Mancari & Padova - [2022] FedCFamC2F 1593

Federal Circuit and Family Court of Australia
(DIVISION 2)
Mancari & Padova [2022] FedCFamC2F 1593

File number(s): PAC 4103 of 2018

Judgment of: JUDGE MORLEY

Date of judgment: 22 November 2022

Catchwords: FAMILY LAW – final parenting orders – indefinite supervision – significant and sustained family violence during the relationship and after separation by the Father – evidence by way of recordings of verbal threats to harm and kill Mother in presence of child – corroborating evidence in Mother’s case by third party witness who was a stranger to the parties at the time – sustained and repeated threats made by Father to turn the child against the Mother – Father a witness of poor credit – child spending fortnightly supervised time with Father pursuant to interim orders – Court finds there to be no indication on the evidence that the unacceptable risk to child will abate in the future – where single expert witness recommends ongoing supervised time in the matter’s circumstances – consideration of authorities on indefinite supervision – Court finds the risk to the child when only having ‘identity’ time with Father to be worse than ongoing supervision –monthly indefinite supervision ordered.

Legislation:
Evidence Act 1995 (Cth), s 140

Family Law Act 1975 (Cth), ss 11, 60B, 60CA, 60CC, 61DA, 65D, 65DA, 65DAA, 65DAB, 68B, 128

Federal Circuit Court Rules 2001 (Cth), r 15.28

Criminal (Sentencing Procedure) Act 1999 (NSW), ss 9, 10

Cases cited:
A & A & The Child Representative [1998] FamCA 25

Betros & Betros [2017] FamCAFC 90

Briginshaw v Briginshaw (1938) 60 CLR 336

Godfrey & Sanders (2007) 208 FLR 287

Gorman & Huffman And Anor [2016] FamCAFC 174

Grella & Jamieson [2017] FamCAFC 21

Harridge and Anor & Harridge and Anor [2010] FamCA 445

In the Marriage of B (1993) 112 FLR 45

Isles & Nelissen [2022] FedCFamC1A 97

Johnson & Page [2007] FamCA 1235

KB & TC [2005] FamCA 458

M & M (1988) 166 CLR 69

M v M (1988) 166 CLR 69

M v S [2006] FamCA 1408

Mazorski & Albright [2007] FamCA 520

McGregor & McGregor [2012] FamCAFC 69

Moose & Moose [2008] FamCAFC 108

Napier & Hepburn [2006] FamCA 1316

Slater v Light [2013] FamCAFC 4

Tait & Densmore [2007] FamCA 1383

W & W (Abuse Allegations: Unacceptable Risk) [2005] FamCA 892

Division: Division 2 Family Law

Number of paragraphs: 431

Date of hearing: 18 November 2020, 8-10 December 2020, 17-18 June 2021

Place: Sydney

Counsel for the Applicant: Mr Livingstone

Solicitor for the Applicant: Ark Law Lawyers

Counsel for the Respondent: Mr Longworth

Solicitor for the Respondent: Gordon & Barry Lawyers Pty Ltd

Counsel for the Independent Children's Lawyer: Ms Shea

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

PAC 4103 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MANCARI

Applicant

AND:
MS PADOVA

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE MORLEY

DATE OF ORDER:

22 November 2022

THE COURT ORDERS THAT:
1.That all previous parenting orders in relation to the child X born in 2012 are discharged.
2.That the Mother has sole parental responsibility for X.
3.That X live with the Mother.
4.That X spend time with the Father as follows:
(a)If the Father is living in Australia:
(i)On one occasion each calendar month for a period of three hours, being from 1:00PM to 4:00PM on the third Sunday of each month unless otherwise agreed in writing between the parties;
(ii)For a period of three hours being from 1:00PM to 4:00PM on 24 December;
(iii)For a period of three hours being from 1:00PM to 4:00PM on Father’s Day;
(iv)Such time to be supervised by:
A.A commercial supervision agency agreed in writing between the parties; or
B.A suitable person agreed to in writing between the parties conditional upon the supervisor signing an undertaking in terms of Annexure “A” and providing a copy of the signed undertaking to the Mother prior to supervising any time pursuant to these orders, or
C.Failing agreement, the commercial supervision agency, B Contact Centre.

(v)For the purpose of order 4(a)(iv) the following procedure shall apply:
A.Not less than one calendar month prior to each occasion that X is scheduled to spend time with the Father, the Father is to inform the Mother by email of the name of the commercial supervision agency or person he proposes to supervise the time pursuant to order 4(a)(iv)(A) or order 4(a)(iv)(B);
B.Within three days of receiving notification from the Father in accordance with order 4(a)(v)(A), the Mother is to inform the Father by email whether she agrees with the commercial supervision agency or person he proposes to supervise the time;
C.If the Mother does not agree to either the commercial supervision agency or person proposed by the Father then order 4(a)(iv)(C) is to apply, and
D.In the event the Father does not make any proposal within the timeframe referred to in order 4(a)(v)(A), then order 4(a)(iv)(C) is to apply.

(vi)That the Father bear the costs of supervision.

(b)If the Father is living outside of Australia:
(i)On up to 12 occasions each year in Sydney, for three hours on each occasion, and no more frequent than two occasions each week, provided that the Father notifies the Mother in writing of his intention to travel to Sydney and nominates the dates and times he proposes to spend with X, at least six weeks prior to his arrival in Sydney unless otherwise agreed in writing between the parties.
(ii)Such time to be supervised by:
A.A commercial supervision agency agreed in writing between the parties;
B.A suitable person agreed to in writing between the parties conditional upon the supervisor signing an undertaking in terms of Annexure “A” and providing a copy of the signed undertaking to the Mother prior to supervising any time pursuant to these orders, or
C.Failing agreement, the commercial supervision agency, B Contact Centre.

(iii)For the purpose of order 4(b)(ii) the following procedure shall apply:
A.Not less than one calendar month prior to each occasion that X is scheduled to spend time with the Father, the Father is to inform the Mother by email of the name of the commercial supervision agency or person he proposes to supervise the time pursuant to order 4(b)(ii)(A) or order 4(b)(ii)(B);
B.Within three days of receiving notification from the Father in accordance with order 4(b)(iii)(A) or 4(b)(iii)(B), the Mother is to inform the Father by email whether she agrees with the commercial supervision agency or person he proposes to supervise the time;
C.If the Mother does not agree to either the commercial supervision agency or person proposed by the Father then order 4(b)(ii)(C) is to apply, and
D.In the event the Father does not make any proposal within the timeframe referred to in order 4(b)(iii)(A), then order 4(b)(ii)(C) is to apply.

(iv)That the Father bear the costs of supervision.

5.That the Father be at liberty to send X a card and/or gift for his birthday and Christmas each year.
6.That the Father be at liberty to request from any school attended by X a copy of his school reports and school photograph order forms.
7.That the Mother notify the Father of any change in X’s school enrolment within seven days of such change.
8.That the Mother notify the Father as soon as practicable in the event X is hospitalised or suffers a significant injury or illness.
9.That each party notify the other within seven days of any change in their postal or email address.
10.That the Father be and hereby is restrained by injunction pursuant to section 68B of the Family Law Act 1975 from:
(a)Contacting or approaching the Mother in any way whatsoever, except for the purposes of implementing these orders;
(b)Communicating with X in any way other than as provided for in these orders;
(c)Coming within 100 metres of the Mother’s home, place of work, or place of education;
(d)Coming within 100 metres of any school at which X is enrolled, except in accordance with order 17; and
(e)Coming within 100 metres of any place at which X is participating in an extra-curricular activity.

and this is an injunction under section 68B for the protection of the Mother Ms Padova born in 1975 and the child X born in 2012 for the purposes of section 68C of the Family Law Act 1975 (Cth).
11.That each party be and hereby is restrained from:
(a)Making critical or derogatory remarks about the other party, or any member of the other party’s family or household, or any partner of the other party to or in the hearing of X;
(b)Discussing these Court proceedings, or any of the issues raised in these proceedings, with X or in his hearing;
(c)Allowing X to remain in the hearing of any third party who is making critical or derogatory remarks about the other party, or any member of the other party’s family or household or any partner of the other party, or discussing these Court proceedings, or any of the issues raised in these proceedings.

12.That the Mother have leave to provide a copy of Dr E’s report dated 12 February 2020 and Judge Morley’s final orders and Reasons for Judgment, to any Counsellor, therapist, psychologist, or psychiatrist assessing or providing treatment to X in the future.
13.That the Mother have leave to provide a copy of Dr E’s report dated 12 February 2020 and Judge Morley’s final orders and Reasons for Judgment, to any counsellor, therapist, psychologist, or psychiatrist assessing or providing treatment to the Mother in the future.
14.That the Father have leave to provide a copy of Dr E’s report dated 12 February 2020 and Judge Morley’s final orders and Reasons for Judgment, to any counsellor, therapist, psychologist, or psychiatrist assessing or providing treatment to the Father in the future.
15.That the Mother have leave to provide a copy of Judge Morley’s final orders and Reasons for Judgment to any supervisor agreed between the parties for the purposes of orders 4(a)(iv)(B) or 4(b)(ii)(B), and both parties have leave to provide copies to the Father’s parents.
16.That by no later than 4:00PM on 22 February 2023, each party is to pay the sum of $8,072 to Legal Aid NSW being their contribution towards the costs of the ICL in these proceedings.
17.Nothing in these orders will prevent the Father from attending parent/teacher interviews separately to the Mother’s attendance.
18.The Mother shall be authorised to do all acts and things and sign all documents necessary to apply for and maintain an Australian Passport for X in the absence of consent from the Father or otherwise.
19.For the purpose of order 18 herein, X is permitted to travel internationally as provided by section 11(1)(b)(ii) of the Australian Passport Act 2005 (Cth) with his Mother Ms Padova born in 1975 and for this purpose the Mother Ms Padova born in 1975 is permitted to apply for an Australian passport for X under the provisions of section 11(1)(b)(i) of the Australian Passports Act 2005 (Cth).
20.The Father is hereby restrained from removing or attempting to remove or causing or permitting the removal of the child X, a male born in 2012, from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by placing the name of the child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal, subject to order 19.

ANNEXURE “A”
UNDERTAKING BY SUPERVISOR
1. My full name is _________
2. My residential address is _________
3. My mobile telephone number is _________
4. I am willing to act as supervisor of the time which the child X, born in 2012, spends with his Father, Mr Mancari.
5. I have read the Judgment of his Honour Judge Morley and I am aware of the reasons for supervision of the time which X spends with his Father.
6. I understand that if I am to supervise X during the time X spends with his Father, I must ensure that X is safe and not exposed to any physical, psychological or emotional harm.
7. In order to ensure that X is safe and not exposed to any harm, I will monitor all interactions between X and his Father and understand that this would require me to:
a. Watch X and his Father at all times, and not allow X to be on his own with his Father and
b. Remain close enough to X and his Father so that I am able to hear all conversations between his Father and X.

8. I undertake to perform my role as supervisor as set out in this undertaking.
9. I undertake to immediately bring the time which X is spending with the Father to an end, remove X from the Father’s presence and contact the Mother to arrange for X to be collected:
a. If the Father says or does anything to prevent, or attempt to prevent, me from fulfilling my obligations set out above;
b. If I consider that the Father says or does anything during his time with X which raises a concern for me that X may be exposed to physical, psychological or emotional harm;
c. If the Father says anything critical or derogatory about the Mother, or
d. If I consider that for any other reason X may be exposed to harm.

10. At the commencement of the time which X spends with the Father I will collect X from his Mother at a location agreed between us, and at the conclusion of the time I will return X to his Mother at a location agreed between us, and I undertake that the Father will not accompany me to the changeovers at the commencement or end of the time.
………………………………………………….
Signature
Dated:
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Mancari & Padova has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
Introduction

These are Reasons for Judgment in relation to final parenting proceedings under the Family Law Act 1975 (Cth) (‘the Act’) between the Applicant Father, Mr Mancari (‘the Father’) and the Respondent Mother, Ms Padova (‘the Mother’) regarding their son, X, born in 2012.
The Father was born in 1972 and was 48 years of age at the end of the hearing.
The Mother was born in 1975 and was 45 years of age at the end of the hearing.
X was nine years of age at the end of the hearing.
The parents never married. There is dispute as to when the relationship and cohabitation commenced, the Father asserting that the parties entered into a relationship in 2011, and the Mother asserting the parties commenced cohabitation in 2012. Nothing turns on this issue.
The Father asserts that the parties separated in January 2015. The Mother asserts that separation took place on a final basis on 22 August 2014.
Mr Livingstone of Counsel appeared for the Father.
Mr Longworth of Counsel appeared for the Mother.
Ms Shea of Counsel appeared for the Independent Child’s Lawyer (‘the ICL’).
The final hearing of this matter took place over five days in December 2020 and June 2021.
Proceedings
The matter commenced by the Father filing his Initiating Application on 5 September 2018.
The Mother filed her Response material on 16 October 2018.
The matter first came before Judge Newbrun in the Parramatta Registry on 17 October 2018. On that occasion, his Honour made orders appointing an Independent Child’s Lawyer and otherwise transferring the matter to the Sydney Registry.
The matter then came before her Honour Judge Boyle on 30 October 2018 for mention. Her Honour referred the matter to a Child Dispute Conference and otherwise adjourned the matter for further mention on 7 February 2019.
The parties attended a Child Dispute Conference on 15 January 2019 and memorandum was released that day.
On 7 February 2019, orders were made by consent providing for the Father to spend time with X supervised by a commercial supervision agency, B Contact Centre, each alternate Thursday from 3 pm until 6 pm. Orders were made for preparation of a Family Report, though this was later superseded by orders for a single expert’s report, and setting the matter down for an interim hearing on 21 June 2019.
The matter came before me for interim hearing on 21 June 2019 and on 10 December 2019 I made interim orders summarised as follows:
(1)That X live with his Mother;
(2)That he spend supervised time with his Father each alternate week on Thursday afternoon between 3:00PM and 6:00PM (a continuation of the consent orders reached in February 2019), supervision by B Contact Centre, at the Father’s expense;
(3)The standard suite of ‘non-denigration’ orders;
(4)An order restraining the parties from discussing the proceedings with X;
(5)An order restraining the parties from physically disciplining X;
(6)An order restraining the parties from consuming alcohol to the extent that it would be illegal for them to drive a sedan motor vehicle on a full licence;
(7)A suite of specific restraints on the Father, including:
(a)An injunction for the personal protection of the Mother and of X pursuant to section 68B;
(b)A restraint on the Father communicating with the Mother in any manner other than in relation to making necessary arrangements for spending time with X;
(c)A restraint on the Father communicating with X in any manner other than to send him birthday, Easter, and Christmas cards and presents; and
(d)An injunction on the Father from coming within 100 metres of the Mother’s place of residence or place of employment or X’s place of education except for the attendance at X’s school on occasions when there is a school function involving X to which parents are invited.
(8)Orders directing the Father to engage with an anger management course and a ‘Men’s Behaviour Change’ course, and an order for both parties to attend the course ‘Bringing Up Great Kids’.
I also expedited the matter for final hearing without requiring it to ‘queue’ in a Call-Over first.
The matter was not reached by the Court on 18 November 2020 and was adjourned for final hearing with priority to 8 December 2020.
References in this judgment to pages of the transcript will be represented by a ‘P’ followed by the page of the transcript.
Final Hearing
Documents relied upon by the parties
The Father relied upon the following documents:
(1)Case Outline document prepared by Ms Swami of Counsel and filed 18 November 2020;
(2)Initiating Application filed 5 September 2018;
(3)The Father’s trial affidavit filed 23 October 2020, including the Annexures “A” to “EE” referred to therein;
(4)The Father’s supplementary affidavit filed on 7 December 2020;
(5)Exhibit A1 being a video recording taken at Z Park made on 17 December 2018 and stored on a USB with the file labelled ‘A 17122018’ and played in open Court during the hearing.

The Father’s trial affidavit and supplementary affidavit were both adopted by him by electronic signature in accordance with the SARS-Cov-2/COVID-19 Practice Direction for filing documents. The trial affidavit was sworn by him in Court and the supplementary affidavit was affirmed by him in Court, both on 8 December 2020.
The Mother relied upon the following documents:
(1)Case Outline document prepared by Mr Longworth of Counsel dated 17 November 2020;
(2)Response to Initiating Application filed 16 October 2018;
(3)Notice of Risk filed 16 October 2018;
(4)The Mother’s trial affidavit sworn or affirmed and filed 16 October 2020;
(5)The Mother’s supplementary affidavit affirmed 27 November and filed 30 November 2020;
(6)The Mother’s witness statement dated 16 June 2021, signed by the Mother and adopted by the Mother while on oath in examination in chief on 17 June 2021 in Court;
(7)The affidavit of Ms F filed 17 October 2020;
(8)The affidavit of Ms G sworn or affirmed on 10 October 2018 and filed 11 October 2018;
(9)The following documents or materials tendered into evidence and marked as exhibits:
(a)R1, an audio recording made on 18 January 2015 and stored on USB under file name ‘file_10_(2015_01_18-18_18_28) …’, played in open Court;
(b)R2, an audio recording made on 18 January 2015 and stored on USB under file name ‘file_13_(2015_01_18-19_48_09) …’, played in open Court;
(c)R3, an audio recording made on 18 January 2015 and stored on USB under file name ‘file_14_(2015_01_18-20_19_17) …’, played in open Court;
(d)R4, an audio recording made on 14 January 2015 and stored on USB under file name ‘file_8_(2015_01_14-19_51_54)’, played in Chambers;
(e)R5, being one page with highlighted text being text from an email sent by the Father to the Mother on 2 July 2019 11:20AM;
(f)R6, being paragraph 43 of the Father’s affidavit filed 12 June 2019;
(g)R7, being paragraph 48 of the Father’s affidavit filed 12 June 2019;
(h)R8, being paragraph 61 of the Father’s affidavit filed 27 September 2019;
(i)R9, a video recording played in open Court stored on USB under file name ‘1st drive’;
(j)R10, a video recording played in open Court stored on USB under file name ‘X’;
(k)R11, being paragraph 17 of Father’s Affidavit filed 27 September 2019;
(l)R12, being page 45 of the Joint Tender Bundle being a letter from Father dated 17 December 2014 from Suburb AB Police Station;
(m)R13, being paragraph 40 of the Father’s Affidavit filed 27 September 2019;
(n)R14, being emails between Mother (work email) and Father dated 29 June 2015;
(o)R15, being emails from the Father to the Mother between 9 August 2017 and 22 August 2017;
(p)R16, a two page document addressed to the Presiding Magistrate in the Local Court (in the text of the document “Your Honour”) from the Father dated 29 August 2017;
(q)R17, a letter dated 7 November 2019 under signature of Father addressed to the Presiding Magistrate at the Local Court at Suburb AB;
(r)R18, a video recording of changeover played in open Court stored on USB under file name ‘X and I stronger and strong, it's clear to see’;
(s)R19, a screenshot photo of YouTube video description for video ‘X and I stronger and stronger, it’s clear to see’;
(t)R20, a 19 page document (including unnumbered first page) being a bundle of emails, commencing with an email from the Mother’s solicitor (Merridy Gordon) dated 16 June 2021 at 11:53AM and going through to an email from the Father to the Mother’s solicitor dated 8 June 2021 at 1:03PM;
(u)R21, being four pages of print outs of emails beginning with email from the Mother dated 16 June 2021 at 10:54 AM and going to an email from the Father dated 20 April 2021 at 9:29AM;
(v)R22, a three page letter dated 24 May 2021 from Employer AC to the Father including a one page table headed Employee Termination – ‘redundancy’;
(w)R23, formerly MFI2, being a two page letter from Mother to the Father’s then-solicitor Mr AJ dated 21 November 2017;
(x)R24, formerly MFI3, being an email from Mother to the Father’s then-solicitor Mr AJ dated 28 November 2017;
(y)R25, formerly MFI1, being three pages of photographs of the Mother with apparent bruising, being pages 282 to 284 of the Tender Bundle;
(z)R26, an ‘Aide Memoir’ being part transcript of the material on audio recording in exhibit R4;
(aa)R27, documents in the Joint Tender Bundle that are referred to in a document headed ‘Mother’s list of Exhibits and Tender Bundle references’ placed as the first page of the tender bundle being exhibit R27; and
(bb)R28, being five pages of documents produced on subpoena by Dr AD commencing with the orange tab being a letter dated 1 March 2016 from AE Medical Centre.
The Mother’s trial affidavit of 16 October 2020 at paragraph 4 refers to a “Tender Bundle” and that Tender Bundle is the documents ‘1’ to ‘27’ being 166 pages in a separate bundle provided to the Court at the hearing. That bundle had been served on the Father and the ICL.[1]
[1] P-7.
All of the documents in the Tender Bundle are referred to in the Mother’s trial affidavit, but none have a statement signed by the person before whom the affidavit was made identifying it as the particular annexure or exhibit referred to in the affidavit, as required by the then-in force Rule 15.28 of the Federal Circuit Court Rules 2001 (Cth).
However, on both the first morning of the hearing and the last day of the hearing, Mr Longworth made it abundantly clear that the Mother relied upon all of the documents in that “Tender Bundle” as exhibits to her affidavit. At P-519, I specifically clarified with Mr Longworth that “the whole of that bundle is part of the evidence”, which Mr Longworth confirmed.
I then said “and I have to give attention to the whole lot of it, but this is a direction to specific parts that you want to emphasise?”[2] to which Mr Longworth responded “That’s right”.
[2] Emphasis added.
The ‘direction to specific parts’ is a reference to the “Exhibits to the Affidavit of the Mother filed 16 October 2020” table in Exhibit R27.
Both Mr Livingstone and Ms Shea were, of course, party to that exchange, and on that basis I regard the whole of the “Tender Bundle” referred to in the Mother’s trial affidavit of 16 October 2020 as forming part of the evidence. Those parts of it referred to in the first table in Exhibit R27 are merely referred to by way of an emphasis in submissions for the Mother.
The ICL relied upon a Case Outline document prepared by Ms Shea of Counsel dated 17 November 2020, and the following documents were tendered into evidence and marked as exhibits:
(1)ICL1, the Single Expert’s Report prepared by Dr E and dated 12 February 2020;
(2)ICL2, the Child Dispute Conference Memorandum to Court dated 15 January 2019;
(3)ICL3, a bundle of emails dated 18 June 2014 to 13 August 2019;
(4)ICL4, a photograph of tattoo on Father’s arm posted on Father’s Facebook account with the caption “…”;
(5)ICL5, a photograph of two t-shirts, one with the words “…” and the other with the words “…” posted by the Father on his Facebook page with the caption “my custom Father’s day t-shirts have arrived”;
(6)ICL6, a series of emails between the Mother and the Father dated between 26 June 2019 and 26 July 2019;
(7)ICL7, a document containing two emails between ARK Law Administration and Ms AF dated 27 October 2020 and 28 October 2020;
(8)ICL8, a document termed as a ‘bundle of documents’ headed “Index of Documents produced by B Contact Centre being pages 1 to 25 inclusive;
(9)ICL9, two letters to Dr E dated 7 December 2020 and 15 June 2021;
(10)ICL10, a bundle of documents produced on subpoena by the NSW Department of Corrective Services with those pages being 5 of 39, 6 of 39, 20 of 39, 22 of 39, 29 of 39, and 30 of 39;
(11)ICL11, being Contact Reports at pages 246 to 279 inclusive of the Joint Tender Bundle;
(12)ICL12, being the ICL’s Costs Notice; and
(13)ICL13, being the ICL’s Proposed Minute of Order.
Orders sought by the parties
The Father sought the following orders, with original expression:
1. The parties have equal shared parental responsibility.
2. The child spend time with the Father from 9am to 5pm each alternate Saturday unsupervised for a period of 3 months from the commencement of these orders.
3. At the conclusion of order 2, the time between the Father and the child to increase to 1 overnight time on each alternate weekend from 8am Saturday to 7pm Sunday for a period of 3 months.
4. For the purposes of Orders 2 and 3 the changeover to be outside of the Mother’s house. The Father undertakes to remain in his car.
5. At the conclusion of Order 3, the time between the Father and the child is to increase to alternate weekends from Friday to Sunday for a period of 3 months. The Father is to collect the child at his school at 3pm on Friday and to deliver the child to the Mother’s house at 7pm on Sunday. Father to collect child at 3pm from school and drop off child at Mother’s at 7pm on Sunday.
6. At the conclusion of order 5, the time between the Father and the child is to increase to 5 nights per fortnight on a final basis.
7. For the purpose of order 6, the Father is to collect the child from the school at 3pm on Friday and deliver the child at school on Monday at 9am. The Father is to collect the child at school on Wednesday at 3pm and deliver the child to school on Thursday 9am.
8. The Father may travel to overseas with the child once orders 6 commences.
9. The Father have telephone or video chat with the child every week on each Wednesday at 6pm for a period of 30 minutes.
10. The Father have telephone contact with the child on alternate Sunday when the child is not spending time with the Father at 6pm for a period of 30 minutes.
11. Contact between Mother and Father to be in writing via email or text and solely to do with arrangements for the child.
12. Contact via phone allowed only in an emergency between Mother and Father (emergency meaning child falling ill, injured or unforeseen traffic conditions causing delay). Parents to advise one another in an emergency via phone call.
13. In between the visits, Father to take child to sporting events that the child is interested in when they become available.
14. Father to take/enrol child to [sporting activities] due to Father’s experience, coaching, knowledge and passion for sports.
15. School Holidays to be shared between Father and Mother 50/50.
16. Christmas Day and Christmas Holidays to alternate each year between Father and Mother.
17. New Year’s Eve to alternate each year between Mother and Father.
18. Father’s Day – child to spend weekend with Father.
19. Mother’s Day – child to spend weekend with Mother.
20. Childs birthday to alternate each year between Father and Mother.
21. Easter to alternate each year between Father and Mother.
22. Both parents to be allowed to communicate with child by mobile phone or electronically (Facetime/Skype). Both parents shall provide a setting in which such communications can be private.
23. Both parents to be allowed to communicate with child by mobile phone or electronically (Facetime/Skype) and permitted to use Apps in order to assist with education, learn a language and play games with child.
24. Both parents to be allowed to send personal emails to child.
25. Both parents permitted to attend events organised by the school and sporting events and that the child is involved with or attending.
26. The child is permitted to travel to England, [Country M] and [Country AG] once per year to visit family with his Father. [X] is permitted to travel internationally as provided by Section 11(1)(b)(ii) of the Australian Passport Act 2005 with the Father. Father shall hold the child’s passport (both Father and son being born in [Country AH]) and make the passport available only for the purposes of the child’s travel as authorised by these orders.
27. Extended arrangements to be agreed due to distance of travel (one month away during School Holidays is appropriate). Mother to be advised in writing. Both Father and child were born in [Country AH] and have family there.
28. The child is allowed to holiday travel Australia-wide (outside school times) with Father when opportunity arises. Mother to be advised in writing.
29. Should Father’s family from outside Australia plan a trip to Australia to visit [X] and Father then additional time with Father to be allowed for
30. Neither parent to move/relocate with child outside Central Sydney without a Court Order
31. The parents are to have equal shared parental responsibility for decisions relating to the child, major long-term and health issues
This appears to be a duplication of the first order.
32. In the event the parent is not available to spend time with child, the parent to provide notice to the other parent via SMS/email with:
32.1. At least 24hrs notice in writing prior to the non-attendance, if spend time was scheduled during school time
32.2. At least 48hrs notice in writing prior to non-attendance during any school holiday period
33. Both parents are committed to putting the child's best interest first
34. Should a non-agreed time become available then parents to agree in writing.
35. Neither parent will consume more than two standard drinks on any day while the children are with them.
36. Neither parent to talk derogatory about each other in front of child, each parent will not denigrate the other parent in the presence of child
37. [X] to remain at [J School] until the end of Year 6
38. Both parents permitted to attend events organised by the school and sporting events that the Child is involved with or attending.
During the hearing, the Father’s Counsel clarified that the weekend time with X proposed in order 7 of the Father’s orders was intended to be each alternate weekend, with the Wednesday to Thursday time being each week, so as to achieve five nights per fortnight as stated in order 6. I placed a handwritten note “alt w/e” at the end of the first sentence of order 7 on the Father’s minute of orders in his Case Outline document for clarity.
At the commencement of submissions Mr Longworth advised the Court that the Mother adopted the majority of the ICL’s minute of order that is Exhibit ICL13 with a few amendments and the addition of orders 2, 3, 4 and 14 from the Mother’s minute of order in her Case Outline document. Ms Shea advised that the ICL agreed with each of the Mother’s amendments to the ICL’s proposed orders and agreed with the Mother’s four additional orders. For that reason I set out the orders sought by the ICL with the amendments proposed by the Mother and the Mother’s additional orders as one set of orders as follows:
1. That all previous parenting orders in relation to the child, [X], born [in] 2012, be discharged.
2. That the Mother have sole parental responsibility for [X].
3. That [X] live with the Mother.
4. That [X] spend time and communicate with the Father as follows:
4.1. If the Father is living in Australia:
4.1.1. On one occasion each calendar month for a period of 3 hours, being from 1 pm to 4 pm on the third Sunday of each month unless otherwise agreed in writing between the parties.
4.1.2. Such time to be supervised by:
4.1.2.1. A commercial supervision agency agreed in writing between the parties; or
4.1.2.2. A suitable person agreed to in writing between the parties conditional upon the supervisor signing an undertaking in terms of Annexure “A” and providing a copy of the signed undertaking to the Mother prior to supervising any time pursuant to these Orders, or
4.1.2.3. Failing agreement, the commercial supervision agency, [B Contact Centre].
4.1.3. For the purpose of Order 4.1.2 the following procedure shall apply:
4.1.3.1. Not less than one calendar month prior to each occasion that [X] is scheduled to spend time with the Father, the Father is to inform the Mother by email of the name of the commercial supervision agency or person he proposes to supervise the time pursuant to Orders 4.1.2.1 or 4.1.2.2;
4.1.3.2. Within 3 days of receiving notification from the Father in accordance with Order 4.1.3.1, the Mother is to inform the Father by email whether she agrees with the commercial supervision agency or person he proposes to supervise the time;
4.1.3.3. If the Mother does not agree to either the commercial supervision agency or person proposed by the Father then Order 4.1.2.3 is to apply, and
4.1.3.4. In the event the Father does not make any proposal within the timeframe referred to in Order 4.1.3.1, then Order 4.1.2.3 is to apply.
4.1.4. That the Father bear the costs of supervision.
4.2. If the Father is living outside of Australia:
4.2.1. On up to 12 occasions each year in Sydney, for 3 hours on each occasion, and no more frequent than 2 occasions each week, provided that the Father notifies the Mother in writing of his intention to travel to Sydney and nominates the dates and times he proposes to spend with [X], at least 6 weeks prior to his arrival in Sydney unless otherwise agreed in writing between the parties.
4.2.2. Such time to be supervised by:
4.2.2.1. A commercial supervision agency agreed in writing between the parties;
4.2.2.2. A suitable person agreed to in writing between the parties conditional upon the supervisor signing an undertaking in terms of Annexure “A” and providing a copy of the signed undertaking to the Mother prior to supervising any time pursuant to these Orders, or
4.2.2.3. Failing agreement, the commercial supervision agency, [B Contact Centre].
4.2.3. For the purpose of Order 4.2.2 the following procedure shall apply:
4.2.3.1. Not less than one calendar month prior to each occasion that [X] is scheduled to spend time with the Father, the Father is to inform the Mother by email of the name of the commercial supervision agency or person he proposes to supervise the time pursuant to Orders 4.2.2.1 or 4.2.2.2;
4.2.3.2. Within 3 days of receiving notification from the Father in accordance with Order 4.2.3.1, the Mother is to inform the Father by email whether she agrees with the commercial supervision agency or person he proposes to supervise the time;
4.2.3.3. If the Mother does not agree to either the commercial supervision agency or person proposed by the Father then Order 4.2.2.3 is to apply, and
4.2.3.4. In the event the Father does not make any proposal within the timeframe referred to in Order 4.2.3.1, then Order 4.2.2.3 is to apply.
4.2.4. That the Father bear the costs of supervision.
5. Notwithstanding any other order, and subject to the directions of any school at which [X] is enrolled, or the written consent of the Mother, the Father is permitted to attend the following school events:
5.1. [Sports] carnival in even numbered years;
5.2. Swimming carnival in odd numbered years,
5.3. The end of year school picnic in even numbered years and
5.4. The end of year school presentation/speech day in odd numbered years.
6. If the Father does not plan to attend an event he is entitled to attend pursuant to Order 5, he is to notify the Mother in writing at least 7 days prior to the event.
7. If the Mother does not plan to attend the following school events:
7.1. [Sports] carnival in odd numbered years;
7.2. Swimming carnival in even numbered years,
7.3. The end of year school picnic in odd numbered years and
7.4. The end of year school presentation/speech day in even numbered years,
then she is to notify the Father in writing at least 7 days prior to the event, and upon receiving such notification from the Mother, the Father is at liberty to attend the event in her place.
8. That the Father be at liberty to send [X] a card and/or gift for his birthday and Christmas each year.
9. That the Father be at liberty to request from any school attended by [X] a copy of his school reports and school photograph order forms.
10. That the Mother notify the Father of any change in [X]’s school enrolment within 7 days of such change.
11. That the Mother notify the Father as soon as practicable in the event [X] is hospitalised or suffers a significant injury or illness.
12. That each party notify the other within 7 days of any change in their postal or email address.
13. That the Father be and hereby is restrained by injunction pursuant to section 68B of the Family Law Act 1975 from:
13.1. Contacting or approaching the Mother in any way whatsoever, except for the purposes of implementing these Orders.
13.2. Communicating with [X] in any way other than as provided for in these Orders.
13.3. Coming within 100 metres of the Mother’s home, place of work or place of education.
13.4. Coming within 100 metres of any school at which [X] is enrolled, except in accordance with Orders 5 and 7.
13.5. Coming within 100 metres of any place at which [X] is participating in an extra-curricular activity.
14. That each party be and hereby is restrained from:
14.1. Making critical or derogatory remarks about the other party, or any member of the other party’s family or partner, to or in the hearing of [X];
14.2. Discussing these Court proceedings, or any of the issues raised in these proceedings, with [X] or in his hearing;
14.3. Allowing [X] to remain in the hearing of any third party who is making critical or derogatory remarks about the other party, or any member of the other party’s family, or discussing these Court proceedings, or any of the issues raised in these proceedings.
15. That the Mother have leave to provide a copy of [Dr E’s] report dated 12 February 2020, and Judge Morley’s final orders and reasons for judgment, to any Counsellor, therapist, psychologist or psychiatrist assessing or providing treatment to [X] in the future.
16. That the Mother have leave to provide a copy of [Dr E’s] report dated 12 February 2020, and Judge Morley’s final orders and reasons for judgment, to any Counsellor, therapist, psychologist or psychiatrist assessing or providing treatment to the Mother in the future.
17. That the Father have leave to provide a copy of [Dr E’s] report dated 12 February 2020, and Judge Morley’s final orders and reasons for judgment, to any Counsellor, therapist, psychologist or psychiatrist assessing or providing treatment to the Father in the future.
18. That the Mother have leave to provide a copy of Judge Morley’s final orders and reasons for judgment to any supervisor agreed between the parties for the purposes of Orders 4.1.2.2 or 4.2.2.2, and both parties have leave to provide a copy to the Father’s parents.
19. That within 3 months of the date of these Orders, each party the sum of $8,072 to Legal Aid NSW being their contribution towards the costs of the ICL in these proceedings.
20. Nothing in these Orders will prevent the Father from attending parent/teacher interviews separately to the Mother's attendance.
21. The Mother shall be authorised to do all acts and things and sign all documents necessary to apply for and maintain an Australian passport for [X] in the absence of consent from the Father or otherwise.
22. For the purpose of Order 21 herein, [X] is permitted to travel internationally as provided by Section 11(1)(b)(ii) of the Australian Passport Act 2005 and for this purpose the Mother is permitted to apply for an Australian passport for [X] under the provisions of Section 11(1)(b)(i) of the Australian Passports Act 2005.
23. The Father is hereby restrained from removing or attempting to remove or causing or permitting the removal of [X] , born [in] 2012, from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by placing the name of the child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth Bank of Australia and maintain the child’s name on the Watch List until the Court orders its removal, subject to Order 22.
ANNEXURE “A”
UNDERTAKING BY SUPERVISOR
1. My full name is _________
2. My residential address is _________
3. My mobile telephone number is _________
4. I am willing to act as supervisor of the time which the child [X], born [in] 2012, spends with his Father, [Mr Mancari].
5. I have read the Judgment of his Honour Justice Morley and I am aware of the reasons for supervision of the time which [X] spends with his Father.
6. I understand that if I am to supervise [X] during the time [X] spends with his Father, I must ensure that [X] is safe and not exposed to any physical, psychological or emotional harm.
7. In order to ensure that [X] is safe and not exposed to any harm, I will monitor all interactions between [X] and his Father and understand that this would require me to:
a. Watch [X] and his Father at all times, and not allow [X] to be on his own with his Father and
b. Remain close enough to [X] and his Father so that I am able to hear all conversations between his Father and [X].
8. I undertake to perform my role as supervisor as set out in this undertaking.
9. I undertake to immediately bring the time which [X] is spending with the Father to an end, remove [X] from the Father’s presence and contact the Mother to arrange for [X] to be collected:
a. If the Father says or does anything to prevent, or attempt to prevent, me from fulfilling my obligations set out above;
b. If I consider that the Father says or does anything during his time with [X] which raises a concern for me that [X] may be exposed to physical, psychological or emotional harm;
c. If the Father says anything critical or derogatory about the Mother, or
d. If I consider that for any other reason [X] may be exposed to harm.
10. At the commencement of the time which [X] spends with the Father I will collect [X] from his Mother at a location agreed between us, and at the conclusion of the time I will return [X] to his Mother at a location agreed between us, and I undertake that the Father will not accompany me to the changeovers at the commencement or end of the time.
………………………………………………….
Signature
Dated:

The Father was cross examined by Mr Longworth on 8, 9 and 10 December 2020, and by Ms Shea on 10 December 2020.
When the matter returned part-heard on 17 June 2021, the Mother was granted leave to re-open the cross-examination of the Father consequent upon new matters having arisen during the period of six months that the matter was adjourned. The Father was further cross-examined by Mr Longworth and Ms Shea.
The Mother was cross-examined by Mr Livingstone and Ms Shea on 17 and 18 June 2021.
Dr E was interposed during the Mother’s evidence on 17 June 2021 and she was cross-examined by both parties and the ICL.
Neither of the Mother’s witnesses, Ms G and Ms F, were required for cross-examination
Verbal submissions were made for the ICL and for both parties on 18 June 2021 and judgment was reserved.
The evidence
The basic background evidence is not in dispute between the parties.
The Father was born in 1972 in Country AK. At the time the parties met the Father was living in City D and had become a British citizen.
The Mother was born in 1975 in Brisbane and at the time the parties met she was living in City D, having commenced working for Employer K in City D in 2007.
The parties met in City D in the United Kingdom in 2011. They commenced cohabitation in the United Kingdom in 2012, two or three days after their only child, X, was born.
The family came to Australia to live in 2014 and settled in Sydney.
The parties separated on 22 August 2014, but remained residing under the same roof until the Father left the home in early February 2015. At the time of the separation in August 2014 X was 2 years of age and when the Father left the home in February 2015 X was 2 years of age.
The Mother is a professional working in the finance industry and the Father is a professional. The Father lives in a unit at Suburb AL in Sydney and the Mother lives with X at Suburb AM in Sydney.
X was in Year 4 at J School at the end of the final hearing and would now be in Year 5.
The Father’s evidence in chief is quite sparse in his trial and supplementary affidavits, both drawn by him on a self-represented basis. I have considered all of the evidence in chief of the Father, including each of the annexures numbered “A” through to “EE” referred to in his trial affidavit of 23 October 2020 and the video recording that is Exhibit A1.
The Mother’s evidence in chief across her trial affidavit and supplementary affidavit is detailed and I have considered all of that evidence in chief, including the documents exhibited to her trial affidavit of 16 October 2020, and what the Mother referred to in paragraph 4 thereof as a “Tender Bundle”, as discussed earlier in these Reasons when identifying the material relied upon by the Mother.
Where there is contradiction between the evidence of the Father and evidence of the Mother I prefer the evidence of the Mother, based upon the prevaricating and self-excusing manner in which the Father gave his evidence and the straightforward manner in which the Mother gave her evidence when both were in cross-examination.
I further based my preference for the Mother’s evidence over that of the Father when in conflict on my assessment that the Mother was not shaken at all on her evidence in cross-examination, whereas the Father was shown during cross-examination to have been seriously inaccurate in important parts of his evidence in chief.
Further, I gained the repeated impression that the Father was on occasions tailoring his evidence to suit the needs of his case and avoid damaging admissions. The Father’s approach throughout his cross-examination was to start by attributing his bad behaviours to deliberate provocations by the Mother or others, that it was all their fault, and then when that attitude was picked apart, on each occasion he would bluster and backtrack.
When the Father was caught out in conflict between his evidence in chief and his evidence in cross-examination he on occasion immediately blamed the quality of his legal representation, specifically at the time of preparation and completion of his trial affidavit, and only when again pressed did he accept responsibility for his own sworn evidence.[3]
[3] P-62.
On an occasion during his cross-examination by Mr Longworth, the Father was asked the same question five times and only on the fifth occasion did he answer the question, having evaded answering on the first four occasions. This occurred on the second day of the hearing, at the beginning of which I had cause to give the Father a short lecture about answering questions responsively.[4]
[4] P-179-180.
Where any of the following facts are from the Mother’s evidence in chief, they are detailed in these Reasons on the basis that I accept all of that evidence.
The Father’s evidence in chief in his trial affidavit, after giving background details of dates of birth and commencement of relationship, refers to the parties’ move to Sydney in mid 2014, then refers to an incident of violence between the parties on 15 December 2014.
That is all the detail we have in his evidence in chief in relation to the period of the parties’ cohabitation and their separation in August 2014 and the period of residing under the one roof after the Father left in early February 2015.
The Father gives evidence that during a heated argument on 15 December 2014 the Mother tore the shirt he was wearing and bit his left pectoral, drawing blood. The police attended the home and the Mother was issued with a Provisional Apprehended Domestic Violence Order (‘ADVO’) naming the Father and X as protected persons and containing only the mandatory orders that the Mother not assault, molest, harass, threaten, or otherwise interfere with the protected persons, not engage in any other conduct that intimidates the protected persons, and not stalk the protected persons.
The proceedings were discontinued before final hearing and no final order was made, the Provisional Order lapsing on 14 January 2016. Exhibit R12 is a copy of a letter of 17 December 2014 from the Father to the Area Commander of Suburb AB Police Station seeking that the application be withdrawn by police.
On 19 December 2014 police also issued the Mother with a Court Attendance Notice relating to a charge against her of common assault, but it seems that the charge was also withdrawn by police.
The version found in the “Grounds of the Application” attached to the Provisional Order in Annexure “A” to the Father’s affidavit is that the parties were at home in the kitchen arguing, the Father noticed that the Mother’s phone was lying on the dining table and that it was recording the conversation, both parties reached for the phone at the same time, but the Father grabbed the phone first, deleted the recorded conversation and then lifted the phone above his head out of the Mother’s reach.
The Mother tried to take the phone from the Father and pulled on the Father’s T-shirt causing it to rip and she then lent forward and bit the Father’s left pectoral. The Father pushed the Mother away and left the room. The Mother called the police and ask them to attend. Police note in the grounds that although the Father indicated he wanted no action taken, police made an application for an urgent AVO on the basis that there was a child, X, living at the location “in the event further incidents will escalate in nature”.
The Mother’s version in paragraph 67 of her trial affidavit differs in some detail in that she asserts that she was recording the argument between herself and the Father, the Father tried to grab her mobile phone and grabbed her hands and attempted to take the phone away from her, she held on tightly to the phone and the Father “dragged/pulled” her into the bedroom and when the Father managed to dislodge one of her hands from the phone she grabbed the collar of his T-shirt, which ripped, whereupon the Father twisted her other hand which was still on the phone causing her pain and she bit him in an attempt to have him release his grip. She says that whilst she telephoned to the police from the Father’s phone, the Father deleted the recording from her phone.
In cross-examination, the Father admitted that he deleted the recording from her phone,[5] and conceded that he made the deletion because the recording potentially “contained statements and tone of voice by [the Father] threatening to Ms Padova”.
[5] P-110.
The heated argument between the parents on 15 December 2014 had arisen following the Father collecting X from his daycare centre that was located close to the Location AN in Sydney where the tragic events of the Location AN were taking place throughout that day. I do not relate in these Reasons and I certainly do not criticise the actions of the Father on that day in collecting X from a lockdown situation at the Day Care Centre. The knowledge of what was happening and X’s proximity to the events would have been excruciating for the parents. But that is a wholly different matter to the events of that evening between the parties at the family home.
It is also a wholly different matter to how the Father attempted to depict the Mother’s attitude to the safety of the child on that terrible occasion in paragraph 17 of his affidavit affirmed and filed in these proceedings on 27 September 2019[6] where he said:
I ran across the [Location AO] when I found out about the [Location AN] in 2014 that was taking place 20 m from [X]’s childcare centre while the Respondent never left her office 100m away
[6] Exhibit R11.
The Father deposes this despite being fully aware that at the relevant time, the Mother was in lockdown at a place of work and could not exit the building.
It was put to the Father by Mr Longworth that he did not say that the Mother was in lockdown and could not leave because the Father wished to give the impression “… that she had been negligent for failing to attend to X” with which the Father agreed.
He also agreed that on the day, there was a telephone conversation between himself and the Mother in which she made it plain that she was desperate to get to X but could not do so.
In his evidence the Father sought to attribute the argument between the parents on the evening of 15 December 2014 to the Mother’s jealousy of the attention the Father received after breaking through a police cordon and collecting X from his day-care centre. I do not accept the Father’s evidence in that regard.
The Father says that he moved out of the family home “3 weeks after the incident”, in early February 2015.
In paragraph 9 of the Father’s trial affidavit he says “I have never laid a finger on the Mother or threatened her”, a statement that the vast bulk of the evidence proves to be untrue. In paragraph 47 of his supplementary affidavit the Father says “I also deny any allegations that I threatened to kill anyone.” That denial is contradicted by the evidence, including evidence by way of an audio recording of the Father, as will be detailed later in these Reasons.
During his cross-examination by Mr Longworth about the contradiction between his denial of ever having threatened the Mother in his evidence in chief and the evidence before the Court of such threats, which he then accepted having made, the Father admitted to the Court that one purpose of his threats to the Mother was to force her to stay in a relationship with him through fear. When it was pointed out to him by Mr Longworth that he would only achieve his aim if the Mother reacted through fear, and that she would only react through fear if she believed his threats, and that this contradicted his repeated assertion that the Mother did not regard his threats as genuine, the Father prevaricated and blustered and would not face the contradiction.[7] Only after being repeatedly pressed did he admit “my behaviour was threatening at the time.”[8]
[7] P-64.
[8] P-66.
Immediately thereafter, when further pressed and confronted with his statement to Dr E appearing in the report that he had never threatened anyone, and asked if such statement was false, he repeatedly evaded the admission by first saying “I think I was trying to say that I didn’t follow through with any of the threats from the past because the threats were on paper”, seeking to excuse his past conduct on the basis that he had never followed through on his threats, and then asserting “Either false or – or incorrectly written but – taken down or maybe – sometimes I don’t explain myself 100% accurately. I make errors with – with the odd word”, thereby seeking to blame Dr E for his own erroneous statement.[9]
[9] P-66.
He then turned to asserting that he had misunderstood the meaning of the word “threatening” at the time of interview with Dr E by asserting that he thinks “threatening” means making a threat and then following through with that threat – a hardly credible assertion and a tissue thin prevarication in an attempt to evade responsibility for his actions and for his incorrect evidence in chief.[10]
[10] P-67.
Finally, the Father returned to excusing his false evidence by asserting that the first two pages of his trial affidavit were simply super-copied from his earlier affidavit and he assumed it was correct.[11] I do not accept that is evidence was truthful as there is no earlier affidavit by the Father that commenced in the same content as the first two pages of the Father’s trial affidavit.
[11] P-68.
In June 2015 the Father was diagnosed with “adult attention hyperactivity disorder (ADHD) – combined inattentive and hyperactive subtype with hyperactivity in attenuation” by a consultant psychiatrist, Dr L.[12] The Father was prescribed dexamphetamine tablets. The Father told Dr E during interview for the expert’s report that he was initially diagnosed with adult ADHD by a psychiatrist in City D and was again diagnosed by Dr L in 2015.
[12] Father’s trial affidavit, annexure “E”
In his trial affidavit of 23 October 2020 the Father said in paragraph 11 “During the last 2 years there has been no contact between the Mother and I”. However, attachment “A” to the Father’s supplementary affidavit of 7 December 2020 is a copy of an email chain of communication between the Father and the Mother between 11 March 2020 and 4 December 2020.
On 28 January 2015 a Final ADVO was made for the protection of the Mother and X from the Father in the Local Court at Sydney in the Location AL for a period of 12 months. In addition to the statutory order, the final AVO provided that:
(1)The Father must not reside at the premises where the protected persons reside
(2)The Father must not approach or contact the protected persons by any means whatsoever except through the Father’s legal representatives or as agreed in writing or permitted by an order or direction of the Act as to counselling, conciliation and mediation;
(3)The Father must not approach the Mother or X or any premises or place at which they from time to time reside or work within 12 hours of consuming intoxicating liquor or illicit drugs;
(4)The Father must not deliberately damage or destroy or interfere with the property of the Mother or X;
(5)The Father must not approach the school or other premises at which the Mother or X may from time to time attend for child care, and specified the AP Early Learning Centre.
Despite the terms of the order it is plain on the evidence that the Father on occasions breached the order by sending emails to the Mother that were outside the ambit of “as agreed in writing”.
On 5 July 2016 a Provisional ADVO was made by an authorised police officer for the protection of the Mother and X from the Father. The order contained the mandatory orders, as outlined earlier in these Reasons, and additional orders providing that:
(1)The Father must not approach or contact the Mother or X by any means whatsoever except through his legal representative or as agreed in writing or as permitted by an order or direction under the Act as to counselling, conciliation, or mediation; and
(2)The Father must not approach the school or other premises at which the Mother or X may from time to time attend for the purposes of educational childcare or other specified premises, and “AP Nursery” is specified.
A principal basis for the issue of the Provisional Order was that on 1 June 2016 the Father said to the Mother:
Two years ago I would have killed you, stabbed you in half. I’d like to drive you over the bridge, alone! My plan is to ensure [X] hates you and moves with me to [City D]. I hope you die of cancer painfully and slowly. That’s what you deserve. If I die in the next few years due to liver cancer because I drink 15 bottles of wine a week, or lung cancer because I smoke a pack of cigarettes a day, then it’s your fault. You better hope that doesn’t happen because if my life is cut short, well you can guess what will happen.
An Interim ADVO was then made at the Local Court at Sydney in the Location AL on 27 July 2016 and a Final ADVO was made on 11 November 2016, in force for a period of 12 months. Copies of the provisional, interim and final orders are in evidence in Exhibit R27. Once again, one of the orders was that the Father:
… must not approach or contact the protected persons by any means whatsoever except through that the defendants legal representative or as agreed in writing or as permitted by an order or directions made under the Family Law Act 1975, as to Counselling, conciliation or mediation.
Once again, the evidence makes plain that the Father breached that order on a number of occasions by sending emails to the Mother that were outside the ambit of permitted contact under the order. The Father also breached the order by attending at the Mother’s place of residence on 23 August 2017.
He was charged with both breaches and convicted on both charges in the Local Court at Sydney in the Location AL on 30 August 2017 and sentenced under section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘the Sentencing Act’) to a six months good behaviour bond on one and twelve months good behaviour bond on the other. The Father appealed the severity of sentence on both matters, and on 22 March 2018 in the District Court at the Location AL, the sentences were each varied to a finding of guilty but not proceeding to conviction and the imposition of:
(1)A twelve month good behaviour bond on one charge; and
(2)A six month good behaviour bond on the other charge
under section 10 of the Sentencing Act.
Exhibit R16 is a two-page letter headed “AFFIDAVIT” dated 29 August 2017 from the Father addressed to “Your Honour” for the attention of the Presiding Magistrate in the Local Court setting out his case in defence. The Father was cross examined about the document,[13] and when asked if the document “fairly represented to the judicial officer the facts as you knew them” he answered “No.”
[13] P-168-172.
On 3 December 2017 the Father spent time with X unsupervised at a beach. The Father attaches 14 black-and-white photographs of the occasion as Annexure “E” to his trial affidavit and X is obviously enjoying himself.
The 11 November 2016 final AVO was varied on 7 December 2017 so as to continue until 6 December 2019 and provide, in addition to the mandatory orders, that the Father:
(1)Must not approach the school or any other place where the Mother or X may go for study or for childcare or J School;
(2)Must not approach the Mother or X or contact them in any way unless through a lawyer, to attend accredited or court-approved counselling, mediation, and/or conciliation, or as agreed in writing between the Father and the Mother about contact with X;
(3)Must not go within 50 metres of any place where the Mother and X live or work, specifying the address of the Mother and X’s place of residence at Suburb AM, but providing that the Father was permitted to attend J School:
in respect to events his child is directly participating in. These events will be outlined by the school and the defendant is to provide confirmation of his attendance 48 hours prior to the event date to [the Mother] by email [the Mother’s email address]

On 21 December 2018 the Father was arrested on suspicion of having breached the then current AVO by an attendance at X’s school, but was released the following day without charge.
In keeping with the terms of the 7 December 2017 AVO, the Father attended 16 events at X’s school through 2018 and up to February 2020 on dates detailed in paragraphs 30 and 38 of his trial affidavit. One of those events, on 17 December 2018, was X’s school picnic at Z Park. The Father put into evidence as Exhibit A1 a video made by him that day commencing after X had joined his Mother to leave the park and showing X running back to his Father across the park. When asked by his Father why he had run back, X tells his Father he loved him, and after being held for a short while by his Father facing toward the camera with his back against his Father, X turns and gives his Father a hug and then runs back across the park to where his Mother was waiting, turning to wave back at his Father on two occasions.
I have carefully reviewed that Exhibit in preparation for these Reasons.
The SARS-CoV-2/COVID-19 pandemic caused the Father’s attendance at X’s school occasions to come to an end in March 2020.
Following the making of interim orders in the proceedings by consent on 7 February 2019 by consent for the Father to spend time with X supervised by B Contact Centre each alternate Thursday from 3:00PM until 6:00PM, the Father spent time with X in accordance with those orders between March and June 2019.
The Father asserts a concern that the Mother is discussing Court matters with X and denigrating the Father in front of X. He refers to a B Contact Centre Supervised Contact Report of the occasion on 10 April 2019 that reports:
[The Father and [X]] talked about cousins in [City D]. The Father said, ‘I want to take you to [City D] one day.’ [X] said, ‘You can’t because you are not signing my passport.’
In the same paragraph of his trial affidavit, the Father asserts that on 5 June 2018 X made another statement to him indicating that the Mother had denigrated the Father to or in the hearing of the child, but he does not give any detail of the circumstances, whether a supervised occasion or during telephone communication, noting that 5 June 2019 was a Wednesday.
Paragraphs 42 to 54 of the Father’s trial affidavit are under a heading “Concerns regarding Mother”. Much of the material therein is assertion without a factual basis having been provided and by way of submissions. I do not give that evidence any weight.
The Father has completed the following courses:
(1)Parenting After Separation in five sessions between 6 November and 4 December 2019;
(2)Men’s Anger Management Group at AQ Counselling over six occasions totalling 12 hours in August and September 2020;
(3)Taking Responsibility – For Men through C Counselling, attending 17 out of 18 two and a half hour sessions between 19 February 2020 and 4 November 2020;
(4)Bringing Up Great Kids by attending all four sessions in October and November 2020;
(5)Circle of Security Program with C Counselling, an 8 week course, completed in December 2020.
He sets out in paragraphs 16 to 39 of his supplementary affidavit what he asserts he has learnt from each of those courses.
In an interview with an officer of the NSW Department of Corrective Services on 24 January 2020 (while the Father was under an intensive correction order as is detailed later in these Reasons) the Father told the officer that he “has signed up to partake in C Counselling’s Taking Responsibility Course”, and when asked by the officer why he had done so, the officer noted “Mr Mancari stated that he did this due to him ‘Thinking that it will please the Judge’ and also assist in his family Court proceedings”.[14]
[14] Exhibit ICL10
Following the Father vacating the home in early February 2015, X spent time with his Father as follows:
(1)From March/April 2015 until June 2015 most Friday nights, Saturdays and Tuesday afternoons;
(2)From August 2015 until December 2015 on most Saturdays;
(3)From the end of December 2015 or early January 2016 until about July 2016 on some overnight occasions;
(4)From July 2016 until at least August 2016 for daytime occasions only with no overnight stays, a few overnight stay occasions occurring between August and October 2016;
(5)From December 2016 until March 2017 daytime only;
(6)From March 2017 until 2018 daytime only on only three or four occasions;
(7)During 2018 only on eleven occasions when the Father attended X’s school functions, as detailed in paragraphs 30 and 38 of the Father’s trial affidavit;
(8)Pursuant to the interim orders made on 7 February 2019, supervised by B Contact Centre, on 11 March 2019, 10 April 2019 and 23 May 2019 and on eleven occasions at X’s school;
(9)The Father did not take advantage of any occasions of spending time with X supervised by B Contact Centre pursuant to the interim orders of 7 February 2019 after the occasion on 23 May 2019, though it was open to him to do so;
(10)Pursuant to the interim orders made 10 December 2019, between the first occasion on 6 February 2020 and 13 June 2021 (the last occasion before completion of the final hearing) the Father spent supervised occasions with X once in each of February, March, May, June, July and November of 2020, January, March, April, and June of 2021, and twice in April, August, September, October, and December of 2020.
Many of the occasions of time between X and his Father during 2020 took place at the Father’s home, with other occasions occurring at AR Reserve, the Location AS at Suburb AM, and the AT Sports Centre. Supervision Reports provided by B Contact Centre are in evidence for all of those occasions and the three occasions in 2019.
From early February 2015 when the Father left the family home until some time in 2016, the Mother facilitated regular communication between the Father and X through FaceTime. The Mother ceased facilitating these calls in consequence of comments being made by the Father to X of an inappropriate nature.
At the end of July 2014, after the parties moved to Sydney, X began attending AP Early Learning Centre. The Mother took X to and collected him from the centre each day as it was located near her place of work with Employer K in the Sydney CBD.
In 2017, X commenced kindergarten at Y School, and then from Term 3 of kindergarten he has attended J Public School.
X is a healthy child and has no major health issues.
X has extended maternal family members – cousins, aunts and uncles and grandfather – residing in Adelaide, Brisbane, and City P. On a weekly basis, the Mother facilitates X speaking with his paternal grandparents reside who in City D. The Mother gives evidence that she “would welcome [the Father’s] parents coming to Australia to spend time with X.”
The Mother says plainly in paragraph 23 of her affidavit “X loves his dad”.
During 2013, Father made statements to the Mother that include: “I want to smash you up”, “I wish you would disappear into the River AU, no one would know”.
In May 2014 during an argument between the parents, and whilst the Mother was in bed with X, the Father threw a weighted doorstop at her. The Mother does not say if the object struck her. In cross-examination the Father denied that he threw a weighted doorstop at the Mother.[15] I accept the Mother’s evidence on this matter.
[15] P-70.
In mid 2014, the parties and X were holidaying in the Father’s country of birth, Country M, and were driving in a mountainous area when the Father began driving dangerously and said to the Mother, “I don’t care if I kill us all”. Later that evening, the Father drank a bottle of wine and then smashed the empty bottle on the floor and threw a suitcase on the floor causing the contents to spill. The Father denied the Mother’s evidence during his cross-examination.[16] I accept the Mother’s evidence.
[16] P-70.
In an email to the Mother dated 17 June 2014 the Father wrote:
He [X] also hate you when he is older; you will be one sad and lonely woman in a few years’ [sic] time (just like the old woman from [Location AV]). I promise you that I am 100% he will want to be with his Dad. You have nothing to offer [X] when he is 8 years plus. Let’s fight more tonight instead. I can’t wait for you to come home.
Following the parties’ relocation Australia on 5 July 2014 and until shortly before the Father vacated the home in February 2015 the Father “was drinking heavily, consuming 1 to 3 bottles of wine in an evening possibly 4 nights a week.” It was during that period, on 22 August 2014, that the parties separated on the Mother making the decision that as far as she was concerned the marital relationship had broken down irretrievably.
Shortly after arriving in Sydney in 2014, the Father smashed a bottle of wine in the serviced apartment the parties were renting, called the Mother “cunt, fucking bitch” and said to her “I want to throw you off the balcony”. The Father then said to X, “Throw this on the floor” and handed X a wine glass.
On another occasion whilst the parties were living in the serviced apartment (where they lived for the first five weeks after moving to Sydney before moving into a rented apartment in Suburb AW) the Father said to the Mother, “I would love to see you burned alive” and “I will come back to kill you. 15 years is nothing”. These statements were made by the Father in the presence of X.
Between mid 2014 and the end of December 2014 the Father smashed about 10 items, such items usually being glasses, wine bottles or a bowl.
Towards the end of September 2014 during an argument the Father threw a wine glass and a dish across the room and it smashed in the kitchen. The Mother contacted police and two officers from Suburb AB Police Station attended the parties’ unit and recorded the incident. The Mother did not request that police take any action in relation to the Father, such as their offer to take out an ADVO against the Father, as the Father had said to the Mother:
If you involve the police and have me kicked out you had better watch your back because the police cannot be there all the time
During his cross-examination, the Father admitted to smashing the wine glass on the floor (though he vacillated between admitting that he threw it and asserting that he dropped it) and asserted that he did not remember the plate.[17] I accept the Mother’s evidence.
[17] P-72.
Similarly, in the same cross-examination, the Father initially denied making the statement to the Mother “if you involve the police and had me kicked out you had better watch your back because the police cannot be there all the time”, replying “I disagree with that” and then changing his evidence to “I might have said that”.
In the period between separation on 22 August 2014 and 28 January 2015 the Father often referred to the Mother as “a fucking bitch” and “you cunt” in the presence and hearing of X, prompting X to say on occasions “Mummy is not a fucking bitch” or “Mummy is not a cunt”.
As will be expressed later in these Reasons, when reviewing the evidence contained in the audio recordings, the Father encouraged X to smash items in the marital home (including glass items), to throw heavy items into glass panes so as to cause them to smash, and said to X “X, tell your Mother she is a cunt.”
On 22 August 2014, the date the Mother gives as the parties’ separation, the Mother told the Father that she would speak to a lawyer in the morning and the Father replied:
If you speak to a lawyer I’ll fucking kill you and I don’t care if I get 20 years but you won’t be around and [X] will forgive me by then.
This brings the Court to a significant body of evidence in substantiation of the Mother’s statement in paragraph 38 of her trial affidavit, that during and from the period of their separation under the one roof between 22 August 2014 an early February 2015, “[the Father] started to become fixated on trying to turn X against me.”
On 2 October 2014, the Father sent the Mother and email in which he wrote:
Every moment I spend with my son he will see my hatred towards you. He will see how much you have damaged me. I will be turning him against you. I will fight you until he is grown up and mine.
During the period of residing under the same roof following separation the Father said to the Mother on more than one occasion:
[X] needs to know what you have done. I guarantee that [X] will not want to know you and I will educate him against you. I will do anything I can to hurt you
and
If you don’t change your attitude things will get worse, it will be war and [X] needs to see how much I hate you.
On 29 October 2014, the Father sent the Mother and email in which he wrote:
Every time I collect him from nursery he rejects me and starts crying wanting you. Every morning and night, he ignores me. You know this has been going on from day one yet you still chose to do nothing about it and continued to control him and distort our love for each other. ZERO consideration for the relationship between son and father, ZERO. You have kidnapped my parenthood and now you have gone the extra step and killed him and me for good. I hope you are proud of yourself
I find that there is no evidence before the Court whatsoever to ground an allegation by the Father that the Mother has taken any active steps to interfere in the relationship between Father and child other than to act protectively of X at all times whilst still seeking to foster and encourage a relationship between Father and child.
In November 2014, the Mother informed the relevant immigration authorities for the Commonwealth of Australia that she and the Father had separated. The Mother gives evidence that from this time the Father:
began using physical violence and he shoved me a number of times during arguments, he kicked me and threw objects at me. …… On other occasions when [X] was upset he would deliberately push [X] so that he fell and make [X] cry more.
During his cross-examination the Father denied those allegations.[18] I accept the Mother’s evidence on this matter.
[18] P-73.
In around November 2014 the Father said to the Mother “I should take a knife and stab you through the head”.
On 13 November 2014 the Father sent an email to the Mother in which he wrote (all in capitals):
You carry on lying, [X] is mine all this weekend. Do not say anything to me between now and then, otherwise I will not be responsible for my actions.[19]
[19] Punctuation added.
During cross-examination, the Father accepted that these words were a threat by him to the Mother. He accepted that it was “a chilling threat”.[20]
[20] P-74.
On 7 December 2014, the Father said to the Mother “I will take X in the car and drive into a wall”. The Mother attaches as 6 to her trial affidavit a copy of an email she sent to the Father on 8 December 2014 making reference to that threat by the Father. In cross-examination, the Father repeatedly denied making that statement to the Mother, but then accepted that potentially he could have said that to the Mother, but he did not remember saying any of it.[21] I accept the Mother’s evidence.
[21] P-75.
Further during his cross-examination, the Father finally accepted that around the end of 2014, as a result of his threats, the Mother “was genuinely afraid for her life”.[22]
[22] P-76.
In paragraph 43 of her trial affidavit, the Mother says that leading up to June 2015, the Father said to her on more than one occasion:
[X] needs to know what you have done. I guarantee that [X] will not want to know you and I will educate him against you. I will do anything I can to hurt you
and
If you don’t change your attitude things will get worse, it will be war and [X] needs to see how much I hate you.
The Mother also deposes that the Father said to her that the worst punishment for her would be for the Father to kill himself and X and leave her alive. During cross-examination by Ms Shea, the Father was asked if he said that to the Mother, and he responded variously that he could not recall, that he denied saying it, that he did not think he had ever said anything to that extent, that even if he had said it, it was not something with which he would ever think about following through, that he would rather say that he did not say it, that he did not remember, that he could have said it, and, finally, that he did not remember.
Exhibit R9 is a video recording of an occasion when X was on the Father’s lap with the Father in the driving seat of his car. X is steering the car by the steering wheel, while the Father is controlling the brake and accelerator. Leaving aside the danger or otherwise of the event, during the Father’s cross-examination about that video, he initially stated that he believed the Mother was in the car with X and the Father, and that she may even have been taking the video, but when pressed he admitted that he had no recollection as to whether the Mother was in the car or not.
When pressed as to his actions as shown in the video being unsafe and a danger to X – not being in full control of the vehicle, a two and a half year old child on his lap, holding a GoPro camera in one hand and filming throughout – he asserted that at the time he did not consider there to be any danger, but that under cross-examination he accepted that there was danger to X. When asked how he thought a police officer would have reacted to the situation, he responded “I would have got in a lot of trouble, yes.”[23]
[23] P-81.
Similarly, Exhibit R10 is another video taken by the Father with a GoPro from inside his motor vehicle while X was in a trial booster seat in the back of the car, the car was in motion, and at times driving beside an articulated petrol tanker and with other cars by way of traffic on the road. When asked by Mr Longworth “Looking back on it do you think that was anything inherently dangerous about it?”, the Father replied “Looking at it now and thinking about it now, yes”. When pressed as the reason why he now saw it as being inherently dangerous, he was evasive and prevaricated despite being pressed repeatedly.[24] Finally, after persistent pressing, the Father answered “I think it was dangerous, yes, and illegal, yes.”[25]
[24] P-82-83.
[25] P-84.
In July 2015, despite their separation, the Mother agreed to accompany the Father and take X to visit his paternal grandparents and relatives in City D. On the flight home to Sydney, the Mother and the Father were sitting side-by-side and the Father abused the Mother verbally on the flight from City D via a stopover in Country N on 24 July 2015 to 26 July 2015. Sitting near the parties was a third party who until then was a stranger to the parents, Ms G, a witness in the Mother’s case.
Ms G gives evidence in her affidavit that on the flight from City D to Country N, she sat in the same row as the Mother, Father, and X. Upon her sitting down, the Father turned to her and said to her words to the effect of “You are sitting next to the family from hell”. During the flight, while the Father had left his seat to attend the bathroom, the Mother asked Ms G in words to the effect of, “Can you help me? I know you will be hearing what [the Father] says. Are you able to tell the police?” Ms G responded in words to the effect of “I am reluctant to interfere”.
After the Father returned to his seat Ms G heard him say to the Mother “You are a fucking cunt”, which the Father repeated so often that Ms G began counting the number of times he said it, but stopped counting at 20. Ms G heard the Father say to the Mother words to the effect of “Everyone diagnosed you as a cunt and they were right”.
At one point Ms G observed that X was asleep on his Mother’s lap and saw the Father try to physically pull X off the Mother and heard the Mother say to the Father words the effect of “You are hurting him, please stop” to which the Father replied in words the effect of “No, I won’t stop, he’s my son and I will pull his arm out of its socket if I want to”.

At that point I asked Dr E:
Is what you’re saying rather than that stark choice between indefinite supervision and no time at all, just lessen the frequency so that the child knows the parent is still around, still interested?
to which Dr E replied
That’s my thinking about it, your Honour. And it – and it – clearly you don’t have the secure attachment at this point because the parent isn’t easily available to the child, but you still have some sort of connection attachment that can be built on when the child is autonomous and can – and can meet up with the – well, in this case [X] can meet up with his Father on his own terms at that point. So you’ve got that foundation there that – and that connection. And it doesn’t leave [X] with the sense of, you know, “Dad kept on telling me he loved me and then he just disappeared, you know. Of course he didn’t love me.” Or “I must’ve been lacking. I must’ve been wanting in some way and he didn’t want me as a son any more.” You know, “He found another partner who had a child and he preferred that child.” I mean, there’s lots of narratives I could imagine he might tell himself.[55]
[55] P-475-476.
A short review of the principal authorities dealing with orders for long-term supervision is appropriate at this point.
In In the Marriage of B (1993) 112 FLR 45 the Full Court consisting of their Honours Fogarty, Baker and Purvis JJ said:
Supervised access is not appropriate as a long-term measure.
…
Supervisors must be available to the children for safety and support and be prepared to intervene on the children’s behalf if an issue of protection arises during the visit. It is, in our opinion, unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period.[56]
[56] In the Marriage of B (1993) 112 FLR 45, 61, 62.
In that matter, the Court was dealing with allegations of sexual abuse of the children by the parent seeking to spend time with them. The decision came before the growth of commercial supervision agencies who can make themselves available to undertake supervision responsibilities on a regular weekly or fortnightly basis for an indefinite period as that is the basis of their business.
Perhaps the best-known authority on the point is Moose & Moose [2008] FamCAFC 108, a Full Court decision in which their Honours May, Boland, and O’Reilly JJ each delivered separate judgements.
May J said at [8] and [10]:
[8] Should the Father bring a further application asking for the provision in relation to supervision at the Contact Centre be removed, his case doubtless would be met with an assertion that he may not do so because there have [sic] been no change in circumstances (Rice & Asplund).
…
[10] In my view, where an order is made that the time a parent spends with a child be under supervision indeterminately, there would need to be cogent reasons to support such orders …
From Boland J at [119]:
[119] The undesirability of, and the practical difficulties associated with long term supervision in a children’s contact centre are referred to in the Guideline for Family Law Courts and Children’s Contact Services January 2007, Part C 4.1.1 and 4.1.2 (published by the Attorney-General’s Department, the Family Court of Australia and the Federal Magistrates Court of Australia). In Fitzpatrick & Fitzpatrick (2005) FLC 93-227, May J, having found that the evidence in the case “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised…”, then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then explained “[w]hilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored”. (See also W & W [Abuse allegations: unacceptable risk] (2005) FLC 93-235, (2005) 34 Fam LR 129 at paragraph 114).
In Slater v Light [2013] FamCAFC 4, the Full Court comprised of their Honours May, Strickland, and Forrest JJ said at [38]:
While the making of orders for supervised time is an exercise of discretion, statements from the Full Court of this Court have sought to give specific guidance where such orders are to be made for an indefinite or indeterminate period ….
Reference is then made by their Honours to the above-quoted extracts from the judgments of May J and Boland J in Moose & Moose [2008] FamCAFC 108.
In Gorman & Huffman And Anor [2016] FamCAFC 174, a Full Court decision of their Honours Strickland, Murphy, and Austin JJ, all of the appellant’s grounds of appeal omitted any reference to the trial judge’s order for indefinite supervision of the Mother’s time with the children and, after finding no merit in any of the grounds of appeal, Strickland J at paragraphs [258] and [259] allowed the appeal and said:
[258] I have found no merit in any ground of appeal, however, I am troubled by the circumstances that the effect of the orders made by the trial judge is that following the initial 12 month period of the children spending no time with the Mother, there is to be supervised time that continues indefinitely. There are of course the notations to the orders recording that the ICL may “arrange for the parties to attend Family Dispute Resolution or restore the matter to the list to consider the establishment of other time arrangements between the children and the Mother”, upon being provided with a report of a therapist who has treated the Mother for a period of not less than 12 months, but that is not an order of the Court, and he leaves it entirely in the discretion of the ICL whether or not to restore the matter to the list (even if that could be done). Thus, it does not operate to necessarily bring an end to the ongoing regime of supervised time if that is appropriate.
[259] The difficulty with that in this case is … Her Honour provides no reasons for ordering the indefinite supervision of time, and it has long been the case that to put such an order in place there must be cogent reasons for doing so (e.g. see Moose & Moose … , H v K [2001] FamCA 687, and Slater v Light … .
Murphy J said at [290] to [301]:
[290] The making of orders for supervised time occurs within a broad discretion referenced to the children’s best interests exercised within mandatory statutory considerations. The conditions or limitations which might attach to orders for supervised time – and, indeed whether any conditions or limitations should attach at all – involves the exercise of that broad discretion just as much as the making of any other parenting order.
[291] “Final” orders for supervised time carry inherently the prospect of future alteration; no parenting order is a final order in the usual sense in which that expression is used. Despite the statutory desire evident in s 60CC(3)(l), a “final” parenting order is always necessarily susceptible to later being “discharge[d], varie[d], suspend[ed] or revive[d]” in whole or in part. The Act provides specifically for that possibility and gives the parties rights accordingly (s 65D(2), conditional, relevantly, upon satisfaction of the “Rule in Rice v Asplund”).
[292] As a consequence of the factors just referred to, it cannot be said that the failure to provide an end point for supervised time is, of itself, an error of either principle or discretion (see, for example, H & K; Fitzpatrick and Fitzpatrick (2005) FLC 93-227; Moose & Moose; Slater v Light).
[293] However, the Full Court has sought to provide “specific guidance where [orders for supervised time] are to be made for an indefinite or indeterminate period” (Slater v Light at [38]). The “guidance” is of long standing and has frequently been applied. That the Full Court can issue guidelines as to the exercise of relevant discretions is not in doubt, but guidelines are to be distinguished from binding principles of law (Norbis & Norbis (1986) 161 CLR 513, per Mason and Deane JJ. Compare Brennan J and see the discussion (within the context of s 79 of the Act)) in Hoffman & Hoffman (2014) FLC 93-591:
...guidance must be given in a way that preserves, so far as it is possible to do so, the capacity of the Family Court to do justice according to the needs of the individual case, whatever its complications may be. Reconciliation of these goals suggests that in most, if not all, cases the Full Court of the Family Court should give guidance in the form of guidelines rather than binding principles of law [Norbis at 520].
(Emphasis omitted)
Thus, any such guidance must guide the exercise of discretion, not replace it. The failure to follow binding principles of law constitutes an error of law; the failure to observe guidelines flags the possibility of discretionary error: it “can throw a question mark over the trial judge’s decision and ease the appellant’s burden of showing it is wrong” (Norbis, above).
[294] As to the content of the relevant guideline, May J said in Moose v Moose:
[10] In my view, where an order is made that the time a parent spends with a child be under supervision indeterminately, there would need to be cogent reasons to support such orders. Apart from expressing, quite properly, a concern about the mother’s emotional reaction to the children seeing their father which was consistent with the evidence (T/s p 135) his Honour did not provide reasons to support these orders. In addition, his Honour should have made orders which would allow for some review of the situation in the future as suggested by the family consultant. For those reasons I would allow the appeal and order a rehearing.
(Emphasis added)
[295] To similar effect, in Slater v Light the Full Court concluded:
[69] Flowing from this finding, his Honour was correct to find that an order for supervised time should be made. We do consider appealable error has been made out however in ground 3, as an indefinite supervision order was not justified in the circumstances and in any event was not substantiated by sufficient reasons. It is also relevant to the success of this ground that the orders did not at least provide an opportunity for the father to apply to vary the supervision arrangements at a later time. That the father could bring such an application is no solution given that on the basis of Rice and Asplund he would need to establish significant changed circumstances before being permitted to have his case heard on the merits.
(Emphasis added)
[296] It appears that the guideline stems from a premise founded in the “undesirability of, and the practical difficulties associated with, long term supervision in a children’s contact centre” and the impact each and both might have on the welfare of the children concerned (Boland J in Moose, cited with apparent approval in Slater v Light and referring to “Guideline for Family Law Courts and Children’s Contact Services, January 2007 … published by the Attorney-General’s Department, the Family Court of Australia and the Federal Magistrates Court of Australia).
[297] The guideline would appear to contain four components. First, while a failure to limit supervision is not itself an error, the failure to consider a limitation upon it may constitute an error in the exercise in discretion. Second is the necessity to give “cogent” reasons. Thirdly, and in practical effect alternatively, is the apparent necessity for the orders to “allow for some review of the situation in the future”. Fourthly is the need to give reasons reflective of the consideration of those issues.
[298] As to the necessity for “cogent” reasons, in my view, reasons for judgment are either adequate to explain the exercise of discretion or they are not. Inadequate reasons might attract appellate intervention – adequate reasons do not. Reasons that are adequate at law might ipso facto be thought to be “cogent”. To the extent that any additional burden is intended to be placed upon a trial judge’s reasons by use of the word “cogent”, such burden is not referenced to any authority or statement of principle and I cannot, respectfully, see how any intended additional burden is justified in principle. However, as the reference to “sufficient” reasons in the passage quoted above from the later decision in Slater v Light suggests, the use of the word “cogent” is, as it respectfully seems to me, intended merely to reinforce the importance of reasons giving specific attention to that issue as part of providing reasons, the adequacy of which will not attract appellate intervention.
[299] In a similar vein, statements such as those quoted above that orders for indefinite supervised time “should” contain provisions allowing “the opportunity to vary the supervision arrangements at a later time” cannot be seen as intended to fetter a trial judge’s discretion. Thus, the apparent imperative, implicit in the use of the word “should”, is not to be seen as purporting to establish a binding principle of law, but, rather, as a guideline – the effect of which is to highlight the consideration of such a provision as a relevant matter in the exercise of the discretion in making an indefinite supervision order.
[300] In summary, what emerges from the authorities by way of guideline when orders for supervised time are in contemplation is that:
[a] Consideration of a time or condition by which supervised time should cease is a relevant consideration in the exercise of the best interests discretion in making such an order;
[b] As a consequence, the failure by a trial judge to take account of that relevant consideration may constitute discretionary error attracting the intervention of this Court;
[c] Alternatively, if, having considered and rejected such a limitation, an order for indefinite supervision is made, the failure to consider or make an additional order whereby the indefinite order can be revisited in the future, may be indicative of discretionary error; and
[d] Given that, by operation of the Act, “final” parenting orders can be revisited in any event (usually conditioned upon satisfaction of the “rule in Rice v Asplund”), the failure of a trial judge to provide reasons why any future change to the order is left to a party pursuing that right, as distinct from the orders providing a mechanism for the orders to be revisited, may constitute a failure to provide adequate reasons.
[301] Her Honour’s order for supervised time is, in terms, indefinite. No reasons indicate why it is considered in the children’s best interests that the orders continue indefinitely as opposed to being limited in time or to the occurrence of a future event. No provision is made for the orders to be revisited. Indeed, as earlier discussed, the reasons suggest that her Honour considered that the supervision order should not be indefinite and should be subject to revision.
Finally, in Betros & Betros [2017] FamCAFC 90 the Full Court comprising their Honours Thackray, Murphy, & Austin JJ said at [13]:
[13] It has long been recognised that the permanent imposition of supervision upon the interaction between children and a parent is undesirable, though sometimes warranted (see Slater & Light (2013) 48 Fam LR 573 at 583–584; Champness & Hanson (2009) FLC 93-407 at [209]–[215]; Moose & Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40]–[41]; B and B (1993) FLC 92-357 at [79,780]). Consideration should usually be given to whether orders can be created to avoid the permanence of the supervision or, if that is not practicable in the circumstances of the case, whether the orders for permanent supervision are instead best made unconditionally, leaving the supervised party to decide if and when he or she might bring fresh proceedings to vary the orders upon proof of changed circumstances, in the manner envisaged by Rice and Asplund (1979) FLC 90-725, as s 65D(2) of the Act ordinarily allows (see Gorman & Huffman and Anor [2016] FamCAFC 174).
Conclusion
For the Reasons I have given relating to the unacceptable risks to X in the unsupervised care of his Father, I find that time between them must be supervised and I find that such supervision should be provided by a commercial supervision agency so that a report is available in relation to each occasion as a check upon the Father’s propensity is to act in a manner by word and/or deed that bears out his threat to do all within his power to alienate X from his Mother and turn X violently against her.
The difficulty is that the evidence does not provide any basis for a finding that there can be an endpoint for such supervised time between X and his Father based upon any of:
(1)The Father’s protestations of change;
(2)The Father’s undergoing an educational process that has the real effect of changing his outlook, as opposed to providing a tool for him to assert a change of outlook without the Court being able to be satisfied that such is actually the case; or
(3)X reaching an age where his own powers of judgement and discernment would make him impregnable to the Father’s efforts to influence him against his Mother or to educate him in antisocial attitudes and behaviours.
It may be that such a point can be reached in the future and that such a point can even be established on evidence, or that such a point can be recognised and accepted by the Mother, at which point either further proceedings or an informal agreement between the parents may provide the move from supervision to unsupervised time between X and his Father.
Tragically for X, I find that no such point is currently discernible or reasonably predictable. Accordingly, I find that in those circumstances, it is appropriate in X’s best interests, with those interests as the paramount consideration, to make an order that enables X to maintain his relationship with his Father but on a constricted basis, and protecting him from the unacceptable risks that I have found.
Accordingly, I determine that this is one of those cases where the permanent imposition of supervision upon the interaction between X and his Father is warranted. I consider that no orders in X’s best interests can be created to avoid the permanence of the supervision and that it is appropriate to make an order for permanent supervision unconditionally.
In proposing that the time between X and his Father be supervised, the Mother and the ICL propose that such supervision be by a commercial agency agreed in writing between the parties or failing agreement by the commercial agency B Contact Centre, or by “a suitable person agreed to in writing between the parties conditional upon the supervisor signing an undertaking in terms of Nature “A” and providing a copy of the signed undertaking to the Mother prior to supervising any time”.
The proposed undertaking is attached to Exhibit ICL13, the ICL’s proposed minute of order and is adequate for the purpose of ensuring the supervisor can intercede to prevent X being exposed to the unacceptable risks I have identified. I will make the supervision order as proposed by the Mother and the ICL. Where I may refer hereafter to commercial supervision of X’s time with his Father it also encompasses supervision by a suitable person who has completed and provided the undertaking.
The Mother and the ICL propose orders that account for the Father residing in Australia and the Father residing overseas. No doubt this mechanism arises from the Father’s evidence under cross-examination that he might explore employment opportunities overseas should the Court not make the final orders he seeks. I consider that mechanism to be appropriate in the best interests of X.
The Mother and the ICL jointly propose an order that X live with his Mother, whilst the Father’s proposed final orders are silent in relation to that issue, the implication being that other than the time the Father proposes X spend with him, X live with his Mother. I find it is entirely appropriate to make a final order that X live with his Mother.

The Father proposes an order that he communicate with X by telephone or video chat each week on Wednesday at 6:00PM “for a period of 30 minutes”. An order specifying a required duration of a telephone call between parent and child is an order inviting a flood of contravention applications sparked by the conduct of the child outside the control of the care-of parent. It is in the nature of a clock-watching order that is totally inappropriate for that purpose.
In view of the unacceptable risks to X that I have found are presented by spending any time with his Father on an unsupervised basis, I must also find that telephone or video communication between X and his Father that is not in some manner monitored also presents the same unacceptable risks. I have the evidence of the Mother during her cross-examination of the effect to her emotional detriment of the Father’s video calls with X, particularly where, on the Father’s instructions or otherwise, X moves about the Mother’s house, which necessarily involves the Father being able to view the Mother’s household from time to time, a circumstance particularly undesirable in view of the Father’s past conduct towards the Mother.
If an order is made for the Father to communicate with X with such communication to be monitored by the Mother, that imposes a detrimental emotional burden on the Mother which must be discernible by X and have the effect of communicating to him need of aspects of the Mother’s attitude toward the Father, something to be avoided if possible, as Dr E made plain in her evidence. It is wholly impractical to make any orders for communication between X and his Father by telephone or video link that is supervised and monitored other than by the Mother.
Accordingly, I find that it is not in X’s best interest to make an order that there be communication between X and his Father outside of their occasions of monthly supervised time together.
Parental Responsibility
The presumption in section 61DA that it is in X’s best interest for his parents have equal shared parental responsibility for him does not apply in consequence of my findings (including on the Father’s own admission) that the Father has engage in family violence.
The Mother has been made afraid of the Father by his conduct towards her in the last few months of their cohabitive relationship, the six months of separation under the one roof before the Father left, and thereafter up to the time of hearing. He has threatened to kill her, to kill any new partner she may have, and to kill X. He has been physically violent to her and he has been most foully verbally abusive of her in private and in public, face-to-face and in writing. The parents have no co-parenting relationship. They are able to communicate, mainly in writing, but that communication is always tinged with the Mother’s fear that the Father’s abusive behaviours will re-emerge.
The Father has attempted to be coercive and controlling of the Mother in an extreme way if he is to be believed that his years of threats to turn X against her were meant only as part of a scheme or tactic to bring her to following his point of view in relation to his time with X.
The Father seeks a final order that the parties have equal shared parental responsibility for X, whilst the Mother and the ICL both propose an order that the Mother have sole parental responsibility for X.
On all of the evidence I find that making an order for the parents to have equal shared parental responsibility for X would be presenting the Father with opportunity to attempt to control and dominate the Mother and use the legislative requirement for the parents to consult about long-term issues for X as a means to pursue his own names of revenge and punishment on the Mother instead of in the best interests of X.
I find that the appropriate order is that the Mother have sole parental responsibility for X.
As no order will be made for the parents have equal shared parental responsibility for X I do not need to give attention to the requirements of section 65DAA of the Act.
The balance of the final orders
The Father seeks an order that he is able to travel overseas with X once a certain point in his proposed graduation of time with X is reached for on the basis of the findings I have already made I find that such order is not an order in X’s best interest.
The Father sought orders in relation to him taking X to sporting events that X is interested in and enrolling X in and taking him to sporting activities. He sought an order that both parents be allowed to send personal emails to X. He sought an order that both parents be permitted to attend events organised by X’s school and sporting events that X is involved with or attending.
I find that none of those orders would be in X’s best interest due to the unacceptable risks and the impracticality of arranging appropriate supervision for those occasions.
Once again, I bear well in mind that the orders proposed by the Mother and the ICL include an order enabling the Father, “subject to the directions of any school at which X is enrolled, or the written consent of the Mother”, to attend certain events for X school without supervision. In view of the findings I have made as to the nature of the unacceptable risks to X in the unsupervised care of his Father, which would be the same risks if they were spending time together unsupervised at a school of public event as they would be in private, I cannot find that an order of that nature is in X’s best interest.
I bear in mind that in this regard I am something at odds with some of the oral evidence of Dr E in cross-examination where she gave opinion that if the Father is spending time with X at school events or sporting events, a requirement for supervision would be both unnecessary and too much of an embarrassment for X. Given the findings I have made that lead to a necessity that any time between X and his Father be supervised, any time between the Father and X at such events would need to be supervised. The views expressed by Dr E in her cross-examination did not address the unacceptable risk of the Father taking any available opportunity to make good on his threats and promises and bring his influence to bear on X against the Mother.
The Father sought specific orders for time with X for Father’s Day, each alternate New Year’s Eve and each alternate Christmas Day. Given the need for commercial supervision of X’s time with his Father I will make orders for the Father to spend some time with X on the Father’s Day weekend and on Christmas Eve for three hours, and the Father would be well advised to book and arrange the commercial supervision for those occasions well in advance as no doubt demand would be at a maximum at those times, unless it is agreed between the parents to be supervision by a suitable person in compliance with the proposed supervision order an undertaking.
The Mother seeks an order that the Father be at liberty to send X a card and/or gift for his birthday and Christmas each year. I consider that an order of that nature is in X’s best interests but I direct careful attention to the wording of such order, which, as sought by the Mother and as considered by me to be in X’s best interests, will be confined to a card and/or a gift on the occasions only of X’s birthday and Christmas each year.
Mother seeks an order that the Father be at liberty to request from any school attended by X a copy of his school reports and school photograph order forms. I will make an order to that effect. I will also make an order as sought by the Mother that she notify the Father of any change in X’s school enrolment within seven days of such change and that she notify the Father as soon as practicable in the event of X suffering a significant injury or illness or being hospitalised. I will also make the orders sought by the Mother that each party notify the other within seven days of any change in their postal or email addresses.
The Mother seeks orders pursuant to section 68B of the Act for the personal protection of the Mother and of X as set out in proposed order 13 of the ICL’s minute of orders. In view of the findings I have made in relation to unacceptable risk I consider that making such injunctive order for the personal protection of X and the Mother is in X’s best interests. The same applies to the injunctive orders binding each party set out in order 14 sought in the ICL’s minute of order.
I consider that the orders sought by the Mother and the ICL in paragraphs 15 to 18 of the ICL’s minute of order in relation to a copy of Dr E’s report and these Reasons for Judgment and final orders being provided to certain named health professionals, supervisors and the Father’s parents are also orders in X’s best interest.
The Mother and the ICL seek an order that “nothing in these orders will prevent the Father from attending parent/teacher interviews separately to the Mother’s attendance” and in circumstances where the Father would be attending for such parent/teacher interview in the absence of the Mother and in the absence of X, I find the making such an order is in X’s best interest so that the Father can remain appraised through that method of X’s school progress.
I find that orders 21, 22, and 23 as sought by the ICL and the Mother relating to the Mother being able to apply for and obtain an Australian passport for X, the Mother being able to travel overseas with X, and the Father be restrained from removing or attempting to remove or causing or permitting the removal of X from the Commonwealth of Australia and for that purpose X’s name being maintained on the Family Law Watch list are also orders very much in X’s best interest, particularly in circumstances where there is no evidence whatsoever of the Mother being a flight risk with X and the Mother having sole parental responsibility for X.
The Father deliberately and with malice embarked on a course of conduct and behaviour from around August 2014 until the time the final hearing began in December 2020, though tapering that conduct considerably following publication of my Reasons for Judgment delivered in December 2019 following interim hearing. Actions have consequences and, tragically, the Father’s actions have led to the findings I have made in the consequent restriction on X’s relationship with his Father in circumstances where a weighing between the detriment to X’s best interests inherent in that restriction and the detriment to X’s best interests inherent in him being exposed to the unacceptable risk I have found brings about the necessity to make the orders I have foreshadowed and so restrict the relationship.
The Mother is not to blame. She did not invite, provoke or cause that conduct and those behaviours.
Costs of the ICL
Order 19 of the orders sought by the ICL and the Mother in ICL13 seeks:
That within 3 months of the date of these Orders, each party [pay] the sum of $8,072 to Legal Aid NSW being their contribution towards the costs of the ICL in these proceedings.
The Mother consented to that order. By his Counsel, the Father indicated no opposition to the costs order sought by the ICL.
I will make an order that each party pay one half of the costs of the ICL in the sum of $8,072.00 each to the Legal Aid Commission within three months of the date of orders.
I otherwise make the orders as set out being of these Reasons.

I certify that the preceding four hundred and thirty-one (431) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley.
Associate:
Dated: 22 November 2022

File number(s):	PAC 4103 of 2018
Judgment of:	JUDGE MORLEY
Date of judgment:	22 November 2022
Catchwords:	FAMILY LAW – final parenting orders – indefinite supervision – significant and sustained family violence during the relationship and after separation by the Father – evidence by way of recordings of verbal threats to harm and kill Mother in presence of child – corroborating evidence in Mother’s case by third party witness who was a stranger to the parties at the time – sustained and repeated threats made by Father to turn the child against the Mother – Father a witness of poor credit – child spending fortnightly supervised time with Father pursuant to interim orders – Court finds there to be no indication on the evidence that the unacceptable risk to child will abate in the future – where single expert witness recommends ongoing supervised time in the matter’s circumstances – consideration of authorities on indefinite supervision – Court finds the risk to the child when only having ‘identity’ time with Father to be worse than ongoing supervision –monthly indefinite supervision ordered.
Legislation:	Evidence Act 1995 (Cth), s 140 Family Law Act 1975 (Cth), ss 11, 60B, 60CA, 60CC, 61DA, 65D, 65DA, 65DAA, 65DAB, 68B, 128 Federal Circuit Court Rules 2001 (Cth), r 15.28 Criminal (Sentencing Procedure) Act 1999 (NSW), ss 9, 10
Cases cited:	A & A & The Child Representative [1998] FamCA 25 Betros & Betros [2017] FamCAFC 90 Briginshaw v Briginshaw (1938) 60 CLR 336 Godfrey & Sanders (2007) 208 FLR 287 Gorman & Huffman And Anor [2016] FamCAFC 174 Grella & Jamieson [2017] FamCAFC 21 Harridge and Anor & Harridge and Anor [2010] FamCA 445 In the Marriage of B (1993) 112 FLR 45 Isles & Nelissen [2022] FedCFamC1A 97 Johnson & Page [2007] FamCA 1235 KB & TC [2005] FamCA 458 M & M (1988) 166 CLR 69 M v M (1988) 166 CLR 69 M v S [2006] FamCA 1408 Mazorski & Albright [2007] FamCA 520 McGregor & McGregor [2012] FamCAFC 69 Moose & Moose [2008] FamCAFC 108 Napier & Hepburn [2006] FamCA 1316 Slater v Light [2013] FamCAFC 4 Tait & Densmore [2007] FamCA 1383 W & W (Abuse Allegations: Unacceptable Risk) [2005] FamCA 892
Division:	Division 2 Family Law
Number of paragraphs:	431
Date of hearing:	18 November 2020, 8-10 December 2020, 17-18 June 2021
Place:	Sydney
Counsel for the Applicant:	Mr Livingstone
Solicitor for the Applicant:	Ark Law Lawyers
Counsel for the Respondent:	Mr Longworth
Solicitor for the Respondent:	Gordon & Barry Lawyers Pty Ltd
Counsel for the Independent Children's Lawyer:	Ms Shea
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

PAC 4103 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR MANCARI Applicant
AND:	MS PADOVA Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE MORLEY
DATE OF ORDER:	22 November 2022