215

Date of hearing: 2–5 September 2024

Solicitor for the Applicant: Newnhams Solicitors

Counsel for the Respondent: Dr Leslie

Solicitor for the Respondent: Soden Legal

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

ORDERS

PAC 6324 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR FUJIOKA

Applicant

AND:
MS FUJIOKA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ANDERSON J

DATE OF ORDER:

18 OCTOBER 2024

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The mother shall have sole parental responsibility for X born 2013 and Y born 2014 (“the children”), and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) (‘the Act’) affecting the children.
3.That mother is to notify the father within seven (7) days of making a long-term decision in relation to the care, welfare and development of the children.
4.The children live with the mother.
5.The children spend time with the father on twelve (12) occasions each year with such time not to exceed six hours on any occasion with the time to be supervised by the supervision agency known as B Contact Service or such other supervision service as agreed in writing between the parties.
6.That the time referred to at Order 5 occur on the fourth Sunday of each month save that:
(a)In the relevant month of each year, the time shall occur on the first Sunday immediately following X’s birthday;
(b)In the relevant month of each year, the time shall occur on the first Sunday immediately following Y’s birthday;
(c)In September of each year, the time shall occur on Father’s Day;
(d)In December of each year, the time shall occur on the Sunday immediately preceding Christmas Day or if the service is not available on that day, then on the second Sunday of the month.

7.For the purposes of Order 5, each party shall:
(a)Within seven (7) days of these Orders, attend on the Director of B Contact Service or his or her delegate for the purposes of enrolling for acceptance into the supervised time spending programme offered by that agency;
(b)Comply with the reasonable recommendations and directions of the Director of B Contact Service or his or her delegate.

8.For the purposes of Order 5, the father shall meet the costs of and incidental to:
(a)The parties’ engagement of B Contact Service or such other agency as may be engaged by the parties;
(b)The preparation of any reports of observation of supervised interaction between the children and the father and the provision of the same to the mother.

9.In the event that the children are not made available to spend time with the father pursuant to Order 5, then the time shall occur on the next Sunday, which can be reasonably facilitated by the Director of the supervision service with such time to occur at the expense of the mother.
10.The terms of Order 9 herein shall not apply in the event that the children (or either of them) are ill on any occasion of scheduled time spending provided that the mother forwards a Medical Certificate with respect to the illness of the children (or either of them) to the father and the supervision service.
11.The time referred to at Order 5 occur at such location as agreed between the supervision service and the father on condition that any such location not be greater than 50 kilometres from the McDonalds Restaurant at Suburb C in the State of New South Wales.

Telephone communication
12.The father do communicate with the children by telephone, Facetime or other electronic means each Wednesday at 6.00 pm with the father to initiate a call to the children’s devices on condition that and such communication not exceed sixty minutes in duration.

Communication between the parties
13.The parties do keep each other advised as to his/her email address and telephone number and advise the other parent of any change to these details.

Attendance at school events and provision of information
14.The father is at liberty to attend the following school events in which the children are participating, and parents are invited to attend:
(a)End of year school awards ceremony;
(b)Sports carnival;
(c)Father’s Day event; and
(d)School Concerts.

15.The father is at liberty to attend the following extracurricular activities:
(a)End of year award ceremonies;
(b)Grading events; and
(c)End of year concerts.

16.It is a condition of Order 14 and Order 15 that:
(a)The father be restrained, and an injunction is hereby granted restraining him from approaching or communicating with the mother at the said events or permit any third party to do so on his behalf;
(b)The father is restrained, and an injunction is hereby granted restraining him from seeking to spend time with the children on these occasions SAVE THAT the father is permitted to greet the children;
(c)The father is to provide the mother with seven (7) days’ notice of his intention to attend any event referred to at Order 14 and Order 15.

17.The father is authorised to request from any school attended by the children, or either of them, at his expense, copies of all school reports, school photographs, school newsletters and any other necessary information about the children's academic progress.

Removal of Google Family Link
18.That within seven days of these Orders, the father shall remove the children’s email account and/or devices from the Google Family Link application.
19.That within seven days of these Orders, the father do provide to the mother whatever details are necessary (including usernames, passwords and authentication codes) to enable the mother to remove the relevant software from the children’s devices.
20.On compliance with Order 18, the father is restrained, and an injunction is hereby granted restraining him from reinstalling, reactivating, or using any monitoring software, tracking application, parental control tool, or any software, which enables the father to identify the location of the children or monitor or restrict the online activities of the children.

Restraints
21.That pursuant to s 68B of the Family Law Act 1975 (Cth) (as amended), the father is restrained, and an injunction is hereby granted restraining him from approaching or being within five hundred (500) metres of the mother’s residence.

Travel
22.For the purposes of s 65Y of the Family Law Act 1975 (Cth) (as amended), the mother is permitted to take the children outside of the Commonwealth of Australia.
23.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth), the mother has the sole authority to cause the children to be issued with an Australian travel document at her discretion, and for this purpose, the Court dispenses with the requirement for the mother to obtain the consent of the father.
24.That pursuant to s 11(1)(b)(ii) of the Australian Passports Act 2005 (Cth) and these Orders, the children are permitted to travel outside the Commonwealth of Australia using an Australian travel document at the sole discretion of the mother.

Costs
25.The application for the mother to pay to Legal Aid New South Wales her share of the costs of the Independent Children’s Lawyer is refused.
26.The application for the father to pay Legal Aid New South Wales his share of the costs of the Independent Children’s Lawyer is refused.

Discharge of Independent Children’s Lawyer
27.The appointment of the Independent Children’s Lawyer be discharged.

Other
28.That pursuant to s 62B of the Family Law Act 1975 (Cth) (as amended), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
29.That pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) (as amended), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
30.All other applications pursuant to Part VII of the Family Law Act 1975 (Cth) (as amended) are dismissed.

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

These proceedings, brought under Part VII of the Family Law Act 1975 (Cth) (“the Act”), concern a female child who is now aged 11 years and a male child who is aged nine years.
The applicant is the father. Since December 2022, the children have been spending supervised time with the father on a fortnightly basis. For a period of about 17 months, such time has not exceeded four hours in duration on any occasion.[1]
[1] Orders made on 21 December 2022 and 21 April 2023.
The respondent is the mother. The children live with her.
The parties commenced a relationship in 2008. They married in 2011 and did not live together prior to that time. The parties separated on a final basis in September 2022 and the father commenced proceedings under the Act about eight weeks later. At that juncture, the father sought interim and final orders that the children live with him and spend limited time with the mother. The father abandoned that application on the filing of an amended application in June 2024.[2]
[2] (Amended) Application for Final Orders filed 24 June 2024.
These proceedings involve a dispute about whether:
(a)The children’s time with the father ought to progress to unsupervised time. Particularly, and after a period of increasing time (involving both supervised and unsupervised components), the father seeks an order that the children spend four nights per fortnight with him[3];
(b)The current arrangements for supervised time with the father ought to be reduced such that the children spend supervised time with him on twelve occasions each year with such time not to exceed four (4) hours in duration.
[3] (Amended) Initiating Application filed 24 June 2024.
It is the mother’s case that:
(a)The mother was subjected to many years of emotional abuse. Her counsel describes the nature of the abuse as coercive and controlling, manipulating and undermining[4];
(b)The father has been physically violent towards the children;
(c)The father has behaved in a sexually inappropriate manner towards the children and has engaged in “grooming behaviours”;[5]
(d)The father has “significant boundary issues”;[6]
(e)The mother’s parenting capacity will be adversely impacted if the Court makes an order for the children to spend unsupervised time with the father; and
(f)The children’s wellbeing will be compromised if the Court makes an order for unsupervised time between the children and the father.
[4] Mother’s Outline of Case Document filed 26 August 2024, p.2.
[5] Mother’s Outline of Case Document filed 26 August 2024, pp.3-4.
[6] Mother’s Outline of Case Document filed 26 August 2024, p.4.
For these reasons, the mother asserts that supervised time between the children and the father is the only mechanism to promote the safety of the children and the mother.
The father denies all allegations of family violence, sexually inappropriate behaviour or physical violence.[7] He says that the allegations are without foundation given that the mother never imposed any restriction on his time with the children prior to separation or during the period when the Department of Communities and Justice (“the Department”) were conducting investigations in relation to a notification, which had been made by the mother’s counsellor in April 2022.[8] Similarly, the father says that the mother never sought to impose any condition on his time with the children during the period when the parties were separated but living together under the same roof.[9]
[7] Father’s Outline of Case Document filed 26 August 2024, p.3.
[8] Mother’s affidavit filed 3 June 2024, paragraph 75.
[9] Mother’s affidavit filed 3 June 2024, paragraph 82; Father’s affidavit filed 24 June 2024, paragraphs 4 and 48 – 51.
The parties do agree that parental responsibility ought to be allocated to the mother and that the mother ought to have sole decision-making authority for decisions concerning major long-term issues. However, the parties do not agree whether the mother ought to be obliged to inform the father of any impending decision and consider any response, which he may provide. The mother says such an order whilst innocuous on its face is likely to have a significant effect on the mother’s mental health and accordingly, the mother’s parenting capacity.
BACKGROUND
The father is aged 41 years. He is employed as a professional. The mother is aged 40 years. She is an educator.
The children have been raised in the Catholic faith. It is not controversial that the female child is doing well at school. She has recently been selected to represent her school in various ‘STEM’ projects. In 2024, the female child was a finalist in a Public Speaking Tournament and a representative of her school at an academic tournament.[10] The mother says, and it is not contested by the father that the female child is “excelling…academically, socially and behaviourally at school”.[11] The mother expresses similar views about the male child and says that he is undertaking advanced mathematics lessons.[12] The mother was not challenged with respect to this evidence. The mother does say that the children’s standard of schoolwork improved in the post-separation period. The mother did not rely on any evidence to support this contention but again, the contention was not disputed by the father. For these reasons, I find that the mother is attending to the children’s educational needs. The children are settled at school and excelling.
[10] Mother’s affidavit filed 3 June 2024, paragraph 133.
[11] Mother’s affidavit filed 3 June 2024, paragraph 133.
[12] Mother’s affidavit filed 3 June 2024, paragraphs 129 and 131.
The involvement of the mother and the children with investigative authorities and a summary of the investigations and interventions, which followed is set out below.
In April 2022, the mother disclosed to her domestic violence counsellor her concerns about the father’s alleged sexual behaviours towards the children. During a subsequent session with that counsellor, the mother was advised that a report had made been to the Department.[13] The import of the mother’s evidence is that she did not know that her counsellor was a mandatory reporter under the Children and Young Persons (Care and Protection) Act 1998 (NSW), nor did she know that her counsellor would unilaterally contact the Department. The mother says that she was “terrified” on learning that her counsellor had made such a report as she was concerned that the father would “make good on his threats towards me once he found out about the report”.[14] I find by reference to the mother’s written and oral evidence that when she says “threat”, she was referring to a threat made by the father on previous occasions that he would “convince the Court that I am crazy and that the children would be removed from my care”.[15]
[13] Mother’s affidavit filed 3 June 2024, paragraph 75.
[14] Mother’s affidavit filed 3 June 2024, paragraph 75.
[15] Mother’s affidavit filed 3 June 2024, paragraph 58.
Shortly after the mandatory report by the mother’s counsellor, the children were interviewed at their school. The children did not make any disclosures of a sexual nature.[16]
[16] Mother’s affidavit filed 3 June 2024, paragraph 76.
In August 2022, a report was made to the Department alleging that the father engaged in inappropriate conduct with the children. The children were interviewed almost instantly[17] and the father was interviewed two days later.[18]
[17] Mother’s affidavit filed 3 June 2024, paragraph 76; Father’s affidavit filed 24 June 2024, paragraph 33.
[18] Father’s affidavit filed 24 June 2024, paragraph 33.
In September 2022, the Department closed its investigation.[19]
[19] Father’s affidavit filed 24 June 2024, paragraph 34.
In September 2022, a further report was made to the Department alleging that the father engaged in inappropriate conduct with the children and a case was opened with the Joint Child Protection Response Program (“JCPRP”).[20] The mother says that she did not make the report, nor did she know about the report until after the children were interviewed.[21] The mother was not challenged with respect to this evidence.
[20] Father’s affidavit filed 24 June 2024, paragraph 35; Mother’s affidavit filed 3 June 2024, paragraph 78.
[21] Mother’s affidavit filed 3 June 2024, paragraph 78.
On the following day, the children were again interviewed by the Department at school,[22] and the mother was interviewed by JCPRP.
[22] Father’s affidavit filed 24 June 2024, paragraph 35; Mother’s affidavit filed 3 June 2024, paragraph 78.

Subsequent to the interventions of September 2020, the father’s solicitor sent a letter to the mother confirming the separation of the parties and proposing a care arrangement for the children.[23] The mother says that the letter from the father’s solicitor explicitly commented on her mental health and the report to the Department made in August 2022, which the father assumed incorrectly the mother had made herself. On reading the letter the mother says that she became scared for her safety because of threats, which she says the father made previously to “convince the Court… [that the mother is] crazy” and to have the children removed.[24] The mother then called her domestic violence counsellor who in turn contacted police. The police issued a Provisional Apprehended Domestic Violence Order, which identified the mother as a protected person.[25] The conditions of the order included restraints prohibiting the father from contacting or approaching the mother unless through a lawyer and prohibiting him from attending the former matrimonial home.
[23] Father’s affidavit filed 24 June 2024, paragraph 54; Mother’s affidavit filed 3 June 2024, paragraphs 82–85.
[24] Mother’s affidavit filed 3 June 2024, paragraph 84.
[25] Exhibit ICL5.
In late 2022, the proceedings relating to the Apprehended Domestic Violence Order were listed before the Local Court. An Interim Apprehended Domestic Violence Order was made in the same terms as the provisional order.[26] The Apprehended Domestic Violence Order was discharged in early 2024.
[26] Exhibit ICL6.
In late 2022, the father was advised by the Department that it was closing its investigation in relation to the second notification.[27]
[27] Father’s affidavit filed 24 June 2024, paragraph 35.
On 16 November 2022, the father commenced proceedings in this Court.
COMPETING PROPOSALS
The father consents to an order that the mother have sole parental responsibility for the children and sole decision-making authority in respect of all decisions concerning major long-term issues. As discussed above, the parties do not agree whether the mother ought to be obliged to inform the father of any impending decision and consider any response, which he may provide.
The father otherwise moved on his Amended Initiating Application filed on 24 June 2024. He sought orders with the following effect:
(a)That for a period of six weeks the children spend three occasions per fortnight with the father being a period of four hours on each alternate Saturday and a period of about four each Wednesday after school;
(b)That on the expiration of six weeks and for a further period of six weeks, the children spend four occasions per fortnight with the father being a period of nine hours on each alternate Saturday and Sunday and a period of about four hours each Wednesday after school;
(c)That on the expiration of six weeks and for a further six weeks, the children spend time with the father:
(i)Each Wednesday after school for a period of about four hours;
(ii)On each alternate weekend from 10.00 am on Saturday to 10.00 am on Sunday with the period from 7.00 pm on Saturday to 10.00 am on Sunday to be supervised by the paternal uncle or the paternal grandparents (or either of them);
(d)That on the expiration of six weeks and for a further period of six weeks:
(i)Each Wednesday after school for a period of about four hours;
(ii)On each alternate weekend from 10.00 am on Saturday to 7.00 pm on Sunday with the period from 7.00 pm on Saturday to 10.00 am on Sunday to be supervised by the paternal uncle or the paternal grandparents (or either of them);
(e)That on the expiration of six weeks and for a further period of six weeks:
(i)Each Wednesday after school for a period of about four hours;
(ii)On each alternate weekend from 10.00 am on Saturday to 7.00 pm on Sunday;
(f)From the commencement of Term 3 2025 until the commencement of Term 1 2026:
(i)In Week One from the conclusion of school on Friday to the commencement of school on Monday; and
(ii)In Week Two from the conclusion of school on Wednesday to the commencement of school on Thursday.
It follows that after a period of increasing time and the requirement for supervision being lifted, the father seeks a final order that he spend four nights per fortnight with the children. As and from 2026, the father also seeks half of all school holiday periods with the children. The father seeks a raft of other orders relating to time with the children on special occasions.
The mother moved on her Amended Response to Initiating Application save that on hearing the evidence of the Single Expert, the mother increased her proposal such that she promoted an order that the children spend supervised time with the father on twelve occasions each year with such time not to exceed four hours on each occasion. It was a condition of the mother’s proposal that the time be supervised by D Contact Service, but during her closing submissions, the mother’s counsel advised the Court that the mother would agree to the pre-existing supervision service, namely, B Contact Service. As discussed above, the mother promoted an order that she have sole parental responsibility for the children and sole decision-making authority in respect of all decisions concerning major long-term issues. She did not agree to an order requiring her to provide the father with prior notice of any decision together with reasons and then be obliged to consider the father’s response. The mother also sought a raft of other orders including:
(a)Injunctive orders preventing the father from taking the children to the bathroom or otherwise being left alone with either of the children at any time during supervised visits;
(b)Orders requiring the supervised time to occur in a public place;
(c)Orders pursuant to s 68B of the Act for the personal protection of the children and the mother;
(d)Orders permitting the mother to take the children outside the Commonwealth of Australia in accordance with s 65Y of the Act; and
(e)Mechanical orders to enable the parties to communicate.
At the commencement of the trial, the Independent Children’s Lawyer promoted orders, which were consistent with the orders promoted by the mother save that she was silent as to the orders sought by the mother pursuant to s 68B of the Act and silent with respect to the topic of overseas travel.[28] The Independent Children’s Lawyer also promoted an order requiring the mother to continue to engage her counsellor for mental health support and to comply with all treatment recommendations. There is power under ss 65D(1), 67ZC, 68B or 114 of the Act to order that a party attend upon a psychiatrist and undergo treatment as a condition of contact or residence, but there is no such power to make a non-conditional order.[29] The Court cannot make the order sought by the Independent Children’s Lawyer.
[28] Case Outline of the Independent Children’s Lawyer filed 27 August 2024.
[29] Oberlin & Infeld (2021) 63 Fam LR 88.
At the conclusion of the trial, the Independent Children’s Lawyer tendered a proposed minute of order. By that document the Independent Children’s Lawyer indicated that:
(a)She would, in part, support the injunctive relief sought by the mother pursuant to s 68B of the Act together with the orders sought by the mother with respect to overseas travel;
(b)She sought an order that the father be restrained from installing, reactivating, or using any monitoring software, tracking applications, parental control tools, or any similar software that can monitor or restrict the activities of the children;
(c)She sought ancillary orders relating to communication between the parties;
(d)She sought an order that a copy of the judgment and final orders be provided to the Contact Service and to the children’s school; and
(e)She sought costs from each of the mother and the father.
MATERIAL RELIED UPON
In support of his case, the father read the following documents:
(a)Affidavit of the father filed on 24 June 2024;
(b)Affidavit of the paternal uncle filed on 24 June 2024;
(c)Affidavit of the paternal grandmother filed on 12 July 2024; and
(d)Tendered documents.[30]
[30] Exhibits F1 to F7 (inclusive).
The mother relied upon:
(a)Affidavit of the mother filed on 3 June 2024;
(b)Affidavit of the mother’s treating clinical psychologist filed on 9 July 2024. That affidavit annexed a report authored by the clinical psychologist dated 13 June 2024.[31] The report was admitted into evidence with the consent of the parties and the Independent Children’s Lawyer without calling the clinical psychologist; and
(c)Tendered documents.[32]
[31] Exhibit M3.
[32] Exhibits M1 to M10.
The parties and the Independent Children’s Lawyer relied upon the Single Expert Report authored by a Child and Family Consultant dated 11 July 2023, whilst the Independent Children’s Lawyer also relied upon some other tendered documents.[33]
[33] Exhibits ICL1 to ICL11.
The Court excluded all annexures to the affidavits having regard to r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
For the purposes of this Judgment, the Court has also had regard to the Joint Chronology prepared by the parties’ legal representatives and the Independent Children’s Lawyer and filed on 18 July 2024.
PARENTING PROCEEDINGS – LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
Parental responsibility
Parental responsibility for children is vested in their parents (s 61C(1)) but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B).
When an order is made allocating parental responsibility for a child or children in relation to “major long-term issues” to more than one person, the order may prescribe whether those persons have joint or sole decision-making authority in relation to all or only specified issues (s 61D(3)). The Act defines “major long-term issues” to include those such as the child’s education, religion, culture, health, name, and changed living arrangements (s 4(1)) and defines what “joint decision-making” requires in respect of such issues (s 61DAA). A person allocated with parental responsibility for a child need not be consulted by another person in respect of minor decisions made for the child which fall outside “major long-term issues” (s 61DAB).
Best interests of the child
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA and 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC). The six considerations referred to in s 60CC(2) are non-hierarchical. The Court is obliged to consider:
(a)arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child;
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or will have parental responsibility to provide for the child’s needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and
(f)anything else that is relevant to the particular circumstances of the child.
When considering the arrangements, which would promote the safety of the child and each person who has the care of the child, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
Section 60CG of the Act imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. Examples of such behaviour include assault, sexually abusive behaviour, stalking, repeated derogatory taunts, intentional damage or destruction of property, unreasonably withholding financial support needed to meet reasonable living expenses of the family member or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support, preventing the family member from making or keeping connection with his or her family or friends, or unlawfully depriving the family member from his or her liberty.
Section 4AB(3) and s 4AB(4) make it clear that children are to be regarded as exposed to family violence either through direct sensory perception of violent action or such perception of consequences of violent action.
As the facts referred to above make plain, this is a case about risk.
Where ultimately the Court’s focus is on formulating orders which attend to the child’s best interests, the Court is required to make findings of fact. The standard of proof is one of “on the balance of probabilities” consistent with s 140 of the Evidence Act 1995 (Cth) which provides:
(1)In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.[34]
(2)Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject-matter of the proceeding; and
(c)       the gravity of the matters alleged.
[34] Briginshaw v Briginshaw (1938) 60 CLR 336.
A party making an assertion of fact has an onus to prove that fact on the balance of probabilities although the task for the Court ultimately remains as one of weighing and balancing the probity of evidence towards a determination of the child’s best interests.
The mother in this case invites me to make a finding that the father presents an unacceptable risk of harm to the children. When considering this question, I am mindful of the Full Court’s decision in Isles & Nelissen (2022) FLC 94-092 (“Isles”), which summarised the authorities on unacceptable risk since M v M (1988) 166 CLR 69 (“M v M”). The Full Court said that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.
The Court in Isles also said of the decision in N and S and the Separate Representative (1996) FLC 92-655 as follows:
12.Fogarty J stated it is necessary for a trial judge to give real and substantial consideration to the facts of the case and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child and, furthermore, the qualitative analysis of the evidence must be directed not just to the existence of the risk of harm but also the magnitude of the possible harm...
(citations omitted)
In Isles, the Court at [35] went on to quote Tree J in Bant v Clayton (2015) 53 Fam LR 621:
171.Risk assessment involves determining firstly, the degree of the likelihood of the postulated event, and secondly, the prospect and magnitude of harm that may flow if the event occurs. The weighing of those two considerations – even accepting they may be imprecisely expressed within parameters – will inform whether the risk is adjudged to be acceptable or not. However that conclusion cannot be made in the abstract.
The Court agreed with and adopted Austin J’s judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter [2007] FamCA 350; (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
In Hickson & Matthew [2022] FedCFamC1A 161, Deputy Chief Justice McClelland said this of Justice Austin’s analysis at [39]:
39.Additionally and relevantly for the purpose of this appeal, I would expand upon that insightful analysis by Austin J with the following guidance that emerges from authorities:
(1)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm.
(2)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved.
(3)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard, endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(4)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”.
(citations omitted)
I have read the parties material and listened to their submissions. I am not however required to address every fact or submission made.[35]
[35] Whisprun Pty Ltd v Dixon (2003) 200 ALR 447.
It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. Nor have I done so. However, every piece of evidence relied upon by the parties has been read and considered by me.
Before considering the evidence and the application of the relevant legal principles, I make the following observations of the parties.
CREDIT AND OBSERVATIONS OF THE MOTHER AND THE FATHER
Evidence of the mother

Pursuant to orders made by the Honourable Justice Riethmuller on 17 April 2024, the mother’s case was directed to proceed first in time at trial.
On the evenings of the first and second days of trial, I made notes with respect to my observations of the mother’s evidence. I did so because I considered the mother’s presentation to be relevant to my determination of the credit of the parties and therefore, the merit or otherwise of the competing applications.
The mother was cross-examined by the father’s counsel in a very polite, considered and calm manner. It was readily apparent to me and presumably every person in the court room, that the father’s counsel was using his very best endeavours to ask questions of the mother in a manner, which would not exacerbate the distress, which she was exhibiting.
At the commencement of the mother’s oral evidence, I explained to the mother that I had read about the hearing, which occurred at the Local Court in mid-2023. That hearing followed the making of an Interim Apprehended Domestic Violence Order by the Local Court in late 2022. The order identified the father as the Defendant. The Apprehended Domestic Violence Order was dismissed in early 2024 after a trial was listed on two separate days six months apart.[36] The father says that the order was dismissed on the basis that the mother had not established on the balance of probabilities that she had reasonable grounds to fear him and/or that the mother gave inconsistent evidence.[37] In contrast, the mother says that the Apprehended Domestic Violence order was dismissed as she “could not properly articulate the events that had happened as I was disassociating”.[38] There was objective evidence to support the mother’s assertion in the form of a report from the mother’s treating clinical psychologist dated 13 June 2024.[39] The treating psychologist expressed a view that:
(a)The symptoms reported by the mother were consistent with a diagnosis of a Post‑Traumatic Stress Disorder pursuant to the terms of the Diagnostic Statistical Manual of Mental Disorders[40];
(b)The mother has tried to avoid thinking or speaking of events involving the father and “experienced symptoms of depersonalization [sic] and derealization [sic] when recalling incidents of abuse within the marriage”;[41] and
(c)The mother on testing for a post-traumatic stress disorder scored “within the extremely severe range for Avoidance which is consistent with… [the mother’s] presentation and reporting as she will often report that she avoids cognitions regarding her past experiences and when exposed to triggers of her traumas, she will struggle to regulate the distress”.[42]
[36] Father’s affidavit filed 24 June 2024, paragraph 65.
[37] Father’s affidavit filed 24 June 2024, paragraph 65.
[38] Mother’s affidavit filed 3 June 2024, paragraph 92.
[39] Exhibit M3.
[40] Exhibit M3, p.5.
[41] Exhibit M3, p.5.
[42] Exhibit M3 at p.6.
In any event, and concerned about the material before the Court, I also advised the mother to take her time when giving evidence and suggested to the mother that she focus on the bench or the cross-examiner if she was overwhelmed by the number of legal representatives and court associates in the court room. I also note that on the application of the mother, which received the consent of the father and the Independent Children’s Lawyer, the father was placed in an alternate court room during the mother’s evidence. The father was able to observe the mother’s evidence electronically.
It was against this background, that the mother gave her evidence.
Despite the professional and calm way in which the father’s counsel cross-examined the mother, she was from the commencement of his questioning visibly distressed. At the commencement of his cross-examination, the father’s counsel asked the mother some questions about her application. Those questions were harmless in the sense that the questions related to the time spending orders sought by the mother, whether the mother sought for the children’s time with the father to be supervised and the orders promoted by the mother with respect to electronic communication between the children and the father. Despite the innocuous questions, the mother began crying. The nature of the mother’s distress was such she gave answers, which were consistently of no more than one word and her answers to questions were interspersed with the mother’s need to blow her nose. During the course of her evidence on the first day of trial, the mother almost consistently closed her eyes, and she twisted her arms and torso in an uncomfortable looking manner whilst at the same time, playing with her hair such that it became messy. It was disconcerting to observe.
The mother’s responses to the father’s questions became increasingly unhelpful when for example, the mother gave a series of answers to the effect that “I cannot remember”, “I am unsure”, “I don’t know” and “I cannot recall”. After giving evidence for only an hour, the mother’s counsel made an application to adjourn the proceedings to the morning of 3 September 2024. The Court was reluctant to accede to that application given that some time had been lost during the morning on account of procedural issues. In addition, the mother without questioning by anyone, expressed distress at the prospect that her cross-examination would continue into the second day of the trial. This being so, the Court gave the mother about 15 or 20 minutes to regain her composure with an expectation that her evidence might continue.
The evidence did continue but only for about 20 minutes or so and then, once again, the mother’s distress was so extreme that a decision was made to adjourn to 9.30 am on the second morning of trial.
The mother was more composed on the second day of her evidence in that she did not consistently close her eyes, nor did she twist her body and arms. However, the mother continued to exhibit distress and positioned herself in a manner such that she had a view of the bench only. The mother’s eyes were often focused down.
The mother presented in a harrowing way when discussing the father’s alleged behaviour towards her and/or the children but then gave lucid and forceful evidence when discussing the academic success of the male child and the fact that he had at the time of trial been invited to meet with his school principal for selection as a school leader. The mother was bursting with pride and for the first time of the trial, did not present in a tortured way. Her presentation was similar when giving evidence about the academic success of her daughter. On balance, I concluded that the mother’s presentation was entirely consistent with the conclusions of the mother’s treating psychologist discussed below.
When presented with a possibility that the father did not act in an inappropriate manner towards the children, the mother refused to accept the same. It was my assessment that the mother’s belief that she and/or the children are at risk was genuine. That finding is central to the decision, which this Court is obliged to make.
Evidence of the father
The father presented calmly whilst giving his evidence despite a robust cross-examination by the mother’s counsel. He was responsive to questions. His evidence was consistent, and I find that he gave evidence to the best of his ability and the best of his recollection. Having said that, I accept the submission of the mother’s counsel that the father demonstrated a lack of insight by, for example, making efforts during his evidence to draw a distinction between the phrase “raise your voice” and “yelling”. If the father was seeking to make this distinction to avoid a finding that there had been family violence during the relationship, then he was mistaken. I also accept the submission of the mother’s counsel that the father demonstrated a lack of insight by failing to complete a “men’s behaviour change course” as recommended by the Single Expert. In short, the father denied that he had engaged in any family violence during the relationship and lacked the capacity to reflect on his role in the calamity, which beset the parties and the children in the post-separation period.
CONSIDERATION AND DETERMINATION
After hearing the evidence, I formed a view that the significant issues in the case were:
(a)Whether the father had engaged in family violence as defined in s 4AB of the Act;
(b)Whether the children were exposed to family violence perpetrated by the father;
(c)Whether the father had been physically abusive to the children;
(d)Whether the father had behaved in a sexually inappropriate manner towards the children and/or engaged in “grooming behaviours”.[43] This later question assumes importance because of the conclusion by the JCPR to the effect that “[s]uspicious indicators consistent with sexual abuse was substantiated due to… [the father’s] alleged behaviour described as indicative of grooming behaviour”;[44] and
(e)If the answer to the question above is in the negative; whether the father has “significant boundary issues”,[45] as so asserted by the mother, which compromises the children’s safety.
[43] This was a phrase adopted by the mother’s counsel - Mother’s Outline of Case Document filed 26 August 2024, p.3–4.
[44] Exhibit ICL1 (such document not paginated).
[45] Mother’s Outline of Case Document filed 26 August 2024, p.4.
In addition, by a combination of the report authored by the mother’s treating psychologist, the mother’s oral evidence, the mother’s presentation in the witness box and several extracts from her written evidence wherein she deposes to being fearful of the father; I am compelled to consider whether the mother’s parenting capacity would be adversely affected such that it is necessary to make an order that the children’s time with the father continue to be supervised in order to ameliorate the extent of the mother’s distress.
During closing submissions by the mother’s counsel, I was provided with a document identifying the findings sought by the mother. I have had regard to that document when preparing this judgment.
Family Violence
For the purposes of convenience, I address the first three issues described above under the heading of family violence.
From an outsider’s perspective, the parties and the children lived unremarkable lives until about early 2022. Two days prior, the parties and the children travelled to a beachside location over 2 hours from Sydney for a camping trip. On the morning of the incident, the parties on the father’s version of events had a discussion in the presence of the children in the parties’ motor vehicle. The father says that as the parties and the children got into their motor vehicle, he asked a question of the mother, namely, “so you’re coming today”?[46] The question was asked in circumstances where firstly, the father says that the mother was reluctant to go on the camping trip and secondly, the father says that the mother did not accompany the children or the father or paternal family members on an excursion on the previous day.[47] On cross‑examination, the father denied that he asked the question referred to above in a sarcastic manner. However, given the context in which the question was asked of the mother, I reject that evidence.
[46] Father’s affidavit filed 24 June 2024, paragraph 138.
[47] Father’s affidavit filed 24 June 2024, paragraph 137.
The mother agrees that on the occasion of early 2022, she removed herself from the parties’ motor vehicle. However, as she was doing so, she said words to the effect of “I am not going to take this anymore, I am getting out”.[48] On his return to the parties’ campsite with the children a few hours later, the father was unable to locate the mother or otherwise contact the mother on her mobile telephone. He then called the local police station to express concern that his wife was missing.[49] For her part, the mother says that having removed herself from the parties’ motor vehicle, she was frightened about the prospect of facing the father on his return to the campsite.[50] She also says that she was in distress as she was in an unfamiliar area and had a low battery on her mobile telephone.[51] This being so, the mother contacted police who met her at a supermarket at the beachside location. Having obtained the assistance of police, the mother’s sister travelled from Sydney to collect her. I do not accept that the events of early 2022 were harmless as so asserted by the father. This is because it defies human experience that the mother would take the step of removing herself from the parties’ motor vehicle if the conversation between the parties was as innocuous as asserted by the father. I am left wondering why the mother would take a step such as removing herself from her family in a town with which she had no familiarity and in circumstances where the battery on the mother’s mobile telephone was low. Further, I find that whatever occurred at the beachside location in early 2022, it must have been distressing enough for the mother such that the mother’s sister drove the considerable distance from Sydney to collect her.[52] The events of early 2022 must also have been distressing for the mother in circumstances where each of the parties’ counsel and the Independent Children’s Lawyer agree that the interaction with the local police in early 2022 was the first occasion on which the mother had engaged with police. That is, whatever occurred was sufficiently distressing to the mother that for the first time in her relationship, she felt compelled to contact police.
[48] Mother’s affidavit filed 3 June 2024, paragraph 36.
[49] Father’s affidavit filed 24 June 2024, paragraph 140.
[50] Mother’s affidavit filed 3 June 2024, paragraph 36.
[51] Mother’s affidavit filed 3 June 2024, paragraph 36.
[52] Mother’s affidavit filed 3 June 2024, paragraph 36.
A few days after the events at the beachside location, the mother received a telephone call from the Women’s Domestic Violence Court Advocacy Program regarding legal support.[53] The mother says that the service contacted her on the referral of police. However, the mother informed the case worker that she did not want to discuss anything about the father or “get him in trouble”.[54] The mother was not challenged with respect to this evidence, and it is another factor, which leads me to conclude the mother was the subject of family violence in early 2022.
[53] Mother’s affidavit filed 3 June 2024, paragraph 37.
[54] Mother’s affidavit filed 3 June 2024, paragraph 37.
It is the father’s oral evidence that the events of early 2022 represented a turning point with respect to his marriage to the mother. However, that assertion belies other evidence which causes me to find that the parties’ relationship was in difficulty well prior to early 2022. Whilst I use the word “difficulty”, it is my view that there is sufficient evidence on the balance of probabilities to enable me to find that mother was the subject of family violence prior to early 2022. The salient evidence in support of such a conclusion is referred to below.
Firstly, it is the mother’s evidence that in early 2019, she attended upon a general practitioner at a medical centre as she was forming a view that her husband’s behaviour was abusive.[55] The notes of the mother’s consultation with the general practitioner read (among other things) as follows under the heading of “History”:
Lot od [sic] relationship issues with her partner.
He is verbally abusing her – emeotionally [sic] abusing her/
M has a h/o depression – she ‘ahs’ [sic] seen a pshycologist [sic] before but she didn’t disclose about her domestic violence problem.
…
She is anxious. Crying. Thinks it’s shame to tell anyone what’s going on.[56]
[55] Mother’s affidavit filed 3 June 2024, paragraph 73.
[56] Exhibit M4.
The mother’s treating general practitioner, provided the mother with details for a domestic violence service. The mother attended that service for the first time in mid-2019. The notes of that occasion record the following:
(a)The mother was given a pamphlet with respect to domestic violence, which the mother “did not take due to safety concerns”;[57]
(b)The mother was given a “Rights & Responsibilities Pamphlet”, which again, the mother “did not take due to safety concerns”;
(c)The mother had joined “various Facebook pages that have help [sic] her try new strategies in dealing with her abusive husband”;[58] and
(d)The mother sought counselling to help her cope and find other strategies, but expressed a view that she did not want to leave the marriage because she did not consider that it would be “conducive to her children”.[59]
[57] Exhibit ICL2, p.1.
[58] Exhibit ICL2, p.1.
[59] Exhibit ICL2, p.1.
The accuracy of the matters recorded by the mother’s treating general practitioner was not contested. It is my view that the mother’s refusal to take pamphlets offered to her by the service is consistent with the mother’s oral evidence with respect to her fear about what might happen if authorities became involved and/or if the father learned about her engagement with the service.
Under the heading “Relationships”, the domestic violence service recorded the following at the initial consultation in mid-2019:
[The mother] says that she can now see that the depression and anxiety was related to how her husband treated her at home rather than her actual mental health however she says that she has absorbed much of the abuse over the years thinking she was at fault. Whereas now she recognises the behaviours as being gaslighting and manipulation.
[The mother] admits that her husband swears, yells and becomes aggro very easily. She describes it has [her] walking on eggshells and having fear and a sense of dread before he returns home. She recalled various examples of… [the father] verbally abusing her and “assaulting” her with the children being in the home. She says that up until a few months ago it was happening at least daily or every second day.
…
[The mother] says…she has tried new strategies to keep herself safe. The main strategy that she called “Grey Rock” referring to stonewalling… [the father]. She describes that she does not engage with his [sic] at all, no acknowledgment or greeting or any form of conversation so to avoid him from starting a fight.[60]
[60] Exhibit ICL2, p.2.
The mother was not challenged with respect to the reasons for her attendance on the domestic violence service in mid-2019. Further, and despite the counselling notes having been the subject of a subpoena in May 2024, neither party nor the Independent Children’s Lawyer sought to call the counsellor concerned to give evidence. Absent any challenge, I find that the mother’s attendance on her treating general practitioner and thereafter at the domestic violence service in mid-2019 is another event, which assists the Court to make a finding that the mother was the subject of family violence prior to early 2022. The evidence is cogent and accords with the mother’s oral evidence.
In the early hours of an unspecified date in mid-2019, the parties had a disagreement. I accept that the disagreement occurred in about mid-2019 because the mother suggests that the event happened when the female child was about six years of age, and the male child was about four years of age.[61] This estimate was not challenged by the father. On this occasion, the father was catching the train home and requested that the mother pick him up from train station at 2.00 am in the morning. The mother’s written evidence is that she did “not feel safe leaving the children home alone” in circumstances where the children were still young and the male child “was still waking up during the night”.[62] The mother explains that if she had capitulated to the father’s demands to pick him up from the train station and leave the children at home, she would have been away from the children for about 24 to 30 minutes.[63] Exhibit ICL 2 was a series of text messages, which commenced between the parties at 1.00 am on the unknown date in about mid-2019. During the communications, and in response to the mother’s refusal to wake the children and bring them on the journey to the train station, the father suggested to the mother that she had “no logic”. In response, the mother said:
Last week u said I don’t give a fuck about u to me with [X] in the back seat listening. Imagine if you had to hear ur dad abuse ur mum like that often.[64]
(As per the original)
[61] Mother’s affidavit filed 3 June 2024, paragraph 24.
[62] Mother’s affidavit filed 3 June 2024, paragraph 32.
[63] Mother’s affidavit filed 3 June 2024, paragraph 32.
[64] Exhibit ICL9.

The father was not cross-examined with respect to the SMS text message referred to above. However, the events of mid-2019 and the text message sent by the mother on the morning of the unidentified date in mid-2019 are other matters, which I bring to account when forming a view that the mother had been subjected to family violence prior to early 2022.
The Independent Children’s Lawyer also invited the Court to mark as an exhibit progress notes from the domestic violence service dated late 2019.[65] The notes record that the mother was active in seeking assistance from the service. The accuracy of the notes was not challenged by the father.
[65] Exhibit ICL3, p.1.
Further, the Independent Children’s Lawyer invited the Court to mark as an exhibit extracts from progress notes maintained by the domestic violence service dated late 2020.[66] It appears from the records of the domestic violence service that between early 2020 and late 2020, the mother did not receive any assistance. The records suggest that the service terminated the assistance it afforded to the mother because she failed to attend appointments at all or on time. However, the inference, which I draw from the record of late 2020 is that the mother recommitted to attending appointments.[67] The notes of late 2020 are notable for two reasons:
(a)First, the mother self-referred; and
(b)Second, the mother identified escalation in violence as the reason for returning to the service for support.[68]
[66] Exhibit ICL3, p.2.
[67] Exhibit ICL4, p.1.
[68] Exhibit ICL3, p.2.
The notes of late 2020 identify that the mother was “cautious about providing information because she is scared about what would happen if any authorities become involved”.[69] That expression of concern is consistent with the concerns held by the mother in 2019 (supra). The notes of late 2020 also record that:
(a)The service was concerned that the “full extent of the domestic violence is unknown and safety of the children us unknown”; and
(b)The mother had recognised the need to “flee the violence with her children” but was concerned by the prospect of engaging with the family law system and was concerned about how much “parental responsibility/caregiving” the father would be granted. The contents of the exhibit are consistent with the mother’s oral evidence. Particularly, on the second day of trial, the mother when asked why she did not leave the relationship earlier than September 2022 said there were “a lot of reasons why I didn’t leave”. The mother went on to say that she was ineligible for a grant of legal aid, she had a “fear of the system” and a “fear of things getting out of control”. The mother was distressed when giving this evidence and I accept her evidence to be genuine. The mother’s contact with the domestic violence service in late 2019, her attendance in late 2020 and the consistency of the information contained within those notes with the mother’s written and oral evidence also assist me to make a finding that the mother was the subject of family violence prior to early 2022.
[69] Exhibit ICL3, p.2.
I set out the following extracts of the notes of late 2020 because they are instructive of the mother’s state of mind at the time:
[The mother] said that when [X] was younger she would cover her ears when her father would scream and shout. However now [X] will tell him to “stop” and is very clingy. [The mother] said she gets a horrible feeling whenever [X] does this and she said [X] is very protective of her.
[The mother] said she does not have physical concerns in regard to her children, however is worried about their emotional and mental health.
…
[The mother] said she is not coping mentally and she has very low self-confidence. [The mother] scaled herself as a 3 in relation to confidence on a scale 1 to 10.
[The mother] said that she is a different person at work and her confidence is 7 to 8. [The mother] said at work she is respected, treated nicely and receives praise.
[The mother] said she would need to be a 7 to 8 on the scale to consider leaving the relationship.
[The mother] said she wants to build herself up mentally.
She said she is not the type of person to just act, she likes to have a plan that is thought through and if she did leave she would have a place to go and be financially secure.[70]
[70] Exhibit ICL4, p.2.
The accuracy of the notes was not challenged. Further, the above extract is consistent with the mother’s oral evidence that she was trying to “find strategies to cope and keep safe”. The mother’s apparent desire in late 2020 to have a plan and to think through what might happen if she did leave her relationship with the father is consistent with her oral evidence about her wish to “put things in place” or be “thrown in the system where you are not believed and lose your children”. These are matters, which I also bring to account when I find that the mother was subjected to family violence prior to early 2022. As an aside, and as irrational as the mother’s view that she would lose her children may now seem to be, her fears and anxieties were no doubt exacerbated by the decision of the father to file proceedings in this Court on 16 November 2022. At that time, the father sought interim and final orders that the children live with him and spend limited time with the mother.
The notes of the mother’s general practitioner and domestic violence service across 2019 and 2020 are consistent with the mother’s oral evidence to the effect that during the relationship the father engaged in emotional abuse. The mother says that during the relationship the father would belittle, intimidate, and threaten her in the presence of the children by calling her names such as “Dumb lazy fucken bitch”, “Fucking stupid”, “Fucking idiot”, “Crazy bitch”, “You can’t fucken do anything you useless piece of shit”, “Look out”, “Dumb arse”, “Paranoid”, “Fucked in the head”, “Delusional”, “Jealous”, “Destructive”, “Irrational”, “Half-arsed”, “Useless”, and “No common sense”.[71]
[71] Mother’s affidavit filed 3 June 2024, paragraph 19.
The mother says that the insults were made several times a week.[72] On cross-examination, the father said that he either disagreed that he made derogatory comments about the mother in the terms described above or otherwise said that he was unable to recall doing so.
[72] Mother’s affidavit filed 3 June 2024, paragraph 19.
Although there was no objection to the general statements in the mother’s affidavit with respect to the verbal abuse suffered by her (supra), I find having regard to the other conclusions reached by me that on the balance of probabilities, the mother was a victim of family violence perpetrated by the father. I am fortified in arriving at that conclusion by the oral evidence of the Single Expert to the effect that the mother’s recounting of her experiences was not overdramatised. She described the mother’s evidence on interview as being factual, consistent and linear. These are matters, which I bring to account when I accept the mother’s evidence to the effect that she was the victim of family violence.
I am also satisfied on the balance of probabilities that the children were exposed to the father’s verbal abuse of the mother. I make this finding because of the following:
(a)When the female child was interviewed at her school in mid-2022, she said that she would like her father “to be less mean” to her mother;[73]
(b)When the female child was interviewed by police in late 2022, she stated that she “dislikes when her father is angry with her mother” and that she “hears shouting”;[74]
(c)The female child told caseworkers at the Department in mid-2022 that she “wanted her dad to stop being mean to her mum”.[75] She said “that her dad yells at her mum and that sometimes she asks him to stop and he does”[76]. The female child also disclosed that she “always gave her mum a big hug afterwards”[77];
(d)The mother tells the Department in mid-2022 that as a consequence of the father abusing her in front of the children, the female child would ask the father to “stop yelling”;[78]
(e)When the male child was interviewed by the Single Expert in April 2023, he was asked whether his father was “any different (at the visits) to how he was when he lived with them”.[79] The male child said as follows:
Yes, he’s nicer, he’s not getting angry. He would get angry and mean before. I would feel sad. It was like, most days. I used to try and stop dad because he was mean, to mum mostly;[80]
(f)When the female child was interviewed by the Single Expert in April 2023, she said as follows:
…sometimes he gets angry. Like about a 7 or 8 out of 10 (in response to a scaling question). He was angry most of the time. He shouted a lot. Really loud. I think he called mum names. I was scared. Sometimes I would tell him to stop;[81]
…
… it’s much more quiet at home now…I feel happier now, I’m not scared’.[82]
[73] Family Report dated 11 July 2023, p.6.
[74] Exhibit M7, p.7.
[75] Exhibit ICL1, p.6.
[76] Exhibit M7, p.7.
[77] Exhibit M7, p.7.
[78] Exhibit M7, p.7.
[79] The female child has been spending supervised time with the father pursuant to Orders made on 21 December 2022 and 21 April 2024.
[80] Family Report dated 11 July 2023, paragraph 84.
[81] Family Report dated 11 July 2023, paragraph 88.
[82] Family Report dated 11 July 2023, paragraph 89.
I am able to place weight on the information provided by the children to the investigative authorities and to the Single Expert for the following reasons:
(a)The investigative authorities describe the female child as communicating at an age‑appropriate level and having “age-appropriate verbal skills”;[83]
(b)The Single Expert described the female child as presenting as a “serious, composed and articulate young girl”.[84] That observation is consistent with the uncontested evidence with respect to the female child’s academic success. Whilst the Single Expert did not make any similar comment with respect to the male child, she did describe him as a “friendly and gregarious young boy” who was “comfortable during his interview”.[85] Further, given the male child’s academic success as described above, I accept the Single Expert’s opinion that there was no indication that the children had been influenced in their views about their father by their mother;[86]
(c)Both children described their father’s behaviour as having improved during supervised visits. The male child’s comments are referred to above. The female child also told the Single Expert that the father is “nicer during their visits, he’s completely different. It’s the right amount of time. I would feel a bit scared if it were my dad and my grandparents. Because he would probably still shout at us”;[87] and
(d)The father conceded during his cross-examination that he and the mother would have arguments in the presence of the children. As discussed in this judgment, the father was anxious during his cross-examination to draw a distinction between the phrase “raising your voice” and “yelling”. The mother’s counsel put to the father that he was drawing this distinction to minimise the allegations of family violence. The mother’s counsel invited the Court during her closing submissions to conclude that the father’s refusal to accept that he yelled during arguments was firstly, an attempt by him to minimise the significance of his behaviour and secondly, demonstrative of a lack of insight on the father’s part as to the impact, which his behaviour had on the mother and the children. I accept each of those submissions. Particularly, it defies commonsense to accept the father’s assertion that he never yelled at the mother in circumstances where the evidence of the two children suggested that he did so.
[83] Exhibit M7, p.7.
[84] Family Report dated 11 July 2023, paragraph 85.
[85] Family Report dated 11 July 2023, paragraph 81.
[86] Family Report dated 11 July 2023, paragraph 118.
[87] Family Report dated 11 July 2023, paragraph 89.
For the above reasons, I find that the father perpetrated family violence during the relationship. It is also clear that he exposed the children to family violence.
Allegations of sexually inappropriate behaviour and physical abuse
At paragraph 58 and onwards of her affidavit filed 3 June 2024, the mother under the heading “Sexual behaviour towards the children”, identifies occasions on which she says the father exhibited concerning behaviour towards the children. Again, the mother says, and I accept by reference to the preceding paragraphs of this judgment, that she did not know how to deal with her concerns and was otherwise “fearful of reporting the behaviour”.[88] She also says that the father’s rhetoric to the effect that she was “crazy”, “delusional” and “out of my mind” made her question whether her concerns were legitimate.[89]
[88] Mother’s affidavit filed 3 June 2024, paragraph 58.
[89] Mother’s affidavit filed 3 June 2024, paragraph 58.
I summarise below the concerns expressed by the mother together with the father’s response:
(a)That in 2019, the father asked the female child to remove her clothing and lie down next to the father for what the father described as “Daddy tickles”. The mother says that the father would proceed to touch the female child “all over her body while she was naked or only in her underwear, including running his fingers around her nipples and down her back and legs”.[90] The father denies the allegation but says that he would give the female child “tickles on her back to wake her up peacefully of a morning”.[91] In his oral evidence, the father denied that he ever asked the female child to take her clothes off and come to him for “Daddy tickles”. However, he did agree that “on occasion” he would run his hands over his daughter’s bare chest, stomach, back and legs. The effect of the father’s evidence in a general sense is that whilst he may have performed these acts, he denied absolutely that the acts carried any sexual connotation;
(b)That in 2019, the father began to “bite and touch the children in their bedrooms”. The mother deposes to one occasion in late 2019 when she said that the father “pulled [the female child’s] pants and underpants down and began biting her bottom”.[92] The mother deposes to a similar episode in about mid-2020 when the female child was aged seven years. The mother says that she walked into her daughter’s room “to see her sitting on…the father’s face with underwear removed while he bit her on the bottom”.[93] The father in his written evidence denied each of the allegations[94] and did not alter his evidence under cross-examination. He said that he “may have randomly” bitten the female child on her bottom when playing but never in a “focussed manner” or in a “concentrated area”. I understood the effect of the father’s evidence to be that whilst he denied deliberately biting his daughter on her bottom, it could have occurred as an incident of playing with her;
(c)That on unspecified dates, the father would “flick [the male child] on the penis, also take his underwear off and bite him on his bottom”. The mother concedes that she was not in the room when the father would allegedly flick the male child on the penis, but she did hear the father say to his son “I am going to flick your doodle” and also heard her son say “ow”.[95] The mother gave no evidence and nor was the mother asked whether she in fact saw the father bite the male child on his backside. The father in his written evidence denies each of the allegations.[96] The father tendered a photograph of the male child’s bottom allegedly taken by the mother in June 2022.[97] The document was annexed to the mother’s affidavit but from a procedural perspective it was not admitted into evidence until the father tendered the same without objection of the mother or the Independent Children’s Lawyer. The mother says that the photograph supports her assertion that the father bit the male child on the bottom. The photograph is not dated. It is impossible for me to form any view about whether the photograph relates to the alleged events of June 2022. Similarly, insofar as the photograph is asserted to identify bruising, I am unable to conclude that the bruising relates to the act allegedly perpetrated by the father. The father’s evidence as described above with respect to the possibility that he may have bitten the female child’s bottom during the course of playing is equally applicable with respect to the allegations as they relate to the male child;
(d)The father would squeeze the female child’s nipples calling it a “nipple cripple”. Again, the mother says that she has never been present when the father allegedly gave the female child a “nipple cripple” but deposes to hearing the father tell his daughter that he would do so.[98] The father denied the allegation in his written evidence and under cross-examination;[99]
(e)In 2020, whilst the parties and the children were travelling in their motor vehicle, the father said to his daughter words to the effect of “I can’t wait till we get home so I can squeeze your sexy nipples”.[100] The father denies the allegation in its entirety and denies that he has ever referred to his daughter as “sexy”;[101] and
(f)The father would give the female child a “wedgie”,[102] and/or that the father would use this method to wake his daughter up in the morning by pulling “[the female child’s] undies up so hard it looked like [the female child] was wearing a G-string”.[103] The father in his written evidence denies that he has ever pulled his daughter’s underwear up her bottom or otherwise given her a “wedgie”.[104] Under cross-examination, the father did say that “on occasion” he has carried the children “by their pants” and carried them to bed. However, he denied that he would wake the female child up by doing so and denied that any action on his part could be characterised as giving the children a “wedgie”.
[90] Mother’s affidavit filed 3 June 2024, paragraph 60.
[91] Father’s affidavit filed 24 June 2024, paragraph 32.
[92] Mother’s affidavit filed 3 June 2024, paragraph 64.
[93] Mother’s affidavit filed 3 June 2024, paragraph 61.
[94] Father’s affidavit filed 24 June 2024, paragraphs 36(a)-(b).
[95] Mother’s affidavit filed 3 June 2024, paragraph 62.
[96] Father’s affidavit filed 24 June 2024, paragraphs 36(g)-(h).
[97] Exhibit F5; Mother’s affidavit filed 3 June 2024, paragraph 70.
[98] Mother’s affidavit filed 3 June 2024, paragraph 63.
[99] Father’s affidavit filed 24 June 2024, paragraph 36(c).
[100] Mother’s affidavit filed 3 June 2024, paragraph 66.
[101] Father’s affidavit filed 24 June 2024, paragraph 36(e).
[102] Mother’s affidavit filed 3 June 2024, paragraph 65.
[103] Mother’s affidavit filed 3 June 2024, paragraph 68.
[104] Father’s affidavit filed 24 June 2024, paragraph 36(f).
As identified by counsel for the mother during her closing submissions, this is not a case where the opposed position of the parties was narrowed on the hearing of the oral evidence. If I were to have regard to the evidence as referred to in the above sub-paragraphs alone, then I could not find on the balance of probabilities that the father has acted in a sexually inappropriate manner towards the children as so asserted by the mother or that the father has “significant boundary issues” as so asserted by the mother. Similarly, I could not find that the father physically abused the children.
However, before forming a final view I must have regard to:
(a)A video recording tendered by the mother and dated in or around early 2020. This recording became one of the primary limbs of the mother’s case with respect to her assertion that the father behaved in a sexually inappropriate manner towards the children and/or that the father has “significant boundary issues” (supra). The video recording is 35 seconds in duration (“the first video”);[105]
(b)A video recording tendered by the mother and dated at some point in 2022 (“the second video”).[106] The recording is two seconds in length;
(c)A Risk Assessment performed by the Department and interviews of each of the children by police in late 2022; and
(d)A Magellan Report prepared by the Department in response to an Order of the Court made on 16 December 2022.
[105] Exhibit M1.
[106] Exhibit M2.

As discussed above, I have found that an order for supervision is warranted. The children have been spending time with the father in this manner since February 2023 and the Single Expert did not conclude that spending time with the father this way has had a negative effect on the children. Indeed, the evidence suggests the contrary. Similarly, the Single Expert does not conclude that the children spending time with the father under supervision in the future will cause them any harm.
The identity of any supervisor
The organisation, which provides supervision at the current time has advised the mother’s solicitors that the service does “not have a time limit or limit on [the] number of visits the family can have with our service”.
The Independent Children’s Lawyer and the mother promote an order that the father pay the costs of the supervision service except in circumstances where the children are not made available by the mother for a scheduled visit. I am obliged to consider the merit of such an order.
The father says that he owns his own home and that he is employed on a full-time basis earning an income of $178,000 including superannuation. At the time of trial, and in the space of twenty-one months he had paid his current and former lawyers a sum of $145,372 with the source of those funds been from the father’s income, savings and loans from family members. He committed to pay his legal representatives an additional $46,860 in respect of a four-day trial before me.
Having regard to the preparedness of the supervision agency to provide supervision on an ad infinitum basis, the father’s income and his ability to pay his solicitors a significant sum of money within a short period of time, I find that it is reasonably practicable to make an order for ongoing supervision by the supervision agency.
When making this order I am conscious that I have rejected the father’s application for time to be supervised by the paternal grandparents or the paternal uncle. I am also conscious that strictly speaking, the father’s application as it related to supervision was only in respect of overnight time for a limited period.
With respect to supervision by the paternal family, the Single Expert said as follows with respect to the mother’s views:
…[The mother] does not trust the paternal family to be able to adequately safeguard the children due to their alignment with their son and the fact they don’t believe he has done anything wrong. She believes they would be dismissive of the concerns and therefore likely to be casual about the children’s safety.[158]
[158] Family Report dated 11 July 2023, paragraph 116.
The mother’s concerns, as expressed to the Single Expert, turned out to be somewhat of a premonition. The evidence of each of the paternal uncle and the paternal grandmother demonstrated that each of them do not understand the full extent of the allegations made by the mother against the father. Further, insofar as they expressed any understanding of the allegations, neither the paternal uncle nor the paternal grandmother considered there to be any merit to the same. Under cross-examination by the mother’s counsel, the paternal uncle gave the following evidence:
Mother’s counsel:        What do you understand the allegations [against the father] to be?
Paternal uncle:           False.
Mother’s counsel:        Yes, but what do you understand them to be?
Paternal uncle:           Violent or something and bad with the children.
Mother’s counsel:        Any more specifics?
Paternal uncle:           No.
The paternal grandmother’s evidence was similar. She gave oral evidence to the effect that she could not conceive of a situation where the children might be at risk in the care of the father. She further said that she could not accept that the situation “behind closed doors” might have been different.
It was also incredibly unhelpful in my view that the paternal uncle and the paternal grandmother sought to comment on the mother’s mental health and/or criticise her parenting of the children in their affidavit material. Under the heading “My observations of … [the mother] as a parent”, the paternal uncle considered it appropriate to provide his assessment of the mother’s mental health.[159] The affidavit of the paternal grandmother was also replete with criticism of the mother, the mother’s mental health and the mother’s parenting capacity.
[159] Affidavit of the Paternal Uncle filed 24 June 2024, paragraphs 24 – 31.
In circumstances where I have formed a view it is necessary to make orders, which do not undermine the mother’s parenting capacity, I will not make orders, which place the paternal uncle or the paternal aunt into the role of a supervisor.
Section 60CC(1)(b) and s 60CC(3) – Right to enjoy Aboriginal or Torres Strait Islander culture
These sections do not fall for consideration given the factual background of these proceedings because the children are not Aboriginal or Torres Strait Islander children.
Section 60CC(2)(f) – Anything else that is relevant to the particular circumstances of the children
No other consideration was addressed by the mother, the father or the Independent Children’s Lawyer.
PARENTAL RESPONSIBILITY
As discussed above, the father consents to an order that the mother have sole parental responsibility for the children and sole decision-making authority in respect of all decisions concerning major long-term issues. The parties do not agree whether the mother ought to be obliged to inform the father of any impending decision and consider any response, which he may provide.
I have found that the father has perpetrated family violence.
The mother has been making the relevant decisions for the children since separation. In any event, the parties have no ability to communicate and for the reasons discussed above, I find that the mother’s functioning as a parent will be adversely affected if she is obliged to engage in communications with the father in respect of any impending decision about a major long‑term issue.
In addition to the parties’ inability to communicate, I am mindful of the opinion of the Single Expert that given the history of family violence, it would be difficult for any communication about major long-term issues to occur “on an equal footing”. The Single Expert was particularly concerned about the possibility that the father might intimidate or harass the mother by way of his written communications. I share that view.
I also accept that the mother has mental health vulnerabilities which may be exacerbated by ongoing contact with the father. It was the opinion of the Single Expert that if the mother was obliged to communicate with the father and consider his views about major long-term issues, then she would require assistance from a counsellor or a psychologist. However, when asked whether there would be any benefit to the children by placing these obligations on the mother, the Single Expert was emphatic that there would be no benefit.
The evidence supports a finding that it is in the children’s best interests for the mother to hold parental responsibility.
Having carefully considered the orders sought, I am not satisfied that that the mother should communicate with the father in relation to major long-term decisions or receive and take into account his input. Such an outcome would be detrimental to the mental health of the mother and accordingly, such an outcome is not in the best interests of the children. The mother did, however, give evidence that she would be comfortable giving the father written notice of any major decision made by her concerning the children and accordingly, I make a limited order to that effect.
I am satisfied that the father ought to have the capacity to keep himself informed of the children’s progress at school. This will ensure the father has direct knowledge and information of the children’s progress and achievements. The making of such an order is supported by the Independent Children’s Lawyer and the mother.
SPECIFIC ISSUE ORDERS
Provision of supervision reports
The Independent Children’s Lawyer and the mother promote an order that the father direct the supervision agency to provide a copy of all contact reports to the mother. I accept the submission of the Independent Children’s Lawyer that the making of such an order may provide the mother with some reassurance about the safety of the children and the manner in which time between the children and their father is proceeding. Accordingly, I make orders in the terms proposed by the Independent Children’s Lawyer.
Arrangements to apply in the event of the unavailability of the supervision agency and/or if the mother does not facilitate time
The Independent Chlidren’s Lawyer and the mother promoted an order to the effect that if the contact service is only able to offer supervised time on dates, which are less regular than monthly, then the father shall spend time with the children at times, which are offered by the supervision service. Although I was assured by the mother’s counsel that B Contact Service is able to offer this family supervised time on a monthly basis, I will make the orders sought by the mother and the Independent Children’s Lawyer to minimise the chance of disputation between the parties if the service finds itself at any stage unable to offer dates to the family.
The mother and the Independent Children’s Lawyer also invite me to make an order to the effect that if the children are not made available for time on any specified occasion, then, and in that event, time occur on the following Sunday with the costs of the same to be at the expense of the mother. I will make the order sought to provide the father with some reassurance that time will occur. I will, however, make it clear that the mother shall not be burdened with the cost of the supervision service if a medical certificate is presented by the mother.
Telephone communication
The Independent Children’s Lawyer and the mother promoted an order that the father have telephone/video communication with the children on one occasion each week. The orders promoted represent a reduction in communication because the orders made on 21 April 2023 afford the father communication with the children each Monday, Wednesday and Saturday. The father’s counsel urged me to continue the current arrangements with respect to telephone communication.
As discussed above, it was the mother’s evidence that she has “real anxiety” and does not like to be in the same room as the children whilst they are speaking with their father. The mother says “I see his name, it makes me feel scared. Like he is in the house”. I am concerned in light of this evidence that if the current arrangements for telephone communication continue, there will be a negative impact on the mother’s mental health and consequently on the mother’s parenting capacity. I also consider that the current arrangements for the father to contact the children on three occasions per week is disruptive given the mother’s vulnerabilities to her household if the current arrangements continue. Accordingly, I will make an order in the terms sought by the Independent Children’s Lawyer and the mother.
Communication between the parties
The Independent Children’s Lawyer and the mother promoted orders to the effect that:
(a)The father keep the mother informed as to his residential address; and
(b)The parties keep each other advised as to his/her email address and telephone number.
Given that the children’s time with the father will be supervised, I do not consider that there is utility to the first order proposed. Neither the mother nor the Independent Children’s Lawyer made any submission as to why such an order is necessary.
I will make the second order sought by the mother and the Independent Children’s Lawyer because the mother will need the father’s email address to provide the father with written notice of any major decision made by her concerning the children. I will also make the order as it relates to the provision of a telephone number because the parties will need to exchange the same for the purposes of telephone communication between the children and the father. It will also enable the father to provide the mother with notice if he proposes to attend at a prescribed school event or extra-curricular activity. I discuss this topic below.
Whether an order should be made restraining the father from taking the children to the bathroom during supervised visits
The Independent Children’s Lawyer promotes an order to the effect that the father be restrained from taking the children to the bathroom or otherwise being left alone with either of the children at any time during the supervised visits. That application is supported by the mother.
It is not necessary to make an order that the father be restrained from being left alone with either of the children at any time during supervised visits. I have determined that the children’s time with the father ought to be professionally supervised in any event. It is implicit from the terms of that order that the father will never be left alone with the children.
Given my finding that there is a risk that the father will groom the children for the purposes of a sexual relationship, I will make the order sought by the Independent Children’s Lawyer to the effect that the father be restrained from taking the children to the bathroom. I will, however, make it clear that the father may take the children to the bathroom if a supervisor is present.
Attendance a school events, extracurricular activities and provision of information
The Independent Children’s Lawyer and the mother promote orders, which regulate the father’s attendance at school events and extracurricular activities.
Given the mother’s vulnerabilities as described above, I consider it is in the best interests of the children as so suggested by the Independent Children’s Lawyer to limit the father’s attendance to specific school events and specific occasions with respect to the children’s participation in extracurricular activities.
The orders, which I will make will allow the children the benefit of their father attending at various events whilst at the same time, placing an obligation on the father to notify the mother in advance if he so wishes to attend. The benefit of making orders permitting the father to attend at specific events provided that he gives the mother seven days’ notice of his intention to do so is two-fold. Firstly, the mother will know with certainty the events, which the father is permitted to attend. Such an order is in the children’s best interests given the opinion of the Single Expert that contact between the mother and the father may trigger the mother’s emotions such that she may or may not be able to cope.
Secondly, the provision of seven days’ notice by the father will give the mother the opportunity to make arrangements for the children’s attendance at any event if the mother considers that she is unable to do so.
The Independent Children’s Lawyer also urged me to make an order that the father be restrained from “seeking to spend time with the children on these occasions” and to being “limited to being able to greet the children”. Given my finding that the father presents a risk to the children, I will make such an order.
Removal of Google Family Link
By her written evidence, the mother says that the father “still controls the children’s iPads through a google family link app”. The mother goes on to say that she is unable to change the settings in the iPads. The effect of the mother’s oral evidence was that the “app” allows the father to “track the children’s devices and see what they are doing on their devices”. The father provided no persuasive reason in relation to why he needs to monitor the children’s activity on their devices. I am satisfied that the mother will provide the children with the appropriate supervision. Secondly, I do not understand why the father has a need to track the children’s location in circumstances where he has agreed that it is appropriate for the children to live primarily in the care of the mother. Under cross-examination, the father conceded that he has the ability to track the children’s location through their devices.
I find that the maintenance of the “app” by the father is likely to cause the mother to be fearful and/or dominated by the father in the sense that the father will continue to be able to locate the whereabouts of the children and by implication, the mother. This is unnecessary and inappropriate. His ability to monitor the children’s activity on their devices is also intrusive and in circumstances where I have made findings about the mother’s vulnerabilities, I do not consider it is in the children’s best interests for their father to be able to continue to monitor their devices.
Accordingly, I will make orders in the terms promoted by the Independent Children’s Lawyer including an ancillary order requiring the father to provide whatever passcode is necessary for the mother to remove the relevant software from the children’s devices.
Restraints
The Independent Children’s Lawyer invites me to make an injunction restraining the father from reinstalling or reactivating any software, which can monitor or restrict the online activities of the children and/or track their location. Given the remarks made above, and the father’s failure to delete the relevant “app” to date, I will make such an order.
The Independent Children’s Lawyer also invites me to make an order restraining the father from coming within 500 metres of any place where the mother resides.
The orders promoted by the Independent Children’s Lawyer are expressed to be orders for the personal protection of the children and/or the mother pursuant to s 68B of the Act.
An injunction is not, by definition, a “parenting order”.[160] The Act provides separate powers for making injunctions, parentings orders, or other orders in relation to the welfare of a child.[161] Section 68B is not, therefore, technically subject to the paramountcy principle — the words of the section lack any express reference thereto. This issue has been addressed in many authorities and, as summarised in Attwood & Attwood [2022] FedCFamC1F 6, has to some extent been reconciled:
31.… Section 68B(1) of the Act states that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child. Section 68B(2) also states that the making of the order may occur in any case in which it appears to the Court to be just or convenient to do so.
32.The Full Court in Bennett v Bennett (2001) FLC 93–088 determined that the power in s 68B was not subject to the express legislative requirement that the Court must regard the best interests of the child as the paramount consideration; and even if s 68B were subject to the “best interests” principle, it is doubtful that this would displace the established common law principles contained in the authorities such as In re Boaler [1915] 1 KB 21; Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29 and Coco v R (1994) 179 CLR 427. However, the Full Court in Flanagan and Handcock (2001) FLC 93–074 considered this and referred to CDJ v VAJ (No 1) (1998) 197 CLR 172 which decided that orders that are not a parenting order do not directly invoke the application of the paramountcy principle. Nevertheless the Court agreed with the Full Court that the consideration of what is in the best interests of the child are “powerful matters to be weighed up against a competing principle such as finality”. The Full Court therefore held that in respect of the issue of an injunction under s 68B, it is incorrect to state that the “paramountcy principle” applies. However, the best interests principle needs to be given careful consideration, especially where the orders sought to be made intimately concern the welfare of the children.
33.Thus, whilst the best interests of the child is not stated explicitly as the governing principle when making an injunction under s 68B, for all practical purposes the concept provides a useful framework within which to explore whether … the injunction is appropriate for the welfare of the child, and is otherwise just or convenient.[162]
(Emphasis added)
[160] Hedlund v Hedlund [2021] FedCFamC1A 84 [118].
[161] Family Law Act 1975 (Cth) s 65D(1), s 67ZC.
[162] Attwood & Attwood [2022] FedCFamC2F 6, [31]–[33].

Given my findings with respect to the vulnerabilities of the mother, I find that it is appropriate for me to make an order restraining the father from coming within 500 metres of any place where the mother resides. The making of such an order is likely to ease the mother’s anxiety with respect to the behaviour of the father and, for this reason alone, is in the best interests of the children.
Overseas travel
At paragraph 156 of her affidavit filed 3 June 2024, the mother seeks orders permitting the children to travel overseas with her and to otherwise obtain passports for the children absent the consent of the father.
I refer to the well-known decision of In the Marriage of Line (1996) 136 FLR 149, which has been followed and applied on many occasions. In that decision, the Full Court set out the type of considerations to be considered when such a parenting order is made for overseas travel. I address those criteria below.
The mother is an Australian Citizen,[163] and the children are also citizens of Australia. The mother and the children are ordinarily resident in Australia. She owns her own property and is employed.[164] There is no evidence that the mother or the children have citizenship of another country nor that they have a legal entitlement to live in another country. In my view, and despite the conflict between the parties, there is a strong enough motive for the mother to return to Australia. I suspect that in the short to medium term at least, the mother will not have the funds to travel with the children outside of the Commonwealth of Australia in any event. As I have found that the mother has the capacity to provide for the needs of the children, including their emotional and intellectual needs, I am satisfied that the mother will not take the children to any location outside of Australia which is not safe for them.
[163] (Amended) Initiating Application filed on 24 June 2024.
[164] Family Report dated 11 July 2023, paragraph 23.
These proceedings have been financially ruinous for the mother. I am anxious to avoid the need for the mother to return to Court in the event that she is able to travel overseas with the children.
For these reasons, I will make an order that the mother be permitted to remove the children for the purposes of travel.
Application by the Independent Children’s Lawyer for costs
At the conclusion of proceedings, the Independent Children’s Lawyer made an application for costs.
Section 117(1) of the Act abolishes for the purposes of family law proceedings, the general rule that, in civil proceedings, costs follow the event. Section 117(2) of the Act provides that if, in proceedings under the Act, the Court is of the opinion that there are circumstances that justify it in doing so, the Court may subject to subsections (3A), (4), (4A), (5) and (6) and the applicable rules of court, make such order as to costs as the Court considers just.
Section 117(2A) is expressed in mandatory terms to require a Court when considering what order (if any) should be made under s 117(2) to have regard to seven matters. None of those seven matters is determinative. As was held in PBF & TRF (2004) 33 FamLR 123[165], it is not necessary for more than one factor to exist under s 117(2A) before it is competent for a judge to enliven s 117(2A) so as to make a costs order departing from the general principle set out in s 117(1) of each party bearing his or her own costs.
[165] PBF & TRF (2004) 33 FamLR 123.
The Independent Children’s Lawyer did not address the criterium referred to in s 117(2A) of the Act. These proceedings have been very difficult and emotionally charged. Whilst the mother has expended over $200,000 with respect to legal fees, I do not consider that this fact warrants any costs order. She is the primary carer of two children and is on a modest income. She is not in receipt of child support. I am satisfied having regard to the financial circumstances of the mother and the evidence about child support that the provisions of s 117(4)(b) of the Act apply in respect of the mother and that she would suffer financial hardship if she had to bear a proportion of the costs of the Independent Children’s Lawyer.
With respect to the application for costs against the father, I was not addressed with respect to the criteria referred to in s117(2A) of the Act.
The application for costs is refused.
CONCLUSION
The orders set out at the commencement of these reasons are those that most capably meet the children’s best interests.

I certify that the preceding two hundred and fifteen (215) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.
Associate:
Dated: 18 October 2024

File number(s):	PAC 6324 of 2022
Judgment of:	ANDERSON J
Date of judgment:	18 October 2024
Catchwords:	FAMILY LAW – PARENTING – Family violence and abuse – Where the mother is the unchallenged residential parent – Consideration of the impact on the mother and her parenting as a consequence of family violence and abuse – Consideration of long-term supervision
Legislation:	Australian Passports Act 2005 (Cth) s 11 Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61C, 61D, 61DA, 61DAA, 61DAB, 64B, 65AA, 65D, 65Y, 67ZC, 68B, 114, 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 8.15 Children and Young Persons (Care and Protection) Act 1998 (NSW)
Cases cited:	Attwood & Attwood [2022] FedCFamC1F 6 Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222 Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34 Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251 H v R [2006] FamCA 878 Hedlund v Hedlund (2021) 64 Fam LR 458; [2021] FedCFamC1A 84 Hickson & Matthew [2022] FedCFamC1A 161 Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 Keane & Keane (2021) 62 Fam LR 190; [2021] FamCAFC 1 In the Marriage of Line (1996) 136 FLR 149; [1996] FamCA 145 M v M (1988) 166 CLR 69; [1988] HCA 68 N and S and the Separate Representative (1996) FLC 92-655; [1995] FamCA 139 Norton & Landell (Consent Final Parenting Orders) [2015] FamCA 96 Oberlin & Infeld (2021) 63 Fam LR 88; [2021] FamCAFC 66 PBF & TRF (2004) 33 FamLR 123, [2005] FamCA 158 Slater & Light (2013) 48 Fam LR 573; [2013] FamCAFC 4 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division:	Division 1 First Instance
Number of paragraphs:	215
Date of hearing:	2–5 September 2024
Solicitor for the Applicant:	Newnhams Solicitors
Counsel for the Respondent:	Dr Leslie
Solicitor for the Respondent:	Soden Legal
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

PAC 6324 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR FUJIOKA Applicant
AND:	MS FUJIOKA Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	ANDERSON J
DATE OF ORDER:	18 OCTOBER 2024