Jasink & Sordi

Case [2024] FedCFamC1F 577

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Jasink & Sordi [2024] FedCFamC1F 577

File number: MLC 1012 of 2017
Judgment of: MCNAB J
Date of judgment: 29 August 2024
Catchwords:

FAMILY LAW – PARENTING – Where final parenting orders were made by consent in December 2017 providing for equal shared parental responsibility, the children to live with the mother and spend substantial time with the father – Where the mother commenced fresh proceedings on the basis that the oldest child’s enuresis and anxiety was borne from family violence perpetrated by the father and his capacity to parent was compromised – Where the mother’s claims are unfounded and contrary to expert evidence – Where the oldest child has received a preliminary diagnosis of ASD and ADHD – Where the mother is fixated and unwavering in her belief that the father is the cause of the children’s presenting issues – Where an order for equal shared parental responsibility is not in the best interests of the children as the mother is unable to cooperate with the father – Where the evidence is indicative of the mother failing to exercise parental responsibility in the best interests of the children – Orders for the father to have sole parental responsibility and for the children to spend equal time with the parents – Father to make decisions regarding the children’s schooling as an exercise of parental responsibility.

FAMILY LAW – CHILD SUPPORT – Application for departure by the mother – Where there was no evidence of the mother having served the application on the Child Support Registrar – Where even if the application was served, there are no special circumstances established to entertain the application – Application dismissed.
Legislation:

Child Support (Assessment) Act 1989 (Cth) ss 116, 117

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAC.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.13, 2.02, 2.31

Cases cited:

Aish & Greco [2014] FCCA 2283

Fitzwater & Fitzwater (2019) 60 Fam LR 212

Isles & Nelissen (2022) FLC 94-092

Rice & Asplund (1979) FLC 90-725

Division: Division 1 First Instance
Number of paragraphs: 145
Date of hearing: 29 April-3 May 2024
Place: Melbourne
Counsel for the Applicant: Ms Johnson
Solicitor for the Applicant: Resolve Conflict Lawyers
Counsel for the Respondent: Ms Metherell
Solicitor for the Respondent: Sayer Jones
Counsel for the Independent Children's Lawyer: Mr James
Solicitor for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

MLC 1012 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS SORDI

Applicant
AND:

MR JASINK

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

29 AUGUST 2024

THE COURT ORDERS THAT:

1.All extant parenting orders be discharged.

Parental Responsibility

2.The father have sole parental responsibility for the children X born 2012 and Y born 2015 (“the children”).

3.For the purpose of exercising sole parental responsibility:

(a)Save in the event of an emergency, the father contact the mother…

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AGLC
Jasink & Sordi [2024] FedCFamC1F 577
Case
[2024] FedCFamC1F 577
Decision Date

CaseChat Overview and Summary

In the matter of Ms Sordi v Mr Jasinsk, the Federal Circuit and Family Court of Australia was tasked with determining several parenting and child support issues between the parties. The primary dispute centred on the allocation of parental responsibility and the arrangement for the children's living and spending time between their parents. The mother alleged that the father perpetrated family violence, impacting the children's mental health and wellbeing, while the father denied these allegations and argued that the mother's conduct undermined the children's relationship with him. The court found that the mother's claims were unfounded and contrary to expert evidence, and that her inability to cooperate with the father rendered an order for equal shared parental responsibility unfeasible. Consequently, the court ordered that the father have sole parental responsibility for the children.

The court also addressed the children's schooling, directing the parties to enrol the children in specific schools and for the father to reside within the children's school zone if necessary. Living and spending time arrangements were set out in detail, with the children to live on a week-about basis and spend equal time with both parents during school holidays. Special occasions were also outlined, ensuring the children spend time with both parents on significant days. Communication and information sharing between the parents were mandated to ensure the children's care and welfare were prioritised. The court further imposed restraints on both parents to prevent abuse, belittling, and inappropriate discussions about the proceedings with the children. Overseas travel arrangements were authorised with specific conditions, including notice requirements and consent from the non-travelling parent.

In relation to child support, the mother's application for departure orders was dismissed due to the lack of evidence that the application was served on the Child Support Registrar and the absence of special circumstances to warrant a departure from the assessed child support. The court also discharged the Independent Children's Lawyer and dismissed all other extant applications. The detailed orders reflect a comprehensive approach to ensuring the children's best interests are prioritised in a manner that promotes cooperation and minimises conflict between the parents.

Orders

Orders of the court

MLC 1012 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS SORDI

Applicant

AND:

MR JASINK

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

29 AUGUST 2024

THE COURT ORDERS THAT:

1. All extant parenting orders be discharged.

Parental Responsibility

2. The father have sole parental responsibility for the children X born 2012 and Y born 2015 (“the children”).

3. For the purpose of exercising sole parental responsibility:

(a) Save in the event of an emergency, the father contact the mother in writing not less than 7 days prior to making any major long-term decision with respect to the children and with such communication to set out the issue at hand and the father’s proposal;

(b) The mother may respond to any such communication in writing within 3 days thereafter detailing her position with respect to the issue;

(c) The father consider the mother’s position; and

(d) The father inform the mother in writing of the decision he has made within 7 days of making that decision.

4. For the purpose of facilitating paragraph 3 herein, the mother provide the father with her residential address, telephone number and email address and keep him informed of any changes to this information within 7 days.

5. In default of the mother’s compliance with paragraph 4 herein, compliance with paragraph 3 of this order is dispensed with.

School

6. The parties do all acts and things and sign all necessary documents to forthwith enrol the children at schools as follows:

(a) For primary School commencing Term 1, 2025:

(i) At C School; or in the alternative

(ii) At D School; or in the alternative

(iii) At E School; and

(b) For Secondary School:

(i) At F School; or in the alternative

(ii) At G School,

AND FOR THE PURPOSES OF FACILITATING THIS ORDER, from Term 1, 2025, the father reside within the children’s school zone in the event the mother does not reside within the children's school zone at that time and this is required by the school(s).

Living and Spend Time Arrangements

7. The children live with the parties on a week-about basis, with changeover to occur at the conclusion of school on Monday (or 3.30pm if a non-school day).

School Holidays

8. The children spend equal time with the parties during school holidays which follow terms 1, 2 and 3 in accordance with paragraph 7 above, such that the usual week about arrangement continue through the school term holidays.

9. The children spend equal time with the parties during long summer holidays as follows:

(a) When the long summer holidays commence in an even year, the mother have the first half (save for Christmas special days) and the father have the second half;

(b) When the long summer holidays commence in an odd year, the father have the first half and the mother have the second half;

(c) Where there is an uneven number of nights, the children spend an additional night with the mother if it is an even year and an additional night with the father if it is an odd year;

AND FOR THE PURPOSES OF FACILITATING THIS ORDER

(d) School holidays commence from the conclusion of school on the last day of the school calendar term from the school the children attend;

(e) School holidays conclude at the commencement of school on the first day of the school calendar term for the school the children attend;

THEREAFTER

(f) The week about arrangement provided for at paragraph 7 resume from the commencement of Term 1, with the children to remain in the care of the parent with whom they are spending the second half of the school holidays for Week 1 of the school term until the following Monday.

Special Occasions

10. The usual arrangements for the children outlined at paragraphs 7–9 above be suspended and the children spend time with the parties on special occasions as follows:

(a) On the children’s birthdays, with the parent who is not otherwise spending time with the children that day, from the conclusion of school until 7.00pm if a school day and from 11.00am until 3.00pm if a non-school day;

(b) With the mother on the Mother’s Birthday from the conclusion of school (or 3.30pm if a non-school day) until the commencement of school the next day (or 3.30pm if a non-school day);

(c) With the father on the Father’s Birthday from the conclusion of school (or 3.30pm if a non-school day) until the commencement of school the next day (or 3.30pm if a non-school day);

(d) With the Father on Father’s Day weekend from the conclusion of school on the Friday preceding Father’s day (or 3.30pm if a non-school day) until the commencement of school on Monday (or 9.00am if a non-school day);

(e) With the mother on Mother’s Day weekend from the conclusion of school on the Friday preceding Mother’s day (or 3.30pm if a non-school day) until the commencement of school on Monday (or 9.00am if a non-school day);

(f) With the father for Christmas from 5.00pm Christmas Eve until 10.00am Boxing Day;

(g) With the father for Easter from the conclusion of school on Thursday until the commencement of school (or 9.00am if a non -school day) on the Tuesday immediately following Easter Monday;

(h) With the father for cultural days of significance being:

(i) From the conclusion of school (or 3.30pm if a non-school day) on the night of a cultural event until the commencement of school (or 9.00am if a non-school day) the following day; and

(ii) From the conclusion of school (or 3.30pm if a non-school day) on the night of a cultural festival until the commencement of school (or 9.00am if a non-school day), the following day.

(i) With the mother for religious special days being:

(i) The first night of a religious holiday from 3.15pm until 8.45am the following day;

(ii) The last night of a religious holiday from 3.15pm until 8.45am the day following the second night of a religious celebration; and

(iii) The first two days of a religious celebration from 8.45am on the first night until 8.45am on the day following the second night,

AND FOR THE PURPOSES OF FACILITATING THIS ORDER, the mother notify the father of the dates of the religious special days no less than 7 days prior and in the absence of receipt of notice, the time arrangements provided for at paragraph 10(i) herein be suspended and the usual time arrangements continue.

11. The parties are hereby at liberty to agree to such other arrangements for the children’s care in writing from time to time.

Changeover

12. Unless otherwise agreed, all changeovers not occurring at the children’s school take place at Coles Suburb H.

The children’s Treatment

13. The parties continue to facilitate X’s attendance on J Psychology at such frequency as may be recommended by Dr K and/or Dr L and with the parties to meet the costs of her attendance equally.

14. The parties engage J Psychology to complete an ADHD and ASD assessment of X, at the parties’ equal expense.

15. The parties facilitate X’s attendance on a female paediatrician to support the diagnostic process regarding ASD and ADHD, to address her enuresis, encopresis and anxiety, and to determine whether medication is appropriate at the parties’ equal expense.

16. The parties facilitate Y’s attendance on J Psychology at such frequency as may be recommended by Dr K and with the parties to meet the costs of Y’s attendance equally.

Communication and Information

17. The parties communicate directly by text message or email (or by telephone, if urgent) in relation to any issues concerning the care and welfare of the children.

18. The children be at liberty to communicate by telephone and video call or other electronic means with the parent with whom they are not spending time at any reasonable time and the parent with the care of the children facilitate the children doing so upon request by the children.

19. The parties each be at liberty to:

(a) Liaise with any medical, educational or other professionals involved with the children and obtain all information and documents ordinarily made available to parents; and

(b) Attend all significant medical and educational appointments and school functions/events or sport events concerning the children at which parents are ordinarily in attendance.

20. The parties keep each other informed of:

(a) All significant medical issues concerning the children and any appointments relating to same; and

(b) Any significant injury suffered by the children whilst in their care.

21. Both parties be at liberty to attend any school activities that a parent would usually attend.

22. The parties be at liberty to enrol the children and have them attend extra-curricular activities during the time the children spend in the enrolling party’s care and refrain from enrolling the children in activities which require attendance during times the children are in the other parent’s care, save for if the activity is agreed in writing between the parties AND FOR THE PURPOSES OF THE CHILDREN’S ENROLMENT IN ACTIVITIES, each party be solely responsible for any activity in which they choose to enrol the children.

23. Both parties adopt the same method of addressing X’s enuresis and encopresis as may be recommended by X’s treating professions including:

(a) Obtaining and utilising a bed alarm; and

(b) Period (or equivalent) underwear to be worn only at school or in public or at night on an interim basis to assist X to become attuned to the sensation of wetting herself, with both parties to endeavour to assist X transition out of period underwear.

24. The parties notify each other in the event the children are absent from school at the earliest opportunity.

Restraints

25. The mother be and is hereby restrained by injunction from:

(a) Co-sleeping with the children;

(b) Showering/bathing with the children; and/or

(c) Allowing the children (or either of them) to be absent from school on a school day save for in circumstances of illness, and where the children miss two consecutive school days, she obtain a medical certificate which specifies the children’s aliment and provide it to the father.

26. Without admitting necessity, the parties be hereby restrained by injunction from:

(a) Abusing, belittling, insulting or otherwise denigrating the other party, or their family in the presence or hearing of the children or any other person to do so;

(b) Discussing these proceedings with the children, or in the presence and/or hearing or quizzing the children about their time with the other parent;

(c) Facilitating the children’s access to documents in these proceedings, including in hard or soft copy; and

(d) Providing court documents to other persons/organisations in the absence of leave from the Court.

27. The mother make the children’s library bags, X’s glasses and other equipment for school available to the children for their time with the father and those items transition between households at changeovers.

Travel

28. The parties forthwith do all acts and things and sign all necessary documents to obtain and then keep current Australian Passports for the children, with the costs to be met equally by the parties and once obtained, the passports be held by the father.

29. The father make the children’s passports available to the mother no less than 7 days prior to the intended travel and no later than 7 days following the conclusion of the travel, the passports be returned to the father.

30. The parties be authorised to remove the children from the Commonwealth of Australia for the purposes of overseas travel provided that:

(a) The traveling parent has provided the other parent with 30 days written notice for travel, including flight itineraries and all accommodation details, including telephone numbers and websites where available;

(b) The travel occur to Hague convention countries, unless otherwise agreed in writing;

(c) The travel occur during the children’s time with that parent pursuant to these Orders, unless otherwise agreed in writing;

(d) The travelling parent is to ensure that the children receive all appropriate vaccinations to travel as recommended by the children’s treating medical practitioner; and

(e) The other parent has provided their written consent to the travel, with such consent not to be reasonably withheld AND FOR THIS PURPOSE IT IS NOTED that travel is not subject to the parties facilitating telephone time save for as otherwise provided herein.

Miscellaneous

31. The father be at liberty to provide a copy of these orders to:

(a) The children’s General Practitioner;

(b) X’s Clinical Psychologist at J Psychology or any other Clinical Psychologist the parties agree she is to attend;

(c) Y’s Psychologist at J Psychology or any other Clinical Psychologist the parties agree she is to attend;

(d) The children’s school(s); and

(e) Any other medical, therapeutic or allied health professionals working with the children.

32. The father be at liberty to provide a copy of Ms M’s updated Family Report to:

(a) J Psychology;

(b) X’s Speech Pathologist;

(c) X’s Paediatrician; and

(d) Any other medical, therapeutic or allied health professionals working with the children.

33. Within 14 days, the mother reimburse the father for one half of the cost of the updated Family Report prepared by Ms M in the sum of $4,675.

34. The mother’s Application for child support departure orders be dismissed.

35. The Independent Children’s Lawyer be discharged.

36. All extant applications be otherwise dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The hearing of this matter proceeded from 29 April 2024 to 3 May 2024. The issues that the parties require the Court to determine are: (1)Parental responsibility;(2)Schooling;(3)Whether the child spends five night per fortnight or seven nights per fortnight with the father in circumstances where the current orders provide for there to be equal shared time between the parents; and(4)Whether there should be orders for a departure from assessed child support payable by the father.BACKGROUND The father was born in Country N migrating to Australia in 2001. The parties married in 2005. The mother alleges that the marriage was dominated by family violence perpetrated on her by the father. This is denied by the father. The parties separated in January 2017 with divorce being granted in mid-2018. In 2017, an interim intervention order was made against the father. The father issued an Initiating Application in this Court on 6 February 2017. Final parenting orders were made by consent on 15 December 2017 by Judge Wilson (as he then was) in the Federal Circuit Court of Australia (as the Court was then known). Those orders provided, inter alia, for graduating spend time between the father and the children in conjunction with an order for equal shared parental responsibility for the children. The father states that the mother did not facilitate time with the children in accordance with the final orders. In 2020, the father sent a screenshot to the mother containing a message from O Company about her father’s electricity being disconnected for non-payment of his bill, the mother reported this as a breach of the FIVO to Victoria Police. The father was charged, pleaded guilty and was subject to a Diversion. Further, in 2020, the father allegedly came within 5 metres of the mother at a changeover at P Centre. The mother reported a breach of the FIVO and the father was charged and pleaded guilty, receiving a same day Diversion. The mother obtained a final full exclusion IVO against the father, without admissions, from 2020 to expire in 2022. The mother deposes to taking X to a GP in 2020 due to “significant anxiety” resulting in “nightmares and nocturnal enuresis” as a result, she says, of the conduct of the father. The GP referred X to a paediatrician for a psychological referral. Following an appointment with the paediatrician, X was referred to Q Psychology. The father alleges he was not advised or consulted. In 2020, whilst attempting to attend a paediatrician appointment for X, the mother was advised that she could not enter the hospital due to COVID-19 restrictions as Y was also present. The mother says that this caused her, along with other external stressors, to collapse. She was hospitalised and was subsequently placed on an ‘Assessment Order’ with Child Protection being notified. The children were placed into the care of the father, but the mother alleges that the father withheld the children from her. In 2020 the mother attended R Centre where she reported being a victim of family violence. Child Protection concluded their investigation in late 2020 with a case plan allowing the children to spend time with the father in accordance with final parenting orders.

Evidence

Evidence Before The Court

The ICL relies upon:(1)Affidavit of Ms M (Updated Family Report) filed 10 April 2024(2)Subpoena to V School filed by the ICL on 11 April 2024. (3)Subpoena to EE Medical Centre filed by the ICL on 12 April 2024.EVIDENCE Both parties have filed very lengthy affidavits. I do not intend to set out all the evidence of the parties or to seek to make findings to resolve or comment on each dispute that has been set out in the lengthy affidavit material. I will refer to the evidence which is relevant to the decisions I am required to make under the Family Law Act 1975 (Cth) (“the Act”). I am loath to make comment in relation to the presentation of the parties before the Court unless it is strictly necessary to do so. I understand that parties in these types of proceedings are experiencing extreme stress and the way that they present in court may not be representative of their presentation out-of-court. In this case, however, it is necessary to make comment in relation to the respective presentation of the parties. The mother’s presentation was concerning. She had great difficulty confining her answers to the questions that were framed and was very concerned to engage in quite lengthy speechmaking by which she sought to put herself in the best light and the father in the worst. She was repeatedly asked to contain herself but seemed either unable or unwilling to do so. She seemed unable to make concessions or acknowledge where she may be mistaken. The father’s evidence during cross examination was responsive and I got the impression that he was seeking to exercise restraint in the way that he responded to questions. He was not seeking to go out of his way to make derogatory remarks regarding the mother. He gave the impression of a person who was financially and emotionally overborne by the circumstances which he found himself in, being a second round of major litigation in relation to these children. His evidence in relation to his concerns and enquiries regarding the children’s schooling was compelling and generally, he gave the impression of a person who was concerned for his children. The mother’s trial affidavit deals extensively with evidence in relation to family violence allegedly perpetrated by the father prior to final orders being made in 2017. I do not refer to this in detail as those matters were raised and dealt with in 2017 when parenting orders by consent were made on 15 December 2017. Significant parts of the mother’s affidavit evidence comprise her stating opinions regarding the medical opinions expressed by treating doctors or trying to summarise those opinions. She also offers her view in relation to the contents and recommendations made by the Family Report writer Ms M. Where there is conflict between the evidence of the mother and father, I prefer the evidence of the father.The Family Reports of Ms M The current Family Report in this matter was prepared by Ms M and dated 30 March 2024. Ms M provided a previous report dated 15 August 2022 along with a supplementary report on 23 September 2022 in response to questions provided by the parties’ solicitors.

Decision

Reasons for decision

Not applicable.CONCLUSIONParental Responsibility s 61DA I am satisfied by the evidence that because of the mother’s attitude towards the father there is a fundamental incapacity for the mother to cooperate with the father and that leads me to conclude that it is in the best interests of the children for there to be orders that the father have sole parental responsibility. The mother’s attitude towards the father permeates much of her evidence before the Court to the extent that she was prepared to be less than honest with the Court and I believe that behaviour carries through in her conduct with the father and other health professionals that she deals with. One striking example can be found in correspondence surrounding a hearing date that was fixed before a Senior Judicial Registrar on 22 March 2022. The mother had sought an adjournment of this hearing date and by letter from the father’s solicitors to the Associate to the Senior Judicial Registrar, the solicitors urged that the hearing date be maintained and advised the Court that the father was seeking to marry his long-term partner in 2022 and wished for the children to attend. He required court orders for that to happen as the mother was at that time withholding the children. In an email to the Court dated 11 March 2022, the mother sought an adjournment of the hearing beyond the end of March 2022 stating that she was suffering from the effects of Covid. In that email she advised the Court that she did not know that the father was due to marry his partner in 2022. She advised the Court that she thought that the father’s decision to marry his partner may only be a recent decision which appears to have been made after the wife had instigated court proceedings on 7 January 2022. That narrative does not accord with the mother’s communications with a friend in 2022 which provided:[4][Ms Sordi] OMG […]. Yesterday I had to provide a statement to police and I filed my affidavit with the court regarding my decision to withhold the girls.Anyway, as I’m trying to get info to identify the snake and he’s partner to serve him papers on Monday, I stumbled across the website.[4] Exhibit A27. The website referred to is a website created around the then impending marriage of the father and his partner. The text messages go on:[Ms Sordi] Now I know why his mum is coming here.[Ms Sordi] He’s going to be livid with me,[Ms Sordi] I couldn’t have chosen worst timing. The mother’s comments to the Court that she was not aware of the impending marriage of the father and his partner was misleading. As a result of the mother visiting the website regarding the wedding, she would have been aware that it had been planned prior to 7 January 2022. The mother raises concerns about the father’s capacity to coparent and to prioritise the health and well-being of the children and comply with court orders[5]. I find that these concerns are not well-founded. In fact, the evidence demonstrates that it is the mother who has failed to cooperate at times. The appointment of a psychologist to assist X is such an example.[6] [5] Mother’s trial affidavit at [36].[6] Exhibit R12.

Ratio Decidendi

Legal Principle Established

In the event an order is made allocating equal shared parental responsibility to the child’s parents, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA). If parental responsibility for the child is allocated in some other way, then the exercise of the Court’s discretion about the child’s care arrangements is at large, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.BEST INTERESTS – PRIMARY CONSIDERATIONSSection 60CC(2)(a) The Benefit of the Child having a Meaningful Relationship with Both Parents The point of difference in this case regarding the children’s time with each parent is limited to the question of whether that time is 7 or 5 nights per fortnight with the father. Given this, whichever arrangement the children are subject to will see them having the benefit of a meaningful relationship with each parent, however, I accept the father’s concerns that if the children were to spend more time with the mother, this creates further opportunity for the mother to undermine the children’s relationship with the father. The extra time also exposes the children to the anxieties of the mother generally and her views regarding the father. In her second report, Ms M makes reference to the children having warm relationships with both parents. Whilst Ms M does conclude at [239] that the children’s relationship with the mother is dysfunctional on some levels, there is a loving relationship between the children and the mother and the children benefit from having a relationship with her. Section 60CC(2)(b) The Need to Protect the Child from Physical or Psychological Harm from being Subjected to, or Exposed to, Abuse, Neglect or Family Violence The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm and from being subjected or exposed to abuse or violence. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent. In relation to unacceptable risk, in Isles & Nelissen (2022) FLC 94-092, the Full Court adopted Austin J's dissenting judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212, which emphasised that risk assessment is a predictive exercise that involves evaluating the potential seriousness of harm in the context of the probability of its occurrence. The Court stated that the higher the chance of harm the greater the risk and risks of harm must be considered even if they are improbable eventualities. The Court also noted that a comparatively small risk of serious harm can justify action in child-related proceedings, while the virtual certainty of slight harm might not. The Court highlighted the need for trial judges to assess not only the potential harm but also the probability of such harm occurring. The Court may conclude that an unacceptable risk exists based on an accumulation of factors, even if each individual factor is not proven on the balance of probabilities. Finally, the level of confidence in a prediction of future risk will be based on the factual findings underlying the prediction.Section 60CC(2)(b) – alleged physical abuse