Metaxas & Sargent - [2022] FedCFamC1F 97

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Metaxas & Sargent [2022] FedCFamC1F 97

File number(s): MLC 10093 of 2018

Judgment of: MCEVOY J

Date of judgment: 3 March 2022

Catchwords:
FAMILY LAW – CHILDREN – spend time arrangements for the child – where the mother seeks sole parental responsibility and for the child to live with her and indefinite supervised time with the father – where the father concedes sole parental responsibility to the mother save for an obligation for her to consult him in relation to major long term issues and consider his views – where the father seeks time with the child initially on a supervised basis progressing to unsupervised time – where the father poses an unacceptable risk of harm to the child’s emotional and psychological wellbeing – where the father has shown no genuine commitment to the child – where the father has perpetrated serious family violence – where it is found that it would be in the best interests of the child for the mother to have sole parental responsibility for the child without any obligation to consult the father in relation to major long terms issues – where the child should live in the care of the mother and spend only supervised time with the father until he turns 12 years of age – where indefinite supervision until the child is an adult is not appropriate

FAMILY LAW – COSTS – circumstances justifying order – where the mother sought costs against the father for particular aspects of his conduct of the proceedings – where the mother sought costs on an indemnity basis – where the father opposed the application for costs – where the mother says the father had a wilful disregard for the law and proper processes and made groundless applications – where it is appropriate that the mother be awarded costs in accordance with scale for the period 18 December 2018 to 8 May 2019 and on an indemnity basis for the adjournment of the trial on 28 October 2020

Legislation:
Evidence Act 1975 (Cth) ss 128, 140

Family Law Act 1975 (Cth) ss 4AB, 11F, 60B, 60CA, 60CC, 61C, 61DA, 62G, 64B, s 65D, 65DAA, 65DAB, 65DAC, 67Z, 102NA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 12.47

Cases cited:
A v A (1998) FLC 92-800

Bain & Bain (2017) 56 Fam LR 361

Baum & Lokare(No 2) [2019] FamCA 292

Betros & Betros [2017] FamCAFC 90

Blakey & Blakey [2020] FamCA 647

Blann & Kenny [2021] FamCA 322

Blann & Kenny [2021] FamCAFC 161

Boman & Boman [2022] FedCFamC1F 93

Briginshaw v Briginshaw (1938) 60 CLR 336

CDJ v VAJ (1998) 197 CLR 172

Champness & Hanson (2009) FLC 93-407

Cimorelli & Wenlack [2020] FamCAFC 58

Clayton & Minshall [2021] FedCFamC1F 183

Donaldson & Ryder [2017] FamCA 920

Donaghey & Donaghey (2011) 45 Fam LR 183

Donnell & Dovey (2010) FLC 93-428

Ellis v Wallsend District Hospital (1989) 17 NSWLR 553

Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123

Fox v Percy (2003) 214 CLR 118

Guerra & Guerra [2021] FedCFamC1F 73

Hardie & Capris [2010] FamCA 1046

Hudson & Hopgood [2018] FamCA 693

In the Marriage of Blanch (1999) FLC 92-837

In the Marriage of Hogan (1986) FLC 91-704

In the Marriage of I & I (No 2) (1995) FLC 92-625

In the Marriage of Kelly (No.2) (1981) FLC 91-108

In the Marriage of Kohan (1992) 16 Fam LR 245

In the Marriage of Scott (1994) FLC 92-457

Keane & Keane [2020] FamCA 99

Keane & Keane (2021) 62 Fam LR 190

Lavinge & Gavin [2021] FamCA 612

M v M (1988) 166 CLR 69

Milton & Milton [2021] FamCAFC 64

Moose & Moose (2008) FLC 93-375

Moy & Pao [2022] FedCFamC1A 17

Mulvany & Lane (2009) FLC 93-404

Napier v Hepburn (2006) FLC 93-303

Orwell & Watson [2008] FamCAFC 62

Penfold v Penfold (1980) 144 CLR 311

Poisat & Poisat (2014) FLC 93-597

Rafferty & Spencer (2016) FLC 93-710

Re Andrew (1996) FLC 92-692

Re David (1997) 22 Fam LR 489

Ryder & Donaldson [2018] FamCAFC 260

Seaward & MacDuff [2013] FamCA 485

Stasiuk & Guild [2021] FamCAFC 62

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306

U v U (2002) 211 CLR 238

Wrenstead v Eades (2016) FLC 93-697

Yunghanns v Yunghanns (2000) FLC 93-029

Division: Division 1 First Instance

Number of paragraphs: 252

Date of last submissions: 23 July 2021

Date of hearing: 9-11 June 2021

Place: Melbourne

Counsel for the Applicant: Ms Damon

Solicitor for the Applicant: Vernon Da Gama and Associates

Counsel for the Respondent: Ms Bonney

Solicitor for the Respondent: Ebejer and Associates

Counsel for the Independent Children’s Lawyer Ms O’Connell

Solicitor for the Independent Children’s Lawyer Hartleys Lawyers
ORDERS

MLC 10093 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR METAXAS

Applicant

AND:
MS SARGENT

Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCEVOY J

DATE OF ORDER:

3 MARCH 2022

THE COURT ORDERS THAT:
Parenting
1.All previous parenting orders be discharged.
2.The mother have sole parental responsibility for the child X born 2017 (“the child”).
3.The child live with the mother.
4.Until the child is 12 years of age he spend time with the father six times per year (being once every two months if possible) and up to three special occasions per year professionally supervised by the B Service, Suburb C, or as otherwise agreed, for up to three hours each session at times and dates as can be accommodated by that service, and all costs associated with the same to be borne by the father.
5.In the event that the father declines to spend time with the child pursuant to order 4 on fewer than four occasions in a calendar year, the father’s time in accordance with order 4 be suspended.
6.For the purposes of the father’s time with the child pursuant to order 4 herein, the paternal family be permitted to attend the professionally supervised visits at the father’s election.
7.The father be permitted to communicate with the child by sending letters/cards and gifts to the child at the child’s address and for the purpose of the same the mother notify the father of any change of address.
8.The father be permitted to attend at the child’s school for the purpose of parent teacher interviews on a date on which the mother is not attending and for that purpose the mother shall authorise the child’s school to provide the father with school reports and newsletters, and school photographs to be obtained at the father’s expense and initiative.
9.The mother keep the father informed of any significant injury or illness suffered by the child and, as soon as practicable, by email, and advise the father of:
(a)the nature of the significant injury or illness;
(b)the names of all the relevant treating medical and like practitioners;
(c)the treatment given to date and any information in her possession about the diagnosis.

10.The mother shall provide copies of these orders to the child’s school, to the B Service or any other supervision contact centre as agreed, and any treating medical and like practitioners that the child may see.
11.The father is hereby authorised to liaise directly with the child’s school and any treating medical and like practitioners that the child may see.
12.Within 7 days of the date of these orders, the mother provide the father with a list of all treating medical practitioners and allied health professionals which the child currently attends.
13.Within 14 days of the date of these orders, the father enrol in a Tuning In To Kids program and upon completion provide by way of email to the mother a certificate of completion.
14.The mother send at least one photo of the child to the father once per month via Our Family Wizard, or other electronic platform as agreed between the parents.
15.The mother be authorised to apply for passports for the child pursuant to section 11 of the Australian Passports Act2005 (Cth) notwithstanding that the consent of the father has not been obtained.
16.The child be permitted to leave the Commonwealth of Australia, notwithstanding that the consent of the father has not been obtained and the mother will provide the father with details of such holiday and any missed supervised visits with the father are to be made up.
17.Each of the parties and/or their servants and agents be and hereby are restrained by injunction from:
(a)denigrating the other party or any member of the other party’s household to or in the presence or hearing of the child nor allowing anyone else to do so;
(b)discussing these proceedings or any other legal proceedings with or in the presence or hearing of the child, nor allowing anyone else to do so;
(c)involving the child in any form of dispute between the parties;
(d)physically disciplining or threatening physical discipline of the child; and
(e)exposing the child to family violence or allowing anyone else to do so.

Costs
18.Within 60 days of the date of these orders the father pay to a nominated bank account of the mother:
(a)the mother’s costs for the period 18 December 2018 to 8 May 2019 in accordance with scale fixed in the amount of $6,892.06; and
(b)the mother’s costs of the adjourned final hearing of 28 October 2020 on an indemnity basis fixed in the amount of $19,579.60.

19.Within 7 days of the date of these orders the mother file any application for her costs of the trial with any supporting material and written submissions of no more than four pages.
20.Within 7 days of the mother filing any application pursuant to order 19 herein, the father file any material in opposition and written submissions of no more than four pages.

Other
21.The Independent Children’s Lawyer be discharged.
22.All extant applications be dismissed.

AND IT IS NOTED THAT:
A. Pursuant to s.65DA(2) and s.62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Metaxas & Sargent has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCEVOY J:
INTRODUCTION

The parties to these proceedings are the applicant father, Mr Metaxas (“the father”) and the respondent mother, Ms Sargent (“the mother”). The proceedings concern parenting arrangements for the one child of the relationship, X born 2017 (“the child”) who has recently turned five years of age. The child has lived with the mother since the parties’ separation in 2017, and since February 2021 the child has spent no time with the father.
The father concedes that the mother should have sole parental responsibility for the child, although he contends that she should be subject to an obligation to consult him in relation to major long term issues, and consider his views. He also accepts that the child should live with the mother, but he contends that in due course the child should be able to spend unsupervised time with him. The mother opposes subjecting her sole parental responsibility to an obligation to consult the father, and the child having unsupervised time with the father until he is an adult. Amongst other things she maintains that the father poses an unacceptable risk of harm to the child’s emotional and psychological wellbeing.
It is the mother’s case that because the parties’ relationship was characterised by family violence perpetrated by the father against her, and because there is other evidence of the father’s harmful behaviours, attitudes, and general bad character, he presents an unacceptable risk of psychological and emotional harm to the child. She says that this risk is so great that it cannot be ameliorated unless all the child’s time with the father is supervised. It is an aspect of the mother’s case in this regard that were the father to have unsupervised time with the child this would be so distressing for her that it would inevitably impact adversely on the child.
The mother contends also that the father has shown no genuine commitment to his relationship with the child, and that he has not exercised the numerous opportunities provided to him by court orders to spend time with the child. Thus she says the seeds of disappointment with the father have already been sown in the child, and in all the circumstances the most child-focused course is to keep the bar so low by ordering limited supervised time that the father can have some chance of meeting it, thereby limiting the scope for the child to become more disappointed in his father.
The Independent Children’s Lawyer (“ICL”) hesitated to submit in terms that the father poses an unacceptable risk to the child, However, it appears in reality to be her position also that the father’s personality and character, as demonstrated by his past behaviour to the mother and others, is such that he is likely to visit emotional and psychological harm on the child one way or another, and that there is an unacceptable risk of this occurring absent ongoing supervision of their time together which should in any event be limited. The ICL joins with the mother in submitting that it would not be in the child’s best interests to have unsupervised time with the father.
The father denies that he presents an unacceptable risk to the child, and maintains that there is insufficient evidence of past conduct on his part which could constitute a basis for a finding of unacceptable risk going forward. He says that he wishes to be able to develop a positive relationship with the child, but that he is being prevented from doing this by the mother. He says that the mother provides sparse information to him about the child and that her proposal of only limited supervised time until the child is an adult would make it difficult for him to build and sustain a relationship with the child and for the child to have a relationship with the wider paternal family. The father maintains that there has been no physiological or psychological harm done to the child, and in the main he denies the mother’s allegations of family violence.
The father says also that the mother’s allegations of family violence are historic allegations, and that even if the Court accepts that they occurred, they have not been ongoing or otherwise continuous since separation. Although the father accepts that aspects of his personality are rigid and uncompromising, an allegation made by the mother and supported by the ICL, he contends that there is no basis to determine that his particular personality traits would cause harm to the child. He submits that the mother has not led evidence to support her claim that she would be so affected by the child spending unsupervised time with him that this should not be permitted to occur. It is also the father’s position that even if the Court were to take the view that a lengthy period of supervision is necessary, it would be unnecessary and impracticable for this to extend into the child’s teenage years.
For the reasons that follow I am satisfied that the father does pose an unacceptable risk of psychological and emotional harm to the child which can be ameliorated only by him having limited and supervised time with the child, at least for the foreseeable future. I am also satisfied that the father does not have a genuine commitment to the child, and that it would be contrary to the best interests of the child for there to be a time spend regime put in place that involved the father having anything more than limited supervised time with him. I do not consider, however, that a regime of limited supervised time should be ordered until the child reaches adulthood. At the conclusion of her case the mother conceded that a reasonable alternative to this would be that the orders for limited supervised time she proposes be put in place until the child is 12 years of age, at which point it would be up to the father whether he wished to make an application to have time with the child on an unsupervised basis, which application would not need to satisfy the Rice & Asplund threshold in the absence of any operative order for time.
There will accordingly be orders substantially as proposed by the mother, save that the regime of limited supervised time that she proposes will continue only until the child is 12 years of age. Thereafter, if the father wishes to make an application for unsupervised time, there will be nothing to stop him from doing so. No doubt the success or failure of such an application will turn on the reasonableness of his grounds, and in particular whether the regime of limited supervised time for the next seven years has been a success.
BACKGROUND
The father was born in 1976 and is aged 45. The mother was born in 1982 and is aged 39. The parties appear to have commenced a relationship in 2014. There is disagreement between them as to when they commenced cohabitation (the father saying it was 2016 and the mother saying it was 2015), but nothing turns on this.
It is plain that the relationship between the parties was highly fraught. The mother says that the parties separated on a final basis on June 2017, whereas the father maintains it was December 2017. It is the mother’s case that between December 2015 and June 2017 they separated on several occasions due to the ongoing family violence inflicted upon her by the father. The first family consultant who prepared a report suggests that the parties may have separated and reconciled as many as twenty times. As has been mentioned, the child was born in 2017.
At the time of the trial the father resided with his parents in Suburb D, Victoria. The father appears to have had a long term career as a professional, however he says that he did not work in 2017, that he worked for nine months in 2018, and that he worked for only six months in 2019. The father seemed to be working at the time of the trial, however his later submissions on the question of costs contended that he was unemployed in June 2021, with his last job having ended that month.
The father was apparently not in a relationship at the time of the trial, although there is significant evidence in the proceedings from a woman with whom he had a relationship after his relationship with the mother. He does, however, have a daughter from a much earlier relationship. This child (“Y”), was born in 2005 and is now aged 16. She lives with her mother in the United Kingdom, and it would seem that the father has no functioning relationship with her. According to Y’s mother, Ms E, who has sworn an affidavit in the proceedings in support of the mother, the father has not had in-person contact with the daughter since she was five years old. She says that electronic communication was ended by the father when the daughter was 15 years old because of a dispute which arose because Ms E allegedly made contact with the mother. Both Ms E and the mother say that they maintain a level of contact so that the daughter and the child have an opportunity to develop a sibling relationship. The father alleges that Ms E prevents him from maintaining electronic communication with his daughter.

The mother lives on a property in Suburb F, on the outskirts of Melbourne, with the child. The mother previously worked in her own business however in mid-2019 she sold half of that business. The mother worked in consulting until she was made redundant in mid-2020 due to the COVID-19 pandemic, and she now has a small business that she runs from home and which she began in mid-2020.
The mother re-partnered nearly three and a half years ago with a Mr G, who is 45 years of age. At the time of the trial the mother and Mr G did not cohabitate, however they were said to spend several nights per week in each other’s home. The mother has two other children from an earlier relationship: a son born 2002 who is now aged 19, and a daughter born 2004 who is now aged 17. The mother’s children live with her and spend time with their father five nights a fortnight pursuant to a private flexible agreement between the mother and her former partner. They apparently remain on friendly terms, and often have the families spend time together on special occasions.
After separation the child, then very young, lived with the mother and spent two consecutive overnights per week with the father in the home of the paternal grandparents. The mother has alleged that there was a level of coercion by the father in the making of this arrangement, and that the child, then aged six months, did not cope well with it as he was still being breast fed. Self-evidently such an arrangement in these circumstances was entirely inappropriate and it may readily be accepted that the mother was coerced into allowing it. The father alleges that the parties entered into a parenting plan in February 2018, however the mother denies that there was ever a final parenting plan in place.
It would seem that time between the father and the child was suspended in June 2018 after conflict between the parties arose and the mother sought to reduce the length of visits between the child and the father on the basis of her belief that the child was not coping. The child was in the father’s care at the time this conflict arose. Both parties sought an Intervention Order (“IVO”) against one another at this time, including having the child listed on the IVO as a protected person. The father was granted an IVO against the mother on 28 June 2018. The mother says when this IVO was served on her on 30 June 2018 the police assisted her in removing the child from the IVO and the child was returned to her. Since then the child has been in the mother’s care. On 4 July 2018 the mother obtained an IVO against the father. There did not appear to be any IVO’s in place between the parties at the date of the trial.
Between June 2018 and 29 November 2020 the father did not spend time with the child, despite being the beneficiary of orders for much of that time which would have permitted him to do so. It will be necessary to return to the significance of this, and the father’s explanation of his failure to spend time with the child. The father then spent eight supervised sessions with the child after orders were made on 28 October 2020 to enable the father to have ten supervised sessions with the child. Remarkably, and for reasons to which it will also be necessary to come, the father has not spent any time with the child since early 2021.
HISTORY OF PROCEEDINGS
The father initiated proceedings in the Federal Circuit Court of Australia by filing an application for final orders on 30 August 2018 seeking both interim and final orders. He sought final orders that the parties have equal shared parental responsibility for the child, that the child live with the mother and spend time with him each Thursday to Sunday until the child was five, and thereafter each Thursday to Sunday during school term and for half of all school holidays. The father sought interim orders in similar terms.
In response the mother sought final and interim orders that she have sole parental responsibility for the child, that the child live with her and spend time with the father each Saturday for seven and a half hours, on Christmas day for three and a half hours, and as otherwise agreed between the parties. The mother sought that the father’s time be supervised by the paternal aunt who was also to facilitate changeovers, which would take place inside a police station at the commencement and conclusion of the father’s time. The mother also sought orders that the parties obtain psychiatric assessments and reports.
On 18 December 2018 interim orders were made largely as sought by the mother. Pursuant to the orders the paternal grandmother and paternal aunt were to sign an undertaking regarding their obligations to supervise the father’s time with the child. As will be seen, however, such undertakings were not provided. Orders were also made that the parties obtain a psychiatric assessment with the father to bear the costs of this, and that they attend upon a family consultant for the preparation of a family report.
Notwithstanding the 18 December 2018 orders, on 28 February 2019 the father filed an application in a proceeding seeking orders for equal shared parental responsibility, that the child live with the mother but spend time with him from Thursday to Saturday each week, together with orders for special occasions and changeovers. The mother filed an amended final response on 14 March 2019 seeking that the 18 December 2018 orders regarding the father’s time with the child and supervision by the paternal grandmother or aunt be suspended, and that the child spend time with the father each Saturday for a minimum of two hours and a maximum of seven hours supervised by a private supervisor, or at a contact centre with a report to be prepared upon the conclusion of eight visits by the service.
On 15 March 2019 the proceeding was transferred to the Family Court of Australia and orders were subsequently made for the appointment of an ICL. On 2 July 2019 interim orders were made discharging the spend time orders of 18 December 2018 and the requirement for the father’s sister and mother to supervise the child’s time with the father. These orders also provided for the child to spend time with the father either at a contact centre on such days and times as nominated by the centre, or each Saturday for a minimum of two hours and a maximum of seven hours or supervised by a private supervisor, with the father to be solely responsible for the costs of supervision. Upon the conclusion of eight visits the parties were to obtain a report from the service supervising the father’s time. As will be seen, the father did not spend time with the child in accordance with these orders.
On 13 July 2020 the matter was set down for trial on 28 October 2020 and orders were made for the preparation of a family report pursuant to s 62G(2) of the Act. The mother and father both filed further amended applications and responses in October 2020, and the father filed a contravention application which he subsequently withdrew.
On 28 October 2020, the first day of the originally listed defended hearing, in circumstances where he had not spent time with the child the father sought an adjournment in order that he could have a period of supervised time with the child which could be the subject of a report. The adjournment application was opposed by the mother. She submitted that the orders of 2 July 2019 provided for the father to begin the process of professionally supervised time, and that he had failed to avail himself of this opportunity. The ICL did not oppose the adjournment.
Ultimately I determined that, notwithstanding the fact that the father had failed to spend supervised time with the child, he should be given one final opportunity to do so and for a report to be prepared. Orders were made vacating the final hearing and for the child to spend time with the father each Sunday for three hours, supervised by an employee of the Z Service (“Z Service”) on no less than 10 occasions, with the costs to be paid by the father. The orders provided that after the 10 occasions the child spend time with the father on alternate Sundays for up to three hours supervised by the Z Service or by some other professional supervisor, with the father to pay the costs of supervision. A report from the Z Service was ordered to be provided to the solicitors for the mother and the ICL, and the trial was re-listed to begin on 17 February 2021 as the reserve matter. The costs of the adjournment were reserved, and are dealt with below.
Subsequently orders were made for a further family report to be prepared and the matter was adjourned until 9 June 2021, it not having been reached on 17 February 2021
The matter was mentioned on 31 May 2021 in circumstances where the father had not spent any time with the child since February 2021 and he had apparently elected not to avail himself of any more time with the child consistently with the regime which had been put in place for this purpose on 28 October 2020. Despite the paucity of evidence concerning the conduct of the child’s supervised time with the father, and the family report writer’s criticisms of him, the father maintained that there was no need for supervised time and that the trial should proceed. The final hearing therefore commenced on 9 June 2021 and ran for three days. The parties thereafter filed written submissions on the question of costs incurred at various times in the period leading up to the trial.
ORDERS SOUGHT BY THE PARTIES
The parties’ originally stated positions evolved during the trial. On the final day of the trial the mother proposed a revised set of orders which, subject to certain refinements made during the course of closing submissions, were ultimately supported by the ICL. An amended form of this minute of orders was provided by the mother on 16 June 2021.
As has been mentioned, the mother’s position, which the ICL supports, is that she should have sole parental responsibility, that the child should live with her, and that the child should spend professionally supervised time with the father. She proposes that this should occur six times per year and on an additional three special occasions per year, with the father to bear the costs of the supervision. The mother proposes that the father be permitted to communicate with the child by sending letters, cards and gifts, that he be able to attend the child’s school for parent teacher interviews (when the mother is not in attendance), that he receive the child’s school reports, and that she provide him with a photograph of the child once per month. The mother’s proposed orders also contemplate that she will provide information about any serious injuries or illnesses suffered by the child to the father, and they would permit her to apply for the child’s passport without the father’s consent and travel abroad with the child.
As well as contending that the mother’s sole parental responsibility should be subject to an obligation to consult with him about major long term issues, and accepting that the child should live with the mother, the father’s orders provide that the child should spend time with him progressing from professionally supervised time each Saturday for three hours on no fewer than 10 occasions with the parental grandmother and/or aunt to attend on at least four occasions and for the father to pay the cost of such supervision, to each Saturday with the paternal grandparents or paternal aunt in substantial attendance for six weeks, then to each Saturday unsupervised from 10.00am to 6.00pm for six weeks, then finally to each alternate weekend overnight from 10.00am Saturday until 4.00pm Sunday. The father’s orders also provide for time with him on special occasions, school holiday time, a regime for communication, changeovers, and attendance at Family Dispute Resolution conferences.
MATERIAL RELIED ON
The father relied upon the following material:
(a)Affidavit of Dr H filed 13 March 2019;
(b)Family Report of Ms J dated 10 September 2019;
(c)Amended Initiating Application filed 3 February 2021;
(d)his Trial Affidavit filed 3 February 2021 (“father’s Trial Affidavit”);
(e)his Financial Statement filed 3 February 2021;
(f)Affidavit of Ms K filed 3 February 2021;
(g)Affidavit of Ms L filed 3 February 2021;
(h)Affidavit of Ms M filed 4 February 2021;
(i)his Affidavit filed 7 April 2021 (“father’s Affidavit in Reply”);
(j)Family Report of Ms N dated 20 May 2021;
(k)Affidavit of Ms M dated 1 June 2021;
(l)Case Outline filed 2 June 2021; and
(m)Documents tendered at trial.
The mother relied upon the following material:
(a)Affidavit of Dr H dated 13 March 2019;
(b)Family Report of Ms J dated 10 September 2019;
(c)her Trial Affidavit and exhibits referred to therein filed 31 March 2021 (“the mother’s Trial Affidavit”);
(d)Further Further Amended Response filed 31 March 2021;
(e)Affidavit of Ms O filed 31 March 2021;
(f)Affidavit of Ms E filed 31 March 2021;
(g)Family Report of Ms N dated 20 May 2021;
(h)Affidavit of Ms M dated 1 June 2021;
(i)Case Outline filed 1 June 2021; and
(j)Documents tendered at trial.
The ICL relied upon the following material:
(a)the documents filed by both the mother and the father in the proceedings;
(b)certain material obtained on subpoena from Victoria Police;
(c)Affidavit of Dr H, dated 12 March 2019;
(d)Family Report of Ms J dated 10 September 2020;
(e)Family Report of Ms N dated 20 May 2021;
(f)Case Outline filed 8 June 2021; and
(g)the father’s child support notice of assessment tendered at trial.
Although not all of this material is explicitly mentioned in the balance of these reasons for judgment, it has been the subject of careful review and consideration by the Court.
THE STATUTORY REGIME AND RELEVANT PRINCIPLES
Best Interests: Objects, Principles and Considerations
Part VII of the Family Law Act 1975 (“the Act”) is concerned with children. It sets out the objects, principles and matters that must be considered when determining what parenting order is proper. In proceedings for a parenting order the Court may, subject to s 61DA (the presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Div 6 of Pt VII, make such parenting orders as it thinks proper: s 65D(1).
A “parenting order” is defined in s 64B of the Act and may deal with matters including with whom a child is to live, the time a child is to spend with another person, and the allocation of parental responsibility for a child. The paramount consideration when making a parenting order is the best interests of the child or children the subject of the proceedings: s 60CA of the Act.
Section 60B(1) of the Act sets out the objects of Pt VII, which are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects are outlined in s 60B(2) of the Act. They are that, unless it would be contrary to the best interests of a child:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Ascertaining the best interests of a child by reference to the Act’s mandatory considerations must recognise that, as the High Court observed in CDJ v VAJ (1998) 197 CLR 172 at 219, [152]:
It is a mistake to think that there is always only one right answer to the question of what the best interest of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G [1985] FLR 894 at 897-898, Lord Fraser of Tullybelton pointed out:
The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.
Section 60CC(2) and (3) of the Act set out the primary and additional considerations to which the Court must have regard in determining what is in the child’s best interests. Section 60CC(2)(a) provides that a primary consideration will be the benefit to the child of having a meaningful relationship with both of the child’s parents. However the effect of s 60CC(2A) is that the Court must give greater weight to the need to protect the child from physical or psychological harm and from being exposed to abuse, neglect or family violence (s 60CC(2)(b)). Family violence is defined in s 4AB(1) as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful. Examples of this, as s 4AB(2) sets out, include an assault, a sexual assault or other sexually abusive behaviour, repeated derogatory taunts, stalking, and unlawfully depriving a family member of his or her liberty. Otherwise, there is no requirement for the primary and additional considerations to be considered in a particular order. Section 4AB(3) provides that for the purposes of the Act a child will be exposed to family violence if the child sees or hears family violence or otherwise experiences the effect of family violence.
When determining what is in the best interests of the child the relevance of the primary and additional considerations and the weight to be given to them will depend upon the particular circumstances of each case: Poisat & Poisat (2014) FLC 93-597 at [34]. As to the manner in which the Court is to take those considerations into account, in Donnell & Dovey (2010) FLC 93-428 (“Donnell & Dovey”) the Full Court said that the considerations may be seen as “…a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion” (at [103]). In Mulvany & Lane (2009) FLC 93-404 (“Mulvany & Lane”), May and Thackray JJ observed at [76]-[77] as follows:
It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Emphasis in original)

As the High Court emphasised in U v U (2002) 211 CLR 238, the Court’s power in making a parenting order is to make orders it considers to be in a child’s best interests and it is not bound by the parties’ proposals (see Gummow and Callinan JJ at [80], with whom Gleeson CJ at [1], McHugh J at [44], and Hayne J at [169]-[171] agreed).
Parental Responsibility
Subject to the Court making an order changing the statutory conferral of joint parental responsibility, s 61C of the Act provides that each of the parents of a child who is not 18 has parental responsibility for the child. There is a statutory presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility, but that presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child (or other relevant child) or family violence. The presumption may be rebutted where the Court is satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility: s 61DA of the Act.
When the presumption applies and the Court makes an order for equal shared parental responsibility, the Court is then required to consider whether it is in the child’s best interests and reasonably practicable for the child to spend equal time with both parents (s 65DAA(1)) and if not, whether it is in the best interests of the child and reasonably practicable for the child to spend “substantial and significant time” with each of the parents (s 65DAA(2)).
It will be by reference to s 60CC of the Act that the Court will consider the best interests of the child in the context of determining parental responsibility. Findings about the best interests of the child, having regard to the s 60CC considerations, are required to be made in order to come to a conclusion as to whether the presumption in s 61DA, if it applies, is to be rebutted: see the discussion in Hardie & Capris [2010] FamCA 1046 at [60]-[61] (Murphy J).
Section 65DAC is concerned with the sharing of parental responsibility. Where a parenting order provides that there is to be a sharing of parental responsibility and the exercise of that parental responsibility will involve making a decision about major long-term issues in relation to the child, the order is taken to require the decision to be made jointly: s 65DAC(2). Thus, the persons making the decision will need to consult one another in relation to the decision to be made, and make a genuine effort to come to a joint decision about that issue.
These principles inform the approach to be adopted in this case where, although the father concedes sole parental responsibility to the mother, he wished to be consulted about major long term decisions.
Principles in Parenting Proceedings Involving Allegations of Abuse
It is well settled that the central duty of the Court in parenting cases – which is to make orders in the best interests of the relevant child or children – and the mandatory process by which that duty is to be undertaken, does not change because allegations of abuse are made: M v M (1988) 166 CLR 69 at 76 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) (“M v M”); Donaghey v Donaghey (2011) 45 Fam LR 183 at [22] (Murphy J).
As the High Court observed in M v M at 76:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. 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.
How a trial judge is to assess disputed allegations of sexual and other abuse is a question which has occupied much judicial and academic attention. In Keane & Keane [2020] FamCA 99 at [63]-[78] (“Keane & Keane”) I analysed the existing state of the authorities and how the Court must discharge its obligation to assess the relevant evidence in order to determine whether there is an unacceptable risk of harm to the child: see also Blakey & Blakey [2020] FamCA 647 at [96] (Benjamin J); Blann & Kenny [2021] FamCA 322 at [22] (Macmillan J); Blann & Kenny [2021] FamCAFC 161 at [83]-[86] (Watts, Austin & Tree JJ); Boman & Boman [2022] FedCFamC1F 93 at [119] (Strum J). There was also discussion in Keane & Keane, both at first instance and on appeal, of the principles essayed by the Full Court in Re Andrew (1996) FLC 92-692 (“Re Andrew”), and the need for cogent evidence to demonstrate that the resident parent’s caregiving capacity would be discernibly impacted by an order that the child have time with the other parent: see Keane & Keane at [82]-[93]; Keane & Keane (2021) 62 Fam LR 190 at [72]-[85] (Alstergren CJ, McClelland DCJ and Benjamin J); Clayton & Minshall [2021] FedCFamC1F 183 at [88]-[90] (Austin J); Lavinge & Gavin [2021] FamCA 612 at [168]-[170] (McClelland DCJ). The principles extracted in Keane & Keane in relation to unacceptable risk and in relation to what have been referred to as the Re Andrew considerations are of application in this case also.
It is important in the circumstances of this case to note that the approach to be adopted applies to all allegations of risk of harm, including family violence of the kind which the mother alleges that the father has perpetrated against her and the child in this case, as well as the emotional and psychological harm for which the mother says the father has been responsible. It is not confined to allegations of risk by reason of sexual abuse (see A v A (1998) FLC 92-800 at 84,994-84,995 (Fogarty, Kay and Brown JJ); Orwell & Watson [2008] FamCAFC 62 at [6], [18]-[19] (Boland J); Hudson & Hopgood [2018] FamCA 693 at [118]-[119] (Carew J); Seaward & MacDuff [2013] FamCA 485 at [329]-[331] (Ryan J)).
Axiomatically, the fact finding exercise is conducted in accordance with the civil standard of proof as provided in s 140 of the Evidence Act 1975 (Cth) (“the Evidence Act”). Importantly, s 140(2) reflects the factors mentioned by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 and referred to in M v M at 76-77 as applicable in circumstances where an allegation is one of particular seriousness or the consequences flowing from a particular finding are grave.
Insofar as the father contends that the mother is failing to promote the child’s relationship with him, it may be observed that the courts have frequently had occasion to consider cases where emotional and psychological abuse in the nature of the alienation of one parent from the child is alleged. Although the nature of the emotional abuse was far more extreme than is alleged by the father against the mother in the present case, in Guerra & Guerra [2021] FedCFamC1F 73 at [88]-[91] I surveyed a series of authorities where the mother had made unfounded allegations of sexual abuse by the father thereby severely circumscribing the father’s time with the child and the Court altered the parenting arrangements and placed the child in the sole care of the father: see Re David (1997) 22 Fam LR 489 at 506-507 (Nicholson CJ, Lindenmayer and Buckley JJ); Donaldson v Ryder [2017] FamCA 920 at [153]-[155] (Carew J); Ryder & Donaldson [2018] FamCAFC 260 at [17], [20] (Ryan, Aldridge and Baumann JJ) (“Ryder & Donaldson”).
In Ryder & Donaldson, the Full Court emphasised that the primary judge is, in effect, required to undertake a risk assessment, and to balance the risk to a child’s relationship with one parent if s/he remained in the care of the alienating parent, compared with the situation if there were to be a change of residence. If the facts are such that there would be an unacceptable risk of emotional harm to the child if s/he were to continue to live with the parent who was alienating him or her from the other parent, then this risk may require a change of residence to enable the development of a meaningful relationship with both parents, as opposed to the continuation of the status quo where the child could not have a meaningful relationship with the other parent. See also, in a similar vein, Milton & Milton [2021] FamCAFC 64 at [82]-[106] (Strickland, Aldridge and Kent JJ); Cimorelli & Wenlack [2020] FamCAFC 58 at [54] (Ainslie-Wallace, Kent and Austin JJ); Rafferty & Spencer (2016) FLC 93-710 at [11]-[12] (Thackray, Ainslie-Wallace and Kent JJ). It is, of course, no part of the father’s case in these proceedings that, even if the mother were to be found to be unprepared to support a relationship between the child and the father, the child should be removed from her care and placed into the care of the father.
Whatever be the nature of the underlying conduct in issue where parties allege that they each represent a risk to the child, the risk assessment exercise to be undertaken proceeds by examining the relevant facts – here the allegations of emotional and psychological abuse which are made by the mother and to a lesser extent the father – and conducting the fact finding exercise by reference to the civil standards of proof. If the parties’ denials of the allegations made against them are to be rejected, there must be reasons given for doing so: Napier v Hepburn (2006) FLC 93-303 at [79] (Bryant CJ and Kay J, with Warnick J agreeing at [113]); In the Marriage of Blanch (1999) FLC 92-837 at 84,745 (Lindenmeyer J). The assessment of whether there is an unacceptable risk of abuse involves making findings in relation to the allegations which are made and then, on the basis of those findings and giving due attention to all other relevant matters, making a prediction about the level of risk of harm posed to the child in the future. A decision about what is in the best interests of the child can then be made, having regard to the magnitude of the risk and the various matters required to be considered by Pt VII of the Act.
THE EVIDENCE
It is against this factual and legal background that it is necessary to consider the relevant evidence. In addition to the affidavit material filed, the father gave evidence and was cross examined on the first and second day of the trial. His mother, Ms K, and his sister, Ms L, also gave evidence and were cross examined on the second day of the trial. The mother gave evidence and was cross examined on the afternoon of the second day of the trial, continuing into the third morning, and the second family consultant, Ms N, also gave evidence and was cross examined on the third day of the trial.
Although the affidavits of Ms M, Ms O, Ms E and Dr H were relied on by the mother, none of these witnesses were required for cross examination. I proceed on the basis therefore that their evidence is effectively unchallenged. It will be necessary to return to the significance of this evidence, particularly that of Ms O and Ms E.
It is clear that the parties’ relationship was, from an early date, highly vexed. As will become apparent, there have been patterns of family violence and other un-child focused behaviour on the part of the father which provide a basis for the mother’s claim that there is an unacceptable risk of emotional and psychological harm to the child should the father be permitted to have unsupervised time with him. While it is unnecessary to refer explicitly to all aspects of the considerable volume of evidence that was led by the parties, it is necessary to refer to the evidence which bears on the father’s case that he should be able to have unsupervised time with the child and be consulted about major long term decisions, and the mother’s case that the father should not have unsupervised time with the child because he presents an unacceptable risk of harm to the child and because he does not have a genuine commitment to having a relationship with the child.
By reference to the parties’ closing submissions, the relevant parts of the evidence in relation to these issues are as follows. First, on the mother’s case, is whether the father has a genuine commitment to his relationship with the child. The mother says that he does not. There are a number of aspects to this, but the focus of them is on the father’s failure to make the most of court orders that would have given him time, albeit it supervised time, with the child. In this regard the mother points also to evidence of the family consultant that it may be better for the child to have but limited time with the father to protect him from disappointment or harm if the father fails to take the opportunity to spend time with him. The father disputes that he does not have a genuine commitment to his relationship with the child, contending that the mother has failed to facilitate the child having a relationship with him and that court orders requiring supervision have stymied the development of a relationship.
Next is said by counsel for the mother to be the family violence perpetrated by the father. The focus of this is said to be an incident on 20 April 2017 where the father threw the mother to the ground. This was subsequently the subject of criminal charges for unlawful assault. It is contended that the Court should make a “general” finding that the father has perpetrated family violence, particularly in the nature of verbal abuse and controlling behaviour towards the mother on an almost daily basis and that in this context it would be highly distressing for her to have to release the child into the father’s unsupervised care. Counsel for the mother says that this is, in effect, a Re Andrew point – that having to give the child over to the father would be so distressing for her that there would be an impact on the child and thus it would not be in the child’s best interests for him to have unsupervised time with the father.
The father substantially denies that he has committed acts of family violence as alleged, but submits in any event that if there has been family violence it is historic and is not continuing and that it is unnecessary for the Court to make findings about this because equal shared parental responsibility is no longer in issue. He also draws attention to the view of the second family consultant, Ms N, that he would not deliberately act in a way which would cause emotional harm to the child. Insofar as any Re Andrew point is sought to be made by the mother, the father submits that she has not led sufficient psychological evidence of her own distress to support such a case.
The father also submits that notwithstanding his failure to cross examine Ms E, the mother of his other child, and Ms O, a former partner who alleges that he sexually assaulted her and committed other acts of family violence on her and one of her children, the Court should be slow to accept the evidence of these witnesses absent any corroborating evidence of what they say. Insofar as Ms O is concerned the father points to the absence of reports to police and the like of the sexual violence that she alleges against him.
It is also said by the mother that the father’s tendency to family violence can be seen in what is said to be his appalling behaviour to other people, particularly women, who do not do what he wants. The father is said to be narcissistic, excessively rigid, insistent on having control in all situations, incapable observing proper boundaries, and obsessed by money. The mother maintains that the father’s past behaviour in these respects and his general bad character is reflective of what his future behaviour is likely to be. In other words, that if the father behaves as he has in the past towards the mother and other women, he is likely to behave that way towards the child, and the child is thereby at risk of psychological or emotional harm.
Fourthly the mother contends that the father does not follow instructions, regardless of where they come from, if he does not agree with them. An issue which arose whereby the father refused to consent to an operation being performed on the child is said to be an example of this. The mother says that the father’s intransigence and rigidity is another matter which should be taken into account in considering whether there is an unacceptable risk of harm to the child if he spends unsupervised time with the father.
Fifthly, the mother points to an incident which occurred on 28 June 2017 when the child was still young and being breast fed where the father absconded with him and did not contact the mother for some eight hours. This too is said to be reflective of the father’s general lack of insight in relation to the child and the responsibilities of parenthood, and a further factor which should be taken into account in considering whether there would be an unacceptable risk to the child if he were to be placed in the father’s unsupervised care.
Sixthly, and it is not put that this is an issue relating to whether there is unacceptable risk, the mother points to the father’s failure to fulfil his parental responsibilities insofar as the payment of child support is concerned.
Whilst the father concedes that he has a rigid personality, he submits that the evidence of Dr H does not point to any personality disorder or any “significant psychiatric illness”. Although he concedes that he has not made the most of court orders which would have enabled him to spend more time with the child, he submits that part of the problem is that the mother has not ensured that the child’s relationship with him is promoted. It is the father’s case that if he can ultimately move to unsupervised time, and the mother supports his relationship with the child, then the relationship can be improved and the child has a chance of enjoying a better relationship with him, and the paternal family, moving forward. The father also submits that an ongoing regime of supervised care, as the mother and the ICL propose, is impracticable, particularly when the child enters his teens.
Before turning to the evidence in relation to these matters it is desirable to say something about the parties themselves, and the father’s mother and sister. The father, it must be observed, was an unimpressive witness. Consistently with the mother’s case, he exhibited a difficult personality. He was frequently argumentative and hostile; he was reluctant to concede any point in cross examination, even where there were contemporaneous documents which ran counter to the position for which he contended; and he disclosed a troubling attitude towards the mother, the child, and the responsibilities of parenthood more generally. His answers to questions in cross examination were almost uniformly fashioned in a way that he thought would best suit his case. At times his answers were plainly confected. An enduring feature of his presentation was an astonishing lack of insight. He appeared unable to identify any significant shortcomings of his own, particularly concerning the impact that his repeated failures to participate in a regime of supervised care have had on the development of his relationship with the child. It was apparent, as the mother has alleged, that he wanted to have everything on his own terms.
For these reasons I have, on the whole, taken the view that the father’s evidence in relation to contentious matters needs to be approached with real caution, and having regard to his inability to appreciate a perspective other than his own. Where his evidence in relation to particular matters contradicts the mother’s and is not supported by contemporaneous documents, I have preferred the evidence of the mother.
By contrast I regard the mother as a witness of truth. She answered questions openly and it was plain that her experiences with the father, over several years, have caused her considerable anguish and ongoing distress. I have generally been prepared to accept her evidence in relation to particular matters.

The father’s mother and his sister were also unsatisfactory witnesses. There was significant similarity between their affidavits, and I formed the view that they both had limited or no involvement in their preparation. It was my impression that the father’s mother had a limited ability to remember anything that might have required an answer to be given contrary to the father’s interests, and that the father’s sister was similarly reluctant to answer any question which might have reflected badly on the father. For the most part I have not been assisted by their evidence.
Against this background I turn now to the relevant evidence in relation to the critical matters for determination.
The father’s lack of consistency and commitment to his relationship with the child
In closing submissions the mother’s primary complaint about the father was that he had no genuine commitment to his relationship with the child. The mother submitted, and this was supported by the ICL, that the father was afforded several opportunities to spend time with the child and that he has persistently failed to do so. The father’s failure to make the most of time he could have spent with the child is said to be a function of his rigidity, his narcissism, his obsession with money, and his determination always to be in control. These behavioural traits, which are said to manifest in the father’s lack of consistency and commitment to his relationship with the child, are submitted to be matters about which findings can be made which would form a basis for the conclusion that the father represents an unacceptable risk of psychological harm to the child.
It is necessary therefore to consider those occasions where the father has not spent time with the child, and whether the fact that he did not is reflective of a lack of consistency and commitment to the child of the kind contended for by the mother, or whether there is some other explanation. Also for consideration in this context is the father’s claim that the mother is failing to promote his relationship with the child.
Opportunity for supervised time with paternal grandmother and father’s sister as supervisors – 18 December 2018 Orders
As has been mentioned, orders were made in the then Federal Circuit Court on 18 December 2018 that the father’s time with the child was to be supervised by his mother or his sister. It was ordered that both the father’s mother and his sister sign an undertaking regarding their supervisory obligations.
The mother says that the father refused to spend time with the child from 30 June 2018 because he believed he did not require supervision. The father denies this, or at least part of this, contending that he did not refuse to spend time with the child and that the “primary reason” he did not do so was because neither his sister nor his mother were willing to sign the undertaking required by the orders of 18 December 2018. He says that for his mother and sister to have complied with this order would have required one or other of them to supervise him full time, including travelling 3-4 hours in a car to the mother’s residence in Melbourne and back to their home on the other side of Melbourne. The father maintains that he wrote to the mother’s lawyers after the orders of 18 December 2018 were made, advising that he could not persuade his mother or sister to sign the required undertaking. This email, he says, bounced back as the mother’s solicitors’ office was closed for the Christmas holidays. The father claims to have forwarded the email to the mother so that she would not be waiting at the changeover for him, but she complained to the police that he had breached the IVO that was in place at the time.
It is the father’s position that it was never discussed that his mother or sister would need to be the supervisors at the hearings which preceded the orders being made on 18 December 2018. He says that the hearing on 24 October 2018 was the first time he understood supervision would be required, and that it was not until he went to Court on 18 December 2018 to hear judgment that he was informed that his mother or sister would be required to supervise his time with the child.
I do not accept the father’s evidence in this respect. It is clear that he knew that the principal option for supervision was that it be provided by his mother or his sister, or some combination of the two of them. This was the mother’s proposed approach to supervision at the substantive hearing, and the Judge said that he did not consider that there was any dispute as to the capacity of the grandmother and the sister to act as supervisors in his judgment of 18 December 2018.
As has been mentioned, the paternal grandmother and the paternal aunt have given evidence which addressed the question of their preparedness to supervise the child. Leaving to one side the patent similarities in the two affidavits which they have sworn and the difficulties with their evidence that has been mentioned, both depose that they were unwilling to act as a supervisor if the supervision needed to occur near the mother’s home in Suburb F, but that they could have assisted were it to have been near where they lived in the Suburb D area. The husband’s sister points to her obligation to care for her own young children as part of the reason for her unavailability. They both maintained this position in cross examination.
The father maintains that he tried to persuade his mother and sister to sign the undertaking in order to spend supervised time with the child, but that they would not do so. It is for this reason he says that he did not see the child from July 2018.
It is to be noted also in relation to this matter that in his psychiatric report of the father Dr H recorded that “[the father] also seemed to not be very concerned that his mother or sister had decided to not act as supervisors and that this would mean a loss of contact with [the child]”. Dr H said that the father “gave an impression of passivity and helplessness in the face of other people’s decisions”.
In my assessment the father did know, in late 2018, that his mother and his sister were the primary option for supervision. Although he likely also knew that they would have limited availability if they were required to drive to Suburb F for the supervised time, it is not apparent that the father was at all proactive in trying to find some alternate source of supervision so that he could continue to see his son. The father’s inability to negotiate a regime for the supervision of his time with the child in late 2018 does not evince any great commitment to the promotion of his relationship with the child. To this extent I am inclined to accept, as the mother alleges, that the reason the father refused to spend time with the child from about 30 June 2018 was because he believed he did not require supervision and he was unwilling to pay for it or otherwise negotiate an alternate supervision regime if his mother and sister were unable to assist. The father’s refusal at this time to engage in the face of the requirement for supervision, which was to continue, is indicative of a failure on his part to make a genuine commitment to his relationship with his son.
Opportunity for professionally supervised time – 2 July 2019 Orders
The second opportunity that the father could have spent time with the child but did not do so was when orders were made on 2 July 2019 allowing him supervised time with the child at a contact centre or with a private supervisor at his expense and subject to the execution of an undertaking by the chosen supervisor.
The mother says that she applied to the contact service for the father to commence seeing the child and that she was informed that the waiting time was up to three months, but that efforts would be made to get the child into the centre sooner. The mother says that the father did not apply to the contact centre at that stage and that he later claimed he was told the wait was “over a year so he “didn’t see the point””. The mother maintains that this is not correct, and that when she called the centre to see about any progress in relation to the wait time she was told that it was “substantially less” and she was then sent a “close letter” from the centre as the father had not contacted them.
It is the father’s position that subsequent to the hearing on 2 July 2019 and during the following week he approached the Suburb P contact centre and was informed of a 12 month waiting period. He says that given the long wait he did not register. The father claims that he was not working at this time, that he was looking for a job, that he was unable to afford the cost of private supervision, and that he could not engage Q Service. The father maintains that he also spoke to someone in the Court Registry to understand how long he would have to wait for a trial, and was told that typically all trials are heard within 12 months of the last application. He says that he therefore expected the trial to be concluded before February 2020 and that for these reasons he did not spend time with the child. The father also says that when he was self-represented he did not appreciate the significance of having a report for use in the proceedings about the progress of his time with the child, and he denied that the real reason he did not sign up for the contact centre was because he did not want to have time with the child that was supervised. He did, however, concede in cross-examination that despite not working at the time he could have afforded the costs of a private supervisor had he wished to do so.
Having heard the father attempt to explain the fact that he did not spend time with the child after the 2 July 2019 orders, I am satisfied that his refusal to spend such time with the child after those orders reflected an intransigence on his part, a refusal to accept that it was appropriate for him to have only supervised time, and an unwillingness to cover the cost of supervision. His protestations by way of explanation rang hollow and in my assessment are consistent with the absence of a real commitment on his part to the child which the mother alleges.
Further opportunity to spend 10 supervised sessions – 28 October 2020
The father was given another opportunity to spend time with the child when orders were made to facilitate this and the original trial date was adjourned on 28 October 2020. By this time the father had not spent any time with the child since June 2018 – a period of over two years.
The orders of 28 October 2020 provided that the father spend no fewer than ten sessions with the child each Sunday for three hours, supervised by an employee of the Z Service, and for a report of this time to be prepared prior to the adjourned trial date. However it is apparent that the father did not complete the ten sessions. His failure to do so was the subject of considerable attention at trial.
The father’s evidence was that he had attended the ninth visit, which was scheduled for 14 February 2021, but that the mother did not attend. He says that the tenth visit was then cancelled by the supervisor because the mother had not paid the fees for the cancellation of the previous visit. The father’s position was, in essence, that he did not complete the ten sessions because the mother had failed to attend with the child on the ninth occasion.
The father was asked why he did not simply pay the fee of $240 to the contact centre (in circumstances where he apparently earnt $4,325 per week) so that the ninth visit could proceed, even if the mother had not paid. His position was that as it was the mother who had not paid for the cancelled visit it was not appropriate that he should pay a debt which was properly hers. The father maintained that he had been informed by the contact service about a “pattern” with mothers who do not pay the fees in order to punish fathers, and that fathers then pay every week but are unable to see their child. He said that he did not want to find himself in such a situation.
It would seem that the mother subsequently paid for the session that had been missed, but that the father declined to complete the balance of the sessions (what would have been the ninth and tenth sessions). When asked in cross examination why this was, the father replied that he had contacted the contact centre several times to organise it, but that he had received no response.
It would seem that the father’s recollection of these events is imperfect and that the real reason the sessions did not proceed was in fact because of the dispute about the payment for the cancelled session. An email from Ms R of the Z Service dated 19 February 2021 at 5.22pm to the parties’ legal practitioners which was tendered reads as follows:
Dear practitioners.
I offer an update. Earlier today both parties confirmed the visit scheduled this Sunday 21.2.2021.
I actually contacted [the mother] direct to obtain this confirmation as she failed to provide it to the allocated worker [Ms M]. During the conversation with [the mother], she stated that couldn’t afford to pay to the fee associated with the cancelled visit on the 14.2.2021 and intended to resolve this issue through legal channels.
Subsequent to this, I spoke with the father this afternoon who apparently contacted our accounts department querying whether he had to pay for the upcoming scheduled visit on Sunday given that he was in credit for the visit he had paid the previous week, which the matter was obliged to pay given that she had cancelled it. I explained that he did have to pay for the upcoming visit on the 21.2.2021 and that he would be credited for the cancelled visit once the mother had paid for the arrears or there was some clear resolution. The father stated that he wasn’t prepared to be put in a situation where he had to pay for the visits cancelled by the mother. I did tell the father that the mother had advised me that she couldn’t afford to pay for the outstanding invoice. The father wanted to know whether the mother stated that she couldn’t afford to pay now or wasn’t going to pay ever
Ultimately there is a dispute over payment. The father has not and is not prepared to pay for the upcoming visit on Sunday 21.2.2021 and mother can’t afford to pay the cancellation arrears hence we are not offering service delivery until this payment issue is resolved. So there is no visit scheduled Sunday 21.2.2021.
…
(Emphasis in original)
It was clear from the cross examination of the father that he was most concerned that he would be out of pocket to the tune of $360 if the mother did not pay for the cancelled session, and that she might continue to cancel sessions and not pay for them. When it was put to him that he could simply have paid the $360 to see his son, the father said that there was every chance the mother would not turn up and then he would be paying every week and that was something which he did not want to happen. Self-evidently, even had the father’s worst fears been realised and the mother had not produced the child for the last two sessions, the father’s total exposure would have been but $720. He had no satisfactory answer for why he did not complete the last two sessions which the Court’s orders had sought to facilitate.
In all the circumstances I accept that the father’s refusal to complete the last two sessions of supervised time which had been ordered is also demonstrative of a lack of consistency and commitment on his part to his relationship with the child.
Opportunity to spend 3 hours with the child
Another aspect of the mother’s case that the father lacks any real commitment to his relationship with the child is that he requested to spend only two hours with the child during the visits contemplated by the orders of 28 October 2020 and not three hours.
In the Report of the Z Service dated 3 February 2021 (“the Observational Report”) there is an email from Ms R to the parties’ legal representatives dated 26 November 2020 in the following terms:
Dear practitioners,
Today I received a call from [the father] and he stated that he wanted to have 2 hours visits. He reported that his decision was based on his financial situation and also the fact that he didn’t want to cause [the child] any distress. He was of the view that 3 hours was far too long.
…
[Ms S] clarified that [the father] was to have 3 hours for 10 sessions and then up to 3 hours every alternate Sunday thereafter.
So in essence, I write to you to provide an update and the father’s position that he can only afford 2 hours moving forward.
…
(Emphasis added)
The father was cross examined about his position in this respect. He denied that he told Ms R or the supervisor that he had financial constraints and that he wanted to spend only two hours with the child. He accepted that he did telephone Ms R, but he disputed her version of their telephone discussion as reflected in her email. He said that he was told that normally visits of this kind would be one hour, and so he thought that three hours would make the child uncomfortable. The father says he believed that the supervisor had the discretion to decide how long the visits were, and that it was his opinion that it would be better for the child if the sessions were for less than three hours. It was also his evidence that he had spoken to many professional supervisors, all of whom had told him that there would usually be a progression of time, starting at one hour. The father said that he was therefore concerned that he may have to pay for three hours of supervised time when spending only one hour of time with the child. He says this is why he suggested a progression of time with one hour to begin with.
It would seem that ultimately the father did spend the period of three hours at each session after the 28 October 2020 orders were made. I accept, however, that for reasons of cost the father was unwilling that the sessions should go for three hours.
All things considered I accept that the father has consistently been intransigent and inflexible in spending time with the child as permitted by court orders and that his behaviour has demonstrated a lack of consistency and commitment to his relationship with the child. It would seem, and I accept, that he has only wanted to spend time with the child on his own terms, and that these terms did not include supervised time for which he had to pay. Accordingly he has been reluctant to spend time with the child and he has demonstrated his reluctance by, amongst other things, his quibbling about the relatively minor cost of supervision.
In my assessment the father’s failure to take up these opportunities bespeaks an intransigence and a lack of empathy and child focus on his part which is highly problematic. Although I do not accept as was submitted by counsel for the mother, that the father’s intransigence in this respect gives rise to an unacceptable risk of emotional or psychological harm to the child, I do regard the father’s attitude as highly relevant for the purposes of s 60CC(2)(a) and (3)(c) of the Act, considerations to which I will come in due course.
Is the mother failing to promote the father’s relationship with the child?
In light of my conclusion that the father’s actions have demonstrated a lack of consistency and commitment to his relationship with the child, and having regard to the mother’s conduct more generally, I do not accept that there is a proper basis for the father’s claim that the mother is failing to promote his relationship with the child. Indeed, the available evidence is to the contrary. It is clear that after the parties separated the mother initially acquiesced in an arrangement whereby the very young child would spend two successive nights per week with the father. After a series of events to which I will shortly come, this inappropriate arrangement came to an end and the mother attempted to put in place a regime of supervised time. It was in this regime, in one form or another, that the father has been reluctant to participate.

Similarly, I have accepted that in a number of ways the father has failed to take the opportunity to spend time with the child or to communicate with him. This is a failure for which he is responsible, and it also is a consideration which tends against him having unsupervised time with the child having regard to s 60CC(3)(c) of the Act.
The limited way in which the father has gone about fulfilling his obligation to maintain the child is also a relevant consideration: s 60CC(3)(ca) of the Act. I am not satisfied that he is assisting to maintain the child to the extent that he should be, and up until just before the trial the father had substantially failed to assist the mother in this regard. This is also a consideration which tends against him having unsupervised time with the child.
Further, in light of the father’s significant absence from the child’s life for some years now, and having regard more generally to the evidence of Ms N, it would be no small thing to change the child’s circumstances such as to move him towards unsupervised time with his father: s 60CC(3)(d) of the Act. In my view this consideration also counts against any move to unsupervised time for the foreseeable future.
Another important additional consideration is that having regard to the father’s character and past behaviour I entertain real doubts that he would have the capacity to provide for the needs of the child, including his emotional and intellectual needs: s 60CC(3)(f) of the Act. For similar reasons I doubt that the father has sufficient maturity to care for the child on an unsupervised basis: s 60CC(3)(g) of the Act; and I doubt also that the father’s attitude to the responsibilities of parenthood is sufficient for him to have unsupervised care of the child: s 60CC(3)(i) of the Act. These considerations also count against any move to unsupervised time for the foreseeable future.
Family violence is also a relevant consideration, and my findings mean that it would loom large in the matters to be considered even if I had not concluded that the father presented an unacceptable risk of emotional or psychological harm to the child: s 60CC(3)(j) and (k) of the Act. It is another aspect of the case which tends against the father having unsupervised time with the child.
On the question of whether the father should have the right to be consulted by the mother before she makes major long terms decisions for the child, I have formed the view that by reason of the family violence perpetrated by the father against the mother and the child, in particular the father’s intransigent and controlling nature, together with the very limited role the father has had in the life of the child for some years now, it would not be desirable for the mother to be required to consult with the father prior to making major long term decisions. I have no confidence that the father has the necessary insight to participate meaningfully in such consultations were he to be permitted to do so, and I consider that he would be likely to utilise any right to be consulted to further aggravate and control the mother. This would not be in the best interests of the child. Plainly, having regard to the family violence which I have accepted has occurred, the presumption in s 61DA(1) of the Act does not apply: s 61DA(2), and even if the father had not conceded parental responsibility I would have acceded to the mother’s application that she have sole parental responsibility
Orders
As has been indicated, although the father should have only supervised time with the child six times per year as well as on three special occasions, it would not be appropriate for this to continue indefinitely: see Moose & Moose (2008) FLC 93-375 at [119]; Champness & Hanson (2009) FLC 93-407 at [209]–[215]; Betros & Betros [2017] FamCAFC 90 at [13]. Accordingly, and consistently with the mother’s concession which was noted at the outset, supervised time will continue until the child is 12 years old, and at the father’s expense. At that point, if he wishes to do so, the father can make an application. If the father has failed to make the most of his supervised time with the child between now and then to develop his relationship with the child it would be unlikely that such an application would be granted.
The parties did not specify in their proposed orders how long the periods of supervised time should last. In my assessment up to as long as three hours each time would be appropriate. This was the regime put in place in October 2020, and it seems reasonable in all the circumstances.
As to whether the supervised time should be at the Z Service, as the mother proposes, or at B Service, as the father proposes, in my assessment the advantages of the B Service outweigh the advantages of the Z Service. Although some 12 months ago the child was familiar with Ms M at the Z Service, the passage of time since then means that this factor is now less significant. It is also relevant that the father has not enjoyed good relations with the Z Service, and Ms M in particular. While I have accepted that this had more to do with his own intransigence than particular problems with the Z Service, I consider that it would be preferable to have a clean break, and for supervised time going forward to be at a location which has the support of the father. It is more likely to be a success this way. Also, the mother did not express any serious opposition to the B Service in re-examination, and it is apparently roughly equidistant between the parties. There is also a suggestion from the father that it may be cheaper, which no doubt also recommends it to him.
An issue raised during Ms N’s cross examination was what should happen if the father failed to take up opportunities to spend supervised time with the child. It will be recalled that she was concerned about the possibility of this happening, and suggested that there should be some mechanism in the orders to bring the father’s entitlement to supervised time with the child to an end if he failed to participate. Unfortunately I consider that Ms N’s concern in this regard is well founded. Accordingly there should be an order that if the father declines to spend supervised time with the child on less than four occasions in a calendar year, his time with the child will be suspended indefinitely.
Insofar as the mother accepts and proposes that the father should be at liberty to send letters, cards and gifts to the child, it would also be appropriate for there to be an order requiring that the mother notify the father of any change of address in the period until the child reaches his majority.
The father has sought an order that the mother be required to provide him with a list of all treating medical practitioners and allied health professionals which the child currently attends and has attended in the last three years. I do not consider it necessary that the father be notified of the child’s medical practitioners for the last three years. However pursuant to the mother’s proposed orders wherein the mother accepts that the father should be at liberty to contact the child’s medical practitioners in the event of the child suffering from a serious illness or injury, I consider that it is appropriate that the mother advise the father of the child’s current medical practitioners as sought by the father.
Ms N recommended during cross examination that it would be desirable for the father to enrol in a Tuning In To Kids program. Having regard to my findings in relation to the father’s level of commitment to the child and his character more generally, I agree that it would be in the best interests of the child for the father to be required to undertake such a course. There will be an order to this effect, and upon completion of the course the father will be required to provide a certificate of completion to the mother by email.
Insofar as the mother proposes orders that she provide at least one photo of the child to the father once per month, that she be at liberty to apply for a passport for the child and that the child be able to leave Australia without the consent of the father, I am satisfied that in all the circumstances such orders are appropriate.
Notwithstanding the findings I have made in relation to the father, in the interests of ensuring the father’s time with the child is a success, it is desirable that a non-denigration order be included in the terms proposed by the father and accordingly such an order will also be made.
Save for the question of costs, there will otherwise be orders substantially as proposed by the mother, and all extant applications will be dismissed.
COSTS
At the conclusion of the trial the mother’ counsel indicated that the mother wished to make an application for the costs of various parts of the proceedings. There was however a paucity of evidence in relation to what amounts had been paid, and some uncertainty surrounding the precise ambit of the application. In all the circumstances I agreed that the mother should be permitted to file material in relation to her costs application, and brief submissions specifying with particularity what costs were sought, and on what basis. Orders were made to give effect to this, and for the father to file responding material.
The mother duly sought orders that the father should pay costs (fixed by the Court) either on an indemnity basis as specified or on scale as specified in accordance with the Family Law Rules 2001 (now the Federal Circuit and Family Court of Australia (Family Law) Rules 2021) (“the Rules”). She sought her costs for:
(a)the period from 18 December 2018 until 8 May 2019 (“the supervisor orders issue”);
(b)the adjourned final hearing on 28 October 2020 (“the adjournment”); and
(c)the period from 17 February 2021 until the hearing on 24 March 2021 (“the change of supervisor issue”).
In substance the mother submits that the father should have to pay her costs of the above because his conduct of the proceedings has been such that it would be appropriate for a costs order to be made having regard to s 117(2A) of the Act.
Material relied on
For the purposes of this application the mother relied upon the following material:
(a)reasons for judgment of Judge Riethmuller dated 18 December 2018;
(b)orders of 18 December 2018, 1 May 2019, 8 May 2019, 2 July 2019, 28 October 2020, 5 February 2021, 24 March 2021 and 11 June 2021;
(c)father’s application in a proceeding dated 28 February 2019;
(d)her trial affidavit filed 31 March 2021 and accompanying exhibits;
(e)reasons for judgment of the Senior Registrar dated 9 May 2019;
(f)father’s financial statement filed 3 February 2021;
(g)father’s application in a proceeding dated 23 February 2021;
(h)her affidavit dated 2 July 2021; and
(i)written submissions dated 2 July 2021.
In response to the mother’s application the father relied on:
(a)his affidavit dated 23 July 2021; and
(b)written submissions in response dated 23 July 2021.
The supervisor orders issue
As has been mentioned, after an interim defended hearing before a judge of the Federal Circuit Court on 21 November 2018, orders were made on 18 December 2018 that the paternal grandmother or paternal aunt supervise the father’s time with the child and that the father pay the costs of the parties’ psychiatric assessments and reports. I have accepted that the father knew at the time of the interim defended hearing that his mother and sister were the primary option for supervision, and that the father’s refusal to pay for the psychiatric reports was reflective of his generally rigid, stubborn and inflexible approach.
The father did not comply with these orders, but nor did he seek to appeal them. Instead, in a series of communications both to the mother’s solicitors and to the Court, he contended that these orders should be amended pursuant to the slip rule. The mother says that the father’s refusal to comply with the orders of 18 December 2018 and his subsequent conduct has caused her unnecessary further costs. She points to the father emailing the Court several times seeking an amendment to the orders pursuant to the slip rule, the father’s application in a case resulting in the filing of further affidavit material, three further hearings (on 15 March, 1 May and 8 May 2019), all related to this issue, and ultimately the transfer of the proceedings to the Family Court.
All of this the mother submits occurred without any substantial changes ever being made to the orders of 18 December 2018. On 8 May 2019 the Senior Registrar rejected the father’s submission that there had been any slip in the making of the 18 December 2018 orders, noting that the orders were binding on the parties subject to a successful interlocutory appeal. In reserving the costs of and incidental to the 8 May 2019 hearing the Senior Registrar noted that it may be that the mother may seek costs at some point.
Thus the mother submits that she should have her costs from 18 December 2018 when the orders were made, until 8 May 2019, on an indemnity basis in the sum of $9,812 or in accordance with scale in the sum of $6,892.06. She says that the father’s conduct is such as to justify a departure from the usual rule in s 117(1) of the Act that each party pay their own costs. She submits also that her own financial circumstances are now, in consequence of the litigation, more parlous than the father’s, and that the father is in a relatively much stronger financial position: certainly one which would enable him to meet a costs order. The mother submits also that the fact that the father is in receipt of legal aid pursuant to a s 102NA grant should not be a matter that should dissuade the Court from making a costs order against him. Also relevant, in the mother’s submission, is that the father’s application of 28 February 2019 was brought by reason of his failure to comply with previous orders.
The father says that his financial position is in fact parlous, and that he is in receipt of legal aid. He disputes that it was his conduct which caused the incurring of additional costs by the mother in relation to the supervisor orders issue, and that this issue was not the only matter which needed to be addressed in the period between 18 December 2018 and 8 May 2019. He disputes that his application of 28 February 2019 was a function of his refusal to comply with previous court orders. He maintains also that a relevant consideration tending against an award of costs is that he should never have been compelled to bring these proceedings and that the mother should not have suspended his unsupervised time with the child.
In all the circumstances I accept the mother’s submission that in relation to the supervisor orders issue there is justification for a departure from the usual rule that the parties to proceedings under the Act shall bear their own costs. I am satisfied that the substantial cause of the mother’s costs in the period 18 December 2018 to 8 May 2019 was the father’s intransigence and his insistence that the orders made by the judge on 18 December 2018 were wrong: s 117(2A)(c) and (d) of the Act. I also accept that the mother’s financial position is now more parlous than the father’s, and that s 117(2A)(a) and (b) of the Act should not stand in the way of a costs order. In relation to the exercise of the costs discretion generally, see: Penfold v Penfold (1980) 144 CLR 311 at 315; In the Marriage of Kelly (No.2) (1981) FLC 91-108; In the Marriage of Hogan (1986) FLC 91-704; In the Marriage of I & I(No 2) (1995) FLC 92-625; Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at [41]; Wrenstead v Eades (2016) FLC 93-697 at [15]; Baum & Lokare(No 2) [2019] FamCA 292 at [10].
I do not consider, however, that an award of indemnity costs would be appropriate in relation to the mother’s costs incurred in the period between 18 December 2018 and 8 May 2019 – what has been referred to as the supervisor orders issue. The Court’s usual approach, of course, is that it will not lightly depart from the ordinary rules relating to costs between party and party. Any circumstances justifying an award of indemnity need to be of an exceptional kind: In the Marriage of Kohan (1992) 16 Fam LR 245; Yunghanns v Yunghanns (2000) FLC 93-029 at [30]; Stasiuk & Guild [2021] FamCAFC 62; Moy & Pao [2022] FedCFamC1A 17 at [29]; see also r 12.47(2) of the Rules. I do not consider that the mother’s costs incurred in this period were incurred in circumstances where the behaviour of the father was so egregious that an order for costs on an indemnity basis should be made. There will accordingly be an order that the mother have her costs in accordance with scale fixed in the amount of $6,892.06 for the period 18 December 2018 and 8 May 2019 having regard to the mother’s evidence in relation to the incurring of this sum.
The adjournment
Insofar as the adjournment of the originally listed final hearing on 28 October 2020 is concerned, the mother says in substance that the only reason for the adjournment was that the father had not bothered to avail himself of supervised time with the child as he could and should have done, and that when he received legal advice (which he could have obtained much earlier) it became clear to him that he could not effectively prosecute his case without having had a period of supervised time with the child. The mother says that she had already prepared material for the trial, incurred the cost of having counsel prepare for trial and be present at Court, and thereafter needed to file new material. Thus she says the father should pay her reserved costs of the adjournment, either on an indemnity basis in the sum of $19,579.60 or in accordance with scale in the sum of $15,144.20.
The father makes the same submissions concerning the parties’ respective financial positions and his receipt of legal aid as he makes in relation to the supervisor orders issue. However he advances no substantive defence to his conduct which gave rise to the adjournment.
In all the circumstances I accept the mother’s submission that in relation to the adjournment there is justification for a departure from the usual rule, and that the father should bear the mother’s costs of the adjournment. I am satisfied that the adjournment was caused entirely by the father’s failure to appreciate that absent evidence of recent supervised time with the child his case was virtually unsustainable, and that the adjournment was necessary so that he could have a period of supervised time with the child. That the father only received this advice shortly prior to the date listed for trial was entirely his own fault. It is clear on the evidence that he could have accessed legal aid under the cross examination scheme much earlier than he did. In these circumstances s 117(2A)(c) of the Act provides an entirely appropriate basis for an award of costs against the father. I accept that as a practical matter the mother’s considerable expenditure to prepare for trial on 28 October 2020 would have been wasted.
The father’s conduct giving rise to the adjournment is also conduct which in my assessment justifies an order for costs on an indemnity basis. I regard the father’s need for an adjournment, in all the circumstances, as conduct of a relevantly exceptional kind. The Full Court has recently indicated that unjustified conduct of a party at trial which serves to delay or otherwise interfere with the orderly progression of the matter should, in appropriate circumstances, attract an order for indemnity costs: Moy & Pao [2022] FedCFamC1A 17 at [29]; see also r 12.47(2) of the Rules. There will accordingly be an order that the mother have her costs of the adjourned final hearing on 28 October 2020 in the amount of $19,579.60 having regard to the mother’s evidence in relation to the incurring of this sum.
The change of supervisor issue

On 23 February 2021, in the face of what he regarded as difficulties with arrangements in relation to supervised care, the father filed an application seeking that his time with the child occur at the B Service, or be supervised by the paternal grandmother, or be without supervision. Notwithstanding that he had advanced argument unsuccessfully about this issue at a mention on 5 February 2021, the father filed his application and a 53 page affidavit (without assistance from his lawyers). The mother says that she was required to pay her solicitor to consider the application, appear in Court on 24 March 2021, and make submissions. The Senior Registrar made orders on 24 March 2021 dismissing the father’s application.
The mother submits that this application was brought by the father in circumstances where he had failed to comply with previous orders and he was attempting to persuade the Court to revisit an issue which had already been determined. The father’s position is that this application was made because the mother was failing to comply with orders “to adhere to the rules of the Family Contact Service” and “did fail to attend a booked supervisor session on 14 Feb 2021 and failed to provide a medical certificate”. He says, as is the case, that the mother failed to pay the cancellation fee.
Although I have accepted that the mother’s failure to pay that one fee need not have prevented the father from continuing to have supervised time with the child, as it did, in all the circumstances I am not inclined to make any order for costs in relation to the change of supervisor issue. Although it is true that in making his application the father was attempting to revisit orders that had been made, he did so in circumstances where there was one occasion where the mother had not brought the child to what was to be a supervised visit. All things considered I take the view that the parties should bear their own relatively minor costs of this aspect of the proceedings, in accordance with the usual rule.
Costs of the trial
The mother has indicated that she may wish to bring an application for her costs of the trial, depending on the outcome. There will be orders that the mother bring any such application, with supporting material and written submissions of no more than four pages, within seven days. There will also be orders that the father file any material in opposition, and written submissions of no more than four pages, within a further seven days.

I certify that the preceding two hundred and fifty-two (252) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy.
Associate:
Dated: 3 March 2022

File number(s):	MLC 10093 of 2018
Judgment of:	MCEVOY J
Date of judgment:	3 March 2022
Catchwords:	FAMILY LAW – CHILDREN – spend time arrangements for the child – where the mother seeks sole parental responsibility and for the child to live with her and indefinite supervised time with the father – where the father concedes sole parental responsibility to the mother save for an obligation for her to consult him in relation to major long term issues and consider his views – where the father seeks time with the child initially on a supervised basis progressing to unsupervised time – where the father poses an unacceptable risk of harm to the child’s emotional and psychological wellbeing – where the father has shown no genuine commitment to the child – where the father has perpetrated serious family violence – where it is found that it would be in the best interests of the child for the mother to have sole parental responsibility for the child without any obligation to consult the father in relation to major long terms issues – where the child should live in the care of the mother and spend only supervised time with the father until he turns 12 years of age – where indefinite supervision until the child is an adult is not appropriate FAMILY LAW – COSTS – circumstances justifying order – where the mother sought costs against the father for particular aspects of his conduct of the proceedings – where the mother sought costs on an indemnity basis – where the father opposed the application for costs – where the mother says the father had a wilful disregard for the law and proper processes and made groundless applications – where it is appropriate that the mother be awarded costs in accordance with scale for the period 18 December 2018 to 8 May 2019 and on an indemnity basis for the adjournment of the trial on 28 October 2020
Legislation:	Evidence Act 1975 (Cth) ss 128, 140 Family Law Act 1975 (Cth) ss 4AB, 11F, 60B, 60CA, 60CC, 61C, 61DA, 62G, 64B, s 65D, 65DAA, 65DAB, 65DAC, 67Z, 102NA Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 12.47
Cases cited:	A v A (1998) FLC 92-800 Bain & Bain (2017) 56 Fam LR 361 Baum & Lokare(No 2) [2019] FamCA 292 Betros & Betros [2017] FamCAFC 90 Blakey & Blakey [2020] FamCA 647 Blann & Kenny [2021] FamCA 322 Blann & Kenny [2021] FamCAFC 161 Boman & Boman [2022] FedCFamC1F 93 Briginshaw v Briginshaw (1938) 60 CLR 336 CDJ v VAJ (1998) 197 CLR 172 Champness & Hanson (2009) FLC 93-407 Cimorelli & Wenlack [2020] FamCAFC 58 Clayton & Minshall [2021] FedCFamC1F 183 Donaldson & Ryder [2017] FamCA 920 Donaghey & Donaghey (2011) 45 Fam LR 183 Donnell & Dovey (2010) FLC 93-428 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 Fox v Percy (2003) 214 CLR 118 Guerra & Guerra [2021] FedCFamC1F 73 Hardie & Capris [2010] FamCA 1046 Hudson & Hopgood [2018] FamCA 693 In the Marriage of Blanch (1999) FLC 92-837 In the Marriage of Hogan (1986) FLC 91-704 In the Marriage of I & I (No 2) (1995) FLC 92-625 In the Marriage of Kelly (No.2) (1981) FLC 91-108 In the Marriage of Kohan (1992) 16 Fam LR 245 In the Marriage of Scott (1994) FLC 92-457 Keane & Keane [2020] FamCA 99 Keane & Keane (2021) 62 Fam LR 190 Lavinge & Gavin [2021] FamCA 612 M v M (1988) 166 CLR 69 Milton & Milton [2021] FamCAFC 64 Moose & Moose (2008) FLC 93-375 Moy & Pao [2022] FedCFamC1A 17 Mulvany & Lane (2009) FLC 93-404 Napier v Hepburn (2006) FLC 93-303 Orwell & Watson [2008] FamCAFC 62 Penfold v Penfold (1980) 144 CLR 311 Poisat & Poisat (2014) FLC 93-597 Rafferty & Spencer (2016) FLC 93-710 Re Andrew (1996) FLC 92-692 Re David (1997) 22 Fam LR 489 Ryder & Donaldson [2018] FamCAFC 260 Seaward & MacDuff [2013] FamCA 485 Stasiuk & Guild [2021] FamCAFC 62 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306 U v U (2002) 211 CLR 238 Wrenstead v Eades (2016) FLC 93-697 Yunghanns v Yunghanns (2000) FLC 93-029
Division:	Division 1 First Instance
Number of paragraphs:	252
Date of last submissions:	23 July 2021
Date of hearing:	9-11 June 2021
Place:	Melbourne
Counsel for the Applicant:	Ms Damon
Solicitor for the Applicant:	Vernon Da Gama and Associates
Counsel for the Respondent:	Ms Bonney
Solicitor for the Respondent:	Ebejer and Associates
Counsel for the Independent Children’s Lawyer	Ms O’Connell
Solicitor for the Independent Children’s Lawyer	Hartleys Lawyers

MLC 10093 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR METAXAS Applicant
AND:	MS SARGENT Respondent
AND:	INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	MCEVOY J
DATE OF ORDER:	3 MARCH 2022