Knopf & Knopf - [2024] FedCFamC1F 359

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Knopf & Knopf [2024] FedCFamC1F 359

File number: PAC 186 of 2021

Judgment of: MCGUIRE J

Date of judgment: 25 June 2024

Catchwords: FAMILY LAW - PARENTING – Application by father to spend time with child on a supervised and gradual basis leading to unsupervised and overnight time – Young child with special needs – Allegations of family violence – Some admissions of family violence – Whether Father has made full admissions of family violence – Where Independent Children’s Lawyer advocates ongoing supervised time – Where the mother argues that any unsupervised time for child will negatively impact her parenting capacity - Orders that mother have sole parental responsibility for the child subject to her advising father of important decisions involving the child – Order that father spend unsupervised day time visits with child every third weekend

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B(1) and (2), 60CC(2) and (3)

Cases cited:
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96

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

Galea v Galea (1990) 19 NSWLR 263

G & C [2006] FamCA 994

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

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

Mazorski & Albright (2007) 37 Fam LR 518, [2007] FamCA 520

McCall & Clark (2009) FLC 93-405, [2009] FamCAFC 92

Moose & Moose (2008) FLC 93-375, [2008] FamCAFC 108

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

Re: Andrew (1996) FLC 92-692; [1996] FamCA 43

Rice v Asplund (1979) FLC 90-275, [1978] FamCA 84

Slater & Light [2013] FamCAFC 4

Division: Division 1 First Instance

Number of paragraphs: 295

Date of hearing: 20, 21, 22, 23 and 24 November 2023, 21 and 22 December 2023, 25 and 26 March 2024 and 8 April 2024

Place: Sydney: delivered Melbourne

Counsel for the Applicant: Ms Kaiti

Solicitor for the Applicant: Perin Legal

Counsel for the Respondent: Ms Reid

Solicitor for the Respondent: Hannaway Lawyers

Counsel for the Independent Children’s Lawyer: Mr Jackson

Solicitor for the Independent Children’s Lawyer: Legal Aid NSW
ORDERS

SYC 186 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR KNOPF

Applicant

AND:
MS KNOPF

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

25 JUNE 2024

THE COURT ORDERS THAT:
1.All previous parenting orders in respect of the child X born 2019 be and are hereby discharged.
2.The mother, Ms Knopf (“the mother”), have sole parental responsibility for X subject to her providing the father, Mr Knopf (“the father’), with prudent notice of any important decisions she makes involving X.
3.These Orders authorise the principal of any school attended by X to give the father any information, newsletters or similar normally available to parents and for the father to speak directly with the principal or relevant teachers at X’s school, but where the father be and is hereby restrained from attending at X’s school during any school hours or at any school event without the express written consent of the mother.
4.X live with the mother.
5.As from the first (1^st) weekend in October 2024 X spend time with the father every fourth (4^th) weekend in Town B as follows:
(a)from 10.00am until 2.00pm on Saturday; and
(b)from 10.00am until 2.00pm on Sunday.

6.X spend such further time or variations of the above only as agreed between the parents in writing.
7.Until the commencement of the time for X with the father in Order five (5) above, the extant interim orders continue in full force and effect.
8.For the purposes of changeovers the mother or her agent deliver X to the C Contact Centre 30 minutes prior to the commencement of X’s time with the father and the father return X to the C Contact Centre at the appointed times with the mother or her agent to collect X within 30 minutes of the conclusion of time-with and for these purposes the father be and is hereby restrained from being at or within 500 metres of the said Contact Centre until 10 minutes prior to the appointed commencement time and from staying or loitering within 500 metres of the said Contact Centre later than 10 minutes after the appointed conclusion of time for time-with.
9.The parents use My Wizard App to communicate regarding parenting matters as being the sole means of communication save and except in the event of emergencies with the father to set up and maintain the account and to advise the mother and the Independent Children’s Lawyer (“ICL”) confirming the establishment of the account.
10.The father be and is hereby restrained from contacting X by any means other than with the express written consent of the mother or other than in accordance with these Orders.
11.The father be permitted to provide gifts to X for his birthday and Christmas or otherwise only as agreed by the mother in writing and only by leaving such gifts with X at the designated time-with occasions.
12.The father be and is hereby restrained from:
(a)from approaching the mother directly or indirectly other than in accordance with these orders;
(b)communicating, or contacting the mother (or attempting to communicate including through any third person) except as otherwise provided for in these Orders; and
(c)approaching any premises at which the mother and X may from time to time reside.

13.The father continue in a therapeutic relationship with his treating psychologist, Ms D, or any other psychologist recommended by her or by the ICL for such period as recommended by the psychologist or the ICL for the duration of the ICL’s appointment.
14.The father is to keep the ICL advised of the name of any treating psychologist that he may attend from time to time and will authorise his treating psychologist to provide copies of any reports, oral or written, requested by the ICL and for such purposes these Orders expressly authorise such treating psychologist to provide any such information to the ICL for the duration of the ICL’s appointment.
15.The appointment of the ICL will continue for a period of 12 months from the date of these Orders.
16.The ICL be permitted to provide a copy of these Reasons and Orders to the father’s treating psychologist.
17.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
18.All extant applications, other than costs, otherwise be 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 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 of Knopf & Knopf has been approved pursuant to subsection 114(Q)(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J:
APPLICATIONS

The father, Mr Knopf, is the applicant in parenting proceedings in respect of the parties’ one child X born 2019 (aged four years). Where the father has spent only supervised time with X since April 2021 he seeks orders whereby:
(a)X live primarily with the mother;
(b)he spend time with X on a graduated basis commencing with continued supervised time for a period of three months each Saturday and Sunday for one weekend per month for a duration of four hours of each day; and
(c)then moving to unsupervised weekend time together with block periods during the school holidays and time on special days.
Where the mother lives in Town B, and the father lives in Sydney, the father first proposed changeovers occur at City E being some hours travel from the mother’s home but after the conclusion of evidence and by submissions, had retreated to a position that changeovers occur at Town B.
The father proposed that the mother have sole parental responsibility for X “for all aspects other than those relating to medical, health and religion” for which the parents will have equal shared parental responsibility but had also changed his position by final order such that the conceded sole parental responsibility to the mother but with prior notice of any decisions to the father.
The mother seeks orders that she have sole parental responsibility for X and that he live with her. She proposes no order for time with or communication between child and father. She asked for an order that she be at liberty to travel internationally with X at her discretion and to obtain a passport for X without the father’s consent. As a reluctant alternative position the mother would concede time for X twice per year with such time to be supervised. I take this to be a form of “identity” contact.
The Court has the benefit of an Independent Children’s Lawyer (“ICL”). The ICL was generally supportive of the mother’s position at the commencement of the trial but by final submissions differed from the mother notably in advocating a regime of time between X and the father occurring on five (5) occasions per year and being supervised indefinitely.
THE RELEVANT ISSUES
The primary issues in this matter are:
(1)Whether X should enjoy any productive and meaningful relationship with the father;
(2)Issues of family violence feature highly here but where certain admissions have been made by the father then the issue becomes whether or not the father presents as an unacceptable risk into the future of spending time with X;
(3)The mother raises an issue as to whether there will be an impact on her capacity to parent X, as his delegated primary parent, should X enjoy other than “identity contact” with the father where the mother says she herself suffers from post-traumatic stress disorder, anxiety and depression; and
(4)There are issues of credit in respect of the evidence of each of the parties.
THE MOTHER’S CASE
The mother argues that X is at an unacceptable risk of physical and psychological harm by reason of the father’s propensity for outbursts of anger and violence of the physical, emotional, and coercive/controlling types.
Secondly, the mother argues that her own capacity to properly parent X is compromised and impacted by her experiences of the father’s physical family violence and her assertions that the father has neither fully acknowledged nor addressed these issues.
Further the mother says that the unacceptable risk cannot be ameliorated by supervision of X’s time with the father with an accompanying argument, at least by implication, that no benefit, or no substantial benefit, can accrue for X of continuous supervised time with the father given the obvious limitations of supervision.
THE FATHER’S CASE
The father says that he has been able to establish and maintain a meaningful relationship with X despite the constraints of limited supervised time and that X would benefit from a flourishing relationship with him and his extended family.
The father in the main continues to deny the majority of the allegations of the mother as to family violence whilst making admissions to two instances of physical violence and one of verbal abuse. The implication of the father’s argument, therefore, is that that the mother has an agenda to thwart his relationship with X in that she exaggerates or embellishes the issue of family violence.
Where the mother says that any interaction whatsoever with the father will cause her anxiety such to compromise her own parenting capacity, the father says that X’s best interests are served by he having an ongoing input into medical, education, and religious issues with the implication of the father’s argument being again that the mother exaggerates or embellishes issues of family violence.
THE ICL’S CASE
The ICL says that the presumption of equal shared parental responsibility does not apply and that the mother should have sole parental responsibility for X.
The ICL supports X continuing to live primarily with the mother where this, of course, is not in issue.
The ICL supports the mother’s contention of unacceptable risk of harm to X in the event of unsupervised time for the father with the child.
The ICL supports the mother’s contention that she suffers from anxieties and a complex post-traumatic stress disorder such that unsupervised time between X and the father will aggravate her symptoms and could lead to a decline in her mental health with a consequent impact on her ability to care for X.
The distinction between the cases of the mother and the ICL is that the latter argues for some benefit accruing to X from a continuing relationship with the father and that the risks can adequately be addressed by continuing supervision.
BACKGROUND
The mother was born in 1985 and is 37 years of age. The father was born in 1989 and is 34 years old. The mother is of Country F origin. It seems that the father is of Country G origin.
The parties met and commenced a dating relationship in about early 2015. They became engaged in late 2015. They married and commenced cohabitation in late 2016.
X was born in 2019.
The parties separated for a brief period in June 2020 and separated finally on 16 December 2020. The mother claims that issues of family violence gave rise to these separations. The father does not make this concession. It seems agreed, however, that the mother placed a number of conditions on the reconciliation in June 2020 suggestive of her belief of a recent history of family violence.
In mid-2020 a Police Apprehended Domestic Violence Order (“ADVO”) was taken out and served on the father. Some time later a final order was made, by consent but without admissions, for a two year period to conclude mid-2022.
It is an agreed fact that in late 2020 the father assaulted the mother at a petrol station. Relevantly, evidence was given and adduced to this Court suggesting there to be a “slap” rather than a punch. The father however, now concedes the “punch”.
In late 2020 the father was charged with two offences. In early 2021 the father pleaded guilty to both charges. He was fined $1,500 and conditionally released on a bond to be of good behaviour for a period of 12 months. The assault was particularised as a “punch”.
The father commenced these proceedings in an Initiating Application filed 18 January 2021. Interim consent orders were made on 16 April 2021 including inter alia for X to spend supervised time with the father for three hours per month at City E. Those orders were amended in August 2021 with supervised time to take place on Saturday and Sunday once per month at Town B. Despite onerous logistical difficulties the father has consistently attended for time with X.
By order of 27 October 2022 the matter was transferred to Division 1 of the Court.
The parties were divorced in late 2022.
The parties reached agreement as to financial matters in orders of 12 June 2023.
The mother lives with the maternal grandfather in Town B. She is not engaged in remunerative employment. There is no evidence that the mother has re-partnered. Prior to her relationship with the father, the mother had employment experience as a health care worker.
The father is in full-time employment as a Manager.
The father continues to live in the former matrimonial home at Suburb H, a suburb of Sydney.
The evidence is that the driving time between Sydney and Town B is over four hours although the father also utilises air travel.
The distance between Sydney and City E is more than 2 hours. Where the father’s preferred changeover location was City E then the distance between Town B and City E is less than 3 hours.
There is no evidence that the father has re-partnered.
X attends an early learning day care centre on Tuesdays, Wednesdays and Thursdays. X suffers a developmental condition with delayed speech.
It is anticipated that X will be assessed for an autism diagnosis.
THE EVIDENCE
THE FATHER
The father relied on his trial affidavit sworn 23 October 2023. At [15] he describes the marriage as deteriorating from about January 2020. He asserts that the mother suffered paranoia and irrational fears.
The father references a short separation in June 2020 with his evidence implying that the Police ADVO taken out in favour of the mother was done so without proper basis.
At [25] and following the father make admissions in respect of his assault of the mother at the petrol station in late 2020. He expresses regret and remorse. He claims to have made an immediate apology to the mother. He references an early plea of guilty to two charges. Significantly, however, a response given by the father spontaneously within the rigours of cross-examination was perhaps enlightening and demonstrative of his thought patterns. He was asked whether and why he might have remorse over this incident. His response was “because I missed out on time with my son”. He acknowledged no remorse towards the mother.
The father otherwise denies the majority of the mother’s allegations of physical violence with the exception of one incident of pushing the mother to see past her during an argument. In his affidavit at [33] he states:
However, I must categorically and emphatically refute the number of fabricated incidents the mother reports in her affidavit deposed 1 March 2021, namely from paragraphs 24 to 40. …
The father admits at [32] to “… anger manager (sic) issues that resulted with the charges [in late] 2020”.
The father in his affidavit denies the mother’s allegations of family violence of emotional, financial, and coercive/controlling types.
At [49] and following the father denies ever having been violent towards X.
Under the heading “Personal development” at [101] and following the father references his consultations with at least three psychologists and his attendance at some seven anger management or parenting courses. Significantly, the father’s affidavit at [105] asserts insight as follows:
The insight that I have gained most from this program is listening to the exchange of experiences from other male participants. To-date I have learnt how best to:
•treat women with dignity and respect.
•make healthy choices.
•types of power and control which are abused.
•Societal and cultural expectations of masculinity.
•To empathise and acknowledge how my behaviour impacted my family.
•To acknowledge past actions and accept the consequences.
At paragraph [107] and following the father references his understanding of the mother’s mental health issues including asserted teenage trauma and suggestions that the mother’s claims of anxieties due to his alleged family violence do, in fact, have other rationale and cause. Nevertheless, and despite these assertions, the father maintains a case that X should continue to live in the primary care of the mother.

The father was cross-examined extensively by counsel for each of the mother and the ICL. He was not an impressive witness. He was frequently unresponsive in cross-examination as for example denying statements attributed to him by the Single Expert, Ms J, and also from his own psychologists. Contradictions in his evidence and particularly as to the extent of family violence remained unexplained or not persuasive in his responses. His trial affidavit was exposed as selective in its contents and admissions when viewed against his own prior affidavits and statements made to experts and health professionals.
Whilst maintaining only two instances of physical violence to the mother during the relationship, one being a serious assault at the service station and one an innocuous push, the father’s denials of further physical violence, emotional and coercive violence were unconvincing. Such denials sit uncomfortably with paragraph [105] of the father’s affidavit where he claims to have acknowledged his behaviour and gained “insight” and “empathy”. During his cross-examination however, the father did make one admission incongruent with his denials and limited admissions. He admitted that in mid-2020 on finding laundry in the home on his return he said to the mother “you lazy cunt. You need to keep up with the washing and ironing. If I do not get results out of you I will beat them out of you”.
MS K
Ms K is the father’s sister who swore an affidavit on 16 November 2023. She was at court for cross-examination.
Ms K presented as a confident, articulate and candid witness. She assertively supported her brother in his quest for time with X and, limited to her own personal circumstances, would be willing to assist in any stages towards such time occurring.
Ms K professed to having a long-term good and communicative relationship with her brother. She was confident that he would be open and honest with her. It is apparent, however, that the father has not informed his sister of all instances of family violence during the relationship including some notable concessions he made to this Court.
Otherwise, Ms K’s evidence was unremarkable other than that she would present as an amiable and keen member of X’s extended family.
MS D
Ms D is a Clinical Psychologist and the father’s current therapist. There have been 17 consultations prior to Ms D affirming her affidavit on 19 October 2023. That affidavit annexes a comprehensive report and assessment. Ms D gave evidence and was cross-examined. Ms D had the benefit of considering the first single expert report of Ms J, Clinical Psychologist, dated 20 July 2022. She did not have the second report of the Single Expert. Ms D also had the benefit of other materials including in respect of the father’s Magistrates Court appearances.
Ms D was keen and loquacious in her evidence in cross-examination. As the father’s therapist it might be expected that Ms D was eager to be positive and optimistic in respect of her client and such was my observation of Ms D in her evidence. For example, she describes the father thus:[1]
… [The father] has been steadfast and appears genuine in his dedication to continuing to see his son and be a positive and engaged parent to [X]. [The father’s] attitude appears to have changed since attending therapy with me as he has gained more insight into his behaviour. This has mainly been in the form of him actively accepting responsibility for his prior negative behaviour and using words such as “shame” and “regret” when discussing certain incidents. He also expressed motivation to follow any suggestions made during therapy for him to manage his emotions and behaviour should he find himself in a “triggering” situation in the future.
[1] At pages 3 and 4 of her report and 7 and 8 of her affidavit affirmed 19 October 2023.
Ms D was cross-examined extensively as to the history given to her by the father and where it eventuated that there may be conflict between that history and statements made to the Single Expert, previous therapists, and the father’s own prior affidavits and, in particular, in respect of the number and frequency of violent incidents conceded by the father.
Consistent with his evidence in this Court, the father appears to have informed Ms D that the physical violence was limited to two incidents only being the assault at the service station and one instance of “pushing past”. As mentioned above, the father’s own evidence in court in respect of this evidentiary conflict was unpersuasive and unsatisfactory.
Perhaps strangely, Ms D was of the view that her conclusions in respect to the father would not necessarily be changed in the event that had not been provided with a full and honest history by her client. As the cross-examination progressed, however, I observed Ms D to become less partisan and more objective in her evidence. For example, when apprised of some responses given by the father in his own cross-examination she then conceded “concerns” and, albeit reluctantly, that her opinion may need to be reconsidered. For example, Ms D was told of the question put to the father by counsel for the ICL as to why he felt remorse for the assault of the mother at the service station and where his response was “because I missed out on time with my son” and where Ms D agreed that no spontaneous response of remorse towards the mother was “of concern”. Similarly, Ms D was oblivious to the particulars of some threatening remarks made by the father to the mother and conceded by him in cross- examination including the statement “you lazy cunt, you need to keep up with the washing and the ironing. If I do not see results out of you then I will beat them out of you”.
Ms D’ evidence was partisan and consistent with her therapeutic relationship with the father. Her conclusions are to be considered in respect of the selective history given to her by the father. She did, however, present as suitably processional and experienced and, importantly, willing to reassess her opinion when given further objective evidence.
MS L
Ms L is the paternal grandmother. She swore an affidavit on 14 November 2023. She was cross-examined on her evidence.
Ms L was understandably partisan to her son. She was reluctant to make any admissions which would be seen as contrary to her son’s case and she was often required to retreat from her evidence with reluctant concessions.
She was frequently evasive in her responses.
Whilst I accept the difficulties for a mother giving evidence in circumstances where she is confronted by the extreme particulars of family violence alleged against her son and where, on occasions admitted by him, importantly for any consideration of the maternal grandmother supervising X’s time with the father there remain concerns as to Ms L’s obvious loyalty conflicts and whether she could separate such loyalty to her son from objective safety concerns for the young child.
MR M
Mr M is the paternal grandfather. He sworn an affidavit on 14 November 2023.
Like his wife, much of the focus on Mr M’s affidavit is his criticism of the mother’s extended family and, in particular, her father and where much of this seems irrelevant. Mr M gave an unpersuasive explanation that this material emanated from the father’s previous solicitors.
As with his wife, Mr M was clearly and understandably partisan towards his son. He was reluctant in the extreme to make admissions as to concerns regarding his son’s alleged and admitted family violence. His evidence was evasive and selective and hence of little probative value. Notably, Mr M made similar partisan remarks to the Single Expert.
Again, the concern for the Court in respect of Mr M is his apparent inability to objectively acknowledge his son’s previous violent disposition should Mr M be called upon at any time as a supervisor for the father’s time with the X.
THE MOTHER
The mother provided a trial affidavit sworn 20 October 2023. After a short chronology and a claim to have been X’s primary carer since birth, the mother’s affidavit is then replete with allegations of family violence of various types allegedly perpetrated by the father. The evidence is relatively highly particularised. From [102] the mother purports to give evidence as to “current arrangements and [X’s] routine”. Nevertheless, the mother here continues to assert family violence as for example at [111] where she deposes:
I took [X] to see Paediatrician [Dr N] [in] September, 2022 and he identified three significant problems with [X], being [a developmental condition], exposure to domestic violence and a possible hearing problem.
At paragraph [126] and following the mother deposes to her claims of unacceptable risk for X in the father’s care or unsupervised care. She references four incidents notable in the cross-examination of each of the parties in this trial being the following:
(i)that when X was around 12 months old the father slapped the child to the face for dropping food on the floor;
(ii)in November 2020 the father allegedly ran a knife across X’s hand but without cutting the child and apparently rationalised by the father saying “I just want to give him a new sensation to feel”;
(iii)in 2020 the father placing X into a swimming pool with his clothes and nappy on and repeating the act the following morning whilst the child was wearing pyjamas; and
(iv)on five occasions, most recently being December 2020, the mother alleges comments from the father to the child such as “don’t step out of line”.
The mother claims that X experiences nightmares and is unsettled with a nexus to his supervised contact visits with the father and that the child is “unsettled” on return from those visits. This nexus of behaviour is, however, not necessarily corroborated by objective evidence of relative comfort and familiarity for X with the father at the Contact Centre and in the interviews for the Court Child Expert Report.
The mother deposes as to the impact on her of the father’s family violence. She says that she suffers a diagnosis of post-traumatic stress disorder and anxiety and has been treated for such since June 2020. She says that she previously was successfully employed prior to the marriage and she was engaged in employment and led an active social life but where she now pursues neither. The mother sets out medication prescribed for what she says are conditions of stress, anxiety, panic attacks and depression which she relates to the family violence perpetrated on her.
The mother gave evidence and was cross-examined. She presented in the witness box with a demeanour consistent with that portrayed in her affidavit material. I observed her to be quiet, timid and perhaps socially unsophisticated. She stared directly and did not make eye contact throughout her cross-examination.
Cross-examination exposed a number of anomalies in the mother’s evidence with the intent of that cross-examination being to show that the mother is, in fact, a strategist in these proceedings where she has habitually informed virtually all health professionals treating both herself and X of her alleged history as a victim of family violence. She is shown to be vigilant and pedantic in respect of reports prepared on both herself and X with a propensity to demand corrections and additions to such reports. For example, in one report she required an amendment from the practitioner who described her as having “left” the former matrimonial home at separation where the mother required a correction to “fled” the home.
The mother’s standard response as to why she should insist on providing her narratives to health professionals with a prima facie tenuous interest in such matters and including physiotherapists and occupational therapists for X, was that she thought they “needed to know the complete history”.
The mother denied that there was a deliberate strategy on her part to create “independent” evidence for this case where frequently her trial affidavit gives a perception of independent “diagnosis” by health practitioners of the impact of family violence on X.
A notable example of concerns in respect of the mother being strategic is exposed in a forth coming autism assessment for X. The mother initially requested the father’s consent for her own treating psychologist to conduct the autism assessment for X. Not surprisingly, the father did not give his consent. When another practitioner was nominated by the mother and then accepted by the father, it eventuates that the mother had pre-emptively corresponded with that psychologist and again giving her narrative of her view of both she and X being “victims” of family violence. Further, and troubling, is the evidence exposed only in cross-examination that the mother has also sought to engage that same practitioner in “domestic violence trauma counselling” for X. It is difficult to understand how a competent and experienced therapist would think himself or herself able to provide an independent assessment of autism when apprised of such information. Perhaps most troubling, however, is the fact that the mother concedes that she did not provide the father with copies of any of her correspondence directed to the potential autism assessor and/or advise the father of her request that the psychologist enter into “domestic violence trauma therapy” for X.
Other inconsistencies in the mother’s evidence were revealed only during cross-examination. For instance, it is clear on the evidence that the mother was able to communicate frequently and in a civil fashion with the father from early 2021 (being immediately after separation) until about July 2021 when she abruptly ceased all communication. Her explanation in the witness box that such communications caused her “anxiety” was unpersuasive as was her further explanation that the father had allegedly misquoted their communications in his affidavits.
Similarly, the mother’s positions in demanding a cessation to all contact between the father and X outside of the Contact Centre, albeit still supervised, and her demand that the paternal extended family not attend contact visits were similarly unsatisfactory and unpersuasive albeit she gave explanations of her “anxieties”.
In summary, and whilst the evidence is unambiguous that the mother was, in fact, a victim of family violence and whilst my observations of the parties generally is consistent with a probable power imbalance within their relationship, cross-examination has revealed the mother as something of a strategist and, active and assertive in her preparation and presentation of her case to this Court, including intervention or contributions to the evidence of witnesses, such that is not immediately apparent from reading her affidavit material.
Of concern is that, the mother was not able to adequately explain her initial failure to adduce evidence from her own psychiatrist, Dr O, where of course the mother relies on her own psychiatric condition as argument against orders for unsupervised time between X and the father. Instead the mother simply annexed an aged report from Dr O to her own trial affidavit. It eventuated that this evidentiary anomaly caused the Court to give leave to the mother to bring such an affidavit from Dr O during the course of the trial and where it is now open to me to find that this later evidence from Dr O was more optimistic as to the mother’s current mental health than indicate in Dr O’s historical report annexed to the mother’s trial affidavit. The mother’s credit is negatively impacted by her being unable to give any persuasive responses as to why an affidavit from Dr O was not initially provided and lends weight to the assertion of the mother being a strategist.
MS P
Ms P is the mother’s sister. Her affidavit was sworn 19 October 2023 and she was at court for cross-examination.
Ms P presented as a witness keen to advocate for her sister and generally in respect of her personal views on family violence. She conceded that she considered the situation between the parents, and presumably this trial, to represent a “battle line” between the families.
Ms P presented as a very different personality to her sister. She was a an effusive witness eager to expand on her responses in cross-examination and giving every indication that she considers the orders sought by the mother to be appropriate as a form of retribution to the father for his behaviour towards her sister.
Accordingly, I only give weight to Ms P’ evidence considering the above observations.
MR Q
Mr Q is the maternal grandfather. He provided affidavits sworn 18 October 2023 and 8 November 2023. He gave evidence and was extensively cross-examined.
Mr Q presented as a dignified but voluble elderly gentleman keen to emphasise his daughter’s case and to ingratiate himself to the Court. He was assertive and confident in his responses in cross-examination albeit frequently evasive and determined to put his viewpoint on the record.
Understandably, where Mr Q is privy to the family violence, now conceded, endured by his daughter together with some indignities experienced by her, such as her effective eviction from the former matrimonial home, Mr Q is partisan in the extreme to his daughter’s case and determinedly critical of the father.
Mr Q has assumed a major male-role model in the home that he shares in Town B with his daughter and X and to the extent that X refers to him at times as “daddy”. Mr Q is extremely, but understandably, protective of his daughter and X and seems genuine in his belief that each could suffer harm at the hands of the father.
Mr Q has an assertive view that his grandson should not have any form of relationship with the father. When it was put to him that he had made more altruistic statements during his interview with the Single Expert, Mr Q denied being asked such questions by the Single Expert to elicit such responses.
Despite his impressive demeanour in court, unfortunately Mr Q did not always impress as a witness of the “whole truth”. His claim that he came to give evidence unfamiliar with the case to be mounted by his daughter, being for no relationship whatsoever between X and the father, is improbable in the extreme. Such is difficult to accept given his strong involvement with his daughter, his support for her, the fact that they live together, and his assistance with visits to professionals and to the Contact Centre. Similarly, his tendency to often deflect from difficult questions and to be expansive in his responses towards emphasis on his negative views of the father, ultimately impact on his credit and emphasise his partisan views.
I am left only to conclude that Mr Q will continue to provide valuable support to his daughter and to X but is unlikely to assist in any way or encourage any relationship between X and the father where his lack of objectivity and a tendency to assume a degree of control of his daughter’s affairs will only serve to hamper any prospect of a future relationship between X and his father.
It is clear that Mr Q provides commendable support for both his daughter and his grandson in circumstances where he is required to attend to his daughter’s anxieties and his grandson’s special needs on a daily basis. Unfortunately, however, his viewpoints are coloured by his daughter’s experiences and his responses as her parent.
MS R
Ms R is the mother’s current treating psychologist. She has qualifications as a clinical psychologist. She provided two affidavits affirmed 23 June and 17 November 2023. There was a deal of confusion in respect of the annexures to each of those affidavits where ultimately it seems that the Ms R’s initial draft Report is annexed to the later affidavit of 17 November 2023 and dated 12 April 2023 whilst the settled report dated 16 April 2023 is annexed to the affidavit of 23 June 2023. The matter is further confused by Ms R informing that the date of 16 April 2023 is, in fact, an error and should read “19 April 2023”. The evidence of an expert, whether or not they are court experts or called by a party, is important in its accuracy albeit Ms R was immediately repentant as to the errors and confessed generally to difficulties with “detail”.

To further complicate the evidence, and despite there being a second affidavit affirmed 17 November 2023, a further updated report, also dated 17 November 2023 was tendered as an exhibit during Ms R’ evidence.
Ms R provided therapy to the mother in two separate periods being firstly from August 2022-January 2023 following which Ms R went on leave, and for a second period from September 2023 until current with the most recent visit being in November 2023.
Notably, the therapeutic relationship between Ms R and the mother takes place by way of “Telehealth” where Ms R resides in Queensland, but where Ms R herself readily volunteered that it would be preferable for the mother to receive therapy “face-to-face”.
Ms R confessed to having no experience in providing expert reports or evidence in family law matters prior to this relationship with the mother.
During the period January 2023-September 2023, when Ms R was on leave, the mother was assisted by a different psychologist, Ms S. She did not give evidence. It seems, therefore, that Ms R’s reports, both in draft and the settled version, were prepared during the period of her leave and when she was not consulting with the mother and indeed perhaps some four months after her last therapeutic consultation with the mother in January 2023.
Further, it is clear, and candidly conceded by Ms R, that her “draft Report” of 12 April 2023 was amended with numerous recommendations/requests provided in email from the mother herself. Nevertheless, Ms R did not think this unusual and perhaps consistent with her understanding of the mother’s psychological make-up and did not feel that her report, its conclusions, and its recommendations were compromised by the later contributions of the mother herself.
Without criticism, it is clear that the relationship between Ms R and the mother is a therapeutic one and Ms R was at pains to emphasise that she does not purport to provide a forensic report or assessment in respect of her client and where, quite obviously, the relationship is of the typical post-modernist type of the practitioner neither intrusively challenging the veracity of the mother’s version of history nor obtaining the version of the father or substantial corroboration of the mother. For instance, Ms R seemed to have paid little attention to the notes of the intervening practitioner, Ms S, or the “handover” material from a previous psychologist, Ms T, who assisted the mother.
Whilst Ms R gave her evidence in a confident and forthright manner and again where she was keen herself to admit factual or methodological errors, the probity of her report must be considered within the limitations of the above.
Ms R either provides or recognises previous diagnoses for the mother of post-traumatic stress disorder (“PTSD”), anxiety and depression. It seems, however, that Ms R no longer considers the mother to suffer a major depressive disorder. It is clear that the PTSD/anxiety diagnoses stem from her relationship with the father and her reports of family violence.
Ms R offers and advocates a suite of therapeutic approaches including “exposure theory” which I understand would in this case involve the mother facing her anxieties including specifically permitting some time between X and his father. Whilst agreeing that this was an available approach, Ms R urged caution and agreed that such approach should involve “slow graduated steps”.
Despite the evidentiary limitations set out above, Ms R impressed as a professional and empathetic practitioner keen to assist the mother and open to a number of therapeutic strategies. She presented as alert to any attempts by the mother to enlist her as a litigation supporter rather than a therapist.
Strangely, and of some concern, Ms R seemed oblivious to the fact that the mother is receiving concurrent assistance from her psychiatrist, Dr O. She was aware of an historical relationship and that the mother was “on the books” of a psychiatrist but certainly not of an ongoing therapeutic relationship where the mother herself informs the Court that she consults with the psychiatrist on a two monthly basis. After some reflection, Ms R agreed that she too harbours some concerns as to why this information was not volunteered by the mother and also as to some potential difficulties in what appears to be “parallel consultations” albeit Ms R neither seemed unduly troubled nor compromised in her therapeutic relationship with Dr O. From the Court’s perspective, however, the mother’s apparent failure to advise her psychologist of a continuing relationship with a psychiatrist remains unanswered.
DR O
Dr O is a psychiatrist who has provided therapeutic treatment for the mother from June 2020 to current.
Dr O did not originally provide an affidavit in support of the mother’s case in compliance with the procedural orders. The mother was asked why she did not rely on updated material from Dr O in circumstances where the mother herself annexes to her trial affidavit a report from Dr O from January 2021. No satisfactory response was given to this question. It eventuated that Dr O, with leave to the mother, did provide an affidavit sworn 21 December 2023 being after the first five days of evidence in this trial. That affidavit was accepted for filing and Dr O was at court for cross-examination.
Firstly, it appears that Dr O has had considerably more consultations with the mother than set out at [11] of her affidavit where she explains that she initially simply accepted the dates of the consultations from the mother’s solicitors and presumably therefore on instructions from the mother herself, but where Dr O’s own clinical notes suggest many more consultations. Similarly, where her notes were brought to court on subpoena, there is some discrepancy in dates between the consultations noted and the dates in her affidavit.
Effectively, Dr O’s affidavit gives an update on her diagnoses in respect of the mother. She confirms that the mother has never been diagnosed with a Bipolar Affective Disorder or Schizophrenia. Dr O reports initially diagnosing the mother with acute stress and distress secondary to relationship issues including domestic violence. She then reports as of December 2020, approximately six months after her initial diagnosis, that she had diagnosed the mother with Brief Psychotic reaction including depression with psychotic features but excluded diagnoses including psychotic features/Bipolar Depression/other psychotic conditions. The mother was prescribed antipsychotic medication and Dr O reports the psychotic symptoms resolving within a month and not having re-occurred. She says that the antipsychotic medications have gradually been withdrawn.
The only remaining diagnosis for the mother is PTSD with symptoms including hypervigilance, anxiety, flashbacks, nightmares, and avoidance. Dr O observes the symptoms to be decreasing although remaining subject to fluctuation. Recommended treatment has included domestic violence counselling and trauma psychotherapy together with continuing medication.
In cross-examination, Dr O volunteered and confirmed the following:
(1)that PTSD is the only current diagnosis for the mother;
(2)the mother’s symptoms are decreasing albeit subject to fluctuation;
(3)that she considers that she and the mother have a very good patient/doctor relationship;
(4)that she has observed the mother “shifting towards being more comfortable with the prospect of X spending time with the father”;
(5)that she considers that the mother will “cope” in a situation of circumstances where her child would spend time with the father, including progression into unsupervised time if done with empathy and slow steps and together with ongoing professional assistance. Dr O believes that she can provide this assistance; and
(6)she opined that “to all intents and purposes she [the mother] is functioning well in her day to day life”.
Dr O reports receiving a document titled “affidavit” from the mother in January 2021 but where that document is not apparently an affidavit filed in these proceedings and which sets out the mother’s personal narrative but where Dr O says that her report was not influenced by the mother providing her with this material.
I found Dr O to be an excellent and objective witness and one well informed as to her patient’s circumstances, diagnosis, and prognosis.
SINGLE EXPERT REPORT – MS J
Ms J is a Clinical Psychologist. She has prepared two reports dated the 20 July 2022 and 1 November 2023.
Ms J had the advantage of material filed at the relevant times together with interviews and observations of the parties, grandparents, and X.
In her first report Ms J makes recommendations as follows:
(i)that X live with the mother and that she have sole parental responsibility for him with notification reports to the father;
(ii)should the Court determines that the father poses an unacceptable risk of harm to X then it is recommended that he spend no further time with X and be restricted from contacting him or approaching him at home, school or in a public place;
(iii)if the Court determines that any risk to X may be mitigated by ensuring that the father’s time with the child is subject to professional supervision then it is recommended that this take place at the Contact Centre, for identity purposes only, on a specified number of occasions per year (for example, if around the time of X’s birthday and at Christmas);
(iv)if the Court determines that the risk to X may be mitigated by having that time supervised by nominated paternal family members, then it is suggested that the time should take place more regularly (for example, on four occasions each year) and it is further suggested that the parents use a Parenting App to share parenting information pertaining to X. The Court may also wish to consider appointing a Parenting Coordinator to assist the parents to implement the orders;
(v)any additional time between X and the father or between X and members of the extended paternal family to be arranged directly with the mother (through a family member other than the father) and should be agreed to in writing; and
(vi)the Single Expert does not support the father’s proposal to spend block periods of school holiday time with X.
Some sixteen months later in November 2023 Ms J’s position had become more assertive. Put simply, at [138] she recommends:
The Single Expert supports the mother’s proposal for [X] to live with her and to spend no further time with the father. It is recommended that sole parental responsibility is awarded to the mother.
Ms J is well experienced in providing Family Reports to assist these Courts. She attended Court and was cross-examined extensively by counsel for the entirety of one day.
By the end of that exercise, Ms J maintained her recommendation essentially that there be no time/live with for X and the father due to what she says is an unacceptable risk of physical and emotional harm to the child from the father. She also holds concerns as to the mother’s parenting capacity being negatively impacted by time between father and son. It is clear that Ms J identifies the family violence perpetrated by the father on the mother as being extreme and where she holds a view that the father has not fully acknowledged his violence with the implication of Ms J’s evidence being that the father’s admissions in this Court during his evidence and his statements of remorse and regret to her in the second report are disingenuous, not genuine, and perhaps simply a tactic to ingratiate himself to the author of the report and to the Court.
In her first report Ms J notes the mother as being willing to facilitate a form of contact relationship between X and the father and/or the father of the paternal family. When informed during her cross-examination that the mother’s change of position to now being one of no relationship between child and father being, according to the mother, directly influenced by Ms J’s recommendations in her first report, Ms J did not express surprise but rather thought it understandable and perhaps predictable where she observed the mother having been previously subjected to coercive and controlling behaviour by the father and now understanding that she gleaned some independent support from the Single Expert.
I found Ms J to be a professional, informed and objective the witness. She was readily able to understand and acknowledge the presumptions in the Family Law Act that a child has a prima facie right to a relationship with each parent and that the Court should consider orders which benefit children in establishing and maintaining meaningful relationships with each parent. To this end, Ms J acknowledged that there had been a continuing monthly supervised relationship between X and the father. She acknowledged that the father had been consistent in maintaining that relationship despite the vagaries of distance and inconvenience. She acknowledged that X recognised the father and that the father and X spent enjoyable times together within the limits of supervision. Nevertheless, Ms J emphasised, and had obviously considered at length herself, the balancing process towards a child’s best interests where she noted again her views of the father’s propensity for family violence and her doubts as to the sincerity of his asserted remorse and regret. She also opined as to a lack of “attunement” by the father to X where, of course, X’s special needs might require a high level of attunement in the parent. Having been apprised of the evidence of Dr O, Psychiatrist, and Ms R, Psychologist, Ms J maintained a view that the mother’s own personality and experiences during the marriage are such that she remains vulnerable in that her diagnosed PTSD symptoms may be aggravated by the very fact of time between X and the father and particularly unsupervised time.
Ms J’s reports address at length the historical and apparent ongoing tensions between the extended families of both parents. Indeed, where Ms J was perhaps to assist the Court with her opinion as to the possibility of the paternal grandparents supervising time between X and the father, Ms J herself was subjected on a number of occasions to unwarranted negative commentary and interruption by the paternal grandfather from the back of the Court but within the hearing of Ms J. After admonishment from the paternal grandmother and myself, the paternal grandfather’s continued disruption of Ms J’s evidence resulted in me ejecting him from the courtroom. Suffice to say that Ms J maintained some concerns as to the objectivity of the paternal grandfather in any supervisory role.
At [18] and [19] of her first report Ms J reports a comprehensive history of family violence alleged by the mother and detailed during the mother’s interview together with the mother’s assertions of X having been exposed to such violence.
At [28] Ms J reports the mother proposing that X live with her and “spend fairly limited time with his father, subject to supervision”. The mother envisages time between the child and father to be supervised by the paternal grandparents or aunt when X is appropriately comfortable with the father.
Ms J notes at [30] the father raising concerns about the mother’s mental health and any impact on her capacity to parent X. He alleges, as he suggests to this Court, that the mother’s mental health issues stem from childhood trauma rather than allegations of family violence and that ‘…..she has fabricated the abuse allegations and is paranoid and delusional, relying on antipsychotic medication to manage her symptoms’
Ms J notes at [35] that X has been diagnosed with a developmental condition and has been assessed for the Autism Spectrum Disorder. The manifestations of X’s diagnoses are set out in the mother’s material. It is clear that Ms J’s recommendations are made with reference to X’s special needs.
The mother’s proposal at the time of the first report interviews is further detailed at [40] as follows:
The mother believes it would benefit [X] to have a relationship with his father and paternal family members, particularly in regard to his identity formation. She seeks an arrangement that will minimise risk to both herself and [X], suggesting that limited time with the father should take place at [Town B], for identity purposes only, and should be subject to supervision
Ms J interviewed the father. As in his affidavit material, there is an early focus on the mother’s extended family.
At [57] the father describes the mother as exhibiting “unusual behaviours” and “very paranoid”.
My reading of this first report does not disclose any admissions by the father as to family violence or certainly not in the extreme particulars later exposed in this Court. He describes the short separation in June 2020 as occurring after “he discovered that she had badmouthed him to a friend” “he promised to do something about his temper, apologising for raising his voice to her and hurting her feelings”.
At [62] the father addresses the incident of violence between the parties at a petrol station in late 2020 being one that achieved some prominence during this trial. The father eventually pleaded guilty to assaulting the mother by a punch to the head. He is reported at [62] as follows:
[The father] described the incident at the service station in [late] 2020 as “an argument”. He said that he had lost his temper and ‘I hit [the mother] and I was ashamed and immediately apologise for it’. He said, “It was a bit like a slap – I hit her in the face with my hand, I just lost control”. [The father] said he was “disgusted” with himself and immediately promised the mother, “this will never happen again”. After that, she drove to the next petrol station and when they got home he again apologised and she accepted his apology. The relationship then continued for another month before he came home one day to find that she had left the home with [X] because “she was still unhappy with me”.
At [67] the father is reported as saying the mother telephoned him in March 2021 and told him that her father and sisters had written her affidavit for her, fabricating the allegations, and that she apologised to him accordingly. This evidence is inconsistent with the position maintained by the mother throughout the trial and where there is no corroborative evidence of the father’s assertion of a telephone call in March 2021
At [68] the father says that he has “learned so much about family violence and developed more insight into impulse control”.
At [70] Ms J took the father through particulars of the family violence allegations. Where at [71] he said that he would raise his voice or swear if he lost his temper and might occasionally push or shove the mother away from him’. He said he would always leave the house during these arguments as a way to cool down and resolve the situation. He emphatically denied ever pinching, slapping, punching or kicking the mother or X (with the exception of the incident at the service station).
At [72] the father describes as “a complete fabrication” that he had broken the mother’s necklace given to her as a wedding present by her father. Similarly, at [73] he denies any intention to harm X by running a knife across the child’s hands saying that the very idea is “abhorrent” to him
At [76] the father denies family violence by financial control of the mother.
Ms J also interviewed the mother who particularised allegations against the father of family violence in various forms essentially in the same terms as in her affidavit. She references the father asking her to be a “submissive and obedient wife” with references to the Bible.
The mother asserts that the paternal family were well aware of the father’s propensity for family violence.
The Report details with high particularisation incidents of physical, verbal, mental, emotional and financial abuse commencing from the earlier days of the marriage.

At [101] the mother says that the father would get pleasure out of tormenting her and seeing her become anxious. She described how he would use X to achieve this end as, for example, shouting out the child to make him startle and cry. He would say to both the mother and the child “don’t step out of line”.
She alleges an occasion when the father slapped X for dropping food on the floor from his highchair and on another occasion running a knife over X’s hand so as to watch the mother’s reaction. He laughed when she became upset.
At [103] the mother references the incident at the petrol station in late 2020. She says that she asked the father to help with the checking of air in the tyres thus provoking an assault by “punching her […]”. She says that X witnessed this assault and was distraught.
Ms J concluded that the father tended to minimise or deny his role in the alleged family violence. To the contrary, and as observed by the Court, the mother’s reports are highly detailed and precise and supported by objective evidence such as subpoenaed material.
At [157] Ms J opines:
The classification of family violence seems to fit best, given the history of the relationship, is that of Coercive Controlling Violence[2] which is an ongoing pattern of use of threat, force, emotional abuse, and other coercive means to unilaterally dominate a person and induce fear, submission, and compliance in them. Its focus is on control and does not always involve physical harm. According to the screening tool, the primary perpetrator of the abuse in this matter is identified as the father.
[2] Original emphasis.
By reason of his age and the special needs, Ms J understandably did not interview X noting his developmental condition, language delay, and some hearing loss together with behaviours consistent with a diagnosis of Autism Spectrum Disorder with difficulties of Attention Disorder/Hyperactivity.
Ms J observed X with the mother and the maternal grandfather. He was seen as active during the session exploring the environment and the available toys.
Ms J noted that the adults were very attuned to X’s needs and provided necessary direction.
Ms J observed X with the father. She noted X to smile in response to the father’s greeting. At [172] Ms J reports:
[X’s] father seemed quite uncomfortable during the 30 minute observation session. He was noted to sweat profusely and seemed very ill at ease. He seemed quite happy to end the session and left as soon as it was suggested that [X] was becoming tired and agitated. The report writer had to remind him to take his bag with him. [X’s] father kissed [X] and told him that he would see him on the weekend, at which time he would give him […] presents. [X] did not object to his father leaving. He didn’t seem to notice he had gone.
Ms J interviewed the paternal grandparents, Ms L and Mr M . They expressed their experience in seeing X on a couple of occasions at the Contact Centre as “quite unsatisfactory”. They described a small, confined room and limited time with “always somebody watching us”. They described the experience as “degrading”. This theme was repeated by both of the grandparents during their evidence in Court.
Significantly, at [180] Ms J asked the paternal grandparents if they knew why X’s time with the father was being supervised and responded that “we really couldn’t say” adding “we never knew she was on so much medication”.
At [181] the paternal grandparents presented as either oblivious to or deflecting of the father’s admitted assault of the mother leading to his conviction at the petrol station where the grandmother is quoted:
…The paternal grandmother said that it would have helped if they had been made aware of what was going on in the home. She said, “After the first time I said to [the mother], if you need help, you come to me”. She later added, “We didn’t know they were having marriage issues, we didn’t get involved in the marriage at all”.
The paternal grandfather, however, was more assertive saying “he didn’t punch her in the […]. If he had punched her, he would have killed her”. He went on to explain that the father had become “frustrated” with the mother and “pushed her in the […]” “twice only”.
Ms J notes the paternal grandfather being “adamant” that the father does not pose a risk to the mother.
The paternal grandparents were observed to focus on criticism and apparent dislike of the maternal grandfather.
Ms J interviewed Ms K who is the paternal aunt. She understood that X has special needs and was willing to assist in any stepped process of increasing time between X and the father.
Ms K is reported as stating that some of the allegations raised by the mother are “simply untrue”. She alleged that the mother “made up stories”. She described the mother as being unstable and constantly accusing the father of “cheating”.
She said that she remains “a bit sceptical” as to the allegations of family violence and also describing at [198] the mother as “quite paranoid about [X]”.
Ms J interviewed Mr Q who is the maternal grandfather.
Mr Q alluded to matters which could be seen as examples of financial/coercive/controlling violence by the father such as insisting on knowing where the mother’s money was being spent and the mother cutting off long-term friendships in order to please the father.
Mr Q reported the mother’s high levels of anxiety.
Ms J’s second report of 1 November 2023 is seen as being motivated by a request from the father [54] for an updated report because:
… He felt that he had failed to fully convey his deepest regrets regarding his harmful actions towards the mother to the report writer during his previous interview. He said that he was “deeply sorrow” (sic) about how the events had unfolded and “deeply regretted” his actions and “any harm caused to [the mother]”. …
The father is reported as confirming the completion of a number of family violence courses and having become “insightful” and “enlightened” in respect of family violence. He says that he had gained useful strategies and was able to identify triggers.
The father told the Single Expert that he had been seeing a Clinical Psychologist (Ms D) since October 2022 and this has assisted him in obtaining a better understanding of how events played out in the marriage. Nevertheless, at [56] the father is reported as:
…He emphasised that while he is willing to take responsibility for the incident at that […] service station, the vast majority[3] of the mother’s allegations are “completely fabricated”.
[3] Emphasis added.
The father confirmed consistent visits to X despite the limitations of supervision and the vagaries of travel.
Ms J again interviewed the mother who confirmed at [20] her continuing anxieties if anticipated to be in the presence of the father.
At [21] the mother is reported in respect of the current arrangements as follows:
… She said that the supervision reports revealed that the father has needed “a lot of prompting to do basic things, including nappy changes”. [The mother] said that [X] can’t communicate well and has difficulty making his needs understood. She said that he can’t explain why he is getting upset and that this makes him even more upset. She stressed that it is important to be attuned to [X’s] non-verbal communication in order to pre-empt meltdowns and this isn’t always possible when the supervisors keep changing from month-to-month. …
At [24] the mother references a time when she unexpectedly came across the father crossing the road with X at a visit where the father was permitted, without the mother’s consent, to remove X from the Contact Centre together with a supervisor. She described herself as experiencing shock, fear and anxiety and having a panic attack.
At the time of the second interview, the mother’s preferences were for X to spend no further time with the father or, alternatively, supervised visits for identity purposes only. She would seek an order that the father be restrained from communicating with her or with X.
Ms J again observed X with each of the parents. She noted X’s attention span to be short and that his communication skills were limited. At [87] X is observed to be very happy to see his father and calling him “Daddy”.
Ms J addresses X’s current diagnoses and developmental needs. She sees his developmental needs being those of a much younger child given his diagnosis of a developmental condition. She says that arrangements will need to prioritise X’s routine and consistency together with preventing exposure to parental conflict or family violence.
Ms J had the advantage of the reports from the Contact Centre and notes that they paint a picture of a father keen to make an effort to get to know his son.
In her evaluation Ms J recognises the mother as X’s primary attachment and that his special needs are such that extended periods of separation from the primary attachment figure would present difficulties.
Ms J says that X recognises his father as someone who plays with him and who is affectionate to him. In her evidence in court, she likened X’s understanding of his father to be similar to his understanding of a carer or supervisor. She does acknowledge, however, that after a lengthy period of supervised visits, X may miss his father if the time were to suddenly stop.
Ms J notes the mother being the primary carer, but that the father is contributing financially and has made commendable efforts to spend time with X taking all opportunities available to him.
Ms J concludes at [120] that the father has not taken full responsibility for his actions, preferring to deny or minimise them, including to his therapist, and that he continues to blame the mother for conflict in the relationship accusing her and family members of manufacturing allegations of family violence. As such, the report writer questions the father’s commitment to change based on his ongoing denials.
Given the mother’s diagnosis of PTSD, Ms J opines as to likely negative impact on the mother’s parenting should the father spend unsupervised time with X.
RELEVANT LAW
The Family Law Act 1975 (Cth) (“the Act”) provides at Part VII a legislative pathway for the Court in determining the parenting and living arrangements for a child. Section 60CA mandates that the best interests of the child is the paramount consideration for the Court.
In determining those best interests the Court is to reference the probative evidence and the parties’ proposals to the many factors set out in s 60CC(2) and (3) of the Act against a background of the Objects and Principles of the legislation set out at s 60B as follows:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The matter now before me, and not unusually, rests to a large degree on a weighing and balancing of the evidence in respect of the two “primary considerations” at s 60CC(2) although a number of the additional considerations remain relevant and there is mandatory consideration of all subsections. The Primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In broad terms, the father’s case argues towards subsection 2(a) of a meaningful relationship whereas the mother highlights the protective provisions at subsection 2(b).
Later amendments to the Act at s 60CC(2A) direct that the Court is to place “greater weight” on the protective considerations at subsection 2(b) over those of 2(a).
The Act at s 61DA provides a presumption of it being in a child’s best interests for the parents to exercise equal shared parental responsibility for that child. “Parental responsibility’ is normally understood as the obligations that parents discharge in making important and long-term decisions for their children in matters such as religion, education and medical procedures as opposed to the more mundane decisions habitually made for children on a day-to-day basis.
The presumption of equal shared parental responsibility does not apply, however, if the Court is satisfied that a parent of the child (or a person who lives with the parent of the child) has engaged in abuse of the child or another child, who at the time, was a member of the parent’s family or engaged in family violence. Alternatively, the presumption can be rebutted on evidence satisfying the Court that an order for equal shared parental responsibility would not be in the best interests of the child.
Not surprisingly, in the matter now before me the mother seeks an order for sole parental responsibility arguing that the presumption does not apply by reason of the father’s family violence perpetrated on both herself and X during the relationship. She seeks to be relieved from even keeping the father advised of the decisions that she makes in respect of X. To the contrary, the father initially asked for an order that the parents have equal shared parental responsibility limited to matters relating to “medical, health and religion for the child”, but that the mother otherwise exercise sole parental responsibility. He now concedes parental responsibility to the mother but with prior notification to him.
Where each of these parties put their position in the form of very detailed orders, it is important to emphasise that it is not the task of this Court to simply choose between the options offered by the parties themselves but where the Court is charged with making orders that are ultimately in the best interests of X and may, therefore, formulate its own orders if they accommodate those best interests.
THE EVIDENTIARY BURDEN AND STANDARD
Where ultimately the Court’s focus is on formulating orders which attend to the child’s best interests, the Court is required to make findings of fact. The standard of proof is one of “on the balance of probabilities” consistent with s 140 of the Evidence Act 1995 (Cth) which provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.[4]
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject-matter of the proceeding; and
(c)       the gravity of the matters alleged.
[4] Briginshaw v Briginshaw (1938) 60 CLR 336, [1938] HCA 34.
It is trite to observe, that a party making an assertion of fact has an onus to prove that fact on the balance of probabilities although the task for the Court ultimately remains as of weighing and balancing the probity of evidence towards a determination of the child’s best interests.
RELEVANT LAW – UNACCEPTABLE RISK
The mother’s case is put as X being at risk of physical, emotional/psychological harm from the father if there be any time even if such time be supervised. The thrust of the conclusions of the Single Expert are towards such a risk being “unacceptable” with the implication of there being no, or no adequate tools to mitigate that risk.
There has been recent jurisprudence reconsidering the evidentiary requirements of a consideration of “unacceptable risk”.[5]
[5] Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97.
Whereas a principle task of these courts is one of fact-finding of past or current fact where, as set out above, the standard of proof is one of “on the balance of probabilities”, the notion of risk, however, is a prospective consideration into the future. The Full Court in Isles & Nelissen (supra) moved from previous authority of a finding of risk being on the balance or probabilities to an understanding risk to be on the basis of “possibility”. As such, the standard of proof at s 140 of the Evidence Act 1995 (Cth) is not the applicable standard.
Findings of past or current fact may be of assistance in determining whether there be a risk and whether such risk be unacceptable. Suffice to say, however, that it is open for the Court to consider any “relevant” factors in determining whether there be a possibility of risk.
The Full Court in Isles & Nelissen cited heavily the dissenting judgement of Austin J in Fitzwater & Fitzwater[6] in determining that the previous authorities requiring a finding of unacceptable risk on the balance of probabilities to no longer be good law.
[6] (2019) 60 Fam LR 212; [2019] FamCAFC 251.
Put simply the task of the Court is to determine whether the relevant factual platform satisfies the Court of an unacceptable risk of harm as a possibility into the future. The Court then turns to consider whether and what might be available to mitigate that unacceptable risk, effectively therefore to turn an “unacceptable” risk into an “acceptable” risk as the realities of life will inevitably present “risk” but where the operative consideration here is the adjective “unacceptable”.
SECTION 60CC FACTORS
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;
This consideration sits as the fundamental crux of the father’s application. The mother argues that matters of unacceptable risk cause this consideration to defer to subsection (b) such that there should be no relationship between X and the father.
It is well-established, and despite the father’s emphasis on this issue and it being a “primary” consideration, this consideration is not of itself determinative of the broader consideration of the child’s best interests but simply one factor to be considered amongst many others.[7]
[7] Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96.
Whilst the term “meaningful” is not defined in the Act, it has brought a great deal of judicial consideration. In Mazorski & Albright[8] Brown J at [24] reviewed the dictionary definitions and their usefulness for the purposes of this section and says at [26]:
26.What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[8] Mazorski & Albright (2007) 37 Fam LR 518, [2007] FamCA 520.

A primary issue for my determination and certainly an issue of credit between the parties is the extent of family violence allegedly perpetrated by the father on the mother during the relationship where the relevance is to the father’s continuing propensity to spontaneously perpetrate physical or emotional violence. On this issue I prefer the evidence of the mother and find on the balance of probabilities that the father has been selective in his admissions and less than fully forthcoming. His admission as to assaulting the mother at the service station is supported by his plea of guilty to such particulars in the local state court. Relevantly, however, he was not initially forthcoming with those particulars and had attempted to diminish his responsibility initially using the term “[slap]” and deflecting some blame to his victim by being “frustrated”. The two Family Reports endorse this tendency in the father. I prefer the evidence of the mother that the incident was unprovoked, spontaneous, and a punch to the head and hence show innate anger management issues for this father. Secondly, the father has not explained to the Court’s satisfaction the discrepancies in the evidence which suggests, from his own previous affidavits and statements attributed to him by his own psychologists, of more frequent instances of physical violence in the marriage than the two conceded by him in this Court. The father’s credit in respect of this important issue suffers accordingly and importantly in respect of his claims of acknowledgement, remorse, insight, contrition, and regret in respect of family violence events.
In other respects I found the father to be generally a genuine and honest witness. I accept that he is genuine in his quest for time and a relationship with X and do not find in him any ulterior motive that might be suggested by the mother, at least impliedly, that he pursues time with X only or primarily as a form of coercion or control over her. It would be difficult to reconcile such ulterior motive with the father’s consistency and commitment in attending pursuant to the interim orders over such a long period with their attendant logistical difficulties.
The mother presented in the witness box as having a timid and vulnerable personality and consistent with her case as a victim of family violence and where she argues from the Re: Andrew principle that her parenting capacity will be negatively impacted should the father spend unsupervised time with X. There are, however, inconsistencies in the mother’s own evidence in respect of her demeanour. Notably, in the first interim interviews for the Family Report she was more altruistic to a relationship, limited as it might be, between X and the father. Similarly, there is evidence of the mother openly communicating with the father in respect of his time with X from separation until about mid-2021. The evidence of both the mother’s psychiatrist and her psychologist, suggest diminishing or resolved symptoms/diagnoses. The psychologist, Ms R, suggests “exposure therapy” as one of a suite of therapeutic responses. I understand this might involve the mother attaining trust and confidence by way of a sympathetic reintroduction of unsupervised time for X with the father. Similarly, the mother’s psychiatrist, Dr O, observed the mother “shifting towards being more comfortable in the prospect of [X] spending time with the father” and that the mother would “cope” in a situation of unsupervised time albeit if done cautiously and sympathetically graduated. Significantly, Dr O opined that “to all intents and purposes, the mother is functioning well in her day-to-day life”.
There is also evidence that the mother has actively contributed to discretely changing the wording or emphasis of various reports in respect of both herself and X which might have become evidence in these proceedings. The Single Expert and Ms R offer a plausible explanation for the mother’s pedantry by reason of her anxieties and PTSD. Alternatively, however, and also plausibly, is that the mother has purposely and strategically added her contributions to these reports to give emphasis to her case. In this sense, there remains no proper or convincing explanation as to why the mother did not initially adduce evidence in proper affidavit form from her psychiatrist, Dr O, but rather simply annexed a historical report. Notably when the mother did eventually adduce updated evidence from Dr O it was immediately apparent that Dr O was now much more positive and optimistic in respect of the mother’s diagnoses, symptoms, and, relevantly, her ability to “cope” with X spending time with the father. On balance I find that the mother has acted strategically in respect of her evidence, both positively and by omission in respect of the case she brought to this Court and her credit suffers accordingly.
In many other respects, however, I generally do accept the evidence of the mother. I accept that she was a victim of various types of family violence perpetrated by the father to a greater extent and frequency than he admits. Despite my comments above as to the mother’s demeanour and strategic adducing of evidence, I do accept that there was a power imbalance between she and the father during the relationship and that she consequentially remains fearful of him to a degree, but where I prefer the evidence of Dr O as to the mother’s current emotional state over the impression portrayed by the mother herself in Court which, on balance, I expect was affected to some degree.
I easily find that the mother is the primary attachment for X and that their relationship is close, established, successful and meaningful.
On the evidence I find that there is a relationship between X and the father. There is evidence of recognition, comfort and familiarity for X in meeting his father both at interviews for the Single Expert Report and at the Contact Centre. In this sense, I reject the dismissive proposition put in court by the Single Expert, Ms J, likening X’s understanding of his father to that of “any child carer”. The father has consistently attended within the limits of the interim orders. X recognises and refers to his father as “daddy”. That relationship has been allowed to develop despite the limited frequency, duration, and circumstance of the monthly visits but nevertheless there is a child/parent relationship.
I am easily satisfied, if only by his admissions, that the father perpetrated family violence on the mother during the relationship. As mentioned above, I prefer the evidence of the mother as to the extent and frequency of that violence. I accept the father’s admissions but say that they are limited and that he has not made full admissions. Again, I rely here on the discrepancies in the evidence as to the frequency of violence remaining unexplained and as set out above.
Further, by reason of my finding that the father has not made full admissions, I accept the submission of the mother’s counsel and the ICL that the father has neither fully nor genuinely acknowledged his family violence towards the mother. Whilst I accept that the father has completed various courses and made limited admissions, his lack of fulsome admission gives reasonable doubt as to his claim of enlightenment and insight from the courses he has attended. It follows, that there is some merit in the submissions of counsel for the mother and the ICL that the father’s admissions are made for tactical or strategic reasons rather than by way of full remorse and erudition.
In accepting generally the mother’s evidence in respect of issues of family violence, it follows that I find that the mother has been subjected to violence of physical, coercive/control, emotional, and financial types as she asserts. Her evidence was highly particularised. She withstood vigorous cross-examination in respect of her allegations. The mother’s position is variously corroborated by documents including records from the father’s meetings with his own former psychologists and even his own previous affidavits suggesting multiple incidents of family violence. The father’s denials were unsatisfactory and unpersuasive without further explanation by him.
Relevantly, however, is that the father’s history of violence appears to be limited to only the mother in its manifestations. He has no prior convictions in respect of other people. I accept, consistent with my general preference of the mother’s evidence in this respect, that he once slapped X as an infant over a food issue. I do not accept, however, the mother’s claim of the father running a knife over or close to the child’s hand or the father placing the child in a swimming pool constitute issues of physical violence directed to X, but accept that these were directed to and intended as emotional violence to the mother herself.
I accept that the father has completed a number of courses in respect of behaviour/anger management. He continues to consult his psychologist. These are all positives in respect of the father dealing with frustrations and anger management which manifest in physical violence and/or his propensity for emotional and coercive/controlling violence, although tempered by my finding that the father still makes less than full admissions.
Prima facie, therefore I conclude that the father remains a risk of perpetrating physical violence if angered. Although I find the physical violence directed to the mother (with the exception of one slap to X as an infant), the force of the finding of propensity of risk, in my view, sits with the father’s responses when frustrated or angered. In this sense it matters little that the primary target of those responses thus far has been the mother. Rather it is the fact of his responses to such anger or frustration that constitutes the risk.
The risk is aggravated by the father’s lack of full admission and acknowledgement. The risk is compounded by X’s young age and consequent lack of ability to independently respond to safety issues. The risk is also compounded by X special needs including developmental delay and all of which could potentially frustrate the father.
I must nevertheless also consider what, if any, tools are available to the Court to mitigate the risk and therefore effectively render that risk “acceptable”.
The ICL advocates ongoing supervision without any “sunset”. On the evidence, I cannot find that such an option is available or that such would, in any event, be in X’s best interests. Firstly, it raises a serious question as to the “benefit” to X circumstantially of such a regime. In my view, such a proposal misunderstands the rationale of supervision being more a tool to maintain a relationship between child and parent for shorter periods, often in the interim until a full forensic investigation can be completed and where the severance of the relationship might otherwise be the only alternative. Secondly, where inevitably professional supervision is limited by resources and availability, I do not have evidence in proper form of such ongoing availability. Thirdly, the negative message sent to a child as he grows older of the need for supervision would in itself be likely to challenge the very relationship between child and parent and potentially so where the parent does not accept the need for supervision. For all these reasons, I reject the proposal of the ICL.
Ongoing supervision by the father’s extended family is not a viable option where the evidence before this Court from those family members does not give confidence for any objective ability to prioritise X’s safety needs over their subjective and partisan viewpoint favourable to the father’s portrayal of history. No other potential lay supervisors were presented to the Court.
The mother, of course, argues for no relationship for X with the father or, at most, two visits annually for the purposes of “identity contact”.
Where I remain unconvinced of any real benefit accruing to X, a young child with developmental needs, of rare “identity visits” and no learned writings or judicial authority were put to me to the contrary, I find limited utility or benefit for a child and I am not persuaded towards such orders accordingly. I prefer that such long-spaced reintroduction of the father for an hour or so would simply confuse the child rather than adding a benefit to his life.
A complete severing of a relationship is a drastic course. I say that because in this matter I find that there is a relationship currently existing between child and father as opposed to a consideration of “establishing” a new parent/child relationship.
The father’s primary position is for graduating orders culminating in block periods of time for X with him over school holidays of seven days and nights albeit not until the X turns seven years of age which would be 2026. Obviously, the flux of a further two years raises speculation as to the progress, if any, the father has made in respect of family violence issues set out above and it would be inappropriate to delegate the decision as to whether the father has progressed in these areas to anyone else, even a psychologist. Effectively, therefore, these Orders are made on the basis of the evidence given or adduced and now but with an eye to the “possibility” of risk into the future.
Where I have made findings which prima facie establish risk and where I harbour concerns in respect of the father’s lack of full admission and/or acknowledgement of his family violence history, I cannot now make orders in the terms sought by the father. That is, on the current evidence, the orders sought by the father of extended overnight periods would prima facie confront him with stressors not yet experienced such as X’s special needs and hence his responses to frustration or anger remain unknown. Such orders which would have X spending block periods of time with the father in Sydney would not permit flexibility and management such as an early return of X to the mother if, for instance, the father’s frustrations were to manifest.
Other conditions and restraints, however, might be placed on the “time with” relationship which could serve to mitigate the risk. The father’s time could be limited to unsupervised day-times only and for such time to take place in Town B. Whilst such limitation might limit the enjoyment and potential of the time-with relationship for both X and the father’s ambition they would also attend to the Court’s, the mother’s and the ICL’s concerns in respect of the father’s anger management propensity and his unknown parenting capacity. Such a regime would allow for some flexibility and management should X be required to return to the mother early. Notably, of course, the father’s own graduated regime anticipates a stage in these terms.
Such a limited time arrangement with the time-with to occur in the Town B would also, I anticipate, give the mother the opportunity to gain trust and confidence in both X’s safety and the father’s capacity. Changeovers could be arranged so as to avoid direct meetings between the mother and the father.
Orders for limited day-time visits for the father and X but unsupervised whilst obviously not ideal in respect of the father’s ambitions, would in my view allow a development of the relationship between father and son, give the mother some opportunity for confidence and security in the safety of X, and attend to the risks which I find to be currently unacceptable in the orders to which the father ultimately aspires.
The father’s visits have been occurring on a monthly basis. He now seeks orders on a three-weekly basis. I am mindful of the logistics of travel and where the father would be required to obtain accommodation overnight, and where his ambitions would not be fulfilled. I am also alive to the vulnerabilities of the mother, the special needs of X and the circumstances of the proposed time-with which will involve the father both caring for a child with special needs and keeping the child interested. As such I determine that time should occur on each fourth weekend. Such a regime gives a frequency and regularity for the relationship whilst attending to the matters mentioned above. Time-with will take place in Town B and between the hours of 10.00am and 2.00pm. This will attend to addressing both the father’s need to gain any parenting skills and also take into account that the time will take place away from the father’s home and he will be required to keep X “entertained” during the visits. The time will, however, occur on both the Saturday and the Sunday of the particular weekend. I do not see such a regime as impacting negatively on X’s time with his mother who, after all, remains the primary carer and would have three out of every four weekends with X. I consider such a regime also attends to the opinions of both Dr O and Ms R’ suggestion of a time-with arrangement or pattern sympathetic with the mother’s history, diagnoses and symptoms. Changeovers of course can be arranged so as to avoid any direct contact between the parents.
On the basis of the evidence and my findings I cannot make an order that progresses the time-with from the above, although of course, any material change in the circumstances of either of the parents or X might permit renewed judicial consideration.
Where the father’s own application anticipates a short continuation of supervised time I will order that unsupervised time commence on the first weekend of October 2024 and each fourth weekend thereafter. The existing interim orders will continue until then.
I would also make an order that the father continue in a therapeutic relationship with his psychologist Ms D or any other psychologist recommended by her, but where the father keep the ICL advised of the name of that psychologist with the ICL to have access to communication or reports from the psychologist and where a copy of these Reasons and Orders would be provided to the father’s psychologist. For these purposes I would continue the appointment of the ICL for a period of twelve months from the date of these Orders
Given that I find, contrary to the mother’s application, that unsupervised time between X and the father is in X’s best interests, I must turn to the second substantive argument raised by the mother being that any unsupervised time between X and the father will negatively impact on her parenting capacity by reason of her genuinely held fears for the safety of X and that as a consequence, I should not, in any event, make any anticipated order for unsupervised time.
I have found that the mother, although the victim of family violence at the hands of the father, is not to necessarily as timid and passive as she portrays in the witness box. I find that she has been active and strategic in this litigation. I also accept the evidence of the psychiatrist, Dr O, that the mother’s condition and symptoms to have improved and to be stable with the shift to being more comfortable with the prospect of X spending time with the father and that she would “cope” if the process is done with empathy and slowly. Dr O opined “that for all intents and purposes she (the mother) is functional functioning well in her day-to-day life”.
The mother’s psychologist, Ms R, is less optimistic in her affidavit than Dr O where her most recent report suggests that the unsupervised time between X and the father would have a significant negative impact on the mother’s mental health. Ms R’ evidence in court, however, was more optimistic opining that the mother is very motivated to get over her anxieties where such would be relieved to a degree by the end of this litigation.
Generally, where I prefer the evidence of Dr O if in conflict with that of Ms R, but where both practitioners offer positive optimism, I accept Dr O’s opinion that the mother would “cope” with unsupervised time for X with the father and particularly so within the limitations as the orders anticipated.

Consequently, where I find the mother has been the subject of family violence during the relationship and where, regrettably, I also find that the father has not made full admission and acknowledgement, I accept that the mother would be distressed by the prospect of X spending unsupervised time with the father. However, these findings alone, do not justify me concluding that the mother’s parenting capacity would be so adversely impacted by orders providing for limited and conditional unsupervised time, and particularly where it is anticipated that the mother would continue to obtain therapy where Dr O is willing to continue in that role and where Ms R suggests it might be more appropriate for the mother to have a face-to-face relationship with a psychologist.
I will also make an injunctive order restraining the father from contacting X outside of these Orders without the express written consent of the mother.
Communications between the parents will be subject to an order for the use of the My Wizard App and the father be otherwise restrained from contacting the mother.
I will order changeovers to occur without direct contact between the parents.
Given all the of these restraints, conditions and limitations and where I do not find a reasonable factual basis to the mother’s claim that the father has been violent to X (with the exception of the one slap when the child was an infant), I find the risk of the father being violent to the child to be sufficiently mitigated by the orders and conditions I make.
I find that the mother has been active and strategic in her prosecution of this case. I find, on the balance of probabilities, that the mother’s symptoms have dissipated. I accept the optimistic prognoses of Dr O and Ms R. As such, although I accept that the mother’s fear of the father, although genuinely based, and where she holds consequent anxieties for X safety if in the unsupervised care of the father, in all the circumstances, conditions and restrictions, I do not find that the mother’s parenting capacity of X will be so negatively impacted as to be contrary to X’s best interests. That is, I do not find that the mother has given or adduced cogent evidence to satisfy me that her parenting capacity would be sufficiently impaired should X spend unsupervised time with the father in the regime, terms and conditions anticipated above.
By reason of my findings of family violence perpetrated by the father on the mother then the presumption at s 61DA of the Act of equal shared parental responsibility in the parents does not apply. In any event the evidence easily satisfies me that these parents do not have any reasonable prospects of a communicative and cooperative relationship in respect of X.
Where the mother is the undisputed primary parent then it is reasonable and proper that she should have the benefit of an order for sole parental responsibility for X. I do not accept the order sought by the father in respect of prior notice to him with input by him into any decisions in respect of X. Such is not appropriate where I find there was both coercive/controlling violence perpetrated by the father on the mother during the relationship and a power imbalance in their relationship. Where such decisions would usually involve choice of schools or medical procedure, I will order that the mother advise the father prudently of such decisions and that the parents use my Wizard App for such communications.
These orders will permit the father to have access to information from X’s school but he will be restrained from at the school or school events given the tenor of these orders being to prevent direct contact between the parents.
The mother’s application seeks various orders in respect of X’s passport and overseas travel. Where no evidence was given or adduced in this respect, I will not make such orders.

I certify that the preceding two hundred and ninety-five (295) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire.
Associate:
Dated: 29 May 2024

File number:	PAC 186 of 2021
Judgment of:	MCGUIRE J
Date of judgment:	25 June 2024
Catchwords:	FAMILY LAW - PARENTING – Application by father to spend time with child on a supervised and gradual basis leading to unsupervised and overnight time – Young child with special needs – Allegations of family violence – Some admissions of family violence – Whether Father has made full admissions of family violence – Where Independent Children’s Lawyer advocates ongoing supervised time – Where the mother argues that any unsupervised time for child will negatively impact her parenting capacity - Orders that mother have sole parental responsibility for the child subject to her advising father of important decisions involving the child – Order that father spend unsupervised day time visits with child every third weekend
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B(1) and (2), 60CC(2) and (3)
Cases cited:	Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251 Galea v Galea (1990) 19 NSWLR 263 G & C [2006] FamCA 994 Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 Keane & Keane (2021) 62 FLR 190; [2021] FamCAFC 1 Mazorski & Albright (2007) 37 Fam LR 518, [2007] FamCA 520 McCall & Clark (2009) FLC 93-405, [2009] FamCAFC 92 Moose & Moose (2008) FLC 93-375, [2008] FamCAFC 108 Norton & Landell (Consent Final Parenting Orders) [2015] FamCA 96 Re: Andrew (1996) FLC 92-692; [1996] FamCA 43 Rice v Asplund (1979) FLC 90-275, [1978] FamCA 84 Slater & Light [2013] FamCAFC 4
Division:	Division 1 First Instance
Number of paragraphs:	295
Date of hearing:	20, 21, 22, 23 and 24 November 2023, 21 and 22 December 2023, 25 and 26 March 2024 and 8 April 2024
Place:	Sydney: delivered Melbourne
Counsel for the Applicant:	Ms Kaiti
Solicitor for the Applicant:	Perin Legal
Counsel for the Respondent:	Ms Reid
Solicitor for the Respondent:	Hannaway Lawyers
Counsel for the Independent Children’s Lawyer:	Mr Jackson
Solicitor for the Independent Children’s Lawyer:	Legal Aid NSW

SYC 186 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR KNOPF Applicant
AND:	MS KNOPF Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	MCGUIRE J
DATE OF ORDER:	25 JUNE 2024