Lavigne & Gavin - [2021] FamCA 612

FAMILY COURT OF AUSTRALIA
Lavigne & Gavin [2021] FamCA 612

File number(s): SYC 3478 of 2021

Judgment of: MCCLELLAND DCJ

Date of judgment: 20 August 2021

Catchwords: FAMILY LAW – CHILDREN – Best interests – Interim application – Where the mother seeks orders maintaining current regime of supervised time between the children and the father – Where the father opposes continued supervision – Where the mother contends unacceptable risk of harm in father’s unsupervised care – Where the mother alleges the father has perpetrated family violence, and has a propensity to lose temper and excessively discipline children – Where the Court cannot make findings in respect to mother’s allegations – Where the Court is satisfied there is no real risk of harm to children in father’s unsupervised care – Orders made for the children to spend unsupervised time with father increasing to one overnight time per fortnight – Orders made for appointment of ICL and single expert

Legislation: Family Law Act 1975 (Cth) Pt VII, ss. 4AB, 43(1)(c), 60B, 60CA, 60CC, 61DA and 65DAA

Cases cited:
Banks & Banks (2015) FLC 93-637

Cowling & Cowling (1998) FLC 92-801

Dieter & Dieter [2011] FamCAFC 82

Eaby & Speelman (2015) FLC 93-654

Goode and Goode (2006) FLC 93-286

Keane v Keane (2021) 62 Fam LR 190

Marvel v Marvel (2010) 43 Fam LR 348

Masson v Parsons (2019) 266 CLR 554

Mazorski & Albright (2007) 37 Fam LR 518

N and S (1996) FLC 92-655

Napier and Hepburn (2006) FLC 93-303

Nikolakis & Nikolakis [2010] FamCAFC 52

Sigley v Evor (2011) 44 Fam LR 439

SS & AH [2010] FamCAFC 13

Number of paragraphs: 222

Date of hearing: 23 July 2021

Place: Sydney by video web conference

Counsel for the Applicant: Ms Christie SC

Solicitor for the Applicant: Barkus Doolan

Counsel for the Respondent: Mr Schonell SC

Solicitor for the Respondent: Matthews Folbigg Pty Ltd
ORDERS

SYC 3478 of 2021

BETWEEN:
MS LAVIGNE

Applicant

AND:
MR GAVIN

Respondent

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

20 AUGUST 2021

PENDING FURTHER ORDERS THE COURT ORDERS THAT:
1.The children, W born …2011 (‘W’), X born … 2013 (‘X’), Y born … 2015 (‘Y’), and Z born … 2017 (‘Z’) (‘the children’) shall live with the Mother.
2.As and from 23 August 2021, the Orders made on 13 May 2021 are discharged.
3.As and from 23 August 2021, the children shall spend time with the Father as agreed and arranged between the parties and, failing agreement, as follows:
(a)From 23 August 2021 until 1 October 2021, from 10 am to 4 pm on each Saturday;
(b)From 2 October 2021, each alternate week from 10 am on Saturday until 4 pm on Sunday;
(c)In addition to the time set out in Order 3(b), from 2 October 2021:
(i)Z and Y shall spend time with the Father each week from the conclusion of school or day care, or otherwise 3.30 pm on none school days, until 6.30 pm on Tuesday; and
(ii)W and X shall spend time with the Father each week from the conclusion of school, or otherwise 3.30 pm on non-school days until 6.30 pm on Thursday; and

(d)On special days, including Christmas, Mother’s Day, Father’s Day and the children’s birthdays, as agreed between the parties, providing that, in the event of agreement not being reached, the resident parent shall facilitate the children communicating by telephone or video call between the children and the non-resident parent at 7 pm on the special day in question.

4.Changeover of the children’s time with each party shall occur at a location nominated in writing by the Mother, provided that location is within a radius of 5 km from the former matrimonial home, and may be facilitated by such person as nominated by the Mother.
5.The children shall communicate by telephone with the Father:
(a)At any child’s reasonable request; and
(b)In any event, each Tuesday and alternate Sunday at 7 pm.

6.Each parent is restrained from:
(a)Denigrating the other party or any member of the other party’s family or household, in the presence or hearing of any of the children;
(b)Physically chastising the children; and.
(c)Speaking about the family law matters or issues with the children or any person who is not a party to these proceedings.

7.To the extent that it has not already occurred, each party shall forthwith enrol in and complete an approved Parenting After Separation course.
8.The parties shall each attend upon their respective treating psychologist/psychiatrist, as recommended by their treating psychologist/psychiatrist.
9.The Father shall not attend at the former matrimonial home located at B Street, Suburb A, without the written permission of the Mother.
10.Pursuant to s 68L(2) of the Family Law Act 1975 (Cth), an Independent Children’s Lawyer be appointed for the children and the Legal Aid Commission of NSW is requested to provide such representation.
11.Forthwith upon notification of appointment, the Independent Children’s Lawyer file and serve a Notice of Address for Service.
12.Within 48 hours of notification of the Independent Children’s Lawyer’s address for service, the parties provide to the Legal Aid Commission of NSW forthwith all documents thus far filed in these proceedings by that party, together with all existing orders and copies of any relevant reports.
13.Each of the parties shall present the children to such places and at such times and dates as are requested and/or advised by the Independents Children’s Lawyer for the purpose of the Independents Children’s Lawyer meeting with the children.
14.Pursuant to rule 15.45 of the Family Law Rules 2004 (Cth) the Court appoints an appropriately qualify person, as agreed by the parties, as a Single Expert (“the Single Expert”) to prepare a report addressing the matters identified in s 60CC of the Family Law Act 1975 (Cth).
15.In the event that the parties are unable to agree upon a report writer within 21 days of this Order, then the Father shall forthwith nominate three (3) Report writers (by providing a copy of the CV for each nominated Report writer together with their nominated costs for undertaking the preparation of the Report and the time frame in which they are able to complete a Report) and, within 14 days of such nominations, the Applicant shall select one of the three nominated Report writers which Report writer shall then be retained and instructed by the parties.
16.The parties are to equally share the costs of the Single Expert Report, including the costs of the Single Expert.
17.The parties send copies of all of their Court documents to the Single Expert within seven (7) days of being requested to do so by the Single Expert.
18.The Independent Children’s lawyer is granted photocopy access to all documents produced pursuant to subpoenas for the purpose of providing a copy of those documents to the single expert.
19.The parties comply with all reasonable directions as to attendance upon the Single Expert.
20.The Single Expert’s Report deal with the following matters:
(a)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the likely effect on the children if the Court were to make orders in terms of the parties’ proposed orders; and
(d)any other matters that the Single Expert considers important to the welfare or best interests of the children.

21.I DIRECT that, upon completion, the Single Expert’s Report be forwarded to my Associate.
22.If either party proposes to have the Single Expert available for cross examination purposes at the final hearing, then such party is to notify the Single Expert of their need to attend Court no less than 14 days prior to the final hearing, and unless the Court otherwise orders, pay the remuneration/expenses for that attendance.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lavigne & Gavin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION

This matter concerns competing Applications of the parties, Ms Lavigne (“the mother”) and Mr Gavin (“the father”), for interim parenting orders in respect to the children, W (“W”), born in 2011; X (“X”), born in 2013; Y (“Y”), born in 2015; and Z (“Z”), born in 2017 (collectively, “the children”).
The mother’s Application was initially listed for hearing in May 2021, however, that listing was adjourned by consent of the parties and an interim agreement was reached between the parents, pending the adjourned hearing. That agreement, as reflected in the orders made by consent on 13 May 2021, provided for the father to spend a total of six (6) hours each week with the children, with that time divided such that the two elder children spent three (3) hours with the father and, similarly, the two younger children separately spent three (3) hours with the father. On a without admissions basis, it was agreed that time would be supervised by a professional supervision service.
At the time those consent orders were made, there was an unresolved issue arising from the fact that there was a joint investigation by the New South Wales Police Force and the Department of Community and Justice (“DCJ”), concerning an allegation that the father had mistreated X in an incident which occurred in March 2020. There was also an outstanding issue as to whether police would proceed with an application for an Apprehended Domestic Violence Order (“ADVO”), which primarily related to the mother’s allegation that the father had physically assaulted her during an incident that occurred in November 2019. Since that time, the investigation by DCJ has been concluded, with no resulting action being taken against the father. Similarly, the police have since determined not to proceed with the ADVO application against the father and has also withdrawn the interim ADVO previously in place.
The mother, nonetheless, seeks that the current orders should continue. The basis of that Application relates to her contention that the children would be at an unacceptable risk of harm if they commenced spending unsupervised time with the father. That risk, as the mother contends, primarily arises from a propensity, on the part of the father, to lose his temper and engage in excessive discipline of the children.
Comparatively, the father contends that he agreed to the interim consent orders in May to ensure that he was able to spend some amount of time with the children, pending resolution of those outstanding issues. The father further contends that the decision by DCJ to finalise its investigation, with no action being taken against him, and the decision by the New South Wales Police Force not to proceed with a contemplated application for an ADVO presents significantly changed circumstances justifying variation of the consent orders. By way of summary, the father seeks interim orders for the children to spend unsupervised time with him every alternative weekend as well as on one additional evening each week.
For reasons which I will set out below, I am not satisfied that there is a real possibility of the children being exposed to an unacceptable risk of harm, in spending unsupervised time with the father. Having made that determination, the focus of my decision has then shifted to determining the capacity of the father to care for the four young children, two of whom, as the wife contends, have significant behavioural and developmental challenges.
In balancing all relevant consideration, I have made orders which provide for the children to spend a limited amount of unsupervised time with the father, pending the parties and the Court being assisted by a report from a single expert. In that context, I have also made orders, which were not opposed by the parties, for the appointment of a single expert.
I would expect the parties would cooperate in arranging for that report to be obtained as soon as possible, and that the parties will engage in good faith discussions, upon receipt of that report, to review parenting arrangements concerning the children. I have also made orders for the appointment of an Independent Children’s Lawyer, to assist the parties in that respect, including, if considered appropriate by the Independent Children’s Lawyer, to invite the parties to attend a Family Dispute Resolution Conference facilitated through Legal Aid NSW.
BACKGROUND
The parties commenced cohabitation in December 2009 and married in 2011. They separated on a final basis on 30 April 2021.
There are four (4) children of the parties’ marriage, being:
(1)W, born in 2011, and currently aged nine (9) years;
(2)X, born in 2013, and currently aged eight (8) years;
(3)Y, born in 2015, and currently aged six (6) years; and
(4)Z, born in 2017, and currently aged four (4) years.
On 30 April 2021, the police served the father with a Provisional ADVO, naming him as the defendant and the mother as a person in need of protection. Subsequently, on 29 June 2021, the ADVO Application was withdrawn by police and the Provisional ADVO was revoked.
The mother currently resides with the children at the former matrimonial home located in Suburb A (“the former matrimonial home” or “the Suburb A property”). She describes her usual occupation as homemaker.
The father currently resides in a rental apartment in Suburb Q, however, he anticipates moving into a three bedroom accommodation in the North Shore area of Sydney in the next month. He is currently self-employed as an owner and director of an incorporated business that provides IT services.
As noted, the mother’s Application was initially listed for hearing before me on 13 May 2021. On that date, I made orders by consent of the parties, adjourning the hearing to 23 July 2021, and for interim parenting arrangements, pending the adjourned hearing, in respect to the children (“the interim consent orders”). Those interim parenting orders provided as follows:
DEFINITIONS
1.“children” refers to the children of the marriage, namely the following:
1.1.W born on … 2011, currently aged 9.
1.2.X born on … 2013, currently aged 8.
1.3.Y born on … 2015, currently aged 5.
1.4.Z born on … 2017, currently aged 4.
2.“father” refers to Mr Gavin born on … 1970.
3.“mother” refers to Ms Lavigne born on … 1980.
PARENTING
1.Except as otherwise set out herein that pursuant to s68B of the Family Law Act, the mother be granted exclusive occupation of the property situate at B Street Suburb A (“the Suburb A property”) to the exclusion of the father
2.That the children live with the mother.
3.That the father spend time with the children as follows:
3.1.From 9:30am to 12:30pm on each Saturday with W and Z;
3.2.From 1:30pm until 4:30pm on each Saturday with X and Y; and
3.3.At such other times as agreed between the parties in writing.
4.On a without admission basis that the father’s time with the children be supervised by C Contact Centre or such other professional supervision agency as agreed between the parties in writing, with the father to meet the costs of any supervision.
5.On a without admission basis that the father be and is hereby restrained from attending upon the school and pre-school attended by the children and any sporting and/or extra-curricular activities the children attend from time to time except as agreed between the parties in writing.
6.Each party shall do all acts and things and sign all documents necessary to contact C Contact Centre or such other professional supervision agency as agreed between the parties in writing within 24 hours from the date of these Orders and make earliest possible appointment for intake.
7.Each party shall do all acts and things and sign all documents necessary to facilitate the father’s supervised time at the earliest possible date.
8.That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
NOTATION
A.It is noted that the father is permitted to attend the Suburb A property in accordance with the property recovery order made on 11 May 2021 at mutual agreed time in writing.
The father spent time with the children supervised by C Contact Centre, in accordance with the interim consent orders, on at least six (6) occasions between 29 May 2021 and the dates of the hearing. Contact reports have been provided by C Contact Centre in respect to those occasions, and are attached as annexures to the father’s Affidavit filed 20 July 2021 (“the contact reports”).
On 20 July 2021, the parties attended a private mediation in respect to the parenting issues the subject of these proceedings. The parties were, however, unable to resolve matters in dispute in that mediation.
APPLICATIONS
Orders sought by the mother
The mother seeks orders be made in accordance with her Initiating Application filed and sealed 12 May 2021, as follows:
1. That the matter be urgently listed on short notice.
2. That pursuant to s68B of the Act, the mother be granted exclusive occupation of the property situated at B Street Suburb A (“the Suburb A property”) to the exclusion of the father.
3. That the children live with the mother.
4. That the father spend time with the children as follows:
4.1 From 10:00am to 1:00pm on each Saturday with W and Z;
4.2 From 1:00pm until 4:00pm on each Saturday with X and Y; and
4.3 At such other times as agreed between the parties.
5. That the children’s time with the father pursuant to Order 4 herein be supervised by an agreed supervisor or professional agency as nominated by the mother and father, with the father to meet the costs of any supervision.
6. That the father be and is hereby restrained by injunction entering or remaining in or within 100 metres of the school(s)/day-care(s)/pre-school(s) attended by any of the children.
7. That the father be and is hereby restrained by injunction entering or remaining in or within 100 metres of the children’s extracurricular activities attended by any of the children.
8. That forthwith following the making of these Orders and within 6 months of the date of these Orders, the father enrol in and complete the following courses and provide to the mother proof of completion:
8.1 D Program, offered by E Services;
8.2 Parenting After Separation Course.
9. That the father pay the mother’s costs of and incidental to this application.
In these proceedings, the mother effectively seeks a continuation of the interim consent orders.
During the course of the hearing, the parties, through their respective senior counsel, indicated that there was no controversy, in respect to the issue of the mother’s exclusive occupation of the former matrimonial home. It was not disputed that the father has acted in compliance with the interim consent orders, and the mother did not press proposed order 2 sought in her Initiating Application.
Orders sought by the father

The father seeks orders be made in accordance with his case outline document filed 21 July 2021, as follows:
1. The parents shall have equal shared parental responsibility for;
1.1 W born in 2011 (‘W’)
1.2 X born in 2013 (‘X’)
1.3 Y born in 2015 (‘Y’) and
1.4 Z born in 2017 (‘Z’)
(‘the children’)
2. The children shall spend time with the Father as agreed and arranged between the parties and failing agreement as follows:
2.1 Each alternate week from the conclusion of school on Friday until 6pm on Sunday commencing the first Friday after the date of these orders and such time to extend until 6pm on the following Wednesday during any school holiday period.
2.2 In addition to the time set out in Order 2.1 during the school term:
2.2.1 Z and Y shall spend time with the Father from the conclusion of school/daycare on Tuesday until the commencement of school/daycare on Wednesday
2.2.2 W and X shall spend time with the Father from the conclusion of school on Thursday until the commencement of school on Friday.
3. Notwithstanding any other order:
3.1 The children shall spend time with the Father from 6pm on the evening before Father’s Day until 6pm on Father’s Day
3.2 The children shall spend time with the Mother from 6pm on the evening before Mother’s Day until 6pm on Mother’s Day.
3.3The children shall spend time with the Father:
3.3.1From 12pm on Christmas Eve until 12pm on Christmas Day in years ending with an odd number
3.3.2 From 12pm on Christmas Day until 12pm on Boxing Day in years ending with an even number.
3.4 The children shall spend time with the Mother:
3.4.l From 12pm on Christmas Eve until 12pm on Christmas Day in years ending with an even number
3.4.2 From 12pm on Christmas Day until 12pm on Boxing Day in years ending with an odd number.
3.5 The children shall spend time on each child’s birthday with the parent that they would not otherwise see on that day from 3pm until 7pm.
4. The children shall communicate by telephone with the Father:
4.1 At any child’s reasonable request and
4.2 In any event each Tuesday and alternate Sunday at 7pm.
5. Each parent is at liberty to attend at any school event to which parents are invited.
6. Each parent is at liberty to attend at weekend sporting fixtures for any or all of the children.
7. Each parent is restrained from:
7.1 Denigrating the other parent or any member of the other parent’s family or household in the presence or hearing of any of the children.
7.2 Physically chastising the children.
7.3 Speaking about the family law matters or issues with the children or any person who is not a party to these proceedings.
8. Each party shall forthwith enrol in and complete an approved Parenting After Separation course.
9. The Father shall attend with psychologist Dr F as recommended by Dr F.
10. The Mother shall attend with her treating psychologist as recommended by that psychologist.
11. The Father shall not attend at the former matrimonial home at B Street, Suburb A without the written permission of the Mother.
The father, at paragraph 5a of his Response filed 11 June 2021, indicated his agreement with the order sought by the mother for the children to live with her, however, he otherwise seeks that they spend time with him, in accordance with the proposed orders sought in his case outline, set out above.
EVIDENCE
The mother relies on the following documents:
(a)Initiating Application filed by the mother and sealed 12 May 2021;
(b)Notice of Child Abuse, Family Violence or Risk filed by the mother on 12 May 2021;
(c)Affidavit of the mother filed 12 May 2021 with annexures (“the mother’s first Affidavit”);
(d)Further Affidavit of the mother filed 8 July 2021 with annexures (“the mother’s updating Affidavit”);
(e)Affidavit of the maternal grandmother filed 8 July 2021 with annexures (“the maternal grandmother’s Affidavit”);
(f)Affidavit of Ms G filed 8 July 2021 (“the nanny’s Affidavit”);
(g)Affidavit of Dr H filed 22 July 2021 attaching a letter from Dr H dated 21 July 2021; and
(h)The mother’s tender bundle of documents provided to the Court on 22 July 2021.
The father relies on the following documents:
(a)Response to an Initiating Application filed by the father on 11 June 2021;
(b)Notice of Child Abuse, Family Violence or Risk filed by the father on 11 June 2021;
(c)Case outline document of the father filed 21 July 2021 (“the father’s case outline”);
(d)Affidavit of the father filed 11 June 2021 with annexures (“the father’s first Affidavit”);
(e)Further Affidavit of the father filed 20 July 2021 with annexures (“the father’s updating Affidavit”);
(f)Further Affidavit of the father filed 23 July 2021; and
(g)Affidavit of Dr F filed 19 July 2021 attaching a report of Dr F dated 12 July 2021 (“Dr F’s Report”).
The following exhibit was relied upon:
(a)The mother’s tender bundle of documents provided to the Court on 22 July 2021 (‘Exhibit A’).
In this matter, conveniently, both parties relied upon the mother’s tender bundle, which is marked ‘Exhibit A’ in the proceedings. Accordingly, in this decision, reference will be made to the “tender bundle” is a reference to the bundle of documents marked ‘Exhibit A’.
APPROACH OF THE COURT IN INTERIM PROCEEDINGS AND THE PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY
Pursuant to s 60CA of the Family Law Act 1975 (Cth) (“the Act”), it is the responsibility of the Court to regard the best interests of the child as a paramount consideration even in interim parenting matters. It must do this in circumstances where the evidence of witnesses has not been tested through the process of cross examination and where there is limited expert evidence before the Court.
In that context, in Cowling & Cowling (1998) FLC 92-801 at [18], the Full Court said:
The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.
In the context of these interim proceedings, I am not in a position to properly consider and make a determination as to whether the presumption in s 61DA of the Act, that equal shared parental responsibility is in the best interests of the child, applies in the circumstances of this case. This is because there is a significant controversy between the parties as to whether the father has engaged in conduct which constitutes family violence.
As an order for equal shared parental responsibility will not be made, the pathway set out in s 65DAA of the Act does not apply to the task before the Court. That is, the Court is not required to apply a presumption that, in those circumstances, the child should spend equal or substantial and significant time with each of the parties. The Court’s task will be on making parenting orders that it considers to be in the best interests of the child.
Accordingly, the Court is “at large” to consider what arrangements will promote the best interests of the children having regard to s 60CC and the considerations contained therein.
In doing so, I am guided by the first four steps of the approach provided by the Full Court in Goode and Goode (2006) FLC 93-286 (“Goode”) at [82], which, relevantly, are as follows:
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place); …
In applying that guidance, I will focus upon the issues joined by the parties in these proceedings: see Banks & Banks (2015) FLC 93-637 at [48]–[50].
IDENTIFYING THE COMPETING PROPOSALS OF THE PARTIES;
As previously noted, in these proceedings, the mother contends that the Court should make no alteration to the interim consent orders, and that the parenting arrangements in place, pending final determination of this matter, should be consistent with those orders.
I have earlier set out those orders sought by the father which essentially provide for the children to spend overnight time with him every second weekend, and for him to have additional time with the children on one evening per week. He further seeks orders for the children to spend additional time with him during school holidays, and also on special occasions. Ancillary orders are additionally sought by the father, in respect to issues such as non-denigration.
IDENTIFYING THE ISSUES IN DISPUTE IN THE INTERIM HEARING
The primary issues, which I have to determine these proceedings, are:
1. Whether the the children will be at a risk of harm by spending unsupervised time with the father, and
2. Whether the father’s parenting capacity is such that he is capable of caring for the children, in the event that orders are made for the children to spend an increased amount of unsupervised time with him.
I will now broadly outline the issues which have been raised by each party in their respective submissions to the Court, which they contend are relevant to my decision in these proceedings. I will subsequently consider each of those issues in greater detail.
Broad outline of the issues raised by the mother
The mother in these proceedings, as I have earlier noted, opposes the children spending unsupervised time with the father. Broadly speaking, she contends that any time that the father spends with the children should be supervised because, as she alleges, the children would be exposed to an unacceptable risk of harm in his unsupervised care.
In respect to the issue of unacceptable risk, in her case outline document, which was provided to the Court on 22 July 2021, the mother contends that:
2. The separation of the parents is new. It takes place against an agreed background - that is that the parents were in dispute in respect of parenting issues before the relationship broke down.
3. As a consequence the children have been exposed to conflict with them at its centre both prior to and after separation.
4. The mother contends (on the objective evidence supports) a concerned that the father has involved the children in the parental dispute.
5.The mother gives evidence of conduct on the part of the father as against her which meets the definition of family violence in the Family Law Act. It is accepted that these are interim proceedings and evidence cannot be tested but, in those circumstances, unless the evidence she gives is inherently improbable then it is necessary to assess the risk to the children posed by a finding (in due course) that what the mother described did indeed occur.
6. The mother gives evidence and the DCJ records of interview with the children and father provide independent support that the father engaged in discipline of the children which it is submitted meets the definition of family violence.
7. The risk issues are complicated by the ages and number of children and the history of parenting to date.
In that last respect, senior counsel for the mother contends that, in assessing the issue of risk in this matter, it is important that the Court have regard to the ages and the characteristics of the children, consistent with s 60CC(3)(g). That, it was contended, make them particularly vulnerable to being subjected to the father’s alleged outbursts of anger, as well as the prospect of the children being subject of physical discipline that is excessive. Such eventuality, it was submitted, presents a risk to the children of not only physical harm, but also emotional and psychological harm.
It is noted that X has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), and she has been placed on medication, in respect to that condition, since late 2020. Relevant to that diagnosis, it is also acknowledged that X has engaged in challenging behaviour in the past, including acting in an aggressive manner towards her siblings, and that it is likely that X will continue to engage in challenging behaviour in the future, despite the medication and therapy that she is now receiving to manage her ADHD.
The mother has also submitted, through her senior counsel, that Z, who is currently four (4) years of age, has also demonstrated similar behavioural characteristics to those which were demonstrated by X at his age. She is, therefore, concerned that Z might also have ADHD.
The mother further contends that W has also been impacted by the father’s conduct, which has resulted in her conferring with a school counsellor on a weekly basis. Senior counsel for the mother was, however, unable to clarify whether that counselling had commenced in the period prior or subsequent to the parties’ separation.
In the course of submissions by senior counsel for the mother, it was contended that the children are at an unacceptable risk in the unsupervised care of the father, as a result of three primary risk factors. Those, it is contended, are as follows:
(1)The father’s history of engaging in excessive discipline of the children;
(2)A history of the father exhibiting anger management issues; and
(3)The father engaging in acts of family violence towards the mother.
Further, during the course of the proceedings, senior counsel for the mother contends that, in considering that issue of risk, the Court should be influenced by two additional matters, being:
(1)The mother’s anxiety in respect to the father, and the impact of such orders upon her; and
(2)The father’s lack of insight into his past conduct towards the mother and the children.
Broad outline of the issues raised by the father
The father expresses remorse in respect to his aspects of his own past behaviour. He contends, however, that the mother has exaggerated the allegations she makes against him, in respect to perpetration of family violence and what she contends is the father’s propensity to lose his temper and inappropriately discipline the children.
In respect to the issue of risk, the father contends, in his case outline document, as follows:
(a) The mother alleges a lengthy history of abuse perpetrated by the father with two alleged assaults – one on herself (2019) and one on X (April 2020). The mother cites verbal harassment, emotional abuse and other forms of abuse perpetrated by the father. The father denies abusing the mother.
(b)The mother concedes that she smacked X hard when X was in the bath citing an attack by X.
(c) The Father concedes a more recent history of argument with the mother but denies contact [sic] which constitutes abuse. The Father has co-operated fully and transparently with both the NSW Police and the Department of Communities and Justice in their investigations. The ADVO application has been withdrawn and the DCJ do not intend to take any further action. The Father has sought therapeutic help and has enrolled in the first available parenting course. The Father proposes restraints which are appropriate.
(d) The C Contact Centre supervision reports suggest that the Father’s care and support of the children is appropriate and loving. They suggest that the Father’s caregiving is relaxed and familiar. The Father engages well with the children and including addressing difficulties - X’s behaviour, the children’s The children display no fear of the Father. They spontaneously acknowledge their feeling towards him and love of him. They all spontaneously show physical affection to the father.
(e) The Father is concerned about the mother’s representations to the children that he is ‘angry’ or ‘dangerous’ and that the ongoing supervised nature of the time is necessary for their protection. (For example X’s comments on 3 July 2021) This is in a context where:
(i) There was no evidence provided in the Mother’s first affidavit that the children had ever expressed fear of the father.
(ii) The C Contact Centre Reports have been positive and investigation of the incidents of concern has been thorough and complete.
It is contended by senior counsel for the father that the mother’s allegations of the father being an angry, controlling man, is inconsistent with the fact that, prior to separation, she left the children alone in his care on several occasions. It is noted that, despite making a broad allegation, the mother has not presented any evidence which, even on her case, would justify a finding that the father has engaged in any such conduct, in the period subsequent to the parties’ separation.
Senior counsel for the father submitted that the Court should not accept the mother’s evidence justifies a finding that the father presents a danger to the children and the father, in response to specific allegations made by the mother against him, contends that:
·In respect to the 2017 incident alleged by the mother, the father acknowledges his actions, in giving a “Chinese burn” to X’s lower arm was, in retrospect, inappropriate, however, that it was in the context of a game and does not justify the imputation that he is a dangerous man or that he would physically harm the children;
·In respect to the incident that occurred in November 2019, which was the subject of the mother’s report to police, , the version of the incident set out by the mother in her Affidavit, is inconsistent with the version of events which she gave to police, and that, even in the context of these proceedings, the Court would not accept the mother’s evidence that the father was physically violent to her; and
·The mother has, similarly, inaccurately described the incident that occurred in March 2020, in which the father acknowledges placing a restraint around X’s arms and restraining her to the stool, and that the evidence does not establish that the father placed a belt in X’s mouth.
It is further submitted, by senior counsel for the father, that the mother’s contentions in respect to the father’s abusive conduct, including financial control, is without merit, and inconsistent with his role in supporting the family, including meeting outgoings and paying the mother the amount of $2,000 per week for her expenses and those of the children. It is also contended that the mother’s allegations, that the father has been controlling in respect to her social life, is without foundation, in the context of the number of times that the mother has left the children in the father’s care while she has attended social functions, in circumstances where she has not suggested that the father voiced any objection or concerns about her doing so.
Further, the father contends that the mother’s account of the children experiencing stress and anxiety, and demonstrating fear in the presence of the father, is contrary to the evidence provided in the contact reports from C Contact Centre, which the father contends confirm the opposite. That evidence, it is submitted, would satisfy the Court that the children love their father, they are not scared of him and they enjoy their time with him.

The father, as submitted by his senior counsel, contends the mother’s asserted fear, of him abducting the children, is baseless and was an assertion that should never have been put before the Court. It is further contended that the mother’s assertion, that she would be so emotionally impacted by orders providing for the children to spend unsupervised time with the father, it would adversely affect her parenting capacity, is not supported by the evidence presented by her.
The father further submits that, contrary to the mother’s assertion that the father is a man who behaves in an angry and dysregulated manner, the father has acted reasonably, in the context of the parties’ separation. It was noted that, upon receiving a request communicated through the solicitors for the mother, the father agreed to the request that he not to attend the former matrimonial home, or attend the children’s school or extracurricular activities. It is also contended that the father fully cooperated with the police investigation, in respect to allegations made by the mother that he physically assaulted her, and that he fully complied with requests made of him by DCJ, which thanked both parents “for engaging honestly and transparently” with the Department.
It was further contended that the mother’s allegations that the father has harassed and continues to harass the mother in the period post separation is without foundation and no such inference can be drawn from his conduct or his communications with her.
As submitted by senior counsel for the father, the father argues that the Court should not accept the mother’s contention that he lacks insight in respect to his conduct, and contends that no such inference should be drawn by his comment to his therapist that he felt “blindsided” by the parties’ separation. Specifically, it is contended that, even if parties are in a state of marital disharmony, a party can nonetheless be surprised and upset when the other party seeks to end the relationship. Insight was shown by the father, it was further contended by senior counsel for the father, by the responsible manner in which he has acted in the period subsequent to separation.
More generally, in terms of the additional considerations under s 60CC(3) of the Act, the father relies upon the submission set out in his case outline.
IDENTIFYING ANY AGREED OR UNCONTESTED RELEVANT FACTS;
The legal representatives for both parties have undertaken a considerable amount of work in providing detailed accounts of events that they each contend are relevant in these proceedings. In that context, the Court notes that family law proceedings often involve consideration of the conduct of the parties over a considerable period of time, and in a range of different contexts.
Both parties, in this these interim proceedings, have referred to a number of incidents which are, with respect, of a relatively trivial nature, the recounting of which only serves to diminish the prospect of the parties having a respectful relationship in the future, and one that is conducive to the making of child focused decisions. While I have read each of the Affidavits filed by the parties, I have focused upon those factual contentions that are of such relevance as to have influenced the decision I have made in this matter.
In that context, as best I can determine in these interim proceedings, the following facts, which are relevant to my decision, appear to be agreed or uncontested. I have, where the parties make contentions in relation to those agreed or uncontested facts, also set out those contentions which are relevant to my consideration of the issues in this matter.
Prior to the parties’ relationship, the father served a period of time as in the British armed forces, which included a tour duty in the first Gulf War. The mother contends that the father disclosed to her, during the period of their relationship, that he was discharged because he punched an officer. The father acknowledges having a disagreement with a superior officer during that time. He, however, denies he was the subject of sanction in his service and, comparatively, contends that he was honourably discharged.
During the course of the parties’ marriage, the mother was engaged, on a part-time basis, to undertake bookkeeping work and performing the payroll duties for the father’s business. It was not contested that, approximately two or three times per week, the mother would “do payroll, import bank statements, and do reconciliations, PAYG and superannuation payments for the company”: paragraph 100 of the mother’s first Affidavit.
Since the birth of W, in 2011, the mother has been the homemaker and primary carer of the children.
In 2017, during an occasion when the parties hosted lunch for two friends , the father, as contended by the mother, stated to their friends that “X is so tough, she’s the tom boy in the family”, before proceeding to give X a “Chinese burn”, which left a red mark: paragraph 39 of the mother’s first Affidavit. The father’s evidence was broadly consistent with that account from the mother, save to the extent that he contends that his interactions with X in that nature were very much light-hearted, and he intended to cause her no harm and, in fact, inflicted no harm.
On a separate occasion in 2017, the parties and the children attended a luncheon at a restaurant, to celebrate the maternal grandmother’s 70th birthday with the maternal family. The mother contends that a disagreement arose, resulting in the father throwing keys across the table and telling the maternal grandmother to “fuck off”, and that this occurred in front of the children. The father does not acknowledge the events as described by the mother, however, he does not dispute that there was a disagreement at the lunch, during the course of which, he swore at the maternal grandfather in the maternal grandmother’s presence.
In November 2019, upon returning home, after attending a function at a friend’s home during which both parties consumed alcohol, the parties became involved in an argument that resulted in the father calling the maternal grandparents to attend the family home. The mother contends that, during the course of the argument, the father placed one hand around her neck and pushed her backwards through the bedroom doorway, causing her to fall back and land on the bed. The father acknowledges that an unpleasant exchange occurred between the parties on that evening which resulted in him calling the maternal grandparents to come to the parties’ home. He contends, however, that he did so as result of concerns that the mother stated that she intended to leave with the children, and he was concerned about her driving the car in an intoxicated state. I will set out, in greater detail below, the parties’ respective contentions in relation to this incident, however, the events which occurred will, ultimately, require determination at final hearing. As I will set out, that does not, however, mean that the parties’ respective contentions can be ignored, for the purpose of determining the issue of risk in these proceedings.
Sometime in 2020, an incident occurred involving an exchange between X and the mother, in which the father alleges that the mother smacked X on her leg, leaving a red mark. The mother acknowledges that there was an incident involving her physically disciplining X, in respect to X’s unacceptable conduct, which involved the child pulling her hair. It has been unnecessary to make findings in respect to these contentions set out in the parties’ respective Affidavits. The father does not contend that the children are at an unacceptable risk in the mother’s care, however, refers to the incident as an example wherein either party has, at times, engaged in inappropriate discipline of the children.
At paragraph 38 of her first Affidavit the mother refers to an incident, that occurred in March 2020, which is of significance in these proceedings, wherein the father restrained X’s arms. The father contends that his actions were in response to X hitting, punching and kicking W, and also damaging property. Further, the parties both acknowledge that the incident involved the use of a belt, however, there is a significant dispute as to how that belt was utilised. The parties’ respective contentions in relation to this incident will be set out in greater detail below.
The mother also contends that, in August 2020, after the mother returned from lunch with a friend, the parties had an argumentative exchange regarding the period of time that the mother had spent at the lunch. The mother contends that the father’s reaction was an example of him engaging in coercive and controlling conduct. The father does not dispute that the parties did argue, as described by the mother, however, he rejects her assertions that he attempted to control the mother or limit her freedom. In that respect, the father refers to a number of other incidents where the mother attended social occasions on her own while he cared for the children.
In January 2021, an incident occurred during a family holiday at the maternal grandparents’ holiday home in Suburb J, in which W walked away from the family after becoming upset during a disagreement. The parties had a disagreement, in respect to the manner in which the father attempted to console or discipline W over her actions, which resulted in the father returning to Sydney whilst the children and the mother remained at the holiday home.
There is agreement between the parties that X has relatively recently been diagnosed with ADHD, although there is a lack of clarity as to when X was first diagnosed. The father contends that the diagnosis occurred in late 2020, and that contention is consistent with the mother’s assertion that, in December 2020, the father questioned the appropriateness of medication prescribed for X, for the management of her ADHD, and whether it was been provided in the appropriate dosage. The father acknowledges having concerns about those matters, however, he contends that he acted entirely responsibly in conferring with the family’s general practitioner about his concerns. The father further acknowledges raising with the mother, the possibility of obtaining an earlier specialist review by a paediatrician of X’s medication, in circumstances where X had engaged in aggressive conduct towards her sister, despite being on the medication. In that respect, both parties acknowledge that X can engage in challenging behaviour including, on occasion, displays of aggression towards her siblings.
It appears to be agreed, however, that, on 15 April 2021, X was formally diagnosed with ADHD. Further, it did not appear to be disputed that, as attested by the mother, X takes, as part of the management of her ADHD, a dailycourse of Vyavanse 20mg between 7 and 7:30 am, and Intunive 2mg between 4 and 4:30 pm and Melatonin 1mg between 5 and 5.30 pm.
On 30 April 2021, the mother attended Suburb K Police Station to report past incidents of what she alleged to involve family violence, perpetrated by the father against herself and the children. As earlier noted, a provisional ADVO was issued, with a returnable date set on 11 May 2021. In addition, on that same date, the mother vacated the former matrimonial home with the children, and went to stay at a friend’s house in Suburb P.
On 1 May 2021, the father vacated the former matrimonial home and, subsequently, on 3 May 2021, the mother returned with the children to live in the Suburb A property.
On 3 May 2021, the solicitors acting for the mother wrote to the father, in respect to the parties’ separation, and the father replied indicating his agreement to remain away from the former matrimonial home.
The father acknowledges that, on 6 May 2021, the mother received a phone call from a domestic violence caseworker, who recommended that the children be included in the provisional ADVO which had been issued against the fatherr.
The mother asserts that, as from 7 May 2021, her access to a company account has been limited. She acknowledges, however, that the father continues to pay her $2,000 per week, in respect to her needs and the children’s needs. This is the same amount that the father paid the mother, by way of a weekly allowance, during the course of their relationship.
On 11 May 2021 the mother’s solicitors wrote to the father, proposing interim consent orders. The father acknowledges that, on this day, he attended the children’s school, and that he also attended W and X’s extracurricular classes that afternoon. He contends, however, that he attended the children’s school to meet staff on the advice of police.
On 12 May 2021, the mother filed an Application seeking final and interim parenting orders. Her first Affidavit, filed in support of that Application, alleges that the father has engaged in acts of significant family violence, and that he has abused the children, most particularly, X.
On 13 May 2021, the interim consent orders, to which I have earlier referred, were made on a without admissions basis.
In May 2021, the father commenced attending upon psychologist, Dr F. Dr F has provided a brief report dated 12 May 2021 in these proceedings, which is attached as Annexure ‘C’ to Dr F’s Affidavit filed 19 July 2021, that I will consider in further detail below.
By a letter dated 23 June 2021, DCJ advised the father that it had closed its investigation, in respect to the mother’s allegations of child abuse.
As I have earlier noted, on 29 June 2021, the provisional ADVO was revoked and the ADVO Application initially made by police was otherwise withdrawn.
Since the interim consent orders were made on 12 May 2021, the father has not attended the former matrimonial home, the children’s school or their extracurricular activities. The children have been spending supervised time with the father in accordance with the consent orders. As at the date of the interim hearing, the children have spent supervised time with the father.
The mother contends there are concerning aspects in respect to the contact reports by C Contact Centre, and, also, in respect to the manner in which the father has communicated with the children. While I have read and acknowledge the concerns expressed by the mother, I respectfully agree with senior counsel for the father, that the contact reports, in the main, present a positive picture of the father’s interactions with the children, and the children enjoy spending time with their father.
On 25 June 2021, the mother’s solicitors, on her instructions, wrote to C Contact Centre requesting a variation of changeover arrangements. The letter also requested that the supervising agency appoint a different supervisor of the time that the children spend with the father.
On 6 July 2021, the parties encountered each other at a local coffee shop in Suburb A. The mother reports feeling uncomfortable by the encounter, however, the evidence has not satisfied me that the father acted inappropriately in any way.
While I will not set out, in this summary, every incident referred to by the parties, it is clear that they had a number of arguments relating to their respective parenting styles, and the action taken, by each of them respectively, to discipline and/or chastise the children. In particular, it is clear that the management of X’s behaviour has been a particular issue of tension between the parties.
The father refers to the number of occasions in March and April 2021, prior to the parties’ separation, wherein the mother, despite her alleged concerns regarding his parenting capacity, left the children in his care. I will set out below the parties’ respective contentions in relation to those occasions.
The mother also refers to a number of occasions where she alleges that the father has made disparaging comments to her regarding matters such as her clothes, the amount of make-up she had worn, the way in which she styled her hair, and her arrangement of the kitchen and the laundry, and also criticised comments which she made in the company of friends. The mother also contends that several instances have occurred which has caused her to suspect that the father has electronically tracked and/or monitored the mother.
Conversely, the father refers to number of events which reflect the parties’ growing intolerance with each other, their increasing criticism of each other and, further, he alleges that he was also the subject of sarcastic and derogatory comments made by the mother towards himself, in respect to his behaviour. In that respect, the father also contends that he felt “bullied” by the mother.
While I have not referred to a number of events relied upon by each of the parties to sustain their respective contentions relating to the manner in which they have been treated by the other, I have made this decision, in the context where I recognise that the mother will allege, at final hearing, that the father has engaged in a pattern of abusive, controlling and/or coercive conduct towards her.
CONSIDERATION OF THE RELEVANT SECTION 60CC MATTERS
Considerations under s 60CC in respect to the best interest of the children
Primary considerations
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) are, as follows:
(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 balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: see s 60CC(2)(b) of the Act.
Additional considerations
Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. These considerations are as follows:
·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living;
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs;
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant;
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander;
·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents;
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family;
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters;
·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant consideration.
The matters under s 60CC in the context of the objects of Part VII

Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B sets out the objects and principles of Part VII. These 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.
Significantly, in Masson v Parsons (2019) 266 CLR 554 at [8], in their Honours’ joint judgment, Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ gave emphasis to the fact that;
Subdivision B of Div 1 of Pt VII [of the Act], which is headed “[o]bject, principles and outline”, provides, inter alia, in s 60B(1) that the objects of Pt VII include “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”
(Emphasis in original)
More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (emphasis added): see s 43(1)(c) of the Act. Those rights include:
·The right “to know and be cared for by both their parents”: s 60B(2)(a) of the Act;
·The 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)”: s 60B(2)(b) of the Act; and
·The right to “maintain personal relations and direct contact with both parents on a regular basis”: s 60CC(3)(e) of the Act.
The Act also makes it clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare”: s 43(1)(c) of the Act.
The primary considerations under section 60CC(2)
Meaningful relationship
As noted, s 60CC(2)(a) of the Act requires me to consider the “the benefit of the child having a meaningful relationship” with each of the parties. On the other hand, I must consider the issue of the risk associated with the children possibly being subject to physical or psychological harm, neglect or abuse in the care of either of the parties.
In Sigley v Evor (2011) 44 Fam LR 439 at [132], the Full Court, quoting Brown J in Mazorski & Albright (2007) 37 Fam LR 518, confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child”.
Both parties acknowledge that it is in the interests of the children to have a meaningful relationship with both parents. The mother contends, however, that goal must be balanced against any risks to the children in spending time with the father. Comparatively, the father contends that a continuation of the regime of supervision of the children’s time with him will impede the likelihood of the children maintaining a meaningful relationship with him.
As earlier noted, the mother’s primary concern is that orders providing for the children to spend unsupervised time with the father would, she contends, place them in a situation where there is an unacceptable risk that they will be exposed to the father’s anger and the prospect of the father inappropriately disciplining the children. For reasons which I have set out below, I am not satisfied that the children would be at an unacceptable risk of physical and/or psychological harm in the unsupervised care of the father. In circumstances where I am not satisfied that the children would be at such risk, I respectfully agree with the submission of senior counsel for the father, that ongoing supervision of the father’s time with the children has the potential to negatively impact the children’s ongoing meaningful relationship with their father.
Protection from harm
The primary consideration in this matter is whether the children will be exposed to “physical or psychological harm” in the unsupervised care of the father. Despite the Court’s limited ability, in interim proceedings, to make findings in respect to controversial facts, the Court is not relieved of the responsibility to make an assessment as to whether steps are required to protect children from an unacceptable risk of harm. In that respect, the Full Court, in Eaby & Speelman (2015) FLC 93-654, confirmed that evidence on a topic should not be disregarded, merely because facts are in dispute, stating at [18]:
It is true that in Goode & Goode, at [68], the Full Court said that the circumscribed nature of interim hearings means that the court should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. However, that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.
In a similar context, in SS & AH [2010] FamCAFC 13 (“SS & AH”) at [100], the majority of the Full Court, per Boland and Thackray JJ, said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
It is to be observed that the reference in SS & AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that, in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
Where risk is alleged in interim parenting proceedings, a conservative approach is warranted that is “likely to avoid harm to a child”: see Marvel v Marvel (2010) 43 Fam LR 348 at [120].
Insofar as the mother is the party who is asserting that the children would be at an unacceptable risk of harm in the care of the unsupervised care of the father, I will address my consideration of the issue of risk, in the context of the issues advanced by the mother, which were:
(1)the father’s history of engaging in excessive discipline
(2)the history of the father having anger management issues
(3)the father engaging in acts of family violence
(4)the mothers anxiety and the impact of such orders upon her
(5)the father’s lack of insight
The father’s history of engaging in excessive discipline
I accept, as submitted by senior counsel for the mother, that the parties have a difference of opinion about how the children should be parented, including in respect to the issue of discipline. This was acknowledged by the father in his discussions with his treating psychologist, Dr F who recorded, in his Report, that the father advised his psychologist that the parties had “some differences in parenting style: he was more of a disciplinarian, and she was more laissez-faire with the kids”.
It is common ground, between the parties, that much of the argumentation that has occurred between them has related to issues in respect to disciplining the children. Further, having regard to the statement provided by W to DCJ investigators, I am satisfied that the children have, at various times, been a witness to their parents arguing. In circumstances where the parties acknowledge that a frequent topic of arguments between them was the manner in which the children should be disciplined, it is reasonable to infer that the children would have witnessed arguments between their parents regarding that topic.
At paragraph 56 of his first Affidavit, the father contends that he removed privileges from the children as a form of discipline, including, for example, restricting their time on electronic devices. He denies, however, that he ever “threatened to drag a child to their room by the hair”. The reference to threatening to drag a child by their hair appears to relate to paragraph 40 of the mother’s first Affidavit, in which she attests that the father would state to the children words to that effect as a form of discipline. It is noted that the mother’s contention in this respect is consistent with the statement made by W, to the investigating officer from DCJ, that the father had threatened to drag her by the hair, if she did not go to “the front room” where she was to spend time out. It should be noted, however, that W did not assert that the father had in fact ever engaged in such an act.
Notes taken during the course of a telephone interview between investigating officers from DCJ and the father, which is included at page 54 of the tender bundle, record the father as acknowledging that that the maternal grandfather had, in January of this year, a conversation with him about “his parenting skills”. The father further acknowledged that the maternal grandfather expressed concerns to the father about his shouting. The notes taken by DCJ further record that:
[The father] agreed that there has been lots of shouting in the house but not just him shouting. [The father] said that [the mother] also shouts and that the neighbours have had to come over three times to complain about [the mother’s] shouting.
[The father] said that a lot of their fights is around the difference in parenting styles. [The father] said that [the mother] does not follow through with consequences. [The father] said that when the kids get in trouble he wants to impose consequences such as devices being taken away or missing out on an activity. He said that the kids get time out in the front room when they have been naughty but when things get really escalated he has threatened that they would have to sit in the garage. [The father] said that this has only ever been a threat.
[The father] said that he is sterner than [the mother] and he may grab them by the arm to lead them to the front room but he never hurts them. [The father] said that [the mother] smacks them- not hard but smacks them when she gets frustrated with them.
There is, with respect, some substance in the submission of senior counsel for the mother that, at least during the course of that interview, which occurred on 18 May 2021, the father sought to deflect criticism of his shouting by accusing the mother of also shouting, rather than specifically acknowledging the inappropriateness of his own conduct in that respect.
The most significant event in terms of conflict between the parties regarding the manner in which they discipline the children was an event that occurred in March 2020, in which the father acknowledges restraining X by placing a belt around her arms. The father’s account of that incident is summarised in notes taken by DCJ investigators made, during the course of that telephone interview, which states as follows:
We spoke about the reported incident ([the father] allegedly tying X's arms and gagging her). [The father] said that this incident sounds bad and was really bad but wanted to put contect [sic] around what happened. [The father] said that during Covid they were renting a house as their house was being renovated. At this point of time X had not been diagnosed or medicated for her ADHD. [The father] said that had already put holes in the walls and damaged door frames in their rental house. On this day, X had W in a head lock and was punching W. [The father] said he tried to stop X from doing this but she continued and then started kicking and screaming. To stop X from hurting W he sat her on a stool and tied her to the stool with a strap around her waist and above her elbows so she would stop hitting. [The father] said that X could still move her hands and it was loose. I asked if he put anything in her mouth- he said no, he put material over her head briefly to try and stop the shouting.
[The father] said that X did not require [sic] any injuries from this incident.
[The father] said that he realised that this incident got out of hand. [The father] said that with Covid and being all home together working and home schooling and X being undiagnosed and damaging the rental house and hurting her siblings he reacted badly.
Officers from DCJ also interviewed both W and X, on 6 May 2021, in respect to this incident. The handwritten notes of that interview, which is included at pages 67 and 68 of the tender bundle, record the following exchange between the interviewing officer and both W and X:
[INTERVIEWER]: Incident [with] X where you needed mum’s help.
[W]: Stood in front of X [because] dad was angry & marched towards her. I stood in front & said don’t hurt her. Mum stepped in front too & said to go away.
[INTERVIEWER]: Hands tied?
[W]: Put belt around X’s mouth so she couldn’t speak & then pulled it tighter
[X]: That didn’t happen to me! You’re making it up.
[W]: I was screaming, crying and upset. Dad said he’d do it to me next if I didn’t shut up.
The father contends that the best evidence of what occurred, on the day, was the account X provided to the same interviewing officer, the summary of which is set out in the handwritten interview notes at page 72 of the tender bundle, as follows:
[INTERVIEWER]: Dad not happy [with] something you did & something happened?
[X]: Don’t remember that.
[INTERVIEWER]: Daddy tied arms up?
[X]: Where?
[INTERVIEWER]: Behind back
[X]: Oh yeah, that was a game. Tried to get each other with legs
[INTERVIEWER]: Anything in mouth?
[X]: No
[INTERVIEWER]: Mum see?
[X]: Don’t remember that
In asserting that, even in the context of these interim proceedings, the Court should accept the mother’s version, senior counsel for the mother stated that the father, in his initial accounts of the event, failed to state that he had not only placed a belt around X’s arms, around her waist and above her elbows, but that he had also tied her to a stool. The mother notes that the father made no mention of tying X to a stool in his account of the incident at paragraph 49 of his first Affidavit sworn on 10 June 2021. Further, the mother contends that it is relevant that the father did not, in his recount of the incident in his Affidavit, disclose that he put material over X’s head to try and stop her shouting, it being noted that he had provided that account in his earlier interview with DCJ.
The mother also refers to a third version of the event, set out in paragraph 11(vi) of his updating Affidavit filed 20 July 2021. In that paragraph, the father states, in response to the mother’s account of the event set out in paragraph 85 of her updating Affidavit filed 8 July 2021, that, at the time he restrained X, she was striking W with a toy belt and that, when he restrained X, he “grabbed the toy belt and put it on her head and the side flap dropped over her face for about 20 seconds”. Senior counsel for the mother contends that, as a result of inconsistencies in the father’s evidence, the Court should accept the mother’s version of events that, during the course of restraining X with the belt, the father also placed a second toy belt in X’s mouth, effectively for the purpose of gagging her.
I accept that I am unable, in these interim proceedings, to resolve the factual controversy between the parties, as to what happened on the day in question, in March 2020, when the father restrained X. Even at this interim stage of the proceedings, I do have some disquiet as to precisely what occurred when X was restrained. Clearly, at final hearing, the father will be subject to cross examination as to the sequence of events, including when he placed a cloth over X’s face, and the sequence of events as to when he placed a belt on X’s head. I accept the submission of senior counsel for the mother that, irrespective of which version is accepted, it is one that would give the Court considerable concern.
Clearly, the occurrence of the incident involving X in March 2020 is relevant to the assessment of risk. However, for reasons which I set out below, I am not satisfied that there is a real risk that similar conduct will be repeated by the father in the future. This is in the context where the father has acknowledged the inappropriateness of his conduct, including stating to investigating officers of DCJ that “the incident sounds bad and was bad”. Further, it is relevant to my consideration, of whether there is a risk of any repetition of similar conduct on the part of the father, that X has, subsequent to the event, been diagnosed with ADHD and, consequently, the parents are now aware of an explanation for her challenging conduct and, are developing strategies in respect to managing those challenging aspects of X’s conduct.
The father’s appreciation of a more appropriate response is reflected in his response to DCJ interviewers, to which I have earlier referred, where he gives context to his inappropriate conduct, and also in an exchange, recorded in those notes as follows:
I asked [the father] what he would do if he had all 4 kids and things escalated with either X or another child's behaviour. He said that he would have to give in to X to deescalate the behaviour. He said he would probably move the other kids to another room and ask W to oversee them while he worked out what would deescalate the current behaviour. He said that music or the computer in the room usually works for X.
The father having a history of anger management issues
The mother contends that the father engaging in acts which constitute family violence, and his excessive disciplining of the children, should be seen in the context where he has a history of poor anger management. Specifically, she contends that, while that history commenced prior to the parties’ relationship, it has subsequently been imported into the parties’ relationship, with it manifesting as a pattern of angry and abusive behaviour on the part of the father.
In that respect, the mother contends that a demonstration of the father losing his temper and acting inappropriately, prior to the parties’ relationship, was an incident which resulted in him becoming the subject of discipline, during his period of military service. As earlier noted, the father acknowledges that he did have an argument with a superior officer during a military deployment, however, he otherwise notes that he served from 1988 until 1992, including a decorated service in during his deployment in the first Gulf War, and that he was honourably discharged.
The Court is not, in these interim proceedings, in a position to determine the circumstances in which the acknowledged argument with a superior officer occurred, nor to determine whether there were any disciplinary consequences. Moreover, given its now historic context, having occurred approximately three decades ago, I give little weight to the mother’s evidence about such an incident, and it has not impacted upon the orders which I have made in these proceedings.
Further, at paragraph 48.2 of her first Affidavit, the mother asserts that the father, while complaining to her about the conduct of the employees of his business, spoke about them in disparaging and offensive terms. This, she contended, included calling a particular employee a “fucking cunt”, and stating that “they are all fucking cunts”. Senior counsel for the mother acknowledged that, while the mother has regularly worked at the father’s business, the instances referred to by him, as alleged in her Affidavit, were not instances witnessed by her. Again, however, in considering whether the father has engaged in a pattern of angry, abusive and/or coercive and controlling conduct, I give little weight to the fact that, in the privacy of his home, he may have complained to his then intimate partner about employees of his business, including speaking of them in in disparaging and, even offensive, terms.

I accept that, in November 2019, there was an altercation between the parties, and that physical contact occurred which caused distress to the mother, such that she threatened to leave the former matrimonial home with the children. Consequently, the father made the decision to call the maternal grandparents, so that they might assist in consoling the mother and quelling her distress. The fact that he called for assistance from the maternal grandparents may well be found, at final hearing, to be inconsistent with the father having just committed a serious criminal offence, being an act of attempted strangulation. On the other hand, it is evidence of the mother being in a distressed state, as a result of the events that had occurred.
In summary, in respect to this evidence which is of significance in these proceedings, I acknowledge that it is quite possible the Court could conclude, at final hearing, on the basis of the evidence presented, that the father engaged in unacceptable physical contact, including, possibly, pushing the mother onto a bed. In that context, it is noted that, in an interview with police on 30 April 2021, which is recorded in those police notes, the father “agreed there was a physical altercation” between the parties in November 2019. However, as noted, it is simply not possible, in these interim proceedings, for me to make a determination as to precisely what occurred during that altercation in November 2019.
Senior counsel for the mother contended that the mother’s allegations, that she has been the subject of physical violence by the father, is corroborated by a statement from Z reported to the DCJ on 22 April 2021. A narrative of that report to DCJ, included at page 6 of the tender bundle, records the child as stating that “his Dad hits his Mums arms and that he feels sad and scared”. In the absence of any particulars or context provided in respect to such an incident, or incidents, I am, however, unable to place any weight on that evidence.
As previously noted, the mother also alleges, in her sworn Affidavits, that the father has, throughout the course of their relationship and subsequent to their separation, engaged in a pattern of angry, abusive, coercive and controlling conduct. This, according to the mother, includes financial control, shouting and the use of abusive language, as well as making belittling and derogatory comments to her.
I respectfully agree with the submissions of senior counsel for the father, that there is no evidence before the Court that would justify a conclusion that the father has engaged in any such conduct, in the period subsequent to the parties’ separation. This includes text communications attached to the mother’s updating Affidavit, which she contends constitutes harassment, but which, in my opinion, does not satisfy that assertion.
Further, while, once again, the mother’s allegations of the father engaging in financially controlling conduct is a matter that will require determination at final hearing, the evidence presented by the mother, in these proceedings, is not such that the Court would be justified in making that finding. In that respect, despite the fact that the mother contends the father has not fully disclosed his financial affairs to her, it is acknowledged that the mother undertook bookkeeping functions in the father’s business, including acknowledging, at paragraph 100 of her first Affidavit, that she assisted the father in his business on a part-time basis doing the payroll, attending to employees superannuation contributions and doing bank statement reconciliations.
Insofar as there is a debt on the former matrimonial home, that debt is to a company controlled by the maternal grandfather. Further, it did not appear to be disputed that the maternal grandfather has prepared the tax returns for the father’s business. Additionally, it did not appear to be disputed that the father has met all outgoings in respect to the maintenance of the former matrimonial home and continues to do so, and, in addition, the father continues to pay the sum of $2,000 per week to the mother, to assist her in meeting her needs and those of the children. This is in the context, which the father notes, where he is paying the amount of approximately $825 per week, for the private supervision of the time that the children spend with him.
Similarly, the evidence presented by the mother is not such that the Court could reasonably find that the father has engaged in conduct which is socially controlling of the mother. In that respect, the mother challenges the father’s account of the circumstances in which she left the children in his care, in the examples from March and April of this year that he has provided. Without deciding which of the parties’ versions of the respective circumstances is accurate, the mother has not challenged the fact that those are examples of instances, during that two month period, where she did attend social occasions. There is no suggestion on the part of the mother that the father voiced any concern to her doing so.
I respectfully agree with the submission by senior counsel for the father, that the mother’s reference, as an example of family violence, to the father giving X a “Chinese burn” to her lower arm, in 2017, in circumstances where the father contends he was engaging in playful conduct, suggests overreach on her part. The treatment of X in the March 2020 incident is, of course, far more serious. Nevertheless, even in respect to that incident, X did not suggest that she had been harmed and she, herself, described to DCJ that she perceived the incident as being a game.
Significantly, in the safety assessment prepared for their investigation, the relevant officer of DCJ recorded that:
[DCJ] did not identify concerns regarding an injury. None of the children identified that they had ever been injured by their Dad. On the 6.5.21 there were no visible injuries to any of the children.
Indeed, in her submissions in reply, senior counsel for the mother did not suggest that the children were at risk of physical injury at the hands of the father, but, rather, that they were at risk of emotional and potentially psychological harm, as a result of being exposed to the father’s anger and the prospect of being subject to excessive discipline. For reasons which I have earlier set out, I am not satisfied that there is a real possibility of the father engaging in that conduct and, in those circumstances, I am not satisfied that the children are at an unacceptable risk of either physical or psychological harm in the father’s unsupervised care.
Potential impact upon the mother
Senior counsel for the mother contended that, in assessing the issue of risk, the Court should also have regard to the consequences of any order on the emotional and psychological health of the mother. It was contended that, irrespective of the situation of the children, orders providing for the children to spend unsupervised time with the father will have such an impact on her, that there is a real risk that it would adversely impact upon her parenting capacity and, thereby, vicariously impact upon the children contrary to their best interests.
In that respect, reference is made to a medical report from the mother’s treating psychiatrist Dr H, which is is attached as Annexure ‘H3’ to the Affidavit of Dr H filed 22 July 2021. That report dated 21 July 2021, relevantly, states as follows:
In reply to your letter of 20 July 2021 I have commenced assessing and treating [the mother] on 6 July 2021. I have subsequently seen her on 8 July 2021, 15 July 2021 and 21 July 2021. She was referred for the treatment of mood and anxiety symptoms related to the events during her marriage and subsequent to the separation from her husband.
I have not completed my assessment and as such I am unable to answer the questions posed other than she does have very severe anxiety symptoms which are all related to the husband and his behaviours. She is provisionally undergoing cognitive behavioural and supportive therapy.
Senior counsel for the father notes that, while there is a reference to the mother experiencing “severe anxiety symptoms”, the Court is not able to accept Dr H’s diagnosis that those symptoms “are all related to the husband and his behaviours”. I accept that, without knowing the history provided by the mother to Dr H, little weight can be given to Dr H’s assessment in that respect.
In Keane v Keane (2021) 62 Fam LR 190 (“Keane”) at [78]–[81], the Full Court said:
78.In Russell v Close, the Full Court referred to the decision of the Full Court in In the Marriage of M and J M Bieganski (1993) 16 Fam LR 353; (1993) FLC 92-357 (B and B) and stated, at [32]:
In upholding children’s right to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary caregiver concerning the child’s exposure to potential harm where such anxiety is likely to impact adversely on that parent’s caregiving ability.
79.In the cited decision of B and B, the Full Court at Fam LR 368; FLC 79,780 stated:
It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.
80.Subsequent authorities, however, confirm that it is an error to assume that, in each and every case where a parent is concerned about the safety of a child in the other parent’s care, the court will infer that there is an unacceptable risk that the concerned parent’s parenting capacity will be adversely impacted. To do so risks elevating those fears to an extent that it overshadows the totality of considerations set out in s 60CC of the Act. In particular, as noted by the primary judge, it does not give the concerned parent a right of “veto” over whether the child should have time with the other parent, citing Marra and Marra (unreported, Full Court of the Family Court, Fogarty, Baker & Butler JJ, 8 September 1993) (Marra). As explained in Marra at [6]:
The genuinely held beliefs or concerns of the custodial parent as to access are relevant considerations in deciding what access to order (s.64(1)(bb)(i) and (v)). However, it does not give to the custodian a veto. Its relevance is the extent to which it may have an adverse impact upon the welfare of the child as a result of it affecting the custodian’s caregiving capacity. The wife’s fears in the present case, whilst of personal concern to her, do not appear likely to have significant effect upon her capacity as a custodian. The trial Judge in this case, though bound to take account of the wife’s fears, elevated her fears to an extent which transcended the consideration of the best interests of the children.
81.Importantly, the Full Court in Marra held that not only is it necessary for the court to determine whether a parent has a genuine concern about the welfare of the child in the care of the other parent but it is also necessary to determine whether the concerned parent’s parenting capacity will be “discernibly impaired”. ‘Discernibly’, or similar expressions that have been used in the relevant authorities to which we have referred, means no more than being an evident or detectable impairment in parenting capacity such that there is an unacceptable risk that the child’s welfare will be adversely impacted.
Even if the conclusion expressed by Dr H, that the mother’s anxiety is related to the father’s conduct, were to be accepted for the purpose of these interim proceedings, there is an absence of evidence that any such anxiety has impacted or will impact upon the mother’s parenting capacity. Further, even if there was evidence to that effect, as noted in Keane at [84], the Court would be required to give consideration as to “whether steps can be taken to ameliorate or mitigate against that risk [being the impact of the mothers anxiety] such that the child can maintain a meaningful relationship with the other parent”.
Although not entirely clear, it appeared that senior counsel for the mother contended that, in inferring that the mother’s anxiety would so impact upon her parenting capacity, the Court should have regard to the mother’s reaction to a text message she received from the father, when she was staying at the maternal grandparents’ holiday home at Suburb J with the children. That message was to the effect that he was to shortly fly over that property in a light plane which he was piloting. In response to the submission from senior counsel for the father, that the mother’s stated reaction was disproportionate to an innocuous message sent by the father, which he thought would be of interest to the children, senior counsel for the mother contended that the mother’s distressed reaction to receipt of the text message must be seen in the context where she has expressed concern that, during the latter stages of the parties’ relationship and subsequent to their separation, the father has electronically monitored her.
Again, even if I was, in the context of these interim proceedings, to accept that analysis as being accurate, there is an absence of evidence that would justify the Court concluding that the making of orders for the children to spend unsupervised time with the father, would so impact upon the mother’s parenting capacity, that the children would be adversely impacted. I, therefore, do not place weight on this submission by senior counsel for the mother.
The father’s insight
As previously noted, senior counsel for the mother contended that the father’s statement, made to an interviewer from DCJ, on 18 April 2021, to the effect that, while he acknowledged shouting at the mother and the children, the mother engaged in similar conduct, showed lack of insight on the part of the father, in respect to the impact of his conduct on the mother and the children. There is, with respect, some substance to that submission.
Reference was also made to the Report of the father’s treating psychologist, Dr F, who describes the father as having stated that he had been “blindsided” by the mother leaving him. It was contended this statement also showed lack of insight on the part of the father, in circumstances where he acknowledged the parties had been increasingly arguing with each other in the later months of 2020 extending into first few months of this current year, and in circumstances where the mother had advised the father that their marriage was “not working” and she had proposed family therapy.
In a similar context, it was contended that the father’s statement to his treating psychologist, that he felt concerned that the allegations and accusations made against him in respect to his conduct were exaggerated and taken out of context, is a refusal on the part of the father to acknowledge the impact that his conduct has had on the mother and the children. It was contended that, in the absence of the father acknowledging the impact of his conduct, the therapy he is currently receiving from his psychologist is unlikely to be successful. As earlier noted in this decision, there are, in my opinion, instances where the mother and/or her lawyers, on her instructions, have engaged in quite significant overreach in respect to, at least, the allegations that the father has engaged in financially controlling conduct, and that he has also engaged in coercive and controlling conduct, in the period subsequent to the parties’ separation.
It was further contended that the father’s lack of insight has been shown in the reports from C Contact Centre. The example that was given referred to the contact report of W and Z’s supervised visit on 29 May 2021, where there appears to have been a discussion between the father and W, regarding W assisting the father, by collecting certain of his household items from the former matrimonial home with a view, to those being provided to him at the next visit. This, the mother contended, unnecessarily and unreasonably involved W in an aspect of the parental dispute. While perhaps, in retrospect, inappropriate, it does not, in my opinion, justify the mother’s suggestion that it is an indication that the children’s time with the father should continue to be supervised.
The father contends, however, that his interactions with the children have been overwhelmingly positive and this is confirmed in the contact reports of C Contact Centre. I respectfully agree with the submission of senior counsel for the father, that, even in these interim proceedings, contact the reports indicate that, in general, the father has had a positive engagement with the children, that he acts responsibly in his interactions with them and that the children enjoy his company.
Summary of findings in respect to the issue of risk
The evidence in these proceedings satisfies me that there is a real possibility that the father has had a propensity to anger easily, and that he has potentially engaged in emotionally abusive conduct towards the mother. I am also satisfied that there is a real possibility that the father engaged in inappropriate, and potentially violent, contact with the mother during the incident which she describes as occurring in November 2019. The evidence is such that I am also satisfied that there is a real possibility that the father has, in a state of anger, shouted at the children and engaged in excessive acts of discipline, including, most relevantly, in the incident that occurred in March 2020, in which he restrained X to a stool while restraining her arms with a belt.
In determining whether the children will be at an unacceptable risk of harm in the father’s care, I have explained why the mother has not satisfied me that the children are at risk of physical harm in the father’s care. Indeed, I do not understand that to be a substantial contention on the part of the mother.
The real issue is, therefore, whether, in these interim proceedings, there is a real risk of the children being exposed to the father becoming angry, shouting at them and engaging in excessive discipline. Based on a real possibility that the father has engaged in that conduct in the past, it is clearly necessary to attempt to predict whether there is a real possibility of the father engaging in conduct of that nature in the future.
Determining whether an unacceptable risk exists essentially involves applying a risk matrix, whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence: see Dieter & Dieter [2011] FamCAFC 82 at [61]. That is, there is an obligation on a trial judge to evaluate, not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N and S (1996) FLC 92-655 at 82,713 per Fogarty J, cited with approval in Napier and Hepburn (2006) FLC 93-303 and in Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96].
In this matter, I have had regard to the explanation the father provided to the DCJ investigators, for the circumstances in which he engaged in what he acknowledged to be inappropriate conduct towards X in March 2020. I have also had regard to the fact that the father has attended a specialist, in respect to the diagnosis of X suffering ADHD, and the parents being advised of appropriate management of that condition, including both pharmacological and behavioural treatment. I am satisfied that the father would not engage in similar inappropriate conduct towards X or the other children. Specifically, I am satisfied that it is unlikely that the father will, in the future, engage in excessive acts of discipline of the children. I have had also had regard to the fact that the father is participating in a parenting program and is engaging with his psychologist, to improve his parenting skills and his ability to cope with stressful situations.

Having determined that there is a low probability of the father engaging in angry outbursts in front of the children or that he will excessively discipline the children, I am not satisfied that there is justification for requiring children’s time with the father to be supervised on an ongoing basis. The question then becomes what amount of time the children should spend with their father. In arriving at that determination, I will consider those matters set out in s 60CC(3) of the Act, together with the primary considerations that I have earlier referred to.
Additional s 60CC(3) considerations
Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.
There is no question that the children love their mother and that she is their primary attachment figure.
The children are not at an age where significant weight can be given to their views. However, the mother acknowledges that the children love their father and want to see him and spend time with him, and, further, that they enjoy spending time with their father. That love and desire, she acknowledges, is reciprocated by the father.
The contact reports by C Contact Centre satisfies me that the children are happy to see the father and enjoy spending time with him. While the mother has referred to evidence where W has expressed concerns regarding the father’s anger, the contact reports include several instances where W has expressed the desire to spend more time with the father.
Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.
The father recognises and accepts that the mother’s relationship with the children “is close and warm”.
In her first Affidavit, the mother contends that the father has substantially been disengaged from the day to day life of the children. The father disputes this and contends that, notwithstanding the role he played as the primary breadwinner for the family, that he nonetheless maintained a substantial and close relationship with the children during the period of the parties’ marriage.
While the extent of the father’s engagement with the children will be a matter to be determined at final hearing, the fact that the contact reports reflect that the children have a close relationship with the father, and one that is familiar, is consistent with the father’s evidence, to the effect that he shared, with the mother, in the care of the children, and that he has been involved in their day-to-day lives. This includes, as they have matured, assisting them to participate in their academic, sporting and extracurricular activities
Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
The father acknowledges that the mother was primarily responsible for caring for the children during the parties’ relationship, however, nonetheless, asserts that both parents “were interested, engaged and involved in the welfare of the children”.
The father contends that while, in the period subsequent to separation, he has not had the opportunity to spend time with the children and to participate in making decisions about major long-term issues in relation to the children, he, nonetheless, continues to have “a vital interest in the children and their activities”. Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
The father acknowledges that both parties have maintained the children and the evidence satisfies me that, even in these interim proceedings, admirably, the father has and continues to provide financial support and resources to maintain the children.
Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
The fact that the children have had limited time with the father since the parties’ separation has been a significant change for them.
Equally, however, orders providing for the children to spend significant time away from their mother, in circumstances where the mother has always been their primary carer, would be a significant change. This is significant, in circumstances where there is evidence that X, in particular, engages in challenging behaviour. As noted, it is appropriate that the Court takes, in these interim proceedings, a cautious approach, in terms of considering the potential impact of orders upon the children.
Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
A significant practical difficulty in this case, in respect to professional supervision, is the issue of expenses. The father is currently paying approximately $825 per week for the services of the professional contact service. Senior counsel for the father contends that a continuation of this arrangement is not viable, in circumstances where, in addition to meeting the outgoings in respect to the former matrimonial home, the father is also continuing to pay the mother the sum of $2,000 per week, to assist her with her living expenses and those of the children.
It is contended that, if an order is made for professional supervision is to continue, it will inevitably result in further proceedings, as a result of the father being unable to either sustain the payments for supervision and/or the amount that he is currently paying to the mother to sustain her and the children. This is in the context where, it is contended, the mother, in her own evidence, acknowledges that the father’s business has had financial difficulties.
Senior counsel for the mother contends, however, that there is no evidence regarding the father’s financial circumstances before the Court, and notes that the father, despite meeting expenses referred to by senior counsel for the father, was able to meet the costs of hiring a light aircraft which he piloted over the maternal grandparents’ holiday home.
I accept that, in these interim proceedings, the Court is not in a position to assess the capacity of the father to continue to meet the expenses associated with ongoing supervision, and I further accept that, in any event, the issue of risk, as contended by senior counsel for the mother, is of far greater significance in the consideration of appropriate parenting arrangements for the children.
Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.
The mother contends that the father’s parenting capacity is substantially untested. In that context, it is acknowledged that the mother has been the children’s primary carer.
The mother contends that, to date, in the period subsequent to the parties’ separation, the father has only had two children in his care at one time, with that time being supervised by a professional contact service. She contends that the father’s ability to care for all four children together is untested, as is the father’s ability to properly care for the children, without losing his temper. That concern, the mother contends, is heightened by the fact that the father lacks the support of other family members.
The father contends that, while the mother has been the children’s primary carer, he has also played a significant role in their care and support. He contends that the concerns which the mother has expressed about his parenting capacity, including what she alleges as his propensity to become frustrated and lose his temper with the children, is inconsistent with her actions in leaving the children in his care on a number of occasions. Comparatively, the mother contends that, on each occasion, prior to going out and leaving the children in the care of the father, she had attended to the children’s needs and, further, that the father had little to do or the children were already in bed, or shortly going to bed.
While the mother disputes the father’s assertion as to the number of times that she left the children in the father’s care and she asserts that the care provided by the father on those occasions was limited, it is, nonetheless, the case that the children were in the father’s care, even though it is acknowledged that on some occasions the children were asleep
Further, the father’s treating psychologist, Dr F, has described work that the father is doing in their sessions, to improve his parenting skills, in order to equip him for the demands of caring for four young children. To a substantial degree, that capability has been tested. The contact reports provided by C Contact Centre provide a first hand account of the father’s parenting ability, albeit in circumstances where he has had two children at one time with him, rather than all four children together.
In circumstances where the father has not been the primary carer of the children, I accept that it will inevitably be challenging for him to care for all four children at the one time. However, having regard to the work he is doing with Dr F and having regard to the fact that the father is undertaking a parenting course with an organisation whose credentials have not been put into question in these proceedings, I propose making orders for the children to continue to spend a total of six hours per week with the father until such time as he completes the parenting course, which I was advised, in these proceedings, was approximately nine weeks from the date of the hearing.
The orders will provide for the children’s time with the father, as and from that approximate date, to be for one overnight time each alternative weekend, together with additional time of an evening, as proposed in the orders sought by the father, save to the extent that the time will be limited to three (3) hours on those evenings. In circumstances where the Court does not have the benefit of a single expert report, I will not make orders for that time be increased during school holidays. In the event that such a course is recommended by the single expert, the Court would strongly recommend the parties conferring with a view to the father’s time being increased, in accordance with any such recommendations of the single expert.
Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
There has been no suggestion that the mother is other than a capable parent who properly cares for the children.
In this matter, it is a relevant consideration that X has ADHD and both parents acknowledge that, in that context, she has engaged in challenging behaviour. X is currently in receipt of medication in respect to that condition, however, neither parent has suggested that it is the total answer to her challenges, and that additional therapy is required. It was not suggested that either parent is other than supportive of that therapy continuing.
The mother also contends that there is evidence that Z may be exhibiting similar behaviour to that exhibited by X, prior to her being diagnosed with ADHD. There is, however, no evidence before the Court to suggest that such a diagnosis has been made in respect to Z. It is the case, however, that given his age, it can reasonably be inferred that Z would, at times, engage in challenging behaviour.
Further it is entirely reasonable to assume that W has been emotionally impacted by events that have occurred both prior and subsequent to the parties’ separation. In that context, in giving a statement to representatives of DCJ, W stated that she has experienced a situation where, prior to the parties’ separation in April of this year, her parents had been involved in arguments on almost a daily basis, since approximately August 2020. It was not disputed that W is attending upon a school counsellor once per week. Accordingly, I accept that W also has some emotional vulnerability that I have taken into consideration, in making my decision in this matter.
The challenging behaviours of X, and Z, at least as a result of his age, as well as the emotional vulnerability of W are, accordingly, matters that I have taken into account in determining that, pending receipt of a single expert report, the children’s time with the father should be limited to one overnight time each alternative weekend, together with the additional time of an evening on a weekly basis, as proposed in the father’s case outline,however, as noted, that additional mid week time will not, at this stage, involve overnight time.
Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
This is not a relevant consideration.
Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
I have earlier addressed this consideration, in setting out the evidence in respect to the role each of the parents has played in the children’s lives, with the mother as the primary carer and, noting the father’s assertion that he has actively supported the mother in caring for the children, to the extent that he has been able, did not appear to be disputed by the mother.
Further, the contact reports of C Contact Centre satisfy me that, while the mother has raised several instances of concerning conduct on the part of the father, those instances are relatively trivial and, in the main, the father has shown a sophisticated capacity to engage with, supervise and guide the children.
Sub-section (3)(j) – any family violence involving a child or a member of the child’s family.
I have, earlier in this decision, set out in some detail, the mother’s allegations in respect to the father engaging in conduct that, if found, would constitute family violence as defined in s 4AB of the Act, and the difficulty of making a definitive finding in respect to those matters, in these interim proceedings.
Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
There are no relevant family violence orders in place.
Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
These are interim proceedings, and it can be anticipated, and expected, that the parties will engage in further discussions, once they receive the report of the single expert, which will be the subject of an order in these proceedings.
Sub-section (3)(m) – any other facts or circumstances the Court considers relevant consideration.
Both parties agreed that, at this stage of the proceedings, it is appropriate for an order to be made appointing a single expert, to provide a report to assist the parties and the Court in determining what parenting arrangements are in the best interests of the children.
Further, when raised, neither party has spoken in opposition to the Court appointing an Independent Children’s Lawyer. Having regard to the fact that W, in particular, will likely be in the later stages of primary school, at the time this matter will be listed for hearing, it is appropriate for an order to be made appointing an Independent Children’s Lawyer.
CONCLUSION
For all these reasons, I am satisfied that orders should be made for the children to continue to spend a total of six hours each weekend with the father, on Saturday, until 1 October 2021, being a date which is approximately 10 weeks from the date of the hearing, and is the week subsequent to the date which the parties anticipated the father would complete a ‘Parenting After Separation’ course. From that date, the orders will provide for the children to spend overnight time for one night each alternate weekend with the father. The orders will also provide for the children to spend time for several hours one evening each week with the father, and that time occurring on separate evenings for the two elder children and the two younger children, with that differentiation to occur as proposed in the father’s case outline. The orders will also provide the opportunity for the children to communicate with the father by telephone, when they are in the mother’s care.
In circumstances where the mother’s allegations that the father has engaged in coercive and controlling conduct are a live issue to be determined in the final hearing, I have made orders for the changeover of the children’s time to occur at a location nominated by the mother in writing, and for the mother to be represented at that changeover by such persons who she so chooses.
I was not addressed by the parties, in respect to appropriate parenting arrangements to occur on special occasions such as Christmas, Father’s Day Mother’s Day and the children’s birthday, however, in the context where the father sought orders for that to occur, I have, instead, proposed that the time occur as agreed between the parties and, if agreement cannot be reached, that the resident parent facilitate the children having telephone communication with the non-resident parent on those days.
In circumstances where there has clearly been tension between the parties, and between the father and the maternal family, I have not, in the absence of a single expert report, made orders for the father to attend school functions and the children’s extracurricular activities.
There did not appear to be any dispute between the parties regarding the appropriateness of non-denigration orders. The father, himself, proposes an order that he not attend at the former matrimonial home. Neither party appeared to take issue with the father’s proposal that they continue seeking professional therapy, as recommended by their treating therapists.
In the context where it appears that the parties are locked into a litigious trajectory, it would be of benefit for both parties to attend a post separation parenting course, so that they both become fully appraised of the impact that ongoing parental conflict has on the children.
I will also make the orders for the appointment of a single expert and an Independent Children’s Lawyer, as earlier foreshadowed.

I certify that the preceding two hundred and twenty-one (222) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.
Associate:
Dated: 20 August 2021

File number(s):	SYC 3478 of 2021
Judgment of:	MCCLELLAND DCJ
Date of judgment:	20 August 2021
Catchwords:	FAMILY LAW – CHILDREN – Best interests – Interim application – Where the mother seeks orders maintaining current regime of supervised time between the children and the father – Where the father opposes continued supervision – Where the mother contends unacceptable risk of harm in father’s unsupervised care – Where the mother alleges the father has perpetrated family violence, and has a propensity to lose temper and excessively discipline children – Where the Court cannot make findings in respect to mother’s allegations – Where the Court is satisfied there is no real risk of harm to children in father’s unsupervised care – Orders made for the children to spend unsupervised time with father increasing to one overnight time per fortnight – Orders made for appointment of ICL and single expert
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss. 4AB, 43(1)(c), 60B, 60CA, 60CC, 61DA and 65DAA
Cases cited:	Banks & Banks (2015) FLC 93-637 Cowling & Cowling (1998) FLC 92-801 Dieter & Dieter [2011] FamCAFC 82 Eaby & Speelman (2015) FLC 93-654 Goode and Goode (2006) FLC 93-286 Keane v Keane (2021) 62 Fam LR 190 Marvel v Marvel (2010) 43 Fam LR 348 Masson v Parsons (2019) 266 CLR 554 Mazorski & Albright (2007) 37 Fam LR 518 N and S (1996) FLC 92-655 Napier and Hepburn (2006) FLC 93-303 Nikolakis & Nikolakis [2010] FamCAFC 52 Sigley v Evor (2011) 44 Fam LR 439 SS & AH [2010] FamCAFC 13
Number of paragraphs:	222
Date of hearing:	23 July 2021
Place:	Sydney by video web conference
Counsel for the Applicant:	Ms Christie SC
Solicitor for the Applicant:	Barkus Doolan
Counsel for the Respondent:	Mr Schonell SC
Solicitor for the Respondent:	Matthews Folbigg Pty Ltd

ORDER MADE BY:	MCCLELLAND DCJ
DATE OF ORDER:	20 AUGUST 2021