Mathis & Mathis - [2025] FedCFamC1F 308

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mathis & Mathis [2025] FedCFamC1F 308

File number(s): BRC 9902 of 2022

Judgment of: BRASCH J

Date of judgment: 13 May 2025

Catchwords: FAMILY LAW – CHILDREN – Where an accumulation of factors lead to a finding that the father poses an unacceptable risk of emotional and psychological abuse to the child – Where risk can only be mitigated by supervision - Where the father also conducts himself with a lack of child focus, lack of insight and prioritises his wants over the child’s needs - Where the child has expressed a desire to spend time with the father, but also said he feels unsafe with the father and uncomfortable with some of this conduct – Where the father’s proposed supervisor is not appropriate – Where frequent, indefinite supervision is not in the child’s best interests – Where orders are made for the child to spend time with the father at a contact centre four times per year along with exchange of letters

Legislation:
Evidence Act 1995 (Cth) Part 3.5, ss 91 and 140

Family Law Act 1975 (Cth)Part VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 64B, 65D, 65DAB, 68B, 68ZT, 69ZX, and 114Q

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15(3)

Cases cited:
Bain & Bain (Deceased) (2017) 319 FLR 119; [2017] FamCAFC 80

Bielen & Kozma (2022) 66 Fam LR 59; [2022] FedCFamC1A 221

Blinko & Blinko [2015] FamCAFC 146

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

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

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Isles v Neilsen (2022) 367 FLR 338; [2022] FedCFamC1A 97

Line & Line (1997) FLC 92-729

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

Maxwell v The Queen (1996) 184 CLR 50; [1996] HCA 46

Moose v Moose (2008) FLC 93-375; [2008] FamCAFC 108

Oberlin & Infeld (2021) 63 Fam LR 88; [2021] FamCAFC 66

Stott v Holgar [2017] FamCAFC 152

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

Division: Division 1 First Instance

Number of paragraphs: 237

Date of last submission/s: 6 May 2025

Date of hearing: 18 – 21 March 2025, 28 April 2025

Place: Brisbane

Counsel for the Applicant: Ms I. Gajic-Pavlica

Solicitor for the Applicant: Condon Charles Lawyers

Counsel for the Respondent: Mr J. Thomas

Solicitor for the Respondent: Best Wilson Buckley Family Law

Counsel for the Independent Children's Lawyer: Ms J. Evans

Solicitor for the Independent Children's Lawyer: VM Family Law
ORDERS

BRC 9902 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR MATHIS

Applicant

AND:
MS MATHIS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BRASCH J

DATE OF ORDER:

13 MAY 2025

THE COURT ORDERS THAT:
Parental Responsibility
1.The mother is allocated sole decision-making authority for major long-term issues, as defined in s 4 of the Family Law Act 1975, in relation to the child, X born 2015 ("X"), save that the mother will advise the father in writing, via the App referred to in these orders, as soon as practicable after she has made any such decision.

Time / communication arrangements
2.Within 14 days of the date of these orders the mother and father will take all steps necessary and sign all required documents to engage the B Contact Centre (“the contact centre”) to supervise X’s time with the father.
3.The child will spend two hours of supervised time with the father at the contact centre as follows:
(a)As close to Easter Friday or Easter Monday as the contact centre can arrange;
(b)As close to X's birthday as the contact centre can arrange;
(c)As close to Father's Day as the contact centre can arrange;
(d)In the lead up to Christmas Day as the contact centre can arrange;
(e)And, on all occasions, the father is restrained from using any electronic devices when with the child, including but not limited to devices that play videos be it by download, via social media, or from the internet.

4.The parties will pay any costs of supervision in equal parts.
5.Each parent shall do all acts and things and sign any necessary documents required by the contact centre to authorise for the father's partner, Ms C, to attend and be included in any visits between X and his father.
6.The father is at liberty to send letters, cards, photographs, and/or gifts to X at all times as the father chooses.
7.The mother will facilitate X writing to the father as X wishes.
8.Upon receipt of the letters, cards, photographs and/or gifts ("the communications"), the mother:
(a)Is at liberty to open and view the communications before providing them to X if they are appropriate for X to receive; and
(b)Ensure the communications are safely stored for X until he turns 18 years of age at which point the communications shall be given to him.

Postal address and contact details
9.Within seven (7) days of the date of these orders, the mother will provide the father with a postal address to which any communications as set out in these orders can be sent (if she has not done so already), and she will notify the father of any change to her postal address within seven (7) days of such change.
10.Each party will advise the other of any change in their telephone number, residential address and email address, within seven (7) days of such change.

Communication between the parents
11.The parties will utilise the Divvito Messenger application ("the App") for all communications, unless otherwise provided for in these orders, with the exception of emergency situations in which they will be permitted to communicate via phone call or SMS.
12.The parties will use their best endeavours to:
(a)Check the App, no less than once every 72 hours; and
(b)Respond to communications from the other party within 72 hours, if a response is required.

Child Therapist
13.The mother will ensure X continues attending his psychologist sessions with his usual psychologist, or another suitably qualified psychologist, for such time as recommended by the psychologist.

Medical Issues
14.The mother will keep the father informed of:
(a)The names and addresses of any treating medical or other health practitioner who treats X; and
(b)Any serious medical condition, diagnosed for X.

15.By this Order, the parties authorise any treating medical practitioner or allied health professional to release X's medical or health information to each party or as directed in writing by each party at the requesting party's cost.

Educational Issues
16.By this Order, the parties authorise any school or extra-curricular provider attended by X to give each parent information about X's progress and other related activities and to supply them with copies of reports, photographs, certificates and awards obtained by X at the requesting party's cost.

Section 114Q
17.Pursuant to s 114Q of the Family Law Act 1975 (Cth), leave is granted to the mother and her legal representatives to provide a copy of these orders to:
(a)Any school, education institution or care provider;
(b)Any treating medical practitioner, psychologist, hospital or other health care professional; or
(c)Any government department or instrumentality;

that may seek or require to hold a copy of these orders for the purpose of discharging any duties, legislative or policy requirements on the condition that these orders are not further published and are held by the relevant person or entity seeking them in accordance with the Australian Privacy Principles as set out in Schedule 1 of the Privacy Act 1988 (Cth).
18.The mother has leave to provide a copy of these orders and Reasons for Judgment and the Family Report of Ms D, dated 16 September 2024 to X's psychologist/s, any counsellors and to the B Contact Centre.
19.The father has leave to provide a copy of these orders, Reasons for Judgment and the Family Report of Ms D, dated 16 September 2024 to his psychologist.

Restraints
20.Pursuant to s 68B of the Family Law Act 1975 (Cth), the father is restrained from:
(a)Approaching, entering, or being within 100 metres of the premises where X attends school, unless otherwise provided for in these orders; and
(b)Attending E Sportsground at such times that the mother and/or X are present, provided the mother notifies the father no less than 48 hours prior to any attendance for training and/ or games for X or any other child in the mother's care.

21.Pursuant to s 68B of the Family Law Act 1975 (Cth), the parties are restrained from making comments about any party and/or posting photographs, comments or any other posts about or in relation to the other party on any social media platform.
22.During the time that the child is in the care of a parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child;
(d)Not use the child to relay messages to the other parent; and
(e)Be restrained from discussing matters relating to the Court proceedings either directly or indirectly with the child.

Overseas Travel
23.At the request of the mother via the App, the father will sign an Application for a Passport for X.
24.Pursuant to s 11 of the Australia Passports Act 2005 (Cth), X is permitted to have international documents required to leave the Commonwealth of Australia.
25.The mother will hold the passport of X.
26.Pursuant to s 65Y of the Family Law Act 1975 (Cth), the mother is permitted to take X out of Commonwealth of Australia for holidays and for other short periods of time.

Charges
27.In the event the father is charged with any offences where X may be a witness, he is to provide a Copy of the Charge Sheet (however so named) and bail conditions to the mother.

Alternative dispute resolution
28.In the event of any dispute as to the interpretation, implementation or enforcement of this order (including any claim by a party that it should be varied) the parents shall first attend family dispute resolution (FDR) with a Family Dispute Resolution Practitioner ("FDRP")and make a genuine attempt to resolve the dispute and for this purpose the process to be used for resolving disputes about the terms or operation of these orders will be as follows:
(a)The parents will consult with a FDRP to assist with resolving any dispute or reaching agreement about changes to be made;
(b)The parents will pay the costs of the FDRP equally;
(c)If the parents cannot agree upon the FDRP, then the mother will nominate three (3) practitioner's fees, experience and availability;
(d)The father will then choose one of the practitioners from the mother's list within seven (7) days of receipt of her list;
(e)If the father fails to choose a practitioner within the seven (7) days, the mother may choose a practitioner; and
(f)Whichever way the practitioner is chosen, the mother is to arrange for an initial appointment for the parties to attend upon that practitioner as soon as possible and notify the father of the details of the appointment in writing.

Explanation of Orders and discharge of ICL
29.Pursuant to s 65L of the Family Law Act 1975 (Cth), the Family Report writer, Ms D, will be engaged by the parties to explain the outcome of the proceedings and the orders to X, and it is in the Family Report writer's discretion as to how much detail of the reasons she provides X.
30.For the purposes of the previous order:
(a)Each of the parties have leave to provide and copy of these Reason and orders to Ms D; and
(b)The parents will equally share the fees of Ms D.

31.Upon the orders being explained to the child, the ICL is discharged.

NOTATIONS
A.On 28 April 2025, the following order was made on a final basis and by consent:
1. The child X born 2015 live with the respondent mother.

B.Should the father be charged with any offences where X may be a witness, then it may be that the father's bail conditions will prohibit X spending time or communicating with the father. The parties were agreed in submissions that such bail conditions would prevail over the orders herein.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mathis & Mathis has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Brasch J

X was born in 2015 (“X”) (“the child”). He is described as an anxious child, who has been diagnosed with ASD and ADHD as well as a number of other medical complexities.
On 18 September 2023, X told his therapist, Ms F:
[X] reported that his father [Mr Mathis] has shown him TikTok videos where people put their fingers into other people’s anuses. [X] disclosed that his father has done that several times to him, inserting two fingers into [X’s] anus. [X] said his father called it a game. The first time it happened was, according to [X], about four weeks ago, and several time since. [X] said it did not hurt but it made him very uncomfortable.[1]
[1] Exhibit 11.
Ms F called the mother into the session and advised her what X had said. Ms F said she would notify the Department of Families, Seniors, Disability Services and Child Safety (“the Department”) (“Child Safety”), and she did so. Ms F also indicated the mother should cease the child’s unsupervised time with the father whilst the matter was being investigated, but the mother should take legal advice about that.
It is common ground that on or about 27 August 2023,[2] the father and child did watch various TikTok videos. One of the videos – eventually disclosed by the father – showed a child, about X’s age, who was coerced[3] by multiple adults to come up from behind another adult who was on all fours and for the child to poke his (the child’s) fingers in the anus area of that adult on all fours on the ground. Both the child and all adults were clothed.
[2] Father’s affidavit filed 11 February 2025 at paragraph 42.
[3] A description accepted by the father in cross-examination.
After watching this video, X said he and his father should try the “game”, but his father said no. Nevertheless, X then poked his father in the bottom cheek and the father poked him back “once on the hip, to show him the pressure was not nice”.[4] In cross-examination he referred to poking X in the bottom cheek from/to the side. Then when the father was bending to put something in the bin, “[X] tried to poke me in the bottom cheek a couple of times again …”.[5] The father said he told X to stop, but the child tried to poke the father in the bottom again.[6]
[4] Father’s affidavit filed 11 February 2025 at paragraph 44.
[5] Father’s affidavit filed 11 February 2025 at paragraph 45.
[6] Father’s affidavit filed 11 February 2025 at paragraph 45.
The mother believes X has been sexually, emotionally/psychologically and physically abused by the father; she said his ADHD and ASD means he sees things in black and white. The father denies he inserted finger/s into X’s anus or poked his anus area, but does admit to poking the child once in the bottom cheek from/to the side (in cross-examination) or, “on the hip” (in his affidavit). I say more about this later.
After Ms F, X’s psychologist, notified the Department, X was interviewed by Departmental officers on 21 September 2023 and described a similar thing to what he had earlier told Ms F. The record of interview is extracted later in these reasons.
X last saw and spoke with his father on 10 September 2023. However, they do have contact through the exchange of letters via post. On 21 September 2023 both parents were advised the Department had substantiated harm by the father against X in the form of emotional harm as a result of sexual abuse perpetrated by the father.[7] The Department determined the child was not in need of protection because he was with the mother, and she was acting protectively.
[7] Exhibit 13, p.3.
In the interviews for the updated Family Report almost a year later on 16 July 2024, X said:
I asked [X] if he could tell me why he wasn’t seeing [Mr Mathis] and [X] said that [Mr Mathis] had done something to him. When asked if he could tell me more about what [Mr Mathis] had done, [X] said, “He put his fingers up my bum”. [X] said that he had clothes on at the time and [Mr Mathis] doing this made him feel uncomfortable. [X] said that he doesn’t know why [Mr Mathis] did this.[8]
[8] Exhibit 6, paragraph 6.3.
X knows that what he said led to the suspension of time with his father. In the mother’s affidavit, she said X told her that he “shouldn’t have said anything to anyone” and that he “won’t tell people again” as he misses his father. She also said he is worried that the information he gave will get back to the father, and that his father will get “mad at him” for telling people about “the game”.[9]
[9] Mother affidavit filed 12 February 2025, paragraphs 69-70.
X told the Family Report Writer that he loves his father and misses him. He said he used to feel safe with the father “until we started playing the game” and:
[X] said that [Mr Mathis] played “the games” with [X] twice and [X] said that he didn’t tell [Mr Mathis] that the game made him feel scared.[10]
[10] Exhibit 6, paragraph 6.5.
In response to a subpoena, the police advised the court on 18 March 2025:
Material in relation to an ongoing investigation has been withheld pursuant to s. 803 of the Police Powers and Responsibilities Act 2000. This is because release of any documents at this stage may prejudice the outcome of the investigation.[11]
[11] Exhibit 27.
Parties’ proposals and a consent order
At the start of trial, the parties had a veritable smorgasbord of proposals depending on the findings made. The father had sought, inter alia, findings that the mother was an unacceptable risk to the child via her coaching of him to make the allegations. He had sought a change of residence.
By the time of submissions, the parties proposed a final consent order that X live with the mother. On 28 April 2025, I made the following order:
1. The child [X] born […] 2015 live with the respondent mother.
Consequently, any questions or concerns the father had previously raised about the mother’s capacity to parent and promote X’s safety axiomatically fell away.
Ultimately, the Independent Children’s Lawter (“ICL”) and mother proposed in Exhibit 32 the child spend no time and have no communications with the father save for the exchange of letters and the like between X and the father. They also proposed: the mother have sole major long term decision making; parental communication about X via an App; X continues seeing his therapist; standard authorities; overseas travel orders; and, ADR orders. The ICL and mother proposed the mother be at liberty to provide the orders to specific people and the orders and Reasons to X’s psychologist. They sought s 68B restraints against the father coming within 100 m of X’s school and the father not attend a specific sportsground when the child, the mother or her foster children are there.

On a final basis the father’s Exhibit 33 proposed variations of orders, in summary:
(a)If unacceptable risk was not found: joint decision making for major long term decisions; the child and father have six reintroduction visits at a contact centre; then a graduation of time culminating in alternate weekends from school on Friday and a return to school on Monday, or Tuesday if Monday was a public holiday. He also sought half holidays, initially week-about then half-time blocks, the sharing of special days, changeover arrangements, and orders about parental involvement with X’s psychologist;
(b)If unacceptable risk was found but could be mitigated: sole decision making for major long term decisions to the mother; two hours of time supervised at a Contact Centre; then weekly time supervised by the father’s partner or other person as agreed; and, supervised time on holidays, special days, and at school and extra-curricular activities. He also proposed change over arrangements, orders for parental involvement with X’s psychologist and various specific issue orders;
(c)If unacceptable risk was found but could not be mitigated: sole decision making for major long term decisions to the mother; no time with X unless agreed; monthly phone/facetime calls; monthly letters; the mother to provide information about the child to the father; standard authorities; and, various specific issue orders;
(d)And on various of the above three permutations, other orders: to medicate the child; communication and exchange of information orders; orders about enrolling the child in extra curricula activities; non-denigration orders; authorities; and, overseas travel. He also proposed a prohibition on the child having any sexual abuse counselling if no unacceptable risk was found, but said in submissions he would agree to X having protective behaviours counselling.
Exhibits 32 and 33 represent the parties’ primary positions. The parties returned to court on 6 May 2025 on the court’s own motion to have the opportunity to be heard on what if anything ought happen in terms of orders if the father is charged with any offence/s involving X, and, whether there were any parenting options not as starkly apart as the father’s frequent un/supervised time proposals and the mother’s and ICL’s no time (and father’s no time on certain findings). But nothing said by the parties at the time ought be construed as a proposal. I will refer to these as the supplementary submissions.
Whilst the sexual/physical/emotional/psychological abuse allegations were at the centre of the dispute, the parties’ acrimony existed before that, with X caught in the middle. They were also in dispute about the medical attention, food and medications given to X or not. X has ASD, ADHD, Anxiety, a chronic lung condition and a severe chronic digestive disease.[12] He had a feeding tube from September 2018 to September 2024. The mother said, in summary, the father lacks care and attention to X’s medical, medication and food needs. The father admitted to missing some medications for X back when there was physical time. At the end of the day, no one pressed for any negative findings against either parent about these issues.
[12] Mother’s affidavit filed 12 February 2025, p.11-12, paragraph 28.
BACKGROUND
The applicant father, Mr Mathis, was born in 1976 (“the father”).
The respondent mother is Ms Mathis, born 1983 (“the mother”).
The parties met in 2006, and soon after, in October 2006 began cohabiting. They married in 2008 and separated on a final basis on 1 September 2020.
Whilst the parties have one living biological child of the relationship, namely X, the parties were registered foster parents to a number of foster children during their relationship. The foster children will not be named - the Department asked the parents to not use the children’s names in these proceedings. The parties agreed I ought adopt this approach too. At the time of separation there were three foster children in their care. Post-separation one teenaged child was reunified with their mother, and another infant child came into the mother’s care. The mother renewed her foster care license post-separation; the father’s license has not been renewed.
In 2020, toward the end of the parties’ relationship, Ms G moved into the parties’ matrimonial home. The father complains that the mother and Ms G would ‘gang up’ on him. When taken to group text messaging between the three, the mother accepted that to be so.
From separation to about April 2022, X’s time with the father was ad hoc.
In early 2022 a Temporary Protection Order (“TPO”) was made in a local Magistrates Court naming the father as the respondent, the mother as the aggrieved and X as a child of the aggrieved. This Order included the standard good behaviour orders as well as orders that the father not contact, locate or attend upon any place the mother may be or at any venue where X attends for education, except for attending tuckshop duty each Friday. This Order was subsequently varied in mid-2022 and again the following month to specify, respectively, that the father not come within 50 metres of the mother, and, that the father was not to attend or remain at H Sports Club following his coaching duties.
From May 2022 to October 2022 the child spent time with the father at B Contact Centre.
The father filed proceedings on 11 August 2022 in the Division 2 Court. Interim consent orders were made on 2 November 2022, which provided for, in summary, that the child live with the mother and spend increasing time with the father culminating in alternate weekends on Saturday and Sunday from 10.00 am to 3.00 pm.
X’s time with the father further increased by consent orders of 7 February 2023 which provided, in summary, that X would spend alternate weekends with the father from 10.00 am Saturday to 3.00 pm Sunday, as well as alternate weekends during school holidays and time on special days.
In early 2023, the father was found to have contravened the TPO and bail conditions seven times, six when at the child’s sportsground and one when at the Children’s Court supporting a foster child’s relative in a guardianship dispute - X’s mother was the foster carer. The offending conduct leading to the contraventions occurred in 2022 and involved the father coming within the 50m restraint from the mother. No convictions were recorded against the father. He received a modest recognisance and a good behaviour period of nine months.[13]
[13] Exhibit 8.
In mid-2023, a final Domestic Violence Order was made without admissions naming the father as the respondent and the mother as the aggrieved. This order remains in place until mid-2028 and provides, in summary, that the father be of good behaviour toward the mother and is prohibited from contacting, locating or going within 10 metres of her.
In orders of 9 August 2023, it was noted that s 102NA would apply, and the matter was set down for a three-day trial, commencing on 14 May 2024, before a Judge of Division 2 of the Court.
The father and Ms C commenced a relationship in late September 2023 and commenced cohabitation in January 2024. X has not met her.
After what the child told his psychologist and Child Safety about the father and his anus, the child’s court ordered time with the father was suspended by consent orders of 23 November 2023.
Subsequently, on 25 January 2024 the matter was transferred to Division 1 of the Court, and the May 2024 trial dates were vacated. That Order included Notations about what X said to his psychologist Ms F and that the Department had substantiated their assessment of harm. On 14 March 2024, the matter was designated Magellan.
In about March 2024, X and the father started engaging in exchanges of letters. That continues.
On 24 September 2024, the matter was set down for a three day trial, commencing 18 March 2025. The matter was not concluded in that time, hence submissions were listed for 28 April 2025. However on that morning, the mother made an oral application to re-open the evidence to put on a short affidavit about the father’s attendance, twice, at a sportsground when X and the mother were there. The application was not opposed. The mother’s affidavit of 28 April 2025 was received into evidence, and became Exhibit 29, and she was cross-examined. The father gave viva voce evidence-in-chief and was then cross-examined. Submissions were made after that.
On 6 May 2025, the parties came before the court to make supplementary submissions, to which I have already referred under the heading “Parties’ proposals and a consent order”.
MATERIAL
The applicant father relied on the following documents:
·Further Amended Initiating application filed 11 March 2025;
·Affidavit of Mr Mathis filed 11 February 2025;
·Affidavit of Ms C filed 11 February 2025;
·Affidavit of Ms J filed 11 February 2025;
·Affidavit of Ms K filed 11 February 2025; and
·Written submissions handed up 28 April 2025.
Ms K spoke about her Intensive Reunification Therapy, but in cross-examination she confirmed, as did the Report Writer, Ms D, that that Therapy was for refuse/resist matters (formerly known as Parental Alienation); that is, where a child unreasonably refuses or resists another parent for no logical reason. This is not one of those matters - X misses his father and wants to see him. Ultimately, the father did not seek orders for this kind of therapy and I need say no more about Ms K.
Ms J is the father’s therapist and he obviously gets support from her. It will be a matter for the father if he continues seeing her. No one made any submissions about Ms J. All I need observe is the father has rapport with a therapist and will order he may provide a copy of these Reasons to her if he wishes, given he will likely be upset about the outcome.
The respondent mother relied on the following documents:
·Affidavit of Ms Mathis filed 12 February 2025;
·Affidavit of Ms G filed 11 February 2025;
·Amended Response to Initiating Applicant filed 10 March 2025;
·Notice of Risk filed 28 March 2024; and
·Affidavit of Ms Mathis affirmed 28 April 2025 as part of her application to re-open which was not opposed.
Ms G shares the house with the mother, X and the foster children. With the father consenting to an order that X live with the mother, any criticism of Ms G falls away. Suffice to say, I conclude she is a considerable support to the mother with a busy household of four children but understands she does not stand in the shoes of a parent.
The Independent Children’s Lawyer relied on the following Family Reports:
·Affidavit of Ms D filed 21 October 2022; and
·Affidavit of Ms D filed 20 September 2024.
The parties, their witnesses and the Family Report Writer were all cross-examined.
As required by r 8.15(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), various annexures to the parties’ and experts’ affidavits became Exhibits. In all, the parties tendered 33 Exhibits.
LEGAL PRINCIPLES
Given the gravity of the matters alleged by the mother, it is useful to set out s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”):
140 Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject-matter of the proceeding; and
(c)       the gravity of the matters alleged.
It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon,[14] Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
[14] (2003) 200 ALR 447 at [62].
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd,[15] Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
[15] [1983] 3 NSWLR 378 at 385–386.
Best interests
Section 60CG of the Family Law Act 1975 (Cth) (“the Act”) imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper (subject to s 65DAB of the Act, which is irrelevant in this matter). A “parenting order” is defined in s 64B of the Act.
Section 60B of the Act sets out the objects of Part VII of the Act, and that is:
The objects of this Part are:
(a) to ensure that the best interests of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Section 60CA of the Act provides that the child's best interests are a paramount consideration in making a parenting order. Section 60CC of the Act addresses those best interests and provides:
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
The provisions in s 60CC(4) do not apply here. As for s 60CC(1)(b) and (3), X is not an Aboriginal or Torres Strait Islander child.
Best interests in this matter
The parties provided a draft trial plan on 17 March 2024, but revised that with reduced issues on 28 April 2024. The father abandoned the issues which had asked if the mother was an unacceptable risk to the child and agreed the issue relating to whom the child would live with was redundant, given the consent final order X live with the mother. The Issues became:[16]
[16] Exhibit 31, with which the father did not join, but his Counsel confirmed these issues were live in submissions.
1. Is the child at unacceptable risk of suffering significant physical and/or emotional and/or psychological harm in the father’s care as a result of the risk of sexual abuse?
2. Is the child at unacceptable risk of suffering significant emotional and/or psychological harm in the father’s care as a result of emotional abuse or neglect?
3.        What is each parent’s capacity to meet the child’s needs?
4. What capacity does each parent have to support/facilitate the relationship between the child and the other parent?
5.        What time should the children [sic] spend with the non-resident parent?
6.        Which parent, or both, should make the long-term decisions for the child?
I will deal with Issues 1 and 2 under the s 60CC(2)(a) heading although acknowledge matters considered within this context can flow over to other s 60CC factors such as capacity to parent. I will consider Issue 3 under s 60CC(2)(c) and (d), and Issue 4 under s 60CC(2)(e).
Issues 5 and 6 will be considered under the disposition section of these reasons, as the answers to those questions are not just informed by my conclusions about risk and magnitude, but ought be informed by all relevant s 60CC considerations. As was said in M & M[17] at [19] and [21] (albeit applying to sexual abuse but relevant to all forms of alleged abuse of a child[18]):
The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
…
the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child.
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child).
[17] (1988) 166 CLR 69 (“M & M”).
[18] Stott v Holgar [2017] FamCAFC 152.
Abuse is defined in s 4 of the Act and family violence in s 4AB of the Act.
Section 60CC(2)(a) is informed by subsection (2A) which provides:
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child's family.
Issue 1: Is the child at unacceptable risk of suffering significant physical and/or emotional and/or psychological harm in the father’s care as a result of the risk of sexual abuse?
Issue 2: Is the child at unacceptable risk of suffering significant emotional and/or psychological harm in the father’s care as a result of emotional abuse or neglect?
I will deal with Issues 1 and 2 together, because there is a commonality of evidence across both.
Turning to Exhibit 31, the mother says of Issue 1:
That the Father poses an unacceptable risk of physical harm from sexual abuse – that is, physical abuse of the child that is motivated by a desire to obtain sexual gratification, or is otherwise sexual in nature; and/or
That the Father poses an unacceptable risk of psychological or emotional harm from sexual abuse, or physical abuse which is not sexual in nature.
In the same document, the ICL says of Issue 1:
That the Father poses a risk, but not an unacceptable risk, of psychological or emotional harm from sexual abuse (as a result of exposing the child to sexually inappropriate content – the Kancho video)
As for Issue 2, both the ICL and mother say:
That the Father poses an unacceptable risk of psychological or emotional harm from neglect (in the form of failing to protect the child from exposure to inappropriate behaviour / inappropriate material).
The father seeks positive findings that he has not sexually abused the child, the child has not sexually abused him (not that anyone submitted that) and he is not any kind of unacceptable risk to the child.[19]
[19] Father’s submissions handed up 29 April 2025, paragraph 3.
A positive finding of abuse or family violence should not be made unless the court is satisfied on the balance of probabilities,[20] including but not limited to the matters set out in s 140(2). Further, proof to the satisfaction of the court “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[21]
[20] Evidence Act, s 140.
[21] M & M at [77].

Any factual findings inform the task of the risk assessment predicting the safety of the child or the parent from family violence and/or abuse. That is a separate, future looking, predictive consideration, not governed by findings on the balance of probabilities. If risk is found, that then requires an assessment of the magnitude of the risk. Or as was neatly said in Isles & Nelissen:[22]
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
[22] (2022) FLC 94-092 at [51] (“Isles”), adopting what Austin J said in Fitzwater & Fitzwater (2019) 60 Fam LR 212 at [139].
Then, a finding of unacceptable risk necessarily requires a consideration of the means which might be adequate to sufficiently mitigate the risk to an acceptable level.[23] Or, as was said by the Full Court in Blinko & Blinko:[24]
A consideration of risk, and factors which impact upon or ameliorate the risk, will in most cases be inextricably linked. That is because “[t]he object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’”.
[23] Bielen & Kozma (2022) 66 Fam LR 59 at [51]–[55].
[24] [2015] FamCAFC 146 at [27] (“Blinko”).
The Tik Tok videos
On or about 27 August 2023,[25] the father and X watched several completely puerile TikTok videos, which the father called “prank” videos. X had just turned 8 years old. Each video involved adults sitting in a supposed library and picking cards from a stack. The person who selected a specific card was then deemed “the unlucky player”, to use the father’s phrase in his affidavit. That “unlucky player” was then subjected to demeaning and humiliating acts, all of which was filmed and disseminated.
[25] Father’s affidavit filed 11 February 2025 at paragraph 42.
In his affidavit, the father downplayed the videos and called them “fairly harmless”, and that X thought they were hysterical.[26]
[26] Father’s affidavit filed 11 February 2025 at paragraphs 41 and 42.
The father had not disclosed the videos to the mother or ICL even though he gave them to his solicitor “about 12 months” ago. During his cross-examination, a call was made for the videos, and they were produced during the trial and played. The legal representatives prepared an agreed transcript of the English sub-titles.[27]
[27] Exhibits 23, 24 and 25.
The father and X watched a video called “Electric Shock Chair”[28] which showed the loser being electrocuted in a metal chair. The video subtitles include the following translations: “is this the thing they use for the death penalty”; “this is an execution”; “this is how they execute people in some countries”; “Please don’t do it’; “stick him”.[29] It is not clear whether the child read the translated English subtitles, but the father described the child’s written comprehension as “pretty good”. Even if X did not read the subtitles, the visuals in the video are plainly inappropriate. X watched the whole video with the father and the father did not think to stop playing the video at any stage or that X might try to copy this potentially tragic conduct. In cross-examination he agreed he had plenty of time when watching the video to work out it was inappropriate.
[28] Exhibit 9.
[29] Exhibits 9 and 23.
They watched a video called “Smelly Mask”,[30] which depicted a disposable face mask being pulled tightly against the “unlucky player’s” face with an unknown object in the lining of the mask. During the video the player makes loud sounds and physically struggles against the mask, which was being forced over his face. The other players laugh whilst watching the “unlucky player” struggle as the mask is being pulled taunt over his face. There are no English subtitles on this video. It is common ground X has respiratory difficulties. Any attempt to emulate this could lead to tragedy.
[30] Exhibit 9.
The father and X also watched a video called “Sweat old man”,[31] where the “unlucky player” (per the father’s description) has a clear cylinder placed over his head and apparently sweaty, smelly clothing is placed in the cylinder through a lid (like a small trap door), which is then closed. The smell is described as “it stinks” and will “make you puke”. The victim then had a balloon put in his mouth and it was pumped up. Again, the father did not think to stop the video at any time they watched it, and did not think X would try to copycat this. It is again highlighted that X has significant respiratory issues. In cross-examination the father accepted the video was scary and confronting.
[31] Exhibits 9 and 24.
The last video they watched was called “Kancho” and “Kid Enema”[32] – the name “Kid Enema” comes from the translated English subtitles on the relevant Exhibit 9 video.
[32] Exhibits 9 and 25.
The father said the “Kid Enema” sub-title did not ring any alarm bells for him at the time. IN the video, the “unlucky” adult was on all fours with the child brought into the scene by other adults and placed behind the adult on all fours; that should have been a flag to the father to stop the video, but he did not. The adults and child were clothed. At one point, the adult stood up but was told to get back down on all fours. Alarm bells should have again been ringing for the father, but they were not. The “unlucky” adult said in sub-titles, “I have anal fistula you know”, but the father did not remember reading that. The child on screen was coerced[33] to hold his hands like a gun, with two fingers sticking out and then stick his fingers in the adult’s clothed anus area. The translation says, “my god that hurts … he got my balls”. The father agreed in cross-examination that he had time to stop the video but did not.
[33] The father accepted this word in cross-examination.
Prior to the videos being produced and played in court, the father described the “Kid Enema” video and said it involved approximately six people of his age and a “younger person” – which sounded like younger, relative to him.
In cross-examination, the father was asked to give an approximate age and said, “early teens”. After the video was played, the father conceded the child was about X’s age. He accepted the child was “coerced” into poking the adult’s anus area.
In other words, this was exploitation of a child, and one who had no capacity whatsoever to consent to the conduct compelled of him by adults nor to consent to the public dissemination of his image and coerced conduct. The father allowed X to watch this gross power imbalance, and exploitation of a child about X’s age. This is not behaviour a child should learn is OK or even “hilarious”. It also says to X that adults can make children do inappropriate things involving “sensitive private body parts” – which, ironically, was the father’s admonition of X when X poked the father in the bottom cheek[34] after watching exactly that in the “Kid Enema” video.
[34] Father’s affidavit filed 11 February 2025 at paragraph 45.
The father said he did not think X would copycat the videos, because they apparently talked about them being inappropriate and the father said X understood that. I do not accept that - on the father’s own evidence, the child copycatted the “Kid enema” video by poking his father in the bottom cheek several times and tried to do so a further time.
Upon the videos being produced and played, the father was pressed by both the mother’s Counsel and the ICL’s to accept that they were inappropriate. However, the father tried to justify the “Kid Enema” video by saying it looked harmless from a child’s perspective, there was no physical harm to the child, the adults watching the child were laughing, and there was no long term physical harm to the child. He agreed that he did not, in fact, know any of that. Eventually he agreed they were inappropriate.
Having previously described the videos as “fairly harmless”, I find that he only accepted they were inappropriate for X because the videos were played in court.
That said, by the time of submissions, he submitted the videos were “objectively speaking, silly prank videos that are plainly intended to be comedic and tomfoolery in nature”. It was also said they were publicly available, and had no rating attached. In other words, the father reverted to minimising their inappropriate nature.
I do not accept the father’s description of the videos as “silly”, “comedic” and “tomfoolery”. Rather, they were puerile and inappropriate for X, especially the “Kid Enema” video which showed adults exploiting a child who had no capacity to consent to the action coerced of him, or the dissemination of his image poking an adult in “sensitive private body parts”.[35] I also do not accept the submission about being publicly available makes it all alright – pornography is publicly available on the internet, but that does not mean it is acceptable for children to watch.
[35] Father’s affidavit filed 11 February 2025 at paragraph 45.
He had also portrayed that he had no opportunity to stop the videos and did not read the translation in sub-titles, but upon the videos being played, he eventually conceded he could have stopped the videos at various times when watching them with X.
Accordingly, I find:
(a)Overall, the videos are puerile and inappropriate for X;
(b)They were not “silly”, “comedic” and “tomfoolery”;
(c)Regardless of whether the child read the subtitles, they were inappropriate;
(d)The electrocution video and the ones potentially compromising respiratory function could have tragic consequences if X tried to copy any of them;
(e)The father had plenty of time to stop each of the videos but did not do so;
(f)The father’s apparent discussion with X about them being inappropriate was ineffectual as the child did perform the “Kid Enema” conduct with the father several times;
(g)The “Kid Enema” video, where a child about X’s age was coerced by adults into poking an adult in the anus area with his fingers was grossly inappropriate and constituted exploitation of the child on the video by adults, being a child who had no capacity whatsoever to consent to the conduct compelled of him by adults nor to consent to the public dissemination of his image and coerced conduct;
(h)The father allowed X to watch this gross power imbalance, and exploitation of a child about X’s age;
(i)This gross power imbalance and exploitation of a child about X’s age are not behaviours a child should learn is OK or even “hilarious” to use the father’s phrase;
(j)The “Kid Enema” video also sends a message to X that adults can make children do inappropriate things involving “sensitive private body parts”;[36]
(k)Allowing X to watch the “Kid Enema” video and not stopping it when there were clear red flags (e.g. the adult on all fours, e.g. a child being brought into the scene and positioned behind the adult, e.g. the adult got up but told to get back down again) was a dereliction of the father’s duties as X’s parent;
(l)The father failed to protect X from observing the grossly inappropriate “Kid Enema” video of a child being coerced and exploited by adults;
(m)The father failed to disclose the videos because he did not want the mother, others (including the Family Report Writer, the ICL, the Department and the court) to see them;
(n)The father’s description of the videos and calling the child in the “Kid Enema” video a “younger person” relative to him, an adult, was minimising and downplaying the fact, that he later admitted the child was “about [X]’s age”;
(o)The father’s description of the child as an “early teen” when asked their approximate age was another attempt at minimisation by the father, and was only conceded after the videos were played;
(p)The father only accepted the videos were inappropriate when pressed to do so and after the videos were played in court;
(q)The father only accepted after the video was played, that even if he had not seen the subtitles he had time to see they were inappropriate and there were multiple red flags which should have warned him of this, whereupon he should have stopped playing them;
(r)The videos’ availability on the internet does not make them any less inappropriate for a child.
[36] Which, ironically, was the father’s admonition of X when X poked the father in the bottom cheek again, Father’s affidavit filed 11 February 2025 at paragraph 45.
The findings just set out culminate in a further finding of emotional or psychological harm of X by the father from neglect, being his failure to protect the child from exposure to child exploitation, and inappropriate and grossly inappropriate videos.
Not unsurprisingly, the mother’s position about the father presenting an unacceptable risk to the child only hardened further after she watched the videos, having previously read in the father’s affidavit that he said they were “fairly harmless”.
X’s specific disclosures
On 18 September 2023, X told Ms F, in the absence of the mother:
[X] reported that his father [Mr Mathis] has shown him TikTok videos where people put their fingers into other people’s anuses. [X] disclosed that his father has done that several times to him, inserting two fingers into [X’s] anus. [X] said his father called it a game. The first time it happened was, according to [X], about four weeks ago, and several time since. [X] said it did not hurt but it made him very uncomfortable.[37]
[37] Exhibit 11.
In interviews with the Department on 21 September 2023, this is recorded from X:[38]
[38] Exhibit 12.
•Bad things
Putting his finger up my bum – found it on tik tok and then he did it to me. Said it was a game
•Didn’t like that – didn’t tell him
•Hurt, uncomfortable
•Asked me to do it on him but I didn’t want to
•Uses fingers up my bum – clothes on, on the surface
•Don’t like it
•Safe at dad? I don’t know
•Uncomfortable with dad
•Started happening 2-3 weeks ago. Happened a few times
•Want to see dad this weekend? – I don’t really know. Don’t really know if want to see Dad this weekend
•Mum said good thing telling someone what happened
•Scared about Dad getting mad at me – He yells at me
•5 safe adults
…
•Magic wand:
Wish dad would stop poking his fingers up my bum
Be a billionaire
Thousands of lego
•Dad said come on, it’s just a game
•Said don’t tell anyone
•He said that he might try the front part. He said if I do it don’t tell anyone
X listed nine people when asked to list 5 safe adults – none were the father.
The father submitted X said what he said to the Department to “save face” because his mother knew what he had told Ms F, and when the mother told the child he had done a “good thing” saying what had happened, that “may have fettered with the free and voluntary nature of the child’s account”. I do not accept that – the mother’s words were simply supportive of her son telling strangers intimate details of what he said happened to him after the child spoke of finger/s “up my bum”.
In the interviews for the updated Family Report on 16 July 2024, X said:
I asked [X] if he could tell me why he wasn’t seeing [Mr Mathis] and [X] said that [Mr Mathis] had done something to him. When asked if he could tell me more about what [Mr Mathis] had done, [X] said, “He put his fingers up my bum”. [X] said that he had clothes on at the time and [Mr Mathis] doing this made him feel uncomfortable. [X] said that he doesn’t know why [Mr Mathis] did this.[39]
[39] Exhibit 6.
I have already observed that the father’s apparent discussion with X about the “Kid Enema” conduct being inappropriate for them to copy fell on deaf ears - despite this claimed discussion, the child then poked the father in the bottom cheek a number of times, even after being told to stop, and tried a further time after that. Both father and child were clothed.
The father denied he inserted finger/s into, as in digitally penetrated, X’s anus and denies putting his fingers near his anus. But he does admit that after X poked him in the bottom cheek, he, the father, poked him back “once on the hip, to show him the pressure was not nice”.[40] In cross-examination the father referred to poking X in the bottom cheek. He ultimately agreed in cross examination that the evidence he gave between his affidavit and his cross-examination were inconsistent on the location of his poke. The father did say “on the hip” and bottom cheek area were the same area when sitting down but conceded that the bottom cheek is anatomically lower than the hip.
[40] Father’s affidavit filed 11 February 2025 at paragraph 44.
The father said X was lying about the allegations. He said “morally, medically that area [anus area] is sensitive. Dirty.” It is a curiosity then why he watched and allowed X to watch the “Kid Enema” video. The father is a health professional; he confirmed he knows what an enema involves.
The father did not mention any of the poking activity to the Report Writer in his interview[41] as confirmed in cross-examination by the mother’s counsel:
He also left you with the impression, did he, that [X] had not poked him in the bottom?‑‑‑That’s – that’s my understanding. And I’ve checked those notes, and there was – there was – there’s no mention of – and that clearly would have been something that I would have taken note of if [Mr Mathis] had said, you know, this was a game that [X] started. It certainly would have been something that I would have taken note of.
So you were left, from your discussion with [Mr Mathis] about this TikTok video, you were left with the impression that [Mr Mathis] was explaining to you that the two of them had watched a video together, and he acknowledged that that wasn’t appropriate?‑‑‑Correct.
He had apologised to [X] for letting it happen?‑‑‑Correct.
And that he and [X] had agreed they wouldn’t watch those sorts of videos again?‑‑‑Correct.
And you weren’t left with any impression at all that [Mr Mathis] was saying that there had been any intent to engage in that game, or emulate that game by either him or [X]?‑‑‑Correct.
[41] But he did mention this in an old affidavit that was before the Report Writer.
The father also did not tell the Department about the poking, or him touching X in any way.
It is acknowledged that the Department substantiated harm by the father against X in the form of emotional harm as a result of sexual abuse perpetrated by the father.[42] However, the assessment and outcome document from the Department (Exhibit 13) does not clearly set out how they reached the conclusion that the father had sexually abused the child. With many redactions, it says:
Harm:
There is sufficient evidence to suggest that [X] has suffered harm during this investigation and assessment, as defined by being any detrimental effect of a significant nature of the child’s physical, psychological or emotional well-being as defined by the Child Protection Act 1999. It has been assessed that [X] has experienced emotional harm as a result of sexual abuse, with [Mr Mathis] being assessed as the person responsible [redacted] [Mr Mathis] has shown him [redacted] videos whereby people put their fingers into each other’s anuses, [redacted] done this [redacted] several times. [redacted] The long-term psychological impacts of experiencing sexual abuse may not be observable at this time but could manifest in the future.
It is noted that [X] has suffered some level of physical harm as a result of the sexual abuse, however, this was not deemed to a detrimental level at this time, as there was no evidence of physical trauma or ongoing health concerns at this time.
[42] Exhibit 13, p.3.

Obviously, this court is not bound by the Department’s determination, the basis for which is unclear.
In cross-examination, the father stressed that X could not have been digitally penetrated because X was clothed. A problem with this though is there is no evidence before me to establish whether X was referring to digital penetration or, fingers being put in or around his anus area. For example, if a person says, ‘I was punched in the arm’ or ‘it hit me in the chest’, they are not saying their arm or chest was physically penetrated.
Appropriately, Ms F did not further explore what X said to her about “inserting two fingers in his anus” because she did not want to jeopardise any police investigations and did not want to cause X further distress. She did not think X’s use of the word “anus” was peculiar, noting his mother, a health professional, talks in sophisticated language with him and children with autism often have developed language.
In the meantime, X has been overall clear and consistent in his reporting to his psychologist, Child Safety and the Report Writer about the father “poking”, “inserting”, “puts” and “uses” his finger/s “up” and “into” “my bum” and “anus”.
Counsel for the father leapt on some inconsistencies in the child’s account, for example, he is mainly reported as saying “fingers” plural, but one record said “finger” singular. Yet, at the same time the father’s submissions sought to explain away the father’s inconsistencies in his poking evidence, saying, in part he was doing his best to respond to unparticularised allegations put to him by the Department in September 2023. I do not accept that. Whilst the father may not have had particulars in at least his first conversation with the Department in 2023, he certainly did by the time of his Evidence-in-Chief and cross-examination in 2025. Further, the inconsistencies in the father’s evidence drawn on by the ICL and mother came from the father’s own descriptions of his own poking of X.
True, on one report the child refers to his father’s “finger” singular, but reports fingers plural on all other occasions. For all I know, the mention of finger singular is a typo. Standing back though, there is a cohesion to X’s accounts.
Of this, the Family Report Writer said:
An important factor to consider as a practitioner dealing with children’s abuses is to consider the consistency of the disclosures by the child. This is why child protection practitioners will often conduct more than one interview of a child before determining the outcome of their investigation.
(Second Family Report, 9.3)
I do not find the father digitally penetrated the child’s anus because the evidence does not permit a positive finding. X himself says at one point it was on the surface. X’s use of the word ‘in’ is entirely consistent with the examples given before about being hit in the chest or struck in the arm; they do not mean penetration.
I am also not satisfied the father’s admitted poke of the child (albeit “on the hip” or on his bottom cheek) constitutes sexual abuse or that the father did this for his own sexual gratification. I am also not satisfied the father’s poke back to the child constitutes physical abuse. The mother has failed to persuade me of this. However, it was inappropriate conduct by the father after the father and child watched the child exploitation and power imbalance in the “Kid Enema” video.
I therefore do not find the father’s act of poking the child in the bottom cheek or hip constituted physical harm from sexual abuse, or, psychological or emotional harm from sexual abuse, or physical abuse not of a sexual nature.[43]
[43] Per Exhibit 31, the mother’s (1)(a) and (b)
However, for the following reasons, I find on the balance of probabilities, guided by s 140(2) of the Evidence Act, that: (i) the father poked X in the bottom cheek area; (ii) it made X uncomfortable and scared of the father; and (iii) it made X feel unsafe with the father, all in the wider context of having watched the grossly inappropriate “Kid Enema” video. I find these matters because:
(a)X’s clarity and consistency of information using the words anus and bum, (never hip) in reporting to three people external to his mother;
(b)X has been clear the conduct made him feel “uncomfortable” and “very uncomfortable”;
(c)X has been clear “he used to feel safe with [the father] ‘until we started playing the game’” and the game made him “scared”;[44]
(d)The father admitted he did poke the child to show him the “pressure wasn’t nice”;[45]
(e)The father’s failure to disclose the poking information to the Department or Report Writer constituted him hiding poor conduct;
(f)Exposing the child to the grossly inappropriate “Kid Enema” video in the first place;
(g)The conduct alleged by X is consistent with the father’s inappropriate boundaries as set out below in my findings under the headings, ‘Fallen down pants and watching X drying himself’ (the father watching the child dry himself aspect), ‘The teenage female foster child’, and ‘Other inappropriate conduct / lack of insight / boundaries / child focus deficits’; and
(h)The father poked X to try and get the child to stop poking him (the father) which is a childish, circular approach which must have been confusing to X – do as I say, not as I do.
[44] Exhibit 6, paragraph 6.5.
[45] Father’s affidavit filed 11 February 2025 at paragraph 44.
That leads me to find that the father poking the child in the bottom cheek, in the wider context of the grossly inappropriate “Kid Enema” video ,was inappropriate, lacked child-focus, lacked appropriate boundaries and caused X to be uncomfortable, scared and not feel safe with the father, and, his poking conduct is consistent with a wider pattern of inappropriate conduct as referred to in (g) just above.
Fallen down pants and watching X dry himself
What the child said to the therapist in September 2023 (i.e., the father inserted fingers into his anus) then gave the mother concern for some things X had said earlier in the year to Ms F:
Case note from 6 March 2023
… [X] then showed psychologist a picture he has drawn, showing himself, his father and the penis of his father pointing to [X]. [X] disclosed that he slept in his father’s bed because his bed (mother mentioned he sleeps on a mattress on the floor) was too uncomfortable. He said he had a cuddle with his dad at night. When he woke up in the morning, his father’s pants had fallen down and were hanging around his ankles. [X] said this made him very uncomfortable. The mother was informed about session content and information disclosed by [X].[46]
…
[46] Exhibit 19.
Case note from 05/06/2023:
He showed psychologist his newest journal entry from his weekend with his dad. It read that he felt uncomfortable when his father watched him drying himself after having a shower.[47]
[47] Exhibits 10 and 14.
The evidence about the father’s fallen down pants and X’s drawing[48] do not allow for a positive finding that this constituted any form of sexual abuse of X, as opposed to something innocuous.
[48] Exhibit 1, p.46, Exhibit 10, p.1.
However, the father accepted he watched X dry himself after showering and said in cross-examination that he had spoken to other parents who do the same. I am not interested in ‘other parents’, but X and his parents. The father said X was not uncomfortable, but I conclude it is perfectly understandable that a child X’s age may well be uncomfortable with an adult watching them dry themselves, which means the child must be naked. X was unable to voice his discomfort to his father, but told his psychologist as set out in the case note extracted above.
Whilst I do not find the father’s actions watching X dry himself amount to harm and abuse per se, I do find the father does not understand or appreciate X’s boundaries, privacy and what X considers to be within his comfort zone or not. I also find this is another example of the father’s conduct making X feel uncomfortable and X being unable to voice that to his father. I find this reinforces X’s feelings of being uncomfortable and unsafe in the father’s care as X does not feel he is able to set boundaries which the father will respect.
The teenage female foster child
The father accepted that in September 2023, he had to be told not to pat a foster child’s chest area – the foster child was a 14/15 year old young woman with an intellectual impairment. He deposed he had done so since the children were little to help them calm when elevated. He reported the young woman foster child told him he is not allowed to anymore, adding “because I am a teenager now, and that’s also not appropriate”.[49] In cross-examination the father said she “said she didn’t like me touching her on the chest as she had boobs”. He was later told by a Child Safety Officer not to do that anymore.
[49] Father’s affidavit filed 11 February 2025 at paragraph 96.
On the father’s concession, I find the father touched the young woman in the chest area. I further find that was inappropriate and that it was completely unacceptable for a child to have to tell an adult not to do so. It beggars belief that the father could not work that out for himself. But again, like watching X dry himself or playing an inappropriate ‘game’ with the child and allowing him to watch a grossly inappropriate video, it goes to the father’s lack of insight, child focus and child-appropriate boundaries.
Other inappropriate conduct / lack of insight / boundaries / child focus deficits
In February 2022, X and the foster children were to spend time with the father on a Saturday, but the mother asked that not occur due to predicted flooding. She proposed a video call occur instead as being safer for all. Following the mother’s request, the father videoed with the children, which itself is perfectly acceptable, but he did it sitting outside the mother’s home. One of the foster children observed the father there and told the mother.
I find the father’s conduct showed no respect for the mother’s boundaries and privacy (and derivatively, the children). As such, I accept the mother’s evidence that it made her feel anxious and intimidated and demonstrated the father’s lack of ability to respect boundaries and privacy.
Next, the father has posted and re-posted intemperate and offensive content on Facebook that would not have engendered trust in the mother or helped alleviate her anxiety about him. For example, in January 2023, a relative of one of the foster children in the care of the mother called her a “putrid foster carer” and “a nut job, narcissistic, lying piece of sh*t foster carer!” on social media that was then supplied to the mother. The father chose to support this relative in her guardianship dispute over the foster child in the care of the mother. His decision to support the foster child’s relative over the mother was ill-advised and likely caused the mother to feel anxious.
Separately, in November 2022, the father liked a post where some other person commented on a post about parental alienation with that person commenting, “Particularly if the other partner is a hunt with the dyke brigade behind them”. The father accepted that was a reference to the mother, whom he (the father) is convinced is in a same sex relationship with Ms G. The father agreed he gave this offensive post a smiley face. He said he posted privately “to vent”, yet his posts wound up in the mother’s hands and attached to her affidavit. It could hardly have helped the mother’s view of the father and her anxiety about him.
The father has also involved the child in repeating TikTok games, one of which overlooked X’s need for thickened water to avoid the risk of aspiration. For example, on 8 October 2022, the mother said X and the father were playing a game where the child would put unthickened water in his mouth and play rock-paper-scissors with the father. Then, the losing party had to slap the other person on the face and they were not to laugh.[50] Using unthickened water is a risk to X. The father described it as the “Tortilla challenge” which he and X did together, whereby after X put fluids in his mouth, and they played rock-paper-scissors, the loser would be “hit across the face with a tortilla”. Hitting or slapping someone in the face is not a game; it is inappropriate for normalising assault.
[50] Exhibit 4, p.124.
The father has also engaged in childish, unhelpful responses to the mother. For example, in a text exchange in October 2021, the mother relevantly messaged, “Due to the current treatment for her [a foster child’s] teeth she is unable to eat any of those types of food and therefore cannot participate in red food day”. The father asked if the foster child could come and say “hi” and asked, “What is she having done that is stopping her from having anything to eat?” The mother did not say that; she referred to no red foods. After some other texts, the mother said, “It's up to [foster child] if she wants to say hi. It's also up to her if she wants to discuss her treatment plan”. The mother’s approach is entirely consistent with how the Department determined if the foster children would see the father, or not. The father’s retort was childish and not child focused, “Then it is up to her to decide whether to eat something or not on Red Food Day”.[51]
[51] Exhibit 1, p.207.
Similarly, in December 2021, the mother asked the father if he had given a different foster child some money. The father replied, “Given you are right next to him you can ask him yourself”. That was not child focused either.[52]
[52] Exhibit 1, p.210.
In a further example of childish conduct on the part of the father, the mother asked the father to call the children on an App they were using. The father said, “No you call me”. The mother explained her App was set for children so did not allow outgoing calls. The father replied, “You both have decided this you organise it. Face Time then this is on you and [Ms G] now. You are now using up my time with the kids. Sort it out”. The father could have just placed the call.
The father also engaged the child’s paediatrician asking whether X spending time with him would increase X’s chance of getting covid, saying “I do appreciate this email sounds trivial and I do not wish Dr -- getting involved in Family Law matters, I do however need some clarity around this issue as I have been restricted by [Ms Mathis] and [Ms G] in seeing [X] for this reason”. And that is precisely what he did - involved the doctor in family law matters. The doctors’ rooms aptly replied: [53]
[X] has chronic lung disease […] which means he is at a higher risk of getting sick if he was to get infected. While there are no certainties, the best management is to minimise the risk. This is done by minimising exposure and ensuring all caregivers and himself are vaccinated, especially having boosters when available.
How you as parents and caregivers minimise his risk is a personal decision based on your situation and the benefits and risks.
…
[53] Exhibit 1, p.231.
Next, the evidence was re-opened on the morning submissions ought have been given. The mother’s application was not opposed. In her affidavit she spoke of two instances where the father attended sport when he knew she and X would be there.
On 30 March 2025 the father drove into one of the sportsground car parks, near a corridor or strip that runs between fields to drop his partner, Ms C, at her game – she has a car and can drive. I find it was foolhardy of the father to do this given his partner has access to a car and can drive, when he said he knew the mother, X and a foster child would be there.
The mother said she saw the father drive another loop around the car park and then stopped near where X was. X did not see him. The father said he did not do an extra loop around but exited the car park and went for a drive. I do not need to find if he acted as the mother or the father said. Just being there in the first place, and what he did when he came back to the sportsground reveals his lack of insight.
The father then returned to the sportsground and parked on the road opposite field 1, admitting he knew full well that one of the foster children and mother would be there at the end of the game. The father said he parked there so he “could see them actively leaving the field/ [sports] grounds”. The father accepted that he was visible and had parked where he did so the mother would know where he was. The mother and children then drove past the father and he then went back into the sportsground.
The father admitted there were other places he could have parked but did not think about that at the time. It also did not dawn on him that it would likely have been confusing for X if he saw his father sitting there in the car as they drove by. When squarely put on the spot about it in cross-examination, he agreed it could confuse X to see the father there.
After that, on 2 April 2025, the mother’s solicitors wrote to the father’s solicitors about her [the mother’s] concerns with the father attending the sportsground when she was there. Nevertheless, four days later he attended again. This is also after the father had accepted in cross-examination in the main part of the trial (i.e. prior to the re-opening) that his presence there made the mother anxious.
On 6 April 2025 the father again dropped his partner (who has a car and can drive) to the field and left. The father was aware that one of the foster children would be playing that day, and the approximate times at which the mother and children would be at the field. The father said that he did not see the child or the mother prior to him leaving. Later that day the father sent a message to the mother via their parenting App saying “please don’t breach me” because he was concerned that when he returned to pick up his partner he knew the mother and child would still be there.
It is not necessary for me to find, and I was not asked to do so, whether his conduct on either or both dates the subject of re-opening amounted to contraventions of the DVO. The mother has gone to the police about these matters, and it will be a matter for them what, if anything, they do about this. However, it became clear in the re-opened cross-examination of the father that he prioritised his “allegiance to family and friends” and link to the club over minimising the prospect of coming into contact with the mother or X, or either or both seeing him. The father writes to X about his own sports games (run at different times) but accepted he did not need to be at the field when X and the mother were there to do that.
He also insisted he did nothing wrong by the DVO. But that misses the point - given the father has been found to have contravened the TPO six times at the sportsground, and given the eye of the court was on him in this period between the initial close of evidence and submissions, it was reckless of the father to attend the sportsground, knowing X and the mother would be there. And that is in circumstances where he had no actual need to be there. Suffice to say, I do not accept the father’s submission that his attendances at the sportsground that lead to the re-opening was “naïve”. Instead, he placed his wants above any consequences of that – including the mother’s anxieties and confusion or perhaps upset for X if he physically saw his father.
This also makes it hard to accept the father’s evidence in the main part of the trial that he understood, in hindsight, how his presence at places such as the sportsground made the mother anxious. Notwithstanding that apparent epiphany, he went to the sportsground again, not once, but twice and the second being after the mother’s concerns at his presence had been raised. On the re-opening the father was asked if his attendances were a good idea and replied, “looking back, probably not”. And this is an exemplar of the problem presented by the father – as submitted by the ICL, “he doesn’t know when to stop” and per the mother, “he is incapable of moderating his responses and is incapable of understanding the impact of his actions on the mother and the child”.

Accordingly, unsupervised time does not mitigate his risks, and no one presses for that in any event on the unacceptable risk findings I have made.
The ICL and mother proposed:[66]
Because of the aforementioned risks, the child should not spend time with the father.
Even supervised time (which, it is acknowledged, could substantially address the risks), would be inappropriate because the child is at unacceptable risk of emotional and psychological harm if the time with the Father recommences and then ceases as a result of the ongoing QPS investigations.
[66] Exhibit 31.
They propose the letter exchanges continue. They have other orders not concerning time, which I will consider later.
The father had supervision alternatives[67] – one if it was found that “the child is at unacceptable risk of harm in the father’s care and the court is satisfied that such risk can be appropriately mitigated”, and, a second if it was found “the child is at unacceptable risk of harm in the father’s care, which is unable to be mitigated at this time or in the foreseeable future”.
[67] Exhibit 33.
In the former case (supervision to mitigate unacceptable risk) and in terms of time, the father proposed X spend supervised time with the father at a contact centre for 12 visits and his partner be permitted to attend. His partner has not met X. After the 12 visits at the contact centre, he proposed his partner or other agreed person supervise X’s time with the father graduating from short visits to 9am-5pm alternate Sundays, and other supervised time arrangements on special days, school and extra-curricular activities. His proposed orders contained various other specific issue orders.
In the latter case (supervision does not mitigate unacceptable risk) and in terms of time and communications, he proposed time as agreed and failing that, no time, monthly phone calls and to send letters. He also set out various other specific issue orders.
X did spend supervised time at B Contract Centre in 2022. Thus, that centre is known to him.
However, the father’s proposal then morphs into Ms C, the father’s partner, as supervisor, or other person as agreed. Ms C does not accept the allegations and has not met X.
Counsel for the father submitted that even though the father’s new partner did not believe the allegations levelled against the father, she would still be a good supervisor because she was a mandatory notifier due to being a health professional. It is not clear to me whether those professional notification obligations run to a person in their private, family life. A draft, unsigned, incomplete undertaking was attached to the father’s submissions and a Notation proposed about it being completed by any supervisors, but that was as far as it went. The incomplete document attached to the Case Outline is not evidence, nor for that matter does an Outline constitute evidence. Apparently, an undertaking has since been filed with the court but the mere filing of a document does not itself make it evidence. An undertaking really means nothing in terms of enforcement unless it is received and accepted by the court. [68] At the end of the day, there is no undertaking that has been offered to and accepted by the court.
[68] Bain & Bain (Deceased) [2017] FamCAFC 80, albeit with respect to a contempt application.
It is also not clear whether an undertaking signed by a non-party has much force or effect, if at all. Further, the father proposed a Notation that some other agreed supervisor in the future be requested to provide an undertaking to the court in certain terms. How that could be offered to the court let alone accepted by the court when its jurisdiction ends is a mystery. Separately, the Notation proposed by the father is a hope, intention, or a plan, but Notations cannot take the place of or be seen to be orders.[69]
[69] Oberlin & Infeld (2021) FLC 94-017 at [44]).
In the circumstance of this matter, I find Ms C is not an appropriate supervisor because:
(a)X has never met Ms C and they have no relationship – although I accept on the father’s case that she would be introduced to the child at the contact centre;
(b)It is unlikely X would share any feelings, concerns or worries about the father with Ms C, a stranger – and even if she ceased to be a stranger, X will obviously perceive her as aligned to the father; she is the father’s partner after all;
(c)I accept the Report Writer’s evidence that X would need a supervisor he can trust and that is not Ms C right now, if ever given her status as the father’s partner;
(d)X’s primary carer, the mother, does not trust she will place X’s protective needs over her allegiance to the father and her belief that he could not have abused the child in any way shape or form (as Ms C said in cross-examination); and
(e)The Family Report Writer had no opportunity to engage with her, and thus assess her suitability as a potential supervisor.
That means, on the father’s case of mitigating the risk via supervision, I am left with either someone agreed between the parties, or the contact centre. I think it most unlikely the parties would agree on a different person and no alternate names were even mentioned. I also think it likely that the father would badger the mother with various names over the years, which is an added stress she does not need as the unchallenged residential parent.
So, on the father’s case as set out in Exhibit 33, I am left with his option of long term and fortnightly visits at a contact centre, or no time. But I am not bound by the parties’ proposals.[70]
[70] U v U (2002) 211 CLR 238 at [80].
Putting aside the ICL’s and mother’s concerns about the open police investigation into the father for the moment, I am otherwise satisfied that professional supervision would mitigate the unacceptable risk the father presents to X and would be a fetter for his other inappropriate conduct and lack of boundaries. But long term and frequent supervision, as the father seeks, is not a realistic option. Even on his supplementary submissions he said the length of time using the contact centre could be extended and the pace of time a little slower, but he still sought for X to have regular time with him. He eschewed time “every three months” saying that was disjointed and time should be regular enough to allow for planning for the next visit and continuity of discussions across visits. He mentioned monthly time.
I find long term and frequent supervision is not a realistic option because it has ongoing costs, and more so, as the Report Writer said, “there is a level of a child outgrowing a contact centre, so it not really being a normal setting”. In other words, it is hard to see how fortnightly or other frequent time at a contact centre would be appropriate for X when he is, say, 16 years of age. Alternate weekends at a contact centre are also likely to become dull and boring for the child, particularly as he matures and starts to individuate from his parents. To that end, I accept what the father highlighted in written submissions, “the mother concedes he previously enjoyed spending time with his father but became restless with the strict confine of the [contact centre]”.
Supervision is usually a short term proposition leading then to unsupervised time where a parent has to get some runs on the board, say several months of clean drug tests and then a move to unsupervised time. But that is not the case here. Any ‘improvement’ in the father’s lack of appropriate boundaries, lack of insight and the like are not matters that can be empirically tested.
For her process of reasoning, I accept the Report Writer’s assessment of long term supervision for X:
the idea of [X] having ongoing contact with [Mr Mathis] that will never, potentially, ever move to unsupervised, in my view, would have a more detrimental impact on him. And I say that because if that’s the case, [X] would be living with [Ms Mathis], and he would, potentially, be exposed to both parents still having heightened emotions from the findings of the court. So he’s also – he’s already a little boy that’s quite anxious, quite aware of – that his mum and dad don’t like each other, that they don’t get along.[71]
[71] Transcript 21 March 2025, p.6 lines 41-47.
That opinion sits within a long line of authority which speaks against long term supervision with Boland J in Moose v Moose[72] commenting on the general undesirability of long term supervised contact:
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).
[72] [2008] FLC 93-375 at [119].
In Exhibit 31, both the mother and ICL accept supervision “could substantially address the risks” but highlight that as recently as 18 March 2025 the police declined to send material to the court relating to “an ongoing investigation” because that “may prejudice the outcome of the investigation”. There is no suggestion from anyone that that was not a reference to what the child said about his father and his anus and bum.
I accept the child’s allegations were made about 18 months ago, and the police have not yet concluded their investigation one way or the other. The father has not been formally interviewed, and the apparent s 93A interview with X by the police has not been returned by the police for the reasons set out in the preceding paragraph.
The ICL and mother submitted that the open investigation could mean if time started and then was stopped because charges were preferred against the father, then that start-stop of time would not be good for the child. The Report Writer’s assessment was that, “to then be exposed to starting contact, and then contact stopping for some reason, I think would be absolutely detrimental to him”. That answer was in the context of the father’s proposal for frequent time.
In supplementary submissions, the ICL remained against the idea of infrequent supervised time between X and the father, and spoke of the guilt X may feel if time is started and then stopped if the father is charged over anything to do with X. The evidence is that X already has some guilt over his time with the father stopping given what X told his therapist and others. It will be imperative that the mother secure whatever therapeutic support thought necessary for X to understand none of this is his fault and he has a right to be and feel safe.
It was also said by the ICL that X may not let anyone know if his father did something inappropriate again. I struggle with the logic of that because the discussion was in the context of time being supervised by professional supervisors who themselves will step in if the father says or does something inappropriate.
If the father is charged with offences over something to do with X (e.g. watching the child exploitation video with X, or poking in the anus or bum (to use X's words) and bail conditions prevent any contact between X and the father, then X will know about that anyway - he will likely be a witness. But, all there is before me is that the police have an open investigation.
I have no doubt the mother will commence facilitating appropriate therapeutic support for X as soon as she can - it is something she has wanted for some time. Hence, if the police do charge the father over something to do with X at some unknown time in the future, X will have had the benefit of counselling support to help him understand none of this is his fault, there is nothing to feel guilty about, it is important he speak up and it is his father who is the one responsible for the consequences of the father's own action, be that from charges being brought to a trial, or however it unfolds, if it unfolds.
None of the parties have any idea when or if the police will take any action, be that to close their file or to prefer charges. I accept there is a possibility that if I order time, then X might start time, but it be ceased if the father was charged with offences where X may be a witness in the criminal trial. That is a factor to consider but not the weightiest one. Instead, what I have found is that long term and frequent supervised time at a contact centre is not in X’s best interests.
Noting X wants to see his father but needs to feel safe and not scared, I do not consider it in X's best interests to not allow any kind of time because one day, maybe, the police might charge the father with something that involves X. I accept the father’s submission that I must work with what I have now, not something that may or may not occur at some unknown future time.
On all accounts, the exchange of letters is going well, and the mother says X looks forward to receiving them. But he also misses his father and wants to see him but needs to feel and be safe.
I consider X should see his father in a supervised setting, but not as frequently as the father seeks for the reason given when addressing long term and frequent supervised time. The frequency he seeks (even on his supplementary submissions) is too much and his partner is not an appropriate supervisor for the reasons given. Instead, I conclude that there should be some supervised time at B Contact Centre spaced out across the year because:
(a)Spaced out time reduces the chance of the contact centre becoming dull and boring (as it likely would on alternate weekends or other forms of more regular time);
(b)It gives heed to X’s desire to see his father, but to also feel safe and comfortable;
(c)B Contact Centre is known to him and the parties;
(d)At the start of trial and supplementary submissions, the mother proposed X’s time be supervised at B Contact Centre if I was against her on no time. She had thus contemplated this and could only have proposed it if she felt she could support it;
(e)In Exhibit 31, both the ICL and mother said supervision “could substantially address the risks”;
(f)Time at a contact centre must give some comfort to the now unchallenged residential parent that X will be safe, and the father’s inappropriate conduct constrained by professional supervisors;
(g)Spaced out time is not such an imposition on the mother and her capacity to parent than a regime of frequent supervised time with X;
(h)If time stopped because charges were preferred against the father at some unknown time in the future, then the cessation of spaced out time would not be such an imposition or loss for X, compared with having and then ceasing frequent time on alternate weekends, holidays and extra-curricular activities as the father seeks in Exhibit 33 or even on a slightly slower version spoke of in his supplementary submissions;
(i)I accept the father’s written submissions that not allowing any form of time because of the open police investigation would “render the child living in limbo for an indeterminate period of time, potentially the remainder of his childhood”;
(j)Spacing out time by reference to special events gives X the consistency and stability that is good for him. For example his mother or father will be able to say, “you will see dad for your birthday” and the like;
(k)Spaced out time still allows X and the father to plan the next visit and to have some continuity of time and conversations and this was be in addition to the letter exchanges.
Accordingly, I will order X spend two hours supervised time at B Contact Centre at a time the contact centre can provide:
(a)As close to Easter Friday or Easter Monday as the contact centre can arrange;
(b)As close to X's birthday as the contact centre can arrange;
(c)As close to Father's Day as the contact centre can arrange; and
(d)In the lead up to Christmas Day as the contact centre can arrange.
These events were sensible suggestions by the mother in supplementary submissions if I was against her on her no time position.
I have picked two hours because that is the usual time contact centres offer, and it is a duration of time no one took issue with in supplementary submissions. As supervision is ultimately for X’s safety, the parties can equally share any costs.
I am content for Ms C to attend those visits, although it would be wise of the father to re-establish his relationship with X, before introducing her to X.
I will make an order suggested by the mother in supplementary submissions (if I was against her on no time) that the father be restrained from using electronic devices when he is with the child. I will make that order because the father’s lack of insight means I am not confident he would do so of his own volition. Or, as the ICL submitted, “he doesn’t know when to stop”. And similarly from the mother, “the father is incapable of moderating his responses and is incapable of understanding the impact of his actions on the mother and on the child”. The enjoinder means there can be no chance of X and the father watching anymore inappropriate videos as they have in the past. This is a safeguard to which s 60CG speaks. It will also allow the father and child to have more meaningful time without distraction from external sources.
I am also satisfied that if X’s time is stopped if the father is charged, X's time with his father will have been minimal and I consider X having and then ceasing to have four two-hour visits a year will have far less an impact than stopping regular and frequent time as proposed by the father. In reaching that conclusion, I am confident the mother will secure X relevant therapeutic supports as she has long sought. That will assist X to understand that if his father is charged, that is a consequence of the father’s own alleged actions and there is no blame that can lie at X’s feet anyway whatsoever.
I am not satisfied the father’s regular communication orders are in X’s interests because (a) the mother will have to place the call due to the DVO which has several more years to run, and (b) that imposes regular obligations on her not only to make the calls but to essentially supervise them in case the father says something inappropriate.
Issue 6: Which parent, or both, should make the long-term decisions for the child?
On the findings I have made, the father proposed the mother have sole decision making for major long term decisions. I agree. The mother is the residential parent and will solely have parental responsibility for X’s major long terms decisions.
This means the mother will be able to enlist whatever therapeutic supports are best for X, including protective behaviour training and anything else she deems best for X.
On some of his parenting orders[73] the father sought orders that prior to the mother making any major long term decisions, the mother invite written comments from him and “genuinely consider” his input and then let him know her decision.
[73] Exhibit 33.
The mother and ICL sought orders that the mother advise the father of any decision after she makes it. I prefer the mother’s and ICL’s orders because (a) the father will know the decisions, but (b) the idea of these two parents engaging on decisions concerning X is not one that can be seriously entertained, (c) the father does not impugn the mother’s past decision making, and (d) the concept of “genuine consideration” is open to interpretation and dispute.
ORDERS

I have already given reasons for many of the orders I will make and not make, particularly with respect to time, communications and decision making.
I am content to make the App communication orders proposed by the parties, along with the usual medical and educational authorities and s 114Q orders; they are uncontroversial. It is proper to make orders whereby the mother keeps the father informed about X’s medical complexities and each can secure medical information about the child. The same is said of information to each parent about educational issues. It is also proper to make orders that the orders can be released to entities such as X’s school, doctors and the like so X can get whatever support or care or education he needs.
In supplementary submissions no one cavilled with the mother’s position that should the father be charged with an offence where X may be a witness in a criminal trial, then the father should provide a copy of the Charge Sheet (however so named) and bail conditions to the mother. I will make an order to that effect. I will also make a Notation reflecting the common position of the parties in supplementary submissions that if that father was charged with such offences, his bail conditions may mean all time and communications with X ceases.
I now turn to other orders sought.
Exhibit 32 – mother’s and ICL’s proposed orders
Some orders proposed by the mother and ICL are machinery and do not need reasons, for example, to keep postal addresses and contact details up to date to facilitate the sending of letters between the father and child.
I will make the order about X continuing with his therapist. As I have allocated parental responsibility to the mother, it is not strictly necessary, but I make it, essentially, for the psychologist’s clarity and comfort; Ms F impressed me with her evidence and has rapport with X. That relationship should not be jeopardised. It may be useful for her to have the orders and Reasons, and I will make that order.
The mother and ICL seek s 68B restraints in the following terms:
Restraints
17. Pursuant to Section 68B of the Family Law Act 1975, the father is restrained from:
a.approaching, entering, or being within 100 metres of the premises where [X] attends school, unless otherwise provided for in these Orders; and
b.attending [E Sportsground] at such times that the Mother and/or [X] are present, provided the Mother notifies the Father no less than 48 hours prior to any attendance for training and or games for [X] or any other child in the Mother's care.
18. Pursuant to Section 68B of the Family Law Act 1975, the parties are restrained from making comments about any party and/or posting photographs, comments or any other posts about or in relation to the other party on any social media platform.
Order 18 is unfortunately necessary given then father’s liking of inappropriate posts. I will make Order 17 – the evidence on the re-opening alone justifies that they are required. It really is quite unbelievable that between the close of evidence and submissions that the father took himself twice to the sportsground when he did not actually need to go, knowing full well the mother and X would be there. To be clear, “attending” includes being there to drop someone off, or pick someone up when the mother and children are there.
On the re-opening, it became crystal clear that the father had not contemplated the confusion he might cause X if X saw him parked just down from the field on the opposite side of the road, and sat there waiting for the mother (with a foster child and X) to drive by so he could go back in. It is also the case that six of the father’s seven contraventions of the TPO occurred at the sportsground. In X’s presence, he has also been removed from the sportsground by the police. It is a place he ought avoid when X and the mother are there. However, the father’s evidence is that he will keep going to sport “if allowed”. He will not be allowed there when X, any foster children and the mother are there.
Given a TPO variation was required to stop the father randomly turning up at the child’s school, I will also make the school restraint. I also do so because school should be a sanctuary for any child, and to make it clear to the father and school that school is a place of safety and learning for X, not some back-hand way for the father to see X.
I am content to make the overseas travel orders proposed by the ICL and mother - overseas travel is a wonderful and enriching experience for children. No submission were made that the mother is a flight risk.[74] I will however remove the word “reasonable” from the clause “The father will, at the reasonable request of the mother, sign an Application for a Passport for [X]”. A reasonable request by one party may be entirely unreasonable to another. I also do not see that X gets any benefit if the parties then engage in a to-and-from about whether the request is reasonable, or not.
[74] Line & Line (1997) FLC 92-729.
I will make the ADR orders proposed by the mother and ICL. They are really matters covered by the Act, but once the parties separate from their lawyers, the ADR orders are a useful reminder to the parties.
Finally, I will make the Order for the parents to engage Ms D to explain the orders to X and meet any costs of doing so. It is important X knows the outcome in an age-appropriate and neutral way. Ms D is to have a copy of these Reasons and orders.
Exhibit 33 – father’s proposed orders
I will not make the father’s proposed Order 27 which is to the effect that the parents authorise X’s psychologist to engage with both parents. That essentially binds the child’s psychologist to conduct her therapy in a certain way; she is not a party to these proceedings and X’s therapeutic relationship with Ms F must be the priority. I have no doubt that if Ms F feels the therapeutic need for either or both parents to attend upon her (in separate sessions given the DVO), then she will ask them to do so. She will have a copy of the orders and Reasons.
I will not make his proposed Order 28 which restrained the parties from denigrating the other when with the psychologist and X. It will be a matter for Ms F how she conducts her sessions. I also do not accept the father’s submissions, that the mother was denigrating the father to Ms F in the presence of X by simply repeating what X had said to her (the mother) about his worries, prior to the sessions.
I prefer the ICL’s and mother’s proposal that the father write to X at all times the father chooses, as opposed to the father’s more restrictive proposal of correspondence from him to X once per month plus on some special occasions. But I will make an order that the mother facilitate X’s letter writing to the father. The mother said she would do so but I make the order to make that clear.
I will make the father’s proposed non-denigration orders at his Order 44 (and repeated at 71), as the child will see the father at the contact centre. Ironically, whilst the father seeks the non-denigration orders, the evidence before the court is that it is the father who called a foster child a shithead[75] and has said bad things about the mother which made X sad.[76]
[75] Exhibit 1, p.55.
[76] Exhibit 1, p.54.
By virtue of the orders I am making, various of the orders sought by the father are now redundant e.g.: Order 65 about healthcare; Order 70 about extra-curricular activities; and, overseas travel applying to both parents at his Orders 76-79.

I certify that the preceding two hundred and thirty-seven (237) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch.
Associate:
Dated: 13 May 2025

File number(s):	BRC 9902 of 2022
Judgment of:	BRASCH J
Date of judgment:	13 May 2025
Catchwords:	FAMILY LAW – CHILDREN – Where an accumulation of factors lead to a finding that the father poses an unacceptable risk of emotional and psychological abuse to the child – Where risk can only be mitigated by supervision - Where the father also conducts himself with a lack of child focus, lack of insight and prioritises his wants over the child’s needs - Where the child has expressed a desire to spend time with the father, but also said he feels unsafe with the father and uncomfortable with some of this conduct – Where the father’s proposed supervisor is not appropriate – Where frequent, indefinite supervision is not in the child’s best interests – Where orders are made for the child to spend time with the father at a contact centre four times per year along with exchange of letters
Legislation:	Evidence Act 1995 (Cth) Part 3.5, ss 91 and 140 Family Law Act 1975 (Cth)Part VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 64B, 65D, 65DAB, 68B, 68ZT, 69ZX, and 114Q Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15(3)
Cases cited:	Bain & Bain (Deceased) (2017) 319 FLR 119; [2017] FamCAFC 80 Bielen & Kozma (2022) 66 Fam LR 59; [2022] FedCFamC1A 221 Blinko & Blinko [2015] FamCAFC 146 Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Isles v Neilsen (2022) 367 FLR 338; [2022] FedCFamC1A 97 Line & Line (1997) FLC 92-729 M & M (1988) 166 CLR 69; [1988] HCA 68 Maxwell v The Queen (1996) 184 CLR 50; [1996] HCA 46 Moose v Moose (2008) FLC 93-375; [2008] FamCAFC 108 Oberlin & Infeld (2021) 63 Fam LR 88; [2021] FamCAFC 66 Stott v Holgar [2017] FamCAFC 152 U v U (2002) 211 CLR 238; [2002] HCA 36
Division:	Division 1 First Instance
Number of paragraphs:	237
Date of last submission/s:	6 May 2025
Date of hearing:	18 – 21 March 2025, 28 April 2025
Place:	Brisbane
Counsel for the Applicant:	Ms I. Gajic-Pavlica
Solicitor for the Applicant:	Condon Charles Lawyers
Counsel for the Respondent:	Mr J. Thomas
Solicitor for the Respondent:	Best Wilson Buckley Family Law
Counsel for the Independent Children's Lawyer:	Ms J. Evans
Solicitor for the Independent Children's Lawyer:	VM Family Law

BRC 9902 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR MATHIS Applicant
AND:	MS MATHIS Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BRASCH J
DATE OF ORDER:	13 MAY 2025