Malcolm & Pereira
[2025] FedCFamC1F 256
•22 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Malcolm & Pereira [2025] FedCFamC1F 256
File number(s): PAC 2118 of 2023 Judgment of: ANDERSON J Date of judgment: 22 April 2025 Catchwords: FAMILY LAW – FINAL PARENTING ORDERS – Allegations of family violence – Mother’s allegations accepted in part – Where the children live with the mother – Where the children have not spent any time with the father for in excess of four years – Consideration of the impact on the mother in the event of any order for time between the children and their father - Children to live with the mother – No orders for time between the children and their father
FAMILY LAW – APPLICATION FOR DISQUALIFICATON – Apprehended bias – Where an application for disqualification is made during contested final parenting proceedings – Whether comments from the bench and/or the conduct of the judicial officer with respect to the use of an interpreter for the father might cause a fair-minded lay observer to conclude that the Court will decide the competing parenting applications other than on its legal and factual merit – All grounds fail – application dismissed
Legislation: Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61B, 61C, 61D, 61DAB, 64B, 65AA, 65D, 67ZC, 68B
Australian Passports Act 2005 (Cth) s 11(1)(a)
Evidence Act 1995 (Cth) s 140
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15(3)(e)
Cases cited: Attwood v Attwood [2022] FedCFamC1F 6
Bant v Clayton (2015) 53 Fam LR 621
Bennett v Bennett (2001) FLC 93–088
Briginshaw v Briginshaw (1938) 60 CLR 336
Fitzwater & Fitzwater (2019) 60 Fam LR 212
H v R [2006] FamCA 878
Hedlund v Hedlund [2021] FedCFamC1A 84
Hickson & Matthew [2022] FedCFamC1A 161
Isles & Nelissen (2022) FLC 94-092
Johnson v Johnson (2000) 201 CLR 488
Keane & Keane (2021) 62 Fam LR 190
Michael Wilson & Partners Ltdv Nicholls (2011) 244 CLR 427
N and S and the Separate Representative (1996) FLC 92-655
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 66 Fam LR 369
Division: Division 1 First Instance Number of paragraphs: 212 Date of last submission/s: 26 February 2025 Date of hearing: 17-21 February 2025 & 26 February 2025 Place: Parramatta Counsel for the Applicant: Mr Cohen Solicitor for the Applicant: Gad & Co Lawyers Counsel for the Respondent: Mr Schroder Solicitor for the Respondent: Du and Associates Counsel for the Independent Children's Lawyer: Mr MacPherson Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
PAC 2118 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MALCOLM
Applicant
AND: MS PEREIRA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ANDERSON J
DATE OF ORDER:
22 APRIL 2025
THE COURT ORDERS THAT:
1.All previous parenting orders in relation to the children X born 2014 and Y born 2016 (“the children”) be discharged.
Parental Responsibility
2.The Respondent Mother (“the mother”) have sole parental responsibility for the children and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) affecting the children.
Living and communication arrangements
3.The children live with the mother.
4.The children do not communicate or spend time with the Applicant Father (“the father”).
Restraints
5.The mother be restrained and an injunction is hereby granted restraining her from denigrating the father to or in the presence or hearing of the children or allowing any third party to do so.
6.Pursuant to s 68B of the Family Law Act 1975 (Cth) and for the personal protection of the mother and the children, the father is injuncted from:
(a)Entering or remaining in a place of residence, employment, education or health provider of the children or the mother;
(b)Harassing, abusing or communicating with the children or the mother by any means whatsoever including electronic means or social media or permitting any third party to do so on his behalf; and
(c)Making efforts to obtain details of the children’s residential address, school or any health or allied health practitioner upon whom the children or the mother attend from time to time or permitting any third party to do so on his behalf.
Costs
7.Within fourteen (14) days of the date of these Orders, the Independent Children’s Lawyer do file and serve Written Submissions limited to three pages in length with respect to the application made by the Independent Children’s Lawyer for an award of costs.
8.Within seven (7) days of receipt of the Written Submissions referred to at Order 7 herein, counsel for each party is requested to file and serve Written Submissions limited to three pages in length responding to the application for costs made by the Independent Children’s Lawyer.
9.In the event that the Independent Children's Lawyer does not comply with the terms of Order 7 herein there shall be no order as to costs.
Discharge of Independent Children’s Lawyer
10.The appointment of the Independent Children’s Lawyer be discharged.
Other
11.That pursuant to s 62B of the Family Law Act 1975 (Cth) (as amended), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
12.That pursuant to s 65DA(2) of the Family Law Act 1975 (Cth) (as amended), 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.
13.All other applications pursuant to Part VII of the Family Law Act 1975 (Cth) (as amended) are dismissed.
AND THE COURT NOTES THAT:
A.Section 68C of the Family Law Act 1975 (Cth) provides that if a police officer believes, on reasonable grounds, that the father has breached the injunction as set out in Order 6 above by causing or threatening to cause bodily harm to the protected person or by harassing, molesting or stalking the protected person, such police officer may arrest the father without warrant.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ANDERSON J:
INTRODUCTION
These proceedings brought under Part VII of the Family Law Act 1975 (Cth) (‘the Act’) concern the parties’ two children, namely, a male child aged ten years, and a female child aged eight years.
The father is the applicant (“the father”).
The mother is the respondent (“the mother”).
The children live with the mother. The female child has not seen her father since the day her parents separated, namely, 18 September 2020. The male child has not seen his father since October 2020.[1] On that day, the male child accompanied his mother and members of New South Wales police to the former matrimonial home so that the mother could collect some personal belongings and items.
[1] Father’s affidavit filed 8 February 2025, paragraph 9.
The father commenced parenting proceedings on 30 April 2023 almost three years after separation. At that juncture, the father sought interim orders to spend time with the children. However, and on a final basis, the father sought orders that he have sole parental responsibility for the children and that the children live with him. That position was maintained when the father filed an Amended Initiating Application on 2 August 2024.
BACKGROUND
The father is 45 years of age. He is employed as a professional by a manufacturing company in Victoria.[2]
[2] Father’s affidavit filed 8 February 2025, paragraph 3.
The mother is 38 years of age. She lives in the suburbs of greater Sydney and has devoted herself to the care of the children. As such, the mother is not engaged in paid employment.[3]
[3] Mother’s affidavit filed 3 February 2025, paragraph 3.
The parties met by the arrangement of their respective parents. The parties’ families hosted a Country B engagement ceremony in early 2013 and the parties’ married in an Islamic religious ceremony facilitated by a Shia Imam in mid-2013.[4] Despite this, the parties did not commence cohabitation until mid-2013 because the father was working in Country C in Region D.[5]
[4] Mother’s affidavit filed 3 February 2025, paragraph 24.
[5] Mother’s affidavit filed 3 February 2025, paragraph 25.
At some stage between October 2013 and April 2014[6], the father relocated to City E in Country F for his employment. The mother remained in Country B in circumstances where she was pregnant. However, she gave birth to the male child in City E in 2014.[7]
[6] Mother’s affidavit filed 3 February 2025, paragraph 30; Father’s affidavit filed 8 February 2025, paragraph 40.
[7] Father’s affidavit filed 8 February 2025, paragraph 41; Mother’s affidavit filed 3 February 2025, paragraph 30.
In 2016, the parties and the male child migrated to Australia.[8] The female child was born in Sydney in 2016.
[8] Mother’s affidavit filed 3 February 2025, paragraph 31; Father’s affidavit filed 8 February 2025, paragraph 42.
On the parties’ arrival in Australia and following the birth of the female child, the parties settled into traditional roles. That is, the father obtained full time employment in Sydney[9] and the mother cared for the children. Shortly after the birth of the female child, the parties moved into a three-bedroom home in Sydney. This appears to have been an unhappy time for the mother. Particularly, she says that the parties stopped being intimate and stopped sleeping in the same bedroom.[10]
[9] Father’s affidavit filed 8 February 2025, paragraph 45.
[10] Mother’s affidavit filed 3 February 2025, paragraph 130.
On 19 January 2020, the parties separated on a final basis. However, the mother says that the parties continued to live together until 18 September 2020 at which time she says that she left the former matrimonial home as a consequence of “incidents of child abuse by [the father] towards [the children] and violence towards me”.[11] The father subsequently learned through evidence given by the mother in proceedings in the Local Court of New South Wales, that in August 2020, the mother commenced a relationship with a third party.[12] That relationship was short lived. The mother has, however, remarried to a man referred to by the pseudonym, “[Mr G]”. The mother has elected to refer to her husband by a pseudonym due to her “fear of [the father] harming Mr G or his family”.[13]
[11] Mother’s affidavit filed 3 February 2025, paragraph 34.
[12] Father’s affidavit filed 8 February 2025, paragraph 77.
[13] Mother’s affidavit filed 3 February 2025, paragraph 284.
The mother makes several and grave allegations against the father, which I summarise below. The allegations include but are not limited to physical and sexual assault of the mother, sexual assault of the male child and “inappropriate and sexual behaviour towards the children”.
As a consequence of the mother’s allegations, the father was arrested in late 2020 and charged with various offences. Although I was not provided with the indictments or any official summary of the charges faced by the father, the offences as summarised by the mother are as follows:
(a)common assault against the mother;
(b)Stalk or intimidate intending to cause fear of physical or mental harm;
(c)Sexually touching the mother without consent;
(d)intentionally inciting the elder child to “sexually touch” the mother; and
(e)intentionally inciting the younger child to “sexually touch” the mother.[14]
[14] Mother’s affidavit filed 3 February 2025, paragraph 7.
The mother also says that, in mid-2022, the father was convicted of the offences referred to at sub-paragraphs (c), (d) and (e) above. Those convictions were set aside in early 2023 by a judge of the District Court of New South Wales.[15]
[15] Mother’s affidavit filed 3 February 2025, paragraphs 10 and 12.
Despite the discharge of the convictions, the mother and the children were identified as protected persons by the terms of a Final Apprehended Domestic Violence Order made in mid-2022. That order expired in mid-2024.[16]
[16] Exhibit W13.
It is against this background that the competing parenting applications fall for determination.
EVIDENCE
In support of his application, the father relied on:
(a)Amended Initiating Application filed 2 August 2024;
(b)An affidavit in the name of the father filed 8 February 2025; and
(c)Some tendered documents.[17]
[17] Exhibits H1 to H3.
On the morning of the second day of trial, the father sought permission to rely on an affidavit in the name of his solicitor, Mr Gad. Counsel for the mother and the Independent Children’s Lawyer opposed the father’s reliance on that document. I declined to receive the affidavit. When doing so, I noted that the father ought to have filed affidavit material to be relied upon by him at final hearing by 15 November 2024.[18] His trial affidavit without explanation was filed almost three months late. I discuss the father’s desire to rely on an affidavit in the name of his solicitor in further detail below.
[18] Orders made on 16 September 2024.
The mother relied on:
(a)An Amended Response to Initiating Application filed on 4 August 2024;
(b)An Affidavit in the name of the mother filed on 3 February 2025;
(c)An Affidavit in the name of the maternal grandmother filed on 31 January 2025; and
(d)Some tendered documents.[19]
[19] Exhibits W1 to W17.
For her part, the Independent Children’s Lawyer relied on:
(a)A Family Report prepared by a Court Child Expert published on 6 March 2024; and
(b)Some tendered documents.[20]
[20] Exhibits ICL1 to ICL2.
The Court excluded all annexures to the Affidavits having regard to r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
ANALYSIS OF THE PARTIES’ COMPETING PROPOSALS AND THE UNSATISFACTORY EVENTS OF DAYS ONE AND TWO OF THE TRIAL
By his Amended Initiating Application filed on 2 August 2024, the father sought final orders to the effect that he have sole parental responsibility for the children and that the children live with him. The father’s application was unusual. It did not seek an immediate reversal of the children’s living arrangements. Instead, the father proposed the following:
(a)That for a period of eight weeks after the making of final orders, the children spend time with the father in the presence of a qualified therapist on one occasion per fortnight;
(b)That on the expiration of the eight-week period referred to above, and for a further period of eight weeks, the children spend time with the father on each Saturday between 10.00am and 11.00am;
(c)That on the expiration of the period referred to above and for a further period of eight weeks, the children spend time with the father on each weekend from 10.00am on Saturday to 1.00pm on Sunday;
(d)That on the expiration of the period referred to above and for a further period of eight weeks, the children spend time with the father on each weekend from the conclusion of school on Friday to the commencement of school on Monday;
(e)Thereafter, the children live with the father.
It was a term of the father’s proposal that all handovers occur at a contact centre. Further, and on the expiry of the eight-month period referred to above, the father proposed that initially, the children spend no time with the mother but communicate with her on two occasions per week by telephone. After a short period of increasing time, the father promoted an order that the children spend time with the mother as follows:
(a)On each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Monday; and
(b)For a period of five nights in each alternate week during school holiday periods.
At paragraph 2 of the Amended Initiating Application, the father promoted an order in the following terms:
The father shall engage a suitably qualified therapist as approved by the independent children’s lawyer, with such therapeutic assistance for the child to assist with the children’s transition into living in the father’s household.
At the commencement of the trial, I expressed a preliminary view that I would have difficulty making the orders sought by the father in circumstances where the father’s affidavit filed on 8 February 2025 gave no evidence whatsoever about:
(a)Whether the father had made enquires of a “suitably qualified therapist” as to his/her preparedness to assist the father and the children and if so, the identity and qualifications of that person and the costs associated with the provision of his/her services;
(b)Whether the “suitably qualified therapist” proposed by the father had been provided with a copy of the Family Report or given any material, which would enable him/her to understand the dynamics of the family, the serious allegations made by the mother against the father and most importantly, the needs of the children; or
(c)Whether the father had made enquiries of a contact centre about the preparedness of that centre to assist the father and the children.
I made my enquiries in circumstances where the Court Child Expert published her report on 6 March 2024. There was no evidence whatsoever that the father had provided the report containing the considered opinions of the Court Child Expert to any professional who might assist him in the event that his application was successful. The omission was surprising given the recommendations made by the Court Child Expert at paragraph 95 of her report:
If determined that the children are to spend time with their father…[a] counsellor will be of great value in supporting the children and [the mother] processing this information in a safe and planned way.
It follows that by the time the trial commenced, the father had been on notice of the benefits of engaging an appropriate therapist for almost twelve months.
At 11.16am on the first day of trial, the father commenced his brief evidence-in-chief and at 11.19am, the mother’s counsel commenced his cross-examination of the father. At 11.42am, the father’s counsel advised me that his client may be seeking amended orders. Particularly, the father’s counsel said that “the father’s case is now different”. This is despite the effort I undertook at the commencement of the trial to clarify the orders sought by the father. The matter was not then recalled until 12.31pm to afford the father’s counsel the opportunity to speak with his client about the orders sought by him. At that juncture, the father’s counsel advised me that the orders promoted by the father remained unchanged save that in lieu of the Independent Children’s Lawyer, the father proposed that he select the “suitably qualified therapist”. It is important for a reader of this judgment to understand that despite an enquiry made by me at the commencement of the trial, the father never promoted any alternate position until the afternoon of the final day of trial immediately prior to the commencement of closing submissions. That is, and until very late in the trial, the father never proposed any arrangement, which might apply if the Court determined that it is in the best interests of the children to remain in the primary care of the mother. To that extent, the father’s application was one of high stakes. Immediately prior to the commencement of closing submissions, and without any notice to counsel for the mother or counsel for the Independent Children’s Lawyer, the father promoted an alternate position, namely, that:
(a)The children spend time with the father on one occasion each month at a contact centre in Sydney;
(b)Thereafter, the children spend time with the father on one occasion each month from Friday afternoon to Monday morning.
On the morning of the second day of trial and without having raised the issue with counsel for the mother or the Independent Children’s Lawyer, the father’s counsel indicated that the father sought to rely on an affidavit in the name of the father’s solicitor filed without leave at 6.58pm on 17 February 2025. By that document the father’s solicitor:
(a)Deposed to his understanding of the availability of a contact service, which may be able to assist the parties and the children. That understanding was expressed having regard to the solicitor’s recent experience as opposed to any enquiry made by him or his client;
(b)Deposed to enquiries he had made of two psychologists;
(c)Deposed to enquiries, which his client made of a psychologist.
There were several troubling aspects with respect to the solicitor’s evidence, namely:
(a)The affidavit could only have been filed by the father’s solicitor to address the deficiencies in the father’s case as identified by me on the first day of trial;
(b)The affidavit referred throughout to enquiries, which “we have made”. The irresistible inference was that the father’s solicitor had made those enquiries together with his client despite the fact that his client was under cross-examination. The text of the affidavit also suggested that the enquiries were made after Court on 17 February 2025; and
(c)The father’s solicitor deposed to information provided by his client and enquiries made by his client, which again suggested that the solicitor discussed various matters with his client after Court on 17 February 2025 despite his client being under cross-examination.
Irrespective of any finding about the conduct of the father’s legal representatives, I declined to admit the affidavit into evidence in circumstances where it was firstly, prejudicial to the mother and to the Independent Children’s Lawyer and secondly, of limited probative value. Indeed, and by reason of the hasty manner in which the affidavit was apparently prepared and filed, it failed to address any of the deficiencies identified by me on the first morning of trial. It is one thing to identify a practitioner or a service but in a high stakes matter such as these proceedings, it is an entirely different task to identify a practitioner and properly brief him/her as to the orders sought by the father and thereafter, identify the ramifications for the children if the Court accedes to the application and the measures, which might be implemented to protect the children’s emotional needs.
For her part, the mother since filing a Response to Initiating Application on 30 June 2023, has prosecuted a consistent case, namely, that the children ought to spend no time with the father. As a corollary of that application, the mother consistently promoted orders to the effect that she have sole parental responsibility and sole decision-making authority in respect of each of the children. Such a position was maintained in circumstances where by his Case Outline, the mother’s counsel submitted that “the mother, and thence the children, were subjected to family violence and abuse by the father from the date of cohabitation”.[21]
[21] Mother’s Outline of Case Document filed 10 February 2025, page 2 of 12.
At the commencement of the trial, the Independent Children’s Lawyer by his Case Outline expressed a preliminary view that the Court ought to make an order allocating parental responsibility to the mother and that the children ought to remain in the mother’s primary care. By the time of closing submissions, the Independent Children’s Lawyer maintained that position save that, in addition, her counsel submitted that the children ought to spend no time with the father.
RECUSAL APPLICATION – DAY FOUR OF TRIAL
On day four of the trial, the father’s counsel made two applications that I recuse myself from presiding over the proceedings. The first application was made at 12.15pm and the second application was made at 3.08pm. I declined each application. I gave reasons for the second application. I now give brief reasons for my decision to decline the first application.
The application as best I could discern it was made on the following grounds:
(a)That I asked the father why the mother’s alleged anger management is an issue for him in circumstances where he was promoting orders for unsupervised time between the children and their mother;
(b)The use of an interpreter and a discouragement on my part to permit the father to use an interpreter. Further, that I made comment about the fact that despite giving lengthy evidence absent the use of an interpreter, the father changed his position on the afternoon of day three of the trial and used the services of an interpreter at all times;
(c)A comment by me that I would make a finding that the father took video footage of the mother in July 2019 simply for the purposes of filming the mother in a heightened state; and
(d)My failure to permit the father the opportunity to adduce what the father’s counsel described as “very brief uncontroversial evidence” during his re-examination of the father. The father’s counsel later withdrew a reference to the word “uncontroversial”.
I was advised by the father’s counsel after submissions had been made by counsel for the mother and counsel for the Independent Children’s Lawyer that the application was brought on the grounds of apprehended bias.
Apprehended Bias
The High Court in Johnson v Johnson (2000) 201 CLR 488 (“Johnson v Johnson”) (per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), settled the debate as to the appropriate test to be applied in the case of asserted apprehended bias. Their Honours stated at 87,631-2 as follows:-
11.It is not contended that Anderson J was affected by actual bias. It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
12.That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. "If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision." The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is "a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial".
(Citations omitted)
The position in Johnson v Johnson (supra) was reiterated in Michael Wilson & Partners Ltdv Nicholls (2011) 244 CLR 427 in which their Honours Gummow ACJ, Hayne, Crennan and Bell JJ said:
63.In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that application of the apprehension of bias principle requires two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. The plurality in Ebner went on to say that "[t]he bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated". So too, in this case, the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.
(Citations omitted)
In QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 66 Fam LR 369, Keifel CJ and Gageler J observed that application of the test entails the following:
38.(1) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.
For the reasons discussed below, and even taken at their highest, the complaints made by the father would not lead a fair-minded observer to form a view that I would decide the competing parenting applications other than on its legal and factual merit.
Application of the Law
I have regard to the four grounds on which the father relies in support of his application. I make the following findings.
Ground One: A challenge with respect to the mother’s alleged anger management issues
By his affidavit filed on 8 February 2025, the father asserted that:
(a)The mother had been prescribed medication for anger management;[22]
(b)The mother’s anger increased in intensity with the effluxion of time but particularly after the birth of the female child;[23] and
(c)He was concerned about the welfare of the children with the mother.[24]
[22] Father’s affidavit filed 8 February 2025, paragraph 51.
[23] Father’s affidavit filed 8 February 2025, paragraph 51.
[24] Father’s affidavit filed 8 February 2025, paragraph 116.
Cognisant of allegations made by him, I asked the father why he was promoting orders for unsupervised time. Particularly, and on a final basis, the father was promoting orders that the children spend time with the mother for three consecutive nights in each fortnight and that such time be extended to five consecutive nights in each fortnight during school holiday periods. The promotion of such an order was without condition.
When determining the children’s best interests, I reject any assertion that it was improper for me to make such an enquiry. I was entitled in the discharge of my function as a judicial officer to explore the disconnect between the father’s application and his assertions with respect to the mother. There is no basis for concluding that a fair-minded lay observer might reasonably apprehend that I was not bringing an impartial and unprejudiced mind to the resolution of the parties’ competing parenting applications.
Ground Two: The use of an interpreter
The father’s counsel asserted that there was a “perception” but perhaps not a fair one that there was a “sort of a discouragement of using the translator, and a – sort of promoting a position where it should only be used on a needs-by basis”.
On enquiry by me, the father’s counsel accepted that on at least three or four occasions during cross-examination of the father, I specifically advised the father that if he wished to use the services of the interpreter then he was able to do so. I note that at all times, the interpreter was present by video conferencing and visible to the father and to all people in the Court room.
The father’s counsel made his application in circumstances where:
(a)The father filed an affidavit, which was 493 pages in length. The affidavit was not translated for the father’s benefit and an interpreter’s oath and form of jurat was absent;
(b)The father did not require an interpreter when he attended on the Court Child Expert in January 2024;
(c)When, on the afternoon of the third day of trial, the father requested the assistance of an interpreter, I said nothing whatsoever and similarly, when he continued to use the services of the interpreter for the balance of his cross-examination, I said nothing whatsoever; and
(d)As discussed above, I made it plain from the commencement of the trial that if the father wished to utilise the services of the interpreter engaged by the Court for his benefit, then he was at liberty to do so.
There is no basis for concluding that a fair-minded lay observer might reasonably apprehend that I was not bringing an impartial and unprejudiced mind to the resolution of the parties’ competing parenting applications.
Ground Three: Comments about video footage taken by the father of the mother in July 2019
As discussed in this judgment, the father took three videos of the mother in July 2019.[25] The photographs depicted the mother in a heightened state carrying a kitchen knife.
[25] Exhibit W5, W6 and W7.
I expressed a preliminary view that one of the reasons why the father took the video footage was for the purposes of filming the mother in a heightened state in circumstances where he says he was concerned about the mother’s mental health. Although other explanations were promoted by the father’s counsel, the transcript reflects that the father’s counsel and I during his submissions with respect to the recusal application had lengthy discussion about the possible reasons why the father elected to take the footage. The fact that we did so is evidence in itself that I had not formed a concluded view. For these reasons, I reject that a fair-minded lay observer might reasonably apprehend that I was not bringing an impartial and unprejudiced mind to the resolution of the parties’ competing parenting applications.
Ground Four: Ruling in respect of re-examination
As discussed above, and at 11.16am on the first day of trial, the father commenced his brief evidence-in-chief and at 11.19am, the mother’s counsel commenced his cross-examination of the father. At 11.42am, the father’s counsel advised me that his client may be seeking amended orders. Particularly, the father’s counsel said that “the father’s case is now different”. This is despite the effort I undertook at the commencement of the trial to clarify the orders sought by the husband. The matter was not then recalled until 12.31pm to afford the father’s counsel the opportunity to speak with his client about the orders sought by him. At that juncture, the father’s counsel advised me that the orders promoted by the father remained unchanged.
At the commencement of his re-examination of the father, his counsel asked a question in the following terms:
Father’s counsel: Sir, you were asked questions by the ICL. You were asked this question, “If you don’t get the orders you want, would you be seeking any other orders, or would you be satisfied with any other orders?” I think you said something like, I will do what the court decides, or I will do – I will speak to my lawyers, or something like that anyway. Just going back to that question. If you don’t get the orders you’re currently seeking, would there be any other alternative scenarios that would be acceptable to you?[26]
[26] Transcript dated 20 February 2025, page 31, lines 39-45.
Counsel for the Independent Children’s Lawyer opposed the question and submitted that the question represented cross-examination by the father’s own counsel. The mother’s counsel joined in the objection. The father’s counsel described the objection as a nonsense.
The difficulty with the question as framed by the father’s counsel is that cross-examination of the father had closed, and I considered it to be unfair to the mother and to the Independent Children’s Lawyer for the father’s counsel to elucidate evidence of an alternate position after the father’s case had effectively closed. I also agreed with submissions by the Independent Children’s Lawyer and the mother’s counsel that if the father had an alternate application, then it should have been included in the father’s evidence-in-chief. The approach adopted by the father’s counsel would have deprived the mother and the Independent Children’s Lawyer a proper opportunity to cross-examine the father with respect to any alternate proposal or for such a proposal to be put to the single expert. Further, the father was given every opportunity during cross-examination by the Independent Children’s Lawyer to put an alternate position. He did not do so.
It is correct that I ruled against the adducing of further evidence. However, I reject that by doing so a fair-minded lay observer might reasonably apprehend that I was not bringing an impartial and unprejudiced mind to the resolution of the parties’ competing parenting applications.
PARENTING PROCEEDINGS – LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Act, where the meaning of a “parenting order” is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
Parental responsibility
There is no presumption of parental responsibility but rather an assessment on a case-by-case basis. In this instance, neither party is seeking an order which provides for joint decision-making.
Parental responsibility for children is vested in their parents (s 61C(1)) but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B).
When an order is made allocating parental responsibility for a child or children in relation to “major long-term issues” to more than one person, the order may prescribe whether those persons have joint or sole decision-making authority in relation to all or only specified issues (s 61D(3)). The Act defines “major long-term issues” to include those such as the child’s education, religion, culture, health, name, and changed living arrangements (s 4(1)) and defines what “joint decision-making” requires in respect of such issues (s 61DAA). A person allocated with parental responsibility for a child need not be consulted by another person in respect of minor decisions made for the child which fall outside “major long-term issues” (s 61DAB).
Best interests of the child
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA and 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC). The six considerations referred to in s 60CC(2) are non-hierarchical. The Court is obliged to consider:
(a)arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child;
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or will have parental responsibility to provide for the child’s needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and
(f)anything else that is relevant to the particular circumstances of the child.
When considering the arrangements, which would promote the safety of the child and each person who has the care of the child, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
Section 60CG of the Act imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. Examples of such behaviour include assault, sexually abusive behaviour, stalking, repeated derogatory taunts, intentional damage or destruction of property, unreasonably withholding financial support needed to meet reasonable living expenses of the family member or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support, preventing the family member from making or keeping connection with his or her family or friends, or unlawfully depriving the family member from his or her liberty.
Section 4AB(3) and s 4AB(4) make it clear that children are to be regarded as exposed to family violence either through direct sensory perception of violent action or such perception of consequences of violent action.
As the facts referred to above make plain, this is a case about risk.
Where ultimately the Court’s focus is on formulating orders which attend to the child’s best interests, the Court is required to make findings of fact. The standard of proof is one of “on the balance of probabilities” consistent with s 140 of the Evidence Act 1995 (Cth) which provides:
(1)In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.[27]
(2)Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
[27] Briginshaw v Briginshaw (1938) 60 CLR 336.
A party making an assertion of fact has an onus to prove that fact on the balance of probabilities although the task for the Court ultimately remains as one of weighing and balancing the probity of evidence towards a determination of the child’s best interests.
The mother in this case invites me to make a finding that the father presents an unacceptable risk of harm to the children. When considering this question, I am mindful of the Full Court’s decision in Isles & Nelissen (2022) FLC 94-092 (“Isles”), which summarised the authorities on unacceptable risk since M v M (1988) 166 CLR 69 (“M v M”). The Full Court said that while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need be proven on the balance of probabilities.
The Court in Isles also said of the decision in N and S and the Separate Representative (1996) FLC 92-655 as follows:
12.Fogarty J stated it is necessary for a trial judge to give real and substantial consideration to the facts of the case and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child and, furthermore, the qualitative analysis of the evidence must be directed not just to the existence of the risk of harm but also the magnitude of the possible harm...
(citations omitted)
In Isles, the Court at [35] went on to quote Tree J in Bant v Clayton (2015) 53 Fam LR 621 at [171]:
171.Risk assessment involves determining firstly, the degree of the likelihood of the postulated event, and secondly, the prospect and magnitude of harm that may flow if the event occurs. The weighing of those two considerations – even accepting they may be imprecisely expressed within parameters – will inform whether the risk is adjudged to be acceptable or not. However that conclusion cannot be made in the abstract.
The Court agreed with and adopted Austin J’s judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter [2007] FamCA 350; (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
In Hickson & Matthew [2022] FedCFamC1A 161, Deputy Chief Justice McClelland said this of Justice Austin’s analysis at [39]:
39.Additionally and relevantly for the purpose of this appeal, I would expand upon that insightful analysis by Austin J with the following guidance that emerges from authorities:
(1)It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm.
(2)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved.
(3)The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard, endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(4)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”.
(citations omitted)
I have read the parties material and listened to their submissions. I am not however required to address every fact or submission made.[28] Nor have I done so. However, every piece of evidence relied upon by the parties has been read and considered by me.
[28] Whisprun Pty Ltd v Dixon (2003) 200 ALR 447.
PARENTING ISSUES TO BE DETERMINED
As a consequence of allegations made by the mother, the issues, which I am obliged to determine in this case can be summarised as follows:
(a)Whether the father has physically and sexually assaulted the mother;
(b)Whether the father has denied the mother financial autonomy and/or unreasonably withheld financial support;
(c)Whether the father has made repeated derogatory taunts of the mother;
(d)Whether the father sexually abused the male child;
(e)Whether the father has engaged in “inappropriate and sexual behaviour towards the children”;
(f)Whether the father assaulted the children by the method of “waterboarding” as a means of punishment; and
(g)Whether the father has verbally and physically abused the children and exposed them to family violence.[29]
[29] Mother’s Outline of Case Document filed 10 February 2025, page 2 of 12.
If the answer to any of the above questions is in the affirmative, then I must decide whether the risk presented by the father is of such magnitude that the Orders sought by the mother and the Independent Children’s Lawyer, or some variation thereof, is the only way to ensure the safety of the children.
Even if I do not find that the father presents a risk of harm to the children, an issue, which I must determine in this case is whether it is in the children’s best interests to make an order, which ultimately places them in the care of the father. When doing so, I must consider all matters that compromise the safety, welfare and well-being of the children.
Has the father physically assaulted and/or sexually assaulted the mother?
By her affidavit filed on 3 February 2025, the mother says that:
(a)She was physically assaulted by the father for the first time in late 2013 whilst the parties were residing in Country B;[30]
(b)In mid-2013, and after wedding celebrations, the father sexually assaulted the mother by inserting a cotton ball, which had been “dipped…in red substances” into the mother’s vagina and thereafter, proceeded to have sexual intercourse with her;[31]
(c)After moving to City E in early 2014, the father’s physical violence towards her “escalated significantly” such that the father would hit her when he became annoyed and/or upset;[32]
(d)The father was physically violent towards the mother in City E when the mother failed to identify and thereafter coerce third parties to participate in “dominant and submissive sexual acts” with the father;[33]
(e)In early or mid-2014 and having had an argument about the father’s interactions with other women, the father “slapped me on the face and punched me in the head many times with a closed fist”. The mother also says that the father choked her and pushed down on her stomach with his foot;[34] and
(f)The father “beat me in every room” of an apartment in City E such that the mother was obliged to cover up bruises and wounds on various parts of her body when she went out in public.[35]
[30] Mother’s affidavit filed 3 February 2025, paragraph 70.
[31] Mother’s affidavit filed 3 February 2025, paragraph 53 and onwards.
[32] Mother’s affidavit filed 3 February 2025, paragraph 80.
[33] Mother’s affidavit filed 3 February 2025, paragraph 63 and onwards.
[34] Mother’s affidavit filed 3 February 2025, paragraph 84.
[35] Mother’s affidavit filed 3 February 2025, paragraph 105.
Assault in 2013
The mother says that the first time the father assaulted her was in 2013 at which time she was pregnant with the male child.[36] She says that after arguing about money, the father slapped her “very hard on [her] cheek” to the extent that the mother’s face turned red.
[36] Mother’s affidavit filed 3 February 2025, paragraph 70.
The father does not respond with any precision to this allegation in his written evidence. However, he denied the allegation on during cross-examination.
The facts are insufficiently strong to enable me to find that the father assaulted the mother by slapping her in 2013.
Insertion of a cotton ball into the mother’s vagina
The mother alleges that in August 2013 and following a wedding celebration in Country B, the father obliged her to undergo a “treatment” to cleanse herself after the father learned that the mother was not a virgin.[37] The father also advised the mother that she would need to undergo treatment if she wanted to have children with him asserting that the mother was “dirty inside”.[38]
[37] Mother’s affidavit filed 3 February 2025, paragraph 52.
[38] Mother’s affidavit filed 3 February 2025, paragraph 52.
The mother says that she accompanied the father to the residence of a third party who gave the father a “small jar with some red substances”. On receipt of the red substance, the mother says that the parties went home at which time, the father told her to remove her pants, and he put a pillow over her mouth.[39] Thereafter, the mother says as follows with respect to the “treatment”:
[The father] dipped the cotton ball in the red substances and then inserted it into my vagina with his fingers. I did not know what the red substance was. I felt an immediate burning sensation followed by sharp burning pain. I closed my eye [sic] and tried my best not to make any sound. I remember [the father] said to me “This is for our future. This is just for us to have babies. I just need to make sure inside is clean. This is just the cleaning process. You want to have children so just be happy about it.[40]
[39] Mother’s affidavit filed 3 February 2025, paragraph 54.
[40] Mother’s affidavit filed 3 February 2025, paragraph 55.
The mother says that the father then had intercourse with her, which increased her pain because the cotton ball was in situ. The mother says that after this ordeal, the father agreed to take her to a medical centre. After undergoing an ultrasound, the cotton ball was extracted.[41] The mother says that she did not report the father’s conduct to the medical practitioner. Instead, she says that she lied about the circumstances giving rise to the insertion of the cotton ball. She says that she did so because she was ashamed and otherwise, accompanied by the father’s sister who urged her to misrepresent the truth.[42]
[41] Mother’s affidavit filed 3 February 2025, paragraphs 60 and 61.
[42] Mother’s affidavit filed 3 February 2025, paragraphs 60 and 61.
The father says that the mother’s allegations are “complete nonsense” and further says that he has “no idea what she is talking about, or what she is referring to”.[43] On cross-examination, the father denied each of the matters referred to above – that is, he denied that he inserted any substance into the mother’s vagina and denied that she required medical attention. It was put to the father by the mother’s counsel that the “very detailed [and] specific series of allegations” made by the mother were in fact true. The father denied the same.
[43] Father’s affidavit filed 8 February 2025, paragraph 138.
It is curious that the mother did not produce any medical evidence to support her allegation. For instance, it might have been possible for the mother to obtain notes of the procedure undertaken by the medical practitioner or to obtain an image of the ultrasound. Despite a lack of documentary evidence, which supports the mother’s allegation the mother was distressed when being cross-examined on this topic. At one point, I adjourned the Court briefly so that the mother might regain her composure. Whilst the facts are insufficiently strong to permit a finding that the father inserted a red substance into the mother’s vagina in August 2023, I am persuaded by reason of the mother’s presentation in the witness box and the specificity of the details provided by the mother that she was subjected to family violence on this occasion and something occurred, which the mother continues to find deeply distressing. The mother’s evidence was so specific and detailed that on balance, I do not consider the evidence to be fabricated.
Escalation of family violence in City E in 2014
The mother says that on moving to City E in 2014, the father’s physical abuse escalated. Particularly, the mother says that the father “had a short temper and would lash out at me often by yelling or hitting me when he gets annoyed or upset”.[44]
[44] Mother’s affidavit filed 3 February 2025, paragraph 80.
As an example, the mother refers to an event, which she says occurred in early to mid-2014 after she confronted the father in relation to sexually explicit messages, which she discovered had been exchanged between the father and other women. The mother says that having raised the issue with the father, he “slapped [her] on the face and punched [her] in the head a number of times with a closed fist”.[45] She says that having done so, the father pushed her to the ground, put his arms around her neck and “started choking [her]”. The mother also says that the father pushed down on her belly with his foot and threatened to kill both the mother and the parties’ unborn child.[46] Particularly, the mother asserts that the father said as follows:
I don’t want a wife like you. I don’t want a baby from you. I’m going to kill both of you.[47]
[45] Mother’s affidavit filed 3 February 2025, paragraph 84.
[46] Mother’s affidavit filed 3 February 2025, paragraphs 84 to 85.
[47] Mother’s affidavit filed 3 February 2025, paragraph 85.
The father did not respond with any precision to this allegation but in what the father described as a “universal response” to the mother’s allegations, he denied that the mother had suffered “domestic violence, physical, mental…[or] sexual abuse throughout our marriage”.[48] The father also asserted, when interviewed by the Court Child Expert in January 2024, that the mother was “the primary perpetrator of family violence” and that it was the mother who subjected him to verbal and physical abuse throughout the relationship.[49]
[48] Father’s affidavit filed 8 February 2025, paragraph 129.
[49] Family Report dated 6 March 2024, paragraph 36.
Again, it is curious that the mother did not report the assault to police in City E or seek medical attention. This is particularly so given that the mother was pregnant with the male child at the time of the alleged assault. However, I accept the mother’s explanation that she had limited funds and limited support in a foreign country.[50] This might explain why the mother did not report the assault and/or the father’s threat to kill her and the parties’ unborn child.
[50] Mother’s affidavit filed 3 February 2025, paragraph 88.
The Court Child Expert expressed a view that the mother was genuine when interviewed. That was also my assessment of her evidence. Nevertheless, the facts as presented are insufficiently strong to enable me to find that the father physically assaulted the mother in 2014 and/or that the father threatened to kill the mother and the parties’ unborn child at that time.
The mother also refers to an incident, which occurred in City E on an evening when the father returned home late from work. It was the mother’s case that the father would regularly do so and says that on one occasion, and having confronted the father about the same, the father “forcibly pushed [her] out of the apartment”. She says that the father refused to let her back in to the apartment despite the fact that the male child was inside the apartment and “only a few months old” at the time.[51] The mother says that she sought the intervention of the paternal grandmother and asked her to call the father to persuade him to let her back into the apartment.[52] The father under cross-examination denied the allegations. Nevertheless, the evidence was consistent with the written evidence of the maternal grandmother who says as follows:
On more than one occasion, when [the mother] was in [City E], she called me in tears and told me that [the father] had pushed her out of the apartment and locked her out. I was very anxious and worried for [the mother’s] safety and wellbeing when she was in [City E].[53]
[51] Mother’s affidavit filed 3 February 2025, paragraph 97.
[52] Mother’s affidavit filed 3 February 2025, paragraph 100.
[53] Affidavit of the maternal grandmother filed 31 January 2025, paragraph 22.
The maternal grandmother gave her evidence in a straightforward and calm manner. I consider her to be an honest witness.
Given the consistency between the mother’s evidence and the maternal grandmother’s evidence, I find that the father did abuse the mother in City E by locking her out of the apartment from time to time. The factors, which I bring to account when making this finding include the following:
(a)The mother’s evidence was so specific and detailed that on balance, I do not consider the evidence to be fabricated;
(b)The mother’s evidence was consistent with the evidence given by the maternal grandmother. As discussed, it was my observation that the maternal grandmother was a truthful witness who gave her evidence in a straightforward manner;
(c)Cross-examination of the mother did not cause me to doubt the veracity of the mother’s evidence.
Requirement to carry out “sexual fantasies” and coercion of third parties to participate in sexual acts with the father
The mother says that between 2014 and 2016, the father’s violence towards her escalated particularly when she refused to “carry out his sexual fantasies”. The mother says that because of her refusal, the father was physically violent towards her on about two occasions each week.[54] The mother also says that she was pressured by the father to “go to bars to befriend other women who might be willing to do what he wanted in the bedroom”. Again, the mother says that she was physically and verbally abused if she failed to comply with the father’s requests.[55]
[54] Mother’s affidavit filed 3 February 2025, paragraph 93.
[55] Mother’s affidavit filed 3 February 2025, paragraphs 110 and 111.
The father denied the allegation and again, the facts were not sufficiently strong to enable me to make a finding that the father physically assaulted the mother as so asserted.
Incident of May 2020
Subsequent to the mother’s departure from the former matrimonial home, the father was charged with an assault on the mother, which it was alleged occurred in May 2020.
The father introduced the topic in his affidavit filed 8 February 2025 by saying that he was sitting in the loungeroom of the former matrimonial home with the children watching television. He says that the mother had been on the telephone with the maternal grandmother in the bedroom. The father says that on conclusion of the telephone conversation, the mother rebuked him for not enquiring as to her welfare in circumstances where her grandmother had passed away. The father says that the mother “got violent and started slapping me”. The father then says that the mother ripped his shirt and in the process of defending himself, he ripped the mother’s shirt.[56]
[56] Father’s affidavit filed 8 February 2025, paragraphs 66 to 70.
The mother gives an opposing version of events. She says that on conclusion of the telephone conversation, she walked over to the father to advise him that her grandmother had passed away. The mother says that the following then occurred:
[The father] pushed me back with his right hand and said “go away. Go call your mother and cry, don’t come to me!”. [The father] pushed me on my shoulders causing me to fall back on the floor.[57]
[57] Mother’s affidavit filed 3 February 2025, paragraph 180.
The mother says that after the parties had a further argument about the father’s lack of interest in the mother’s plight, the father slapped her to the left side of her face.[58] The mother says that this caused her to fall to the floor. Thereafter, she felt a ringing in her ear.[59] The mother says that each of the children saw her on the floor and ran towards her crying.[60]
[58] Mother’s affidavit filed 3 February 2025, paragraph 183.
[59] Mother’s affidavit filed 3 February 2025, paragraph 183.
[60] Mother’s affidavit filed 3 February 2025, paragraph 183.
The male child when interviewed by the Court Child Expert in January 2024 said that his father would hit him and hit the mother “on the head”. He could not recall a specific time that he or his mother were abused, however, he said that he would feel “scared” and go to his bedroom.[61] Given the concerns expressed by the Court Child Expert to the effect that the children may have been influenced by the mother to express certain views about the father, I cannot discount the possibility that the mother has influenced the male child to say that his father would hit him and/or the mother. On the other hand, the mother says that at least in May 2020, the children were exposed to family violence and witnessed her on the floor after been assaulted by the father. Such an account is consistent with the male child’s advice to the Court Child Expert to the effect that he witnessed his father do so. Given that the male child was six years of age at the time, I place some weight on the male child’s report to the Court Child Expert.
[61] Family Report dated 6 March 2024, paragraph 57.
In circumstances where each party deposes to damage to each of their shirts, and because of the father’s own evidence with respect to the presence of the children, I can readily find that the children were exposed to an occasion of family violence in May 2020.
Further, and having regard to the evidence of the male child and the parties’ evidence, I find that on the balance of probabilities, the mother was a victim of family violence perpetrated by the father.
Did the father deny the mother financial autonomy and/or unreasonably withhold financial support?
As discussed above, and on the day of the father’s departure for City E in late 2013 or early 2014, the mother says that the father slapped her “very hard” on her cheek after the parties had an argument about the mother’s impecuniosity and the father’s failure to leave her with adequate financial provision.[62] The father denied having any conversation with the mother about money at this time and denied assaulting the mother. The father did concede, however, that the mother was solely dependent on him in terms of accommodation and income whilst living in Country B and City E.
[62] Mother’s affidavit filed 3 February 2025, paragraph 74.
The mother’s counsel suggested to the father that whilst living in City E, he would only provide the mother about $20 to $25 Country F currency per week to buy groceries. At the current juncture, such a sum equates to about $10 AUD. However, the father denied this assertion and the facts were not otherwise sufficiently strong to enable me to make a finding that the father denied the mother financial autonomy or withheld financial support from her whilst the parties were living in Country B and City E.
In about early 2015, the father applied for a visa to migrate to Australia. The mother alleges that the father refused to pay for the fees associated with the mother’s visa and accordingly, the mother says that she borrowed about $10,000 AUD from her father to pay for visas for herself and the male child.[63] The father under cross-examination said that he did not remember the mother being obliged to ask her father for financial assistance and the evidence was not sufficiently strong to enable me to make a finding that firstly, the father declined to pay for the mother’s visa and the visa of his son or secondly, that the mother was obliged to seek assistance from the maternal grandfather.
[63] Mother’s affidavit filed 3 February 2025, paragraphs 120 and 121.
For the first six months after the mother’s arrival in Australia, the father remained in City E. It was put to the father that at this juncture and save and except for the provision of a “company credit card”, which often declined[64], the father withheld financial support from the mother such that she was required to sell clothing and accessories to generate some income. The mother also says that she was obliged to seek financial assistance from her mother.[65] The maternal grandmother confirms this assertion and says as follows:
When she first arrived in Australia, [the mother] called me and said to me “[the father] is not giving us much money to pay for our expenses in Australia. [The father] controls our money. I am struggling to pay for rent and utilities. Can I borrow some money from you to cover our expenses, especially clothes for the children?[66]
[64] Mother’s affidavit filed 3 February 2025, paragraph 126.
[65] Mother’s affidavit filed 3 February 2025, paragraphs 125 to 126.
[66] Affidavit of the maternal grandmother filed 31 January 2025, paragraph 50.
The maternal grandmother went on to say that “[o]ver the next few years I also sent [the mother] money from time to time to help with her living expenses”.[67]
[67] Affidavit of the maternal grandmother filed 31 January 2025, paragraph 47.
The mother produced documentary evidence, which was consistent with her assertion and the maternal grandmother’s assertion that the latter provided the mother with monetary assistance. Particularly, the mother tendered Money Transfer documents, which identified the following:
(a)in August 2018, the maternal grandmother advanced a sum of $300 AUD to the mother;
(b)in February 2020, the maternal grandmother advanced a sum of $3,763 AUD to the mother; and
(c)in 2020, the maternal grandmother advanced a sum of $1,240 AUD to the mother.[68]
[68] Exhibit W3.
During cross-examination, the father initially said that the money transfers were “none of my business”. He then gave evidence that he did “not know anything after September 2020”. He disagreed, however, that the transfers were necessary because he was not providing the mother with sufficient financial assistance. When assessing the father’s evidence, I am also mindful that he did not start working on a full-time basis in Australia until early 2017.[69] This being so, and in circumstances where the mother was not engaged in paid employment, and in circumstances where the parties had two very young children, I expect that the parties would have been living in straightened financial circumstances.
[69] Father’s affidavit filed 8 February 2025, paragraph 45.
On balance, the facts were not sufficiently strong to enable me to find that the father denied the mother financial autonomy and/or that he withheld financial support from her. Having said this, I have no reason to doubt the evidence of the maternal grandmother and the documentary evidence tendered by the mother to the effect that the maternal grandmother provided the mother with monetary assistance from time to time. However, the facts as presented do not enable me to find whether the assistance was simply of a gratuitous nature taking into account the financial exigencies associated with the parties’ recent arrival in Australia or whether the maternal grandmother was making efforts to provide for her daughter in circumstances where the father would not do so.
Did the father make repeated derogatory taunts of the mother?
Denigration of the mother due to inability to breastfeed
The mother says that in 2017 when the female child was five months old, the father denigrated the mother by telling each of the children “[you] don’t need to respect your mother because she didn’t breastfeed you enough.”[70] The comment was made in circumstances where the mother experienced difficulty breastfeeding each of the children.[71] The mother made an allegation in similar terms to police after separation on 23 September 2020.[72] The father denied the allegation under cross-examination.
[70] Mother’s affidavit filed 3 February 2025, paragraph 152.
[71] Mother’s affidavit filed 3 February 2025, paragraph 152.
[72] Exhibit H3.
The mother then says that when the female child was aged two years, and as she was feeding the child formula, the father took the child from the mother’s arms and held the child’s head towards his chest saying “[y]our mum is not capable, she has no milk. You can suck my milk”. The mother says that the father then lifted up his shirt and exposed his nipples.[73] The father denied this allegation under cross-examination.
[73] Mother’s affidavit filed 3 February 2025, paragraph 139.
The mother says that the father’s disdain of her inability to breastfeed the children was expressed well after the male child was of breastfeeding age. Particularly, the mother says that when the male child was at least four or five years of age the following occurred:
[The father] lifted up my shirt and bra to expose my breast and forced [the male child] and/or [the female child’s] head close to my breasts. The [male child] was at least 4 or 5 years old and [the female child] at least 2 years old. He would laugh whilst holding me down and ignored my pleas for him to let me go. Sometimes he masturbated whilst forcing me to ‘breastfeed’ the children. I recall this happened more than 5 times in different locations in the house between 2018 and 2020.[74]
[74] Mother’s affidavit filed 3 February 2025, paragraph 154.
The facts as presented are not sufficiently strong to enable me to make a finding that the father denigrated the mother in the manner alleged by her and/or that he masturbated as the mother breastfed the children as so asserted. Cross-examination on this topic did not assist me to determine the veracity or otherwise of the mother’s allegations.
Video recordings and events of July 2019
The father says that in July 2019, he returned home from work and was confronted by the mother who asked him to take care of the children so that she might rest. The father alleges that the mother was yelling and screaming at him with words to the following effect:
What the fuck do you want from me? I cannot take care of two children. I never wanted to have two kids! Go look after them yourself.[75]
[75] Father’s affidavit filed 8 February 2025, paragraph 54.
The father says that thereafter:
(a)The mother grabbed a knife from the kitchen and went to her bedroom;
(b)The mother sat in the bedroom yelling at him and hitting herself; and
(c)When the father made efforts to calm the mother down, she lunged at him with a knife whilst he was “making a video”.[76] The father says that he took the knife from the mother’s hands but having done so, the mother took another knife from the kitchen and started threatening to harm him and the children. The father says that he was “very worried” but “I did not do anything about it except I made a video and tried to calm her down and take the knife away from her”.[77]
[76] Father’s affidavit filed 8 February 2025, paragraph 55.
[77] Father’s affidavit filed 8 February 2025, paragraph 56.
The mother gives a different version of events. She says that she was preparing dinner at which time the father walked into the kitchen and started discussing a separation with her. The mother says that the father was “badgering me about how I would support myself and the children if I left him”.[78] Particularly, the mother says that the father said words to the effect:
It is not possible for you to live alone with the children. You are going to end up in prostitution. This is what you are. You were a “[…]” [meaning a prostitute in his language]. This is the only profession you will end up with”.[79]
[78] Mother’s affidavit filed 3 February 2025, paragraph 235.
[79] Mother’s affidavit filed 3 February 2025, paragraph 235.
I have reviewed the three videos taken by the father. The first video is eleven seconds in length.[80] It depicts the mother sitting in the corner of a bedroom whilst holding a large kitchen knife. At no stage does the mother stand or approach the father although there is a brief altercation between them towards the conclusion of the video at which time the father takes the knife from the mother. The English translation of the discussion between the parties as depicted on the first video reads as follows:
Father: Leave it. Leave it.
Mother: It is enough.
Father: Your video is being made.
Mother: Let it be so. Let it be so.
Father: Your videos will be recorded.[81]
[80] Exhibit W5.
[81] Exhibit W5.
The second video is 12 seconds in length.[82] This video depicts the mother crouched on the floor in the kitchen. The father appears to be holding a knife, which is different to the knife depicted in the first video. The mother is crying whilst the father continues to record her and takes footage of the knife. The father is heard saying “this is the knife I took from her, she tried to hit me again”.
[82] Exhibit W6.
The third video is one minute in length.[83] It depicts the mother on the floor of the kitchen in what one might describe as foetal position holding a knife.[84] The video depicts the father standing over the mother giving a running commentary about what had occurred. In part, the transcript of the recording reads as follows:
Father: She has got a knife in her hand. I am trying to get it back.
Father: Leave the knife.
Mother: Leave it.
Father: Leave the knife. Okay. You need a doctor.
Mother:Sister fucker! You have brought me to the crematorium. You have done it. Kill me once for all. Why do you kill me every day?[85]
[83] Exhibit W7.
[84] Exhibit W7 and Exhibit W8.
[85] Exhibit W7.
Significant time was taken by counsel for each party and the Independent Children’s Lawyer cross-examining the parties about the events depicted in the videos. Each party’s counsel made efforts to depict the other parent as the villain.
Having listened to the evidence and the exhibits tendered by the mother, I am concerned about the following:
(a)In each of the videos, the mother is depicted sitting in the corner of a room or crouching in a foetal position on the floor. Her distressed state as evidenced by the videos and her physical presentation causes me to reject the father’s assertion that the mother ever made efforts to attack him with a knife. By his Notice of Child Abuse, Family Violence or Risk filed on 30 April 2023[86], the father asserts that the mother lunged at him whilst he was making the videos. The videos tendered do not support such an assertion. I similarly reject the father’s assertion that he was “scared that [the mother] might try to harm me, or the children”. The evidence does not support a conclusion that the mother was in a condition whereby she could harm anyone. Instead, it appeared that the mother was emotionally vulnerable and being intimidated by the father. The Court Child Expert agreed. Particularly, she said as follows during cross-examination:
She appeared to be in what I viewed to be a quite distressed state, quite an upset state. With [the father] in those two particulars videos where – it was in the kitchen, [the father] standing over the mother. In those videos, it appeared to me that [the mother] was more fearful, in what was captured in those recordings.[87]
(b)The was no evidence consistent with the father’s written and oral evidence that he made efforts to calm the mother down during the altercation. Instead, the videos depict the father standing over the mother in a domineering manner. My impression having regard to the video evidence is that the father simply sought to continue the dispute between the parties and to intimidate the mother. To this extent, I agree with the submission put by the mother’s counsel that the father was the cause of the mother’s distress;
(c)The father’s badgering of the mother was such that the mother expressed a desire for the father to kill her “once and for all”. Such a statement could only be made by someone in a highly distressed state who is being harassed and intimidated;
(d)There was no evidence whatsoever that the father tried to contact police or ambulance officers on the evening in July 2019. I reject the father’s assertion that he did not do so due to a fear that the mother would harm him or the children. As I say, the video footage depicts the mother in a distressed state so much so that on my assessment, the mother would have been incapable of hurting anyone;
(e)The father at no stage made effort to calm the mother or to assist her deal with her distress. Instead, the father continued filming the mother; and
(f)The father did not show police the video footage until mid-2020 when police attended at the parties’ residence due to an alleged assault of the mother by the father (supra).[88] Such an action is consistent with the father taking the video footage with an intention to use it against the mother on a later date.
[86] Exhibit W9.
[87] Transcript dated 26 February 2025, page 52 lines 40-44.
[88] Father’s affidavit filed 8 February 2025, paragraph 75; Exhibit W10.
I am satisfied on the balance of probabilities that the mother was the subject of family violence on the evening in July 2019. Particularly, I am satisfied that the father taunted and denigrated the mother by suggesting that she required medical assistance and taunted the mother by taking video footage of the event.
Sexual abuse of the children and/or inappropriate sexual behaviour towards the children
The father made several allegations with respect to the mother’s mental health. I assume that those allegations were made to strengthen his application for primary care of the children. Particularly, the mother was cross-examined about her attendance on a neurologist whilst living in City E. The father’s written evidence sought to create a link between that attendance and an alleged anger management problem on the part of the mother.[114] The issue was pressed by the father’s counsel even though on the father’s own application, he was necessarily conceding that it was appropriate for the mother to spend extended and unsupervised time with the children. In any event, the mother’s written evidence is that she sought assistance for migraines.[115] The documentary evidence supports a conclusion that the mother was prescribed several medications.[116] It was put to the father that the medications were prescribed to treat vomiting and nausea. The father said that he could not remember why the mother was prescribed medications undermining his assertion that the attendance on the neurologist was for anger management issues.
[114] Father’s affidavit filed 8 February 2025, paragraph 51.
[115] Mother’s affidavit filed 3 February 2025, paragraph 233.
[116] Exhibit W2.
The father’s application for the children to live in his primary care must be seen in the following context:
(a)The Court Child Expert expressed a view that the children appeared to be genuinely fearful of their father during interviews.[117] Importantly, the Court Child Expert expressed a view that the children’s fear was genuine irrespective of any influence, which the mother may have brought to bear on the children over the years whether such actions were deliberate or otherwise;
(b)The Court Child Expert gave oral evidence that the children have “troubling memories” of their father and each of them presented as been “very worried” on interview;
(c)Save for their relationship with their father, the children appear to be stable in other elements of their life. The male child’s Semester 2, 2024 academic report identified that he consistently attended at school and his teacher and principal said as follows about him:
[The male child] is a capable and happy student who enjoys interacting with his peers. It has been pleasing to see his confidence grow this year when participating in class discussions…. He often brings laughter into the classroom.[118]
At the conclusion of Semester 1 in 2024, the female child’s teacher and principal said as follows:
[The female child] is a friendly and enthusiastic student who approaches her schoolwork with a positive attitude… [The female child] is to be commended on her positive attitude and her commitment to learning.[119]
The Court Child Expert also identified that the children’s relationships with their mother and their stepfather are comfortable and familiar,[120] that they enjoy various activities outside of school, and they have friendships with their peers; and
(d)The mother is parenting the children competently and meeting their developmental needs.
[117] Family Report dated 6 March 2024, paragraph 72.
[118] Exhibit ICL 2.
[119] Exhibit ICL 2.
[120] Family Report dated 6 March 2024, paragraph 70.
Even if my findings about the father’s perpetration of family violence are incorrect, the Court Child Expert expressed caution about the establishment of any relationship between the children and their father by saying that a balance had to be struck between the children’s safety and their right to have a relationship with the father. When pressed as to the use of the word “safety” by the father’s counsel, the Court Child Expert gave evidence in the following terms:
The children present as fearful of their father. That’s their – that’s their perceived fear. Irrespective of whether the allegations are proven or disproven, that’s how the children feel. So if they were to come into contact with their father, there are absolutely concerns that they may regress – show regressed behaviours. They may show signs of concern for their psychological wellbeing. They may engage in risk taking behaviours. They may refuse a relationship with their father.[121]
[121] Transcript dated 26 February 2025, page 83 lines 23-29.
Ultimately, and having regard to the evidence of the Court Child Expert, I cannot accede to the father’s primary application. When forming this view, I rely upon the oral evidence of the Court Child Expert to the effect that she could not support a change of care for the children. I share that view for the reasons referred to above. In addition, and as expressed by the Court Child Expert under cross-examination:
(a)The children’s reality is that the mother is their primary carer. They have not seen their father for several years and they have no relationship with him;
(b)It is speculative as to how the children might respond to therapy and/or any reintroduction to the father in a therapeutic environment and accordingly, it would be speculative to make any order for unsupervised time between the children and the father. The Court Child Expert also identified that the male child “may not wish to discuss his relationship with his father any further” in circumstances where he has been the subject of interview by the Department of Communities and Justice, police and was involved in criminal proceedings against his father. The Court Child Expert noted that the male child’s distress is such that he suffered from “notable body twitches when talking about family dynamics”;[122]
(c)If the Court made the ultimate order sought by the father, the children would likely feel a sense of abandonment and disconnection from the primary figures in their lives – namely, the mother and their stepfather. The Court Child Expert expressed a view that this will increase the children’s fear, their sense of safety and in her words, “have huge ramifications on their mental health and mental wellbeing”. The Court Child Expert also gave evidence with respect to the effect, which the father’s ultimate application may have on the children’s relationship with the mother. Particularly, the Court Child Expert said as follows:
They may start to resist or refuse their mother. They may put blame on their mother for a change of care as well. And then you’ve got the potential of the children having two disrupted and broken relationships. And then they have no one to go to for support and containment. So that – that’s a loss. They’ve lost both relationships. That’s a potential. Absolutely.[123]
[122] Family Report dated 3 March 2024, paragraph 71.
[123] Transcript dated 26 February 2025, page 91, lines 29-33.
The Court Child Expert opined that even if the children’s safety could be ensured, then slow steps would need to be taken in terms of reintroducing the children to their father so that the children’s psychological wellbeing is not put at risk. When asked about the “slow steps” envisaged by her, the Court Child Expert said that counselling would need to start “first and foremost” to help the children process a change and to assist the mother to process a change. Even then though, the Court Child Expert expressed doubt whether the mother has capacity to:
(a)Facilitate the children’s attendance on a therapist as sought by the father “given her reported lived experience of abuse by [the father]”[124]; or
(b)Facilitate time between the children and their father. Particularly, the Court Child Expert expressed a view that the mother is not able to do so.
[124] Transcript dated 26 February 2025, page 85, lines 6-8.
Ultimately, I share the opinion of the Court Child Expert to the effect that it is not in the children’s best interests to make any order for unsupervised time spending between the children and their father due to their fears of the father and the mother’s fears of the father. Absent the children’s participation in any therapy and some assessment as to the outcome of that therapy, it was the Court Child Expert’s view that any order for unsupervised time was simply premature. It is for these reasons that I also dismiss the father’s alternate application as made immediately prior to closing submissions. My view is also fortified by the following evidence given by the Court Child Expert:
Father’s counsel: In terms of – what about unsupervised time? What if the court finds that there’s no risk in relation to unsupervised time? I mean, if the father was, for example, to come up to [sic] Melbourne once a month?[125]
Court Child Expert: Yes.
Father’s counsel: That might be something that would benefit the children. Do you agree with that?
Court Child Expert: Look, it’s something I can’t recommend at this stage. It hasn’t been tested. My concerns still stand with where the children are at in terms of their fear and in terms of [the mother’s] fear. I would have concerns around unsupervised time based on the information that has been before me today.
Father’s counsel: All right. All right. Now, so at this point in time, you can’t recommend unsupervised time with the father, is that right?
Court Child Expert: That’s correct, yes.[126]
[125] Given the location of the father this must have been a reference to the father travelling to Sydney on one occasion each month.
[126] Transcript dated 26 February 2025, page 89, lines 4-15.
I place significant weight on the opinion of the Court Child Expert. She was a very impressive witness who gave her evidence in a professional and considered manner. Her Curriculum Vitae identifies that she has significant experience in child protection and as an expert in this Court.
The father also failed to acknowledge the impact of the orders sought by him on the mother’s mental health and accordingly, the mother’s parenting capacity. The Court Child Expert’s evidence was to the effect that even nominal time between the children and their father in the form of “identity contact” would have an impact on the mother’s mental health and accordingly, the children’s psychological well-being. Particularly, the Court Child Expert said as follows:
This is a mother who has very real fear of her location being found, to the extent that …[the] stepfather has not disclosed who he is. They’re very fearful of the children’s school address being found, the home address being found, so I think that ensuring the [children’s] safety needs to extend to their mother as well.[127]
[127] Transcript dated 26 February 2025, page 84, lines 30-33.
The Court Child Expert described the mother’s fear of the father as genuine. There is merit to such a conclusion if a reader of this judgment understands that the mother has been attending on a clinical psychologist so that the mother can “better process what happened to me in the past and be able to better support [the children]”.[128]
[128] Mother’s affidavit filed 3 February 2025, paragraph 310.
In Keane & Keane (2021) 62 Fam LR 190 (“Keane”) the Full Court confirmed that the task is:
93.…to analyse carefully the evidence led on behalf of the mother in relation to the impact that allowing the child supervised time with the father would have on her caregiving capacity. For present purposes however it may be accepted that there would need to be very cogent evidence that, to use the language of the Full Court in Marra & Marra, the mother's caregiving capacity would be discernibly impaired by any order that the child have time with the father (see Re Andrew, at 83,201) for such an order not to be made. Ultimately, as the Full Court has consistently observed, the lodestar is the welfare and best interests of the child, which principle now finds statutory expression in s 60CA of the Act: Re Andrew, 83,199.
The Full Court in Keane at [75] summarised the authorities relating to the “Re Andrews principle”. The impact of a genuinely held belief on the primary caregiver's ability to parent has been expressed in a variety of ways including:
a.“may so impinge upon her capacity as the primary caregiver of the children” [A & A (1998) FLC 92-800];
b.“her co-parenting capacity would deteriorate and impinge the children’s best interests” [Dunst & Dunst [2016] FamCAFC 15 at 81];
c.“as her likely being unable to continue to function effectively so as to adequately care for the children” [Hollister & Gosselin [2016] FamCA 759 at 193];
d.“genuine fears of the residential parent about such a risk may so impinge upon the parent’s capacity” [Bayer & Imhoff [2010] FamCA 532 at 177];
e.“where such anxiety is likely to impact adversely on that parents caregiving ability…” [Russell & Russell v Close SA 45 of 1992 an unreported decision of the Full Court];
f.“have an effect on the custodial parent which will impair to a significant degree the emotional support and for that matter physical support which the custodial parent can render the child” [Grant & Grant (1994) FLC 92-506 at 81-259];
In this case, the children need at least one parent who is a stable figure for them and who is able to meet their needs. There is no doubt that the mother is the children’s primary carer. The children are excelling at school, and their home life now appears to be happy and stable.
In the matter of H v R [2006] FamCA 878 the Full Court held that orders for the children to spend no time with the father were made in circumstances where the mother was so frightened of the father that any contact between the children and the father would negatively impact her parenting capacity and subsequently the welfare of the children. In the case at bar, the mother has expressed significant concerns as to the children having unsupervised contact with the father due to her fear, which as discussed above, the Court Child Expert has described as genuine. There is evidence about the potential deleterious impact on the mother from the Court Child Expert. In these circumstances, I am disinclined to make any order, which may compromise the parenting capacity of the children’s primary carer. I am fortified in arriving at such a conclusion in circumstances where the father’s parenting capacity has been untested for in excess of four years. I also share the opinion of the Court Child Expert that:
(a)The father has a “false sense of reality that the children will adjust after a brief period of time into his care”[129];
(b)The father whilst expressing a view that he can provide a better quality of parenting than the mother, has no current relationship with the children, does not know their interests, their personalities or their individual needs.
[129] Family Report dated 6 March 2024, paragraph 76.
For these reasons, and the reasons summarised above, it is not in the children’s best interests for me to make the primary or alternate orders sought by the father.
CHILDREN’S BEST INTEREST
Section 60CC(2)(a) – The arrangements that would promote the safety of the children and each person who has care of the children
I have set out above my findings. I have concluded that:
(a)The father has engaged in family violence;
(b)The children were exposed to family violence perpetrated by the father during the parties’ relationship;
(c)The children’s fear of their father is genuine irrespective of the reason(s) why the children are so fearful;
(d)The mother’s parenting capacity would be adversely affected if I make an order for the children to spend time with the father;
(e)If I make the final orders sought by the father, the children risk broken and disrupted relationships with each of their parents; and
(f)I cannot make the alternate orders sought by the father as firstly, it would be speculative to do so and secondly, the making of such orders would adversely affect the mother’s mental health and accordingly, the mother’s parenting capacity.
For these reasons, I am unable to make any order for time between the children and their father.
Section 60CC(2)(b) – any views expressed by the children
As discussed above, each of the children on interview by the Court Child Expert were “clearly rejecting any form of relationship with their father”.[130] Despite the fact that the children were interviewed separately, each of them reported “feelings of being scared or unsafe when recalling memories of their father or when pondering what time might look like with their father if they were to see him again”.[131] The male child’s resistance is such that when talking about family dynamics, the Court Child Expert identified that he was suffering from “notable body twitches”.[132] In her oral evidence, the Court Child Expert also identified that the female child was “twitchy” when discussing the prospect of time with her father. Whilst the Court Child Expert accepted that the female child might simply have been nervous, she also identified that the female child became “physically upset” when discussing her father.[133] In a manner similar to her brother, the female child was clear with respect to her desire not to see her father “stating that if he was ‘never born’ she would be happy”.[134]
[130] Family Report dated 6 March 2024, paragraph 71.
[131] Family Report dated 6 March 2024, paragraph 71.
[132] Family Report dated 6 March 2024, paragraph 71.
[133] Family Report dated 3 March 2024, paragraph 63.
[134] Family Report dated 3 March 2024, paragraph 63.
I agree with the Court Child Expert that given the ages and developmental stages of the children, caution should be taken when considering the weight that is placed on the children’s views. Given the terms of the Apprehended Domestic Violence Orders in place for the majority of the post-separation period, and the fact that the children have not seen their father for in excess of four years, their memories of him could only be their memories or what they are told by their mother. The Court Child Expert was asked about this topic by counsel for the Independent Children’s Lawyer:
Counsel for the ICL: Did you form the view that the mother was influencing the children in their views?
Court Child Expert: Look, no, the children appear genuinely fearful in my interviews with them. With that said, I think there – there was a genuine concern raised in my report that [the mother] also… [appears to have] a genuine fear, [and it] may have transferred onto to the children over the years. So, there is a potential that that has had an influence to some degree to the extent of the children’s fears. But that is the extent that I think there may have been some influence here in the matter.[135]
[135] Transcript dated 26 February 2025, page 53, lines 29-35.
In these circumstances, and having regard to the oral evidence of the Court Child Expert, I have concluded that it is not in the children’s best interests to recommence any form of relationship with their father.
Section 60CC(2)(c) – The developmental, psychological, emotional and cultural needs of the children
The children do not have any developmental delays or intellectual disabilities. The children are performing well at school and according to their school records, appear to be happy and productive members of the school community.
The evidence supports a finding that the children were exposed to family violence. Accordingly, I find myself compelled to make orders, which will protect the children’s psychological and emotional needs. Even if my finding as to family violence is erroneous, I have found that I cannot make any order, which will negatively impact the mother’s parenting capacity and subsequently the welfare of the children.
For these reasons, I cannot make any order for time between the children and their father.
With respect to the cultural needs of the children, each of the parties came from a “very traditional [Country B] family”[136] and practise Islam. Despite this, it appears that each of the children are being educated in a public school, which by its nature is secular.
[136] Mother’s Affidavit filed 3 February 2025, paragraph 18.
Neither parent was cross-examined with respect to the cultural needs of the children. Absent any evidence on the topic, and by virtue of the shared heritage of the children’s parents, I find that the mother will adequately address the cultural needs of the children.
Section 60CC(2)(d) – The capacity of each person who has or is proposed to have parental responsibility for the children to provide for the children’s developmental, psychological, emotional and cultural needs
The mother is the unchallenged primary carer of the children. Save for the mother’s inability to facilitate time between the children and their father, I have no doubt on account of the evidence before me that the mother has the capacity to provide for the needs of the children, including their emotional and intellectual needs. The Court Child Expert agreed with my assessment concluding that the mother, with the support of her husband, “is meeting the children’s day to day needs, encouraging, and promoting their education, their individual interests, and hobbies”.[137]
[137] Family Report dated 6 March 2024, paragraph 74.
Relevant to the mother’s capacity to parent the children is whether such capacity might be compromised by the making of an order for the children to spend unsupervised time with the father. If the mother’s capacity to parent is impaired by time spending arrangements with the father, then there must be an indirect risk to the children and the children’s relationship with her. The Court Child Expert expressed a view that the mother is simply unable to facilitate time between the children and their father and that if required to facilitate time, the mother’s parenting capacity will be detrimentally impacted. Similarly, the expert expressed a view that any form of communication between the parties is likely to cause increased distress for the mother.[138]
[138] Family Report dated 6 March 2024, paragraph 73.
On the unchallenged evidence, the children appear to be developing well in the primary care of the mother and performing in a satisfactory manner at school. Accordingly, I consider it is important not to prejudice the relationship between the children and the mother. As discussed above, I am concerned not to make any order, which will break and/or disrupt the relationship between the children and their primary carer.
With respect to the father, I have already made a finding that the father perpetrated family violence and exposed the children to such violence. Against this background, it was alarming to me that the father denied all allegations of family violence and was otherwise “quite critical and undermining” with respect to the mother’s parenting of the children.[139]
[139] Family Report dated 6 March 2024, paragraph 76.
My findings about the father’s lack of insight are also fortified by the father’s decision to include in his affidavit filed on 8 February 2025 allegations in relation to an alleged abortion, an extra-marital affair and allegations in relation to the mother’s mental health. The final allegation did not appear to have any evidentiary basis. The father also maintained that he could parent the children better than the mother but as identified by the Court Child Expert, the father was unable to “concretely describe why [the mother] is not meeting the needs of the children”.[140]
[140] Family Report dated 6 March 2024, paragraph 76.
For these reasons, and as a consequence of the father’s behaviour and his lack of insight, I find that the father has an impaired capacity to provide for the children’s developmental, psychological, emotional and cultural needs. When making this assessment, it also weighs on me that the father gave no evidence whatsoever, which would support a finding that he has any understanding as to the children’s current needs, personalities or their interests. It was a significant lacuna in his evidence.
Section 60CC(2)(e) – The benefit to the children of being able to have a relationship with the children’s parents, and other people who are significant to the children, where it is safe to do so
The orders, which I will make will allow the children the benefit of maintaining a relationship with their primary carer. Regrettably, I will not make an order for the children to maintain a connection with their father via cards, letters or gifts.
Counsel for the Independent Children’s Lawyer explored the issue with the Court Child Expert. Under cross-examination, the Court Child Expert said that any form of “identity contact” would have:
(a)A detrimental impact on the mother’s mental health. In any event, she questioned the mother’s capacity to facilitate any contact (whether such contact be by telephone, letters or other means);
(b)A detrimental impact on the children’s psychological wellbeing. Particularly, the Court Child Expert expressed concern about the psychological impact on the male child given he indicated when interviewed that “he would be too scared to have phone contact with his father”.
I accept the opinion of the Court Child Expert. Cross-examination of the expert on this topic does not cause me to form any alternate view.
Section 60CC(1)(b) and s 60CC(3) – Right to enjoy Aboriginal or Torres Strait Islander culture
These sections do not fall for consideration given the factual background of these proceedings because the children are not Aboriginal or Torres Strait Islander children.
Section 60CC(2)(f) – Anything else that is relevant to the particular circumstances of the children
No other consideration was addressed by the mother, the father or the Independent Children’s Lawyer.
PARENTAL RESPONSIBILITY
The father seeks an order on a final basis that he have sole parental responsibility for the children. That application was not amended despite oral amendments to other proposed orders at the commencement of closing submissions.
The mother seeks an order that parental responsibility be allocated to her.
The father makes his application in circumstances where:
(a)I have found that the father has perpetrated family violence;
(b)The mother has been making relevant decisions for the children since separation;
(c)The father acknowledges that there has been no co-parenting relationship with the mother since separation;[141]
(d)The terms of a final Apprehended Domestic Violence Order prevented the father from making any contact with the mother;[142]
(e)The parties do not know the location of the other parent and for his part, the father expressed a desire not to provide his full address to the Court;[143] and
(f)I have found that the mother’s functioning as a parent will be adversely affected if she is obliged to communicate with the father.
[141] Family Report dated 6 March 2024, paragraph 24.
[142] Exhibit W13.
[143] Father’s affidavit filed 8 February 2025, Part C.
In addition, and on account of my findings as to family violence but particularly the father’s behaviour by video recording the mother in July 2019, I am concerned that it will be difficult if not impossible for any communication about a major long-term issue to occur “on an equal footing”. I am particularly concerned about the possibility that the father might intimidate or harass the mother as he did in July 2019 if the parties are unable to agree with respect to a major long-term issue affecting the children.
The evidence supports a finding that it is in the children’s best interests for the mother to hold sole parental responsibility.
SPECIFIC ISSUE ORDERS
Restraint with respect to the making of an assertion that the father is not the father of the children
The father seeks an order that the mother and the step-father be restrained from asserting that the children’s biological father is not the father of the children. He sought a further order that the mother and the step-father be restrained from denigrating the father. The father’s counsel did not explain how I might make an order binding a third party.
The basis for the injunctive relief first described is as follows:
(a)The mother’s advice to the Court Child Expert that the children view her husband as their “Dad”;[144] and
(b)On interview by the Court Child Expert, the mother’s husband “appeared to struggle with the concept of being referred to as ‘the children’s stepfather’, correcting… [the Court Child Expert] that he feels like the children’s ‘father’ and loves them like they were his own children”.[145]
[144] Family Report dated 6 March 2024, paragraph 28.
[145] Family Report dated 6 March 2024, paragraph 29.
The father’s counsel put to the Court Child Expert that the children might be confused by the desire of their step-father to be known as their “dad”. Particularly, the father’s counsel suggested that it was “concerning” that the mother’s husband views himself as a “father figure” for the children in circumstances where the mother has only been with him for a little less than four years. In response, the Court Child Expert said as follows:
I think it’s understandable that he views himself as playing a significant role in the children’s life that would be a father figure. On the basis that he has lived in the home for several years and he does spend daily time with the children. And he’s involved in daily parenting. He plays a second caregiver to these children. So, I wouldn’t necessarily say overly concerning.[146]
[146] Transcript dated 26 February 2025, page 62, lines 14-18.
It was also put to the expert that it was “concerning” that the step-father considers himself to be the children’s father and the children refer to him as a father. In response, the Court Child Expert said that it might have been confusing for the children when they were younger. However, given the passage of time and the fact that the mother and her husband and the children are a “family unit”, the Court Child Expert did not express any concern about the fact that the children refer to their step-father as their father or that he considers himself to be so.
Clearly, by dint of their involvement in these proceedings and the male child’s engagement in the Local Court proceedings, the children know that they have a biological father.
An injunction is not, by definition, a “parenting order”.[147] The Act provides separate powers for making injunctions, parentings orders, or other orders in relation to the welfare of a child.[148] Whilst counsel did not address me on the issue, the only power afforded to me to make the injunctive orders sought by the parties is pursuant to s 68B of the Act. Section 68B is not subject to the paramountcy principle — the words of the section lack any express reference thereto. This issue has been addressed in many authorities and, as summarised in Attwood v Attwood [2022] FedCFamC1F 6, has to some extent been reconciled:
31.… Section 68B(1) of the Act states that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child. Section 68B(2) also states that the making of the order may occur in any case in which it appears to the Court to be just or convenient to do so.
32.The Full Court in Bennett v Bennett (2001) FLC 93–088 determined that the power in s 68B was not subject to the express legislative requirement that the Court must regard the best interests of the child as the paramount consideration; and even if s 68B were subject to the “best interests” principle, it is doubtful that this would displace the established common law principles contained in the authorities such as In re Boaler [1915] 1 KB 21; Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29 and Coco v R (1994) 179 CLR 427. However, the Full Court in Flanagan and Handcock (2001) FLC 93–074 considered this and referred to CDJ v VAJ (No 1) (1998) 197 CLR 172 which decided that orders that are not a parenting order do not directly invoke the application of the paramountcy principle. Nevertheless the Court agreed with the Full Court that the consideration of what is in the best interests of the child are “powerful matters to be weighed up against a competing principle such as finality”. The Full Court therefore held that in respect of the issue of an injunction under s 68B, it is incorrect to state that the “paramountcy principle” applies. However, the best interests principle needs to be given careful consideration, especially where the orders sought to be made intimately concern the welfare of the children.
33.Thus, whilst the best interests of the child is not stated explicitly as the governing principle when making an injunction under s 68B, for all practical purposes the concept provides a useful framework within which to explore whether … the injunction is appropriate for the welfare of the child, and is otherwise just or convenient[149].
[147] Hedlund v Hedlund [2021] FedCFamC1A 84 at [118].
[148] Family Law Act 1975 (Cth) s 65D(1) and s 67ZC.
[149] Attwood v Attwood [2022] FedCFamC2F 6, [31]-[33]. Emphasis added.
Having regard to Attwood and Bennett, I will consider the injunctive relief sought by giving careful consideration to the best interests of the children.
The children were aged six years and three years at the time of the parties’ physical separation. The Court Child Expert made it clear that the children know the identity of their father. However, he has not played any role in their lives since September 2020.
I accept the evidence of the Court Child Expert that given the effluxion of time, the children do indeed refer to the mother’s husband as their father and consider him to be a father figure. He is part of their family unit and has been for several years. Accordingly, I do not consider it to be in the children’s best interests to make an injunctive order in the terms sought by the father.
Insofar as the father seeks an order restraining the mother from denigrating him, I agree that it is not in the children’s best interests for their mother to denigrate the father to or in their presence or hearing. Such actions will only continue the children’s emotional turmoil. Accordingly, I will make an order, which injuncts the mother from doing so.
Injunctive relief for the personal protection of the children and the mother
The mother seeks an order pursuant to s 68B of the Act for her personal protection and the protection of the children.
The mother conceded under cross-examination that the father did not breach the terms of the Final Apprehended Domestic Violence Order, which expired in mid-2024.
Nevertheless, the children and the mother do have a fear of the father, and the Court Child Expert expressed a view that on her observation, the fear was genuine.
Given my findings with respect to the vulnerabilities of the mother and the children, I find that it is appropriate for me to make the injunctive orders sought by the mother. The making of such an order is likely to ease the mother’s anxiety and the children’s anxiety and, for this reason alone, I will make such an order.
Overseas travel
The mother seeks orders, which would permit her to remove the children from the Commonwealth of Australia for the purposes of travel absent the consent of the father. The mother also seeks orders with respect to the issue of passports to the children. The application is supported by the Independent Children’s Lawyer. It was not a topic addressed by:
(a)The mother’s affidavit filed on 3 February 2025; or
(b)Counsel for the mother or counsel for the father in their closing submissions.
The mother does not address the application by her affidavit filed on 3 February 2025.
Nevertheless, and in circumstances where I have made an order allocating sole parental responsibility to the mother, it is not necessary by operation of section 11(1)(a) of the Australian Passports Act 2005 (Cth) to make the order sought by the mother.
Application by the Independent Children’s Lawyer for costs
At the conclusion of the proceedings, the Independent Children’s Lawyer made an application for costs. The mother’s counsel invited me to reserve my decision pending the delivery of judgment. I will make orders regulating the filing of written submissions on the question of costs.
CONCLUSION
The orders set out at the commencement of these reasons are those that most capably meet the children’s best interests.
I certify that the preceding two hundred and twelve (212) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. Associate:
Dated: 22 April 2025
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