Galvin & Pacotto - [2024] FedCFamC1F 582

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Galvin & Pacotto [2024] FedCFamC1F 582

File number(s): SYC 5557 of 2019

Judgment of: KARI J

Date of judgment: 2 September 2024

Catchwords:
FAMILY LAW – CHILDREN – Family Violence – Where the father has perpetrated family violence upon the mother – Where the father has behaved in ways which were coercive and controlling of the mother by use of threats, intimidation, derogatory language, humiliation and aggression – Where the father admitted to engaging in threatening and intimidating behaviour – Where the Court finds that the father has not developed insight into the harmful natures of his behaviour and the impact on the mother – Where the Court is satisfied the father continues to present a risk of harm.

FAMILY LAW – CHILDREN – With whom a child spends time – Where the mother asserts that the father presents an unacceptable risk of harm – Where it is agreed that the child should live with the mother – Where the mother seeks that the child spend no time with the father or alternatively professionally supervised time only – Where the father seeks unsupervised and overnight time with the child – Where the father’s alternate position is that the paternal grandmother supervise his time with the child - Where the child derives value from her relationship with the father and the paternal family – Where severing the relationship between the child and the father would be more damaging to the child than enabling her to maintain the relationship in a measured fashion – Where the Court does not consider that the child would be safe and protected from the risk of harm if there was to be unsupervised time spending – Where the paternal grandmother is not an appropriate candidate to supervise the father’s time – Where the Court considers that ongoing professional supervision is appropriate – Orders made for the child to spend time with the father on one occasion each month – Orders made for the father’s time with the child to be professionally supervised.

Legislation:
Australian Passports Act 2005 (Cth) s 11

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 64B, 68L

Family Law Amendment Act2023 (Cth)

Cases cited:
B and B (1993) FLC 92-357

Bielen & Kozma (2022) FLC 94-123

Carter & Wilson [2023] FedCFamC1A 9

Deiter & Deiter [2011] FamCAFC 82

Isles & Nelissen (2022) FLC 94-092

Jones v Dunkel [1959] 101 CLR 298

M v M (1988) 166 CLR 69

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

Ramzi & Moussa [2022] FedCFamC2F 1473

Number of paragraphs: 169

Date of last submissions: 29 August 2024

Date of hearing: 13-17, 20-22 May 2024, 29 August 2024

Place: Heard in Sydney, delivered in Adelaide

Counsel for the Applicant: Mr Dura SC

Solicitor for the Applicant: Walter & Elliot Family Lawyers

Counsel for the Respondent: Mr Reeve

Solicitor for the Respondent: Marsdens Law Group

Counsel for the Independent Children’s Lawyer: Mr Schroder

Solicitor for the Independent Children’s Lawyer: Sydney West Family Lawyers
ORDERS

SYC 5557 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS GALVIN

Applicant

AND:
MR PACOTTO

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

KARI J

DATE OF ORDER:

2 SEPTEMBER 2024

THE COURT ORDERS THAT:
Discharge of previous orders
1.All previous parenting orders be discharged.

Living arrangement
2.The child X born 2016 (“the child”) live with the mother.

Parental Responsibility
3.The mother have sole parental responsibility for the child.
4.In exercising her parental responsibility for the child:
(a)The mother shall advise the father in writing (using the parenting app provided for in Order 16), of any decisions she makes about major long-term issues regarding X’s health and education if and when they arise; and
(b)When notifying the father of any such major long-term decisions, the mother shall inform the father of any of the child’s treating professionals and the father shall be at liberty to make his own appointment, at his cost in all things, with such treating professional so as to keep himself informed regarding any such issue.

Time Spending and Communication
5.Henceforth the father shall spend time with the child on the first Saturday of each calendar month from 9.00 am until 4.00 pm.
6.The father’s time spending with the child shall at all times be supervised by B Contact Centre or any other professional supervision service as agreed between the parties from time to time, and failing agreement, as nominated by the mother in writing on the parenting app provided for in Order 16, and in relation to the same:
(a)The father shall be solely responsible for the costs associated with B Contact Centre or any other service; and
(b)Each of the parties shall do all acts and things required of them to comply with the guidelines of B Contact Centre or any other service.

7.Handover for the purposes of the father’s time spending shall take place outside the home of the father, between the mother and the supervisor.
8.The child’s time with the father in Order 5 shall be suspended if the father misses three (3) consecutive visits without any reasonable excuse.
9.The father may communicate with the child by forwarding to her letters and gifts on six (6) occasions each year.
10.For the purposes of the father’s provision of letters and gifts to the child:
(a)The mother shall in writing within 14 days (on the parenting app provided for in Order 16) provide the father with a nominated address for the receipt of such letters and gifts;
(b)The father shall send all letters and gifts to the address nominated by the mother;
(c)The mother shall do all such acts and things to ensure that the child receives such letters and gifts; and
(d)The mother shall be permitted to read any such letters to ensure that they do not contain any denigration of the mother or other members of her family, and in the event that they do, the mother is permitted to not pass on any such letters to the child.

Drug and alcohol testing
11.For a period of 12 months from these orders, the father shall submit to hair follicle drug analysis at the written request of the mother, and in relation to the same:
(a)Any request by the mother shall be made on the parenting app provided for in Order 16;
(b)The mother shall be permitted to request up to four (4) such tests;
(c)The father shall submit to such testing within 72 hours of any request being made;
(d)The cost of the testing shall be met solely by the father;
(e)The father shall provide the mother with written confirmation (on the parenting app provide for in Order 16) that he has submitted to testing forthwith upon doing so, with such written confirmation to include the details of the service provider utilised; and
(f)The father shall authorise any service provider to release any information and report about such testing directly to the mother and to the extent that it is necessary these orders shall stand as authority for that information and report to be released to the mother.

12.For a period of 12 months from these orders, the father is restrained from:
(a)Cutting his head hair to a length shorter than 4 centimetres or otherwise shaving or bleaching his hair; and/or
(b)Using any chemicals or treatments on his hair other than commercially available shampoo and/or conditioner.

13.In the event that the father returns a hair follicle test result that is positive for any illicit substances and/or the father does not comply with Orders 11 and 12, the father’s time spending with the child pursuant to Order 5 shall be suspended until such time that the father has produced two negative tests no less than one (1) month apart.
14.For a period of 12 months from these orders, the father shall submit to CDT testing at the written request of the mother, and in relation to the same:
(a)Any request by the mother shall be made on the parenting app provided for in Order 16;
(b)The mother shall be permitted to request up to four (4) such tests;
(c)The father shall submit to such testing within 24 hours of any request being made;
(d)The cost of the testing shall be met solely by the father;
(e)The father shall provide the mother with written confirmation (on the parenting app provide for in Order 16) that he has submitted to testing forthwith upon doing so, with such written confirmation to include the details of the service provider utilised; and
(f)The father shall authorise any service provider to release any information and report about such testing directly to the mother and to the extent that it is necessary these orders shall stand as authority for that information and report to be released to the mother.

Information about the child
15.The parties do all such things and sign all such documents as may be necessary to enable the father to directly obtain (and to the extent that it is necessary this order shall stand as authority):
(a)All reports, newsletters, photos and other information ordinarily provided to a parent from the child’s school; and
(b)Any information from the child’s treating medical practitioner, allied health care provider and/or specialist ordinarily provided to a parent.

Communication between the parents
16.The parties shall communicate with each other in relation to parenting arrangements for the child via a co-parenting app, and in relation to the same:
(a)The mother shall, within 14 days, from these orders nominate the parenting app that is to be used, with the same to be conveyed to the father in writing through his solicitors.
(b)Such communications are to be limited to the parenting arrangements for the child (including but not limited to those matters encompassed by these orders), unless otherwise initiated by the mother and/or in the case of an emergency; and
(c)Such communications are to be civil and non-derogatory.

Passport and international travel for the child
17.Pursuant to s 11 of the Australian Passports Act 2005 (Cth), the relevant Minister may issue passports for the child X born 2016 upon the application of the mother of the child without further consultation with the father, the mother having sole parental responsibility pursuant to Order 3 herein to make such application as are necessary.
18.The child’s passport be held by the mother.
19.The child be entitled to travel overseas with the mother and this order constitutes authority for her to do so.
20.The mother is authorised to obtain any travel visa for the child that is necessary to enable her to travel overseas with the child, and this order constitutes authority for her to do so.

Injunctions
21.For the personal protection of the mother and/or the child, the father is restrained and an injunction is granted restraining the father from consuming alcohol and/or illicit substances in the period 48 hours prior to and during any time the child is in his care;
22.For the personal protection of each of the parties and/or the child, the parties are restrained and an injunction is granted restraining each of them from abusing or denigrating the other of them or members of their respective family, to or in the presence of the child, or permitting any other person to so do.

Discharge of Independent Children’s Lawyer
23.The appointment of the Independent Children’s Lawyer be discharged, subject to any appeal.

Miscellaneous
24.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to assist to and comply with an order, are set out in the document entitled ‘Parenting orders–obligations, consequences and who can help’ a copy of which is annexed to these orders.
25.Pursuant to s 62B of the Family Law Act 1975, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
26.The proceedings otherwise be dismissed as finalised.

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

These are parenting proceedings relating to the parties’ seven year old child.
The central dispute between the parties revolves around the mother’s allegations that:
(a)The father perpetrated family violence against her, in the form of coercive and controlling behaviour; and, additionally,
(b)The father behaves erratically and poorly as a result of his excessive alcohol consumption and use of illicit drugs.
The final hearing was intended to encompass both parenting and financial proceedings. To the parties’ mutual credit they were able to resolve the financial proceedings on the first day of the trial, with orders made by consent.
So far as the parenting dispute between the parents is concerned, they are polarised. The mother’s primary position is that she have sole parental responsibility for the child and that the child live with her and spend no time with the father. Alternatively, if the Court were to order time spending between the father and the child, the mother asks that all such time spending be supervised by the professional supervision service utilised by the parties to date; B Contact Centre.
The father’s primary position is that his time spending with the child move away from professional supervision, and that he commence spending unsupervised time with the child with the intention that such time spending incrementally build to a school term time spending regime of overnight time each Wednesday from the conclusion of school until the commencement of school Thursday, together with time each alternate weekend from the conclusion of school Friday until 7.00 pm on Sunday. The father additionally seeks time spending during the school holidays and for special occasions.
In his formal application filed with the Court, the father did not seek any alternate arrangement for time spending. However, on the first day of the trial, at the prodding of the Court to consider what orders the father would seek if he was unsuccessful in his application, the father provided the Court with a minute of proposed orders (Exhibit “H1”). Those proposed orders provided two alternate positions in the event that the father was unsuccessful in his primary application. In the first instance the father proposed that he continue to spend supervised time with the child, with such supervision to be undertaken by his mother in the same regime proposed for unsupervised time spending. In the second alternative the father proposed ongoing supervision by B Contact Centre. The father did not articulate a regime of time spending if it were to continue to be professionally supervised; nor was he able to articulate the same during his oral evidence.
An Independent Children’s Lawyer (“ICL”) was appointed in the proceedings. The ICL advised the Court on the first day of the trial that subject to the evidence in the trial, the position of the ICL was that there be supervised time spending between the father and the child on 12 occasions each year with the same to continue to be professionally supervised by B Contact Centre. That remained the position of the ICL at the conclusion of the trial.
For the reasons that follow, orders shall be made that provide for the child to continue to live with the mother and for the mother to have sole parental responsibility. Orders shall also be made for the child to spend time with the father on one occasion each month (12 occasions each year), with the same to be professionally supervised.
BACKGROUND
The uncontroversial history of the parties and their relationship about which I am satisfied is as follows:
(a)The mother was born in 1985. At the time of trial she was 39 years of age. The mother is a qualified professional and she is presently employed earning approximately $260,000 per annum.
(b)The father was born in 1985. At the time of trial he was 37 years of age. He is presently unemployed and has been for some four and a half years. He, however, has qualifications as a professional and, until his redundancy in mid-2019, was employed and earning between approximately $110,000 to $200,000 per annum.
(c)The parties are of Country C ethnicity and cultural descent and they each identify strongly with their Country C culture, traditions and heritage. Whilst both are of the same faith, they have differing religious practices and beliefs.
(d)The parties married in 2016. Their marriage was arranged by their respective parents. The arrangement involved the parties and their respective parents meeting prior to the parties themselves consenting to the marriage.
(e)From the time of their marriage the parties lived with the father’s parents in their home at Suburb D.
(f)The mother discovered that she was pregnant early in the marriage.
(g)In the immediate lead up to the birth of the child, and some time in 2016, the mother moved back to the home of her parents to have the support of her mother in the lead up to the birth. The mother says this is the tradition in her culture. The father says this “tradition” was not one he was aware of. It is not necessary to resolve this dispute.
(h)The mother was admitted to hospital in 2016 due to high blood pressure. Her labour was induced the following morning.
(i)The child, X (“X”) was born in 2016. The father was present at the birth. Following her birth, the mother remained in hospital with X for approximately a week.
(j)Upon her discharge from hospital, the mother returned to the home of her parents with X. The father visited the mother and X at the home of the maternal grandparents, and also stayed overnight on occasions.
(k)The parties separated shortly thereafter on 25 February 2017.
(l)The mother and X lived with the maternal grandparents until mid-2017 when they moved into a rental property at Suburb E. In mid-2018 the mother purchased her own home at Suburb F and she has lived with X in that home since that time. In approximately mid-2021 the maternal grandparents moved in with the mother and X, and they continue to reside together in the Suburb F home.
(m)Throughout the post separation period the father has continued to live with the paternal grandparents at their Suburb D home.
I am satisfied from the evidence, that the parents of each of the parties played a significant role not only in arranging the marriage, but also in terms of their influence on the parties generally and particularly in relation to their respective cultural expectations, values and beliefs. In this context it is also apparent from the evidence that there was an expectation on the mother that she would largely be submissive to the requests and expectations of a range of people, including but not limited to her own parents, and in particular her father, the father (her husband), and the father’s parents. Examples in this regard include the arrangements for the marriage itself and the living arrangements at the Suburb D home.

So far as the parenting arrangements for X, it is uncontroversial that the parties have not lived together since her birth and that the mother has been X’s primary carer to date. The father does not seek to disrupt that arrangement.
It is also uncontroversial that in the post separation period and prior to the commencement of these proceedings in August 2019, the parties were able to negotiate the father’s time spending arrangements. Those arrangements included regular time spending each Wednesday and Friday between 8.00 am and 6.00 pm, together with time each alternate Saturday from 9.00 am until 6.00 pm. The parties are in dispute as to whether this time was to be supervised or largely in the presence of the paternal grandmother and whether that time was to occur in the home of the paternal grandparents or not. It is not necessary to resolve these disputes. It is uncontroversial that these amicable arrangements came to a halt in August 2019.
Events came to a head in August 2019 when the mother became concerned that the paternal grandmother was not present during the father’s time spending and because she was unclear where that time spending was taking place. The parties agree that the mother raised these issues with the father at handover at the intended commencement of the father’s time with X. However, instead of there being a respectful dialogue between the parties, a verbal altercation ensued. Each of the parents identify that they telephoned the police, who thereafter attended the mother’s home. The mother’s evidence, which I accept, is that the father reacted badly to her reasonable enquiries about where and with whom X’s time spending was taking place. I accept that the father told the mother that it was none of her business, and that he shouted at the mother and called her a “bitch”. It is against the backdrop of these events, when coupled with the mother’s concerns about the father’s alcohol and illicit drug use and the father’s perpetration of family violence against her up to that point in time, that the mother says she did not feel comfortable in facilitating time spending between the father and X that day or moving forward.
Following this altercation, the father did not spend time with the X between August 2019 and 5 September 2019. During this time and on 22 August 2019 the mother commenced these proceedings. In addition, during this period, the parties, with the assistance of their respective solicitors were able to agree that the father would spend professionally supervised time with X each Friday between 9.30 am and 12.30 pm, with B Contact Centre being utilised for that purpose. It is the father’s position that he agreed to his time spending with X being professionally supervised so that he could continue to spend time with X, despite his view that such supervision was not necessary.
THE LITIGATION
These proceedings were commenced by the mother on 22 August 2019 following the verbal altercation that had occurred at handover in August 2019.
Following the commencement of these proceedings and in late 2019 there was a significant incident of family violence perpetrated by the father against the mother which resulted in the father consenting to an Apprehended Domestic Violence Order (“ADVO”) and pleading guilty to a charge in late 2019. This incident will be discussed in more detail later in these reasons.
At the first hearing in the proceedings on 30 October 2019 conducted by a Senior Judicial Registrar the parties were able to agree a raft of parenting orders. Those orders included an order that the parties undergo hair follicle testing for the presence of illicit substances within seven days.
Thereafter and on 4 February 2020, parenting arrangements were determined by a judge of the Federal Circuit Court of Australia (as it then was), following a contested hearing. The orders made on that occasion included orders:
(a)Appointing an ICL;
(b)For X to live with the mother;
(c)For X to spend time with the father from 9.30 am until 12.30 pm each Friday, with such time to be professionally supervised by B Contact Centre, with the father to be responsible for those costs;
(d)The parties to sign documents necessary to obtain a passport for X and thereafter the mother to hold that passport;
(e)X to be permitted to travel to both New Zealand and another country with the mother, upon the mother giving notice to the father of such travel;
(f)The father to submit to both further hair follicle testing for illicit substances, together with carbohydrate deficient transferrin (“CDT”) testing for historical ingestion of alcohol, within 48 hours of a request from the ICL that he do so and no more than each three months;
(g)In addition, the father to submit to further hair follicle testing for the presence of illicit substances within 28 days of the order;
(h)Restraining the parties from denigrating each other in the presence or hearing of X; and
(i)For the parties to each complete a “Parenting after Separation” course.
The orders for professionally supervised time spending between the father and X, first made on 4 February 2020, have in essence continued to date; albeit that as X has developed and transitioned to school, the time spending has moved to take place on a weekend.
Unfortunately, however, on any objective view, the costs of this professional supervision is high; presently in the vicinity of $700 per occasion. It is the father’s assertion that the total cost that he has expended on professional supervision between September 2019 and January 2024 is an amount of approximately $45,000. The mother did not challenge this evidence and I accept it.
It is the father’s position that in circumstances where he is unemployed, the cost of this professional supervision has been prohibitive and it has led to erratic and sporadic periods of time spending. With reference to the schedule of visits record, I am satisfied that from about mid-2020 the weekly supervised time spending began taking place on roughly a fortnightly basis (Exhibit “W2”). Thereafter, in approximately early to mid-2021, the visits moved to a monthly basis. Additionally, there were stretches of time where there were missed visits and or no time spending at all. In the lead up to the trial the father had not spent time with X in the month of December 2023, and while there was a period of time spending in January 2024 prior to the commencement of the school year, there had otherwise been no time spending since that time; a period of some four months.
THE LEGAL FRAMEWORK
Part VII of the Family Law Act 1975 (Cth) (“the Act”) is where the legislative provisions concerning children can be found. The central focus underpinning the legislation is that the Court “ensure that the best interests of children are met, including by ensuring their safety; and to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989” (s 60B).
To that end, at all times when the Court is considering making any particular parenting order, the Court must make parenting orders which “regard the best interest of the child as the paramount consideration” (s 60CA).
A parenting order is defined in s 64B of the Act as one which includes:
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for the child;
(d)if 2 or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that parental responsibility;
(e)the communication a child is to have with another person or persons;
(f)maintenance of a child;
(g)the steps to be taken before an application is made to court for a variation of the order…;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
In determining what is in a child’s best interest, the Court is to have regard to six separate factors identified in s 60CC(2) of the Act under the heading “General Considerations” as follows:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
In addition, and when considering arrangements that would promote the safety of the child and each person who has the care of the child (whether or not that person has parental responsibility for the child), the Court must consider the following matters (s 60CC(2A)):
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
Family Violence
Family Violence is defined in s 4AB of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a)      an assault; or
(b)      a sexual assault or other sexually abusive behaviour; or
(c)       stalking; or
(d)       repeated derogatory taunts; or
(e)       intentionally damaging or destroying property; or
(f)       intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
(Emphasis in original)
Family violence constituted by coercive and controlling behaviour has been the subject of consideration and discussion by McClelland DCJ and Campton J in Carter & Wilson [2023] FedCFamC1A 9 in the following terms, citing with approval the decision of Judge Beckhouse in Ramzi & Moussa [2022] FedCFamC2F 1473:
12.There have been a number of authorities, both in Australia and in comparable jurisdictions, in which the words “coercive” and “control” have been considered both separately and in combination. For example, in Illgen & Yike [2018] FamCA 17, after examining the ordinary and natural meaning of the words separately, Gill J noted that while, in s 4AB, behaviour that ‘coerces or controls’ is expressed disjunctively, the two concepts are closely related, stating at [125]:
Together they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command.
13.To similar effect, in Ramzi & Moussa [2022] FedCFamC2F 1473, after referring to the decision of Gill J, Judge Beckhouse stated at [45] that, in the context of conduct that was not inherently violent or threatening, “[g]enerally, coercive control is understood as a course of conduct aimed at dominating and controlling another person, including a family member” (emphasis added).
14.There is much to commend in her Honour’s succinct analysis and, in that respect, we observe that a similar approach has been taken in applying the ordinary and natural meaning of the words in comparable jurisdictions (see for example the Canadian cases of Newfoundland and Labrador (Manager of Child, Youth & Family Services) v. A.C. 2012 NLTD(F) 7; R. v. Parsons, [2020] N.J. No. 232 and the English case of F, M v A & B (Acting through their Children’s Guardian, Ruth Alexander) [2022] EWFC 124 at [10], referring to F v M [2021] EWFC 4).
15.In the absence of either the primary judge or ourselves having the benefit of argument concerning the potential relevance and applicability of those authorities to this appeal, we do not intend to give a comprehensive definition of what constitutes behaviour by a person that is other than violent or threatening, but that “coerces or controls”. What is clear is that the determination of what constitutes behaviour “that coerces or controls” must be considered in the context in which the conduct occurred (Helbig & Rowe and Ors [2016] FamCAFC 117 at [91]).
(Footnotes omitted)
The assessment of risk and unacceptable risk
As earlier identified, the mother’s case is that the father presents an “unacceptable risk of harm”.
As identified by the Full Court in Deiter & Deiter [2011] FamCAFC 82 at [61] (“Deiter”):
The assessment of risk is one of the many burdens placed on family law decision makers. 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…
The question of “unacceptable risk” was comprehensively considered by the Full Court in Isles & Nelissen (2022) FLC 94-092 (“Isles”). There the Full Court said:
83.Though both are evidence-based, the primary judge correctly approached the two separate questions without conflation: on the one hand, whether or not allegations of abuse are proven on the balance of probabilities; and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the frank allegations of abuse.
84.In this instance, the primary judge inferred the existence of an unacceptable risk of harm to the children from a combination of facts and circumstances, including: the elder child’s plausible but unproven allegations of sexual abuse by the father; the evidence of the father’s sexual interest in other adolescents; and evidence of the father’s interest in child exploitation material.
85.The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment (Edwards v Noble (1971) 125 CLR 296 at 304), though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result (Norbis v Norbis (1986) 161 CLR 513 at 518). The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.
86.We have already acknowledged how risks of harm are not susceptible of empirical proof, but a mathematical hypothetical will nevertheless illustrate how findings of “unacceptable risk” cannot be measured by the civil standard of proof. Imagine a child will be minded by one of three randomly allocated carers. Assume one of the carers would sexually abuse the child, but the other two would not, meaning the child stands a 33.33 per cent chance of being sexually abused if left in care. No sensible adult would take the risk of leaving the child in care because, even though the prospect of sexual abuse is only possible but not probable, the risk is still too high to tolerate. In other words, it is unacceptable. If parents (and courts) were to instead only react to risks which are probabilities then, in that example, the child would still be left in care unless shown he or she was susceptible to sexual abuse by two of the three carers and the risk was then rated at 66.66 per cent.
(Emphasis in original)
It is therefore clear that there are two stages involved in assessing risk and understanding whether any assessed risk is unacceptable:
(a)Firstly, the fact-finding exercise relating to allegations that have been made; and
(b)Secondly, the predictive exercise which involves the assessment of the evidence and circumstances, including but not limited to any findings/lack of findings/inability to make findings.
So far as the fact-finding aspect is concerned, as the High Court identified in M v M (1988) 166 CLR 69 (at 76-78):
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence.
…
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw.
…
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A.), “an element of risk” or “an appreciable risk” (Marriage of M.), “a real possibility” (B. v. B. (Access)), a “real risk” (Leveque v. Leveque), and an “unacceptable risk”: In re G. (A minor)). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
(Footnotes omitted)
Standard of Proof

The burden of proof in civil proceedings such as these, is that found in s 140 of the Evidence Act 1995 (Cth); namely “the balance of probabilities”. That section provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.
I have assessed the evidence in these proceedings and made findings throughout these reasons by applying this standard of proof.
THE EVIDENCE
Each of the parents filed a trial affidavit in the proceedings and they each gave oral evidence during the trial.
The filed material before the Court was as follows:
(a)A Family Report prepared by Dr G dated 28 February 2022 and annexed to an affidavit of the ICL filed on 8 August 2023;
(b)The father’s Amended Response for Final Orders filed 21 August 2023;
(c)The mother’s Amended Application for Final Orders filed 8 September 2023;
(d)The mother’s Trial affidavit filed 7 March 2024;
(e)The mother’s Financial Statement filed 7 March 2024;
(f)An affidavit of the maternal grandmother, Ms H filed 7 March 2024;
(g)An affidavit of the maternal grandfather Mr J filed 8 March 2024;
(h)The trial affidavit of the father filed 16 April 2024;
(i)The Financial Statement of the father filed 16 April 2024;
(j)A further affidavit of the mother filed 8 May 2024;
(k)The Outline of Case for the mother filed 8 May 2024;
(l)The Outline of Case for the father filed 10 May 2024;
(m)The Cost Notice of the father filed 10 May 2024;
(n)The Outline of Case for the ICL filed 10 May 2024;
(o)The Cost Notice of the mother filed 13 May 2024;
(p)An affidavit from the father’s treating psychologist Ms K filed 11 May 2024, which was received over the objection of the mother; and
(q)An affidavit from the paternal grandmother, Ms L filed on the first day of trial, 13 May 2024, which was also received over the objection of the mother.
In addition to the oral evidence of the parents, the Court had the benefit of oral evidence from each of the maternal grandparents and the paternal grandmother, together with experts.
I have had regard to the totality of the evidence placed before the Court during the trial together with the submissions made by counsel. Throughout these reasons I have identified various portions of the evidence which I considered to be significant in my deliberations. That does not however mean that I have ignored or overlooked that evidence which I have not mentioned.
The Family Report
A Family Report was prepared in the proceedings by Dr G on 28 February 2022 (“the Family Report”). The report was received into evidence annexed to an affidavit of the ICL, Mr Naidovski filed 8 August 2023.
In addition to the observations made by, and the opinion proffered by, Dr G in the Family Report, during the course of the final hearing, and at the request of the Court, the parties made arrangements for X to attend upon Dr G for an appointment. Dr G’s observations from that appointment were conveyed during the course of her oral evidence.
Dr G was cross examined by counsel for each of the parties and the ICL.
The expertise of Dr G was not challenged, nor was the methodology of her assessment process. Equally, the observations recorded by Dr G in her report and conveyed in her oral evidence, were not disputed.
I record from the outset that having considered Dr G’s evidence together with the totality of the evidence before the Court, Dr G’s opinions are accepted, and for the most part her recommendations are accepted.
In relation to the mother, in the Family Report Dr G recorded the following opinions:
(a)X was at no risk of physical or psychological harm in the care of the mother.
(b)The mother was “kind, appropriate and structured with [X]”.
(c)The mother’s capacity to meet X’s needs was “exemplary” and the maternal grandparents also had “good capacity” to do so.
(d)The mother has been “particularly vigilant about [X’s] well-being in the father’s household” and the mother has some “hypervigilance” and that she had “disproportionately assessed the level of risk that [X] is exposed to in the father’s household”.
(e)The mother has “minimised the long-term effect on [X] if she were to have no contact with the paternal family”.
(f)The mother is “constrained in her capacity to facilitate and encourage [X’s] close and continuing relationship with the father” due to the mother’s own experience with the father.
(g)The mother presents as “fearful” of the father and “very concerned about him continuing to threaten and intimidate her” and as such, the mother would be unable to properly communicate with and make decisions with the father in a manner that would assist X.
In relation to the father, in the Family Report Dr G recorded the following opinions:
(a)Concerns were held for the “father’s capacity for emotional regulation and his previous history of minimising his own behaviour”.
(b)When considering the “aggregate” of the father’s behaviour, concerns were held “that the father may have some deficits with emotional regulation and that he is unable or unwilling to accept responsibility for his own behaviour”.
(c)The “father does not react well to being challenged, and when challenged, may use manipulation or lash out and use threat to punish another person”.
(d)The father “attempted to excuse his abusive and threatening behaviour by referring to the mother”.
(e)Text messages sent by the father to the mother “reflect an attitude of control, manipulation, and cruelty”.
(f)The father when challenged about specific incidents was “defensive” and his responses “entirely deflected from the issue of his own behaviour, and focused blame on the other person”.
(g)While X appeared to be “very pleased to be seeing and spending time with her father”, the father was “very passive when it came to interacting with [X]” and “relatively passive” in terms of meeting X’s needs.
(h)There were concerns that the paternal family’s “behaviours and attitudes will ultimately cause [X] distress and anxiety and may, in time, significantly undermine her level of comfort and emotional connection to her paternal family”.
(i)There was “no indication that the father or the paternal family have ever failed to care for [X] properly or safely”.
(j)The father has “extremely poor capacity” to facilitate and encourage X’s relationship with the mother.
(k)The father has raised “spurious concerns” with respect to the mother to “evoke fear” and in an attempt to manipulate and/or blackmail the mother.
(l)The content of the text messages sent to the maternal grandfather, by the father, and the “disturbing imagery and offensive terms” are “reflective of an underlying attitude of disrespect for women and retaliation for the mother raising the issues of the father’s behaviour”.
(m)The father has limited insight into the seriousness of his behaviour and was “not remorseful about his behaviour towards the mother, aside from regretting the consequences to him”.
(n)The father has no intention of supporting X’s relationship with the mother and has engaged in acts of “retaliation, coercion and intimidation” towards the mother.
(o)The father does not appear to have accepted any responsibility for consuming an illicit drug and does not appear to have “any insight into the effect on his mood, behaviour or interpersonal relationships”.
In addition, during her oral evidence Dr G commented that when she read the father’s trial affidavit, the contents did not strike her as evidencing that the father had changed his behavioural and thought patterns from those that she had observed when preparing her written report and that she did not consider that he had developed insight and awareness of the harmful nature of his behaviours and the impact on the mother.
In summary Dr G’s opinion so far as future time spending between X and her father are concerned were:
(a)X derives value from the relationship that she has developed with the father, and wider paternal family (grandparents, aunts, uncles and particularly her cousins).
(b)The harm to X in depriving her of a relationship with the father and her wider paternal family would be significant and is not supported.
(c)Whilst there are significant risk factors associated with the father (particularly concerning coercive and controlling family violence) and the environment of the paternal family (particularly concerning denigration of the mother and the maternal family), the mother is able to counteract those risk factors, provided however that the time X spends with the father is not excessive.
(d)Time spending between X and the father that occurs more frequently than once each month would not be appropriate for X. Equally, time spending should not be any less than bi-monthly.
(e)Overnight time spending between X and the father is not supported.
(f)Long term professional supervision is problematic, particularly if it results in there being uncertain and sporadic periods of time spending between X and the father.
(g)Whilst not without its risks (particularly the risk of X being exposed to the negative views held by members of the paternal family towards the mother and the maternal family), time spending in the home of the paternal grandparents, and supervised by the paternal grandmother is supported.
For all of the reasons that follow, the only deviation from Dr G’s recommendations is in the identity of the person to supervise the father’s time spending.
The evidence of each of the parents
Each of the parents presented as softly spoken, deferential and respectful in the manner in which they gave their oral evidence.
I am satisfied that each of the parents attempted to give their evidence in an open fashion; each of them making concessions where necessary.
I have no difficulty in accepting the mother to be an accurate historian. I am satisfied that her credit is not in issue.
The evidence of the father however presented a conundrum. This is because when probed he readily made admissions as to his poor behaviour, often expressing that with hindsight he saw the error of his behaviour, describing it variously as inappropriate, threatening, harassing, intimidating, and concerning from the mother’s perspective. In addition, when probed the father at times was able to acknowledge the impact of his poor behaviours upon the mother, including that she would have felt scared.
Concessions of this nature are often commendable and can be indicative of contrition, remorse and insight. However, what was troubling about the father’s evidence is that a month earlier, the father swore his trial affidavit in which he seemingly had no such contrition, remorse or insight. This was most obvious from the following portions of the father’s trial affidavit filed on 16 April 2024, drawn to the attention of the father and the Court by the mother’s senior counsel during the father’s oral evidence:
255.I have been deeply affected about the things said about me in the context of family violence. The allegations made by [Ms Galvin] are strongly denied. My behaviour that led to the Local Court charges goes against my character and nature.
256.It is confusing to me why aspects of my behaviour were perceived as me perpetrating family violence when [Ms Galvin] has behaved in the same way, for example…
Leaving aside that the father’s allegations about the mother’s alleged perpetration of family violence (whatever they might be) were not put to the mother as part of the father’s case at trial, these portions of the father’s trial affidavit left no doubt that at least at that stage the father continued to fail to understand that he had behaved poorly and/or that it had a coercive and controlling effect upon the mother.
As a result, during the trial, the Court was left with an overarching question as to whether the concessions made by the father which might suggest the father has remorse, contrition and insight, were genuine.
Whilst I am satisfied that the father’s remorse was genuine (particularly because of the impact it has had on his relationship with X, and in turn X’s ability to be immersed within the paternal family), I remain concerned that the father is unable to comprehend just how damaging his behaviour has been to the mother, her sense of security and particularly her security as X’s mother and primary carer, which combined have the potential to negatively impact X as she matures.
I have come to this conclusion in the knowledge that the father has undertaken psychological therapy and completed various courses; namely an online course with M Family Services and a men’s behavioural change course.
In light of the services the father has accessed, I accept the father’s self-assessment that he is a “work in progress”. I do not, however, accept that in the month between filing his trial affidavit and the giving of oral evidence during the trial, the father suddenly developed a level of contrition and insight that would satisfy the Court that his coercive and controlling behaviour is no longer a risk factor to which the Court should have regard.
I am fortified in coming to this conclusion when regard is had to the oral evidence of Dr G. In particular, during her oral evidence Dr G was asked by the Court to comment on my observations of the presentation of the father during his oral evidence and the ready concessions made by him. Dr G proffered that a good indicator of whether the father, or indeed any perpetrator of family violence, presents a risk of recidivism is whether they are able to offer spontaneous concessions and insight about the impact of their behaviour on their victims and others. Having reflected on the oral evidence given by the father, I do not consider that he was able to consistently offer such spontaneous concessions and insight. To the contrary, on reflection, the father had the appearance of making rote concessions each and every time he was confronted with his problematic behaviours, and there was no consistent spontaneous acknowledgment or meaningful spontaneous engagement with why it is that he now saw that his behaviours were so inappropriate, nor as to the deleterious impact of those behaviours upon the mother and X.
In light of all of these matters (and when regard is had to the discussion that follows as to family violence), I have significant concerns that there is a risk of the father perpetrating further family violence against the mother in the future, particularly in the form of coercive and controlling behaviour.
As identified in the reasons that follow, I am also not in a position to accept various aspects of the father’s evidence, particularly so far as it relates to his illicit drug use and alcohol consumption.
The evidence of the grandparents.
The paternal grandmother and each of the maternal grandparents swore an affidavit and were cross examined during the trial.
From their evidence I was left with no doubt that:
(a)The paternal grandmother loves the father deeply;
(b)The maternal grandparents love the mother deeply; and
(c)They each love X deeply.
I am also satisfied that that paternal grandmother is keen to ensure that X continues to engage and be immersed within the wider paternal family.
The paternal grandmother’s evidence, however, also presented difficulties; particularly in trying to understand the extent to which she might be able to act protectively if she were to supervise time spending between the father and X. This is because she is unaware with any level of specificity of the father’s poor behaviours directed to the mother, aside from understanding in very broad terms the events of late 2019 and that the father had returned illicit drug positive hair follicle test results.
This was somewhat surprising, because at the time of the appointments with Dr G for the family report, Dr G commented and concluded:
My concerns have been amplified listening to the paternal grandmother. Her attitude was that her son was a passive, gentle and kind man who would never hurt or threaten another person. The paternal grandmother said that she trusted her son implicitly and that the difficulties had been caused by [Ms Galvin] “going on and on”, refusing to accept her son’s apology and by the maternal grandmother instigating further legal [defamation] proceedings. She did acknowledge that she had not read the text messages her son had sent [Ms Galvin] or the maternal grandfather.
I accept Dr G’s opinion and her assessment of the paternal grandmother. I consider that the paternal grandmother presented in exactly the same manner during the trial. Whilst the paternal grandmother identified during her oral evidence that she had asked the father to tell her about the text messages that he had sent in late 2019, she still had not seen them. This is somewhat surprising given the father pleaded guilty in relation to the criminal charge stemming from this conduct. It is also surprising because this incident was a focal point throughout these proceedings, and was an obvious reason as to why the father’s time with X was supervised.
Having heard the evidence of the paternal grandmother, I am satisfied that she would act protectively of X’s physical safety. I do not however have the same confidence about the paternal grandmother’s ability to ensure X’s psychological and emotional wellbeing and safety. In coming to this conclusion, I am of the view that this is not because the paternal grandmother would knowingly subject X to psychological or emotional harm, but rather, that she is unaware and therefore unable to protect X from the more subtle forms of family violence which includes the coercive and controlling behaviour that I am satisfied the father has perpetrated and is at ongoing risk of perpetrating.
It is for this reason that I do not consider the paternal grandmother to be an appropriate person to supervise the father’s time.
The evidence of the father’s Psychologist
In the post separation period, the father has sought the assistance of therapy from a range of psychologists who have practiced from N Psychology.
That therapy commenced in May 2022 with Ms O and continued for approximately six sessions. The sessions with Ms O however ceased in late 2022 when she retired. Thereafter the father had two sessions with Ms P in late 2023 (see Exhibit “W17”).
In the lead up to the trial, and after a break of approximately 12 months, in February 2024 the father commenced therapy with Ms K, attending approximately five sessions in the lead up to trial.
The Court had the benefit of a report prepared by Ms K in early May 2024 after she had held four sessions with the father.
In addition, at the commencement of the trial the father provided an authority to N Psychology for his entire file held by them to be released, and this file (likely incomplete) was received in evidence (Exhibit “W17”).
Whilst it is commendable that the father has engaged with therapy, this must be tempered by certain findings I am able to make, including:
(a)On 15 May 2022 the father was ordered to engage with Ms O and obtain a report after three months of treatment, however he failed to comply with this order.
(b)It does not appear that any of the father’s therapists have read the report of Dr G which the father was directed to provide to the practice pursuant to court orders made 15 May 2022 with the specific purpose of his therapy being directed to working on the concerns raised in Dr G’s report.
(c)The father has not identified or acknowledged the extent of his poor behaviour with any of his therapists, and in particular his coercive and controlling behaviour that took place during the marriage and prior to the late 2019 text messages, together with his poor behaviour throughout the post separation period (discussed throughout these reasons).

As a result of these matters, I do not consider that I can place any weight, nor accept, Ms K’s opinion that the father has made “concerted efforts to learn and grow from this experience, engaging in therapy and attending courses to enhance his emotional regulation and behaviour management skills”.
Instead, I am satisfied that the focus of the father’s therapy appears to be his management of the stressors created by these proceedings and the loss of his relationship with X (within the context of a diagnosis of “Adjustment Disorder with mixed anxiety and depressed mood”), as identified by Ms K throughout her report.
To that end, the work undertaken to date by the father with Ms K is of little value in addressing the various risk factors and safety concerns related to the father.
RISK FACTORS IDENTIFIED BY THE MOTHER
As earlier identified, central to the mother’s case, and her insistence in August/September 2019 and thereafter that the father’s time spending with X be supervised, are her allegations of family violence perpetrated by the father against her in the form of coercive and controlling behaviour, together with her allegations that the father has an unacknowledged illicit drug and alcohol use/abuse problem. All of these factors from the mother’s perspective were present during the marriage and were amongst the reasons that she enquired of the father where and with whom his time spending with X was taking place when the situation came to a head in August 2019.
It is the mother’s position that these concerns have continued in the post separation period, and that the father has not taken any meaningful nor purposeful steps to satisfy the Court that the concerns she raises are not warranted and/or no longer warranted.
It is for these cumulative reasons that the mother argues that the father presents an unacceptable risk of harm to the child; predominately in the form of emotional and psychological harm. The mother submits that if there is to be time spending between X and the father, the only way that X can be kept safe is for that time spending to be supervised.
Coercive and Controlling behaviour
From the mother’s perspective, a stark example of the father’s coercive and controlling behaviour were the events which took place in the post separation period in the early hours of the morning in late 2019 shortly after the commencement of these proceedings. On this occasion, the father admits that he consumed alcohol to excess and that in a fit of anger over his disappointment that he did not see X for Father’s Day (on Sunday 1 September 2019), he sent the mother a series of inappropriate text messages; 34 to be precise, between the hours of 4.40 am and 6.33 am.
During his oral evidence the father conceded that the messages were threatening and intimidating. I am satisfied that this was the case, particularly taking into account the insulting and derogatory tone of the messages. I am equally satisfied that the messages were designed to control and coerce the mother into submitting to the father’s wishes and demands regarding X’s time spending with him. The messages included the father (Exhibit “W11”):
(a)asserting that other people had “naked photos” of the parties;
(b)asserting that the mother had committed fraud;
(c)calling the mother, her father and her whole family “a thief [sic]”;
(d)calling the maternal grandfather a “[…] dog”, “thief”, “scum” and “poor excuse”;
(e)telling the mother to “bow to me bitch”;
(f)calling the mother a “thief child abuser”;
(g)threatening the mother’s ability to work;
(h)threatening the mother that she would be “naked on the street”;
(i)calling the mother and the maternal grandparents “bush pigs”;
(j)threatening that the maternal grandmother would be “naked selling her fat bush pig ass on the streets”;
(k)calling the mother an “ugly dogg [sic]”;
(l)threatening the mother with the words “don’t ever do anything to harm” “my daughter”; and
(m)threatening he was “coming” for X.
It is also conceded by the father that across the same period of time he sent text messages of a similar nature to the maternal grandfather. Again, I am satisfied that these messages were also designed to threaten and intimidate the mother and ultimately coerce and control her into meeting the father’s wishes and demands with respect to X.
I am fortified in coming to the conclusion that the events of late 2019 were exemplary of the father’s controlling and coercive behaviour directed to the mother, because Dr G also formed the view that the events in late 2019 were an episode of coercive and controlling behaviour perpetrated by the father towards the mother. This is an opinion which I accept.
I also accept the mother’s evidence that she felt scared, threatened and intimidated when she received these text messages from the father and became aware that similar messages had been sent to her father.
It is uncontroversial that the receipt of the text messages resulted in a number of events. The mother immediately made a report to the police. Thereafter the father was arrested and charged with an offence and a provisional ADVO was made in late 2019 (Exhibit “ICL2”). At the first hearing in the local court relating to the charge and the ADVO in late 2019, the father entered a plea of guilty to the charge and consented to a Final ADVO for a period of 2 years. The Final ADVO expired in late 2021. The following month in 2019, the father was sentenced in relation to the charge and a Community Correction Order was made commencing that same day (Exhibits “W16” and “ICL2”). This however was reduced as a result of an appeal against the sentence which reduced the sentence to a Conditional Release Order, and no conviction was recorded (Father’s affidavit filed 16 April 2024, paragraph 131).
Until the time of his oral evidence during the trial, the father asserted that the text messages he sent to the mother and the maternal grandfather in late 2019 were out of character and sent in anger and in the heat of the moment.
Indeed, the mother (who gave her evidence first during the trial) was cross examined at some length about the parties’ written communications, presumably with the aim of establishing a more complete picture of the nature of parties’ relationship, so as to illustrate that the messages sent in late 2019 were isolated and outside the father’s usual character.
I accept that, when regard is had to a longitudinal picture of the text communications between the parties, there are numerous occasions were the parties communicated in a loving and caring fashion towards each other, and that at other times there were exchanges which might best be described as more mundane exchanges between a couple, for example confirming work and commute arrangements.
However, during cross examination of the father by the mother’s senior counsel, and when confronted with examples of his poor behaviour prior to late 2019, the father conceded that the inappropriate messages in late 2019 were not isolated examples of his intimidatory, threatening and aggressive behaviour towards the mother. Significantly, the father acknowledged that he exhibited this type of coercive and controlling behaviour towards the mother in their text exchanges, including those received as exhibits (Exhibits “W3”, “W4”’, “W5”, “W6” and “W7”) which span the post separation period between 6 January 2017 to 16 May 2019. I agree that these text exchanges are examples of the poor manner in which the father at times communicated with the mother, and that they were indeed examples of his coercive and controlling behaviour towards her.
Having regard to the totality of the evidence, I am satisfied that the nature of the parties’ relationship was cyclical. There were periods of time where the parties were loving and caring towards each other, together with periods in the post separation period in which they communicated appropriately and effectively. There were however also periods of time (particularly in the post separation period), where the father behaved in ways towards the mother which were designed to coerce and control her by use of threats, intimidation, derogatory language, humiliation and aggression. In that context I am satisfied that the mere existence of periods of time in which the parties were appropriate, loving and caring towards each other, does not serve to erase and/or counteract the effect of the occasions when the father behaved in an intimidatory and threatening fashion towards the mother. Moreover, I am satisfied that it is this very cycle of behaviour which amplified the impact of the father’s coercion and control upon the mother.
There are two further incidents of coercive and controlling behaviour perpetrated by the father, which I consider to be particularly calculated, manipulative and egregious.
The father’s complaint to the professional regulatory body
The first relates to allegations of the mother’s unprofessional conduct made by the father to the relevant professional regulatory body in early 2020 (Exhibit “W25”).
The father acknowledged in his oral evidence that the allegations made in this complaint had no proper foundation.
Moreover, the mother was unaware that the father had made this complaint, until after the complaint had been dismissed.
What was most egregious about this conduct on the part of the father is that which I am able to infer as follows:
(a)The father sought to tarnish the mother’s professional reputation;
(b)The father sought to affect the mother’s ability to retain a qualification; and
(c)The father sought to affect the mother’s ability to earn an income.
During his oral evidence, the father acknowledged the inappropriateness of his actions. However, the father was not able to spontaneously identify the serious nature of the consequences of the complaint if it had resulted in an adverse outcome for the mother. In particular, the father did not identify, until probed, that a potential outcome for the mother would have been that she would have lost her ability to earn an income as a professional and that this would have impacted her ability to financially support X. This was all the more troubling when regard is had to the uncontroversial fact that the father has paid nominal child support in the post separation period due to his unemployment.
In my view, this complaint appears to be an attempt by the father to make good his threat to the mother in his texts sent in late 2019 (referred to at [84(g)] and [84(h)]), and evidences the lengths the father was prepared to go to, to inflict harm upon the mother.
Moreover, at the time that this groundless allegation was made, the father was the subject of the ADVO and sentence imposed following his guilty plea. I consider that had the father acknowledged at the time that he had made this baseless allegation, he would have likely been in breach of both the ADVO and the terms of his sentence.
The father’s messages with his cousin’s former wife, Ms Q
The second occasion in which the father behaved poorly, and egregiously so, was in a series of written exchanges with his cousin’s former wife Ms Q on Facebook Messenger across March 2020 and July 2021.
On any objective view, the father’s written communications to Ms Q are appalling. The messages contain falsehoods, including an assertion that the text messages that he had sent the mother in late 2019 were not threatening or violent, and that the mother and her family had stolen money from him and his parents. Additionally, throughout the messages, the father refers to the mother in a derogatory fashion, calling her variously a “sneaky bitch”, “liar”, “master manipulator” and his “enemy”. Of additional concern the father also told Ms Q in the messages, “I love my daughter with all my Fkn heart I would do anything for her I would die for her if that’s what was needed” (emphasis added).
During the final hearing, Dr G was shown a copy of these messages for the first time. Her reaction when reading the messages was visceral and overt; drawing comment from the bench.
Dr G commented that the messages demonstrated “disgusting behaviour, it’s exactly the sort of coercive, violent, aggressive, threatening actions of a person who has a disdain for ordinary civility” (Transcript 21 May 2024, p. 30 lines 44-46). This is an opinion which I accept.
I am satisfied that these messages were yet another example of the father’s coercive and controlling behaviour towards the mother, because I consider that I am able to infer that the messages were designed to:
(a)Negatively influence third parties and mutual friends against the mother; and
(b)Isolate Ms Q and Mr R from socialising with the mother and/or X.
Conclusion as to family violence
In light of the incidences that I have discussed, I am satisfied that the father has perpetrated family violence against the mother. That family violence has included the father’s attempts to isolate the mother from family and friends, overt denigration of the mother both directly to her but also to her family members and associates, efforts to damage the mother’s financial security and the use of threats and intimidation.
I accept the mother’s evidence that all of the conduct perpetrated by the father towards her has had the effect of leaving her feeling fearful, harassed, threatened and intimidated.
I am also satisfied that the father’s behaviours were focussed at placing maximum pressure on the mother so that she would relent to his demands generally, and in the post separation period regarding the parenting arrangements for X. I am satisfied that in those circumstances the father’s behaviour amounts to coercive and controlling behaviour.
As I have earlier identified, I am satisfied that there is an appreciable risk that the father will continue to commit acts of family violence towards the mother in the future.
Illicit drugs and Alcohol
Turning to the mother’s concerns about the father’s use of alcohol and illicit substances. These issues are somewhat less easy to grasp. In part this is because the father denies that there are any concerns in this regard. Again, however despite these denials, during the course of his oral evidence the father admitted that in the period prior to the commencement of these proceedings:
(a)He used marijuana on social occasions including at parties and barbeques;
(b)He consumed an illicit drug on a number of social occasions (for the first time in 2013/2014, at his own bucks party, at a work event in either 2016 or 2017, on an occasion with the mother, and at other social events which he was unable to identify); and
(c)That at the time he sent the text messages to the mother and maternal grandfather in late 2019, he was affected by alcohol.
In his trial affidavit the father attempted to deflect attention from his use of illicit substances and alcohol, by directing attention to the mother and asserting:
(a)The parties had consumed marijuana together overseas during their honeymoon; something the mother admits but says she is ashamed of having done, and which she asserts was the only occasion that she has used illicit substances; and
(b)The mother would drink alcohol freely in the absence of her parents, but that her behaviour would change and she would abstain when they were present; and
(c)The mother had used an illicit drug at a Christmas party in 2015 and at a wedding in 2016.
Despite these allegations on the father’s part, it was not his case at trial that the mother has any alcohol or illicit drug difficulties nor that she presented any risk to the child in this regard. I accordingly am satisfied that at least in relation to the events during the honeymoon, the father chose to weaponise what had occurred to detract attention from himself and his own conduct, and to further embarrass and intimidate the mother and that this is yet another example of the father’s deployment of coercive and controlling behaviour.
I further consider that it is open to me to infer, and I do so, that the father raised these complaints to distract the court’s attention from his failure to comply with orders made in these proceedings.
As earlier identified, the father was required by orders made 4 February 2020 to complete CDT testing within 48 hours of a request from the ICL. There were two separate requests from the ICL on each 9 June 2020 and 28 September 2020 for that to occur. Whilst the father proffered explanations as to why he had been unable to comply with those requests, I am not satisfied that those explanations (covid testing and isolation, and oversight) fully exculpate him.
The 4 February 2020 orders also required the father to undertake hair follicle testing. I am satisfied the father complied with orders that were made for hair follicle testing, and in addition that he voluntarily submitted to further hair follicle testing. That however is not the end of the matter.
In the first year of the proceedings the father submitted to hair follicle testing on three occasions; with hair samples taken in November 2019, June 2020 and November 2020. Each of those hair samples were positive for an illicit drug with varying concentrations (Exhibit “H11”). In the absence of expert evidence interpreting these results, it is difficult for me to form any views about the concentration levels and the rate of the father’s use. The results however make it possible for me to find (and I do find) that the father had used an illicit substance at least over a 12 month period ending in November 2020, but possibly over a 15 month period (being three months prior to the sample taken in November 2019 and the last sample taken in November 2020).
The father’s position was that the first and subsequent positive results were as a result of having consumed three to four shots of tequila at a party which was unknowingly laced with the illicit drug; this incident said to have happened in November 2019 with him only discovering this information when trying to make sense of his positive hair follicle test results for the sample taken later in November 2019.
There was however no evidence, expert or otherwise, to substantiate the father’s claims in this regard and it is not a finding that I am prepared to make.
Moreover, I consider it disingenuous of the father to have identified the source of information about the alleged drug laced drink, as an unnamed “friend”, without any attempt at identifying this person, or call them to give evidence.
It is therefore open for me to infer that either the father fabricated this explanation entirely, or, if the explanation were to be accepted, there has been an unexplained failure on the father’s part to call this alleged “friend” to give evidence, and I am therefore in a position to draw an inference that the evidence of this “friend” would not have assisted the father in accordance with the principles in Jones v Dunkel [1959] 101 CLR 298. Whichever inference I draw however, leads to the same conclusion and the finding that I make, that the father’s evidence and explanation for the positive hair follicle test results cannot be accepted, and that his credit (at least on this topic) is damaged.
After these three positive test results, the father provided hair samples for additional testing in each March 2022, June 2022, November 2022 and March 2024. The result of each of those tests were negative for illicit substances.
When regard is had to the dates of the hair follicle tests, it is apparent that there was no testing between the samples taken in November 2020, and the sample taken in March 2022, and again no testing between the samples taken in November 2022 and March 2024.
Given the positive test results obtained across late 2019 and 2020 (and my findings in relation to the same), when combined with the matters discussed below, it is difficult to reconcile the periods in which there was a hiatus of testing, with anything other than an inference which I draw that father did not obtain testing during periods when he apprehended he might or would return a positive result.

During the father’s oral evidence he was challenged about his illicit drug use by the mother’s senior counsel and counsel for the ICL. The answers given by the father particularly regarding his use of one illicit drug are not plausible and they are rejected. As a result I find:
(a)Certain terms were ones used by the father and his friends to describe someone who supplied illicit drugs.
(b)There were Facebook messenger messages in a chat called “[Mr S’s] bucks” (Exhibit “ICL1”), which was a group chat between the father, his friend “[Mr T]” and the father’s brother in law “[Mr R]” about obtaining and taking illicit drugs at Mr S’s bucks party likely in late 2016.
(c)The father referred to himself in that group chat as a term for someone who supplied illicit drugs (albeit spelt differently).
(d)The father’s messages in the “[Mr S’s] bucks” group chat where he says “boi [sic] my [body] has been violently violated after last night” leaves no doubt that the father consumed illicit substances the previous evening.
(e)In addition, I am able to infer from those messages that the father was readily able to obtain an illicit drug for himself and his friends to consume and that the confidence he expresses in this group chat about obtaining the illicit drug is indicative that this was a frequent or common occurrence/arrangement.
I am also mindful of the father’s inability during his oral evidence to be precise about the occasions that he recalls consuming an illicit drug. The father’s inability to recall the occasions that he has consumed an illicit drug could be explained a number of different ways. The father asks the Court to accept that his memory is affected by the passage of time. I do not however accept this is the case in circumstances where the father was not even able to identify the occasions with reference to an event rather than a date. I therefore infer that the more likely explanation is either that the father was being evasive in his answers to conceal the level of his illicit drug consumption, or that it was such a regular occurrence that no event stood out in his mind as unusual or memorable for having consumed an illicit drug.
When all of these matters are taken together, the Court is left with an inability to exclude the father’s illicit drug use and alcohol consumption as a risk factor to be taken into account when considering the parenting orders that would meet X’s best interests and keep her safe from harm.
BEST INTEREST CONSIDERATIONS
I have already considered several of the considerations set out in s 60CC of the Act earlier in these reasons. I therefore do not intend to repeat those matters in the discussion that follows.
I also note that Dr G prepared her family report prior to the operation of the Family Law Amendment Act2023 (Cth). As a result, Dr G considered an expanded list of best interest factors to be taken into account by the Court pursuant to s 60CC of the Act to those which now apply. Despite the changes to the legislation, I have taken into account the totality of the matters considered by Dr G, which formed the basis of her opinions, as I consider that the same is encompassed by the requirement to consider “anything else that is relevant to the particular circumstances of the child”.
What arrangements would promote the safety of the child and each person who has care of the child
I have identified earlier in these reasons that there is a need to protect X from harm when spending time with the father (emotional and psychological) as a result of the family violence the father has perpetrated and continues to present as a risk of perpetrating in the future, together with the harm that would flow to X if the father was affected by drugs or alcohol when spending time with X.
I have also identified that I accept the opinion of Dr G, that supervision of the father’s time spending with X would significantly ameliorate these risks of harm. I additionally consider that targeted injunctions and ongoing testing, coupled with supervision ameliorate the concerns about the father’s illicit drug use and alcohol consumption.
Having come to these conclusions, it is apparent that in undertaking the evaluative exercise discussed in Isles, I do not accept the mother’s contention that the father presents an unacceptable risk of harm.
Illustrative of the suitability of supervision is that it has been protective of X to date, and it has enabled X to develop a relationship with the father and the paternal family in a safe way. Whilst I accept that the success of this arrangement might suggest that it would be safe to move away from supervised time spending, for the reasons that I have discussed throughout these reasons, I do not consider that X would be safe and protected from harm and/or the risk of harm if there was to be unsupervised time spending.
I am conscious that X is young, and that the imposition of a long-term supervision arrangement brings with it a number of challenges and difficulties, including but not limited to, supervision being an artificial environment, the possibility of X at some point questioning the need for supervision and the potential that this might undermine the time spending by making X, amongst other things, question her own safety and/or undermine X’s relationship with the mother whom she might come to challenge and resent over the need for supervision.
I am equally conscious however, that the potential impact of the artificial nature of supervision has itself been reduced by the current arrangements, which sees professional supervision occurring in the home of the paternal grandparents, which allows X to immerse herself within that home surrounded by extended family members, in particular her cousins from whom she derives much enjoyment.
In addition, I am satisfied that the success of the supervised time spending arrangements to date has been enhanced by the mother’s ability to support that time spending (by inference because she considers it to be protective). The mother is to be commended in this regard given the immovable views she has about the father as a result of her experiences of family violence and her warranted concerns about the father’s alcohol and illicit drug use.
I acknowledge that the imposition of an order for long-term supervision is an arrangement that the Court adopts in rare circumstances (see B and B (1993) FLC 92-357). I am equally conscious however that where the evidence before the Court supports the making of such an order, it is open to the Court to do so (see for example Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96 cited with approval in Bielen & Kozma (2022) FLC 94-123).
For all of the reasons that I have identified, I consider that the circumstances of this case are ones which warrant ongoing professional supervision; particularly as the paternal grandmother has been the only person put forward as a non-professional supervisor by the father and I do not consider her to be appropriate to supervise the father’s time.
Any views expressed by the child
At the time of the interviews with Dr G for the family report, X was five years of age.
As outlined in Dr G’s report, during that interview:
(a)X presented as a “very quiet, shy and reserved 5 year old child”.
(b)X was able to “name and nominate two family groupings”; namely the maternal family which included her mother, and the maternal grandparents, and the paternal family which included her father, paternal grandparents and cousins.
(c)X was able to identify that her parents “were not friends” but was unable to articulate why she thought this was the case.
(d)X also commented “daddy’s family says mean things” and that she wanted “everyone to be kind” to one another.
Significantly, X did not at that time express a view in relation to the parenting proposals “as she was not capable of doing so”.
At the commencement of trial, I raised a concern with the parties that the Court did not have the benefit of any contemporaneous expert observations of X, nor an exploration of any view that she may now, aged seven and a half, be capable of expressing about her parenting arrangements.
To the credit of the parties, and with the assistance of the ICL, arrangements were able to be made for X to attend an appointment with Dr G, prior to Dr G attending court to give her oral evidence in the trial.
As a result, during the trial Dr G was best positioned to provide the Court with proximate observations of X, together with any views X was now able to express. To that end, Dr G identified that during that appointment with X:
(a)X presented in a similarly quiet, shy and reserved fashion and Dr G found it difficult to get X to speak (Transcript 21 May 2024, p.2 line 35).
(b)When probed (not spontaneously) X spoke fondly of her extended paternal family, in particular her young cousins (Transcript 21 May 2024, p.2 line 45).
(c)X identified that she did not want to stay overnight anywhere, identifying that it would make her feel worried and that she would feel very weird (Transcript 21 May 2024, p.3 line 5).
On 29 August 2024 I recalled the matter to invite submissions from the ICL as to his obligation (pursuant to s 68L(5A) of the Act) to meet with X and provide her with the opportunity to express any views that she may have in relation to her parenting arrangements.
From those submissions, I am satisfied that the ICL has discharged that obligation.
The ICL informed that he had “virtually” (by Microsoft Teams) met with X on 10 May 2024. During that meeting he explained to X who he was and his role. The ICL reported that the meeting was a “short encounter” and that:
(a)X showed him her favourite stuffed toys;
(b)X appeared “shy” and “reluctant to have a conversation” with the ICL;
(c)X did not disclose any views or wishes as to her parenting arrangements.
From these submissions, I am satisfied that X presented consistently in her presentation to the ICL as she did in her interactions with Dr G throughout each of her interactions with X.
The developmental, psychological, emotional and cultural needs of the child
X’s young age is one that mandates the adults in her life being aware of her needs.
The mother identified in her evidence that she has engaged X with a speech pathologist, occupational therapist and tutoring, to assist X navigate and improve deficits or difficulties that she is presently experiencing. There is no suggestion by the father that this has been inappropriate.
I have otherwise discussed X’s emotional and development needs within the context of family violence.
I consider that I am able to infer (particularly from the grandparents’ mutual identification that the parents were suitable marriage partners) that X’s cultural needs are shared between both family units and able to be met by each.
The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
There are no concerns raised that the mother is unable to provide for X’s developmental, psychological, emotional and cultural needs.
Indeed, from the evidence, I am satisfied that the mother is highly driven to ensure that X’s needs are met in every way.
The same however cannot be said for the father, for the reasons discussed herein, in particular as a result of the family violence perpetrated by the father, which I have earlier identified remains a risk factor.
It is the existence of family violence that mitigates against the mother having anything other than sole parental responsibility for X. I do not consider it appropriate or reasonable in all of the circumstances for the mother to have to engage with the father in relation to any parenting decisions for X, as any such engagement would present as an opportunity for the father to manipulate, coerce, control and inflict harm upon the mother.
The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so
I have already indicated that I accept Dr G’s views that X derives benefit from the relationship that she has with her father and her wider paternal family, in particular her cousins. That this has been established and maintained under the in-home supervised time spending regime that has applied to date indicates that it can be maintained under the same regime moving forward.
Given the risk factors discussed throughout these reasons, I consider that a continuation of this in-house supervision regime remains suitably protective of X, whilst also maintaining these paternal family relationships for her.
I am otherwise satisfied that by continuing to live with the mother (which is an agreed position), X will continue to maintain a relationship with her maternal grandparents.
Anything else that is relevant to the particular circumstances of the child.
The cost of professionally supervised time spending is a factor to be taken into account in assessing the arrangements that would best promote X’s best interests. This is because the father’s position is that the cost of utilising professional supervision has meant that he has been unable to afford to take all of the time spending available to him pursuant to the orders made by the Court, and that moving forward he would not be able to commit to a regular regime of time spending.
Whilst it is accepted that the costs of time spending have been significant, in light of the father’s evidence that he intends to re-enter the work force, coupled with his evidence as to his previous income and earning capacity, I am satisfied that the costs of a monthly regime of professionally supervised time spending is one that the father is able to afford. Until such time, I have some confidence that the father will seek the assistance of family members to meet the costs of supervision, much as he has done for the payment of his legal fees, and the costs of the supervised visit he had hoped to have during the course of the trial.
I have also had regard to the infrequent time spending taken by the father and the manner in which the father has approached these arrangements. I am satisfied that the father’s management of the same has been lacking in child focus. This is because:
(a)During his oral evidence the father identified what can only be described as a haphazard and self-centred approach to making arrangements for time spending. The pattern that the father has fallen into has resulted in the father giving minimal warning to the mother that he plans on taking his time spending (usually earlier in the week preceding the Saturday visit). No advance notice whatsoever is given by the father in those weeks that the father does not take up the time spending afforded to him by the orders. Additionally, arrangements are made and notice is given through the contact service, which presumably relies on the centre also having last minute availability. Whilst there was no evidence that the centre has not been able to facilitate these arrangements, it remains foreseeable in my view that from time to time the centre may not be able to accommodate the visits on such short notice. To the mother’s credit, there was no complaint that the mother has failed to facilitate X’s attendance at visits, but again, it is foreseeable that this pattern may well give rise to problems, and certainly disappointment and uncertainty for X. Foreseeably X may well come to expect a visit with her father and be disappointed when the visit does not happen. Equally possible (particularly as she gets older), she may have other plans or commitments (for example birthday parties, sporting events and the like), which may be scuttled at the last minute, leading to her disappointment.
(b)The uncertainty of these arrangements for X and the mother was something the father was probed about during his oral evidence. With some probing, the father was able to identify the impact of these uncertainties on the mother, however he was unable to readily identify the impact of these uncertainties upon X without prompting. As a result, I am satisfied that the father had not, prior to giving evidence, turned his mind to the impact upon X or the mother of the inconsistent time spending arrangements. The most glaring example of this is that at the visit in January 2024, the father gave evidence that he told X that he would see her before she started school. The father ultimately accepted in his oral evidence that this was an empty promise on his part, and in making that admission, it did not appear that the father had turned his mind to how such an empty promise might impact X.
(c)In addition, during the trial, and presumably realising a focus was being placed on him for not having taken time with X since January 2024, the father attempted to make arrangements for time spending with X over the weekend that fell during the course of the final hearing. However, instead of the father putting the mother, or indeed anyone, on notice of his intention to do so during the first week of the trial (he, on any view, having opportunity to do so), he simply attempted to make those arrangements directly with B Contact Centre at the last minute. This incident again is exemplary of the father’s inability to consider the impact of his late notice upon the mother and X, but it also illustrates the father’s inability to think beyond his own immediate wants and needs.
The mother’s senior counsel submitted in closing submissions that the father’s disengagement and failure to take time spending with X that has been available to him, has had the effect of the father weaning X away from more frequent time spending with the father. I accept this submission.
All of these matters combined, together with the evidence of Dr G about an appropriate regime of time spending between X and the father, have resulted in my conclusion that monthly time spending, fixed on the first weekend of each month is appropriate. Additionally, and for the same reasons, the orders promoted by the mother and the ICL around the management of the father’s non-attendance are warranted.
CONCLUSION AS TO TIME SPENDING AND PARENTAL RESPONSIBILITY
For all of the foregoing reasons, I consider it in X’s best interests and necessary to ensure her safety that X continue to live in the primary care of the mother and that she have sole parental responsibility for X.
In addition, and whilst I accept that there are risks associated with the father, I also accept the evidence of Dr G that the harm to X in severing the relationship that she has developed with the father and the wider paternal family, would be more damaging than enabling X to maintain that relationship in a measured, but not too frequent, in-home professionally supervised time spending regime.
ADDITIONAL ORDERS TO BE MADE
A range of additional orders are to be made by consent as follows:
(a)Orders as proposed by the ICL for the father to communicate with X by way of letters and gifts;
(b)Injunctions proposed by the ICL restraining the father from consuming illicit substances or alcohol 48 hours prior to or during any time spending with X, and otherwise restraining the parties from abusing or denigrating the other parent or members of their family to or in the presence of X;
(c)Orders providing for the father to receive information from X’s school and treating professionals;
(d)Orders for drug testing as proposed by the ICL, together with how time is to be impacted if the father does not comply with such request or returns a positive test result.
(e)Orders proposed by the mother enabling her to obtain a passport for X and thereafter travel internationally with her.
(f)Handover to take place as proposed by the mother at the home of the father.
The mother also asks that in addition to the requirement for there to be hair follicle testing for illicit substances, that there also be CDT testing of the father under the same regime. Given the failure of the father to comply with these orders to date, and if such an order would provide the mother with comfort and assurance, then I consider it appropriate and in X’s best interests to provide for the same.

For all of the foregoing reasons, I make those orders that appear at the commencement of these reasons.

I certify that the preceding one hundred and sixty-nine (169) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari.
Associate:
Dated: 2 September 2024

File number(s):	SYC 5557 of 2019
Judgment of:	KARI J
Date of judgment:	2 September 2024
Catchwords:	FAMILY LAW – CHILDREN – Family Violence – Where the father has perpetrated family violence upon the mother – Where the father has behaved in ways which were coercive and controlling of the mother by use of threats, intimidation, derogatory language, humiliation and aggression – Where the father admitted to engaging in threatening and intimidating behaviour – Where the Court finds that the father has not developed insight into the harmful natures of his behaviour and the impact on the mother – Where the Court is satisfied the father continues to present a risk of harm. FAMILY LAW – CHILDREN – With whom a child spends time – Where the mother asserts that the father presents an unacceptable risk of harm – Where it is agreed that the child should live with the mother – Where the mother seeks that the child spend no time with the father or alternatively professionally supervised time only – Where the father seeks unsupervised and overnight time with the child – Where the father’s alternate position is that the paternal grandmother supervise his time with the child - Where the child derives value from her relationship with the father and the paternal family – Where severing the relationship between the child and the father would be more damaging to the child than enabling her to maintain the relationship in a measured fashion – Where the Court does not consider that the child would be safe and protected from the risk of harm if there was to be unsupervised time spending – Where the paternal grandmother is not an appropriate candidate to supervise the father’s time – Where the Court considers that ongoing professional supervision is appropriate – Orders made for the child to spend time with the father on one occasion each month – Orders made for the father’s time with the child to be professionally supervised.
Legislation:	Australian Passports Act 2005 (Cth) s 11 Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 64B, 68L Family Law Amendment Act2023 (Cth)
Cases cited:	B and B (1993) FLC 92-357 Bielen & Kozma (2022) FLC 94-123 Carter & Wilson [2023] FedCFamC1A 9 Deiter & Deiter [2011] FamCAFC 82 Isles & Nelissen (2022) FLC 94-092 Jones v Dunkel [1959] 101 CLR 298 M v M (1988) 166 CLR 69 Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96 Ramzi & Moussa [2022] FedCFamC2F 1473
Number of paragraphs:	169
Date of last submissions:	29 August 2024
Date of hearing:	13-17, 20-22 May 2024, 29 August 2024
Place:	Heard in Sydney, delivered in Adelaide
Counsel for the Applicant:	Mr Dura SC
Solicitor for the Applicant:	Walter & Elliot Family Lawyers
Counsel for the Respondent:	Mr Reeve
Solicitor for the Respondent:	Marsdens Law Group
Counsel for the Independent Children’s Lawyer:	Mr Schroder
Solicitor for the Independent Children’s Lawyer:	Sydney West Family Lawyers

SYC 5557 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS GALVIN Applicant
AND:	MR PACOTTO Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	KARI J
DATE OF ORDER:	2 SEPTEMBER 2024