Gerardo & Gerardo (No 2) - [2025] FedCFamC1F 300

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gerardo & Gerardo (No 2) [2025] FedCFamC1F 300

File number: SYC 7195 of 2023

Judgment of: SCHONELL J

Date of judgment: 9 May 2025

Catchwords:
FAMILY LAW – PARENTING – Final Orders – Family violence – Where the parents disagree on whom the children should live with – Where each of the parents hold a negative view of the other and contend that the other parent has perpetrated family violence – Where the mother was charged with and convicted of family violence offences – Where the mother has psychological support and has completed parenting courses – Where the father was charged with animal cruelty offences regarding the family pet – Where the Court is satisfied that the father’s conduct towards the family pet constituted repeated and deliberate acts of family violence – Where the mother contends that her relationship with the children has been undermined by the father – Where the single expert opines that the father is a constraining, if not discouraging influence on the children’s relationship with their mother – Where the Court finds that the father has a lack of insight and disregard for the children’s welfare and has involved the children in the parental conflict.

FAMILY LAW – PARENTING – Change of residence – Where the children are in the primary care of the father – Where the children came into the primary care of the father without the consent of the mother prior to proceedings commencing – Where each party sought primary care of the children – Where the children have lived with the father since September 2023 – Where the expert and the Independent Children’s Lawyer support a change in residence so that the children live with the mother – Change of residence with sole parental responsibility to the mother – Considerations pursuant to s 60CC of the Family Law Act 1975 (Cth) – Where it is in the children’s best interests to live with the mother, where time with the father is suspended for four months, and thereafter spend incrementally increasing periods of time with the father.

Legislation:
Evidence Act 1995 (Cth) s 128

Family Law Act 1975 (Cth) Pt VII, ss 60CA, 60CC(2), 60CC(2A), 60CG, 117, 117(2), 117(2A)

Cases cited:
Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1

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

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

Pickford & Pickford [2024] FedCFamC1A 249

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 1 First Instance

Number of paragraphs: 226

Date of hearing: 24 March 2025 – 28 March 2025

Place: Sydney

Counsel for the Applicant: Ms Gillies SC

Solicitor for the Applicant: York Law Family Lawyers

Counsel for the Respondent: Mr Howard

Solicitor for the Respondent: One Law Group Pty Ltd

Counsel for the Independent Children’s Lawyer: Mr Guterres

Solicitor for the Independent Children’s Lawyer: Phillip A Wilkins & Associates
ORDERS

SYC 7195 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS GERARDO

Applicant

AND:
MR GERARDO

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

9 MAY 2025

THE COURT ORDERS THAT:
1.All prior parenting orders are discharged.
2.The mother shall have sole parental responsibility and sole decision-making authority for the children X born 2009, Y born 2012, and the child Z born 2014 (collectively “the children”) in relation to the following matters:
(a)The children’s schooling;
(b)The children’s medical, psychological and other allied health treatment;
(c)The children’s extracurricular activities; and
(d)Overseas Travel including issue of passports which the mother is solely to obtain without the father’s signature being required.

3.In exercising sole parental responsibility and decision-making authority, the mother shall consult with the father prior to making any decisions about major long-term issues by:
(a)Notifying the father not less than seven days in advance of any decision she proposes to make.
(b)permitting the father to have an input into the decision where the father shall respond in writing to the mother within seven days of receiving a notification from her.
(c)Considering any written response by the father prior to making her decision.
(d)Informing the father of the decision she has made in writing no later than forty-eight hours after making the decision.

4.The children shall live with the mother.
5.For a period of four consecutive months from the date of these orders or such other period as extended by Order 9 (“the suspension period”) the father’s time with the children is suspended and the father is restrained from:
(a)Contacting, spending time or communicating with the children by any means, including mail, telephone, email, text message or social media.
(b)Causing, permitting or allowing any third person to contact or communicate with the children by any means including mail, telephone, email, text message or social media on his behalf.
(c)Causing, permitting or allowing any third person to remove the children from the mother’s care.

6.If at any time during the suspension period:
(a)The children contact or communicate with the father, or any member of his extended family the father shall not respond to such contact or communication and shall report such contact or communication to the mother within two hours of receiving it.
(b)The children attend upon the father or any members of the paternal family, the father shall report the same to the mother within two hours and shall do all things necessary to forthwith facilitate the children’s return to the mother.

7.At the expiration of the period covered by Order 5 or its variation by Order 9:
(a)If the children contact or communicate with the father or any member of his extended family at any time not otherwise covered by these orders the father shall not respond to such contact or communication and shall report such contact or communication to the mother within two hours of receiving it.
(b)If the children attend upon the father or any member of his extended family at any time not otherwise covered by these orders the father shall report the same to the mother within two hours and shall do all things necessary to forthwith facilitate the children’s return to the mother.

8.At the expiration of the period covered by Order 5 or its variation by Order 9 the children shall spend time with the father as follows:
(a)For a period of three consecutive months from 2.00 pm until 5.00 pm each alternate Saturday with only the father to be present and supervised by C Contact Service with the father to meet the cost of supervision.
(b)Thereafter for a period of three consecutive months from 8.00 am until 6.00 pm each alternate Saturday.
(c)Thereafter each alternate weekend from after school or 3.00 pm Friday until before school or 9.00 am Monday.
(d)From 12 months after the commencement of Order 8(c) the fathers time shall increase to include in school terms each Wednesday from after school until before school Thursday.
(e)Upon the commencement of order 8(c) for one half of each school holiday period being the first half in even numbered years commencing from after school on the last day of the children’s attendance and concluding at 5.00 pm on the middle day and the second half in odd numbered years commencing at 5.00 pm on the middle day of the school holiday period until before school or 9.00 am on the first day of the school term.

9.In the event there has been non-compliance with order 5 during the suspension period then the suspension period will be extended by the amount of time that has expired. Thus, by way of example in the event there is non-compliance at ‘Week 4’ then a further four weeks will be added to the remainder of the suspension period.
10.In the event there has been no compliance with Order 6 during any stage of the children’s time with the father pursuant to Order 8 (a) or (b) then the children’s time with the father shall revert back to the previous stage.
11.The children shall spend additional time with the father as follows:
(a)On Father’s Day from 2.00 pm until 6.00 pm if time is occurring in accordance with the regime provided in Order 8 (a) or (b) and from 10.00 am until 6.00 pm if time is occurring in accordance with Order 8(c).
(b)During Christmas:
(i)From 2.00 pm until 6.00 pm on Christmas Day if time is occurring in accordance with the regime provided in orders 8(a) or (b)
(ii)From 4.00 pm Christmas Eve until 4.00 pm Christmas Day in even numbered years and from 4.00 pm Christmas Day until 4.00 pm Boxing Day in odd numbered years and time is occurring in accordance with the regime provided in Order 8 (c).

12.The children’s time with the father shall be suspended as follows:
(a)On Mother’s Day
(b)From 4.00 pm Christmas Day until 4.00 pm Boxing Day in even numbered years and from 4.00 pm Christmas Eve until 4.00 pm Christmas Day in odd numbered years.
(c)During school holiday periods when the children are not spending time with him.

13.To facilitate the children’s time with the father:
(a)During the period the children spend time with the father in accordance with Order 8 (a) and (b), changeover shall be facilitated though C Contact Service at Suburb O McDonalds (N Street) with the father to meet the costs of the supervision.
(b)Upon the commencement of Order 8(c), and on other occasions as provided in these orders unless changeover is to occur at school, changeover shall be facilitated at Suburb O McDonalds (N Street) and each parent shall always remain in their parked vehicles which are to be parked at least 100 meters from the other and restrained from approaching the other parent.

14.That in the event the father fails to return the children or any of them to the mother then:
(a)pursuant to Section 67Q of the Family Law Act 1975 (Cth), a Recovery Order is to issue and lie in the Registry which recovery order is to activate on the Mother advising the Marshall that these orders have not been complied with (ie the children have not been returned to her care) whereupon the Recovery Order addressed to the Marshall, all officers of the Australian Federal Police and all officers of the State and Territory police forces where such persons are authorised and directed to find and recover the children X born 2009, Y born 2012 and Z born 2014 and for that purpose, with such assistance as they require to stop and search any vehicle vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the child may be found and recover the children and deliver them to the Mother Ms Gerardo, at a venue nominated by her or to some other persons she nominates in writing to receive the children on her behalf.
(b)If the father again removes or takes possession of the children or any child (other than in accordance with these Orders), he may be arrested without a warrant.
(c)The Recovery Order remains in force in relation to each child until further order.
(d)The Registry Manager shall provide the person(s) to whom the Recovery order is addressed with such information as the Registry Manager receives that may assist in finding and recovering the child.

15.That pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the mother and children, the Father is injuncted from:
(a)Contacting the mother or the children in any way or form whatsoever, except in accordance with these Orders.
(b)Attending, approaching or remaining within 500 metres of:
(i)The Mother’s home where she resides currently in Suburb P and any other residence, she resides in from time to time.
(ii)Any home or property the mother attends from time to time.
(iii)The children’s maternal grandmother’s property at UU Street, Suburb QQ.
(iv)Any school the children may attend from time to time other than where he is spending time with the children in accordance with these orders.
(v)Any sporting or other activities the children may attend or participate in other than where he is spending time with the children in accordance with these orders.
(vi)Attending any function to which the mother and the children are attending or any venue they attend and if he sees them, he shall immediately remove himself from the said venue or event other than where he is spending time with the children in accordance with these orders.
(vii)Removing the children from the care of the mother, or care of any person or organisation with whom the mother has placed the child or children.

16.Order 15 is made for the personal protection of the mother and the children, and is an order to which the power of arrest without warrant attaches pursuant to s 68C of the Act and will remain in place until each of the children have attained the age of 18 years.
17.That in the event of any discrepancy between the terms of these Orders and any ADVO, these Orders shall apply.
18.The mother is permitted to provide the Report of Dr F released 15 August 2024 to the following:
(a)Dr Q;
(b)M School;
(c)R School;
(d)The Children’s psychologist once appointed;
(e)S Medical Centre;
(f)T Medical Centre;
(g)Any other GP on which the children attend;
(h)NSW Police.

19.A copy of these Orders may be provided by either parent to:
(a)Dr Q;
(b)M School;
(c)R School;
(d)The Children’s psychologist once appointed;
(e)S Medical Centre;
(f)T Medical Centre;
(g)Any other GP on which the children attend;
(h)NSW Police.

20.Either parent may provide a copy of these orders and the reasons for judgment to any treating practitioner (including but not limited to psychiatrist, psychologist, counsellor, therapist, clinical social worker) consulted by either parent or any of the children.
21.The costs of the children’s clinical treating psychologist shall be shared equally between the parties.
22.Within 14 days of the date of these Orders, the parties will do all acts and things to arrange communication with each other in relation to parenting matters via the Our Family Wizard App with each party to bear their own costs associated with their respective use of the Our Family Wizard App.
23.Unless otherwise agreed between the parties in writing or in the event of an emergency, the parties will communicate with each other exclusively via the Our Family Wizard App or in the event of technical issues via email communication. In the event that the Our Family Wizard app becomes defunct or is no longer available for use, the parties will communicate via email (limited to two in a row and the recipient is to respond within two hours - if the matter relates to the children and is urgent) or as otherwise agreed between the parties. The Parties agree not to communicate with each other via text messages or telephone calls.
24.For the purpose of the previous order, the parties shall:
(a)Communicate via Our Family Wizard as necessary but no more than once per week unless there is an emergency;
(b)Use a format with two headings: RR (response requested) and FYI (for your information);
(c)Send no more than three bullet points under each heading with each bullet point to be no more than three lines long;
(d)Respond within 24 hours; and
(e)In the event they are unable to respond within 24 hours, acknowledge receipt of the communication and provide a full response within 48 days.

25.In the event of an emergency, for example, if a child is admitted to hospital, the parties are permitted to contact the other parent by telephone such communication to be limited to one call and/or one unanswered call per hour.
26.Each parent is hereby authorised to obtain from the children’s school all notices including but not limited to functions and school events, newsletters, correspondence and school reports concerning the children, the school or such other activities or events to which the parents are invited.
27.Each of the parents shall keep the other informed of:
(a)Any medical emergency involving the children including but not limited to serious illness, accident or hospitalisation and/or which requires urgent medical treatment whilst in the care of that parent, as soon as practicable and in any event, not more than 12 hours of such event occurring.
(b)Any medical appointments including appointments with specialists that the children attend whilst they are in that parent’s care.
(c)Any medication that is required to be administered to the children whilst they are in that parent’s care.

28.Each parent is restrained from the following:
(a)Speaking or permitting any other to speak to or about the other parent or their family in a negative, offensive, or unpleasant fashion in the hearing or presence of the child.
(b)Discussing any proceedings between the parents in these proceedings in the presence or hearing of the children or permitting any other person to do so.
(c)Communicating messages to the other parent through the children.
(d)Questioning the children in relation to their views or preferences concerning their living arrangements or the time they may spend with the other parent.
(e)Encouraging the children to express particular views or preferences in relation to their living arrangements or the time they spend with the other parent.
(f)Psychically disciplining the children.

29.Pursuant to s 65Y of the Family Law Act 1975 (Cth) the Mother is permitted to remove the children from the Commonwealth of Australia to travel overseas during the time the children live with the Mother pursuant to these Orders and provide notice to the father of no less than 42 days prior to any intention to travel including dates of travel and location and the children’s time with the father shall be suspended during that period,
30.The mother has sole parental responsibility in relation to signing all necessary documentation, organising and obtaining an Australian Passport for the children.
31.Pursuant to s 11(1) and (2) of the Australian Passports Act 2005 (Cth), these orders provide authority to the Minister for Foreign Affairs or a delegate of the Minister to issue an Australian Passport for the children.
32.The Australian Passport issued to the children shall be provided to the mother to hold on behalf of the children.
33.These orders authorise the Australian Federal Police to remove the children from any watchlist at all airports where the children or any of them are accompanied by the mother for the overseas travel and upon the child/children’s return to Australia, the child/children’s names be reinstated on the watchlist.
34.That the Father, his servants and/or agents be and are hereby restrained from removing or attempting to remove the children or any of them from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the children’s names on the Airport Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Airport Watchlist at all times (however this watchlist order is subject to order 37 which authorises the Mother only to remove the children outside the Commonwealth of Australia).

35.That the father is hereby restrained from caring for an animal when the children are in his care and is restrained from simultaneously being in the presence of an animal and the children.
36.The father shall pay to NSW Legal Aid the sum of $9,874.90 within 42 days being half the total costs ($19,449.80) of the Independent Children’s Lawyer.
37.The mother shall pay to NSW Legal Aid the sum of $9,874.90 within 42 days of the making of final orders pursuant to s 79 of the Family Law Act 1975 (Cth) being half the total costs ($19,449.80) of the Independent Children’s Lawyer.

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 Gerardo & Gerardo has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:

These are proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) in relation to the parties’ three children aged 15, 13 and 10.
In the case of the mother, she sought orders that the children live with her and, after a moratorium of six months, commence spending time with the father, initially supervised for a few hours, thereafter there be six-monthly incremental increases in the father’s time such that after the expiration of approximately 30 months the children would be spending time with their father each alternate weekend from after school on Friday to 6.00 pm on Sunday. The mother did not propose any time in school holidays (Exhibit 54).
The Independent Children’s Lawyer (“ICL”) sought orders that provided for the children to live with the mother, for there to be a suspension of the father’s time for four months, and thereafter for time with the father to commence on an unsupervised basis increasing in three monthly increments such that within 12 months the children would be spending time with the father each alternate weekend and for half school holidays (Exhibit 56). The position of the mother and the ICL insofar as they sought orders for the children to live with the mother and a suspension of time with the father for a period of months accorded with the recommendations of the single expert, Dr F.
The father for his part sought orders that the children live with him and spend time with the mother each alternate weekend. He did not propose any school holiday time with the mother. His alternative position, in the event the Court made orders for the children to live with the mother, was for time with him up to five nights a fortnight and for half of each school holiday period. He opposed any suspension of his time with the children (Exhibit 58).
The parties are agreed that whichever parent it is ordered the children should live with should have sole parental responsibility. The parties agree that the children should attend a therapist and that they will share the cost equally. The parties are also agreed that a recovery order should be made and lie in the Registry if orders are made for the children to live with the mother.
DOCUMENTS RELIED UPON
The mother relied on the following documents:
(1)Amended Initiating Application filed 6 March 2025;
(2)Affidavit of Ms Gerardo filed 12 March 2025;
(3)Affidavit of Dr Q filed 12 March 2025;
(4)Affidavit of Mr U filed 12 March 2025;
(5)Affidavit of Ms V filed 12 March 2025;
(6)Affidavit of Ms W filed 12 March 2025;
(7)Affidavit of Ms AA filed 12 March 2025; and
(8)Case Outline Document filed 19 March 2025.
The father relied on the following documents:
(1)Response to Final Orders filed 4 March 2023;
(2)Affidavit of Mr Gerardo filed 11 March 2023; and
(3)Case Outline Document filed 20 March 2025.
The ICL relied on the following documents:
(1)Report of Single Expert Dr F dated on 12 August 2024 (“Single Expert Report”);
(2)Child Impact Memorandum prepared by Ms BB dated 16 January 2024; and
(3)Case Outline Document filed 20 March 2025.
Each party and the ICL sought to rely upon a number of annexures and exhibits to affidavits and tender bundles not all of which became exhibits in the proceedings.
Each of the mother, father and Dr F were cross-examined as were two of the mother’s witnesses being Dr Q and .
BACKGROUND
The father was born in1978 and is 46 years old. The mother was born in 1985 and is 40 years old.
The parties were married in 2004 and separated on 22 September 2023.
There are three children of the relationship who at the time of the hearing were aged 15, 13 and 10 respectively. The parties’ first child, X, was born in 2009. In 2012, Y the parties’ second child was born. The parties third child, Z, was born in 2014.
Each party makes allegations of family violence against the other and there have been related proceedings in State courts with each of the parties having been charged with offences.
As to family violence, the mother asserts an extensive history of abuse and control as perpetrated by the father throughout the relationship. The mother says:
70.During the marriage, [Mr Gerardo] was abusive and violent towards me, the children and our dog […]. The nature of the abuse and tactics [Mr Gerardo] employed changed over the course of the relationship and separation.
71.[Mr Gerardo’s] abuse towards me began slowly and subtly, I did not realise in the beginning what [Mr Gerardo] was doing to me. It has taken a long time with the support of mental health professionals, and me being away from the abusive environment, to realise that [Mr Gerardo’s] behaviour was not normal nor was it within the range of how partners or spouses would deal with conflict in their marriage. His conduct towards me and the children increased and escalated overtime. When [Mr Gerardo] and I had arguments, [Mr Gerardo] became aggressive, swearing and screaming at me for hours on end.
72.The direct effect on me of his conduct was that I started to lose my temper easily, raise my voice, bang the table - in lots of ways, I was doing what he did to me and the children. I generally did not physically chastise the children, there may have been occasions when they misbehaved to such an extent that I may have smacked a child on the hand or the bum with an open hand when they were misbehaving I usually used the time out method to discipline the children.
The father alleges that the mother has engaged in family violence towards the children. The mother was charged with, and ultimately pleaded guilty to, offences relating to assaults against Z and Y. He says:
64.During the relationship, [Ms Gerardo] was physically and verbally abusive towards the children. I have provided some examples of this violence perpetrated by [Ms Gerardo] below and throughout this Affidavit. Given the frequency of which this has occurred, I have included examples of what I think have been some of the most significant incidences.
65.Over the last three years, [Ms Gerardo’s] aggression towards [Z] has gotten worse. At least on a weekly basis she called [Z] “a pig” and smacked him hard to the point that [Z] began crying hysterically and sometimes falling to the ground. When I was present, I usually had to intervene to stop [Ms Gerardo] from yelling and smacking [Z].
…
74.[In late] 2024, Ms Gerardo’s] Local Court matter was listed before [a Magistrate]. [Ms Gerardo] entered a guilty plea to sequences 1 and 2, which related to [Y] and [Z] respectively. I understand this was done based on an amended Statement of Facts agreed to between [Ms Gerardo] and the prosecutors. Sequences 3 and 4 were withdrawn.
…
77.I remain extremely concerned about the children’s safety in [Ms Gerardo’]s care, and that [Ms Gerardo] continues to minimise the family violence she has perpetrated on the children and that she continues to mislead the Court in circumstances where she has made earlier admissions about her abuse and family violence on the children, specifically [Z] and [Y] and where there are associated criminal charges.
The mother says that post-separation she reflected on her behaviour and identifies the source and cause of the issues in her parenting and has sought extensive counselling and psychological treatment. She says:
280.I deeply regret my actions during this period and am ashamed and appalled of my behaviour. I have reflected on this behaviour and have taken steps to address it since separation as deposed to in greater detail below. The events of [mid] 2021 was a moment in time on a day when I had reached breaking point.
…
423.Since separation, I have taken the following steps to address my behaviour towards the children in the 2 years prior to separation:
(a)[In] August 2023, I commenced attending upon [Ms DD] a psychologist via a free confidential service through my employer as I was struggling to cope. [Ms DD] helped me to understand that [Mr Gerardo’s] behaviour towards me was abuse.
(b)Following separation in September 2023, I attended upon [Ms EE], psychologist in [Suburb CC]. I attended upon [Ms EE] until February 2024. I saw [Ms EE] on a weekly basis initially which then moved to fortnightly.
(c)From February 2024, I have attended upon [Dr Q], Clinical Psychologist. Initially I attended upon [Dr Q] on a fortnightly basis. The frequency of my appointments has since been reduced due to my inability to afford the gap payment required. I currently attend upon [Dr Q] on at least a monthly basis. My last appointment was on [in] February 2025. My next appointment is scheduled [in] March 2024…
(d)Between April 2024 to in or about December 2024, I have attended upon [Ms FF], a counsellor through Victims Services on a fortnightly basis. These appointments were more frequent than my appointments with [Dr Q] as there is no cost.
(e)I have completed the following parenting courses: Tuning into Kids; Tuning into Teens; The Triple P Parenting program; Parenting after Separation.
…
426.I learned through counselling how my parenting became so inappropriate. Up until 2021 the level of care I provided to the children and my behavioural management of the children was appropriate, it was as a result of the family violence and stress I was experiencing that led to my parenting behaviours becoming inappropriate.
427.During the period from mid-2021 to the date of separation, I accept that my parenting behaviours were at times inappropriate. The way I spoke to the children at times was appalling. This however was not an everyday occurrence. These outbursts recorded by [Mr Gerardo] (without any intervention by him) were moments in time, captured when I was not emotionally regulated and at a time when I was under an overwhelming amount of pressure and had no support network. During the relationship, I did not have the tools to manage my mental health and I deeply regret and am deeply ashamed that my lack of emotional regulation has impacted the children.
428.I have worked with my various counsellors and my psychologist on knowing how to monitor my stress levels, using tools to address it and building up my support network to assist me in managing when I feel overwhelmed. I was holding on to so much pain and hurt after questioning my reality for so many years. I was isolated from friends and family. In addition to attending upon my psychologist regularly, I now have support from friends and family. I will not allow myself to get to that point. I now live in an environment free from violence.
The mother alleges the father has sought to undermine her relationship with the children and that he will continue to fracture their relationship. She says:
255.From the beginning of 2021, [Mr Gerardo] engaged in behaviours that disrupted and undermined my relationship with the children. He started a relentless campaign of encouraging the children to misbehave and not listen to instructions from me.
256.I did not understand or appreciate his plans so when he tried to undermine my parenting, this resulted in [Mr Gerardo] and I having arguments which increased in frequency as time went on and became more heated. [Mr Gerardo] repeatedly said to me in the presence of the children: “You’re fucken weak, just leave, go” and “You’re no mother, what are you stiff doing here?”. From 2021, the children, in particular the boys, started to mimic and show the same disrespect to me that their father was doing to me.
…
739.I am concerned that the children’s reluctance to spend time with me provided for pursuant to the December 2024 Orders is because of pressure they are under from [Mr Gerardo] and his family members. I am concerned that [Mr Gerardo] continues to undermine my relationship with the children. I believe the children need to spend a block time away from [Mr Gerardo] and his family so they can get some balance and renew their relationship and close connection with me.
…
824.[Mr Gerardo’s] ongoing parental alienation is causing significant emotional and psychological harm, depriving our children of a healthy and stable relationship with both parents. It is imperative that his conduct is brought to an end in the hope that there is an opportunity for the children to recover from the abuse and manipulation they have been subjected to.
…
836.I do not accept that [Mr Gerardo] has complied with the court orders as he has not brought all 3 children to the changeover venue on each occasion as required by the Orders. I am concerned that [Mr Gerardo] not only does not encourage the children to spend time with me but that he actively discourages this and seeks to undermine my time with the children by continuously calling and text messaging the children when they are in my care.
On 8 September 2023, the mother sent the father a text, as described in his affidavit, as follows:
30.… “I want to go to marriage counselling because I’m very concerned, you’re sleeping with our daughter [Y] in her bed, and our relationship has gone downhill, and we are not intimate. You are to stop sleeping in our daughter’s bed. It’s not normal.” …
The mother says of the text, the following:
397.Following the text message exchange, given it appeared that [Mr Gerardo] intended to continue to sleep in [Y’s] bed I took it upon myself to move out of the master bedroom and I started to share a bed with [Y].
399.[In late] 2023 when I met with [Police Officer GG] to give a statement in respect of the RSPCA charges, she asked me questions about whether or not I had any other concerns. Shortly prior to asking me this, she said: “Research shows that people who engage in that behaviour (referrable to beating pets) tend to do other things, commit serious crimes to humans and there is a link between sexual abuse and animal cruelty.” At that point I became alarmed and I showed [Police Officer GG] the text message exchange between [Mr Gerardo] and I on 8 September 2023. That was the end of the matter.
400.I understand that in a 15 page statement [Mr Gerardo] gave to police, only available to my solicitor from 4 December 2024, he reported under the heading offence 12 that I ‘made false accusations of concerns about sexual wrongdoings’. I did not do so. All I raised with him in the text is that it is inappropriate for him to sleep in the same bed as [Y] given her age and coming into adolescence.
The father says of the text, the following:
31.I was shocked. I felt disgusted when I read this message. The inference I could draw from this message was very concerning and I felt sick of the fact [Ms Gerardo] would think such a thing about me. I sent a text message to [Ms Gerardo] responding to this inference and asking [Ms Gerardo] to go to marriage counselling.
…
35.While I was being questioned by the Police at [Suburb J] Station, I had denied the allegations put to me. The Police had asked for my phone and read a few of the messages on my phone. [Ms Gerardo’s] message of 8 September 2023, being a recent message, caught the attention of the Police. The Police had said to me words to the effect of: “What is this message about?” and “What does this mean to you”. I had replied and said: “I know what this means, what does this mean to you”. The Police then asked to take a copy of the message. I complied with this request.
36.I understand that […] Police officers then attended the former matrimonial home and questioned [Y]. I understand from [Y] that the Police had questioned [Y] about what happens when I sleep in her bed and or if [Y] was to sleep in my bed. [Y] had informed me of this when I had seen her at the wedding the next day. To the best of my believe, the Police did not investigate this matter any further.
37.I felt saddened by the fact [Y] had just witnessed her father being arrested and taken away in the morning, then for her to be questioned by Officers in the afternoon.
On 21 September 2023, the mother made a report to Suburb J Police Station making allegations that the father was abusive towards the family’s pet dog and verbally abusive towards her. The next day, the parties separated on a final basis where the father was arrested and charged with intimidation and harassment and counts of cruelty to an animal (being the family’s pet dog). An interim ADVO was made for the protection of the mother and children from the father.
Later that same day, X and Z were removed from the family home by a member of the father’s family. Such removal occurred without the consent of the mother. The mother deposes to these events as follows:
9.On 22 September 2023, I left the home to go out with [Y] to pick up [Z’s] suit from the dry cleaner for the wedding of [Mr Gerardo’s relative]. [X] and [Z] wanted to stay home so I left them at the home. On returning home later that day, [X] and [Z] were not home. Upon reviewing the CCTV footage, I discovered they were collected by their cousin, [Mr JJ]. I depose to these events in greater detail below.
…
434.As we stood in the garage, trying to get into the car, [X’s] phone rang. It was [Ms HH], [Mr Gerardo’s] sister-in-law. The moment [X] answered, everything shifted. I watched as his expression hardened, his demeanour changed, and he suddenly turned to me-his voice raised, his words sharp and demanding. He said: “What did you tell the police about Dad? Did you tell them about the dog? What abuse? What domestic violence?”
435.I could not find the words. I was stunned, overwhelmed, trapped. I could hear [Ms HH’s] voice on the other end, feeding [X] information, turning him against me in real time. My heart was racing, but I knew that arguing would only escalate the situation. I pleaded with [X]: “Please, just hang up and get in the car.”
436.[X] ignored me. Instead, he told [Ms HH] where we were and that I was trying to get them into the car and leave. I could hear [Ms HH] through the phone, instructing [X]: “Don ‘t get in the car. Let them go. Don’t worry about it.”
437.[Y], sitting in the front seat with the door open, begged them: “Come on, just get in. We’ll be back soon.”
438.[Z] seemed on the verge of getting into the back seat, and for a brief second, I thought I might still be able to get them out of there. But [Ms HH] kept pressuring [X] not to go, and I could feel myself losing control of the situation. I felt I had no choice as I was scared [Mr Gerardo’s] family members were going to come and I was fearful of what they might do to me. I told [X] and [Z]: “Just come we’ll get breakfast down the road. We will be back soon.” They refused to get in the car. I left with [Y], my stomach in knots, every part of me screaming that something wasn’t right.
…
440.When we returned home about 15 minutes later, I discovered that [X] and [Z] were not home. I panicked. I tried to phone [X] however it appeared his phone was turned off. Upon reviewing the CCTV footage, I saw [Z] holding his suit for the wedding. I discovered that they had been collected from the home by their cousin, [Mr JJ] at around 10:00am that day.

On 23 September 2023, Y came into the father’s care, again in contentious circumstances. The mother deposes to these events as follows:
10.On 23 September 2023, [Mr LL] and [Mr MM] (Mr Gerardo’s friends) collected [Y] and took her to the wedding of [Mr Gerardo’s relative] ([Mr NN’s] son). [Y] was due to be returned to me at 12.30am on 24 September 2023. [Y] was not returned to my care and her phone was turned off. ..
…
445.[Y] and I went to breakfast at a local cafe. While at breakfast, [Y] said: ‘Mum I want to go to the wedding but I’m scared that dad won’t bring me back’: After breakfast, I took [Y] to get her hair & nails done as she was undecided as to whether to go or not. Later in the day, [Y] said: “I think I will stay with you Mum, I don’t want to go to the wedding.” [Y] was calm and happy that day. It was the first time in a long time that I was able to spend one-on-one time with [Y]…
…
467.After receiving the text message from [Mr Gerardo], despite my concerns for [Y’s] safety with [Mr Gerardo] and concerns about [Y] coming back, I reluctantly allowed [Y] to be collected by [Mr LL] and [Mr MM] ([Mr Gerardo’s] friends) and taking her to the wedding of [Mr Gerardo’s relative]. I agreed on the basis that [Y] was to be returned to me at 12:30am on 24 September 2023 as stated in [Mr Gerardo’s] text message to me. [Police Officer KK] reassured me and said: “It’s ok as the ADVO states that the children are not allowed to reside with [Mr Gerardo], so she cannot stay with him overnight and now you have it in writing he will bring her back. Your daughter also told you she wants to be back home.”
468.[Y] did not return to my care and her phone was turned off.
The father deposes to the events in respect of the removal of [Y] as follows:
41.[…] on 23 September 2023 […] my [relative], […] was […] getting married. [X] was part of the bridal party. [Z] and [Y] were also excited to attend the wedding.
42.My family members attended our home to collect [Y] so that she could attend the wedding. [Ms Gerardo] had initially agreed to allow [Y] to attend the wedding. They soon became concerned for [Y’s] welfare as they could not communicate with her and [Ms Gerardo] was not answering the front door.
…
43.At 8:03pm on 23 September 2023, I received a text message from [Y], which read: “Hey Dad, I love you (emoji) hope you have a good time, just enjoy it. I’m good just watching the footy love you, goodnight (followed by a variety of love emojis).”
45.At about 9:14pm on 23 September 2023, I called [Y] to check up on her. [Y] had said to me over the phone: “I am no longer allowed to come”. [Y] sounded distressed and was crying over the phone. [Y] and I exchanged further messages throughout the night, [Y] had eventually said to me that she can came to the wedding however she wanted to be returned to [Ms Gerardo] at 12:30am.
…
49.At about 9:48pm on 23 September 2023, I received a text message from [Ms Gerardo] informing me that my friends, [Mr LL] and [Mr MM] will be collecting [Y] from her to take her to the wedding, which they were also attending. [Mr LL] and [Mr MM] have been friends of our family since the children’s birth, and they are both well known to [Ms Gerardo] and the children.
50.[Y] was eventually released to [Mr LL] and [Mr MM] to bring [Y] to [the] wedding. I had met with them at [Suburb H] shopping centre so I could take [Y] to the wedding. When [Y] saw me, she gave me a hug. During this interaction, she dropped her phone down the drain at [a street corner]. As we were late for the wedding, we had to rush off and could not wait until someone retrieved the phone. I telephoned the Police on the way to the wedding to notify them of the phone and asked for them to please collect it. [Y] had also notified [Ms Gerardo] about this shortly after the wedding the next morning.
The children were never returned to the mother’s primary care, and she did not see the children for over two months.
The mother commenced property and parenting proceedings on 27 September 2023.
On 5 October 2023, interim parenting orders were made for the children to live with the father and spend supervised time with the mother at a contact centre.
The mother’s first occasion of time with the children occurred on 5 December 2023.
A Review of the interim parenting orders was heard on 29 November 2023. Interim parenting orders were made on that day inter alia as follows:
13. Until further order, the children live with the Father.
14.Until further order, the Mother spend time with the children under supervision at the [OO Family Services]at [City PP] (“the Contact Centre”) on each alternate weekend on either Saturday or Sunday for a period of 3 hours (and the Court notes that the first of such sessions is to commence on the 3rd of December 2023, and is to take place fortnightly thereafter).
…
18. Until further order, on the intervening Sunday (being the Sunday when the children are not spending time with the Mother at the Contact Centre), the children spend a period of two hours with the Mother under the supervision of a paid supervision service nominated by the Independent Children’s Lawyer, with the costs of such supervised time be born equally between the parents.
…
22.Until further order, each parent is restrained from discussing the details of these proceedings, or any matters arising from these proceedings, with the children, save for the following exceptions:
(a)advising a child of the child’s need to attend any Court-related appointments; and
(b)advising a child about the next occasion that the child is going into the care of, or will communicate with, the other parent, in accordance with Court orders.
In early 2024, the father was charged with further charges of cruelty to an animal. Whilst listed for hearing in March 2024, October 2024, and February 2025, the hearings were adjourned.
In early 2024, the mother was charged with four counts of historical common assault against the children. The mother’s criminal proceedings were listed for hearing in late 2024 where the mother entered a guilty plea to two of the four counts based on an amended Statement of Facts which led to a mandatory final ADVO being made. This ADVO expires in late 2025.
On 13 December 2024, interim parenting orders were made by Deputy Chief Judge McClelland which provided for the children to spend unsupervised time with the mother for four weeks each Saturday and Sunday from 8.00 am to 6.00 pm and thereafter each weekend from 8.00 am Saturday to 6.00 pm Sunday with changeovers to be supervised by C Contact Service.
The mother contends that the father has frustrated the orders in relation to the children’s time with her.
On 18 March 2025, orders were made transferring the matter to Division 1 of the Federal Circuit and Family Court of Australia, vacating the hearing dates before Deputy Chief Judge McClelland, and listing the parenting aspect of the parties’ dispute to be heard before this Court for five days commencing 24 March 2025 concluding on 28 March 2025 with judgement reserved.
APPLICABLE LAW
Parenting proceedings are governed by Pt VII of the Act. In making a parenting order, s 60CA of the Act requires the Court to regard the best interests of the child as the paramount consideration. In determining what is in the child’s best interests, s 60CC(2) sets out the matters that are required to be considered. No one matter takes priority over the other.
The matters to be considered are:
60CC How a court determines what is in a child’s best interests
…
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
In considering the matters in s 60CC(2)(a) the Court must, pursuant to s 60CC(2A) consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that applies in relation to the child or a member of the child’s family.
Section 60CG of the Act requires the Court, when making a parenting order, to ensure the order does not expose a person to an unacceptable risk of family violence and is consistent with an existing family violence order.
Pursuant to s 60CC(2)(a), the Court must have regard to the arrangements which would promote the safety of a child and the person who has the care of the child. The word safety should, in my view, be given its ordinary meaning; that is, the orders should promote protection from the matters identified in the subsection to the extent relative to the evidence and the risk of harm and consistent with the best interests of the children.
In circumstances where it is contended that a person poses a risk of harm to the children, the Court may be required to assess the magnitude of such risk. Such assessment involves the making of findings about the existence of certain facts and circumstances and against those findings undertaking a prospective evaluation as to the risk of harm (Isles & Nelissen (2022) FLC 94-092).
Those findings and that prospective evaluation will inform in many respects the arrangements that promote the safety of the children and any person with care of the children (s 60CC(2)(a) and s 60CC(2A) of the Act) and pay due regard to the considerations embodied in s 60CG of the Act.
CREDIT AND OVERVIEW OF EVIDENCE
Over the five days of hearing, I have listened carefully to and watched the parties, their witnesses, and Dr F give evidence. I have closely compared their oral testimony with their written evidence and the documents tendered in the proceedings and taken that into account in assessing their credibility.
The mother was extensively cross-examined by the father’s counsel and counsel for the ICL. The mother was visibly distressed for significant parts of her cross-examination. I accept the submission of counsel for the mother that the mother presented as “deeply ashamed of her actions and had taken responsibility for them” (Exhibit 57). I am satisfied that her emotional responses were genuine and not an attempt to avoid answering questions.
The mother’s evidence of the location of Y on the occasions of the father’s arrest is not supported by the police body cam evidence (Exhibit 52). I am satisfied the mother was giving evidence in accordance with her best recollection of what was clearly an emotionally charged event. The mother admitted that she had been mistaken in her allegation that the father had driven past her home allegedly in breach of an ADVO which led to the father’s arrest.
The mother’s affidavit contains assertions that the father threw an item at her when she was pregnant which hit her in the stomach and that he forced himself on her sexually without her consent. The father in cross-examination denied each of these allegations.
The mother took part in a Domestic Violence Evidence in Chief (“DVEC”) in late 2023 (Exhibit 52). The audio recording recounts the mother reporting to the police before separation what she said was coercive and controlling behaviour on the part of the father, of him harassing and intimidating her, of him being angry, of him being psychologically and emotionally abusive of her including saying negative things about her to the children, of him not respecting her privacy, of alienating her from her children, of him threatening her and of her being fearful of him. The police officer asked the mother towards the end of the recording whether the father had ever assaulted her to which she responded not physically but emotionally and psychologically. The mother’s answer sits inconsistently with the assertions of physical and sexual assault in her affidavit, other than in relation to her allegation at paragraph 79 which I accept, and she referred to in her interview with the police.
Courts are not obliged to reject the whole of the evidence of a party just because they do not accept a party’s evidence on a particular issue. In making my assessments as to the credibility of the parties I am guided by what O’Loughlin J observed in Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1:
118. …Simply because I find against a party or a witness on one issue and reject some part of the evidence of that person, it does not mean that what remains is tainted, or otherwise lacks probative force, with the consequence that I should dismiss all the evidence of that person. The principles enunciated in the cases indicate that the trial judge is entitled to believe part of the evidence given by a witness and to reject the rest. After making an assessment of the evidence, after utilising the advantage of having seen and heard all the witnesses, and after forming an impression of each, the confidence that the judge reposes in a particular witness is assessed accordingly. Where evidence has a logical probative value, a judge will rely on it; where it contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force, the judge will, in all probability reject it or, at least, not rely on it…
The mother’s affidavit evidence that an item was thrown at her when pregnant and being sexually assaulted sits incongruently with what she told police. The inconsistency was neither explained in her evidence nor was any attempt made to resolve it in her senior counsel’s submissions. I am not satisfied that I can make a finding that the father threw an item at the mother or sexually assaulted her.
Notwithstanding those matters overall, I found the mother’s evidence to be plausible and logically probative.
I found the father an unreliable and intentionally evasive witness. He consistently refused to directly answer questions, obfuscated, prevaricated, and provided responses that did not answer the question he was asked. I am satisfied, given the numerous occasions on which he was reminded that his answer was not responsive, that it was a deliberate and conscious strategy to avoid answering a question he found either unpalatable or which he knew if answered would reflect poorly on his own behaviour and parenting capacity.
The father sought to portray the mother’s text message of 8 September 2023 (Exhibit 22) as a false allegation of sexual abuse “intending an investigation” (Exhibit 34) in circumstances where the mother had made no such allegation to anyone, nor had she done so for the purposes of “intending an investigation”. His contention was, I am satisfied, a deliberate distortion of the truth and a deliberate manipulation of the mother’s text message to obtain some perceived advantage in the proceedings.
In cross-examination about the text message the mother sent on 8 September 2023, he was asked this question:
Right, now again, the reason that you made the report to the police is because you wanted there to be some repercussions to the mother for what you saw as the false allegation that she had made against you in that text message, correct? - - - Yes.
(Transcript 26 March 2025, p. 45 lines 37–40)
The person who intended the investigation was the father as it was his conduct that led to Y being interviewed. The father in his affidavit sought to portray that it was the police who raised the issue of the text message. His affidavit records:
35.While I was being questioned by the Police at [Suburb J] Station, I had denied the allegations put to me. The Police had asked for my phone and read a few of the messages on my phone. [Ms Gerardo’s] message of 8 September 2023, being a recent message, caught the attention of the Police. The Police had said to me words to the effect of: “What is this message about?” and “What does this mean to you”. I had replied and said: “I know what this means, what does this mean to you”. The Police then asked to take a copy of the message. I complied with this request.
I do not accept that the father has truthfully recorded what happened. Contrary to his sworn evidence, the COPS record (Exhibit 31) makes it clear that it was the father who showed the police the text message. I prefer the entry in the COPS record as more accurate and reliable as opposed to the father’s sworn evidence.
The father sought to deny the mother’s assertions raised before separation that he was coercive and controlling by sending her a text message on 25 July 2023 called “There are 12 signs of coercive control” (Exhibit 45). I am satisfied that his denial to her was deliberately untruthful. His text was sent according to him to provide “some context to each sign of that control”. The second “sign” was “Monitoring your activity throughout the day”. The father failed to disclose to the mother that he had made a number of covert recordings of her.
The father agreed in cross-examination that the 15 pages of notes that he took to the police detailing various allegations against the mother overstated his concerns in that whilst it recorded, in his words, a lengthy history of violence, abuse, intimidation and fear against him and the children, he agreed he had never alleged that the mother had perpetrated family violence against him. It constituted a misleading statement to the police.
In relation to the incident in January 2025, he was asked questions about contacting the police for the purposes of a welfare check. He said he did so because he was concerned that the mother might do something to the children. When asked what something was, he said that she potentially might have killed the children. He agreed after a number of questions that he had not told the police when he requested them to make a welfare check that he was concerned that the mother might potentially kill the children. I am satisfied that the father never held any concern that the mother might potentially kill the children and that it was something he just said as an excuse for his conduct.
The father gave evidence that for the entire period subsequent to separation and even after December 2024 he regarded supervision of the mother’s time as necessary as the children were not safe in her care in circumstances where he said she was an abuser. Despite expressing such sentiments, he conceded that with the exception of one or two occasions he had not read the contact reports. I am satisfied he did not read the balance of them because he had no concerns that the mother was an abuser of the children nor concerns that they were unsafe in her care.
The father was extensively cross-examined about the circumstances in which Y remained in his care. He sought in his affidavit to present it as a consequence of her requests to remain in his care. I am satisfied that the father failed to tell the whole truth about this event. The father ultimately agreed following extensive cross-examination that he had wanted all of the children removed from the mother’s care from the time he was arrested. He agreed in cross-examination that he gave the mother an assurance that Y would be returned to her. He later contended that he had given that assurance under what he described as “duress” (Transcript 26 March 2025, p. 43 lines 34–36). When asked about the alleged duress, he agreed that he had never intended to return Y to the mother.

A witness who tells half the truth or fails to comply with their oath to tell the whole truth is as unreliable and as unconvincing as the witness who lies.
The father is, I am satisfied, prepared to say things he knows are untrue to achieve his ends in the litigation no matter how illogical or inconsistent with his case. Despite contending that the mother is mentally unwell and that she is potentially capable of killing the children, he proposes orders that they spend unsupervised time with her and his counsel (clearly on instructions) submits that the children are not at risk in her care.
On balance I find for the reasons given earlier the mother to be a more reliable and believable witness than the father other than where I specifically find otherwise. Where the father’s evidence conflicts with the mother for the reasons given earlier, I prefer her evidence. Where the mother has not given a version of a particular incident, I approach the father’s evidence with extreme caution and, in determining whether it should be accepted, look for instances where it is corroborated by a document or some other unimpeachable source.
The parties’ affidavit evidence was exhaustive. The mother’s affidavit traversed the entire history of the party’s relationship and comprised some 165 pages and 929 paragraphs. In addition, she called evidence from her therapist and the evidence of four lay witnesses. Annexures to her affidavit and accompanying Tender Bundles ran to hundreds of pages, not all of which became exhibits in the proceedings.
The father’s affidavit, while only 65 pages and 433 paragraphs, likewise traversed extensively a history of the parties’ relationship and the post-separation conflict. His annexures also ran to hundreds of pages; as with the mother, not all became evidence in the proceedings.
Not all of the evidence was relevant to the issues to be determined and thankfully not each assertion or counter-assertion was subjected to cross-examination. Nevertheless, I have read all of the evidence relied upon in the proceedings, including the Exhibits, listened to the various recordings and watched the videos. I have listened closely to the oral evidence of the parties, the witnesses called and the single expert. However, I do not propose to repeat all of what I read, saw and heard in these reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447:
62. … A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
That said, there are a number of events which are addressed below about which I need to make findings which will inform in part the orders I make in the best interests of the children.
The parties’ competing allegations of family violence
Each party makes allegations of family violence against the other.
The father contends that the mother has physically assaulted the children, in particular Z, and places great store on the mother’s admission of guilt and conviction (Exhibit 8) and says that the mother also hit the family dog. The mother makes allegations of family violence including allegations of physical, sexual, emotional and psychological abuse, including allegations of family violence perpetrated by the father on the family dog.
In Pickford & Pickford [2024] FedCFamC1A 249 (“Pickford”) in the context of family violence, two members of the Full Court observed as follows:
80It is also important to acknowledge how the purpose of litigation under Pt VII of the Act is to determine orders which will most ably serve children’s best interests (s 60CA and s 65AA). Keeping children and their carers safe into the future is the ideal, which objective should not be subverted by allowing the litigation to be used as the medium by which to make definitive factual findings resolving disputed allegations of historical family violence between conflicted, vengeful or anguished parents, nor to make punitive orders against the parties who may be found to have perpetrated family violence.
And their Honours later also observed as follows:
87…It is apposite to observe how judges need not make findings to resolve contested facts unless the findings authentically influence the outcome. In fact, the High Court of Australia has expressly cautioned against unnecessary factual findings in the context of risk assessment (M v M (1988) 166 CLR 69 at 76–77) (“M v M”). So has this Court (Eastley & Eastley (2022) FLC 94-094 at [18] and [31]) (“Eastley”).
The father’s case as developed through cross-examination seemed to initially urge the Court to find that the mother had physically assaulted the children on occasions other than those for which she had been convicted. The mother admitted that she had smacked the children on occasions but denied hitting the children as is alleged to have been portrayed in Exhibit 7 or in what the children reported to Dr F. I accept her denials.
However, as the observations of the Full Court in Pickford make apparent, the necessity of engaging in fact finding on a particular issue or on a swag of issues must serve the search of what is the ultimate end goal, namely, a determination of what is in the children’s best interests. If the resolution of the disputed facts is irrelevant to such determination, then to embark upon their resolution is redundant and contrary to established authority (see M v M supra).
I am not satisfied that I have to resolve the disputed factual contentions of family violence said to have been occasioned by the mother on the children as it is unnecessary. The father’s counsel submitted that the children are safe in the mother’s care, that she does not present a risk of harm to the children, and proposed orders that provided for unsupervised time. In those circumstances, a consideration of the allegations of family violence against the mother serves no purpose in the proceedings.
On the other hand, the mother’s allegations against the father are relevant and it is necessary they be resolved as they inform the consideration pursuant to s 60CC of the Act and what orders are ultimately in the best interests of the children.
The mother’s allegations of family violence in her affidavit are rich in detail identifying in many instances time and place. Her affidavit provided a dense factual narrative of what she alleges has happened. Much of her affidavit was not the subject of any challenge in cross-examination and was met by the father in many instances with a broad denial.
The mother describes in her affidavit her fear of the father. She says:
825.I am deeply concerned that during changeover, [Mr Gerardo] may harm me due to his unpredictable and frightening behaviour, which was constant throughout our relationship. The most terrifying aspect of his actions is the unpredictability. I never know what he will do next. It’s not the outbursts themselves that were the most frightening, but the quiet, eerie silence that often preceded them, the emptiness in his eyes. There was a chilling sense that at any moment, he could snap. When that happens, I genuinely fear it will be the death of me, emotionally or physically, as I cannot anticipate the lengths he may go to.
826.His behaviour is not limited to outbursts alone. In the days and weeks immediately following our separation, he sent multiple members of his family to changeover to intimidate and harass me. This only further amplified my fear, as it became evident that he was willing to involve others to exert control and escalate tension.
827.Given his history of erratic and controlling behaviour, I am genuinely fearful for my physical safety during changeovers and am requesting that any future arrangements consider these concerns
None of these paragraphs were the subject of challenge. I accept her evidence. The father agreed in cross-examination that his family’s actions in walking past the home, parking motor vehicles out the front of the home and driving past the home demonstrated “a concerted effort to surveil [sic] the former matrimonial home” (Transcript 26 March 2025, p. 57 lines 8–10) and he ultimately agreed, albeit somewhat reluctantly, that “it would have been intimidating to the mother” as well as making her “fearful” (Transcript 26 March 2025, p. 58 lines 23–30).
I am satisfied that the father has during the course of the relationship sought to stalk, control or coerce the mother by covertly recording her. He has admitted to recording her on a number of occasions and I am satisfied used the children on a number of occasions to do so. I accept the mother’s evidence at paragraph 242 of her affidavit. He admitted in cross-examination that his rationale in recording her was to “show how she was behaving badly with the kids” (Transcript 26 March 2025, p. 108 lines 24–25). I reject that explanation as it is inconsistent with his conduct in not ever showing her the recordings. It is a part of his conduct that has caused the mother to be fearful of him.
I am satisfied that the father has over the course of the relationship made threats of harm that have left the mother fearful of him and what he may do. I accept her affidavit evidence at paragraphs 223, 236, and 821.
The mother gives evidence of the father seeking to isolate her from her extended family and from her children. She gives evidence, that was unchallenged, that the children were once close with the cousins on the maternal side and her mother but that the father instructed the children not to speak to members of her family. The mother gives examples in her affidavit at paragraphs 159, 223, 233, 256, 258, 299, 304, 305, 315 and 343 which I accept. The mother gives evidence of the father undermining her parenting and seeking to isolate her from the children. I accept the mother’s evidence at paragraphs 259 and 261.
The mother’s evidence of the father’s behaviour is consistent with the unchallenged evidence of Dr F. In his report, Dr F describes the father’s influence over the children as “constraining if not discouraging” at paragraph 147; as a person who has “engaged in the subjugation of his entire family working specifically to achieve the alignment of the children with his views… with particular manipulative skill and continues to do so” at paragraph 152; and as having a “subtle and subversive capacity to breakdown relationships and create alliances” at paragraph 164.
I accept the mother’s affidavit evidence at paragraph 165 that the father violated her privacy and when she objected, he would denigrate her calling her “porn star” which humiliated her and objectified her. The mother gives evidence of the father repeatedly using derogatory taunts and language towards her. I accept her evidence at paragraphs 235, 237, 256, 324 and 338.
I accept the mother’s affidavit evidence at paragraphs 209, 210, 211, 212 and 240 that the father assaulted the children on a number of occasions. I accept the evidence of Ms AA who says she saw the father slap Z on the face. I accept the evidence of Dr F that the children appear afraid of their father.
I am satisfied that the father has perpetrated family violence by intentionally causing injury to the family dog and exposed the children to family violence by intentionally harming the family dog in their presence. Exhibit 15 comprises a series of videos depicting, according to the father, him training the family dog. The father’s assertion that he was training the dog is absurd. The videos capture incidents in June, July, August and September 2023. The videos graphically show the father hitting the dog with something and the dog yelping, him running after the dog, throwing something with force a number of times at the dog while it is in its kennel and the dog yelping, the father dragging the dog by its lead, kicking the dog, and placing his foot on its neck, lifting the dog up above the ground by its collar and placing his foot on top of the dog.
In his affidavit under the heading “[Ms Gerardo’s] false allegations made to the police” the father says:
88.I deny the allegations against me, and say it was an attempt to train [the dog], and say that I did not abuse [the dog]…
The father’s assertion that it was a false allegation is but another example of his distortion of the truth. His affidavit later records:
326. I did acknowledge to both my counsellor and to [Dr F] (Single expert report) that it was not my finest behaviour, something I regret, and I have been seeking Counselling for. I was trying to train the dog…
While the father in cross-examination after the grant of a certificate under s 128 of the Evidence Act 1995 (Cth) accepted what he did was abusive, it was begrudging and unconvincing acceptance, and I am not persuaded that he sees any deficit in his behaviour or treatment of the dog. The tenor of his affidavit accords with the observations of Dr F, namely a failure to take responsibility and to deflect from his own appalling conduct.
The videos do not depict isolated occasions. The mother in her affidavit identifies a number of occasions where the father cornered and beat the dog with closed fists or a baseball bat, kicked him, stepped on his head and paws. I accept the mother’s evidence.
Ms AA in her affidavit reports attending a barbecue at the parties’ home in 2022. She records observing the father putting a leash on the dog and tying the leash to an outside table. She says that as the dog attempted to chase the children, the table moved, and a number of glass bottles fell to the ground and shattered. Her unchallenged evidence was as follows:
26.[Mr Gerardo] immediately removed the leash from the table and in the presence of the children, dragged [the dog] by the leash up towards the shed. [Mr Gerardo] placed his foot on the dog’s neck, [the dog] yelped. [Mr Gerardo] then kicked [the dog] in his gut at least three times, [the dog] yelped three times. [Mr Gerardo] had one foot on [the dog’s] neck while he kicked with the other foot. He then walked away. It was dark however the backyard lights were on and I saw these events clearly. [X] said to [Mr Gerardo]: “What did you think was going to happen? You know he was going to run off when he saw the soccer ball”. [Mr Gerardo] looked at [X], ignored what [X] said, walked back towards [the dog] and placed his foot back on [the dog’s] neck. [The dog] yelped again. I turned my head. [X] appeared visibly very upset and walked inside the house. Multiple people repeatedly said to [Mr Gerardo]: “Stop!” [The dog] yelped repeatedly
27.Eventually, [Mr Gerardo’s] brother [Mr NN], who was standing on the steps of the veranda said to [Mr Gerardo]: “Stop it! You need to stop!” It was only after [Mr NN] told [Mr Gerardo] to stop, that [Mr Gerardo] then stopped kicking [the dog] and aggressively put him in the shed and slammed the door shut. [Mr Gerardo] then walked away in frustration.
28.[Mr Gerardo’s] sister, […] walked past me and said: “That poor dog.” [Mr Gerardo’s] nephew, […] also said: “Stop, he is a dog. What are you doing?” My brother […] said: “Stop, what are you doing? It’s a dog. You’re acting like a dickhead. Don’t do that.”
29.[Z]. [Y] and the other children present were standing watching what [Mr Gerardo] was doing to [the dog]. After a short time, [Z] and [Y] continued playing soccer with their other cousins.
30.The other children on the trampoline were frozen watching [Mr Gerardo].
31.I left shortly after this happened. I was in a state of shock and was shaking due to what [Mr Gerardo] did to the dog and what he did in front of the guests and the children including his own children. It was a very disturbing and horrific scene to watch.
Ms AA says the event left her in a state of shock, describing it as a disturbing and horrific scene to watch, which was seen by a number of people including the parties’ children. Ms AA’s describes the children as “frozen” watching the father and her own state of shock supports the inference that it was traumatizing event and demonstrated a complete loss of control on the part of the father, particularly where other adults are telling him to stop. Ms AA’s account of this event was not the subject of challenge. I accept her evidence.
Ms AA’s account is similar to what Dr F observes when he saw the videos. His observations and conclusion were not the subject of any challenge. Dr F records the videos show:
23.… the extent of the violence that [Mr Gerardo] subjected to the dog in multiple videos obtained in the home surveillance cameras. [Mr Gerardo’s] actions are both repugnant and reprehensible and furthermore his unwillingness to accept his shockingly aggressive and violent behaviour towards another living thing is of deep concern to this clinician and will be addressed in detail later in this report.
Later, Dr F opines in respect of the father’s behaviour that it:
71.…provides evidence of [Mr Gerardo’s] capacity for violence and his capacity for profound levels of aggression towards another living thing.
Dr F later opines:
139.Furthermore, significant concern arises when considering [Mr Gerardo’s] abuse of the family’s dog. Throughout the assessment and within his affidavit material, [Mr Gerardo] consistently minimised his treatment of the dog, yet the video evidence reveals his actions to be abhorrent, demonstrating extreme and undeniable violence towards the animal. He has stated his view that his actions towards the dog should not be considered relevant to his parenting matter, however that cannot be supported by the current literature, nor indeed with respect to the current Family Law Act.
140.There is a well-documented correlation between animal abuse and domestic violence, particularly in the context of coercive control. Studies indicate that individuals who perpetrate domestic violence often extend their abusive behaviours to household pets as a means of exerting control and instilling fear in their human victims. The presence of animal abuse in a household can be a significant indicator of broader patterns of domestic violence. Research has shown that abusers may harm or threaten to harm pets to manipulate and intimidate their partners, reinforcing their dominance and control within the relationship. Animal abuse is prevalent in homes where intimate partner violence occurs, with victims frequently reporting that their abusers threatened or harmed their pets as a form of punishment or coercion, and it is important to recognise animal abuse as a known component in the cycle of domestic violence.
141.Violence against family animals is often carried out in front of the victim-survivor and sometimes in front of children as well. On the balance of probabilities, there is sufficient evidence from the interviews from the children, for the Court to confidently reach the conclusion that this has occurred in the [Gerardo] household. Notably, the controlling behaviours perpetrators use with human victim-survivors (e.g. threatening or using violence to elicit compliance with the perpetrator’s wishes) are sometimes also used towards the family animal. It is common for perpetrators of IPV to use physical violence or verbal abuse to try to prevent the family animal from performing certain behaviours or to punish them for certain behaviours. In this case it appears (for reasons that are not yet discerned) that the family animal was disproportionately punished simply for going to an area that [Mr Gerardo] did not like.
Dr F further opined:
166.Noting that the family dog has been removed from the family by the RSPCA, the risk that the children will be witness to further animal abuse is limited only to the outcome of the criminal investigation, and a determination that [Mr Gerardo] is no longer allowed to own an animal. To mitigate any further risk, it is strongly recommended that if possible, [Mr Gerardo] be ordered that he is no longer permitted to ever own (or care for) an animal while the children are still spending time in his care.

Dr F observed that the mother has subsequently undertaken psychological therapy and concludes that this has:
135.…enabled her to better understand her actions during this time and the profoundly negative impact it had upon her relationship with her three children.
I accept his observations and conclusions.
I also note what Dr F says at paragraph 131 of the Single Expert Report about the father’s response. I am satisfied and find that the father has capitalized on this and reinforced to the children in a deliberate and most destructive way that the mother was to be feared. He did so with no regard for the psychological damage it would do to his children.
In addressing the future, Dr F opined that the first step was to rectify the children’s relationship with their mother by permitting them to spend lengthy periods of quality time in her care to enable them:
147.…to re-build a relationship with her that does not involve [Mr Gerardo] nor is subject to his constraining, if not discouraging influence.
Dr F considered that it was important that the mother be permitted to contact the children and records that the father has resisted providing the children’s telephone number to the mother. Dr F records as follows:
148.…It is considered essential that [Ms Gerardo] is provided with the relevant contact details for the children.
It is concerning to note that despite that recommendation in a report released to the parties on 24 August 2024 the father still had not, until the end of the hearing, provided the children’s phone numbers to their mother.
Dr F, in relation to the father, observed as follows:
152.As such, and when considering the narratives of the three children, all of whom have been counselled about the intricacies of their mother’s family financial conflicts over [Suburb QQ] land, [Mr Gerardo’s] intentions appear to be deeply self-focused and serious questions need to be asked in relation to his integrity. Regardless, the very fact that he has persisted with this issue for so long, that it remains a core aspect of the Family Court matter, illustrates the lengths to which [Mr Gerardo] is prepared to go. It is apparent that he has engaged in the subjugation of his entire family, working specifically to achieve the alignment of the children with his views. But of concern is that he has done so with particular manipulative skill and continues to do so at the present time.
Dr F’s conclusion was not the subject of challenge or cross-examination. I accept his opinion.
Dr F concluded that at the time of the assessment, there was no ongoing risk such that the children’s time with their mother needed to be supervised and opined that the children needed to immediately resume time with their mother.
In relation to the future care arrangements for the children, Dr F opined as follows:
158.…At the current time, the requirement for supervision simply feeds into the father’s narrative to the children that she is a person to be feared and mistrusted. This serves the needs of [Mr Gerardo] only, and that does not stand in the best interests of the children. [Ms Gerardo] has had a long supportive and close relationship with her three children, which has become profoundly fractured following [Mr Gerardo’s] conflict with the maternal family surrounding the Maternal Grandmother’s property. This is simply unacceptable when considering what is in the best interests of the children. [Mr Gerardo’s] capacity to engage in subtle and passively expressed anger, which covertly divides relationships and isolates people from one another, and when combined with the children’s exposure to his repeated violence toward the family pet, is of deep concern for the long-term welfare of the children.
159.Therefore, it is recommended that the children be allowed to spend time during the day with their mother, starting with daytime only, on both Saturday and Sunday, each weekend for the next three months. Overnight time on the Saturday night should begin after a period of four weeks. Noting their sporting requirements, [Ms Gerardo] should be allowed to enlist the support of family and friends in order to deliver the children to their respective sporting events, and for the next three months, [Mr Gerardo] should step back from all attendance at weekend sport. Children not engaging in sport on the weekend should be with [Ms Gerardo]. [Mr Gerardo] can manage all sporting requirements through the weekdays.
160.It is noted that throughout this assessment, [Ms Gerardo] consistently maintained that she wanted to resume her time with the children and repair the relationship she had with [Mr Gerardo]. Her proposal was considered reasonable; however, noting the reluctance of the children at the present time, this is not considered viable until she has been able to begin to repair the fractures that have developed over the past four years. Equally the proposal of [Mr Gerardo], although it is considered very possible that allowing the children to spend time with each parent as per their wishes would be ‘easy’ for the children, a serious impediment to the success of this proposal has been identified, and this clinician does not consider that proposal to be in the children’s best interests. It is also considered highly improbable that [Mr Gerardo] will facilitate such a relationship between the children and their mother, as it is evident that he has the ability and wherewithal to fracture familial relationships, undermine any positive steps made, in order to remain the aligned parent and maintain a position of control.
…
162.In sum, it is this clinician’s opinion that the children would benefit from spending significant time with their mother as well as their father. This should begin with the removal of the requirement for their time with their mother to be supervised, consistent weekend time with their mother for a period of three months, progressing from Saturday and Sunday during the day for a period of four weeks, to overnight time on the Saturday night after that time. The children were seen to relax and engage positively with their mother after a period of 30 minutes away from the influence of [Mr Gerardo]. Should they be allowed to have ongoing and regular time with their mother moving forward, which sits outside their relationship with their father, it is strongly believed that the relationship with one another will quickly improve and any reluctance shown by the children dissipate.
163.The suggestion that the care arrangement may ultimately progress to a 50/50 shared care arrangement with [Ms Gerardo] and [Mr Gerardo], will depend on the success of the above proposal, which is difficult to predict at the present time. Should the children continue to reject time with their mother after the three-month period, the Court may have no other choice than to seriously consider an abrupt reversal of care for a further three months to allow them the time and space away from their father in order to more effectively rebuild the relationship with their mother. The conflict in this matter appears to be entirely between the adults but has permeated down into the relationships with the children through their exposure to this conflict and the requirement by the parents’ respective personalities for the children’s unwavering alignment to a narrative of which they do not have the requisite developmental capacity to appropriately understand or effectively challenge on their own.
The orders of 13 December 2024 were an attempt to restore the children’s relationship with their mother which failed due to the undermining by the father and his failure to facilitate time.
Dr F in his oral evidence confirmed that he had the benefit of the parties’ affidavits and the orders of the parties. His clear unequivocal recommendation was that the children needed to be placed in the primary care of the mother and that there needed to be a suspension of the children’s time with their father. While Dr F said three months was appropriate, he did not raise any serious objection to a period of four months.
Dr F was clear in his recommendation that he did not see a benefit to the children of being supervised in their interactions with the father given their age and their attitudes once time resumed and that time should progress with their father ultimately to a five-night arrangement with time in school holidays.
Attempts by counsel for the father to engage Dr F in an alternative arrangement where the children remained in the father’s care was not supported by Dr F.
SECTION 60CC OF THE ACT
Addressing such of the factors pursuant to s 60CC of the Act as are relevant and not otherwise discussed in these reasons.
(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);
In submissions, the father’s counsel conceded that the children are safe in the mother’s care. I accept that in the period leading up to separation there were aspects of the mother’s parenting that were deeply concerning and distressing for her children, and which explains in small part their reaction to her post-separation. Her behaviour pre-separation was abusive. That said, the mother has undertaken considerable work with her psychologist and I am satisfied and find that she is reflective of her past conduct and is determined to not repeat the errors of the past.
I am satisfied, given how she dealt with the events of the Australia Day weekend that was manipulatively orchestrated by the father, that she has the strategies to deal with the children. I accept Dr F’s opinion that the mother has effectively managed the historical risk concerns.
I am satisfied on either parties’ proposals the children will be safe in the care of the mother.
I am satisfied that any proposal that sees the children in the primary care of the father would be one that would not promote their safety and would expose them to a risk of harm, abuse and family violence. I accept Dr F’s opinion that the children are afraid of the father and that he has a “capacity for violence” and a capacity for “profound levels of aggression towards another living thing” (Single Expert Report, paragraph 71) and a “subtle and subversive capacity to breakdown relationships and create alliances” (Single Expert Report, paragraph 164). This is amply demonstrated by his undermining of the mother’s parenting and his negative influence on the children.
Despite an opportunity to do so and with the knowledge of the possible consequences of not doing so, he has proved he has no willingness to promote a relationship between the children and their mother.
In this respect, Dr F observed:
165.That said, it is evident that [Mr Gerardo] has a strong bond with his children, and that he appears to have the capacity to care for them and meet their developmental needs. The concern is that the children are also afraid of their father, with undeniable indications that he exerts considerable passive control over them, which appears to be impacting their capacity to have a relationship with their mother and their maternal extended family. [Mr Gerardo’s] capacity to emotionally regulate himself under stress however, appears to be another factor here, given he has shown himself to be capable of unspeakable violence towards another living thing, namely the family dog, and has done so in direct view of his children on multiple occasions. As outlined in the research, the impact on children and partners of witnessing animal abuse, is profound both as an immediate and traumatic experience and in the longer-term having been exposed to such a toxic behavioural model. Of further concern however, is [Mr Gerardo’s] unwillingness to acknowledge the severity and seriousness of his behaviour, which also indicates a profound lack of self-awareness and insight, which leaves open an ongoing risk of continuing to engage in such behaviour.
I accept Dr F’s opinion.
In the event the children remained in the father’s primary care they would be exposed to the risk of abuse as evidenced by his behaviour to the dog, emotional and psychological harm by denial of their right to have a relationship with both of their parents, and exposed to a parenting role model who is violent and aggressive, who manipulates interpersonal relationships (Single Expert Report, paragraphs 152 and 158) and who exposes them to a persistent deeply negative narrative of their mother and the maternal family (Single Expert Report, paragraph 174. Such an arrangement would be the complete antitheses of one that would promote the safety of the children and would be inconsistent with their best interests.
(b) any views expressed by the child
The father says that the children have expressed to him in strong terms that they do not want to spend overnight time with their mother and the younger two children have told him and the mother they won’t go with the mother unless their elder brother is present. The constant refrain from the father in his affidavit and in cross-examination was that he has listened to the children and acted consistent with what he says is their view. He maintained this stance despite the clear statement by Dr F in the Single Expert Report which the father has had since August 2024. The content of the Single Expert Report on this issue and what Dr F says is the genesis of the children’s views was not the subject of challenge by the father’s counsel.
The father submits that the Court should place significant weight on the expressed views of the children. The irony in the father’s submission is that the order he proposes sit inconsistently with what he says are the children’s views and inconsistent with his submission that their views should be given significant weight.
I accept that the children have told the father they don’t want overnight time and that the younger two have said they only want to spend time with their mother if their older brother is present. However, it would be reductive to conclude any consideration of the children’s views based solely on what they report. The context in which they express their views and the reasons why is the touchstone to any consideration of their views.
I am satisfied that the children’s views are expressed in a context that pre-separation involved significant parental conflict, dysregulated and inappropriate emotional responses by the mother together with a persistently negative undermining of her authority as a parent by the father. Post-separation the father has exercised a pervasive influence and control over the children and pedalled to the children an extremely negative narrative of their mother and the extended maternal family. By his own admission, he has used his children to obtain an advantage in these proceedings. This admission in cross-examination demonstrates the depth of his loathing for the mother and his betrayal of his children’s best interests for his own personal gain. Dr F opines that the Court needs “to be quite guarded as to how much weight to place on the strength” of the children’s views (Single Expert Report, paragraph 145).
I accept the evidence of Dr F where he observes and concludes as follows:
138.…The children’s behaviour, both in their individual interviews and in the observation sessions with their father and mother, show a clear indication that the children are under the influence of [Mr Gerardo] and, despite a show of solidarity, are obviously afraid of him as well. Although there is no evidence of physical harm by [Mr Gerardo], it is evident that he exercises substantial passive control over the children. A notable example of this influence was the children’s adamant and repeated refusal to eat snacks provided by the mother, even though they were the exact same brand and product as that bought by the father, illustrating evidence of their deep-seated caution of doing anything that they felt could potentially upset [Mr Gerardo].
…
174.It is also noted that [X], [Y] and [Z] provided similar narratives when explaining why they did not want to spend time with their mother, and each displayed a very strong alignment with their father. The current assessment has found that they have been exposed to a persistent deeply negative narrative from their father, involving not only their mother but also their mother’s extended family. The rejection by the children of their maternal grandmother, appears to be based solely on their father’s discussion of the financial value of her land and his repeated comments to them, that their mother and father (and by deduction, themselves) deserved an inheritance. These are simply not the views of a child, and as such there is no question that the children’s views have been negatively impacted, if not simply directly imposed on them by their father.
…
176.Ultimately in this matter the children’s views are important to consider, however this must be done in the context of how they have come to those views. The issues raised by the children are important and should not be ignored (nor have they been by this clinician). The verbal abuse by their mother has been extraordinarily harmful and has contributed to the children losing trust in her. However, it appears that [Mr Gerardo] has capitalised on [Ms Gerardo’s] distress, using it to his advantage in order to gain the alignment of the children. He has then further capitalised on this by demonstrating to the children the potential of what can happen (for example, to the family pet), if his expectations are not complied with.
I recognise the children’s views but more importantly the context which shaped them including the influence and imposition of the father’s negative narrative. That said, it is clear from Dr F’s final recommendation that the children should live with the mother and time with the father should be suspended for a period of months that he did not regard the children’s views as decisive despite their age and how strongly they might be expressed. I am equally satisfied that they are not decisive.
(c) the developmental, psychological, emotional and cultural needs of the child
Dr F opined that the children did not have any developmental needs. Addressing the issue of their psychological and emotional needs, Dr F opined as follows:
179.Considering the children’s psychological and emotional needs, the impact and stress of being caught having to choose their alliance between their mother and father is evident in all three children. [X] had taken on the role of being the responsible elder sibling, which, although at some level is a normal occurrence, is less so when there is a father who has the subtle capacity to instil disapproval and fear. Both parents must be aware that [X] is a kind and warm child who is also likely to have been the most profoundly impacted by the actions that he has had to witness and interpret without the support of both parents. He has been forced to choose to side with father (despite witnessing his behaviour with the family pet) and, in doing so, has rejected his mother, which does not sit comfortably with him. It was also evident that his rejection of his grandmother was psychologically uncomfortable, and there was dissonance in his decision to do so.
180.Considering [Y’s] psychological and emotional needs, she was found to be a quiet girl with a serious and stern manner. The fact that she was observed to present such a stoic visage, who completed multiple psychological inventories indicating ‘nil’ concerns (about anything), highlights, not just her burden of stress, but her remarkable reluctance to let any of her feelings show to a stranger, which surely must be incredibly exhausting for her. It is strongly believed that she would benefit from a maternal figure in her life, particularly as she approaches puberty and adolescence. The absence of her mother during this pivotal time in her development is not considered to be in her best interests and it would be highly beneficial if she was able to repair the relationship with her mother.
181.Regarding [Z], as the youngest child of the family, he is heavily influenced by the actions and behaviours of both his older siblings and his father. That being said he has also been subject to his mother’s verbal abuse, and if [Mr Gerardo’s] narrative is to believed this has been going on for some time. It will be important to [Z’s] emotional and psychological needs to repair the relationship he has with his mother in order to understand that her actions during that time were not a true reflection of her feelings towards him, to ensure that his self-esteem is not impacted in the long term.
182.When considering cultural needs it is noted that both families are of […] heritage. No issues relating to culture were raised during the current assessment.

These opinions were not the subject of challenge in cross-examination, and I accept them. I am satisfied that the children’s psychological and emotional needs cannot be met in the primary care of the father given his attitude towards the mother. The children will have no capacity to restore their relationship with their mother, which is so important to their healthy psychological and emotional development, where they remain in his primary care.
(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
While the section has as its focus parental responsibility, and it is agreed that whichever parent the children live with will have sole parental responsibility, the observations and opinions of Dr F are relevant to a consideration of the wider aspects of whom the children should live with.
In relation to the father, Dr F opined:
158.…[Mr Gerardo’s] capacity to engage in subtle and passively expressed anger, which covertly divides relationships and isolates people from one another, and when combined with the children’s exposure to his repeated violence toward the family pet, is of deep concern for the long-term welfare of the children.
I accept his evidence.
In respect of these considerations, Dr F observed:
183.[Ms Gerardo] is considered to have the capacity to provide for the children’s needs including their developmental, psychological, emotional and cultural needs. It has not been missed, that [Ms Gerardo] has been, and continues to be placed in a particularly difficult situation through the passive-aggressive behaviours displayed by [Mr Gerardo]. That being said, she must also work on her own parenting skills in order to be more effective in meeting her children’s needs in an appropriate manner in the future. It is reaily [sic] apparent [Ms Gerardo] needs to learn to better regulate her emotions when under stress, and given the constancy of parenting, it is most likely that the stress associated with current parenting demands will only continue to increase. She also needs to work to improve the trust between herself and the children and seek to encourage their ongoing development of independence and resilience.
184.When considering [Mr Gerardo’s] capacity to do so, there are no concerns as to his willingness to provide for his children’s needs. As previously mentioned, the current assessment has found some cause for concern with regard to the manner in which [Mr Gerardo] has profoundly adversely influenced his children with his negative narrative of their mother and maternal extended family and employed subtle but sophisticated coercion in order to gain their alliance. His tendency to overlook, if not disregard the needs of his children in doing so is considered to be an impediment to his capacity to meet their psychological, emotional, and intellectual needs.
I accept these opinions expressed by Dr F. I have no confidence that the father will desist from conducting himself in a manipulative and unempathetic manner. He continued to so after the Single Expert Report was released and in the full knowledge of the consequences of doing so. He is either unable or unwilling to modify his behaviour.
Of great concern is Dr F’s view of the father’s limited insight and inability to reflect upon his own behaviour. In that respect, I accept Dr F’s opinion where he records:
77.…He was often lacking in both insight and self-awareness, unable to demonstrate any capacity to reflect upon his own behaviours but extraordinarily willing to place judgement upon those around him, most particularly [Ms Gerardo]. His inability to engage in any degree of self-reflection even when pressed was concerning, as it is preventing him from developing a realistic understanding of the needs of his children. His view that his parenting over the past eight months has been ‘remarkable’, is further evidence of this, as this is not a view that has been supported during the current assessment. His total absence of insight about the impact his prior and current actions may have been having on the children was also noted.
(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
In this respect, Dr F observed as follows:
189.[X], [Y] and [Z] would benefit considerably in having a meaningful relationship with both parents. Children develop their self-concept and their own understanding of how to operate within the world in which they live through their relationship with their primary caregivers. If they are not able to have contact or a relationship with one or both of their parents, the impact on the child is considerable and potentially lifelong. Meaningful relationships with each parent are essential for children’s emotional, physical and intellectual growth and have a profoundly significant impact on their ability to have healthy, secure attachments in their future relationships. When children are able to have more than one primary attachment figure, it allows them to develop confidence and gives them a strong sense of security that they are able to turn to more than one person in times of emotional distress or other need.
190.Healthy attachment bonds to both parents help children to build self-confidence and positive self-esteem. Attachment is formed when strong emotional bonds develop between a child and their specific caregivers, and it is this experience that then provides the foundation for all their future relationships as it teaches them that they are worthy of being loved by others, and to feel safe and secure in relationships with others in the future. Hence it is critical that stable trusting attachments form when children are young. It provides children with a sense of security, the capacity to develop trusting relationships that give them ongoing positive emotional and social adjustment. In the absence of these or alternatively when critical attachments are unnecessarily breached, it provides the basis for mistrust, teaching the children it is not safe to form attachments, which then impairs cognitive and emotional development with potentially life-long consequences. The children’s relationships with their parents then is not questioned and indeed is wholeheartedly supported. What needs to alter is the disparate nature of the parenting practices to which they have been routinely exposed.
I am satisfied that it is in the interests of the children to have a meaningful relationship with both of their parents.
I have no confidence that the father will permit the children to have a relationship with their mother. Dr F opined:
160.…It is also considered highly improbable that [Mr Gerardo] will facilitate such a relationship between the children and their mother, as it is evident that he has the ability and wherewithal to fracture familial relationships, undermine any positive steps made, in order to remain the aligned parent and maintain a position of control.
Leaving the children in his primary care will ensure a continuation of the fractured and disrupted relationship that they have had with their mother since September 2023. The only proposal that ensures that it can occur safely is one where they live with the mother and spend initially limited periods of time with the father.
(f) anything else that is relevant to the particular circumstances of the child.
In this respect, Dr F observed:
191.As outlined in the body of the report, this matter is made more complex due to the allegations of family violence by both parents and what appears, on the balance of probabilities, to be sufficient evidence to conclude that both parents have engaged in family violence, and all children have been exposed to family violence. The actions of [Mr Gerardo] towards the family pet though are particularly egregious and warrant detailed consideration by the Court.
I am satisfied that the orders I propose do not, to the extent possible, expose any party or the children to an unacceptable risk of family violence and is consistent with an existing family violence order.
CONCLUSION
I am satisfied that the living arrangements as proposed by Dr F in his oral evidence, namely, that the children live with their mother and that time with their father is suspended for a period of time, is in their best interests. Dr F opined that there needed to be what was described as a ‘carrot and stick approach’ reflected in the orders. In that respect, he opined that in the event that the children attempted to contact the father or that the father contacted the children at any time during the suspension period, then the period of suspension would recommence. The purpose was to reinforce both to the father and the children the importance of orders and to ensure that there was not any undermining of the arrangements for the children. In respect of the period of time, Dr F was not opposed to a regime of four months.
I am also satisfied that the father’s time with the children needs to be suspended to give the children the best opportunity of resuming their relationship with their mother, uninfluenced by the father’s negative attitude towards her and his undermining of their relationship with her. It was clear from the Single Expert Report that the children warmed up to their mother over the course of the interview. They need to be given time to restore their relationship unimpeded by the pervasive influence of their father. The mother proposed that the period of time be six months, whilst the ICL proposed four months. Dr F did not oppose an order for four months. I am conscious of the need to ensure that the period of time is not so long as to make it unduly burdensome for the children in circumstances where they undoubtedly will want to see their father. I am satisfied that the best interests of the children are met by a period of four months.
The mother recognised in her evidence that the children would find the change distressing and upsetting. That said, Dr F would not have proposed such an arrangement if he did not think that it was in the best interests of the children. I also accept Dr F’s opinion as follows:
162.…Should they be allowed to have ongoing and regular time with their mother moving forward, which sits outside their relationship with their father, it is strongly believed that the relationship with one another will quickly improve and any reluctance shown by the children dissipate.
I propose to adopt the “carrot and stick approach” to protect against the undermining and to ensure compliance. The purpose of this is to send a clear and unequivocal message to the children that they do not dictate arrangements for time with their parents.
In relation to what arrangements should be in place for the children thereafter, the father proposed that there should be a five-night per fortnight regime in a block as well as half school holidays. The ICL for their part proposed that time increase over three-monthly intervals, whereas the mother proposed six-monthly intervals. The ICL also proposed that school holiday time commence once the alternate weekend arrangement would start, whereas the mother did not provide for any school holiday time. The mother’s proposal, I am satisfied, is unduly restrictive and not in the best interests of the children. I am satisfied that her proposal has the significant risk and potential to completely break down given that the incremental increases in time are too slow when considering the ages of the children and their undoubted desire and need to spend time with their father.
I am satisfied that the arrangements as broadly proposed by the ICL are ones that more closely accord with Dr F’s recommendations and incrementally increase the father’s time with the children. I am, however, satisfied that for the first three-month period, the father’s time with the children needs to be supervised. The children will undoubtedly ask the father many things and I have no confidence that the father would restrain himself. Given the history, I am satisfied that supervision is necessary to ensure that the children and the father understand that there must be a complete cessation and ending of the negative undermining of the mother and her family.
I am not persuaded that a five-night arrangement in the school terms is immediately in the children’s best interests, even though it was proposed by Dr F. The father did not propose it as in the children’s best interests if they lived with him. I am satisfied that alternative weekends in school terms strikes the right balance for a period of time to allow things to settle down ensuring the children spent time with the father and limiting as much as possible the high risk of his undermining and negativity. An additional night on a Wednesday will be introduced in the second year after full weekends have commenced.
I am satisfied that the restraints and injunctions on the father’s behaviour are necessary as being in the children’s best interests, accepting as I do, Dr F’s opinion that the children need to be protected from the father’s negative influence. The s68B injunctions are necessary and, in the children’s, best interests and necessary for the protection of the mother and children to ensure that the orders are not undermined and are capable of expeditious compliance.
Likewise, I accept Dr F’s opinion that the children need to be protected from the risk of the father acting violently towards an animal and will make an injunction providing such protection.
As the mother will have primary care and sole parental responsibility, then it is appropriate she be allowed to take the children overseas. In the event the father wants to travel overseas, then he will have to make an application at that time.
I am satisfied that the orders I propose are ones that are practical, workable, and are in the best interests of the children.
COSTS
The ICL sought an order that each party pay the costs of the ICL in the sum of $9,874.90 each within 42 days.
The father did not oppose the making of such an order, but the mother did. I will make an order as sought in relation to the father.
The mother’s opposition seemed to be primarily financial in that it was said her financial position was straightened and she has had to borrow funds to meet her legal fees.
An application for costs is governed by the provisions of s 117 of the Act, which provides a general rule that each party to the proceedings should bear their own costs.
Section 117(2) of the Act reposes in the Court a discretion to make a costs order if the Court determines there are circumstances that justify this and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A) of the Act. It is well-settled law that no one factor in s 117(2A) is determinative, and the Court may give such weight as it considers relevant to any factor.
I am satisfied that the circumstances justify the making of an order as sought by the ICL as a departure from the general rule in s 117 of the Act. The ICL has played an invaluable role in these proceedings and as is clear from their affidavits, the parties have at times turned to the ICL for support or guidance. The sum sought is modest when compared to the significantly large amounts that they have expended on their own legal fees. In circumstances where the mother contends she is without funds, then I propose to order she meet payment of the ICL’s costs 42 days after she receives her final property settlement entitlements.

I certify that the preceding two hundred and twenty-six (226) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.
Associate:
Dated: 9 May 2025

File number:	SYC 7195 of 2023
Judgment of:	SCHONELL J
Date of judgment:	9 May 2025
Catchwords:	FAMILY LAW – PARENTING – Final Orders – Family violence – Where the parents disagree on whom the children should live with – Where each of the parents hold a negative view of the other and contend that the other parent has perpetrated family violence – Where the mother was charged with and convicted of family violence offences – Where the mother has psychological support and has completed parenting courses – Where the father was charged with animal cruelty offences regarding the family pet – Where the Court is satisfied that the father’s conduct towards the family pet constituted repeated and deliberate acts of family violence – Where the mother contends that her relationship with the children has been undermined by the father – Where the single expert opines that the father is a constraining, if not discouraging influence on the children’s relationship with their mother – Where the Court finds that the father has a lack of insight and disregard for the children’s welfare and has involved the children in the parental conflict. FAMILY LAW – PARENTING – Change of residence – Where the children are in the primary care of the father – Where the children came into the primary care of the father without the consent of the mother prior to proceedings commencing – Where each party sought primary care of the children – Where the children have lived with the father since September 2023 – Where the expert and the Independent Children’s Lawyer support a change in residence so that the children live with the mother – Change of residence with sole parental responsibility to the mother – Considerations pursuant to s 60CC of the Family Law Act 1975 (Cth) – Where it is in the children’s best interests to live with the mother, where time with the father is suspended for four months, and thereafter spend incrementally increasing periods of time with the father.
Legislation:	Evidence Act 1995 (Cth) s 128 Family Law Act 1975 (Cth) Pt VII, ss 60CA, 60CC(2), 60CC(2A), 60CG, 117, 117(2), 117(2A)
Cases cited:	Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1 Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 M v M (1988) 166 CLR 69; [1988] HCA 68 Pickford & Pickford [2024] FedCFamC1A 249 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division:	Division 1 First Instance
Number of paragraphs:	226
Date of hearing:	24 March 2025 – 28 March 2025
Place:	Sydney
Counsel for the Applicant:	Ms Gillies SC
Solicitor for the Applicant:	York Law Family Lawyers
Counsel for the Respondent:	Mr Howard
Solicitor for the Respondent:	One Law Group Pty Ltd
Counsel for the Independent Children’s Lawyer:	Mr Guterres
Solicitor for the Independent Children’s Lawyer:	Phillip A Wilkins & Associates

SYC 7195 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS GERARDO Applicant
AND:	MR GERARDO Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	9 MAY 2025