Maldonado & Maldonado (No 2)

[2024] FedCFamC1F 885

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Maldonado & Maldonado (No 2) [2024] FedCFamC1F 885

File number(s):

PAC 1079 of 2021

Judgment of:

ANDERSON J

Date of judgment:

23 December 2024

Catchwords:

FAMILY LAW – PARENTING – Unacceptable risk – Where it is the mother’s case that the father presents an unacceptable risk to the children – Where the mother asserts that the father has sexually abused a female child - Where the Court finds that the father does not present an unacceptable risk to the children

FAMILY LAW – PARENTING – Where the Independent Children’s Lawyer makes an application to restrain the mother from facilitating the attendance of the children on a psychologist – No matters of principle 

Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61B, 61C, 61D, 61DAA, 61DAB, 62B, 64B, 65AA, 65D, 65DA, 67ZC, 68B, 68F

Crimes Act 1900 (NSW)

Summary Offences Act 1988 (NSW)

Legal Professional Uniform Australian Solicitors’ Conduct Rules 2015, r 13.1

Cases cited:

Attwood & Attwood [2022] FedCFamC1F 6

Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222

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

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

Hedlund v Hedlund (2021) 64 Fam LR 458; [2021] FedCFamC1A 84

Hickson & Matthew [2022] FedCFamC1A 161

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

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

N and S and the Separate Representative (1996) FLC 92-655; [1996] FLC 92-655

U v U (2002) 211 CLR 238; [2002] HCA 36

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Division:

Division 1 First Instance

Number of paragraphs:

183

Date of last submission/s:

8 November 2024

Date of hearing:

6 – 8 November 2024 

Place:

Parramatta

Counsel for the Applicant:

Ms Wong

Solicitor for the Applicant:

Vaikom Law

Solicitor for the Respondent:

Lovemore Lawyers

Counsel for the Independent Children's Lawyer:

Ms Saw

Solicitor for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

PAC 1079 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MALDONADO

Applicant

AND:

MS MALDONADO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	ANDERSON J
DATE OF ORDER:	23 DECEMBER 2024

THE COURT ORDERS THAT:

1.All former orders in relation to the children, X born 2024 and Y born 2017 be discharged.

2.Subject to Order 17(c) herein, the mother shall 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 (“the Act”) affecting the children.

3.Notwithstanding Order 2 herein, and by no later than thirty (30) days prior to making any major decision in relation to the care, welfare and development of the children (or either of them), the mother shall notify the father in writing of the proposed decision and make genuine efforts to consult the father in relation to the same.

4.The children live with the mother.

Term time spending arrangements

5.The children spend time with the father as follows:

(a)From Saturday 28 December 2024 to Saturday 15 February 2025 (inclusive) on each Saturday between 10.00 am and 12.00 pm;

(b)On Saturday 22 February 2025 and Sunday 23 February 2025 and on the same days in each alternate week thereafter from 10.00 am to 4.00 pm on each occasion;

(c)Thereafter, from 10.00 am on Saturday 23 August 2025 to 10.00 am on Sunday 24 August 2025 and in each alternate week thereafter;

(d)Thereafter, from 10.00 am on Saturday 7 February 2026 to the commencement of school on Monday 9 February 2026 (or 10.00 am if school is not in session) and at the same times in each alternate week thereafter;

(e)Thereafter, from the conclusion of school on Friday 1 May 2026 (or 2.00 pm if school is not in session) to the commencement of school on Monday (or 10.00 am if school is not in session) and at the same times in each alternate week thereafter.

School Holidays

6.Pending the commencement of the Term 3, 2026 school holiday period the children spend time with each of their parents during all school holiday periods pursuant to the terms of Order 4 and Order 5(a) to (d) herein.

7.As and from the commencement of the Term 3, 2026 school holiday period the children spend time with each of their parents during the Term 1, Term 2 and Term 3 school holiday periods as follows:

(a)With the father for one period of eight consecutive nights commencing at the conclusion of school on Friday (or 2.00 pm if school is not in session) to 5.00 pm on the following Saturday (being nine days later) with such time to coincide with the time, which the children would ordinarily spend time with the father pursuant to the terms of Order 5(e) herein;

(b)With the mother at all other times NOTING it is the intention of these Orders that the rotation provided by Order 5(e) herein continue without interruption.

8.As and from the commencement of the December 2026/January 2027 school holiday and in each summer school holiday period thereafter, the children spend time with each of their parents as follows:

(a)With the father for one period of seven consecutive nights commencing at the conclusion of school on Friday (or 2.00 pm if school is not in session) to 5.00 pm on the following Friday and each alternate week thereafter NOTING is the intention of these orders that such time coincide with the time, which the children would ordinarily spend with the father pursuant to the terms of Order 5(e) herein;

(b)With the mother at all other times subject to Order 9 herein.

Special Occasions

9.That notwithstanding Orders 4, 5, 6 7 and 8 herein, the children spend time with each of their parents on special occasions as follows:

(a)On the occasion of a religious holiday:

(i)With the father in 2025 and in each alternate year thereafter from the conclusion of school to 8.00 pm or in the event that school is not in session, from 12.00 pm to 8.00 pm;

(ii)With the mother in 2026 and in each alternate year thereafter from the conclusion of school to 8.00 pm or in the event that school is not in session, from 12.00 pm to 8.00 pm;

(b)On the occasion of each parent’s birthday:

(i)With the mother on the occasion of her birthday from the conclusion of school to 6.00 pm or in the event that school is not in session, from 12.00 pm to 6.00 pm;

(ii)With the father on the occasion of his birthday from the conclusion of school to 6.00 pm or in the event that school is not in session, from 12.00 pm to 6.00 pm;

(c)On the occasion of each child’s birthday with the parent with whom the children are not otherwise spending time pursuant to the operation of Orders 4, 5, 6, 7 and 8 herein from the conclusion of school to 6.00 pm or in the event that school is not in session, from 10.00 pm to 2.00 pm;

(d)On the occasion of Father’s Day, with the father from 12.00 pm to 6.00 pm;

(e)On the occasion of Mother’s Day, with the mother from 12.00 pm to 6.00 pm.

Handovers

10.That handovers, which do not occur at the children’s school occur at the McDonalds Restaurant located at Suburb F.

Telephone communication

11.That the father be at liberty to communicate with the children by electronic means each Tuesday evening for a period of no more than thirty minutes on each occasion commencing at 5.30 pm.

Provision of Information

12.Each parent is permitted to communicate directly with the children’s school/s, sporting bodies, and medical practitioners to obtain any information and/or documents about the children’s progress and this Order shall constitute sufficient authority for such communication.

13.Each parent is permitted to attend at all school events and extracurricular activities to which parents are ordinarily invited to attend.

14.Each parent shall keep the other advised of the health of the children including any serious illness, medication or hospitalisation of either child as soon as reasonably practicable and to allow the other parent to visit the children if hospitalised.

15.Each parent shall keep the other advised in writing of the names and contact details of all the children’s treating medical practitioners, dentists and allied health professionals.

Communication between the parties

16.Each parent shall:

(a)Forthwith do all things necessary (including, without limitation, paying their share of any subscription fees) to establish and maintain access for each of them to such parenting application as is agreed between them and failing agreement to the parenting application “App Close”; and

(b)Unless otherwise agreed in writing or in the event of an emergency concerning the children, the parties shall utilise the parenting application to communicate in relation to all issues concerning the children.

Restraints

17.That pursuant to s 68B of the Act:

(a)The father is restrained, and an injunction is hereby granted restraining him from leaving the children in the sole care of the paternal grandfather, Mr G;

(b)The mother is restrained, and an injunction is hereby granted restraining her from facilitating any contact whatsoever between the children and Mr B;

(c)The mother is restrained, and an injunction is hereby granted restraining her form facilitating the attendance of the children or either of them on any practitioner practising at H Psychology or any other psychiatrist, psychologist, counsellor or social worker absent the consent of the father first had and obtained.

Parenting programme

18.That within seven (7) days of the making of these orders, the parties do all things necessary to enrol for acceptance into the “[M Program]” and thereafter, attend and complete such programme.

Discharge of the Independent Children's Lawyer

19.That the appointment of the Independent Children's Lawyer be discharged.

Other

20.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.

21.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.

22.All other applications pursuant to Part VII of the Family Law Act 1975 (Cth) (as amended) are dismissed.

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

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

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maldonado & Maldonado has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ANDERSON J:

INTRODUCTION

1. These proceedings brought under Part VII of the Family Law Act 1975 (Cth) (‘the Act’) concern a female child aged 11 years and a male child aged seven years.

2. The applicant is the father.

3. The respondent is the mother. The children live with her.

4. The parties commenced their relationship in 2008 and were married in 2009.[1] The parties commenced cohabitation in 2009 following their religious marriage.[2] Final separation occurred on 14 January 2021.[3]

   [1] Father’s affidavit filed 1 September 2024, paragraph 4.

   [2] Mother’s affidavit filed 10 October 2024, paragraph 12.

   [3] Mother’s affidavit filed 10 October 2024, paragraph 74.

5. On 2 March 2021, the father commenced parenting proceedings. The proceedings were transferred to Division One of the Court on 19 November 2021 because of the serious allegations, which the mother makes against the father including allegations of a sexual nature.

6. Since April 2021, the children have been spending supervised time with the father.

7. The mother asserts that:

   (a)The father denied her financial autonomy;

   (b)The father denied her an ability to make and keep connections with friends;

   (c)The father has been physically violent towards her;

   (d)The children have been exposed to family violence;

   (e)The father has sexually assaulted the elder child; and

   (f)The father represents an unacceptable risk of psychological and physical harm to the children.

8. For these reasons, the mother asserts that it is not appropriate for the Court to make any order for time between the children and their father. As an alternate position, the mother asserts that supervised time is the only mechanism to promote the safety of the children.

9. The father denies all allegations of family violence including any allegation that he has physically assaulted the mother or sexually assaulted the elder child.

10. The mother as her primary position does not promote any orders for time between the children and the father. As an alternate position, the mother promotes supervised time. As discussed below, the mother did tender a document with respect to orders, which she says ought to be made in the event that I conclude that the father does not present a risk of harm to the children.[4] For his part, the father by the conclusion of trial sought orders that during school term time, the children spend time with him on two nights per fortnight in addition to time during school holiday periods.

    [4] Exhibit M2.

11. Accordingly, the dispute between the parties is whether:

    (a)The Court ought to make no order for time between the children and their father;

    (b)The current arrangements for supervised time between the children and their father on a fortnightly basis ought to be reduced such that the children spend supervised time with him on 12 occasions each year only; and

    (c)The children’s time with the father ought to progress to unsupervised time.

12. In order to determine the dispute between the parties, I must determine certain issues. The principal issues, which fall for determination by me can be summarised as follows:

    (a)Does the father pose an unacceptable risk of harm to the children?

    (b)If the answer to the first question is in the affirmative, is it in the children’s best interests for the Court to make an order to the effect that the children spend no time with the father or is it in their interests to spend supervised time with the father?

    (c)If the answer to the first question is in the negative, how might the children’s time with the father be progressed in a manner, which is consistent with their best interests?

13. Before I answer these three questions, I note one peculiarity with respect to the conduct of these proceedings. That is, and on the morning of the first day of trial, I was advised by the parties’ counsel and counsel for the Independent Children’s Lawyer that the parties would benefit from the opportunity to negotiate. I determined that it was in the children’s interests for their parents to do so but I expressed scepticism about the outcome of any negotiation given the polarised position of the parties.

14. Shortly prior to the luncheon adjournment, I was advised that an agreement had been reached between the parties and the Independent Children’s Lawyer albeit that the agreement had to be reduced to writing. At that juncture, I addressed the parties and advised them that if a consent position between the parties had been reached, then necessarily it must follow that the mother did not maintain that the father represents an unacceptable risk of harm to the children.

15. By the conclusion of the luncheon adjournment, I had still not received the proposed terms of settlement. Given the serious nature of the allegations made by the mother, I invited the parties and the Independent Children’s Lawyer to complete an Annexure to Proposed Consent Parenting Order. Each annexure completed by the parties and the Independent Children’s Lawyer was marked as an exhibit in the proceedings.[5] For reasons, which will be obvious to a reader of this judgment, I was most concerned to read the answer provided by the mother in response to various questions contained in the annexure. The mother’s Annexure to Proposed Consent Parenting Order at Part C, read as follows:

    The Orders proposed and agreed mitigates and addresses allegations and risk issues.[6]

    [5] Exhibits F1, M1 and ICL1.

    [6] Exhibit M1, Part C.

16. I was concerned about that assertion in circumstances where I had not been persuaded that the “allegations and risk issues” had in fact been addressed by the terms proposed by the parties. The mother either believed that the father had sexually assaulted the elder child, or she did not. While in many forms of civil litigation, a concession by a party that they do not seek particular factual conclusions will conclude such issues, the particular characteristics of the jurisdiction conferred by the Act meant that the factual assertions made by the mother could not simply be ignored.

17. It is well recognised from cases such as U v U and M v M that litigation under the Act in respect of children is not strictly inter partes.[7]  A frequent recognition of this lies in the consideration by the Court (after according procedural fairness) of outcomes for children that do not accord with the proposals of any of the parties to the litigation.

    [7] U v U (2002) 211 CLR 238; M v M (1998) 166 CLR 69.

18. In U v U, Gummow and Callinan JJ observed as follows:[8]

    The parties in cases concerning the welfare of children do not define the issues.  It is div 4 (s63A-s63H) of Pt VII, headed ‘parenting plans’, which does that.  For example parties may not even make or vary an enforceable parenting plan without the approval, that is to say the intervention, of the court (s63B-63H).

    [8] U v U (2002) 211 CLR 238 at 72.

19. Their Honours then identified that s 68F (the forebear of s 60CC) was especially important to the “detailed prescription for determining the best interests of the child” which they noted is the paramount consideration.[9]

    [9] U v U (2002) 211 CLR 238 at 73.

20. That is not to say, as was identified by Hayne J in that same case, that the Family Court may “embark upon some roving enquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest.”[10]

    [10] U v U (2002) 211 CLR 238 at 172.

21. In this case, although the mother resiled from the position that the Court should find that the sexual and other abuse took place, and/or that the father presented an unacceptable risk of harm to the children, she did not resile from the evidence, which she originally led in pursuit of such conclusions.

22. In circumstances where I was concerned about the children’s best interests, and in circumstances where my concern had been echoed by submissions made by counsel for the Independent Children’s Lawyer, I determined that I would hear evidence from the mother herself.

23. On hearing from the mother, it became evident to all persons in the Court room that the mother maintained a belief that the father had sexually assaulted the elder child. In fact, the mother’s solicitor advocate made a submission that his client maintained the allegations set out in her affidavit filed on 10 October 2024 to the effect that the elder child had been sexually abused by the father.

1. It was my opinion that given the maintenance of this belief, I must hear and determine the evidence.

2. Having arrived at that conclusion, the mother’s solicitor advocate made an application to withdraw from the proceedings. The submissions made in support of that application did not persuade me that the criteria identified by Rule 13.1 of the Legal Professional Uniform Australian Solicitors’ Conduct Rules 2015. Accordingly, I dismissed the application made by the mother’s solicitor advocate and the trial commenced.

   BACKGROUND

3. The parties began living together in 2009.

4. In 2010, the mother fell pregnant but suffered a miscarriage. She says that the miscarriage occurred because the father enforced a cleaning roster at the parties’ home.[11] The mother fell pregnant a second time and she gave birth to the elder child in 2014.

   [11] Mother’s affidavit filed 10 October 2024, paragraph 20.

5. In 2017, the mother fell pregnant again. The mother says that during her first appointment with respect to the pregnancy at a local hospital, she informed a midwife of the “abuse perpetrated by the father”.[12] She says that because of her disclosure, she and the father were afforded counselling at the hospital.[13] The mother gave birth to the younger child in 2017. The mother conceded under cross-examination by the father’s counsel that the counselling related to the mother’s dissatisfaction that the father would go out to pursue his own activities and ignore her.

   [12] Mother’s affidavit filed 10 October 2024, paragraph 27.

   [13] Mother’s affidavit filed 10 October 2024, paragraph 27.

6. The mother says that after the birth of each child, she assumed responsibility for the children’s care. She asserts that she has always been the children’s primary carer.[14]

   [14] Mother’s affidavit filed 10 October 2024, paragraph 30.

7. For his part, the father worked on a full-time basis as a tradesperson.[15] The mother asserts that the father took no interest in the care of the children save that he would transport them to a medical clinic from time to time because he would not permit the mother to go anywhere by herself.[16]

   [15] Mother’s affidavit filed 10 October 2024, paragraph 32.

   [16] Mother’s affidavit filed 10 October 2024, paragraph 35.

8. The relationship between the parties concluded in January 2021. At that time, the mother says that she “fled” the former matrimonial home and lived in temporary housing together with the children.[17] The catalyst for the separation appears to have been a request by the father for the elder child to sit on his lap. The mother says that she was “highly concerned” by the request due to previous incidents, which had occurred.[18] I infer for the reasons discussed below that those incidents included alleged incidents between the father and his niece.

   [17] Mother’s affidavit filed 10 October 2024, paragraph 72.

   [18] Mother’s affidavit filed 10 October 2024, paragraph 72.

9. As discussed above, the mother makes several allegations with respect to family violence. Particularly, the mother says that the father perpetrated family violence by:

   (a)Denying the mother financial autonomy;

   (b)Denying the mother the opportunity to make or keep connections with friends;

   (c)Making derogatory taunts;

   (d)Exposing the children to family violence by causing property damage;

   (e)Physically assaulting the mother on at least two occasions; and

   (f)Sexually assaulting the elder child on three occasions.

10. The mother also asserts that the father has on three separate occasions assaulted his niece by “touching her buttocks” and that otherwise,[19] the father watches pornography and engages the services of sex workers. The implication of these allegations is that the father presents an unacceptable risk of harm to the children the subject of these proceedings. Indeed, the mother by her written closing submissions, invites me to find that the father has sexually abused the elder child and that the father poses an unacceptable risk of physical and psychological harm to the children.[20]

    [19] Mother’s affidavit filed 10 October 2024, paragraph 63.

    [20] Exhibit M4.

11. The competing applications were listed before a Judge of Division 2 of the Court on 15 April 2021. Since then, the children have spent supervised time with the father.

    COMPETING PROPOSALS

    Father’s application

12. By his (Amended) Initiating Application filed on 2 March 2021, the father sought orders that:

    (a)The parties have equal shared parental responsibility for the children; and

    (b)The children live with the mother and spend time with the father as follows:

    (i)On each alternate weekend from 5.30pm on Friday to the commencement of school on Monday (or the commencement of school on Tuesday if the Monday is a non-school day); and

    (ii)On each Thursday from the conclusion of school until the commencement of school on Friday; and

    (iii)On special occasions.

13. At the commencement of the trial, the father altered his position such that:

    (a)The father agreed to an order that the mother have sole decision-making authority in relation to all major long-term issues concerning the children. However, the father sought an order that he be consulted by the mother not less than 14 days prior to any major decision being made in relation to a major long-term issue; and

    (b)The father abandoned his application to spend time with the children for five nights per fortnight. Instead, and after a period of gradually increasing time, the father sought orders that from Term One in 2025, the children spend time with him on each alternate weekend from the conclusion of school on Friday to 5.00pm on Sunday.[21] The father also sought orders to the effect that the children spend time with him for half of each school holiday period.

    [21] Exhibit F3.

14. The father also invites the Court to make orders for telephone communication and several other orders regulating changeovers, communication between the parties, access to information in relation to the children and injunctive orders restraining the parties from discussing these proceedings or the contents of any documents filed in these proceedings with the children.

    Mother’s primary application

15. The mother moved on her (Amended) Response to an Initiating Application filed on 16 November 2023. By that document, the mother invites me to make the following orders:

    (a)The mother have sole parental responsibility for the children;

    (b)The mother “be the only person with ‘parental responsibility’ for the purposes of applying for, and being issued with, Australian passports for the children”; and

    (c)The mother be permitted to remove the children from the Commonwealth of Australia for the purposes of travel without the need to obtain the consent of the father.

16. The mother does not promote any orders for time between the children and their father. In the event that the mother’s application is not successful, the mother promotes the continuation of supervised time albeit on one occasion per month only as opposed to two occasions per month in accordance with orders made in November 2023.

    Mother’s alternate application

17. In the event that the mother’s primary application as summarised above is not successful, then the mother promotes an order in the following terms:

    (a)The mother have sole parental responsibility for the children. However, the mother agreed as an alternate position that she be compelled to advise the father of a proposed major decision and obtain his input in respect of such a decision;

    (b)The elder child continue to spend supervised time with the father at a contact service until such time as she attains the age of 12 years in 2026;

    (c)The younger child spend time with the father:

    (i)For a period of three months on each alternate Saturday and Sunday between 10.00 am and 5.00 pm;

    (ii)Thereafter from 10.00 am on Saturday to 5.00 pm on Sunday; and

    (d)As and from the elder child’s birthday in 2026, the children spend time with the father on each alternate weekend from the conclusion of school on Friday to 5.00 pm on Sunday.

18. It follows that with respect to time between the children and their father during the school term, the father and the mother by her alternate application each promote the same ultimate order save that:

    (a)The mother wishes for the elder child’s time with the father to be supervised until her birthday in 2026 whereas the father promotes the immediate commencement of unsupervised time; and

    (b)On the father’s case, the children would be spending time with him on each alternate weekend from the conclusion of school on Friday to 5.00pm on Sunday commencing in Term One, 2025. On the mother’s case, this would not occur until after the occasion of the elder child’s twelfth birthday, which falls in 2026.

19. With respect to school holiday periods, each party promotes an outcome where ultimately, the children spend half of each school holiday period with each of their parents. For his part, the father seeks orders that he commence spending time with the children during school holiday periods commencing from the Term 1 school holiday period in 2025. The mother does not wish for such time to occur until the Term 1 school holiday period in 2027.[22]

    [22] Exhibit M2.

20. In a manner similar to the father, the mother seeks orders regulating the children’s time with the parties on special occasions, changeovers, communication between the parties and access to information in relation to the children. The mother also seeks an injunctive order restraining the father from leaving the children in the sole care of the paternal grandfather.

    Application of the Independent Children’s Lawyer

21. The Independent Children’s Lawyer reserved her position as to the terms of final orders pending the completion of the parties’ evidence.

22. At the conclusion of the Trial, the Independent Children’s Lawyer promoted orders to the effect that during school term time, the children spend time with the father from the conclusion of school on Friday to the commencement of school on Monday. On the proposal of the Independent Children’s Lawyer, such an arrangement would not commence for a period of 18 months. During the intervening period, the Independent Children's Lawyer promoted four stages of gradually increasing time.

23. The Independent Children’s Lawyer did not promote an extension of the children’s time with the father during school holiday periods until the children begin spending time with their father on alternate weekends.

24. As discussed below, the Independent Children’s Lawyer also sought an injunction preventing the mother from facilitating the attendance of the children (or either of them) on a firm of psychologists.

    EVIDENCE

25. The father relied upon:

    (a)The father’s affidavit filed on 1 September 2024; and

    (b)Some tendered documents.[23]

    [23] Exhibits F1 to F3.

26. The mother relied on:

    (a)The mother’s affidavit filed on 10 October 2024; and

    (b)Some tendered documents.[24]

    [24] Exhibits M1 to M4.

27. The Independent Children’s Lawyer relied on:

    (a)A Family Report published on 12 September 2023; and

    (b)Some tendered documents.[25]

    [25] Exhibits ICL1 to ICL 9.

    PARENTING PROCEEDINGS – LEGAL PRINCIPLES

28. 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

29. 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).

30. 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

31. 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.

32. 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.

33. 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.

34. 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.

35. 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.

36. As the facts referred to above make plain, this is a case about risk.

37. 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.[26]

    (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.

    [26] Briginshaw v Briginshaw (1938) 60 CLR 336.

38. 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.

39. 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.

40. The Court in Isles also referred to 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)

41. In Isles, the Court at [35] went on to quote Tree J in Bant v Clayton (2015) 53 Fam LR 621:

    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.

42. 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.

43. 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)

1. I have read the parties material and listened to their submissions. It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered.[27] Nor have I done so. However, every piece of evidence relied upon by the parties has been read and considered by me.

   [27] Whisprun Pty Ltd v Dixon (2003) 200 ALR 447.

   CONSIDERATION AND DETERMINATION

2. At the conclusion of the trial, the mother’s counsel provided me with written submissions, which invited me to make several findings. By reference to that document and the mother’s affidavit filed 10 October 2024, I summarise the mother’s allegations against the father as follows:

   (a)The father engaged in family violence by not permitting the mother to “make friends or go anywhere by [herself]”;[28]

   (b)The mother was forced by the father and the paternal grandmother “to quit work and stay at home” after she fell pregnant in 2010;[29]

   (c)The mother suffered a miscarriage as a consequence of the father’s failure to afford her appropriate medical treatment;[30]

   (d)The father slapped the mother twice on her right cheek in about 2010 after the mother asked him whether he was having an affair;[31]

   (e)In 2013, the parties had an argument “regarding [the father’s] loss of connection with the children and [the mother]”. The mother says that the father became aggressive during the argument “and slapped me across my face several times”;[32]

   (f)The father would verbally abuse the mother by using “derogatory and inflammatory language in [Country J LanguageI] and English”;[33]

   (g)The father would punch doors and walls in front of the children;[34]

   (h)In 2019, and as a consequence of a robbery at the parties’ home, the parties went to live with the children’s paternal aunt for a short period. The mother says that whilst at the paternal aunt’s home, the parties had an argument. On an unspecified date, the mother says that the father prevented her from entering the home of the paternal aunt. The mother provides no further detail about the period for which she was allegedly prevented from doing so;[35]

   (i)The father would verbally abuse and swear at the children in the presence of third parties;[36] and

   (j)The father controlled the parties’ financial affairs such that he “kept [the mother’s] bank card with him at all times”. In effect the mother asserts that she was obliged to ask the father for money to purchase necessities and food.[37]

   [28] Mother’s affidavit filed 10 October 2024, paragraph 18.

   [29] Mother’s affidavit filed 10 October 2024, paragraph 43.

   [30] Mother’s affidavit filed 10 October 2024, paragraph 44.

   [31] Mother’s affidavit filed 10 October 2024, paragraph 47.

   [32] Mother’s affidavit filed 10 October 2024, paragraph 48.

   [33] Mother’s affidavit filed 10 October 2024, paragraph 49.

   [34] Mother’s affidavit filed 10 October 2024, paragraph 52.

   [35] Mother’s affidavit filed 10 October 2024, paragraph 51.

   [36] Mother’s affidavit filed 10 October 2024, paragraph 54.

   [37] Mother’s affidavit filed 10 October 2024, paragraph 58.

3. In addition to the allegations referred to above, the mother says in her written evidence that she holds “very serious concerns in relation to the father’s sexually explicit nature”.[38] The particulars, which support this allegation are as follows:

   (a)The mother says that in late 2017, she observed the father’s hands inside the eldest child’s diaper. She says that she confronted the father with respect to his behaviour;[39]

   (b)In mid-2019, and whilst the parties were shopping with the father’s niece, the mother says that the father assaulted his niece by touching her on the buttocks. The mother says that the father’s niece subsequently informed her that this had occurred on three separate occasions;[40]

   (c)In about 2020, the mother says that she discovered an SD card, which had been used in a dashcam attached to the father’s motor vehicle. She says that she was “shocked to discover multiple recordings which captured the father playing pornographic content in the vehicle while he was driving and whilst the vehicle was stationary. This included occasions when the father was on his way to pick the children up from school”.[41] The mother also says that the SD card captured the father making a telephone call to arrange for the services of a sex worker;[42]

   (d)In late 2020, and whilst the parties were carrying the two children in from their motor vehicle, the mother says that she witnessed the father “grab hold of [the elder child’s] private parts from the back”;[43] and

   (e)On 11 January 2021, the father asked the elder child to sit on his lap. The mother says that she was concerned about this “due to the previous incidents which had occurred”. Three days later, the mother says that she “fled the matrimonial home with the children” and lived in temporary housing.[44]

   [38] Mother’s affidavit filed 10 October 2024, paragraph 58.

   [39] Mother’s affidavit filed 10 October 2024, paragraph 59.

   [40] Mother’s affidavit filed 10 October 2024, paragraph 63.

   [41] Mother’s affidavit filed 10 October 2024, paragraph 68.

   [42] Mother’s affidavit filed 10 October 2024, paragraph 69.

   [43] Mother’s affidavit filed 10 October 2024, paragraph 71.

   [44] Mother’s affidavit filed 10 October 2024, paragraph 72.

4. I will address the allegations made by the mother below.

   Family Violence

   Denial of financial autonomy and preventing the mother from making or keeping connections with friends

5. The only evidence provided by the mother with respect to her assertion that the father denied her financial autonomy is as follows:

   The father was also very controlling. He controlled the financial affairs during the marriage. The father kept my bank card with him at all times. If I needed money for food or necessities for the children, the father would state words to the effect of “I do not have any money”.[45]

   [45] Mother’s affidavit filed 10 October 2024, paragraph 56.

6. In response, the father says that:

   (a)He purchased food and necessities for the household;

   (b)He paid for the children’s daycare and other household expenses;[46] and

   (c)Early in the relationship, the parties had a joint account, but the mother never used it. Accordingly, the account was closed after a period of two years. When the mother commenced employment, the father says that the mother directed her earnings to an account in her own name.[47]

   [46] Father’s affidavit filed 1 September 2024, paragraph 37.

   [47] Father’s affidavit filed 1 September 2024, paragraph 37.

7. The mother did not advise the Court Child Expert when she was interviewed on 14 August 2023 that the father denied her financial autonomy. In fact, she does not raise any topic relating to the parties’ finances. Neither the mother’s solicitor nor counsel for the Independent Children’s Lawyer cross-examined the mother on the topic and it was not the subject of closing submissions made orally and in writing by the mother’s counsel.

8. I also find that the mother’s assertion is inconsistent with the unchallenged evidence of the father to the effect that:

   (a)During the periods when the mother was employed, she had her own account;

   (b)The mother received payments from Centrelink; and

   (c)In about 2019, the mother had saved sufficient monies to enable her to purchase a motor vehicle.[48]

   [48] Father’s affidavit filed 1 September 2024, paragraph 37.

9. Even if my finding about the inconsistencies referred to above is erroneous, the evidence is not sufficiently strong for me to make any factual finding to the effect that the father denied the mother financial autonomy.

10. With respect to the second topic, namely, an allegation that the father prevented the mother from making or keeping connections with friends, the only evidence is found at paragraph 35 of the mother’s affidavit filed on 10 October 2024, wherein the mother says the following in the context of a complaint about the father’s lack of preparedness to spend time with the children:

    The only time the father would take the children anywhere was to the doctors when they felt sick as the father would not allow me to go anywhere by myself.[49]

    [49] Mother’s affidavit filed 10 October 2024, paragraph 35.

11. The mother did not make such an allegation when she was interviewed by the Court Child Expert on 14 August 2023. It was not the subject of the oral or written submissions made by the mother’s counsel.

12. The mother’s assertion is also inconsistent with the following:

    (a)The mother’s written evidence to the effect that the father worked from 8.00 am to 4.00 pm on weekdays as well as on alternate Saturdays.[50] Neither party was challenged as to the accuracy of this assertion. Assuming it to be correct, the mother gave no reason whatsoever as to why she was unable to leave the former matrimonial home during these extensive periods of time and pursue friendships or activities of interest to her;

    (b)The father’s written evidence that he would leave the former matrimonial home for about three to four days per month for religious programs.[51] This would have provided the mother with an opportunity to pursue friendships and interests outside of the former matrimonial home. The father was not challenged with respect to his evidence;

    (c)The mother’s complaint by her written evidence that she would “plead with [the father] to spend time with [the children] and the family in general”. In support of that assertion, the mother says that she recalls saying the words “Are you even their father?”[52] The mother also advised the Court Child Expert that the father was “never present ‘like other fathers’”.[53] Again, and if the father was an absent parent as asserted by the mother, it is surprising that the mother did not seize the opportunity to explore friendships and opportunities outside the former matrimonial home; and

    (d)The father’s assertion that after the parties’ marriage he arranged employment for the mother through a neighbour who ran a business.[54] The father was not challenged with respect to his evidence. It inconsistent with an assertion by the mother that she was not allowed to go anywhere by herself.[55]

    [50] Mother’s affidavit filed 10 October 2024, paragraph 32.

    [51] Father’s affidavit filed 1 September 2024, paragraph 13.

    [52] Mother’s affidavit filed 10 October 2024, paragraph 33.

    [53] Family Report dated 12 September 2023, paragraph 16.

    [54] Father’s affidavit filed 1 September 2024, paragraph 26.

    [55] Mother’s affidavit filed 10 October 2024, paragraph 35.

13. I accept that the mother may have felt isolated as a consequence of her migration to Australia from Country J. Particularly, I note that the mother’s parents remained in Country J.[56] I also accept that the mother may have felt isolated in circumstances where despite purchasing a motor vehicle, she did not have a driver’s licence.[57] However, cross-examination of the parties did not assist me to resolve the factual controversy between the parties. The mother’s evidence for the reasons summarised above is inconsistent and, in any event, the evidence is not sufficiently strong for me to make any factual finding to the effect that the father denied the mother an ability to leave the former matrimonial home from time to time to pursue her own interests.

    Was the mother forced by the father and the paternal grandmother “to quit work and stay at home” after she fell pregnant in 2010?

    [56] Father’s affidavit filed 1 September 2024, paragraph 24; Family Report dated 12 September 2023, paragraph 16.

    [57] Father’s affidavit filed 1 September 2024, paragraph 20.

14. The mother says that on becoming pregnant on the first occasion, “the father’s family forced me to quit work at…but continued to enforce the strict 7-day roster of cleaning at home”.[58] The father denies the existence of a cleaning roster and denies that either he or his parents forced the mother to quit her employment. Neither party was cross-examined with respect to the mother’s allegation. Accordingly, in the face of an assertion and a denial, and in the absence of any cross-examination on the topic, the evidence is not sufficiently strong for me to make any factual finding to the effect that the father and the paternal grandmother forced the mother to quit work and stay at home after she fell pregnant in 2010.

    Did the mother suffer a miscarriage as a consequence of the father’s failure to afford her appropriate medical treatment?

    [58] Mother’s affidavit filed 10 October 2024, paragraph 20.

15. The facts, which support the mother’s allegation can be summarised as follows:

    (a)The mother says that she was around nine weeks pregnant when she woke up in the night with severe stomach pain. She says that the father refused to get up to assist her;[59]

    (b)The following day, the mother attended work because she was “covering a shift for the main administrator”. The mother says that she fainted at work and asked the father to take her to the doctor. She says that the father refused to do so but did take her to the doctor when he completed his employment at 5.00 pm;[60] and

    (c)The following day, the mother says that she was admitted to K Hospital where she remained for a period of one week. The mother was at that time advised that she had miscarried.[61]

    [59] Mother’s affidavit filed 10 October 2024, paragraph 44.

    [60] Mother’s affidavit filed 10 October 2024, paragraph 45.

    [61] Mother’s affidavit filed 10 October 2024, paragraph 46.

16. The father deposes to the mother receiving intervention at K Hospital prior to the miscarriage.[62] He also deposes to taking the mother to receive medical attention on every occasion that she was sick in 2010 and says that he received “multiple viable warnings” from his employer to the effect that his employment would be terminated because he took significant time off work to care for the mother.[63] The father was not challenged about his evidence by the mother’s counsel or the Independent Children’s Lawyer. Similarly, the mother was not challenged about her version of events. Simply, the evidence is not sufficiently strong for me to make any factual finding to the effect that the mother’s miscarriage was caused by any action on the part of the father. Indeed, the evidence suggests that the mother received medical attention on two occasions with the assistance of the father and the mother did not produce any medical evidence to support her assertion.

    [62] Father’s affidavit filed 1 September 2024, paragraph 29.

    [63] Father’s affidavit filed 1 September 2024, paragraph 27.

    Physical assault of the mother

17. The mother alleges that:

    (a)The father slapped her twice on her right cheek in about 2010 after the mother asked him whether he was having an affair;[64] and

    (b)In 2013, the parties had an argument “regarding [the father’s] loss of connection with the children and [the mother]”. The mother says that the father became aggressive during the argument “and slapped me across my face several times”.[65]

    [64] Mother’s affidavit filed 10 October 2024, paragraph 47.

    [65] Mother’s affidavit filed 10 October 2024, paragraph 48.

18. With respect to the first allegation, the mother alleges that she observed the father engaging with a female on social media. On raising it with the father, the mother says that the father became aggressive and after a brief oral exchange, “slapped” the mother on her right cheek.[66] The father by his written evidence denies the allegation.[67] The father was not cross-examined about the allegation by the mother’s solicitor or counsel for the Independent Children’s Lawyer. Accordingly, the evidence is not sufficiently strong to enable me to make any finding.

    [66] Mother’s affidavit filed 10 October 2024, paragraph 47.

    [67] Father’s affidavit filed 1 September 2024, paragraph 30.

19. The second allegation made by the mother relates to an event in 2013. She says that the father “slapped her across my face several times” because it was the mother’s perception that the father had lost his connection with the children and the mother.[68] During cross-examination of the mother, the father’s counsel put the following:

    [68] Mother’s affidavit filed 10 October 2024, paragraph 48.

    Father’s counsel:        You argued with him in 2013 [and asserted] that he had lost his connection with you and the children?

    Mother:  Yes.

    Father’s counsel:        That was upsetting to you wasn’t it?

    Mother:  Yes.

    Father’s counsel:        He was not a good father?

    Mother:  No, he wasn’t.

    Father’s counsel:        He wasn’t interest in spending time with you?

    Mother:  No.

20. It follows that the mother was not cross-examined with respect to the allegation of assault, which occurred at the same time as the parties had a discussion about the father’s loss of connection with the children. Further, the cross-examination overlooked the obvious point, namely, that at the time of the alleged assault, the children had not been born. This being so, the mother’s allegation is a nonsense because the parties could not have been arguing about the father’s loss of connection with children who had not been born. The mother’s counsel also failed to cross-examine the father with respect to the mother’s allegation or challenge the father’s denial that he assaulted the mother.[69]

    [69] Father’s affidavit filed 1 September 2024, paragraph 32.

21. The evidence is not sufficiently strong for me to make any factual finding to the effect that the father physically assaulted the mother on any occasion.

    Verbal assaults of the mother

22. The mother alleges that the father would verbally assault her by using “derogatory and inflammatory language in [Country J Language] and English”.[70]

    [70] Mother’s affidavit filed 10 October 2024, paragraph 49.

23. The topic was not directly addressed by the father’s affidavit filed 1 September 2024. By that document, however, the father says:

    (a)The mother would raise her voice and scream at him if she perceived that the father was not assisting adequately with the care of the children or with household tasks;[71]

    (b)The mother would instigate arguments and “call me at work and yell and scream and annoy me”’;[72] and

    (c)The mother would “swear at him in [Country J Language] and castigate him”.[73]

    [71] Father’s affidavit filed 1 September 2024, paragraph 20.

    [72] Father’s affidavit filed 1 September 2024, paragraph 35.

    [73] Family Report dated 12 September 2023, paragraph 19.

24. The father was not challenged with respect to the above evidence.

25. The father was asked three questions about the mother’s allegation by the mother’s solicitor. The cross-examination proceeded as follows:

    Mother’s solicitor:       When you yelled at the mother, you would call her dumb?

    Father:  It’s possible.

    Mother’s solicitor:       You would also use inflammatory and derogatory language in [Country J Language]?

    Father:No.

    Mother’s solicitor:       You might have said it but don’t recall?

    Father:No.

26. The father’s concession that “it’s possible” that he would refer to the mother as “dumb” is sufficient for me to find that the father did speak to the mother in a derogatory fashion. It is also consistent with the mother’s report to the Court Child Expert that the father was verbally abusive during the relationship.[74] Given that he was not challenged with respect to his evidence, I also consider it more likely than not that the mother would on occasion denigrate the father. This being so, I find that each party engaged in family violence during the relationship by addressing each other in derogatory language.

    [74] Family Report dated 12 September 2023, paragraph 19.

    Did the father punch doors and walls in front of the children?

27. The mother says as follows with respect to her allegation:

    The father and I often had arguments but I would remain calm to avoid arguing in the presence of the children. This however would not stop him from arguing further. He would punch doors and walls in front of the children.[75]

    [75] Mother’s affidavit filed 10 October 2024, paragraph 52.

1. On interview by the Court Child Expert in August 2023, the father conceded that “on one occasion, he became really angry because [the mother] “wouldn’t stop arguing”, and that he punched a wall and put a hole in it”.[76] The Court Child Expert makes the obvious point, namely, that “punching walls or other objects is extremely threatening, and can be frightening for anyone who may witness this”.[77] Under cross-examination, the father sought to walk away from his concession by describing the hole in the wall as a “dent”. He said that this occurred whilst the children were sleeping. He did, however, demonstrate some insight by conceding that his behaviour does not set a good example for the children. The father was not otherwise cross-examined as to the mother’s generalised allegation that the father “would punch doors and walls in front of the children”.

   [76] Family Report dated 12 September 2023, paragraph 21.

   [77] Family Report dated 12 September 2023, paragraph 63.

2. I find that the father did engage in family violence on at least one occasion by causing property damage to the property shared by the parties.

   Verbal abuse of the children in the presence of third parties

3. The mother says that the father would verbally abuse and swear at the children in the presence of third parties.[78] The mother says that the father would do so in circumstances where she often observed the father “not to have patience with the children”. She says that she observed him to become frustrated with the children in public places.[79]

   [78] Mother’s affidavit filed 10 October 2024, paragraph 54.

   [79] Mother’s affidavit filed 10 October 2024, paragraph 54.

4. The father was not cross-examined by the mother’s counsel with respect to the above allegation. It was not a topic addressed by the father’s written evidence. In any event, the mother’s counsel put a proposition to the father, which was inconsistent with the mother’s allegation. The exchange between the mother’s solicitor and the father proceeded as follows:

   Mother’s solicitor:       Do you recall [advising the Family Report Writer] that you do not find any aspect of parenthood challenging and that you could just look at the children and they would be quiet?

   Father:I do not recall.

   Mother’s solicitor:       Do you say that if the children were misbehaving they would be quiet just by you looking at them?

   Father:Not always, no. There were days they would.

   Mother’s solicitor:       This is because the children are scared of you?

   Father:No.

5. The proposition being advanced by the mother’s solicitor was to the effect that the father would only need to look at the children in order to persuade the children to behave appropriately. Such a proposition is inconsistent with the position advanced by the mother in her written evidence to the effect that the father would verbally abuse the children if he became frustrated with them. On the case advanced by the mother’s solicitor during cross-examination, it would seem that the father would not need to say anything to control the children’s behaviour.

6. In any event, the written and oral evidence was not sufficiently strong for me to make any factual finding to the effect that the father verbally abused the children as so asserted.

   Sexual Abuse allegations

7. The mother asserts by her written evidence that the father sexually abused the elder child in late 2017, late 2020 and 11 January 2021. The evidence, which supports this allegation is as follows:

   (a)In late 2017, the mother says that she observed the father’s hands inside the eldest child’s diaper. She says that she confronted the father with respect to his behaviour;[80]

   (b)In late 2020, and whilst the parties were carrying the two children in from their motor vehicle as the children had fallen asleep, the mother says that she witnessed the father “grab hold of [the elder child’s] private parts from the back”;[81] and

   (c)On 11 January 2021, the father asked the elder child to sit on his lap. The mother says that she was concerned about this “due to the previous incidents which had occurred”. Three days later, the mother says that she “fled the matrimonial home with the children” and lived in temporary housing.[82]

   [80] Mother’s affidavit filed 10 October 2024, paragraph 59.

   [81] Mother’s affidavit filed 10 October 2024, paragraph 71.

   [82] Mother’s affidavit filed 10 October 2024, paragraph 72.

   Late 2017 incident

8. With respect to the first incident, the mother says that in late 2017, she observed the father’s hands inside the eldest child’s diaper. She says that she confronted the father with respect to his behaviour and asked, “What are you doing?”[83] She says that the father responded by saying “You are a dirty thinker. There was this dirty smell which I was checking”.[84] The mother also says that:

   (a)She “was shocked and did not know what to believe as [she] had just changed [the elder child’s] diaper”; and

   (b)She was horrified and crying such that the maternal grandmother who was living with the parties at the time came out from her bedroom to comfort the mother.[85] The mother did not produce any affidavit in the name of the maternal grandmother.

   [83] Mother’s affidavit filed 10 October 2024, paragraph 59.

   [84] Mother’s affidavit filed 10 October 2024, paragraph 59.

   [85] Mother’s affidavit filed 10 October 2024, paragraph 60.

9. The father denies the mother’s allegation. Particularly, the father by his written evidence said that:

   I used to change both my kid’s nappies from the time when they were born.

   I need to touch the bottom to put the cream on the nappy rash. I even told [the mother] when [the elder child] was born, she should change her nappies, as she is a girl, but she said to me “you are the father, you should do it”.[86]

   [86] Father’s affidavit filed 1 September 2024, paragraphs 39 – 40.

10. Under cross-examination, the father denied any allegation that he had behaved inappropriately. He said that he never put his hand inside the elder child’s diaper and would check the diaper from the outside to determine whether it had to be changed. He also said that from time to time and at the request of the mother he would change the elder child’s diaper. It appears that the father did so under some duress because in his oral evidence, he said that it was his view that only the mother should have been changing the elder child’s diaper given her gender.

11. In distinction to her written evidence, and when the mother was interviewed by workers from the Department of Communities and Justice (“the Department”), the mother says that she saw the father’s hand “half inside [the elder child’s] nappy at the front”. The mother says that she observed this from another room.[87] On cross-examination by the father’s counsel, the mother gave additional detail, which was not contained in her written evidence or reported by her to the Department. Particularly, the mother said that:

    (a)The father was in his bed with the elder child;

    (b)The mother was in an adjoining room with the younger child having given birth to him recently. The rooms were separated by a sliding door;

    (c)The lights in the father’s room were off; and

    (d)The mother was unable to see whether the father’s whole hand or just part of the hand was inside the diaper. In fact, and despite giving this evidence, the mother conceded that she was unable to determine whether the father’s hand was on the elder child’s genitalia or otherwise. Cross-examination with respect to this issue proceeded as follows:

    Father’s counsel:        You could not see or be in a position to see whether his [the father’s] hand was grabbing [the elder child’s] private parts?

    Mother:Not the private parts. I felt like it was. I cannot give confirmation.

    [87] Exhibit ICL4, page 3 of 6.

12. On balance, and in circumstances where the mother conceded under cross-examination that she was not able to see whether the father’s hands were in fact on the elder child’s genitalia, I am unable to make any factual finding to the effect that the father sexually abused the elder child on this occasion as so asserted.

    Late 2020 incident

13. With respect to the events of late 2020, the mother says as follows:

    In [late] 2020, the father and I had returned from his sister’s house with the children. The children had fallen asleep, so I picked up [the elder child] from the car to take her inside the house while the father carried [the younger child] out of the car. The father opened the main door and entered the house first and I followed him. As I entered, I observed the father grab a hold of [the elder child’s] private parts from the back. The father’s hands touched my hands too because I was holding [the elder child]. I immediately confronted him and stated words to the effect of “What are you doing? She’s your daughter”. The father did not respond and acted as if nothing had happened.[88]

    [88] Mother’s affidavit filed 10 October 2024, paragraph 71.

14. Under cross-examination, the father conceded that the mother did ask him a question in the terms referred to above. He also conceded that he may have touched the elder child’s “private parts” in the course of grabbing the elder child from the mother. However, he says that the elder child was fully clothed at the time. The mother under cross-examination gave evidence that the elder child was six years of age at the time and that she “would have been quite big” to be carrying. She also said that the father did not wake the elder child.

15. The mother gave a different version of events to the Department. Particularly, the mother says that the father “grabbed [the elder child’s] bottom and squeezed her ass”. This is different to the version of events referred to in the mother’s affidavit filed 10 October 2024 and referred to above.

16. On balance, I am unable to make any factual finding to the effect that the father sexually abused the elder child on this occasion as so asserted. Cross-examination of each party did not assist me to determine the accuracy or otherwise of the mother’s assertion. Given the description of events by each party, I consider it more likely that the father was simply assisting the mother to carry the elder child into the parties’ home.

    January 2021 incident

17. Finally, the mother says that on 11 January 2021, the father called for the elder child to sit on his lap. The mother says that she “was highly concerned by this due to the previous incidents which had occurred”. She then says that she “called for [the elder child] to get off the father’s lap and come sit next to me”.[89] As discussed, this event appears to have been the catalyst for the mother’s departure from the former matrimonial home three days later.

    [89] Mother’s affidavit filed 10 October 2024, paragraph 72.

18. When interviewed by a representative of the Department, the mother said that “the father was hard down there”. He was “kissing and cuddling her”.[90] The mother under cross-examination said that the father had clothes on. This cases me to doubt whether the mother was able to discern whether the father had an erection as so asserted.

    [90] Exhibit M3, page

19. The father was cross-examined by the mother’s counsel in relation to the allegation. He says that he never had to ask the elder child to sit on his lap because she would always run up to him and do so. There is some support for the father’s assertion when I have regard to the Observations of Interaction conducted by the Court Child Expert on 14 August 2023. Firstly, the court child expert recorded that each child immediately ran over to the father when given the opportunity to do so at the commencement of the expert’s observations.[91] Secondly, the court child expert recorded that the children “appeared excited and lively, and were pleased to see [the father]”.[92] Thirdly, the younger child was observed to sit on the father’s lap.[93] Fourthly, and during observations, each child was observed to sit on the mother’s knee to cuddle her.[94]

    [91] Family Report dated 12 September 2023, paragraph 51.

    [92] Family Report dated 12 September 2023, paragraph 52.

    [93] Family Report dated 12 September 2023, paragraph 51.

    [94] Family Report dated 12 September 2023, paragraph 53.

20. Given these observations, I find that each of the children are affectionate with each of their parents. Each of them appears to be accustomed to sitting on the laps of their parents. I cannot discount the possibility that on the evening of 11 January 2021, the children were simply behaving in the manner observed by the court child expert. Even if such a conclusion is erroneous, I am unable to make any factual finding to the effect that the father sexually abused the elder child on this occasion as so asserted.

    Other sexual abuse allegations

21. The mother was interviewed by a Case Workers and representatives of the Joint Child Protection Response program in early 2021. At that time, the mother reported that the child had made a disclosure to the effect that the father “tried to put his finger in [the elder child’s] bum” but “she said he couldn’t put it in”.[95] At the relevant time, the mother says that the child was clothed although she does not tell the interviewers how she formed such a conclusion.

    [95] Exhibit ICL4, page 4 of 6.

22. In any event, this allegation, which is found in the mother’s affidavit filed on 10 October 2024 was not put to the father by the mother’s solicitor.

23. On interview by the Joint Child Protection Response program, the elder child advised the interviewers that her father “put his finger in her bum” on one occasion.[96] The interviewers also recorded the following:

    When the interview was drawn to a close and [the worker] asked “has everything you’ve said today been the truth”? The elder child did not answer and continued drawing. [The worker] asked “has anyone told you to tell me?” and [the elder child] said “yeah, my mum” and she could not remember when her mother told her to tell. [The worker] said “you circled these pictures, did dad put his finger in your bum”? and [the elder child] said “it didn’t happen, it was just an accident”. [The worker] said “who said it was?” and [the elder child] said “my friend”.[97]

    [96] Exhibit ICL5, page 4 of 22.

    [97] Exhibit ICL5, page 5 of 22.

24. The interviewer went on to express concern “in relation to some inconsistencies in details in [the elder child’s ] retelling”.[98] I also note that on interview by the Court Child Expert in August 2023, the elder child made no complaint about her father’s behaviour whatsoever.[99]

    [98] Exhibit ICL5, page 5 of 22.

    [99] Family Report dated 12 September 2023, paragraph 45.

25. The alleged disclosure is also made in circumstances where on investigation by the Department, the elder child has no medical conditions, no behavioural issues and until September 2024, was not seeing any psychologist or counsellor. Indeed, it was not until 30 September 2024 that the mother facilitated the child’s attendance on a psychologist.[100] This was only about six weeks prior to trial and, as discussed below, the Independent Children’s Lawyer promotes an order that the elder child cease attending on the psychologist on whom she first attended in proximity to the trial.

    [100] ICL2

26. I am unable to make any factual finding to the effect that the father sexually abused the elder child by inserting his finger in her anus.

    Sexual assault of the father’s niece

27. In about mid-2019, and whilst the parties were shopping with the father’s niece, the mother says that the father assaulted his niece by touching her on the buttocks. The mother says that the father’s niece subsequently informed her that this had occurred on three separate occasions.[101]

    [101] Mother’s affidavit filed 10 October 2024, paragraph 63.

28. On cross-examination, the father denied that he had touched his niece inappropriately on the occasion alleged or on any previous occasion. The mother did not call the father’s niece to give evidence.

29. The mother’s evidence under cross-examination caused me to doubt whether the mother in fact saw the father do anything given that the mother said she was facing the niece, and the father approached the niece from behind. Whatever the scenario, cross-examination of the parties did not assist me to determine the truth or otherwise of the mother’s assertion.

    Viewing of pornography and/or the use of sex workers

30. The mother by her solicitor submitted that the father has a “serious porn addiction problem”. In support of that assertion, the mother’s solicitor referred to the mother’s assertion that in or around 2020, the mother discovered an SD card from a dash camera installed in the father’s car. The mother says that was shocked to discover multiple recordings which captured the father playing pornographic content in the vehicle, while he was driving and also whilst the vehicle was stationery. This included occasions when he was on his way to pick the children up from school.[102] The mother suggested to the Court Child Expert that the pornography watched by the father was not “normal porn” and instead, featured acts between “mother and son, sister and brother”.[103] The mother did not lead any evidence to establish this fact nor was the proposition put to the father. Similarly, it was not suggested at any stage that the father had been viewing child pornography.

    [102] Mother’s affidavit filed 10 October 2024, paragraphs 66 to 68.

    [103] Family Report dated 12 September 2023, paragraph 29.

31. Under cross-examination, the father conceded that on occasion he views pornography but he did not agree that he has an addiction to pornography. Even if the father is characterised as someone who watches pornography, there was no evidence before me, which would enable me to conclude that this fact alone means that the father presents a risk to the children.  If the father has accessed pornography and the children have had access to this, then obviously it would be inappropriate.  There is no such evidence. The father was not asked whether he has filters on his electronic devices or whether the children are supervised when accessing materials electronically at his home. I am unable to make any finding that the father has accessed child pornography nor am I able to make any finding that the children have been exposed to pornography in the father’s household.

32. With respect to the father’s engagement of sex workers, there is no evidence that the father has committed any offence under the Summary Offences Act 1988 (NSW) or the Crimes Act 1900 (NSW). More importantly, there is no evidence that the children have been exposed to the father’s alleged activities.

33. The SD card referred to above allegedly recorded the father having a conversation with an unknown third party at which time he asked whether the third party could “provide a young female when I come?”. The mother’s solicitor submits that “this is proof that the father has a sexual fetish for young females”. Such a proposition was never put to the father and there is no evidence to support such a conclusion. Indeed, it was never put to the father that he engaged the services of sex workers.

34. I am unable to find that the father’s use of pornography or his alleged use of sex workers presents any risk to the children.

    CHILDREN’S BEST INTERESTS

    Section 60CC(2)(a) – The arrangements that would promote the safety of the children and each person who has care of the children

35. I have set out above my findings. I have concluded that:

    (a)Each party engaged in family violence during the relationship by addressing each other in derogatory language; and

    (b)On at least one occasion, the father caused property damage at the residence shared by the parties whilst the children were present.

36. I consider that the risks, which these behaviours represent to the children are ameliorated by the dissolution of the relationship between the parties.

37. Otherwise, I have not been able to find on the balance of probabilities that:

    (a)The father has sexually abused the elder child or acted in a sexually inappropriate manner towards her. Similarly, and for the reasons described above, I am not able to find that the elder child is at risk of sexual abuse by the father; and

    (b)The father physically assaulted the mother on any occasion as so asserted.

1. This being so, I am not persuaded that it is necessary for the children’s time with the father to be supervised. When reaching this conclusion, I have regard to submissions made by the Independent Children’s Lawyer and the oral evidence of the Court Child Expert to the effect that visits between the children and their father have gone well and that it is appropriate in those circumstances to “move to unsupervised time”. At no juncture did the mother’s solicitor make any submission to the effect that time between the children and their father has been problematic.

2. Notwithstanding my findings and given the mother’s apparent conviction that the elder child is at risk, I consider that it is appropriate to gradually increase the children’s time with the father. I have arrived at such a conclusion given the opinion expressed by the Court Child Expert that the mother will “likely find it extremely difficult to facilitate [the father’s] time with the children”.[104] The proposed program for gradually increasing the children’s time with the father as expressed by the Court Child Expert was as follows:

   (a)That initially, the children spend two hours per week with their father on an unsupervised basis. The Court Child Expert expressed a view that such an approach is warranted in circumstances where it has been almost four years since the children spent any lengthy period of time with their father;

   (b)After a period of three months, it would be appropriate to move to daytime periods between the children and the father; and

   (c)After a period of about six months, it would be appropriate to introduce overnight time between the children and their father.

   [104] Family Report dated 12 September 2023, paragraph 62.

3. The father by his proposed order, promotes the immediate commencement of extended day time periods (between 10.00 am and 5.00 pm) with overnight time commencing within a period of three months. Under cross-examination, the Court Child Expert expressed a view that this was “too much too soon”. Given the mother’s vulnerabilities and the likelihood that she will find it difficult to facilitate time, I agree with the opinion expressed by the Court Child Expert that a period of gradually increasing time is warranted. The Court Child Expert also expressed an opinion that a period of gradually increasing time will avoid the need for separate time spending regimes to apply to each of the children. I agree.

4. For these reasons, I will adopt the time spending arrangements during school terms and school holiday periods promoted by the Independent Children’s Lawyer. I am not persuaded that I ought to include any order for supervision even for a nominal amount of time.[105] I note that the orders promoted by the Independent Children’s Lawyer will result in the commencement of overnight time between the children and their father in about October 2025. I have brought the commencement of overnight time forward by a few weeks.

   [105] Exhibit ICL8

5. There is one curiosity in respect of which I was not addressed by the mother’s solicitor or the father’s counsel. That is, and on the proposal of the Independent Children’s Lawyer, the children will ultimately spend time with their father from the conclusion of school on Friday to the commencement of school in each alternate week. On the case of the father and the mother, the “end point” would be time from the conclusion of school on Friday to 5.00pm on Sunday. Neither party gave any reason why the time ought to be so truncated. Further, and given the mother’s anxiety about facilitating time between the children and their father and my finding that some episodes of family violence did occur during the relationship, I find that it is preferable that where possible, the parties do not come into contact with each other. This being so, I will adopt the proposal of the Independent Children’s Lawyer. This ought not cause the father difficulty in any event given that by his (Amended) Initiating Application he sought five nights per fortnight with the children.

   Section 60CC(b) – Any views expressed by the children

6. The female child is aged 11 years, and the male child is aged seven years. The Department did not record that either child suffers from developmental deficits or behavioural issues. The mother reported that the elder child has “plenty of friends at school”.[106] The mother reported the younger child to be “progressing well at school” and “seems to have made a number of friends”.[107] This being so, I consider that I can place some weight on the children’s views.

   [106] Family Report dated 12 September 2023, paragraph 42.

   [107] Family Report dated 12 September 2023, paragraph 47.

7. The Court Child Expert gave evidence that supervised time between the children and the father had been proceeding well. As discussed, this was not challenged by the mother. In fact, and when interviewed by the Court Child Expert in August 2023, the mother said that “the children have been generally happy to go to spend time with [the father]”.[108] Prior to the commencement of supervised time, it was the mother’s perception that the elder child missed her father.[109]

   [108] Family Report dated 12 September 2023, paragraph 14.

   [109] Family Report dated 12 September 2023, paragraph 42.

8. The Court Child Expert under cross-examination advised the Court that during Observations of Interaction, the children were “pleased to see [the father]”. She says that the children saw the father and “ran to him”. She said that there was “no awkwardness [and] no strangeness” between the children and their father.

9. It was the elder child’s perception that during supervised time with her father they are “silly” and attend to activities such as colouring. She said that she would miss her mother if she was to spend overnight time with her father but did not express any other views with respect to time spending arrangements.[110] For his part, the younger child reported that he enjoys “playing with [the father] when he sees him” and that he would “like to see [his father] more”.[111] He also advised the Court Child Expert that:

   (a)He never felt scared of the father; and

   (b)He would miss his mother if “he were to live with [the father]”.[112] It does not appear that this expression of an opinion was explored by the Court Child Expert.

   [110] Family Report dated 12 September 2023, paragraph 45.

   [111] Family Report dated 12 September 2023, paragraph 49.

   [112] Family Report dated 12 September 2023, paragraph 49.

10. On balance, I find that the relationship between the children and their father is warm and affectionate. On observation by the Court Child Expert, the children were reported to run over to their father. She said that the children “look thrilled” to see their father.[113] Their behaviour was animated and happy.

    [113] Family Report dated 12 September 2023, paragraph 51.

11. For these reasons, I consider that the time spending arrangements promoted by the Independent Children’s Lawyer and adopted by me are likely to be welcomed by the children. The gradual increase in time spending will also alleviate any anxiety, which the children may experience on account of missing their mother.

    Section 60CC(c) – The developmental, psychological, emotional and cultural needs of the children

12. As discussed above, the children do not have any developmental delays or intellectual disabilities. Each of them on the mother’s evidence are progressing well at school.

13. The evidence supports a finding that on occasion, the children were exposed to family violence. As discussed above, however, the time spending arrangements promoted by the Independent Children’s Lawyer and to be adopted by me will avoid the need for the parties to come into contact with each other. Necessarily, this means that the risk that the children will be exposed to family violence is reduced.

14. Each of the parties were born in Country J and practise the same religious faith. Although the father’s counsel, the mother’s solicitor and the Independent Children’s Lawyer did not address me in relation to the same, I find that each of the mother and the father will by reason of the Orders I make, ensure that the children maintain a connection with their Country J heritage and religious faith.

    Section 60CC(d) – The capacity of each person who has or is proposed to have parental responsibility for the children to provide for the child’s developmental, psychological, emotional and cultural needs

15. The mother is the unchallenged primary carer of the children. Save for the mother’s anxiety with respect to the facilitation of time between the children and their father, I consider that the mother has the capacity to provide for the needs of the children, including their emotional and intellectual needs. The father by his proposal for final orders,[114] consents to orders that the children live with the mother.

    [114] Exhibit F3

16. 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. The Court Child Expert under cross-examination expressed a view that the mother would find it difficult to facilitate time given her belief that the father has sexually abused the elder child. Having said this, and on interview in August 2023, the mother recognised that she “may be compelled to present the children for time with [the father]” and she undertook a course to assist her “in understanding what she may be to do”.[115] For these reasons, as well as the slow nature of increases in time spending between the children and their father, I find that the mother will be able to cope with a resumption of unsupervised time between the children and their father.

    [115] Family Report dated 12 September 2023, paragraph 62.

17. For his part, I have found that the father on at least one occasion caused property damage to the residence shared by the parties and on occasion, spoke to the mother in a derogatory manner. The father demonstrated some insight by agreeing with a proposition put to him to the effect that causing property damage did not set a good example for the children. Insofar as I have found that the father spoke to the mother in a derogatory manner, I consider that the risk of such behaviour will be ameliorated by orders, which I am invited to make by the Independent Children’s Lawyer regulating the method of communication between the parties and restricting the occasions on which the parties will come into contact with each other.

18. I will, however, make an order for each party to enrol in and complete a parenting program as suggested by the Court Child Expert. This ought to provide the parties with tools necessary to enable them to make their parenting arrangements work effectively.

    Section 60CC(e) – The benefit to the children 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

19. For the reasons set out above, I have concluded that it is in the children’s interests to spend unsupervised time with their father. The making of such an order will also avoid the risk that the elder child may only regard the father as “safe” in the context of supervision and that her relationship with the father is necessary circumscribed by the boundaries of supervised contact.[116] I agree with the opinion expressed by the Court Child Expert that in circumstances where I have found that the father does not represent an unacceptable risk of harm to the children, it is necessary for their relationship with the father to be normalised without delay. I am satisfied in progressing in this manner when neither party by his/her affidavit material or their oral evidence sought to argue that supervised time between the children has been anything other than successful.

    [116] Family Report dated 12 September 2023, paragraph 60.

    Section 60CC(1)(b) and s 60CC(3) – Right to enjoy Aboriginal or Torres Strait Islander culture

20. 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

21. No other consideration was addressed by the mother’s solicitor, the father’s counsel or the Independent Children’s Lawyer.

    PARENTAL RESPONSIBILITY

22. As discussed above, the father consents to an order that the mother have sole parental responsibility for the children and sole decision-making authority in respect of all decisions concerning major long-term issues. The parties do not agree whether the mother ought to be obliged to inform the father of any impending decision and consider any response, which he may provide.

23. I have found that the father has perpetrated family violence.

24. The mother has been making the relevant decisions for the children since separation. In any event, the parties have no ability to communicate.[117] For these reasons, the evidence supports a finding that it is in the children’s best interests for the mother to hold parental responsibility.

    [117] Family Report dated 12 September 2023, paragraph 38.

25. The mother promotes as an alternate position an order that she advise the father of any decision, which she proposes to make in relation to a major long-term issue affecting the children and obtain input from the father. As discussed above, the father agreed to the making of an order in similar terms and such as an outcome was supported by the Independent Children’s Lawyer. The mother promotes an order that she notify the father 14 days prior to making any major long-term decision whereas the Independent Children’s Lawyer promotes a thirty (30) day timeframe. I find that the order promoted by the Independent Children's Lawyer is more appropriate as it will provide the father with greater time to consider his position and communicate with the mother.

26. Having carefully considered the orders sought, I am satisfied that the mother is able to advise the father in relation to proposed major long-term decisions and receive and take into account his input.

    OTHER ORDERS

    The occasion of a religious holiday

27. The father promotes an order that the children spend time with him on a religious holiday in each year from 12.00pm to 8.00pm if school is not in session and otherwise, from the conclusion of school to 8.00pm. The Independent Children’s Lawyer supports the making of such an order but says that the occasion ought to alternate between the parties giving each of them practise the same faith. The mother promotes an order in the same terms as the Independent Children’s Lawyer.

28. The father made no submission about why the occasion ought not be shared between the parties. Accordingly, I will make orders in the terms promoted by the mother and the Independent Children’s Lawyer.

    Father’s Day, Mother’s Day and the parents’ birthdays

29. The parties and the Independent Children’s Lawyer agreed to the terms of time spending between the children and each of their parents on the occasion of Father’s Day, Mother’s Day and the parents’ birthdays. I will make orders in the terms promoted by them.

    Children’s birthdays

30. The father promotes an order that on the occasion of each child’s birthday, the children spend time with the parent with whom they would not otherwise be spending time pursuant to the primary orders from 10.00am to 2.00pm if school is not in session or the conclusion of school to 6.00pm if school is in session. The Independent Children’s Lawyer and the mother by her alternate position agree with the making of such an order. Accordingly, I will make orders in the terms promoted by the parties and the Independent Children’s Lawyer.

    Handovers

31. The father promotes an order that handovers, which do not occur at the children’s school occur at the McDonalds Restaurant located at L Street, Suburb F. The mother and the Independent Children’s Lawyer agree to the making of such an order.

32. The Independent Children's Lawyer also promotes orders regulating arrival times of each parent at handovers, the movement of the children between parents and mechanisms for communication between the parents at handovers. Neither parent by his or her counsel or solicitor made submissions in relation to the same.

33. I decline to make the orders sought by the Independent Children’s Lawyer. They are cumbersome and given that handovers will occur in a public place, I expect that each parent will behave in an appropriate manner.

    Telephone communication

34. The father promotes an order that he be at liberty to speak with the children by telephone for a period of thirty minutes on each Tuesday between 5.30 pm and 6.00 pm.[118] Neither the mother nor the Independent Children’s Lawyer promoted such an order, and the Court Child Expert was not asked about the merit of such an order.

    [118] Exhibit F3.

35. Given the limited time the children will be spending with their father, I consider it will be in their best interests to communicate with their father by electronic means each Tuesday evening as promoted by the father.

    Restraints

36. The mother and the Independent Children’s Lawyer promote an order that the father be restrained from leaving the children in the sole care of the paternal grandfather. The restraint is sought in circumstances where the father conceded during his interview with the Court Child Expert that the paternal grandfather is an alcoholic and “would talk and swear to himself” on becoming inebriated.[119] The mother says that the paternal grandfather would verbally abuse her after consuming alcohol.[120]

    [119] Family Report dated 12 September 2023, paragraph 19.

    [120] Mother’s affidavit filed 10 October 2024, paragraph 50.

37. The father agrees to the injunctive relief sought by the mother and the Independent Children’s Lawyer.

38. An injunction is not, by definition, a “parenting order”.[121] The Act provides separate powers for making injunctions, parentings orders, or other orders in relation to the welfare of a child.[122] Section 68B is not, therefore, technically 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 & 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.[123]

    (Emphasis added)

    [121] Hedlund v Hedlund (2021) 64 Fam LR 458 at 118.

    [122] Family Law Act 1975 (Cth) s 65D(1), s 67ZC.

    [123] Attwood & Attwood [2022] FedCFamC2F 6 at 31 – 33.

1. Given the allegations made against the paternal grandfather, which were not challenged by the father, I find that it is appropriate for me to make the injunctive orders sought by the mother and the Independent Children’s Lawyer. Such an injunction will ensure that the children are not exposed to inappropriate behaviour on the part of the paternal grandfather in the presence of the children.

2. For his part, the father seeks an order that the mother be restrained from facilitating any contact between the children and the mother’s former partner. The mother had a brief relationship on her separation from the father. The order is sought in circumstances where as a consequence of dispute between the mother and her former partner, an Apprehended Domestic Violence Order was made for the mother’s protection.[124] The mother says that she has not had any contact with her former partner since her separation from him in any event.[125] In these circumstances, I find that it is appropriate to make the injunctive order sought by the father and the Independent Children’s Lawyer.

   [124] Mother’s affidavit filed 10 October 2024, paragraphs 87 – 88.

   [125] Mother’s affidavit filed 10 October 2024, paragraph 87.

3. Finally, the Independent Children’s Lawyer seeks an order in the following terms:

   That [the elder child] cease attending sessions with [H Psychology], and not attend any mental health professional without the father being consulted.[126]

   [126] Exhibit ICL8

4. The order was sought by the Independent Children’s Lawyer in circumstances where about five weeks prior to the Trial, the mother absent the consent of the father or the Independent Children’s Lawyer facilitated the elder child’s attendance on a psychologist for the first time since separation. It is apparent from the psychologist’s notes of sessions between the elder child and the psychologist on 30 September 2024 and 28 October 2024 that although the elder child denied that she had ever been hurt by her father, the focus of the therapy was to document every complaint and criticism of the father and to create a record, which might strategically assist the mother in this litigation.

5. In circumstances where I have found that the father does not present a risk of harm to the children, it would be inappropriate for the therapy referred to above to continue. For these reasons, I will make the order promoted by the Independent Children’s Lawyer save that I will require the mother to obtain the father’s consent prior to facilitating the attendance of the children or either of them on any psychiatrist, psychologist, counsellor or social worker.

   Provision of Information

6. The Independent Children’s Lawyer promoted orders to the effect that:

   (a)The mother provide all authorities and permissions necessary for the father to receive information and documents, which parents are ordinarily entitled to receive from the children’s schools;

   (b)Each parent be at liberty to attend at all school and extracurricular activities that parents would normally attend; and

   (c)The mother provide all authorities and permissions for the father to receive information and documents from the children’s treating health professionals.

7. The father sought an order in similar terms and by her alternate position, the mother did not oppose the making of such orders. Accordingly, I will make orders, which have similar effect to the orders promoted by the Independent Children’s Lawyer.

   Communication between the parties

8. As discussed above, the parties have a limited ability to communicate. This being so, the Independent Children’s Lawyer sought an order that the parties communicate via the application known as “App Close”. The father and the mother by her alternate position agreed to the making of such an order. Accordingly, I will make an Order requiring each of the parties to establish and there after maintain access for each of them to such parenting application as is agreed between them and failing agreement to the parenting application “App Close”. I will also require the parties to utilise that application to communicate in relation to all issues concerning the children.

   Enrolment in a parenting programme

9. By her report, the Court Child Expert expressed an opinion to the effect that if the Court made an order for time spending between the children and their father then the mother be encouraged to enrol in the M Program to support the mother in providing the children for time with the father.[127] By her oral evidence, the Court Child Expert expressed a view that the father would also benefit by his participation in the program. Given my findings above about the poor nature of the relationship between the parties, I consider that it makes common sense to encourage the parties to engage with support services. I will make the order sought by the Independent Children’s Lawyer.

   [127] Family Report dated 12 September 2023, paragraph 62.

   International Travel

10. By her (Amended) Response to Initiating Application filed on 16 November 2023, the mother sought an order, which would permit her to remove the children from the Commonwealth of Australia absent the consent of the father.

11. The only evidence provided by the mother in support of her application is as follows:

    …I would also like to travel with the children overseas particularly, to [Country J] to visit my family. I would also like for the children to meet my side of the family.[128]

    [128] Mother’s affidavit filed 10 October 2024, paragraph 107.

12. The father promoted an order that each parent be permitted to travel with the children to a country, which is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. However, the application appeared to have been abandoned by reference to the father’s proposed orders tendered at trial.[129]

    [129] Exhibit F3.

13. Neither party was cross-examined on the topic at trial nor were the respective applications the subject of any submission.

14. Whatever the scenario, neither produced any evidence whatsoever with respect to the locations where he/she would like to travel with the children (save and except for Country J) or when he/she might do so. For these reasons, I refuse to make an order permitting the mother to obtain passports for the children absent the consent of the father and I refuse to make an order permitting either parent from removing the children from the Commonwealth of Australia for the purposes of overseas travel.

    CONCLUSION

15. 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 one hundred and eighty-three (183) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.

Associate:

Dated:       23 December 2024