Fukuzawa & Akhmetov - [2024] FedCFamC2F 1709

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fukuzawa & Akhmetov [2024] FedCFamC2F 1709

File number(s): PAC 5802 of 2021

Judgment of: JUDGE BECKHOUSE

Date of judgment: 18 December 2024

Catchwords:
FAMILY LAW – CHILDREN – Children in primary care of mother – Unacceptable risk – Children exposed to volatile parental conflict – Where father holds fixed and negative view of the mother – Where the father has invited the frequent involvement of other agencies in the mother and children's lives to gain advantage – Where the father's unpredictable and sometimes inappropriate behaviour has exposed the children to harm – Children now experiencing psychological difficulties stemming from their exposure to the conflict – Where the father lacks insight into impact of his behaviour – Orders made for sole parental responsibility – Children to live with the mother – No communication between the father and the children – Indefinite supervised time ordered, where no time order would impact on attachment of children to father.

FAMILY LAW – PRACTICE AND PROCEDURE – Where mother seeks harmful proceedings order pursuant to s 102QAC(1) – Substantial litigation history – Psychological harm as a result of proceedings – Harmful proceedings order made.

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2), 60CC(3), 65DAC, 68B, 68LA(5), 102NA, 102QAC(1), 102QAC(2), 102QAC(3)

Cases cited:
Deiter & Deiter [2011] FamCAFC 82

Isles & Nelissen (2022) FLC 94-092

Lloyd and Lloyd and Child Representative (2000) FLC 93-045

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

R & R: Children’s Wishes (2000) FLC 93-000

Waterford & Waterford [2013] FamCA 33

Division: Division 2 Family Law

Number of paragraphs: 294

Date of hearing: 15, 16, 17 and 18 April 2024, 8 and 9 July 2024

Place: Sydney

For the Applicant: Self-Represented Litigant

Counsel for the Respondent: Ms Bromberger

Solicitor for the Respondent: Norris Somers Maait Lawyers

Counsel for the Independent Children's Lawyer: Ms Conte-Mills

Solicitor for the Independent Children's Lawyer: Makdo Family Lawyers & Associates
ORDERS

PAC 5802 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR FUKUZAWA

Applicant

AND:
MS AKHMETOV

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE BECKHOUSE

DATE OF ORDER:

18 DECEMBER 2024

ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous parenting orders are hereby discharged.

Parental responsibility
2.The Mother shall have sole parental responsibility for the children namely X born in 2010, Y born in 2011, Z born in 2013, and W born in 2015 (hereinafter referred to as "the children") in relation to decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth).
3.The Mother shall solely make decisions as to the children’s day-to-day care, welfare and development during periods when living with her.

Live with
4.The children shall live with the Mother.

Spend time with
5.Commencing not less than two months from the date of these orders, during each NSW school holiday period Y, Z and W shall spend time with their Father on four (4) occasions each year for a duration of up to six (6) hours each visit, supervised by a professional contact service.
6.As to the professional supervised contact service required pursuant to Order 5 herein:
(a)The Father will nominate the supervised contact service (“the nominated service”);
(b)Within seven (7) days of receiving the Father’s notification of the nominated service, the Mother will take all necessary steps and actions to complete an intake process with the nominated service;
(c)The Father shall be responsible for any costs associated with the nominated service; and
(d)The Mother and Father shall each comply with all reasonable directions from the nominated service.

7.The time Y, Z and W spend with the Father will be arranged in the following manner:
(a)The Mother will communicate directly with the nominated service at least one (1) month prior to each NSW school holiday period and will nominate three dates that are also suitable to the nominated service;
(b)The nominated service will communicate the proposed dates to the Father who will select one; and
(c)The nominated contact service will elect a location for the visits in consultation with the Father.

8.X is permitted and encouraged to join Y, Z and W when they spend time with the Father in accordance with these orders but otherwise, the time X spends with the Father will be in accordance with her own wishes.
9.The Father is permitted to allow the paternal grandmother and the paternal aunt to join him when spending time with Y, Z and W in accordance with these orders, on two occasions each year.
10.The Father is permitted to provide gifts for the children on the following special occasions each year:
(a)For each of the children on their birthdays;
(b)Easter eggs for Easter;
(c)A gift for each of the children at Christmas; and

the gifts will be handed to the children personally by the Father during the supervised visit that is nearest to the date to the special occasion.

Restraints
11.Each party is restrained from making any negative, critical, belittling, insulting or derogatory comments about the other party or members of the other party’s family or household (including but not limited to, questioning or criticising the parenting decisions and/or parenting capacity of the other party) in the presence or hearing range of any of the children or via written correspondence which may be viewed or accessed by the children (including via SMS, email or on social media) or being complicit in any other person doing so.
12.Both parties are restrained from allowing the children or any of them to remain in the presence of or within the hearing of any other person who is denigrating the other party, the other party’s family, or members of the other party’s household.
13.Each party is hereby restrained from recording the children or causing any third party to do so for the purposes of use in current or future court proceedings.
14.Pursuant to s 68B of the Family Law Act 1975 (Cth), the Father be restrained from:
(a)Attending or coming within 100 metres of the children or any of them or the Mother;
(b)Attending or coming within 100 meters of the Mother or children's residence/s;
(c)Attending or coming within 100 meters of any of the children's schools or extracurricular activity providers;
(d)Removing the children or any of them from school or their extracurricular activity provider;
(e)Contacting any of the children's schools or extracurricular activity providers;
(f)Contacting any of the children's medical care providers or treaters; and
(g)this order is a personal protection injunction for the purposes of s 68C of the Family Law Act 1975 (Cth).

15.The Father is restrained from making unfounded and unnecessary reports and allegations to the NSW Department of Communities and Justice and/or the NSW Police in relation to the children.

Provision of orders
16.The Mother is permitted to provide a copy of these orders to:
(a)Any school attended by the children.
(b)Any extracurricular, individual or other service provider that provides care for the children.
(c)Any therapist or medical professional engaged on behalf of any of the children.

Passports and travel
17.The Mother is permitted to travel internationally for a holiday with the children or either of them without the permission of the Father.
18.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) (or any Act replacing that Act and making like or similar provisions), the Mother, Ms Akhmetov, be permitted to apply for and have issued to her an Australian passport for the children X born in 2010, Y born in 2011, Z born in 2013, and W born in 2015, or renew such passport in the absence of consent or otherwise of the Father, Mr Fukuzawa, AND IT IS REQUESTED THAT the Department of Foreign Affairs and Trade provide whatever assistance is necessary in relation to the issue or renewal of such passport/s.

Children’s therapy
19.The children continue to attend upon Dr B or such other alternate individual therapist arranged for them (“the therapist”) and the Mother shall ensure that the children attend all appointments with such frequency and for as many sessions as is recommended by the therapist. The purpose of the children’s therapy will be to assist the children in relation to:
(a)their mental health;
(b)their developmental and any behavioural issues; and
(c)any other issues deemed appropriate by the therapist.

20.In the event the therapist either:
(a)forms the view that it would be more appropriate for an alternate therapist to work with the Mother and the children or any of them; or
(b)the therapist becomes unavailable to continue to provide treatment for the children or any of them,

then the Mother will request the therapist to nominate a suitably qualified alternate therapist to undertake therapy for this specific purpose and the same orders mentioned above shall apply.
21.The children's therapy shall be non-reportable.
22.The Mother is permitted to provide the therapist/s with a copy of these orders and a copy of the Court's Reasons for Judgment.

Explanation of the orders to the children
23.Leave is granted to the Independent Children’s Lawyer to provide a copy of these orders and Reasons for Judgment to Dr C.
24.The Independent Children’s Lawyer shall take all reasonable steps to ensure that these orders are explained to the children by Dr C, and in her presence, within two months.
25.In the event that Dr C is unable to explain these orders to the children in accordance with Order 24, the Independent Children’s Lawyer shall explain the orders to the children.
26.The Mother is to do all things necessary to make the children available so that the orders can be explained to them.

Declaration
27.Pursuant to s 102QAC(1) of the Family Law Act 1975 (Cth), the Father or any person acting in concert with the Father, is prohibited without leave from the Court, from instituting proceedings under the Family Law Act 1975 (Cth) in a court having jurisdiction under the Family Law Act 1975 (Cth), against or in relation to the Father.
28.Should the Father seek leave to institute proceedings pursuant to s 102QAE of the Family Law Act 1975 (Cth), the Mother is to be notified by the Court (by email):
(a)that an application has been made; and/or
(b)the outcome of the application.

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 proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

This is a parenting dispute between the parties, the applicant father, Mr Fukuzawa (“the father”), and the respondent mother, Ms Akhmetov (“the mother”). At the heart of the dispute are the long-term parenting arrangements for the parties’ four children, X, Y, Z, and W, collectively referred to as “the children”.
The parties have been engaged in protracted legal proceedings since 2018. Final parenting orders were made on 17 January 2019. For reasons that will be explored, those orders were unable to be implemented leading to the father initiating these proceedings.
This matter has been marked by an excessive, prolonged, and intractable parental conflict that the children are caught in the middle of. At least two of the children now experience considerable mental health difficulties. In this context, the Court is asked to determine what parenting orders are in all of the children’s best interests.
ISSUES IN DISPUTE
Broadly speaking, the main issues that the Court is asked to determine are:
(a)Which parent should the children live with?
(b)Which parent should exercise parental responsibility for the children?
(c)What time (if any) should the children spend with the parent they are not living with?
(d)What communication (if any) should the children have with the parent they are not living with?
(e)What orders, if any, should be made about the children travelling internationally?
(f)Whether the Court should make any or all of the range of restrains sought by the parties?
(g)How should these orders be communicated to the children?
(h)Should an Order be made prohibiting the father from instituting further proceedings without first obtaining leave of the Court?
FAMILY DETAILS
The father was born in 1975 and is now 49 years old.
The mother was born in 1991 and is now 33 years old.
The parties married in 2014.
There are four children of the relationship:
(a)X born in 2010 (currently 14 years old).
(b)Y born in 2011 (currently 13 years old).
(c)Z born in 2013 (currently 11 years old).
(d)W born in 2015 (currently 9 years old).
The parties separated on 18 December 2017.
On 17 January 2019, final parenting orders were made by consent for the children to live with their mother (“the 2019 orders”).
The parties divorced in 2019.
On 29 October 2021, the father filed an Initiating Application seeking to vary the 2019 orders.
At the time of the hearing the mother worked full-time at an education provider. She is engaged to Mr D who is employed as a tradesperson. They have lived together since 2021.
The father is not employed. He appears to live alone in Suburb E but spends time at the home of his mother, who he says is very ill.
EVIDENCE
The mother relied upon the following documents:
·Case Outline filed 15 April 2024
·Amended Response filed 10 April 2024
·Affidavit of Ms Akhmetov filed 9 April 2024 (“Mother’s affidavit”)
·Affidavit of Mr D filed 10 April 2024
·Notice of Child Abuse, Family Violence or Risk filed 2021
The Independent Children’s Lawyer relied upon the following documents:
·Case Outline filed on 11 April 2024
·Child Impact Report prepared by Ms F (“the Court Child Expert”), on 24 January 2022 (“the Child Impact Report”).
·The Single Expert Report prepared by Dr C on 24 January 2023 (“the Single Expert Report”).
The father did not file a Case Outline Document. He also did not file material in accordance with trial directions. He confirmed to the Court that he relied upon the following documents:
·Initiating Application filed 29 October 2021
·Amended Initiating Application filed 7 August 2023
·Affidavit of Mr Fukuzawa sworn on 24 July 2023 and filed 11 November 2023
·Affidavit of Mr G filed 13 January 2022
The father was also permitted to tender a range of documents.
The mother was legally represented at the final hearing.
The father was not represented. He was supported for most of the hearing by a men’s support worker from the Family Advocacy and Support Service. The father’s sister also accompanied him and was present for most of the hearing.
To assist the father to prosecute his case, the Court arranged for him to have copies of all the material relied upon as noted above, and copies of the relevant sections of the Family Law Act 1975 (Cth) (“the Act”).
The father was cross-examined. The father’s psychologist, Mr G was not made available for cross-examination, although the father made efforts for this to occur. I determined that his affidavit would be read and that I would determine the weight that should be attached to its contents.
The father sought to rely upon an affidavit of the paternal grandmother filed 6 October 2023. He advised the Court that the paternal grandmother could not be made available for cross-examination because she was undergoing medical treatment. No medical certificate was tendered to substantiate this claim. He was not permitted to rely upon this affidavit.
The father did not have the opportunity to cross-examine the mother as a result of the ban on cross-examination pursuant to s 102NA of the Act imposed by the Court at the request of the parties. Somewhat unusually, the Independent Children’s Lawyer did not require the mother for cross-examination.
The father, the mother’s fiancé, Mr D and Dr C were all cross-examined.
PROPOSALS AND POSITIONS TAKEN BY THE PARTIES
The mother set out the final orders she sought in a Minute of Order dated 8 July 2024. In summary, she sought the following orders:
(a)That she have sole parental responsibility for the children.
(b)That the children live with her and spend no time with the father.
(c)That the father be restrained from:
(i)Attending or coming within 100 metres of the children or any of them or her.
(ii)Attending or coming within 100 metres of her or the children’s residence, the children’s schools or extracurricular activity providers.
(iii)Removing the children from school or extracurricular activity providers.
(iv)Contacting the children from school or extracurricular activity providers.
(v)Contacting any of the children’s medical care providers or treaters.
(vi)Making unfounded and unnecessary reports and allegations to the Department of Communities and Justice and/or the NSW Police in relation to the children.
(vii)Issuing a subpoena to obtain details from health care treaters of her or of the children without leave of the Court.
(d)That each of the parties be restrained from denigrating the other or discussing these proceedings in the presence or hearing of the children.
(e)That she be permitted to travel internationally with the children and hold sole parental responsibility to apply for the children’s passports.
(f)That she facilitates the children engaging in and continuing in individual, non-reportable therapy.
(g)That the final orders be explained to the children by Dr C in the company of the Independent Children’s Lawyer.
(h)That she be permitted to provide a copy of the orders to the children’s schools, extracurricular activity service providers and any psychologist or counsellor the children engage with.
The Independent Children’s Lawyer provided a proposed Minute of Order in her Case Outline document. Having heard evidence over five days, her position changed. On the final day of the hearing she tendered a Minute of Order dated 8 July 2024. By way of summary, the Independent Children’s Lawyer supported the following orders as being in the best interests of the children:
(a)That the mother have sole parental responsibility for the children.
(b)The children live with the mother.
(c)That the children spend no time with their father.
(d)That each of the parties be restrained from denigrating the other or discussing these proceedings in the presence or hearing of the children.
(e)That the father be restrained by injunction from:
(i)Entering upon or approaching within 100 metres of the residence of the mother and the children and the mother’s workplace.
(ii)Removing the children from school or their extracurricular activity provider.
(iii)Contacting the children’s schools, medical practitioners or extracurricular activity providers.
(f)The father be restrained from contacting any health care providers or treaters in relation to the mother or the children unless with the written consent of the mother.
(a)The father be restrained from contacting schools attended by the children.
(b)The mother be permitted to provide a copy of the final orders to any school, psychologist or counsellor attended by the children, as well as a copy of the Single Expert Report to the children’s medical care providers.
(c)That the mother be permitted to travel internationally with the children or either of them without the permission of the father and that the mother have sole parental responsibility to obtain passports for the children without the father’s consent.
(d)That the mother do all things necessary to engage the children in individual therapy with a clinical child psychologist for as many sessions as recommended by the psychologist.

The father sought orders as outlined in the Minute of Order filed on 7 August 2023. In summary he sought:
(a)That the children live with him.
(b)That the mother ensure that he is listed on each of the children’s birth certificates.
(c)That the mother provide to him and the Independent Children’s Lawyer, details of the children’s medical practitioners and treatment and extracurricular activities.
(d)That he have sole parental responsibility for the children and shall inform the mother of any proposed decisions to be made regarding long term issues for the children and take into account any views expressed by the mother.
(e)That the mother be restrained from contacting the children for a period of two months.
(f)That after two months, the children spend time with the mother, initially supervised for a period of four months, the time and duration of which was not specified.
(g)Thereafter, orders for a gradual increase of the mother’s time, subject to her compliance with other orders, with an end point of “from after their extracurricular activities to 7.00 pm Sunday” and half of the school holiday periods.
(h)Orders for time with each parent on special occasions.
(i)Orders for the children to have telephone and video call communication with the other parent.
(j)That he be permitted to obtain passports for the children.
(k)That the mother be restrained from contacting the children’s phone numbers, asking for information about his home address, seeking welfare checks from the police, stalking, intimidating or harassing him or attending upon his home.
(l)That the mother is restrained from having the children treated or interviewed by medical professionals without his written consent, except in the case of an emergency.
(m)That the parties are restrained from denigrating the other in the presence or hearing of the children or discussing these proceedings with the children.
(n)That the parties are restrained from relocating the residence of the children outside of New South Wales.
(o)That the mother be required to attend upon a psychiatrist for a mental health assessment, and thereafter for a period of 12 months, and that she be required to follow the “management, recommendation and treatment of the psychiatrist”.
(p)That the mother be required to provide to him and the Independent Children’s Lawyer, a report from her psychiatrist every two months.
(q)That should the mother breach any of the orders, she be penalised by a fine imposed by the court in the first and second instance, and in the third instance there be a cessation of all time.
(r)That the appointment of the Independent Children’s Lawyer remain in force for a period of 12 months.
(s)That either a doctor, psychologist, registrar, solicitor or Judge explain the orders to the children.
(t)A number of ancillary orders.
The father also sought orders that the parties engage in “family dispute resolution” to “discuss any issues regarding the children”, four times each year for a minimum period of 12 months. He made submissions with respect to the parties engaging in family therapy. This matter will be addressed in these reasons.
The mother also sought that an order be made under s 102QAC(1) of the Act requiring the father to seek leave before instituting further proceedings. This was supported by the Independent Children’s Lawyer. The father indicated he would also seek that such an order be made, although it was not clear that his consent extended to such an order being made in circumstances where the children were ordered to remain living with their mother.
CONDUCT OF THE FATHER DURING THE PROCEEDINGS
The father took a fixated position in relation to the mother, the conduct of her legal representative, counsel, the Independent Children’s Lawyer and Dr C (collectively “the court professionals”) throughout the proceedings.
When the father commenced these proceedings, he was legally represented. He has had the benefit of at least seven solicitors who have appeared on his behalf since then. He was highly critical of the professional services rendered by his last legal representative, Mr H. By the final hearing he had been unable to engage further legal representation, despite an order being made under s 102NA of the Act.
The father relied upon his Amended Initiating Application filed on 7 August 2023 as setting out the orders he was seeking. In support of those orders he included some “notations” and they give a flavour of his fixated position.
His affidavit filed on 11 November 2023 also complains of “multiple federal crimes committed by the parties including the malfeasant behaviour” of the court professionals and the mother. His greatest concerns in relation to the mother appear to be both her failure to comply with court orders and her mental health. These will be examined later in these reasons.
By the final day of the hearing there was evidence that the father had initiated the following complaints about some of the court professionals which were “active”:
(a)A complaint to the Legal Services Commissioner about the conduct of counsel for the mother and the Independent Children’s Lawyer. This complaint was referred to the NSW Bar Association in 2024 and was in the process of being subject to a “preliminary assessment” at the time of the final days of hearing.
(b)A complaint about the Independent Children’s Lawyer to the Office of the NSW Legal Services Commissioner. This complaint was in the process of being subject to an assessment at the time of the final days of hearing.
(c)A complaint about the father’s former solicitor, Mr H to the Office of the NSW Legal Services Commissioner. This complaint was in the process of being subject to an assessment at the time of the final days of hearing.
There have been three Independent Children’s Lawyers appointed in these proceedings. The father asserts that:
(a)The first Independent Children’s Lawyer, Mr J (“the first Independent Children’s Lawyer”) who filed a Notice of Ceasing to Act in May 2022 engaged in “malfeasant behaviour”. He complains that the first Independent Children’s Lawyer had advised the Court on a previous occasion that an Apprehended Domestic Violence Order was in place for the mother’s protection, when it was in fact in place for the father’s protection. He complains about the instructions provided by the first Independent Children’s Lawyer to Dr C. He particularly objects to the report of psychiatrist Dr K having been provided to Dr C. He complains that the first Independent Children’s Lawyer withdrew without the Court’s leave.
(b)The second Independent Children’s Lawyer, Ms L, (“the second Independent Children’s Lawyer”) was granted leave to file a Notice of Withdrawal by Senior Judicial Registrar McGrath on 25 May 2023. The notations to the father’s orders indicate he expects a “direction and escalation to the Department of Public Prosecution a judge or the crown solicitor” in relation to her removal.
The father’s contentions were not supported by other evidence. For example, the father tendered a letter from the Office of the Legal Services Commissioner dated 2020 wherein he was advised that following an investigation of the father’s complaint, the Commissioner was not satisfied that the first Independent Children’s Lawyer’s conduct amounted to unsatisfactory or professional misconduct. Similarly, on 25 May 2023 Senior Judicial Registrar McGrath granted leave for the second Independent Children’s Lawyer to file a Notice of Withdrawal. There was no evidence produced to the Court or heard, that would support the father’s contention that the second Independent Children’s Lawyer’s discharge arose to “address the evidence of malfeasance and crimes committed by the [I]ndependent [C]hildren's [L]awyer [Ms L] that was brought before him and to prevent further incidents from occurring”.
In the course of making his adjournment application on 18 July 2024, the father appeared to be seeking an order that the current Independent Children’s Lawyer be discharged, either because she was biased or had not taken adequate steps in discharging her duties. He led no intelligible evidence to support these propositions.
It has been observed that a court should be slow to discharge an Independent Children’s Lawyer on the basis of largely unsubstantiated complaints of one of the parties (see Lloyd and Lloyd and Child Representative (2000) FLC 93-045). I note that the specific duties of an Independent Children’s Lawyer are set out in s 68LA(5) of the Act. I am satisfied that the current Independent Children’s Lawyer has played an active role in these proceedings and has used her best endeavours to comply with her statutory duties.
Throughout the hearing, the father exhibited a persistent fixation on certain issues which at times hindered the Court's ability to comprehend his argument. He repeatedly voiced concerns regarding the perceived unfairness of the legal proceedings and the conduct of both legal representatives and the mother. When questioned, he tended to digress from the subject matter, often launching into lengthy, tangential discourses. He also frequently posed questions to the Court, which often devolved into extended monologues. During cross-examination, the father was repeatedly cautioned to confine his responses to the specific questions asked.
The behaviour observed by the Court was not a new phenomenon. It was similarly observed by the Court Child Expert who said:
[Mr Fukuzawa] spoke continuously for most his interview on 17 January 2022. He also spoke continuously while being given feedback on 24 January 2022, which appeared to make it difficult for him to hear the feedback, including hearing anything different from his understanding of the children’s needs and experiences. While being given feedback, [Mr Fukuzawa] also appeared to attempt to control the process by reading out Court literature with a particular focus on procedural fairness. [Mr Fukuzawa] appeared to also make some threats that if he did not consider that the assessment reflected procedural fairness he would be informing the Judge. Should [Mr Fukuzawa’s] communication style on 17 January 2022 and 24 January 2022 be typical of how he communicates to the children and, or, to [Ms Akhmetov], it is possible that they would experience his communication as anxiety provoking. It is also possible that they could experience pressure to comply with [Mr Fukuzawa’s] perspective or views to appease him.
(Child Impact Report, paragraph 29)
Dr C made similar observations of the father’s presentation describing him as “verbose and his narrative was often tangential, requiring considerable redirection”. He recorded a fixation by the father on the same grievances raised by the father including about the court process, previous Independent Children’s Lawyers, legal representatives and what he described as “malfeasance” on their part.
Dr C was concerned that Judge Boyle (as her Honour then was) in her judgment of 1 November 2018 had outlined several risk factors of concern pertaining to the father, yet the father did not appear to have reflected on them saying:
Of note, Her Honour identified concerns about [Mr Fukuzawa’s] attitude to facilitating a relationship with the children and [Ms Akhmetov] and his tendency to focus on perceived facts that other relevant experts have called into question. [Mr Fukuzawa’s] interview at the present assessment similarly remained strongly focused on instances in this process where he felt aggrieved, without any degree of personal reflection or insight into his own contributions to this matter and that ruling.
(Single Expert Report, paragraph 11)
This does not imply that the father was dishonest or an unreliable witness. Rather, it indicates a lack of essential information that would enable the Court to assess the merits of the competing proposals. For example, even when presented with opportunities to do so by Court professionals, the father was unable to focus on the needs and experiences of the children. Furthermore, the Court has limited information regarding the father's capacity to care for the children, including his health status, income sources, and the suitability of his living arrangements, among other factors.
BACKGROUND TO THESE PROCEEDINGS
The parties separated on 18 December 2017. The mother left the home and was housed in a refuge. The father remained in the home with the children. He interpreted the mother's actions as "abandoning the children," and this negative perception has since influenced his behaviour and attitudes towards her. Indeed, the view expressed by Dr C was that:
The clinician would suggest that at least part of what is driving the conflict from [Mr Fukuzawa’s] side is not just that he has a strong sense of justice – but rather a strong sense of righteous indignation and accompanying drive for retribution to address where he feels he has been wronged …
(Single Expert Report, paragraph 168)
The first set of proceedings began in 2018 and on an interim basis the Court placed the children into the mother’s care.
The 2019 orders provided for the children to live with their mother and spend time with their father initially supervised but progressing to unsupervised time for two weekends in each school term. By then the children were living with the mother in Town M and the father in Sydney.
In around 2019 the father began making complaints about the mother to a range of agencies including NSW Police, the Department of Communities and Justice and the children’s schools. The mother alleges that between 2019 and 2021 the father made numerous reports to the NSW Police requesting welfare checks and another 60 reports described as “concerned for welfare”. The father does not concede that he was responsible for all of these requests. It is not in dispute however that the children have been the subject of countless reports and investigations. It caused Dr C to remark that:
When reviewing the quantum of Family Court cases this clinician has conducted over the last 25 years, this clinician can recall few having the sheer number of reports as has been made by [Mr Fukuzawa] …
(Single Expert Report, paragraph 157)
In 2020 the mother and children relocated back to Sydney.
In September 2021 the mother ceased the children’s visits with the father and telephone calls. She told the Court Child Expert that she took these steps because:
[Mr Fukuzawa’s] behaviour appeared disturbed. She said that [Mr Fukuzawa] was communicating with the children in ways that was causing them emotional and psychological harm. She said, for example, [Mr Fukuzawa] was creating fears in the children that they could be ‘kidnapped, physically assaulted, or sexually assaulted’ while walking to school. She said [Mr Fukuzawa] was also creating beliefs in the children that she was being ‘raped’ and ‘bashed’ by her partner.
(Child Impact Report, paragraph 16)
On 29 October 2021 the father filed an Initiating Application seeking to vary the 2019 orders.
On 3 December 2021 interim orders were made providing for the father’s time with the children to be supervised by a professional supervision service once every three weeks for a two hour period.
A Child Impact Report was prepared and it was released on 1 February 2022.
Following an interim hearing on 15 February 2022 the father’s time with the children was suspended.
The Single Expert Report of Dr C was released on 25 January 2023. At paragraph 166 he observed that “this matter is one of prolonged significant conflict, even taking into account nearly 30 years working in this jurisdiction”.
Dr C made the following observations in his report about the conflict:
(a)He was concerned about the father’s willingness and capacity to facilitate and promote the children’s relationship with their mother.
(b)He remained deeply concerned that if the father’s attitude was left unchanged there was a risk that the children would begin to act out to the point that they would be exposed to more of the father’s acrimony.
(c)He described his “profound” concern that the father’s motivations were not child focussed concluding that the father “appeared highly motivated to draw the children even further into their parents’ conflict”.
Of the children’s relationship with the father, Dr C reported that:
(a)The older children, X and Y, were overtly siding with their father and resistant to time with their mother noting that “[t]his unfortunately appears to have developed from living with [Mr Fukuzawa] and being indoctrinated with his concerns about [Ms Akhmetov’s] allegedly poor parenting capacity”.
(b)He was concerned about the impact on the children should they continue to be isolated from either parent. He therefore supported the children to access both parents but remained concerned that it will result in the children’s return to their past experience of conflict.
(c)He concluded that X's own behaviour and mental health had stabilised significantly during the period of separation from her father. He attributed this primarily to the period of suspended contact, suggesting that the removal of the emotional stress associated with separation and discord allowed X to regain emotional equilibrium.
On the basis of these observations, he concluded that:
(a)It remains abundantly clear that the children’s interests are not going to be served by spending further time apart from either parent.
(b)He recommended a recommencement of the children’s time with the father but sounded an ominous warning which is alarmingly reflective of what has eventuated:
Left unchanged, if [Mr Fukuzawa] maintains this attitude and continues to seek retribution for his time without his children (for which he blames [Ms Akhmetov]) then this clinician fears that the conflict between the parents will only continue (and regrettably it is this clinician’s view he will), and indeed worsen. Thus, while the children might be happy at seeing their father again, they may inevitably return to being stuck between warring parents.
(Single Expert Report, paragraph 170)
Dr C set out a range of options available for the Court to consider. These options form part of the Court’s considerations now. They range from:
(a)Leaving the children in the care of the mother without spending time with their father, in what he described as a “relative calm”.
(b)Leaving the children in the care of the mother and resuming the father’s time with the children with the assistance of a Family Dispute Resolution process.
(c)Reversing the care of the children.
(d)Making orders for the shared care of the children.
On 4 July 2023, interim orders were made by Senior Judicial Registrar McGrath (“the 2023 interim orders”). On that occasion, the father was self-represented. In short, the father’s unsupervised time with the children was ordered to commence at a frequency of every third weekend from Friday until Monday, and thereafter, subject to the completion of parenting courses and family therapy, on alternate weekends. There were also a range of restraints placed on the father including that he does not make “unfounded and unnecessary reports” to the Department of Communities and Justice and Police about the mother’s care of the children.
On 21 August 2023, the matter was listed for a three-day final hearing to commence on 13 November 2023. Trial directions were made requiring the parties to file an updated consolidated affidavit by 6 October 2023 and Case Outline documents by 9 November 2023.
In mid-2023, X informed her mother that she had self-harmed following a conversation with her father. The mother subsequently took X to hospital. X explicitly identified the parental conflict as a contributing factor to her behaviour.

Two days later, the mother advised the father that it was X’s wish that she not spend time with him that weekend. X has not spent time with the father since then.
Notwithstanding the restraints placed on the father from making “unfounded and unnecessary reports”, on the following day he asked the police to perform a welfare check on X. It appears the police visited X both at her home and at her school. The school records observe that X expressed her frustration with the police check saying, “her father is abusive and causes her poor mental wellbeing.”
Around the same time, the three younger children went into the father’s care in accordance with the 2023 interim orders. X remained in her mother’s care. A few days later, the father failed to return the children to the mother’s care pursuant to the 2023 interim orders. The father did not send them to school either.
On 8 September 2023, the mother sought a recovery order. The matter was listed and orders were made for the father to return the children to the mother’s care. The father complied with this order.
On 25 September 2023, the father again failed to return the children to the mother’s care in accordance with the 2023 interim orders. The mother filed a recovery application which was listed on 28 September 2023.
On 28 September 2023, an interim hearing took place. The Court was advised that the children were again in the father’s care contrary to the 2023 interim orders. The circumstances that had then arisen were that on 22 September 2023, the father collected Y, Z and W from school. The mother expected that they would be returned to her by 25 September 2023.
The father expressed that he was of the belief that the orders made by Judge Boyle on 17 January 2019 entitled him to have the children in his care during school holiday periods as well. He says that the orders made by Judge Boyle on 17 January 2019 were not discharged by Senior Judicial Registrar McGrath and therefore ought to have been read in conjunction with the 2023 interim orders. It was therefore his view that he should be spending one half of all school holidays with the children as Judge Boyle had ordered in 2019.
On 28 September 2023, orders were made for the return of the children and for the orders of Senior Judicial Registrar McGrath to recommence on 20 October 2023. The hearing dates were confirmed. The children were returned by the father the following day in accordance with that Order.
On 13 November 2023, the matter was before the Court for final hearing. All parties were represented. The matter did not proceed to hearing largely because there had been non-compliance with the Court directions for the filing of material. The hearing was adjourned and it was allocated another four days of hearing to commence on 15 April 2024.
On 11 March 2024, the father was due to file any Amended Initiating Application and a consolidated trial affidavit. He did not do so.
On 18 March 2024, the mother was due to file any Amended Response and a consolidated trial affidavit. She did not do so.
On 25 March 2024, the father’s legal representatives filed a Notice of Ceasing to Act.
The Court, on its own motion, listed the matter on 4 April 2024 to determine its readiness to proceed to final hearing. The father advised the Court that he was no longer represented and that he was arranging for new legal representation through Legal Aid NSW under a grant of Legal Aid. An Order was made requiring both parties to file all material they were intending to rely upon by 4.00 pm on 9 April 2024. It was noted that if either party failed to file material by 9 April 2024, then the matter might proceed on an undefended basis.
The mother filed her affidavit by 9 April 2024. The following day she filed a further affidavit and an Amended Response.
THE HEARING
The three younger children went into the father’s care on Friday, 12 April 2024 in accordance with the orders of 28 September 2023. They were to be returned to the mother on the first day of the final hearing, 15 April 2024.
On the first day of the final hearing, the father was not in attendance. The father informed the parties and the Court in a piecemeal fashion that he was unable to attend the Sydney Registry in person because he had admitted Y and Z to the hospital at around 1.00 am that morning. At around 12.00 pm the father dialled into a Microsoft Teams link and provided the Court with information about the children and their whereabouts. He confirmed that they had been discharged from hospital.
At 2.00 pm, the Court heard the mother’s oral application for the children to be returned to her care. Orders were made requiring the father to deliver the children to the mother and the matter was adjourned to 10.00 am the following day for the hearing to commence, subject to any adjournment application, which had been foreshadowed by the father.
The father returned the three children to Suburb N Police Station pursuant to the orders made on 15 April 2024. He claimed that this was a traumatic and highly distressful event for the children, and that the children had to be physically removed from him. Before the Court were six videos taken of the return of the children by the father.
At 10.00 am on 16 April 2024, the father made an oral application to adjourn the final hearing of the matter. The adjournment application was dismissed.
The father was provided with the opportunity to consult with the duty solicitor service and inspect the subpoena material for the remainder of the day.
The hearing commenced on 17 April 2024, which was day three of the four allocated days. When the father was called to give evidence, he requested that the mother be removed from the courtroom because her presence intimidated him. The matter was stood down and another courtroom was located from where the mother then observed the hearing by an audio-visual link. The father was in cross-examination for most of day three of the hearing.
At the beginning of day four, on Thursday 18 April 2024, when the father was part way through being cross-examined, he applied for another adjournment. The basis for this adjournment was that he had experienced stress and anxiety in the early hours of the morning. He advised the Court that he had spoken to his psychologist during this “anxiety event”. He further advised the Court that he didn’t feel he had capacity to either continue in cross-examination or to represent himself. His request for an adjournment was refused. As Dr C had been scheduled to give evidence anyway, he was interposed. No cross-examination of the father took place on 18 April 2024. The father was granted leave to request that further questions be put to Dr C, if on reflection there were matters that he felt he had overlooked.
Dr C gave evidence for around four hours and was cross-examined by the father for around one and a half hours. No request was ever made by the father for the opportunity to put further questions to him.
At the conclusion of day four, in circumstances where the matter was not going to conclude and would need to go over part heard to July, an oral application was made by the mother for the father’s time with the children to be suspended. This application was supported by the Independent Children’s Lawyer. Orders were pronounced on 18 April 2024 and the formal reasons for the decision were delivered on 22 April 2024. In summary, the orders made on 18 April 2024 provided:
(a)That all previous parenting orders be discharged.
(b)That the mother have sole parental responsibility for the children.
(c)That the children live with the mother.
(d)That the father spend professionally supervised time with the children for four hours each fortnight.
(e)That pursuant to s 68B of the Act, the father be restrained from:
(i)Attending or coming within 100 metres of the mother or the children’s residence.
(ii)Attending or coming within 100 metres of the children’s schools or extracurricular activity providers.
(iii)Directly communicating with the children without the written permission of the mother.
(iv)Contacting any of the children’s schools, extracurricular activity providers or medical care providers or treaters.
(f)That the father be restrained from making unfounded and unnecessary reports and allegations to the Department of Communities and Justice and the police in relation to the children.
(g)That each of the parties be restrained from denigrating the other parent in the presence or hearing of the children.
(h)That each of the parties are restrained from discussing the proceedings with the children or showing them any document filed or prepared in connection to these proceedings.
(i)That the mother do all things necessary to engage the children in individual therapy with a clinical psychologist recommended by the Independent Children’s Lawyer.
(j)That leave be granted to the father to file an affidavit of his current psychologist, Mr G, in relation to an updated report addressing the father’s current treatment and diagnosis, his capacity on the evening on 17 April 2024 and his future capacity, and other matters as determined by the Independent Children’s Lawyer.
The final hearing was otherwise adjourned part heard to 8 and 9 July 2024.
The hearing resumed on 8 July 2024. While the orders of 18 April 2024 had granted leave for an updated report of Mr G to be filed, none had been.
While the orders made provision for the father to spend supervised time with the children, he had not availed himself of this opportunity.
The mother sought leave to rely upon an updating affidavit setting out amongst other things her compliance with the orders of 18 April 2024. Leave was granted.
The father sought an adjournment on the grounds that he had made a criminal complaint about the conduct of the Independent Children’s Lawyer and her counsel, as well as the legal representative for the mother and her counsel. He argued that as it was an “open investigation”, it would not be fair to continue. He also sought an adjournment to allow legal representation to be arranged via the pro bono schemes offered by the NSW Bar Association and/or the Law Society of NSW.
His adjournment application was refused. At his request, and to ensure the father could participate to the maximum extent possible, he was placed in another courtroom where he appeared by audio visual link.
THE APPLICABLE LEGAL PRINCIPLES
The principles governing a court’s determination on competing parenting applications are set out in Part VII of the Act.
I must consider what is in the best interests of the children when making a parenting order (in accordance with s 60CA of the Act). In deciding whether to make a particular order, I must consider the matters set out in s 60CC(2) of the Act, being the primary considerations, and s 60CC(3), being the additional considerations.
There are two primary considerations. I must balance the benefit to the children of having a meaningful relationship with each parent, with the primary consideration of protecting them from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
There are 13 additional considerations which are set out in s 60CC(3). In arriving at my decision, I have not made specific reference to all of the various factors set out in this provision, however, those of the s 60CC matters which are relevant have been considered in determining the children’s best interests.
The best interests of the child are met by ensuring they have the benefit of both their parents having meaningful involvement in their lives to the maximum extent, consistent with their best interests. The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518, and McCall & Clark (2009) FLC 93-405. Regard is had for these authorities when considering a meaningful relationship in the context of this case.
THE CHILDREN
X
X is 14 years old and is in year eight. She was observed by Dr C to be articulate and thoughtful.
She engages in extra-curricular activities each week. She has a part-time job.
She is overall in good physical health.
She has been deeply involved in the parental dispute. Her mental health is vulnerable, partly due to being at the centre of the conflict between her mother and father and feeling torn between her loyalties.
When she saw Dr C in August 2022, X described being confused about her parents and expressed an annoyance that she had been left out of discussions about the parenting arrangements. At paragraph 106 of his Single Expert Report, Dr C said “[X’s] descriptions evidenced a perplexed, but unfortunately all too common experience of an older aged child caught in the midst of prolonged parental conflict”.
At the time of his Single Expert Report, X was spending no time with her father. She however expressed a preference to live with her father, as she had done to the Court Child Expert. Dr C observed that the father’s past resistance to facilitating a relationship between X and her mother likely increased her reliance on him, and distress upon separation. He also observed that the time she had spent away from her father had enabled her to develop a relationship with her mother.
In mid-2023, X disclosed that she had self-harmed following a telephone conversation with her father. She was taken to hospital. Upon her discharge from hospital the mother informed both the Independent Children’s Lawyer and the father that X had expressed a wish not to spend time with her father.
In late 2023, the police attended at the mother’s home to conduct a check arising from the father’s complaint that weapons were stored in her home.
The following month in 2023, when dropping X off at school, the mother alleges that X handed her a handwritten note detailing an incident involving the father. In this incident, X expressed discomfort with the father’s physical touch. A few months prior, X had confided in her psychologist about feeling uneasy regarding a conversation with her father concerning his sexual experiences.
X has seen a psychologist, Ms O, on a fortnightly basis since mid-2023. After the self-harming incident in mid-2023, she recorded discussing at X’s request “how to stay safe and away from her Dad in general”. She reported that X had “a heightened sense of anxiety about her dad turning up at her school and snatching her away. She described being hypervigilant on her way home, checking the cars and taking extreme caution to turn the corner, just in case her Dad might follow her”.
By her session in late 2023, the psychologist reported X as conveying a sense of contentment. It was agreed that she would take a break from therapy with the session notes recording that X was “relieved from no longer having visitations with her father … that she does not feel at risk of self-harm”.
Y
Y is currently 13 years old and is in year seven. He plays sport.
Dr C described Y as presenting as withdrawn but displaying reflective thinking. Dr C thought it likely that Y was experiencing symptoms associated with an anxiety disorder arising from separation from primary attachment figures.
There was only limited evidence available to the Court on Y’s past mental health. In 2018 it appears he was seeing a psychiatrist after a self-harming incident.
He has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and has been prescribed medication. At the time of Dr C’s assessment, he was trialling doses but reported having better focus since being prescribed the medication.
Y was annoyed by the parental conflict and court proceedings. When he was asked if he had any words for the Judge he said, “I’d like to ask her if I’d be able to see my Mum and Dad still. I’d love to see them both and want to keep seeing my dad if I live with my Mum”. He expressed a clear sense of wanting the conflict between his parents to be over.
It would appear that Y has been projected into the centre of the parental dispute following X’s cessation of time with her father. For example, in late 2023 the father attended at Suburb P Police Station with Y, Z and W to report concerns that the mother had weapons and guns in her home. The father asked the police to speak to Y. They reported Y as saying “that there are [weapons] in a cabinet in his mum's and step-dads bedroom. [Y] told police there are [weapons] always all over her bedroom floor of all different shapes and sizes”.
Z
Z is currently 11 years old and is in year five. Z has participated in extra-curricular activities and will continue to do so if the mother has the funds available.
On days when the mother is working, she attends after school care with W. They also share a bedroom.
Dr C observed that Z was a notably more assertive and active child compared to the other two who were observed. She expressed a desire for her parents not to fight anymore. He observed that “[Z] is acutely aware of the unexplained separation from the father and as she matures, her awareness of this separation and desire to comprehend it, will only grow”.
W
W is currently nine years old and in year three.
In 2023 W participated in sports.
W has also been prescribed medication for his ADHD. He sees a paediatrician each quarter.
Dr C had a short meeting with W observing that “it was clear that [W] associated his parents’ relationship and separation with conflict”. At that time, [W] did not express an overt desire to spend time with his father which was not surprising given his age.
Observations
The children have experienced what Dr C describes as “ruptures in attachment” with their parents on at least three occasions. The most recent instance arose from the orders made on 18 April 2024, as it appears the father has not utilised the supervised time since those orders were implemented. Understandably, all of the children have expressed frustration regarding these disruptions and the ongoing parental conflict.
In August 2022, when Dr C assessed the children, he expressed the opinion that the children's best interests would not be served by periods of separation from either parent. He opined that the parents' ability and willingness to facilitate and encourage a strong, ongoing relationship between the children represented the most significant and enduring risk to their wellbeing. By the time of the hearing, when the father had resumed unsupervised contact with the children, it was evident that they continued to be deeply affected by the parental conflict. At the time of his Single Expert Report, Dr C expressed concern that the father did not fully appreciate this risk.
This subsequently was played out. After two unsupervised visits with the father, X had self-harmed and asked for a “break”. By the third visit, the father retained the three younger children in his care. The Court ordered that they be returned to the mother. In late 2023, the next spend time with occasion, they were again not returned to the mother. The father at no time filed an Application in a Proceeding, nor an affidavit outlining the basis upon which he retained the children in his care. The father’s conduct since Dr C’s Single Expert Report only strengthens the view he reached then about the exposure of the children to the conflict.
THE CHILDREN’S RELATIONSHIP WITH THE ADULTS IN THEIR LIVES
The father
The father clearly loves the children, and they are attached to him. It is recognised that when the mother left the relationship, the father was tasked with caring for four very young children and appeared to provide appropriate care for them all. The children have been in the father’s care for significant periods of time, and it has not been alleged that they have been neglected in his care.
However, there is a concern about psychological and emotional harms that the children have been exposed to by the father, due to the manner in which he has placed them at the centre of the conflict.

There is also a concern that the father lacks insight into the impact of his behaviour or the needs of the children. The absence of evidence from the father on his proposals for how he would better meet the needs of the children for example, is perhaps indicative of this.
The mother said that the father has a history of mental health problems and that in recent times she has had a growing concern about his mental health and the impact that this may have on his parenting.
In the first proceedings that led to the 2019 orders, a report was prepared by psychiatrist Dr K on 29 October 2018. The father opposed the Court having any regard to this report. He complained that the recommendations made by Dr K were unreliable for a range of reasons including that:
(a)The report of Dr K is untested.
(b)At the time of the interviews the father had applied for an ADVO for the protection of some or all of the children from the mother. Despite his protestations to Dr K, the mother was seen with the children. He objected to the two older children being seen with their “alleged abuser”. Later he reported that X and Y “displayed signs of fear and trauma”.
(c)He disputed Dr K’s assessment of him having a mental health condition. He said that it was an opinion based upon false information.
The father gave considerable attention to the mental health condition diagnosis or opinion, of Dr K. When he met with Dr C, he refused (apparently repeatedly) to complete diagnostic personality testing that may have assisted in understanding his personality and its impacts on his emotional wellbeing. Dr C concluded that “such a diagnosis appears reasonable, and there was evidence of [certain] traits evident throughout [Mr Fukuzawa’s] interview”.
The father subjected Dr C to cross-examination to challenge his opinion that a diagnosis of a mental health condition appeared a reasonable one to make. Dr C opined that the relevance of it was not in the description or diagnosis but in understanding that it is a mental health condition that is not transitory but intrinsic to the father’s personality and therefore the way that he interacts with people and the wider community.
The father relied upon a report from his psychologist Mr G dated 12 January 2022. The report indicated that Mr G had treated the father for four years although it provided no information about the nature of that treatment and any prognosis or diagnosis. It appeared self-serving in that it only addressed one matter, the diagnosis of the mental health condition by Dr K saying “[Mr Fukuzawa] does not present with [a] Disorder of any kind. A diagnosis of […] is incorrect and wholly inappropriate”.
The state of the father’s mental health was an issue during the hearing. The father applied for an adjournment on the first day because he said he was not in a fit state to conduct the hearing unrepresented. On day four of the hearing, he advised the Court that he had experienced a mental health episode the previous evening which caused him to contact his psychologist. He advised the Court that his psychologist instructed him to tell the Court that he “lacked capacity” to continue with the hearing. For this reason (and others) on 18 April 2024 an order was made permitting the father to file an updated report from Mr G. The Independent Children’s Lawyer was directed to release the report of Dr C to Mr G for the purpose of him providing a report on the following matters:
a. the Father’s current treatment and any diagnosis made of the Father;
b.his capacity, including an assessment made of his capacity on the evening of 17 April 2024, as well as his future capacity; and
c. any other matter the Independent Children’s Lawyer determines will be required to be asked of [Mr G].
(Order 17 of the Orders dated 18 April 2024)
No updated report was provided, nor was Mr G made available by the father for cross-examination in accordance with the trial plan.
This left the Court with little evidence about the current state of the father’s mental health.
There is limited weight that the Court is prepared to attach to Dr K’s report and diagnosis other than to observe the recommendations he made in 2018 and the basis upon which he did so. Similarly, there is little weight that can be placed on the very limited and inadequate report of Mr G. The focus must therefore be not on a diagnosis of the father’s mental health condition (if any), but his actual conduct towards the children and his attitude towards his responsibilities as a parent, both historically and currently.
The mother has also consistently alleged during these proceedings that the father has a history of alcohol and prescription drug use. She reported this concern to Dr K. She alleged to the Court Child Expert that he “consumed two bottles of [alchohol] per week; and took up to 50 tablets (one bottle) of [medication] each week and twenty tablets (one packet) of [another medication] every two days.”
The father has a complex medical history. He admitted to Dr C to being prescribed a range of medication for treatment and pain relief. Dr C recorded:
[Mr Fukuzawa] said he was prescribed [medications ] five years ago when following his […] operations. He described that his last prescription […] was ‘two months ago’. He described that he takes half a tablet as needed and the last time he had needed this was three weeks prior.
(Single Expert Report, paragraph 41, emphasis in original)
Tendered were the father’s records from the Pharmaceutical Benefit Scheme (“PBS”) for the period from 2023 to 2024. These records indicated that he had been prescribed and filled a variety of prescriptions during this period. Of particular concern were the more than 60 packets of a particular medication dispensed. As a secondary issue, it appears that he spends more on this medication each month than he contributes to the children's financial support.
Dr C was concerned that the father’s intake of prescription medication was very high and not consistent with the disclosure that he made during the interviews for his report. He concluded that the father’s PBS records “raised more questions than answers” but was not prepared to give evidence outside of his area of expertise appropriately saying:
I have flagged concerns about how many GPs are being seen, but that may be – they may be in the same practice, so I leave that open. But the sheer quantity of [medication] at the levels presumptively being consumed based on prescription supply dates I would suspect greatly exceed what his GP has prescribed for him. And I will leave it to [Mr Fukuzawa] to provide evidence to the court to suggest that I am mistaken in my opinion.
(Transcript 18 April 2024, p.47 lines 32-37)
The PBS information raised concerns that the father's mental health issues might be exacerbated by his use of prescription medication. It was brought to the attention of the parties and the Court before the matter was adjourned part heard. The father was aware of these concerns from 18 April in 2024. His PBS records indicate that he consulted with a general practitioner at least twice weekly. He was also required to provide an updated report from his psychologist. It is perplexing that the father did not seek to present additional evidence to assure the Court that his use of prescription medication was appropriate and managed.
The father's ability to manage his sometimes unpredictable responses was a significant issue during the hearing. His level of insight into the impact of his behaviour and the needs of his children was also a concern. The Court Child Expert noted that "drug and alcohol use can also exacerbate parental mental health problems". There is also a possibility that his behaviour and parental capacity might be influenced by his use of or dependency on prescription medication. Due to the lack of evidence, I cannot make definitive findings on this matter. However, I must observe that both of these concerns are part of the complex set of risk factors associated with the father that I am now considering.
The paternal grandmother and aunt
The paternal grandmother appears to be a person of significance to the children. Dr C described her as “a more grounded and loving paternal family member”. He observed the reunion between the children and their grandmother describing a “deep affection”. Her relationship with X was particularly close.
The father’s evidence is that his mother is gravely ill and was unable to take part in the proceedings.
The paternal grandmother filed an affidavit but did not make herself available for cross-examination. Even so, the affidavit deposed by her suggested that she is strongly aligned to the father’s case. The paternal grandmother has unfortunately engaged in the conflict as well. For example, in 2021 the paternal grandmother was heard to yell at the mother on the telephone when she rang to wish X a happy birthday.
The paternal aunt has also been a regular presence in the children’s lives. She was present to support the father throughout most of the hearing. She was not on affidavit and therefore the nature of her relationship with the children and their attachment to her, was unclear.
The mother
The mother clearly loves the children and they are attached to her.
Since 2018 the father has levelled regular criticism towards her parenting and most aspects of her life have been investigated by authorities. Whenever deficiencies in her parenting capacity have been identified, she has taken steps to address these, for example her disciplining techniques.
It was difficult to understand the risks that the father alleged exist for the children in the mother’s care. In his final submissions, which went over a period of 90 minutes, he failed to articulate any significant risks. As he was self-represented, I understand from his affidavit material, oral submissions, and what he told the Court Child Expert and Dr C that his main concerns about the children remaining in the care of the mother arise from her actions in “alienating” the children from him, and her mental health condition.
The father alleged that the mother has “alienated” the children from him. He repeatedly stated that the alienation he complains of took place over an extended period. There has been one occasion where the mother has failed to comply with the 2019 orders that bears examining, and indeed it led to the initiating of these proceedings.
The mother appeared to have ceased the children’s visits with the father in around September 2021, and then later their telephone calls with him. She told the Court Child Expert that she did so because of concerns she held about the father’s disturbed behaviour. She also raised concerns that the father was communicating with the children in ways that was causing them emotional and psychological harm. She said, for example, the father was creating fears in the children that they could be “kidnapped, physically assaulted, or sexually assaulted” while walking to school. She said that the father was also creating beliefs in the children that she was being “raped” and “bashed” by her partner. The father’s concerns at the time were well documented, but not pressed by the time of the hearing.
During the period between the 2019 orders and the cessation of the father’s time, the mother alleged that:
[Mr Fukuzawa] [the father] made 14 reports to NSW Police. These reports are over and above the nearly 60 concern-for-welfare-checks that [Mr Fukuzawa] has compelled NSW Police to conduct at my home. For instance, police visited my home 15 times in just 5 weeks [in late] 2021. Police have also visited my house at unearthly hours including 11pm, 3am, and 6am because according to the police themselves, [Mr Fukuzawa] held grave fears for my children's safety and welfare.
(Mother’s affidavit, paragraph 13)
In addition, the mother asserted that the father was responsible for at least 47 risk of harm reports to the Department of Communities and Justice between 2019 and 2021. This was a pattern of behaviour that the father had previously engaged in during the first set of proceedings.
The father did not concede that he was the source of all of the reports to NSW Police and Department of Communities and Justice. However, other documents suggested he was the instigator. For example, when the mother was referred to a family preservation program for support in 2021 the referral notes recorded:
Children have been known to DCJ since 2017 with a total number of 70 contact records, of these 26 are ROSH.
- 7 for sexual abuse
- 7 for physical abuse
- 5 for neglect
- 7 for psychological harm.
Between 2017 to 2020, DCJ investigated 70 allegations against [Ms Akhmetov] - nil were substantiated.
Recent Field Assessment was conducted by […] JCPR in […] 2021. The children were assessed as safe.
Concerns were raised for malicious reports.
DCJ Alert […]:-
'Please note the father makes vexatious reports. These have been assessed by 2 CSC's and JIRT. Each time unsubstantiated.
(Exhibit 25)
When questioned by Dr C about her actions in ceasing the father’s time with the children he recorded the mother as saying:
I was always open to more time [with the father], I just don’t know how to make him stop making these reports’, in reference to his making excessive reports against her to the police and DCJ.
(Single Expert Report, paragraph 59, emphasis in original)
It would also appear that by late 2021 X was experiencing mental health difficulties and becoming resistant to living with her mother. The father therefore most likely viewed the mother’s cessation of his time with the children, and especially X, as especially undermining of him. The mother, however, appeared to display good insight into X’s needs at that time telling Dr C that:
[S]he had always been open to the children spending time with [Mr Fukuzawa]; however, she felt compelled to advocate for a cessation of time when [Mr Fukuzawa’s] reports about her capacity to care for the children were increasing and were being further complicated by [X’s] resistance to changing care. [Ms Akhmetov] conceded she understood [X] had a close relationship with her father and knew that [X] wanted to return to living with him. Yet, [Ms Akhmetov] appeared able to recognise that [X’s] means of achieving that by rebelling and potentially self-placing with him were in line with her relative age and immaturity. If an arrangement could be achieved with harmony between the parents, then it would appear [Ms Akhmetov] would be open to it, as was evident by her agreeing to [X] spending an extended time with [Mr Fukuzawa] in […] 2021. However, [Ms Akhmetov] expressed concern that if such an arrangement continued with conflict, it could also result in a complete severance of [X’s] relationship with herself and thus cause extended difficulty for the younger children as well.
(Single Expert Report, paragraph 83)
The allegations levelled against the mother, and then later her new partner Mr D, were both serious and no doubt distressing to her. As were the behavioural problems emerging with the children. I cannot find on the evidence, that the mother took any active steps to interfere with the relationship between the children and their father, as he alleged. Indeed, it is notable that when Dr C met with the children a year after they had been restored into the mother’s care, he observed that X’s own behaviour and mental health had settled considerably.
The mother also stepped in to suspend the father’s time with X more recently after her self-harming incident, the details of which are already described above. It was plain from the notes taken at the hospital by X’s psychologist and the police, that X, who was then 13, instigated the break from her father. The mother supported this while ensuring that the three younger children still visited their father. I cannot find that the mother’s actions in supporting X’s wish for a break from her father in 2023 reflected the work of an “alienating” parent as the father alleged.
The father also raised concerns about the mother’s mental health. It was a live issue when the parties were assessed by Dr K in 2018. While she was diagnosed by him as suffering from depression, he found no evidence to suggest that she has ever had another mental health condition. The father agitated his concern with the Court Child Expert alleging that the mother did not receive appropriate treatment for her mental health condition which, he suggested, poses a risk that the mother neglects and inappropriately disciplines the children.
The mother disclosed to the Court Child Expert that she had developed anxiety associated with the multiple police visits to her home. However, she opined that her anxiety is well managed, with no need for medical intervention. She said, however, that her anxiety resurfaces when the father phones or texts her.
The mother had engaged in 17 sessions with a mental health clinician for treatment of depression in 2020.
There was no evidence before the Court to allow a finding to be made that the mother posed an unacceptable risk to the children due to any untreated mental health problem. Any risks arising from the mother’s anxiety from dealing directly with the father can be mitigated by orders that do not allow them to come into contact either directly or indirectly.
The mother also appeared to have taken appropriate steps to ensure that the children’s needs are met. For example, following orders made in April 2023 the mother obtained mental health plans for Y, W and Z. She ensured that Z and W commenced psychological sessions in 2024. She arranged for Y and X to access their school counsellor. She made an appointment for Y with a psychologist recommended by the Independent Children’s Lawyer but in the meantime arranged an appointment with another psychologist in 2024. She has paid all expenses associated with the children’s care with little assistance from the father.
The mother was not cross-examined. It was therefore difficult to make a finding as to whether she has been able to put the interests of the children ahead of her grievances with the father. However, I accept her evidence that:
(a)She moved from country New South Wales to Sydney in the hope that it would improve her relationship with the father.
(b)She has been flexible with the father in terms of facilitating extra time (or make-up time) with the children beyond what has been provided for in orders.
(c)She has complied with court orders requiring her to keep the father informed and updated of their progress at school, health and general wellbeing.
(d)She has facilitated the father’s time with the children notwithstanding her (valid) concerns that the father would withhold the children from her care.
The mother was born and raised within an Aboriginal community. She deposes that she would like the children to be raised to have a strong connection to their Aboriginal heritage and culture.
The father now disputes the mother’s Aboriginal heritage, although this has not always been the case. In a tendered letter written by the father in 2018, he advised that he had encouraged his older children to “participate within primary school Aboriginal liaison events” noting that while he was an Australian citizen of Country R heritage, the mother “is Aboriginal”. On 13 November 2023 the Court, by consent, noted that the children have “Aboriginal Australian Cultural Heritage”. During the hearing the father acknowledged that the children were proud of their Aboriginal heritage and that he would support how they identify. Despite this, during these proceedings the father:
(a)did not acknowledge that either the mother or children identified as Aboriginal on court forms; and
(b)questioned the mother’s claims about her Aboriginal heritage because it had not been confirmed to him by the Aboriginal Land Council.
The mother tendered a letter from the Aboriginal Land Council advising her that the father had asked for proof of Aboriginality but that it was not provided due to privacy reasons. It appeared from the father’s evidence that he was only prepared to support the children’s Aboriginal identity if there were additional services or funding that he might access on their behalf as a result of their Aboriginality.

In the 10-month period since mid-2023, the following events occurred:
(a)He retained three of the children in his care contrary to Court orders on three occasions. His actions necessitated Court orders for the return of the children to the mother on each of these occasions.
(b)The father requested police welfare checks on X, and searches for weapons, despite court orders restraining him from making unfounded and unnecessary reports to the police.
(c)The father took the children for medical examinations, particularly after retaining them in his care. For example, when the children were not returned to the mother in late 2023, the father took all three to a doctor who issued medical certificates stating they were unfit for school due to "extrinsic/psychological factors”.
The father relied on his Amended Initiating Application filed on 7 August 2023, to outline his proposed orders. Arguably these proposed orders fail to consider the children's needs. For instance, X is now reluctant to spend time with the father, and the proposed orders offer no solutions for managing this situation. The application itself is a stark example of the father's lack of insight.
Dr C was of the view that the Court has a reasonable basis to conclude that things for the children are getting worse not better. He observed that the father’s conduct in involving the children in the parental dispute was continuing but more concerningly ramping up. He remarked that the father’s inability to quarantine the children out of the conflict was “woeful” if not “spectacularly impaired”.
It was observed in the course of the hearing that his level of insight was also impaired. For example, when the father was asked about filming the children in a distressed state on route to the handover, he denied the suggestion that filming the children might be distressing or intimidating for them saying it was a normal part of the lives of children of their age and generation.
Conclusions on unacceptable risk
The mental health of both the mother and the children has been a persistent concern, likely stemming from the exposure to ongoing conflict and the pressure exerted by the father. The Court Child Expert observed:
[I]t is possible that they would experience his communication as anxiety provoking. It is also possible that they could experience pressure to comply with [Mr Fukuzawa’s] perspective or views to appease him.
(Child Impact Report, paragraph 29)
Of the impact of the father’s behaviour on her own mental health, the mother deposed at paragraph 53:
I am deeply concerned and fearful for the children when they are with [Mr Fukuzawa]. I am always anxious about when police will knock on my door for yet another frivolous and unfounded complaint made by [Mr Fukuzawa]. Similarly, I also fear when I will get the next call from the children's schools or FACS asking to conduct a home visit to ensure my children are safe and are being cared for in a clean and happy home.
In addition to the impact on her, the mother argued that there is already evidence that the father’s behaviour has an impact on the children’s mental health and has placed the children at unacceptable risk of harm. For example:
(a)X’s self-harming (which initially was an issue in late 2021) started within weeks of her unsupervised time with her father commencing.
(b)Z is now threatening self-harm as evidenced by the hospital notes.
(c)The mother is concerned that Y and W are becoming increasingly withdrawn. She says that Y had stopped engaging with his counsellor.
(d)The mother complains that W has become defiant. This was supported to an extent by the records of the police from the return of the children on 15 April 2024.
The notes of X’s psychologist, Ms O, are also helpful in understanding risk. After X took a break from spending time with her father in 2023 her psychologist noted her heightened sense of anxiety and hypervigilance about her father.
This was perhaps pre-empted by Dr C when he observed that:
The noticeable shift in [X] and [Y’s] wishes from their previous assessment to the present assessment is potentially the most informative to the Court. It is noted that at the time of the children’s interviews with [Dr K], the older children were viewed to be overtly ‘siding’ with their father and resistant to time with the mother. This attitude persists today, but in [X’s] case was exacerbated when care arrangements abruptly changed. [X] acknowledges now that she was mad at her mother and wanted to hurt her by emphasising her desire to be with her father. This unfortunately appears to have developed from living with [Mr Fukuzawa] and being indoctrinated with his concerns about [Ms Akhmetov’s] allegedly poor parenting capacity.
(Single Expert Report, paragraph 137)
Dr C opined that the father’s behaviour was indicative of him continuing to be focussed on his own needs and not the needs of the children. He described the resistant behaviour of the children as “situational” or “contrived” distress because it occurred in the presence of the father. Of the impact of this on the children he remarked:
[T]he question the court needs to – to weigh is this is not just marching the children into the post-marital conflict. This is directly weaponising children in this process, and all I can flag is profound long-term risks to each and all of the children associated their mental health development.
(Transcript 18 April 2024, p.32 lines 12-16)
The potential harm to the children is more severe and more likely to occur due to a combination of risks and the father's failure to take responsibility for them. The evidence presented demonstrates that the father has consistently:
(a)Held a negative and hostile view of the mother and her parenting, leading to the children's overt involvement in the parental conflict, including frequent involvement of external agencies.
(b)Exhibited unpredictable and sometimes inappropriate behaviour, potentially influenced by an untreated mental health condition or prescription medication use.
(c)Demonstrated a lack of insight into the children's needs and an unwillingness or inability to protect them from the parental conflict.
(d)Shown a lack of empathy for the highly conflicted family dynamic the children are currently experiencing.
(e)Indicated an unwillingness to accept advice from others and a refusal to engage in self-improvement activities.
I am satisfied that these risks have adversely affected the emotional and psychological wellbeing of both the mother and the children.
I am required to consider whether these risks are unacceptable ones. In doing so I observe the authority of Deiter & Deiter [2011] FamCAFC 82 at [61] on assessing those risks:
Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.
In Isles & Nelissen (2022) FLC 94-092, the Full Court held that the Court may reach a conclusion of unacceptable risk from the accumulation of factors, none, or some only of which are proved on the balance of probabilities.
Dr C, regrettably perhaps, foreshadowed the possibility of the children being exposed to more conflict if the parents were unable to put aside their conflict and move on. He was sceptical about the father’s ability to be compliant with court orders in the future:
Left unchanged, if [Mr Fukuzawa] maintains this attitude and continues to seek retribution for his time without his children (for which he blames [Ms Akhmetov]) then this clinician fears that the conflict between the parents will only continue (and regrettably it is this clinician’s view he will), and indeed worsen. Thus, while the children might be happy at seeing their father again, they may inevitably return to being stuck between warring parents. What the clinician emphasises is that the children have no less affection for their father since being away from him, but in that time, they have experienced significantly less acrimony toward [Ms Akhmetov], which in turn has enhanced their attachments relationships with her. The children now need each parent to actively put aside their historical grievances to allow the children to have access to them both.
(Single Expert Report, paragraph 170)
Dr C's Single Expert Report expressed concern that separating the children from either parent could be "potentially disastrous to their identity, well-being, and sense of secure attachment". He therefore emphasised the need to balance the risk of disrupting the children's attachment with the risks posed by the father's behaviour. At the time, he believed the best outcome for the family would be for the adults to modify their behaviour towards each other to mitigate the conflict. Dr C recommended that the father seek therapy to reflect on the impact of the parental conflict on the children. He expressed concern that the father's continued negative attitude towards the mother and pursuit of retribution could exacerbate the conflict. There is no evidence to suggest that the father has implemented these recommendations or reflected on the advice.
As an incentive to the father’s compliance with the orders, he recommended the Court detail the consequences of non-compliance. He suggested contemplation of “some sort of three-strike rule, i.e. with a significant fine, then a larger fine, and then a suspension of his time yet again”. This suggestion, whilst novel, is beyond the powers of the Court. But even if it weren’t, arguably the father’s conduct from when the 2023 interim orders were made until they were suspended, highlights his disregard for the recommendations made by Dr C and his general lack of insight and reflective capacity.
When assessing whether the risks identified can be ameliorated, an important consideration is a party’s willingness and ability to comply with court orders. The father argued that whilst there might have been allegations about him breaching orders, he has in his view always acted in accordance with orders, including when he has been ordered to return the children to the mother. He argues that he will continue to be compliant with orders and directions of the court.
Whilst it is true that the father complied with both recovery orders made by the Court when he returned the children in accordance with the orders made, there are numerous other occasions when he has been non-compliant. When I reflect upon some of these occasions and incidents, I am left having no confidence that the father will be compliant with orders in the future. For example:
(a)Order 5 of the 2019 orders required the father to afford the mother and children privacy during phone calls. There is evidence that this did not happen, especially when the calls were recorded.
(b)Order 9 of the 2023 interim orders restrained the father from making unfounded and unnecessary reports and allegations to the Department of Communities and Justice and police in relation to the children being in the mother’s care. In late 2023 he asked the police to perform a welfare check on X. The police it appears visited X both at her home and at her school. I concluded that his report was an unnecessary one.
(c)Order 10 of the 2023 interim orders restrained each parent from recording the children or causing any third party to do so in relation to matters pertaining to these proceedings. The father admitted that his mother and sister had recorded the children on multiple occasions.
(d)The father’s retention of the children on three occasions was contrary to the spirit and/or intent of the court orders, even though he argues that he was not technically breaching court orders.
It was put to the Court that as a consequence of his conduct and behaviour, the father has placed the children at risk of psychological and emotional distress. Having evaluated the prospect or probability of such an act or conduct occurring I am left to conclude that there is a high likelihood of the risk continuing to occur.
WHAT FINAL PARENTING ORDERS SHOULD THE COURT MAKE?
Parental responsibility
Pursuant to s 65DAC of the Act, an order for equal shared parental responsibility requires the parents to make together (and jointly) decisions about major long-term issues affecting the children. The presumption that parties share parental responsibility is rebutted when a court is satisfied by the evidence that it would not be in the best interests of the children for their parents to do so.
The parents have not shared parental responsibility for the children since 2018. There remains a profound level of distrust between the parties. Indeed, they appear incapable of agreeing to anything.
There has been little criticism made of the decision making of the mother. On the other hand, I remain concerned about the father’s capacity to make decisions on behalf of the children for the reasons already expressed.
I am satisfied that it is not in the children’s best interests that the parents hold equal shared parental responsibility and the mother should therefore continue to exercise sole parental responsibility for the children.
Live with orders
The children have been living with the mother since 2018. Whilst the father seeks an order for the care of the children to be reversed, there was little evidence before the Court to support this.
I do have to consider the views expressed by the children.
When X was seen by Dr C, he reported that she had expressed a preference to live with her father (as she had done to the Court Child Expert). This is no longer the wish she expresses.
When Dr C met with the three younger children, neither expressed a preference to live with their father although they all expressed a wish to spend time with him.
The father relies on the video evidence from the Suburb N Police Station changeover to support his claim that Y, W, and Z would prefer to live with him. However, there is no substantial evidence to corroborate this assertion. The most consistent sentiment expressed by Y is his desire for the parental conflict to end. Even if I were to accept that Y expressed particular distress at the prospect of returning to live with his mother on that specific occasion, it remains unclear how much weight to assign to this isolated incident.
In R & R: Children’s Wishes (2000) FLC 93-000, the Full Court of the Family Court of Australia noted at [54]:
There are many factors that may go to the weight that should be given to the wishes of the children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive syntheses on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.
Y appears to have been drawn into the centre of the parental dispute, particularly when X has chosen to distance herself. While the views of Y, W, and Z should be considered, they carry limited weight in determining the children's best interests.
I must determine the arrangement that serves the children's best interests. The children have resided with their mother since 2018, where they have received secure and appropriate parenting that has allowed them to thrive. The mother's affidavit outlined the steps she has taken to meet the children's physical and psychological needs, and I am satisfied with these arrangements.
When Dr C prepared his Single Expert Report, he considered the father’s proposal for a reversal of care and concluded that he had no “evidence to support such a dramatic reversal of the children’s care”. He described the proposal as one that would be “enormously detrimental to all [the] children”. The father puts before the Court no proposal as to how he would care for the children nor how he would manage what would be a difficult transition between households.
On that basis I am satisfied that it is in the children’s best interests that they continue to live with their mother.
Spend time with orders
There is clear evidence before the Court that if the children continue to spend time with the father, they will become increasingly resistant to spending time with their mother. It is also clear that since reintroducing unsupervised time, the children have been placed in the centre of the conflict and, as Dr C cautioned, have fallen “back into patterns of dysregulation, depression and self-harm”.
As a consequence, the mother argues that no orders should be made for the father to spend time with the children because any spend time with order would place the children at unacceptable risk in his care. The Independent Children’s Lawyer supports an order that the father spend no time with the children.
When Dr C considered the issue in August 2022 the children were not spending time with their father. At that time, he concluded:
The remaining risk of harm is their ongoing experience of conflict. It remains not just possible but probable that [Mr Fukuzawa] will continue to promote a narrative of distrust of [Ms Akhmetov], but given the children have a significant alternative basis for this now, it should be less impactful, presuming the Court is able to continue to exercise some degree of constraint of him. But this is based on the fact that the children are currently spending minimal time with [Mr Fukuzawa] under supervision. The clinician must weigh this up against the alternative being that children with affectionate attachment relationships with their father and PGM are not fostered, which would be certain to be equally detrimental.
(Single Expert Report, paragraph 152, emphasis in original)
While suspending the younger children's time with their father contradicts their expressed wishes, this must be weighed against the risk that, as they become more resistant to their mother, the father may support this resistance and retain them, disregarding any court order.
The future psychological and emotional wellbeing of the children is concerning. Y appears to be the child most exposed to the conflict. The father describes Y's behaviour during the last transition to the mother's care as hysterical, requiring the assistance of multiple police officers. The father was unable to manage the changeover and was removed from the room to facilitate the process.
When Dr C prepared his Single Expert Report, it was X who was caught in the midst of a prolonged parental conflict which led to attempts to self-harm.
Z has now reported at hospital that she has experienced thoughts of self-harm, although at this stage it would seem she has not taken steps to self-harm.
Having unsuccessfully trialled the resumption of time in July 2023, the Court is left with limited options. Dr C at the time of his Single Expert Report had significant concerns about the impact on the children should they continue to be isolated from either parent. By the time of the hearing, he was more concerned about the risks associated with the father’s behaviour when he does spend unsupervised time with the children.
There has now been a period where the children have spent no time with the father at all. This hopefully has allowed the children and the mother to settle without distraction and without risking further negative involvement and influence of the father. But a decision needs to be made as to whether the father’s time should again recommence.
If I am to suspend the father’s time with the children, there is a risk that:
(a)The children blame the mother for this and behave defiantly towards her.
(b)The children are confused, do not understand why, and that they face psychological challenges.
(c)The children blame themselves for time with their father being suspended.
(d)A child or the children run away from the mother and/or self-harm.

If I do not suspend the father’s time with the children, the risks are that:
(a)The children remain in the middle of the conflict.
(b)More pressure is placed on them by the father and they reject the mother.
(c)They most likely will again be retained in the care of the father.
(d)Further investigations might arise from allegations made by the father to other agencies about the mother’s level of care.
(e)The father may have undisclosed mental health or prescription medication dependencies placing them at further risk.
Dr C was guarded about supporting an order suspending the children’s time with their father because of the impact it would have on their attachments and the further distress that it might cause them. He also felt that the children, who clearly love their father and want to be in his company, should not be punished for their father’s poor behaviour.
However, even in August 2022, Dr C remained sceptical about the ability of the father to regulate his behaviour, leading him to remark that while he did not support a suspension of the father’s time with the children his “conduct may give the Court little alternate option”.
I have reached the conclusion that the Court is left with little option and the father’s unsupervised time with the children should not be reinstated.
Could the children then be given the opportunity to spend time with their father in a supervised setting if it were free of risk?
In reaching a decision on this I have to be satisfied that an order for long term supervision would facilitate a meaningful relationship between the children and the father, while ameliorating the identified risks.
There are numerous reasons why a court is not often persuaded to make long term supervision orders, including:
(a)whether the arrangement is capable of supporting a meaningful relationship between the children and the father;
(b)the artificiality of the arrangement, particularly in a contact centre;
(c)the long-term sustainability of such limited time; and
(d)the costs of the professional agency or supervisor.
Orders for indefinite supervision while often undesirable, may be warranted in circumstances where it would be in the child’s best interests to ameliorate risk by supervision while promoting a meaningful relationship with the supervised parent.
The father expressed his own concerns about seeing his children on a supervised basis.
Dr C was confident that the children’s attachment to their father could be maintained through supervision because of the strong relationship they have with him.
Supervised time has an attraction because the father’s behaviour and discussions with the children would be moderated by the presence of a supervisor. The children would not be caught in a parental tug-a-war as their expectations about time with their father could be managed and they would be secure in the knowledge that they would return to the care of the mother at the end of the visit with their father. However, they might also find the visits unsettling, especially if they are frequent, leading them to question the need for supervision, and perhaps enticing them to make their own private arrangements to spend time with the father.
On the last occasion orders were made that enabled the father to engage the services of a private supervision service. He did not do so. That Order was made because generally private supervision services do not have waiting lists. Supervision can occur in more natural, community or home settings and can be tailored to the needs of older children. They are however more expensive. The father expressed the view that his means were limited and inferred that he would only be prepared to engage a publicly funded service.
I have concluded that despite the position taken by the mother and the Independent Children’s Lawyer, this is not a situation where the father should be entirely excluded from the children’s lives. Dr C said that if this occurred, then the children would be confused, angry and no doubt experience feelings of loss. He thought it “paramount” for the children that their family relationships were preserved, provided there were no adverse impacts on the children.
I find that the only arrangement that will allow the children to maintain a relationship with both parents while protecting them from emotional and psychological harm, is if they spend time with their father under supervision on four occasions each year, for periods of up to six hours each visit. Such visits should ideally occur during school holiday periods, but the dates will be as nominated by the mother.
The father can elect a supervision service. Because the mother bears the responsibility for the children on a day-to-day basis, including paying for the therapeutic needs of the children and she receives minimal child support from the father, he will be responsible for the costs of engaging the supervised service.
Dr C also emphasised the need for the children to maintain a relationship with the paternal grandmother and aunt. They will both be permitted to accompany the father during two of the four supervised visits he is permitted to have with the children.
Any orders need to ensure that the children are not further destabilised by the visits with their father. In order to ensure that the children understand the orders made, the reasons for the orders and have had the opportunity to settle into individual therapy, the first supervised contact will commence not less than two months after the date of these orders.
X is currently 14 years old. She expressed a strong view that she did not wish to spend time with her father after the incident of self-harm in 2023. She has not spent any time with her father since. Orders for her communication with the father were suspended on 8 September 2023.
When asked in cross-examination whether he would support an order that X spend time and communicate with the father in accordance with her views, Dr C opined:
Yes, … I would be quite surprised … if both parents on cross-examination did anything but describe this young person as a mature, sensible, quite intelligent young person. So to then question the veracity of - or, more importantly, the clarity of her views would be perplexing. So I think it’s not just that she’s expressing these views. It’s coming from a young person with considerable ability and capability to express them reasonably.
(Transcript 18 April 2024, pp. 36-37 lines 45-51)
The Independent Children’s Lawyer submitted that weight should be placed on X’s views. I accept that submission.
There seems no utility in making orders that X spend time with the father for now. An Order will be made permitting X to spend time with her father in accordance with her wishes.
Explanation of orders to the children
Dr C was concerned that the orders should not punish the children. Y especially expressed strong views about spending time with his father and while the father has possibly brought the problems on himself, Y and the other three children may perceive that they are being punished for siding with their father.
When the children were placed in the mother’s care in 2019 it seems that little explanation was provided to them. As a result, they remained confused and angry about why they were no longer spending time with their father. Dr C thought it critical that someone explain to them the orders and offered to do so himself. This is an important step in assisting them to understand why orders have not been made in accordance with their express wishes. Leave is granted to the Independent Children’s Lawyer to provide a copy of these orders and Reasons for Judgment to Dr C. It is requested that the Independent Children’s Lawyer take all reasonable steps to ensure that these orders are explained to the children by Dr C, and in her presence, within two months.
Communication with the children
No orders will be made for the father to communicate with the children outside of the supervised contact times. The orders will enable the father to provide gifts to the children on their birthdays, at Easter and at Christmas when he sees them at the supervised contact visits.
To ensure the agencies that the children engage with or treaters who they attend upon understand the outcome of these proceedings, an Order will be made allowing the mother to provide them with a copy of these orders.
Other restraints and injunctions
I am asked to make a range of restraints and injunctions on the conduct of the father mainly, but also the mother. The Court has a broad discretion to make injunctions either “as it considers appropriate for the welfare of the child”, or where it is “just and convenient” to do so (ss 68B and 114(3) of the Act).
Some further restraints have been sought against the father by the mother. These would prevent the father from attending or coming within 100 metres of the children and mother. They would also prevent the father from removing the children from their school or extracurricular activities. They would also restrain the father from contacting any of the children's schools, extracurricular activity providers or medical care and treaters. A continuance of the restraint on the father from making unfounded and unnecessary reports and allegations to the Department of Communities and Justice and police, is also sought.
These are very specific restraints and injunctions that are intended to give the children some space from the conflict. It is important that the children are now shielded from the parental conflict and from direct contact with the father unless it is in accordance with these orders. I am concerned that if I do not make the restraints sought, that the father will believe he is either entitled or enabled to approach the children or mother at times outside of those times identified in the orders. He will also be specifically restrained from approaching the children’s schools, medical providers and extracurricular activity providers.
A range of restraints will continue to be placed on the mother and the father about speaking negatively about or denigrating each other to the children and discussing these proceedings with the children.
There should now be no need or occasion that arises that would justify the father making complaints to other agencies about the mother’s care of the children or asking the police to conduct welfare checks on her household or the children. An order in similar terms to previous orders will also be made restraining him from doing so.
The mother seeks an order that the parties be restrained from recording the children or causing a third party to do so for the purposes of use in court proceedings. I have made findings earlier in these reasons about the father’s recording of the children and how it has inappropriately involved the children in these proceedings. I am satisfied that the restraint is appropriate in the circumstances.
International travel
Whilst the mother has no immediate plans to travel with the children, she seeks an order that permits her to do so in future years. International travel can be a richly rewarding experience for children. I will make an order that allows the mother to facilitate this but will make it clear that such travel is only for the purposes of a holiday.
Individual and family therapy
A range of orders are made to support the continuance of therapy for the children. The mother will be permitted to release a copy of the orders made to a range of organisations and a copy of the Reasons for Judgment to the children’s individual therapists.
The father sought an order that the parties recommence family therapy. Family therapy is a process that requires the engagement of the entire family unit. I am not inclined to add another layer of therapeutic intervention on top when there is no end goal. Accordingly, I will not make the Order the father has proposed.
Harmful proceedings order
The mother also seeks that an order be made pursuant to s 102QAC(1) of the Act that would prohibit the father from instituting further proceedings under the Act in this Court or a court having jurisdiction under the Act, without first obtaining the leave of the court. The father opposed the order but agreed that the children’s needs should come first.
Section 102QAC(1) of the Act provides that:
(1) A court exercising jurisdiction in proceedings under this Act may make an order (a harmful proceedings order) prohibiting a party (the first party) to the proceedings from instituting proceedings under this Act against another party to the proceedings without the leave of the court under section 102QAG, if the court is satisfied that there are reasonable grounds to believe that:
(a)the other party would suffer harm if the first party instituted further proceedings against the other party; or
(b)in the case of child-related proceedings (within the meaning of Part VII) — the child who is the subject of the proceedings would suffer harm if the first party instituted further proceedings against the other party.
I too must have regard to the history of litigation as required by s 102QAC(3) of the Act which provides that:
(3) In determining whether to make an order under subsection (1), the court may have regard to:
(a)the history of the proceedings under this Act between the first party and the other party; and
(b) whether the first party has frequently instituted or conducted proceedings against the other party in any Australian court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section); and
(c) the cumulative effect, or any potential cumulative effect, of any harm resulting from the proceedings referred to in paragraphs (a) and (b).
These proceedings have a substantial history. The initial proceedings were commenced in 2018 and concluded on 17 January 2019. Later in 2019, the father sought to engage in a mediation in relation to the parenting arrangements. In October 2021, the father filed an application seeking to vary the 2019 orders.
Since the commencement of these proceedings, there have been numerous applications in relation to interim parenting arrangements for the children. The father also filed an Application for Review with respect to the transfer of the matter to the Aboriginal and Torres Strait Islander List before Judge Boyle. On 12 September 2022, Judicial Registrar Buttriss made an Order that no further interim applications be filed without leave of the court.
Section 102QAC(2) also provides a non-exhaustive list of matters which may constitute harm for the purposes of the provision:
(2)For the purposes of subsection (1), harm may include, but is not limited to, the following:
(a)       psychological harm or oppression;
(b)       major mental distress;
(c)       a detrimental effect on the other party’s capacity to care for a child;
(d)       financial harm.
The power I am asked to exercise is a discretionary one. As s 102QAC(1) is a new provision, it is helpful to look at the Explanatory Memorandum so that I can be satisfied that the circumstances of this case support the making of such an order. That Explanatory Memorandum indicates:
The intention of this power is to allow the courts to proactively intervene, or intervene upon application by a party to the proceedings, before further applications are served on the other party, and therefore limit the detrimental effect, major mental distress or psychological harm that may result from further applications.
(Explanatory Memorandum, Family Law Amendment Bill 2023, [322])
The final orders that I have made in relation to the ongoing parenting arrangements for the children is based on the history of proceedings between these parties under the Act. In doing so I have observed that:
(a)The children have suffered psychological harm as a result of these proceedings and the parental conflict more generally.
(b)The children have been overtly involved in the parental conflict, including through the regular involvement of other agencies in the lives of the children.
(c)Since reintroducing unsupervised time in the course of these proceedings, the children have been placed in the centre of the conflict, and as Dr C cautioned about, have fallen “back into patterns of dysregulation, depression and self-harm”.
(d)The prospect of future psychological and the impact on the emotional wellbeing of the children is concerning.
The attempts at self-harm by X and more recent threats by Z, point towards major mental distress.
Dr C noted that “this matter is one of prolonged significant conflict, even taking into account nearly 30 years working in this jurisdiction”. The children have been stuck between two warring parents for six years. The intent of these orders is to end the children’s exposure to that warfare for the rest of their childhood. They will maintain a relationship with their father under restricted circumstances. When they reach adulthood, they can decide for themselves how they manage that relationship.
For these reasons and in the particular circumstances of this case, I am satisfied that there are reasonable grounds to believe that the criteria at s 102QAC(1)(a) and (b) of the Act are met.
There is ample evidence before the Court for me to be satisfied that any further proceedings brought by the father will result in the children suffering further harm.
In making such an Order I observe that while an Order of this kind is final, the father is not precluded from instituting future parenting proceedings under the Act. However, this judgment has now identified a range of risks currently arising from the father. If the father seeks the leave of the Court to institute future parenting proceedings, a relevant consideration for the Court when determining whether such leave will be granted, is whether he has addressed any of the risk issues that have been identified.
CONCLUSION
Understandably the father will be bitterly disappointed by the outcome of these proceedings. But sadly he has been unable to engage with the many concerns that have been raised about his behaviour and the manner in which he has exposed the children to this conflict. In those circumstances, the Court is left with few options when prioritising the safety of the children. For now, the orders provide the parties and the children with space from litigation and conflict to recover and move forward.

I certify that the preceding two hundred and ninety-four (294) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse.
Associate:
Dated: 18 December 2024

File number(s):	PAC 5802 of 2021
Judgment of:	JUDGE BECKHOUSE
Date of judgment:	18 December 2024
Catchwords:	FAMILY LAW – CHILDREN – Children in primary care of mother – Unacceptable risk – Children exposed to volatile parental conflict – Where father holds fixed and negative view of the mother – Where the father has invited the frequent involvement of other agencies in the mother and children's lives to gain advantage – Where the father's unpredictable and sometimes inappropriate behaviour has exposed the children to harm – Children now experiencing psychological difficulties stemming from their exposure to the conflict – Where the father lacks insight into impact of his behaviour – Orders made for sole parental responsibility – Children to live with the mother – No communication between the father and the children – Indefinite supervised time ordered, where no time order would impact on attachment of children to father. FAMILY LAW – PRACTICE AND PROCEDURE – Where mother seeks harmful proceedings order pursuant to s 102QAC(1) – Substantial litigation history – Psychological harm as a result of proceedings – Harmful proceedings order made.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2), 60CC(3), 65DAC, 68B, 68LA(5), 102NA, 102QAC(1), 102QAC(2), 102QAC(3)
Cases cited:	Deiter & Deiter [2011] FamCAFC 82 Isles & Nelissen (2022) FLC 94-092 Lloyd and Lloyd and Child Representative (2000) FLC 93-045 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 R & R: Children’s Wishes (2000) FLC 93-000 Waterford & Waterford [2013] FamCA 33
Division:	Division 2 Family Law
Number of paragraphs:	294
Date of hearing:	15, 16, 17 and 18 April 2024, 8 and 9 July 2024
Place:	Sydney
For the Applicant:	Self-Represented Litigant
Counsel for the Respondent:	Ms Bromberger
Solicitor for the Respondent:	Norris Somers Maait Lawyers
Counsel for the Independent Children's Lawyer:	Ms Conte-Mills
Solicitor for the Independent Children's Lawyer:	Makdo Family Lawyers & Associates

PAC 5802 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR FUKUZAWA Applicant
AND:	MS AKHMETOV Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE BECKHOUSE
DATE OF ORDER:	18 DECEMBER 2024