Navickas & Fried (No 3) - [2024] FedCFamC2F 1779

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Navickas & Fried (No 3) [2024] FedCFamC2F 1779

File number(s): LEC 175 of 2021

Judgment of: JUDGE L. TURNER

Date of judgment: 12 December 2024

Catchwords: FAMILY LAW – Parenting - whether children aged 6 and 4 remain living with mother or live with father - whether either party poses an acceptable risk to children - held mother poses an unacceptable risk and children unsafe in her care - children live with the father - children spend limited supervised time with mother.

Legislation:
Family Law Act 1975 (Cth) pt VII ss 60CC, 60CG, 61CA, 61D, 64B, 65AA, 65D, 65Y, 68B, 68C, 68P, 69ZX, 106A, 114AA, 121

Births Deaths and Marriages Registration Act 1995 (NSW)

Cases cited:
Baghti & Baghti [2015] Fam CAFC 71

Banks & Banks (2015) FLC 93-637

Betros & Betros [2017] FamCAFC 90

Briginshaw v. Briginshaw (1938) 60 CLR 33

Gabbey & Cadriel [2024] FedCFamC1A 60

Heeley & Heeley [2023] FedCFamC1F 56

Isles & Nelissen [2022] FedCFamC1A97

Johnson & Page [2007] FamCA 1235

M v M (1988) 166CLR 69

Newett & Newett (No 9) [2023] FedCFamC1A 23

Oyama & Oyama [2024] FedCFamC1F 738

Potter and Potter (2007) FLC 93-326

Rod & Bloomberg [2008] FamCA 487

Division: Division 2 Family Law

Number of paragraphs: 400

Date of last submission/s: 4 November 2024

Date of hearing: 11, 12, 13, 14 September 2023, 22, 23, 24, 26 April 2024, 1, 2, 3, 4, 5, July 2024 and 2, 3, 4, 5 and 6 September 2024.

Place: Heard in City B and Brisbane, delivered in City B

Counsel for the Applicant: Ms Decle

Solicitor for the Applicant: Parker & Kissane

Counsel for the Respondent: Mr Finch (11-14 September 2023) Ms Karaman (22-26 April,1- 5 July & 2-6 September 2024)

Solicitor for the Respondent: Universal Law (11-14 September 2023), Doolan Wagner Family Lawyers (22-26 April 2024), Paddingtons Lawyers and Attorneys (1-5 July & 2-6 September 2024)

Counsel for the Independent Children's Lawyer: Ms Smith

Solicitor for the Independent Children's Lawyer: McVittie Legal
ORDERS

LEC 175 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR FRIED

Applicant

AND:
MS NAVICKAS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE L. TURNER

DATE OF ORDER:

12 DECEMBER 2024

THE COURT ORDERS BY WAY OF FINAL PARENTING ORDER THAT:
1.All previous parenting orders made whether final or interim are hereby discharged.
2.The father, the paternal grandmother Ms C, the paternal step grandfather Mr E and the father’s partner Ms D are hereby released from any and all undertakings previously filed or provided in these proceedings in the Federal Circuit and Family Court of Australia.
3.Forthwith the child currently referred to as X Fried born in 2018 be hereby known and referred to as X Navickas-Fried with such change to be reflected on the child’s birth certificate, Medicare card, school enrolment and any and all other relevant forms of identification for the child.
4.Forthwith the child currently referred to as Y Navickas born in 2020 be hereby known and referred to as Y Navickas-Fried with such change to be reflected on the child’s birth certificate, Medicare card, school enrolment and any and all other relevant forms of identification for the child.
5.For the purposes of Orders 3 and 4, the father, at his own expense, be authorised to apply to the Registrar of Births Deaths and Marriages New South Wales pursuant to the provisions of the Births Deaths and Marriages Registration Act 1995 in the approved forms to:
(a)Enable the name changes of the children from X (formerly Fried) to X Navickas-Fried and Y Navickas to X Navickas-Fried.
(b)Add the name of X Navickas-Fried as a sibling to the birth certificate of Y Navickas-Fried.
(c)Add the name of Mr Fried as the biological father to the birth certificate of Y Navickas-Fried.

6.For the purposes of Order 5, the mother’s signature on any approved forms be dispensed with and pursuant to section 106A Family Law Act 1975 a Registrar of the Federal Circuit and Family Court of Australia (a Registrar) be appointed to sign any required approved forms and do all acts and things necessary to ensure that the approved forms for the children are validly executed on behalf of the mother.
7.As from 4.00pm, 12 December 2024, the children X Navickas-Fried and Y Navickas-Fried (the children) live with the father.
8.Upon delivery of the children to the father the mother provide to the father:
(a)The children’s school uniforms and any related school items.
(b)The children’s scripts (including repeats) for their prescriptions.
(c)The children’s medications.
(d)Any written documentation as to the children’s NDIS support.
(e)A written list of names/addresses/contact details of the children’s NDIS support workers.
(f)A written list of names/addresses/contact details of the children’s current treating health professionals.
(g)A written list of upcoming educational/medical/health-related appointments.

9.The father have sole parental and decision-making responsibility for the children.
10.The children spend time and communicate with the mother as may be agreed to in writing between the parties but failing agreement as follows:
(a)In the last week of January 2025, for one supervised visit at a contact centre/supervision service closest to the father’s residence, for up to four (4) hours, as can be accommodated by the centre/supervision service and such costs of supervision to be borne by the mother.
(b)Thereafter supervised time as can be accommodated by a contact centre/supervision service closest to the father’s residence, for up to four (4) hours, four (4) times a year, such time to occur during school holiday periods with the costs of supervision to be borne by the mother.
(c)It is to be noted by the contact centre/supervision service that it is a court requirement that the supervisors provide a high degree of supervision at all times as to the communication and interaction between the mother and the children.
(d)The mother be at liberty to provide cards, letters and gifts to the children to coincide with birthdays, Christmas and Easter with the father permitted to open and inspect/read all such cards letters and gifts and if considered appropriate the father provide such cards letters and gifts in a timely manner to the children.
(e)The father encourage and facilitate the children communicating with the mother by cards/letters/gifts at such times as the children may request and/or in response to any communication received from the mother.

11.Pursuant to section 121 Family Law Act 1975 the father be at liberty to provide a copy of this judgment and the final parenting orders to:
(a)The children’s treating health professionals including NDIS support workers.
(b)The children’s education providers.
(c)The Department of Communities and Justice in the event that the Department of Communities and Justice become involved with the father and/or the children in respect to issues regarding the children.
(d)The police in the event that the police become involved with the father and/or the children in respect to issues regarding the children.

12.The mother provide to the father at the beginning of each year an updated and framed photograph of the mother with the father to display the photograph in the children’s play area/or bedroom.
13.The father provide to the mother at the beginning of each year an updated and framed photograph of the children.
14.Save and except for the orders contained herein the mother be restrained and an injunction issue pursuant to section 68B Family Law Act 1975 restraining the mother from:
(a)Stalking, harassing or intimidating the father or extended paternal family members including the father’s partner.
(b)Communicating with the:
(i)Children in any manner outside of these orders.
(ii)Children’s school or after school care.
(iii)Children’s health professionals including NDIS support workers.

(c)Approaching within 100 metres of the:
(i)Children’s residence.
(ii)The father and the children no matter where their location.
(iii)Children’s school or after school care.
(iv)Location of the children’s sporting activities, extracurricular activities and/or the children’s appointments with health professionals.

(d)Removing the children from any person providing care to the children.
(e)Making any negative, critical, belittling or derogatory comments in relation to the father and/or extended paternal family members, including the father’s partner, including questioning or criticising the parenting decisions and/or parenting capacity of the father to and/or in the presence or hearing range of the children.
(f)Doing or saying anything to and/or within the presence or hearing range of the children that could make the children feel fearful of the father or unsafe in the company or care of the father, with the mother to ensure that no other person does or says anything to and/or within the presence or hearing range of the children that could make the children feel fearful of the father or unsafe in the company or care of the father.

15.Order 14 are injunctions for the personal protection of the father and the children to which section 68C Family Law Act 1975 applies and accordingly any police officer made aware of these orders and who on reasonable grounds believe that such injunctions have been breached by the mother may arrest the mother without warrant and will follow the steps contained in section 114AA Family Law Act 1975.
16.For the purposes of section 68P Family Law Act 1975:
(a)The court notes that these orders are inconsistent with the interim Apprehended Domestic Violence Order made by City B Local Court in mid-2024 in which Y Navickas (now known as Y Navickas-Fried) is recorded as the aggrieved.
(b)The court notes that these orders are inconsistent with the order varying the Apprehended Domestic Violence Order made by Town F Local Court in early 2020 in which X Navickas (now known as X Navickas-Fried) is recorded as the aggrieved.

17.In regard to Orders 16 (a) and (b):
(a)The court directs the legal representatives for the mother and the legal representatives for the father to provide the explanation required by section 68P(2)(c) Family Law Act 1975.
(b)The court finds it is not in the children’s best interests to receive the explanation required by section 68P(c) Family Law Act 1975.
(c)Within fourteen (14) days from the date hereof a Registrar provide a copy of these orders to the agencies/persons required by section 68P (3) Family Law Act 1975.

18.Save and except for the orders contained herein the father be restrained and an injunction issue pursuant to section 68B Family Law Act 1975 restraining the father from:
(a)Making any negative, critical, belittling or derogatory comments in relation to the mother and/or extended maternal family members, including questioning or criticising the parenting decisions and/or parenting capacity of the mother to and/or in the presence or hearing range of the children.
(b)Doing or saying anything to and/or within the presence or hearing range of the children that could make the children feel fearful of the mother or unsafe in the company or care of the mother, with the father to ensure that no other person does or says anything to and/or within the presence or hearing range of the children that could make the children feel fearful of the mother or unsafe in the company or care of the mother.

19.The parties not consume alcohol in excess of the legal driving limit when the children are physically in their presence or care.
20.As to the exchange of information between the parties:
(a)The parties:
(i)Keep each other informed at all times of their contact and postal address, email address and mobile telephone number and inform each other within seven (7) days of any changes.
(ii)Communicate via a parenting app, such parenting app to be selected by the father and communicated to the mother (the parenting app).

(b)The father:
(i)Notify the mother as soon as practicable and within twenty-four (24) hours, via the parenting app in the event of a medical emergency for the children.
(ii)Provide the mother within seven (7) days of receipt of same a copy of the children’s school report via the parenting app.
(iii)Provide the mother within seven (7) days of receipt of same a copy of the children’s school photos.
(iv)Provide the mother within seven (7) days of receipt of same a copy of any medical reports received regarding the children via the parenting app.

21.As to passports and overseas travel:
(a)The father at his own expense obtain passports for the children X Navickas-Fried born in 2018 and Y Navickas-Fried born in 2020 (children’s passports).
(b)The mother’s signature for any applications for the children’s passports and/or renewals of the children’s passports be dispensed with.
(c)Forthwith a copy of these orders be provided to the appropriate person at the Department of Foreign Affairs and Trade by Chambers.
(d)The father retain the children’s passports.
(e)For the purposes of section 65Y Family Law Act 1975 the father be permitted to travel internationally with the children.

22.The Independent Children’s Lawyer is hereby discharged.
23.Within fourteen (14) days from the date hereof the mother write and deliver to the counsel engaged by the mother during the September 2023 final hearing, a letter of apology in respect to the lie told by the mother during cross-examination in the July 2023 final hearing as to counsel’s involvement in the final consent orders made in September 2023.
24.Within thirty (30) days from the date hereof the mother file and serve a short affidavit attaching a copy of the letter of apology referred to in Order 23.

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

This is a complex matter regarding the future parenting arrangements for X aged 6 and Y aged 4 (the children).
The party’s relationship was short with the parties commencing cohabitation in late 2016, getting engaged in 2018 and separating in late 2019.
During the three-year period, the parties separated on several occasions.
During the relationship, the mother’s child G (born 2011) lived with the parties.
Initially the parties lived on the paternal grandmother’s property but by the end of 2016 had moved to Suburb H.
The parties first child, X was born in 2018.
In 2018 the parties together with G and X moved to City J and between late 2018 and early 2019 the mother travelled to and from Region K and City J.
In early 2019 the mother rented a house at Town L and the father returned to live with the mother.
In early 2019 (although their relationship continued) the father, after the mother obtained a no contact Apprehended Domestic Violence Order (ADVO) against the father, returned to live with the paternal grandmother.
In late 2019, after obtaining a variation to the ADVO, the parties rented a property at Town M and remained living there until separation in November 2019.
The parties second child, Y was born in 2020, after the relationship had ended.
Over the past year the final hearing was conducted in September 2023 (September 2023 final hearing), April 2024 (April 2024 final hearing), July 2024 (July 2024 final hearing) and September 2024 (September 2024 final hearing) totalling 18 final hearing days.
During these proceedings over 200 court documents were filed, 35 court orders were made and 89 subpoenas were issued.
There are nearly 70 exhibits which consist of thousands of pages and hours of audio/video recordings taken by the mother of the children (recordings).
It would be of no surprise given the volume of material and the many twists and turns in this matter that there have been many issues agitated both during the final hearing and within the written submissions.
However, I find that not all of the issues are relevant in determining what parenting arrangements are in the best interests of these young children.
Therefore, I have endeavoured in this judgment to make findings only on those issues I consider relevant.
Before capturing what findings have been made it is imperative to understand the history of the parties’ proposals.
AGREED ORDERS
During the September 2023 final hearing, some final parenting orders were made by consent.
However, by the conclusion of September 2024 final hearing, the parties had resiled from their previous positions.
Therefore, orders have been made discharging any previous orders made prior to the delivery of this judgment.
PROPOSALS
Father
Initially in March 2021, the father was seeking final orders whereby the children live with the mother and spend four nights a fortnight with the father together with graduated time for holidays and special events.
By the September 2023 final hearing, the father was seeking final orders for the children to live with the father and spend unsupervised weekend/holidays/special event time with the mother.
However, by the April 2024 final hearing, the father was seeking final orders for the children to live with the father and no time/communication for the children with the mother.
At the July 2024 final hearing, the father maintained this position.
By the conclusion of the September 2024 final hearing, the father was seeking final orders whereby the children live with the father, the father have sole decision-making for the children and after a three-month moratorium the mother spend limited supervised time with the children four times a year.
In addition, the father is seeking final orders whereby the mother be at liberty to send letters, cards and gifts to the children and where this can be reciprocated by the children to the mother.
There are also other various orders being sought including restraints, exchange of information, release of undertakings, noting inconsistencies with ADVO’s, passports and overseas travel.
Mother
In her response filed in November 2021, the mother was seeking final orders for the children to live with the mother and no time/communication for the father with the children.
By October 2022, the mother was agreeable to the father initially spending supervised time then progressing to unsupervised day time with the children.
By June 2023, the mother was agreeable to the children spending unsupervised overnight time with the father.
At the September 2023 final hearing, the mother was seeking final orders for the children to live with the mother and spend unsupervised weekend/holiday/special event time with the father.

At the April 2024 final hearing, the mother was seeking final orders for the children to live with the mother and spend no time/communication with the father.
At the July 2024 final hearing, the mother maintained this position.
At the September 2024 final hearing, the mother maintained this position.
In the mother’s written submissions, the mother is seeking final parenting orders whereby the children live with the mother, the mother have sole decision-making for the children and the children not spend time/communicate with the father.
In addition, the mother seeks numerous restraining and information orders together with respect, non-denigration and privacy orders.
In the event that the court makes a finding that time is to occur between the father and the children, then such time is to be supervised once a month at a contact centre.
ICL
At the September 2023 final hearing, the ICL was in support of the mother’s proposals for the children to remain living with the mother and spend unsupervised time with the father.
By the April 2024 final hearing, the ICL had changed their position and was in support of the father’s proposal for the children to live with the father and spend no time/communication with the mother.
By the September 2024 final hearing the ICL was in support of the father’s proposal for the children to live with the father and after a moratorium of 3 months spend limited supervised time with the mother.
The ICL’s written submissions provide slight variations as to the amount and frequency of the supervised time for the mother with the children but otherwise supports the father in his proposals.
I now turn to the evidence.
EVIDENCE
In determining this matter regard has been had to the following:
(a)The relevant filed material (as referred to in the respective party’s submissions).
(b)The oral evidence of the parties and witnesses, including subpoenaed witnesses.
(c)The written submissions and replies of the parties.
(d)The family report of Dr N dated September 2022 (2022 family report).
(e)The family report of Ms O dated September 2023 (2023 family report).
(f)The psychiatric assessment of the mother prepared by Dr P (psychiatric report).
(g)The oral evidence of the experts.
(h)The previous judgments delivered in this matter.
(i)The court orders.
(j)The exhibits.
(k)The transcripts.
(l)Part VII Family Law Act 1975.
(m)Relevant authorities.
The parties are legally represented.
During the proceedings, the father retained one legal firm and one counsel.
During the proceedings, the mother retained four legal firms (Lawyer 1, Lawyer 2, Lawyer 3 and Lawyer 4) and two counsel (Counsel 1 and Counsel 2).
The court has the benefit of an ICL.
The parties’ written submissions have been properly considered in reaching a determination although each submission may not have been specifically addressed or responded to in the judgment (Baghti & Baghti [2015] Fam CAFC 71).
In determining the parenting issues, I have in accordance with Banks & Banks (2015) FLC 93-637, considered all the relevant sections of Part VII Family Law Act 1975, including the considerations in section 60CC, although within these reasons each section or subsection may not have been specifically addressed or discussed or identified.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
I now turn to the law.
THE LAW
Parenting orders as defined in section 64B are regulated by Part VII Family Law Act 1975.
The court is able to make such parenting orders as it considers proper (section 65D(1)) and in making such orders the best interests of the child is the paramount consideration (sections 60CC and 65AA).
In determining what is in the best interest of the child the following matters must be taken into account (section 60CC(2)):
(a)What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child.
(b)Any views expressed by the child.
(c)The developmental, psychological, emotional and cultural needs of the child.
(d)The capacity of a person who has or is proposed to have parental responsibility to provide for the child’s developmental, psychological, emotional and cultural needs.
(e)The benefit to the child being able to have a relationship with the parents and other persons who are significant to the child where it is safe to do so.
(f)Anything else which is relevant to the particular circumstances of the child.
I adopt the views expressed by Justice Gill in the recent decision of Oyama & Oyama [2024] FedCFamC1F 738 at [21] to [24] that:
the various considerations are designed to be non-hierarchical, non-exhaustive, able to allow different weight to be applied as appropriate to the individual child, and while guiding a court, permit flexible adaptation to each child is at specific circumstances. By their nature they overlap and are entwined with each other. For example, issues of safety… can impact upon the capacity of a parent to provide for a child’s psychological needs… and in turn impact upon the benefits of having a relationship with that parent… these considerations may point in different directions. It is the synthesis of all of the applicable considerations that will determine the outcome.
As to the reference to the “safety” Justice Gill notes at [26] to [28] that this is:
a term that is wide in nature, and bounded only by its object - to keep children… from harm. Although cogent examples of sources of harm are identified in the provision, that is, being subject to or exposed to family violence, abuse or neglect, these are not voiced in a manner to limit the scope of the term ‘safety’. They are voiced inclusively rather than exclusively and sit in the company of the phrase ‘or other harm’.
In considering these matters, the court must take into account the history of family violence abuse or neglect together with any family violence orders (section 60CC(2A)).
When making a parenting order, the court must ensure that the order does not expose a child or person to any unacceptable risk of family violence and is consistent with any family violence order (section 60CG).
As to parental responsibility, where safe to do so, parties should consult with each other about major long-term issues for the child (section 61CA).
The court has the power to allocate responsibility either for joint or sole decision-making in relation to all or specific major long-term issues (section 61D(3)).
Where unacceptable risk of harm is being alleged, the factors to be considered were addressed by Dixon J in Briginshaw v. Briginshaw (1938) 60 CLR 336 at p. 362:
the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inference.
As to what amounts to unacceptable risk was the subject of much discussion by the Full Court in Johnson & Page [2007] FamCA 1235.
In conclusion, the Full Court adopted the seven principal points to be applied in determining acceptable risk as set out by Hon. John Fogarty A.M. in his paper ‘Unacceptable risk – A return to basics’ published in Australian Journal of Family Law, the seven points being as follows:
(a)The best interest of the child will always be the decisive issue.
(b)Unacceptable risk involves an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
(c)Where past abuse is alleged, the court is not required to reach a conclusion as to its existence but if the court does consider its existence then the Briginshaw civil standard of proof applies.
(d)A failure to prove past abuse in accordance with the Briginshaw test does not prevent the court from considering the circumstances in determining whether unacceptable risk exits.
(e)Focus in these matters should always be on the question as to whether there is an unacceptable risk for the child.
(f)The applicable onus of proof in reaching any conclusion as to unacceptable risk is the ordinary civil standard.
(g)The individual components in reaching that conclusion need not be proven on the balance of probabilities. The court may reach a conclusion of unacceptable risk based on an accumulation of factors where none or only some of which are established to that standard. The Full Court however expressed a word of caution in making a finding of unacceptable risk where none of the components are proven on the balance of probabilities.
In the Full Court decision of Isles & Nelissen [2022] FedCFamC1A97 at [50], [51], [53] and [85]:
the assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been applied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities… while conjecture about the future is based on historical facts and circumstances, it is only the relevant historical facts which need to be proven on the balance of probabilities… the assessment of risk is an evidence-based conclusion and is not discretionary.
I will now turn to the issues that require determination in this matter.
ISSUES
The father, supported by the ICL, submits that the mother poses an unacceptable risk of harm (unacceptable risk) to the children and that this unacceptable risk can only be mitigated by orders whereby the children live with the father and spend ongoing limited supervised time with the mother.
The mother submits that the father poses an unacceptable risk and that this risk can only be mitigated by orders whereby the children live with the mother and spend no time/communication with the father.
The issues therefore that require determination in this matter are:
(a)Does the father pose a risk to the children, and if so is that risk unacceptable?
(b)If the father does pose an unacceptable risk, what are the parenting orders to be made to keep the children safe?
(c)Does the mother pose a risk to the children and is so, is that risk unacceptable?
(d)If the mother poses an unacceptable risk, what are the parenting orders to be made to keep the children’s safe?
(e)If neither party is found to be an unacceptable risk then what are the final parenting orders to be made?
Before considering the issues let us talk briefly about the children.
X
X is affectionately known as “X”.
X (6) has several health issues, including global developmental delay and autism.
X is under a NDIS scheme which provides him with the necessary support including that of treating health professionals.
X is currently in school and is doing well.
X lives with the mother, Y, G and extended maternal family members.
Y
Y is affectionately known as “Y”.
Y (4) has several health issues including autism and developmental vulnerabilities.
Y is under a NDIS scheme which provides the child with the necessary support including that of treating health professionals.
Y is currently in kindergarten and is doing well.
Y lives with the mother, X, G and extended maternal family members.
Before consideration can be given to the issues various findings have been made as set out below.
CREDIBILITY AND RELIABILITY OF EVIDENCE OF THE MOTHER
I find that the mother was not a credible witness and that her evidence was not reliable or compelling.
I make this finding based on the following:
(a)Inability to comply with court orders/directions: The mother failed to comply with various court orders and directions during the course of these proceedings as follows:
(i)The mother filed her response documents late (July 2021 court order).
(ii)The mother failed to provide full details of the children’s treating health professionals to the father (December 2021 interim consent orders).
(iii)The mother failed to consult with the father before making and taking the children to medical appointments. (December 2021 interim consent orders).
(iv)The mother failed to inform the father as to the children’s routines (October 2022 interim consent orders).
(v)The mother failed to inform the father as to the children’s medical needs (October 2022 interim consent orders).
(vi)The mother unilaterally ceased the father’s time with the children (October 2022 interim orders).
(vii)The mother relocated the children to City B without the prior knowledge or consent of the father (October 2022 interim orders).
(viii)The mother did not take steps to change the children’s surnames to Navickas-Fried or to include X and the father on Y’s birth certificate (June 2023 interim consent orders and September 2023 final consent orders).
(ix)The mother again unilaterally ceased the father’s time with the children (September 2023 interim orders).
(x)The mother continued to fail to engage the father in long-term decisions for the children (September 2023 interim orders).
(xi)The mother for a third time unilaterally ceased the father’s time with the children (January 2024 interim orders).
(xii)The mother failed to provide information as to the recordings to the court (April 2024 interim orders).
(xiii)Throughout the course of the final hearing the mother repeatedly failed to answer calls for various documents and recordings.
(xiv)Throughout the course of the hearing the mother was late in answering calls for various documents and recordings.
(b)Poor presentation in court: The mother presented poorly in court as illustrated below:
(i)The mother consistently and persistently presented in a somewhat unusual manner where at times the mother was softly spoken, and mumbled, (despite numerous requests from the bench to speak up) but when confronted with questions that the mother found uncomfortable, the mother became articulate, indignant, accusatory and loud.
(ii)At times, when the mother felt backed into a corner, the mother cried but when this was not achieving the necessary sympathy or empathy, the mother reverted to mumbling in a soft voice.
(iii)The mother, who is an intelligent woman with tertiary education, repeatedly had difficulty in answering the simplest of questions, despite numerous requests from the bench for the mother to answer the questions directly.
(iv)When the mother did eventually answer, often after long pauses, her responses were vague and contradictory.
(v)The mother on numerous occasions took the opportunity to structure her answers in such a way to shed the mother in a positive light instead of providing answers that reflected what had been written in her own material or what was the true situation reflected by independent evidence.
(vi)The mother took every opportunity possible when answering to make comments designed to shed the father in a negative light, even when the questions asked did not relate directly to the father.
(vii)The evidence supports that the mother also presented poorly during the mother’s criminal trial.
(viii)I note and concur (after observing the mother during the final hearing) with the comment made by the Judge at the conclusion of the mother’s criminal trial where the father was found not guilty:
although the complainant (the mother) presented with a persuasive demeanour, I formed the view very early in her evidence that she sought to present an image of herself as being naïve and timid, which impressions over time, proved not to be authentic. I need to make it clear, given the way in which her evidence was at odds with material presented to her in cross-examination and exhibited in the defence case, that I commenced to experience significant disquiet about her evidence, while she was still in evidence in chief. A repeated pattern of her evidence was to be discursive and sometimes volunteered answers that were not responsive to the question at hand and, to my mind, some of these matters were designed to attempt to put the accused in a poor light…. there was one occasion on which the complainant (the mother), to my mind, did become genuinely upset and I direct myself in the way that I often direct juries, is that there is a range of reasons why witnesses become upset. There were other times when I took the view that she contrived to be upset, at the proposition and then quickly recovered herself and I took the view that some of those behaviours were disingenuous.
(c)Inability to provide required information. During the final hearing the mother failed to provide, in a timely and appropriate manner, relevant information to the parties and her legal representatives. Examples include the mother failing to:
(i)Inform Lawyer 2 and Counsel 1 during the September 2023 final hearing that the mother was under the care of a psychiatrist.
(ii)Provide to the other parties and Lawyer 3/4 and Counsel 2, all the recordings and details as to who had viewed the recordings.
(iii)Provide to the other parties all of the requested relevant details as to her injury.
(iv)Inform the other parties that Department of Communities and Justice (DCJ) rejected the mother’s report about the injury.
(v)Provide details to the other parties that during her interactions with police the mother sought an ADVO against the father for Y.
(vi)Inform the other parties that DCJ had rejected subsequent reports made by the mother of the children’s sexualised behaviours with the only outcome being a referral for the mother to attend Q Centre.
(vii)Inform the other parties as to Y’s interview by the police where no disclosures were made and requests for X to be also interviewed.
(viii)Inform the other parties as to Y attending a speech pathologist.
(ix)Inform the other parties as to the disclosures made by Y since July 2024 as to the father and the comment made by Y to the speech pathologist as to the paternal grandmother.
(x)Inform the other parties as to the email received by the mother from the speech pathologist where it was indicated that the paternal grandmother’s comment had been referred to DCJ.
(xi)Inform the other parties as to the mother’s concerns as to the children’s Friday night behaviour of running around naked before spending time with the father the following day.
(xii)Inform the other parties as to the children attending play therapy since March 2024.
(d)Misrepresentations and lies. The evidence supports that the mother, twists the truth or lies in order to achieve a desirable outcome for the mother as illustrated by the following examples:
(i)The mother misrepresented to many professionals that her diagnosis for PTSD was as a result of abuse suffered at the hands of the father, where evidence supports that the mother was diagnosed with PTSD in 2015 prior to meeting the father.
(ii)The mother falsely obtained Centrelink payments as a single parent for both G and X during her relationship with the father.
(iii)In early 2020, the mother in obtaining a birth certificate for Y deliberately failed to inform the Registrar of Births Deaths and Marriages as to the existence of X as Y’s sibling and the father as Y’s biological father. The mother listed her profession on Y’s birth certificate as “health care worker” when the mother does not hold such a qualification.
(iv)In early 2021, the mother obtained ex parte District Court orders as to a change of name for the children and the non-disclosure of the birth certificates to the father based on her application which was full of lies, including as to when the parties separated and the extent of the father’s relationship with X.
(v)The mother subsequently used these orders incorrectly as suppression orders, refusing to inform the father as to details of Y and his birth, the whereabouts of the children and referring to the children in her response documents as Child 1 and Child 2.
(vi)During the mother’s criminal trial, the mother:
(A)Lied to the court stating that because of “suppression” orders made in the District Court and the Family Court, the mother did not have to provide any information as to the children to the District Court.
(B)Falsely alleged that the police had changed her statement.
(C)Falsely alleged that the father had altered dates on photographs.
(vii)In late 2021, the Judge made a finding during the mother’s criminal trial that the mother had “poor credibility” and that her complaints as to assault by the father were “mendacious to the extreme”.
(viii)In early 2022, the father was breached on the ADVO after the mother alleged that the father was in close proximity to her and the children in a public place which was later proven to be a lie with independent evidence to support that the father was at work that day.
(ix)In mid-2022, the mother misinformed Dr R (GP) that the father when arrested for breach of the ADVO, that the father’s phone was seized and found to contain photographs of the mother and the children as the father was stalking her. This was not true.
(x)In the 2022 family report, the mother misrepresented to Dr N that it was the mother who had initiated the parenting proceedings.
(xi)In November 2023, the mother justified ceasing the father’s time with the children based on a recommendation of the DCJ, where the actual recommendation of the DCJ was for the father’s time with the children to continue.
(xii)During the April 2024 final hearing:
(A)The mother failed to inform her new legal representatives as to the mother having agreed to final parenting orders in September 2023 and as to her position in the September 2023 final hearing with Counsel 2 admitting that she was “not aware that there was a change of case, and every conversation I have had with my client (mother) is on the basis that the only final orders that she has sought in the material I’m provided were those sought on 10 November 2021”.
(B)The mother misrepresented that Dr R (GP) did not take any notice of the selected recordings provided by the mother to her, whereas when the mother supplied selected recording to Dr R, Dr R made a notification to DCJ as to child abuse by the father.
(C)The mother lied in court stating that Dr R (GP) “told me I have to keep recording it, because I needed evidence to support this, because no one would believe me. You can ask her”. When asked in cross-examination Dr R stated that she had no recollection of making such a recommendation to the mother, that she has never previously made a recommendation to anyone that children be recorded and that her only advice to the mother was to go to the police if the mother had concerns about the father.
(D)The mother misrepresented that she had been informed by treating health professionals to report the father due to an injury, when in reality, the mother was told by the paediatrician that it was probably caused naturally.
(E)During the July 2024 final hearing, the mother lied during cross-examination stating that Counsel 1 had failed to obtain her instructions as to final consent orders made in September 2023 and had signed the proposed final consent orders on her behalf without her knowledge or consent. This was proven to be an outright lie, and the mother was advised that consideration would be given at a later date as to whether the mother be referred to the Department of Public Prosecutions (DPP) for perjury.
(xiii)During the July 2024 final hearing, the mother lied in court stating that Dr R (GP) had tested her for sexually transmitted infections at the same time as the children were tested for sexually transmitted infections. Dr R gave evidence that the mother was only tested for a urinary tract infection.
(xiv)During the September 2024 final hearing:
(A)The mother lied to the court stating that the recording made at Region S had been manipulated by the father incorporating other recordings with the mother ultimately admitting that it was an actual recording of the event which had not been interfered with by the father.
(B)The mother misrepresented to the court that she had informed her lawyers as to the further disclosures made by Y, the comment made by Y to the speech pathologist and the mandatory report, whereas this was denied in open court by Counsel 1 and Lawyer 4.
(e)Interference with evidence. During cross examination, the mother made the following admissions:
(i)The mother had significant input into letters written by Dr R for court purposes which were drafted and redrafted several times and given the final approval by the mother before the final letter was provided.
(ii)The mother told Ms T (NDIS worker), Ms U (therapist) and Ms V (psychologist) not to feel obligated to volunteer any information about the mother and the children to the ICL unless they were legally required to do so.
(iii)The mother contacted Ms W (occupational therapist) to backdate a service agreement.
(iv)The mother proactively caused changes to be made to Ms W’s (occupational purpose) continuance report.
(v)The mother falsely informed Ms T (NDIS worker) that the court had rejected the 2022 family report.
(vi)The mother requested Ms V (psychologist) to delete an email that the mother had sent to Ms V about the boy’s behaviours before Ms V answered a subpoena issued in the parenting proceedings.
(vii)In the course of the final hearing, the mother, including when the mother was under cross-examination, spoke weekly/biweekly to Dr R (GP) about the court case and the evidence, knowing that Dr R was due to give evidence in the parenting proceedings.
CREDIBILITY AND RELIABILITY OF EVIDENCE OF THE FATHER

As to the credibility and reliability of evidence of the father, the judge in the criminal proceedings, in finding the father not guilty of all criminal charges in the mother’s criminal trial stated that:
(a)The father was an impressive witness.
(b)The father struck the judge as “somebody who was trying to remember what he could remember” and “he was frank about certain things that he did not remember”.
(c)The father made “concessions against interest” (such as admitting in early 2019 that the father punched a cupboard).
(d)Unlike the mother, the father did not use the opportunity when giving evidence to denigrate the mother, even when the father disagreed with propositions put to him.
(e)The father largely gave his evidence in a “matter of fact fashion” and did not become “emotional or voluble or combative”.
(f)The father was a “person of good character”.
My observations of the father during cross examination accord with the observations of the criminal trial judge.
I find that the father to be a credible witness based on the following:
(a)The father was honest and forthright in the delivery of his evidence.
(b)Although at times the father hesitated, the father ultimately answered questions in a timely and appropriate manner.
(c)The father freely and openly admitted to facts which were not in the father’s favour.
(d)The father freely and openly admitted and conceded to wrongdoings.
(e)The father did not take the opportunity during cross-examination to make negative comments about the mother.
(f)The father answered all calls put to him during the course of the final hearing.
As to the reliability of the father’s evidence, the one issue where I did not find the father to be reliable is that of a drawing which is canvassed later in this judgment.
Otherwise, I find the father to be a credible witness and his evidence reliable and compelling.
My overall conclusion as to the credibility of the parties is in light of these findings, I find that when presented with differing versions of events, then in the absence of any independent evidence, the father’s evidence will be favoured over that of the mother’s evidence.
CREDIBILITY AND RELIABILITY OF THE EVIDENCE OF THE WITNESSES
As to the father the following witnesses were called:
(a)The paternal grandmother.
(b)The father’s partner.
As to the father’s witnesses I find that the paternal grandmother and the father’s partner were credible in the cross-examination and that their evidence is reliable.
I give weight to the evidence of the paternal grandmother and the father’s partner.
The mother did not call any witnesses.
In answer to subpoenas and requests to attend the following witnesses were called by the ICL:
(a)Dr R (the mother and children’s GP).
(b)Dr Z (the children’s former paediatrician).
(c)Police Officer AA.
As to Dr R (GP), whilst I find her to be a credible witness, I find that her evidence is not reliable and I make this finding based on the following:
(a)Dr R has been the mother and G’s GP since 2015 and has been involved in the care of the children since their birth.
(b)Dr R was not called by the mother but subpoenaed to give evidence by the ICL.
(c)Dr R has never questioned the accuracy of any information provided by the mother (not a criticism), taking it on face value.
(d)Dr R during cross-examination admitted she has always known, since the mother separated, that it was the mother’s intention that the children have no relationship with the father.
(e)Based on the information provided by the mother, Dr R has formed the view that the father is an abusive and violent man who has abused the mother, G and the children.
(f)Dr R has repeatedly expressed this view in letters about the mother with the letters including such comments as “quite frankly (the mother) has been through hell with her ex-partner” and “in my opinion, having contact with their father raises an unacceptable risk to the children’s well-being”.
(g)In addition, Dr R has written letters produced in court with such letters being a result of collaboration between Dr R and the mother, with the mother approving the final draft.
(h)Dr R was provided with limited recordings from the mother (food recordings) and based on these recordings, without viewing any other recordings, a notification was made to the DCJ about the father.
(i)During the course of cross-examination, Dr R attempted to give evidence which was outside her expertise as a GP such as:
(i)The mother’s clinical symptoms match someone who has been a victim of family violence.
(ii)There has been an escalation in severity of the mother’s PTSD because of her relationship with the father.
(j)Dr R redacted notes produced to the court on medicolegal advice although what was with redacted was by the choosing of Dr R.
(k)Dr R conducted most of her scheduled weekly/biweekly consultations with the mother through Telehealth and therefore relied wholly on what the mother said, as opposed to a physical examination, to support Dr R’s subsequent diagnoses and prescriptions for the mother, G and the children.
(l)Based on information solely provided by the mother, Dr R subjected the children to testing for sexually transmitted diseases which returned a negative result.
(m)Dr R admitted during cross-examination, that she has spoken at length with the mother about the case and the evidence during their weekly/biweekly consultations since the final hearing began in September 2023, even though Dr R knew that she was required to give evidence at a later date.
I therefore give little to no weight to the evidence of Dr R.
As to Dr Z (former paediatrician), I find that his evidence was credible and reliable, and I make this finding based on the following:
(a)Dr Z was the children’s former paediatrician.
(b)Dr Z was not called upon by the mother to give evidence.
(c)Dr Z appeared in court pursuant to a subpoena issued by the ICL.
(d)Dr Z had viewed the recordings.
(e)Dr Z during cross-examination was informative, attentive, objective and professional.
I give significant weight to the evidence of Dr Z (former paediatrician).
As to Officer AA I find that she was credible in the cross-examination and that her evidence is reliable.
I give weight to the evidence of Officer AA.
In addition, the following experts gave evidence:
(a)Dr P (psychiatrist who assessed the mother in the psychiatric report)
(b)Dr N (the family report writer for the 2022 family report).
(c)Ms O (the family report writer for the 2023 family report).
As to Dr P (expert psychiatrist), I find that his evidence was credible and reliable and I make the finding based on the following:
(a)Dr P had viewed relevant material including the recordings.
(b)Dr P during cross-examination was informative, attentive, objective and professional.
I give significant weight to the evidence of Dr P (expert psychiatrist).
As to Dr N (family report writer), I find that her evidence was credible and reliable and I make this finding based on the following:
(a)Dr N’s evidence was not compromised by the passing of time, as Dr N had viewed updating relevant material including the recordings prior to her giving evidence.
(b)Dr N was also provided updates as to what, in practical terms, had been the arrangements for the children since the preparation of the 2022 family report.
(c)Dr N provided evidence in accordance with her professional expertise as a clinical psychologist and provided insights that accorded with her professional capabilities.
(d)Dr N has extensive experience in dealing with children explaining her qualifications in court as:
I’ve undertaken several training courses as well as [further studies] in Child Clinical Psychology and understanding the nature of children’s thinking, reasoning, responding to forensic questioning. I have unfortunately now decades of experience assessing the credibility of children, in conducting forensic interviews of children, and evaluating forensic interviews of children, police, DCJ, parent interviews of children.
(e)Dr N during cross-examination was informative, attentive, objective and professional.
(f)I find Dr N’s evidence to be compelling and give great weight to opinions and recommendations stressed by Dr N during the course of these proceedings, both in writing and during cross-examination.
I give significant weight to the evidence of Dr N.
As to Ms O, whilst I find her to be a credible witness I find that her evidence is not as reliable as that of Dr N.
I make this finding based on the following:
(a)Ms O holds qualifications in social work, whereas (not a criticism) Dr N is more qualified as a psychologist.
(b)Further Dr N had a greater understanding of the history and nuances of this matter with Ms O having not read or considered the following material:
(i)The District Court file where the mother obtained the ex parte order.
(ii)The police brief for the mother’s criminal trial.
(iii)The transcripts from the mother’s criminal trial.
(iv)The police brief for G’s criminal trial.
(v)The transcripts from G’s criminal trial.
(vi)The evidence surrounding the alleged breach by the father of the ADVO in early 2022 which was subsequently withdrawn by the police.
(c)As a consequence, unlike Dr N, Ms O did not discuss the implications for the children in the event that a finding was made that the mother had lied to the police and the courts about the father.
(d)With all due respect to Ms O, Dr N is the more experienced and qualified family report writer, and it was clear from her evidence that Dr N had assessed in detail all of the issues before making comments, opinions or recommendations.
(e)Ms O did not have the information or the forensic expertise to form the necessary opinions as to the mother before making recommendations.
(f)Ms O was too quick to make sweeping general statements as to her views without considering in detail all of the information before her.
(g)When challenged about her statements and where more extensive cross-examination occurred Ms O changed her views several times whereby by the end of the cross-examination the opinions expressed by Ms O differed greatly from the opinions in the 2023 family report and those expressed during her evidence.
I give limited weight to the evidence of Ms O, and where her evidence differs to that of Dr N, I prefer and adopt the evidence of Dr N.
DELAYS BY THE MOTHER
Delays in the court process. This matter was significantly delayed due to actions taken by the mother, as illustrated by the following:
(a)The mother re-enlivened an investigation into the father’s alleged abuse of G after being notified of the father commencing parenting proceedings.
(b)The mother was late in filing response documents.
(c)In her response documents the mother was seeking a no time/communication order for the father despite the mother having been unsuccessful in the District Court of having the father convicted of sexual/physical abuse of the mother (mother’s criminal trial).
(d)As the hearing of this matter could not be considered until after the District Court hearing for G (G’s criminal trial) in mid-2022 then the matter was set down for a discrete hearing as to unacceptable risk posed by the father to the children in late 2022.
(e)In mid-2022, G’s criminal trial was aborted, because at the request of the mother, all charges were withdrawn against the father.
(f)Subsequently, the late 2022 discrete hearing was also aborted by the mother, with the mother informing the court that she was no longer pursuing the unacceptable risk argument against the father.
(g)The late 2023 final hearing was conducted on the basis that the father did not pose an unacceptable risk to the children and was set down for a continuance in early 2024.
(h)By November 2023, the mother had ceased the father’s time with the children, with the mother causing notifications to be made to Department of Communities and Justice (DCJ) and the police about the children’s sexualised behaviours after spending time with the father.
(i)Unbeknown to anyone involved in these proceedings, the mother from mid-2023 to late 2023 took hundreds of videos/audio recordings of the children (the recordings).
(j)The final hearing in early 2024 was aborted as the court was awaiting the outcome of the DCJ investigations.
(k)By the time the matter was mentioned, DCJ and police had completed their investigations and both cases were closed without further action.
(l)Time for the father with the children was reinstated together with the agreed make up time.
(m)However, this time was short lived because a further notification was made by the mother in early 2024 to the police about an alleged injury suffered by Y (the injury) allegedly as a consequence of being cut by the father. This notification was made despite the mother having been informed by a paediatrician who examined Y that the injury was likely caused naturally.
(n)By February 2024, the mother had again ceased time for the father with the children.
(o)Leading up to the final hearing in April 2024, despite having the recordings for several months, the mother at last disclosed some of the recordings in her further trial affidavit.
(p)By this time, the mother had changed her position and was seeking a no time/ communication order for the father with the children (although this was not communicated to anyone until the first day of the April 2024 final hearing) and the mother had changed her legal representation (Counsel 2 and Lawyer 3).
(q)Despite court orders, the mother failed to provide to the court full details as to the recordings or who had received them.
(r)Just prior to the April 2024 final hearing, the mother on two occasions failed to take X to a police interview which subsequently resulted in the interview occurring during the final hearing.
(s)During the course of the final hearing, the mother repeatedly failed to answer calls and when calls were answered it was often late.
DELAYS IN THE COURT PROCESS BY THE MOTHER’S LEGAL REPRESENTATIVES
It is rarely my practice when writing judgments to be critical of legal representation.
I am aware of the difficulties in presenting a case, especially when involvement commences mid trial, the matter is complicated and where there may be difficulty in obtaining consistent instructions.
But in this matter, comment must be made as to how the trial was conducted by Counsel 2 and Lawyers 3 and 4, since their involvement in April 2024.
Because of their lack of trial preparation, their lack of understanding, their lack of cooperation and their sometimes arrogant approach to both the judiciary and fellow barristers at the bar table, significant delays were caused in the final hearing of this matter.
I make this finding based on the following:
(a)Counsel 2 and Lawyer 3 became involved in this matter in April 2024, just before the continuation of the final hearing.
(b)Lawyer 4 became involved in this matter sometime in July 2024 just before the continuation of the final hearing.
(c)At the April 2024 final hearing Counsel 2 and/or Lawyer 3 had not:
(i)Prior to attending court, informed the ICL or the father of the mother’s changed position of now seeking that the father have no time/communication with the children.
(ii)Viewed the whole of the exhibits, subpoenas or recordings.
(iii)Read the transcripts in their entirety despite assuring the court on two occasions that the transcripts have been read.
(iv)Understood the case history, with Counsel 2 not being aware of final or interim consent orders that had been made and as to the mother’s position at the September 2023 final hearing.
(v)Been proactive in obtaining additional information that assisted the mother’s case leaving it up to the ICL and the father to obtain information from medical practitioners/DCJ/police and to subpoena witnesses.
(d)During the final hearing, Counsel 2 made numerous unsuccessful oral applications, often in an untimely manner during cross-examination, including:
(i)For the whole case to be reopened.
(ii)For the step paternal grandfather to take X to the police interview.
(iii)For cross-examination of the mother to cease until police information was provided, despite other topics not having been covered by cross-examination by the father and where the ICL had not commenced cross-examination of the mother.
(iv)For the father not to be in court when the police interviews of the children were being viewed and then subsequently withdrawing the application.
(v)That as a threshold issue, the court could not hear an interim application for time for the father with the children between final court hearing dates.
(vi)For the judge to be recused.
(vii)For the mother not to be cross-examined on further evidence, despite it being discussed previously with no objection having been raised by the mother.
(e)During the final hearing, Counsel 2 disrupted cross-examination of the mother by launching into, at times, nonsensical and lengthy commentary about what the court should or should not do and sometimes in circumstances where rulings had already been made or indications had already been given by the court. Some examples of these disruptions and interruptions include:
(i)Admissibility of evidence in respect to the mother’s and G’s criminal trials.
(ii)Concerns that the court would rubberstamp the decision of the mother’s criminal trial.
(iii)What findings the court must make as to the alleged abuse by the father of the mother and G.
(iv)Whether the father was to return to the witness box for cross-examination.
(v)Various comments were made on the basis such comments needed to be “placed on the record”.
(vi)Being openly critical about the conduct of the father’s Counsel, who is an experienced, prepared/measured and professional officer of the court.
(f)Counsel 2 was at times disruptive in court by:
(i)Openly showing her frustration at the court’s rulings.
(ii)Chatting with her instructor and distracting the mother in giving her evidence.
(iii)Smiling/laughing at evidence given by the father in cross-examination.
(iv)Openly making criticisms as to the court processes, such as being critical of the father making an oral application for interim orders when the mother had pressed several unsuccessful oral applications.
(v)Misunderstanding or misinterpreting judicial comments where the intent of such comments was clear to counsel for the ICL and the father.
(vi)Making baseless comments such as to the lack of procedural fairness afforded to the mother during the course of the proceedings despite the mother not being proactive in making applications for such things as being released from cross-examination, being able to file further affidavits et cetera.
(vii)Repeatedly commenting and complaining about how long the mother had been under cross-examination when Counsel 2 continually wasted court time.
(g)Counsel 2 was poorly prepared during cross-examination as evidenced by the following:
(i)The attempt at re-examination of the mother failed as Counsel 2 did not seem to understand the concept of re-examination of the mother and in the end, after numerous objections, simply gave up.
(ii)Whilst re-examination is a choice this was an unexpected approach as Counsel 2 repeatedly had made comments as to procedural unfairness on the mother because the mother has not been re-examined.
(iii)Consistently Counsel 2 did not allow time for the witnesses to answer questions, interrupting them, resulting in repeated reminders from the bench and time needed to be given to illicit answers.
(iv)Counsel 2 repeatedly asked the same questions, despite having received an answer to the first question.
(v)As to her cross-examination of the father, Counsel 2 was unaware of what affidavits were being relied upon, did not refer to the appropriate affidavits or exhibits when putting questions to the father, misquoted the father, made unreasonable assumptions and asked broad questions.
(vi)As a consequence, continual judicial intervention was required to seek clarification of where the line of question was heading.
(vii)Numerous times during the judicial interventions as to clarification of questions and objections by the other parties, witnesses and observers had to leave the court then return, causing further delays.
(h)Despite several requests from the bench, during the course of the final hearing, Counsel 2 failed to obtain instructions as to the elements of unacceptable risk being alleged by the mother and of the mother’s proposal for interim arrangements between hearing dates.
(i)After an implied threat by Counsel 2, that if the court on an interim basis was to order anything other than supervised time for the father with the children then a recusal application would be made by the mother, Counsel 2 then made an oral application for recusal before the court was aware of the mother’s interim proposal and before the interim hearing was conducted.
(j)As to the recusal application, Counsel 2’s written submissions were inadequate, confusing and not on point and her subsequent oral submissions did little to assist.
(k)Counsel 2 thought it appropriate to be disparaging of the other Counsel and of the conduct of the court in her written submissions stating that the case had been infected and that the matter would be deduced on incorrect legal footing.
(l)As to the interim hearing which was conducted after the April 2024 final hearing:
(i)It was evident that Counsel 2 had failed to listen to what had been said at previous hearings and had not read in detail the lengthy recusal judgment.
(ii)Unsuccessful attempts were made by Counsel 2 to derail the interim hearing and the oral application at the interim hearing for it not to proceed on the basis of lack of procedural fairness to the mother was dismissed.
(m)There was an ongoing saga as to whether the mother had been released from cross‑examination which unfolded as follows:
(i)At the delivery of the recusal judgment, in answer to questions put by Counsel 2 to the judge, it was clarified that the mother had been released from cross‑examination for the purpose of the interim hearing only.
(ii)Counsel 2 nevertheless instructed and organised for Lawyer 3 to write, under his own name, a letter to the ICL and the father which commenced with the words “despite the judge’s comments” and seeking that the parties sign consent orders releasing the mother completely from cross-examination.
(iii)It emerged that Lawyer 3, had not been at the recusal judgment delivery and was unaware of any judicial comment made as to the mother being released from cross-examination and had lied to the court about his level of involvement in the letter being written.
(iv)It further emerged that Counsel 2 had insisted on the letter being prepared and sent by Lawyer 3.
(v)Counsel 2’s subsequent oral application for the mother to be released completely from cross-examination was dismissed.
(n)Because of the various issues raised by Counsel 2, together with her combative and at times belligerent attitude and criticisms, the interim hearing that was set down for 30 minutes ran in excess of 3 ½ hours.
MOTHER’S ABILITY TO FACILITATE A RELATIONSHIP BETWEEN THE FATHER AND THE CHILDREN

Throughout these proceedings, the mother’s view of the father has been consistently negative with the mother holding very set and unshakeable views about the father including that:
(a)The mother, G and the children are long-term victims of family violence, sexual and/or physical exploitation/abuse at the hands of the father.
(b)X was born as a result of digital rape by the father.
(c)Y was conceived as a result of the father raping the mother.
(d)During their time with the father, the father says things and does things to the children for the sole purpose of the children repeating these things and doing such things in the mother’s care so as to upset the mother and make her feel crazy.
(e)The children are exposed to an unacceptable risk in the father’s care.
(f)The father does not want a relationship with the children and has no interest in the children and therefore is not genuine in his pursuit of this matter.
(g)The father’s real intentions for pursing orders for the children to live with the father is threefold:
(i)For financial reasons.
(ii)To enable the paternal grandmother to be involved with the children.
(iii)To get back at the mother by destroying her.
The evidence supports that since separation, the mother has taken every step possible to keep the father out of the children’s lives.
Dr N noted in the 2022 family report that the mother had excluded the children:
from having any meaningful involvement with their father to the extent that their identities have been amended/changed to remove any link with their father… there are serious long-term adverse consequences for both children if this status quo remains.
As to X and his relationship with the father:
(a)During the relationship the father was involved in the day-to-day care of X.
(b)When the parties separated X was a baby.
(c)Immediately upon separation the mother ceased the father’s time with X.
(d)Requests by the father to see X were ignored and at times mocked by the mother.
(e)In late 2019, the mother ignored a legal letter from the father seeking time with X.
(f)A subsequent request from MM Contact Service to attend mediation with the father was not responded to by the mother.
(g)In January 2020, the mother sought legal advice from Lawyer 1. In her police statement for the mother’s criminal trial, the mother stated “I had my first meeting with my lawyer so that I could get orders in place to eliminate any need for contact with [Mr Fried]”.
(h)In text message traffic that occurred between the parties in January 2020 the mother told the father “for the last time – fuck off” and that the mother would not be attending mediation.
(i)In February 2020, the mother ceased all communication with the father and reported the father to the police, alleging abuse of the mother and G.
(j)In 2020, just prior to the birth of Y, the father was charged with assaults of the mother. Bail conditions excluded the father from having contact with X.
(k)In early 2021, the mother, based on lies and misrepresentations, obtained ex parte District Court orders changing the spelling of X’s Christian name and changing the surname to Navickas and preventing the father from obtaining a birth certificate for X.
(l)In late 2021, despite the father being found not guilty of the criminal charges in the mother’s criminal trial, the mother did not offer time for the father with X.
(m)When enrolling X in preschool in 2022, in the enrolment form in answer to the question “does anything scare your child” the mother wrote “biological father”.
(n)In April 2022, the ICL wrote to the parties enquiring as to whether supervised time could occur for the father with the children. The mother did not agree to supervised time.
(o)By June 2022, the mother had informed Dr BB (counselling psychologist) that she was stressful and fearful of the father “getting access to her boys” and that she was angry at the father and the legal system for allowing the father to harass her.
(p)In mid-2022, despite the criminal charges against the father in G’s criminal trial being withdrawn by the mother, the mother did not offer time for the father with X.
(q)Apart from the family report interviews, the father did not re-engage in a relationship with X until interim consent orders were made in October 2022 when X was aged 3. At this stage X had spent more of this life without his father than with his father.
(r)For the next year and one month, X spent supervised time, daytime and limited overnight time with the father, with the mother admitting during cross-examination that the time between the children and the father had progressed well and the children loved it.
(s)In November 2023, the mother, despite interim court orders to the contrary, ceased X’s time with the father after a mandatory report was made to DCJ regarding sexualised behaviour by the children. X was subsequently interviewed but no disclosures were made.
(t)In December 2023, the ICL was informed that both parties’ households have been assessed as safe by DCJ. The DCJ caseworker confirmed that at no time were advices given to the mother to cease the father’s time with X and that an indication was given that the father should have time with the children over Christmas. The mother allowed supervised time with a private supervisor which cost the father $1,500, refusing an offer by the paternal grandmother to supervise the children.
(u)In January 2024, the court reinstated X’s time with the father as risk had been investigated and found to be unsubstantiated with no outstanding police investigations.
(v)X’s time with the father was short lived and only lasted a couple of nights before the mother in February 2024, despite court orders, ceased X’s time with the father on the basis of an injury. The mother was aware of the paediatrician’s advice that this was likely caused naturally when reporting the matter and ceasing time with the father.
(w)After DCJ has closed their investigation and the police had indicated that no charges would be laid against the father, the mother continued to cease time for the father with X.
(x)At the conclusion of the April 2024 final hearing, (part heard) the mother failed to put forward any proposal as to the father’s time with the children on an interim basis and indicated through Counsel 2 that if anything other than a supervised time order was made then a recusal application would be made.
(y)Before an interim hearing could occur, an oral recusal application was made which was subsequently dismissed in May 2024.
(z)In the meantime, X was spending no time with the father.
(aa)In May 2024, time for X with the father was reinstated each weekend from Saturday to Sunday such time supervised by the maternal grandmother until the further hearing of the matter in July 2024.
(bb)In July 2024 at the continuation of the final hearing, time for X with the father was reduced to each Saturday because of the maternal grandmother’s failure to properly supervise the time, with the father’s time to be supervised by either the paternal grandmother or the father’s partner.
(cc)As at the date of writing this judgment X continues to spend supervised time with the father one day a week.
As to Y and his relationship with the father:
(a)When the parties separated the mother was pregnant with Y.
(b)In January 2020, the mother sought legal advice from Lawyers 1 as to how to cease the father’s contact in the future with Y.
(c)In early 2020, the mother reported the father to police alleging abuse of both the mother and G.
(d)By February 2020, the mother had severed all communication with the father and the father was unaware as to where the mother and X lived.
(e)Just prior to the birth of Y, the father was charged with sexual/physical assaults of the mother and included in the bail conditions was a condition that the father could not have contact with the unborn child once born.
(f)The mother did not inform the father as to details of the upcoming birth of Y.
(g)When Y was born the mother did not inform the father as to his birth, his name or his whereabouts.
(h)The mother in filling out the birth certificate forms, deliberately excluded the father as the biological father of Y and failed to list X as his sibling.
(i)In February 2021, the mother, based on lies and misrepresentations, obtained ex parte District Court orders changing the surname to Navickas and preventing the father from obtaining a birth certificate for Y.
(j)In late 2021, despite the father being found not guilty of the criminal charges in the mother’s criminal trial, the mother did not offer time for the father with Y.
(k)In April 2022 the ICL wrote to the parties enquiring as to whether supervised time could occur for the father with the children. The mother did not offer supervised time.
(l)By June 2022, the mother had informed Dr BB (counselling psychologist) that she was stressful and fearful of the father “getting access to her boys” and that she was angry at the father and the legal system for allowing the father to harass her.
(m)In mid-2022, despite the criminal charges against the father in G’s criminal trial being withdrawn by the mother, the mother did not offer time for the father with Y.
(n)Apart from the family report interviews the father did not spend time with Y until interim consent orders were made in October 2022 when Y was aged 2. At this stage Y has spent his life not knowing his father.
(o)For the next year and one month, Y spent supervised time, daytime and limited overnight time with the father, with the mother admitting during cross-examination that the time between the children and the father had progressed well and the children loved it.
(p)In November 2023, the mother, despite interim court orders to the contrary ceased Y’s time with the father after a mandatory report was made to DCJ regarding sexualised behaviour by the children. Y was subsequently interviewed but no disclosures were made.
(q)In December 2023, the ICL was informed that both parties’ households have been assessed as safe by DCJ. The DCJ caseworker confirmed that at no time were advices given to the mother to cease the father’s time with Y and that an indication was given that the father should have time with the children over Christmas. The mother only allowed supervised time with a private supervisor which cost the father $1,500. An offer by the paternal grandmother to supervise time was rejected by the mother.
(r)In January 2024, the court reinstated Y’s time with the father as risk has been investigated and found to be unsubstantiated with no outstanding police investigations.
(s)Y’s time with the father was short lived and only lasted a couple of nights before the mother in February 2024, despite court orders, ceased Y’s time with the father on the basis of the injury. The mother was aware of the paediatrician’s advice that the injury was likely caused naturally when reporting the matter and ceasing time.
(t)The mother continued to cease time despite the fact that DCJ has closed all investigations, and the police were not laying any criminal charges with the only matter outstanding being an ADVO being taken out against the father to include Y.
(u)At the conclusion of the April 2024 final hearing, the mother failed to put forward any proposal as to the father’s time with the children on an interim basis and indicated through Counsel 2 that if anything other than a supervised time order was made then a recusal application would be made.
(v)Before an interim hearing could occur, an oral recusal application was made by the mother and was subsequently dismissed in May 2024.
(w)In the meantime, Y was spending no time with the father.
(x)In May 2024, time for Y with the father was reinstated each weekend from Saturday to Sunday supervised by the maternal grandmother until the further hearing of the matter in July 2024.
(y)In July 2024, at the continuation of the final hearing, time for Y with the father was reduced to each Saturday because of the maternal grandmother’s failure to properly supervise the overnight time, with time for the father with Y, to be supervised by either the paternal grandmother or the father’s partner.
(z)As at the date of writing this judgment, Y continues to spend supervised time with the father one day a week.
In the 2022 family report, Dr N opined that the children would benefit enormously from having a meaningful relationship with the father.
This however has been interfered with by the mother.
This concerns Dr N, who during cross-examination made the following comment:
I think the conclusions I formed 2 years ago were tentative in terms of – at the time – you know, the children really had not seen their father – well, [Y] never met his father – and I think I made some predictions about what might happen, what the mother’s attitude might be to the children spending time with their father, and I think I made some comments about potential risks, as in the children may be exposed to future forensic interviewing; the mother may have some anxiety when the children return and may scrutinise their behaviour; so I would say that those views, unfortunately, have come to fruition, in my view, and so my concerns about the prospect of these children being able to have a meaningful relationship with their father is strengthened.
It was further noted by Dr N that:
further, police and DCJ investigations…some of the info in the mother’s recent affidavit indicates to me that there hasn’t been any adaptation of her attitude towards the father and his family, but a more strident view about the negatives or the risks that he and his family pose to the children.
I find that the evidence supports that no matter what can be otherwise proven or what the father does, the mother will continue to hold onto her “own truth”, “own perception” and “ own reality” (the mother’s words in cross-examination) that the father presents as a risk to the children and that the only way to prevent that risk is for the father not to communicate or spend time with the children.
I make this finding based on the following statements made by the mother during cross-examination:
(a)The mother is unable to think of anything that the father could do to convince the mother that the children are not at risk when in the father’s care.
(b)The mother maintains that in her experience people have lied for the father, that things have been edited or faked by or for the father and that the father will manipulate to suit his situation. The mother gave evidence that the father has “literally lied in multiple jurisdictions”.
(c)The mother maintains that the parenting proceedings have not been about the children but about revenge by the father and designed to get to her as “he fucking hates me” stating in cross-examination “he knows there’s nothing that I won’t do for my kids… and that the only thing in the world that will kill me or destroy me or make me suffer is to either make them suffer or take them away”.
(d)The mother indicated that there is a high likelihood that the mother will not comply with any final court orders made whereby the father spend time /communicate with the children as the father “will do something, whether it be genuine abuse - or not, to make me say something that’s going to make me look like a nutcase”
During Dr N’s cross-examination the following exchange occurred:
Father’s counsel: Now, the mother has given oral evidence in this court on a couple of occasions this year that the – about these three things: firstly, that she believes the father, in bringing these proceedings, is persecuting her and that he doesn’t genuinely want a relationship with the children; secondly, that there is nothing that the father can do to address her belief that he has sexually abused her and harmed the children; and thirdly, that she intends to believe her truth and what she believes to be her children’s truth about the father regardless of what other evidence or opinion may exist. Having regard to that, is there any realistic prospect, in your opinion, that the children can have any relationship with their father while they remain living with the mother?
[Dr N]: No
Father’s counsel: Would you agree that it is almost certain that if the children remain in the care of the mother, they will not only not have any relationship with their father but that they will likely come to believe that their father has sexually abused them…
[Dr N]: I agree with that proposition… what I’ve observed in those videos, what I’ve observed of [G]’s beliefs, and what I understand the…mother is unprepared to… there is nothing that could assuage her concern. There is no truth or evidence or fact that could persuade her to change her views to – to anything. So – and her style of communication with others, and the boys in particular, means that I think she would see it as helpful to them to understand that they are victims of trauma and to understand that to heal – this is what I think the mother would believe – to understand to heal from that trauma, you have to understand trauma itself, and you are a victim of trauma, and these things have happened to you. So, I think it would be very apparent to the boys. Her truth would be communicated to them regularly.
Father’s counsel: And what specific risk does that pose for the children in terms of their long-term psychological wellbeing if they come to form that belief?
[Dr N]: Well… to believe that you were conceived as a result of rape – you know, there’s not a huge amount of empirical evidence about – just because of lack of case numbers, but… I actually have certainly quite a bit of clinical experience in that area… is a terrible life story to… know… a deep understanding that whatever happened to your parents, that you were loved and wanted is the basis of believing yourself to be a good and lovable person. To… to know and understand and believe that you were conceived in a violent crime that was abusive of the mother really starts you out with a belief… a course of self-concept that there is something wrong and bad and terrible about you. So, the trajectory is that you will internalise that, you will come to believe that you are not a worthy person, that you will come to believe that you have caused pain and suffering to people around you, and depending on the other genetic characteristics you have, it sets you on a trajectory for very poor psychological health…. I would say that would be true for both children. The other thing… it’s not a subtle point, but I actually think it’s really relevant, what with the sort of escalating of the boys’ behaviour. And I’m not quite sure, because I don’t really have a comprehensive idea of how they are behaving in other contexts – for example, school and preschool – which is very important. But some of the behaviours that I’ve seen in those videos and that the mother has written about – the material – if the mother is parenting the children and getting them support on the basis that they are victims of trauma, that’s a little bit like the answer I gave to [G] about treating someone with PTSD as opposed to treating someone, for example, with conduct disorder or a – a child who needs that sort of parenting I was describing earlier – a little bit no-nonsense, firm boundaries. I’m not saying it’s compassionless, but it is fairly authoritative and instructive. And I think that if the mother believes these children have been exposed to these horrific things, then she’s more likely to do the exact opposite of that sort of structured parenting that they need. And the risk for them – and I think it’s a really big immediate risk – is that they will develop something like conduct disorder or they will have big problems with peer relationships and staying emotionally regulated in class and forming peer relationships and learning and listening to other adults, which are the very skills that they right now, at this age, need to be a ..... focus for them, because they’re the skills that will help them not just educationally, socially, psychologically and developmentally. That’s what children this age need to be focused on. And if her view is they’re victims of trauma, they need to be cured from that, then her parenting and style of interaction is the exact opposite of what they need developmentally

I further make a positive finding as identified in Isles & Nelissen in considering “possible harm”, that the mother has the potential to significantly harm these children, if the children were to remain in the mother’s care.
The potential of harm is so high that I find that the children are not safe in the mother’s care.
The issue to be determined now are what arrangements are to be made for the care of the children so that they are, as required by the High Court in M v M (1988) 166CLR 69, protected from such potential harm.
The children have been primarily looked after by the mother with little time spent with the father.
The evidence is indicative that the children are exposed to potential harm should they remain living with the mother.
The evidence is indicative that the children are not safe in the mother’s care.
The legislation under section 60CC(2)(e) is very clear in that consideration must be given to the “benefit to the child of being able to have a relationship with the child’s parents… Where it is safe to do so”.
In considering section 60CC(2)(e) Justice Gill in Oyama stated at [30] and [31]:
…a further reference to safety is made at section 60CC(2)(e). By that provision the court is required to consider the potential benefits for a child to be derived from having a relationship with a parent… ‘where it is safe to do so’. In the context of a set of considerations that are designed for the weighing of different factors to determine best interests, ‘safe’ should not be taken to have a fixed content or standard. This is consistent with its use in another statutory context where the High Court observed that “safety is a protean conception which is certainly informed by the nature and gravity of apprehended harm and the risk of its occurrence”. The paragraph requires the court to consider the risk of harm that accompanies the relationship in whatever form it may take. The paragraph does not contemplate consideration of the benefits of a relationship where such is not safe. The provision is consistent with long standing case law that the child should not be exposed to an unacceptable risk of harm.
I find that for X and Y the risk of harm that accompanies their relationship with the mother, should the children remain living with the mother, is severe and grave and the likelihood of its reoccurrence is high.
I make this finding based on the following:
(a)X and Y are special needs children where their needs have not been met to the extent necessary to allow the children to progress.
(b)The evidence supports that the mother lacks the attributes necessary and needed to care for and meet the needs of X and Y (as opined by Dr N) as the mother has failed to follow professional advice, demonstrate emotional regulation and demonstrate a high degree of patience with the children.
(c)Medically, the mother has not ensured that the children have received the treatment and therapy necessary to address their health and behavioural issues.
(d)Educationally, whilst the children in 2024 have been attending kindergarten and school, the children have already been advantaged by not being socialised earlier and by missing schooling in the previous years.
(e)The mother is not adequately addressing the children’s behavioural needs and as such does not have control over the children when the children are playing up.
(f)As a consequence, the children are at risk of emotional and physical harm towards each other and if not addressed it is likely that the children will cause emotional and physical harm to others.
(g)The mother is not providing the children with adequate supervision and therefore placing the children at risk of physical harm.
(h)The children do not have the benefit of routine, boundaries and structure, all of which are a necessity for these children given their health issues. This is placing the children at risk of developmental, physical, psychological and emotional harm.
(i)The mother repeatedly makes decisions that put the children at risk and whilst there may be token gestures made (such as now locking up medication and refraining from recording) there is no guarantee into the future that the mother will not slip back into her old ways as the mother believes her truth above anyone else, even if there is independent evidence to show that the mother is incorrect in her beliefs. Further the mother has a history of making ill informed decisions which adversely impact on the children.
(j)The mother in her quest to pursue her truths repeatedly puts her needs ahead of that of the children and this lack of child focus is interfering in the children receiving the therapy and treatments needed for the children to have the best opportunities available to them as they move forward.
(k)The mother will maintain the children were subjected to horrendous sexual/physical/psychological abuse from the father and will continue to treat and have the children treated as victims which in time will create false beliefs in the children and emotionally this will impact on their feelings of self-worth and have long-term implications on their abilities to develop their own relationships into the future. I give weight to the opinions expressed by Dr N during cross-examination:
•It is almost certain, if the children remain with the mother, that not only will they have no relationship with the father but likely they will come to believe that he has sexually assaulted them and likely raped her (the mother).
•If there is nothing that can persuade her to change her views and her silent communications with others and the boys in particular means that she sees it as helpful to them to have them know that they were victims of trauma- that to heal you need to understand. It would be very apparent to the boys and her truth would be communicated to them frequently.
•If the mother believes that these children have been exposed to trauma, then it is an immediate risk. It will interfere with development of peer relationships, conduct disorder, learning and listening to other adults. The view that they are victims and they need to be healed from that is the exact opposite to what they need.
(l)The mother, despite any court order made, will interfere with the children having any relationship with the father. I give significant weight to the opinion of Dr N in the 2022 family report that:
(i)The mother has a significant blind spot in her parenting capacity, insofar as she has completely minimised or disregarded the long-term effects on the children of being separated from their father and paternal family and is unable to articulate the developmental and psychological implications for the children having the father’s identity stripped from them.
(ii)There is uncertainty as to whether the mother will truly be able to accept the father and his family in the children’s lives and to ensure that her actions and behaviours do not undermine the children’s trust in their father or their experiences with the father and his family.
(iii)If the children are deprived a relationship with the father there will be “an increased risk of psychological disorder, feelings of abandonment and grief as well is the lifelong loss of identity and family attachment”.
(m)In the event that any kind of relationship between the father and the children exists, I find that the mother will taint and destroy it in whatever manner the mother considers necessary to put an end to that relationship. The children will suffer in that process as the likelihood is extremely high that they will be exposed to unnecessary interviews and unnecessary medical interventions in order for the mother to prove her truth and to remove the father from their life.
(n)I give significant weight to the opinion expressed by Dr N in the 2022 family report that:
(i)“There is a very high risk that the mother will continue to raise spurious concerns about the father, which will lead to enormous psychological confusion and distress for the children”.
(ii)“The real challenge… will be to ensure that the children are protected from any further escalation of spurious allegations of abuse, which would embroil the children in forensics interviewing and procedures which would be deleterious to their psychological stability and well-being”.
(o)The mother has no insight as to how her beliefs, attitude, behaviours and actions are harmful to X and Y.
(p)The mother has no insight as to the short-term impact of that harm on X and Y.
(q)The mother has no insight as to the long-term consequences for the children of that harm.
(r)The mother will not gain insight and therefore this insidious harm will continue for the children should the children remain living with the mother.
(s)The mother is unable to keep the children safe in her household.
(t)The mother does not have the capacity to meet the children’s developmental, psychological and/or emotional needs.
I find that the risk of continued harm for the children in the mother’s primary care is extremely high.
I find that the risk of continued harm for the children in the mother’s primary care is current and existing harm.
I find that the harm itself impacts on every facet of the children’s lives and if it continues these children will be adversely affected, with that affect infiltrating the children for the whole of their childhood and most likely into their adulthood.
When Dr N was asked in cross-examination whether there was anything that could be done to ameliorate the risk if the children remained in the mother’s care Dr N replied “I can’t think of anything and I have thought a lot about it”.
In making this decision I give weight to the views expressed by Justice Berman and upheld by the Full Court in Gabbey & Cadriel [2024] FedCFamC1A 60 that “it must be remembered that the mother’s presentation did not leave room for any other option or outcome other than the children living in the sole care of (one) or other of the parties. It is regrettable”.
In this matter, based on all the findings the only option available to the court is to change the residency of the children from the mother to the father.
It is regrettable but I am satisfied on the balance of probabilities having regard to the best interests of the children that it is the only decision that will keep the children safe.
Therefore, I find that in order to keep the children safe from the mother, that it is in the children’s best interests for orders to be made for the children to live with the father and for the father to have sole decision-making for the children.
In making this finding I have taken into account the following considerations in section 60CC:
(a)The father will promote the safety of the children (section 60CC(2)(a)).
(b)The father has the ability to meet the developmental, psychological, and emotional needs of the children (section 60CC(2)(c)).
(c)The father has the capacity to have parental responsibility in order to provide the children with their developmental, psychological, and emotional needs (section60CC(2)(d)).
(d)It is safe for the children to have a relationship, and to live with the father (section 60CC(2)(e)).
In making this decision it is acknowledged that the transition for the children from living with the mother to living with the father will be difficult, but not impossible.
Ms O during cross-examination opined that if an order was made for the children to live the father:
(a)The short-term impacts would be generalised dysregulation or sleep, having to adapt to a new household and a new routine and that the children may become distressed and sad.
(b)The long-term impacts may include depression, anxiety, and maladaptive coping mechanisms.
(c)Children however adapt especially if they are still engaged with their therapeutic practitioners and supports are in place and that they would adapt even with a change of treating health professionals, as this is quite common place.
Dr N during cross-examination opined that if an order was made for the children to live with the father:
(a)Dr N does not have any concerns about the father’s ability to care for the children.
(b)It will be a traumatic shift for the children in removing them from their primary caregiver to then live with the father.
(c)The father is aware of the impact that a change of residency will have on the children and agreed with the father’s Counsel that this is a strength when it comes to the father’s ability to manage the children and meet the children’s emotional needs associated with that change.
(d)The father has articulated and demonstrated “a developmentally nuanced understanding of how difficult that would be, and his parenting response to them is likely to be tender, caring, supportive, and the best possible sort of protective factor in response to significant change”.
(e)As to the possible impact on the children of changing residency Dr N opined:
it is impossible to predict children’s responses. Some children are very distressed, and there is a regression in terms of their behaviour. They are – they don’t sleep. They don’t eat. They soil – soil themselves. They have all sorts of difficulties getting to school. And that period of – and they – and I’m using the word “trauma” genuinely here, because they are removed from a primary caregiver whom they have developed, even if it’s an unhealthy bond, a very close emotional bond. So that – that’s at – that’s at one end, one extreme. I’ve also seen other children who I thought that’s going to be the response, and we then – you know, sort of by the time they’ve left my offices and they’re at [a train station], they’re calm, they’re happy, and a remarkable sort of transformation. So it’s very difficult. I – I don’t – you know, there is no exact science. Some of the things that can predict how well a child will settle are, “Are there – are there – like, what are the resources of the household to which they’re going?” And multiple adults is a big factor. So if they’re going to a household where there are two adults or more adults who are extended family members, that absolutely helps, because it takes the pressure off this child’s reaction, and they can have – sometimes, they are – particularly if they have an aversive response to the parent, they can have a – a much more relaxed response to a grandparent, an aunt and uncle or a – or so on. So I would say, in answer to your question – I’m sorry I’m beating around the bush, but it’s a very difficult one – decision that the court has to make. I would say that, on balance, it favours the children being placed in the care of their father, but it’s not without risk.
(f)Dr N expressed a view that the father has the willingness to seek professional assistance in managing the transition.
I find that the difficulties that may be experienced by the children in transitioning to the father’s care will be outweighed by the positivity the children will experience in being raised in a safe structured and consistent household with the father and being surrounded by many supporting adults who ensure that every facet of the children’s needs are met in order for these children to positively move forward in life.
I further find that the father with the support of his partner and the extended paternal family will ensure that the transition is as stress free as it can be for the children and that treating health professionals will be enlisted to assist if necessary.
In making this decision it is also acknowledged that a change of residency for the children will be very distressing and difficult for the mother to accept.
But this is a decision where the children must be kept safe and their safety is only achievable by removing the children from the mother and delivering the children to the father.
How the mother deals with that decision is her choice but no matter how the mother is feeling and the impact it may have on her mental health, a change of residence is imperative for X and Y and is in the children’s best interests.
Nothing the mother says or does in reaction to this decision will change that outcome.
As cold and heartless as that sounds, my role as a judicial officer, is to make decisions that are in the best interests of X and Y and it is for that reason orders have been made for the children to be placed in the immediate care of the father as this is the only alternative that will provide the children with a safe upbringing where their day-to-day needs will be met.
The issue now that must be considered is as expressed by Justice Gill in Oyama at [33] is “the sufficiency of different arrangements to render time with the mother as safe, while permitting the reaping the benefits to the children of the relationship with the mother”
WHAT PARENTING ORDERS REFLECT WHAT IS IN THE BEST INTERESTS OF THE CHILDREN
An order has been made for the children to live with the father.
An order has been made for the father to have sole decision-making for the children.
I give weight to the opinion expressed by Dr N in cross-examination that the transition needs to be immediate so as to protect the children from the intensity of the mother and G’s likely response which would distress the children.
An order has been made that the children transition to the father’s care immediately.
The children have a loving close and bonded relationship with the mother.
It is not the intention of the father to cease that relationship but to ensure that the relationship continues in such a way that the children’s safety is assured.
Dr N and Ms O agree that where findings have been made about the mother that establishes unacceptable risk and where the children are not safe in the mother’s care then the only arrangement that can be put in place for the children to benefit from a relationship with the mother is that of supervised time.
I give weight to Dr N’s opinion in cross-examination that supervision is the way to ameliorate risk and that such time should occur at a contact centre.
The father and the ICL agree.
Ms O recommends supervised visits of once a month.
Initially Dr N also recommended once a month but later in her cross-examination reconsidered her position stating that:
(a)Once a month is a lot of contact if that contact is distressing to the children and would be too much for the children.
(b)To maintain the children’s relationship with the mother, the mother does not need to be involved in the minutiae of the children’s lives.
(c)The children will remember her, know her and have a fond love for her.
(d)The minimum effective number of supervised visits with mother is four or five times a year.
(e)This is a more preferred regime as it is enough for the children to settle into the life they will have the father, his partner and extended family and will not interrupt their activities.
(f)This will prevent supervised time becoming burdensome for the children.
(g)This will enable the children to:
…maintain the attachment, the fondness, the sense that ‘this is my mum and my sister, and I love them, and they love me, and they take an interest in my life and what’s going on, but not enough that I have to worry about what their emotional reaction is to me and the life I’m living.
Dr N expressed a view in cross-examination that the supervision needs to be ongoing because the mother:
Will be unable to contain herself in viewing the children as victims of sexual abuse living with a perpetrator, and will continue to, even in the context of – it – it may still happen anyway – but will continue to make complaints, will continue to subject them to forensic interviewing, will seek to undermine the trust that they have in their father and the important attachment relationships they have, and will continue to develop in the father’s household and the context of their lives. And I think that her ability to reality-test her very fixed view is – is non-existent, and so – and it will impact on her parenting behaviours. If not supervised, she will continue to engage in psychological abuse of the children to get them to conform to her view” and that there was not in any way that that risk could be mitigated.

I find based on the evidence that it is in the children’s best interests to spend supervised time with the mother during each school holiday for a period of up to 4 hours (as can be accommodated by the contact centre), therefore providing the children with four visits per year with the mother.
This will enable the relationship between the mother and the children to continue but will protect the children from any potential risk from the mother and will enable the children to enjoy, without distraction, their time living with the father and participating in activities.
I am aware that the Full Court does not favour long-term supervision orders however as accepted by the Full Court in Betros & Betros [2017] FamCAFC 90, there are certain situations where such an order limiting the children’s time with the parent is in the best interests of the children.
I find that in this situation it is in the best interests of the children for time to be limited with the mother so as to keep the children safe but to ensure that the children have the benefit of a continued relationship with the mother.
As to a moratorium of time, before the mother commences supervised visits with the children, Dr N in cross-examination made the following comments:
(a)In order to protect the children from the mother’s likely stress there would need to be a time delay between when the children commence living with the father and spend supervised time with the mother.
(b)Dr N agreed with the ICL’s counsel’s question that a moratorium before the children commenced spending supervised time with the mother would allow the children to settle into the father’s care without interference in any bond from the mother and protect the children from the mother’s stress.
(c)As to the length of the moratorium, Dr N suggested a school term (around 10 to 11 weeks) which would be a long enough period to allow the children to settle into the father’s household and for the mother to manage her initial emotional response, to get some support and to turn her mind to how the mother wishes to present herself when spending supervised time with the children.
Ms O agreed that a three-month moratorium is required between when the children commence living with the father and when the mother is a supervised time children.
As the judgment is being delivered at the end of the school year and where the next school holidays is not until April 2025 I have ordered that the moratorium be imposed and that the mother spend supervised time with the children in the last week of January 2025.
This will ensure that the children get to spend time with the mother during every school holiday in 2025.
In addition to these orders, I have made orders in respect to:
(a)The children’s change of surname to Navickas-Fried.
(b)The addition of X to the birth certificate of Y.
(c)The addition of the father to the birth certificate of Y.
(d)The release of the father, his partner and extended paternal family members from undertakings provided to the court.
(e)The delivery of certain items belonging to the children by the mother to the father.
(f)Provision for the mother to provide gifts/cards and letters to the children on special occasions.
(g)Provision for the children to provide gifts/cards and letters to the children on special occasions.
(h)Allowance for a copy of the judgment to be provided to education and treating health professionals as well is to the DCJ and the police.
(i)Provision for the father to provide to the mother an updated and framed photograph of the children each year and for the mother to provide the children an updated and framed photograph of the mother each year.
(j)Provision for various injunctions and restraints in respect to both parties.
(k)Notification as to the orders being inconsistent with existing ADVO’s.
(l)Provision for the exchange of information including the use of a parenting app.
(m)The issue of the children’s passports and allowance for the father travel overseas with the children.
(n)That the ICL be discharged.
I make a finding that each of these orders are in the children’s best interests.
PERJURY REFERRAL
During the course of the mother’s evidence, the mother lied about reading, consenting to and signing final parenting consent orders during the September 2023 final hearing, instead blaming Counsel 1, indicating to the court that Counsel 1 had entered into and signed the consent orders without her knowledge and consent.
An indication was given on the bench that at a later date the mother may be referred to the Department of Public Prosecutions (DPP) for their consideration as to whether the mother be charged with perjury.
The ICL is seeking that the court made the referral.
The father and the mother, for very different reasons, is seeking that the court not make the referral.
What is of great concern is that the mother has lied so often to so many, where in the past there has been very little consequence other than the mother being caught out on her lies and not achieving what she had hoped for.
What also is of great concern is the fallout for the father in the event that the mother is referred to the DPP to consider a charge of perjury.
The mother, in her persistent portrayal as a victim of the father, and with her vindictive attitude is likely to make more spurious claims against the father if a referral was made.
With the change of residency for the children and the adjustments that need to take place in the father’s household, I do not want to burden the father with any unnecessary distractions.
I therefore will not refer the mother for perjury.
However, the mother did sully the name of Counsel 1.
An order has been made for the mother to write a letter of apology to Counsel 1 and to provide a copy of the letter attached to an affidavit by the mother.
This will ensure that there is a permanent record on the court file of the mother admitting to the lie and clearing Counsel 1’s name from any implications as a result of that lie.

I certify that the preceding four hundred (400) numbered paragraphs are a true copy of the Reasons for Judgment of Judge L.Turner.
Associate:
Dated: 12 December 2024

File number(s):	LEC 175 of 2021
Judgment of:	JUDGE L. TURNER
Date of judgment:	12 December 2024
Catchwords:	FAMILY LAW – Parenting - whether children aged 6 and 4 remain living with mother or live with father - whether either party poses an acceptable risk to children - held mother poses an unacceptable risk and children unsafe in her care - children live with the father - children spend limited supervised time with mother.
Legislation:	Family Law Act 1975 (Cth) pt VII ss 60CC, 60CG, 61CA, 61D, 64B, 65AA, 65D, 65Y, 68B, 68C, 68P, 69ZX, 106A, 114AA, 121 Births Deaths and Marriages Registration Act 1995 (NSW)
Cases cited:	Baghti & Baghti [2015] Fam CAFC 71 Banks & Banks (2015) FLC 93-637 Betros & Betros [2017] FamCAFC 90 Briginshaw v. Briginshaw (1938) 60 CLR 33 Gabbey & Cadriel [2024] FedCFamC1A 60 Heeley & Heeley [2023] FedCFamC1F 56 Isles & Nelissen [2022] FedCFamC1A97 Johnson & Page [2007] FamCA 1235 M v M (1988) 166CLR 69 Newett & Newett (No 9) [2023] FedCFamC1A 23 Oyama & Oyama [2024] FedCFamC1F 738 Potter and Potter (2007) FLC 93-326 Rod & Bloomberg [2008] FamCA 487
Division:	Division 2 Family Law
Number of paragraphs:	400
Date of last submission/s:	4 November 2024
Date of hearing:	11, 12, 13, 14 September 2023, 22, 23, 24, 26 April 2024, 1, 2, 3, 4, 5, July 2024 and 2, 3, 4, 5 and 6 September 2024.
Place:	Heard in City B and Brisbane, delivered in City B
Counsel for the Applicant:	Ms Decle
Solicitor for the Applicant:	Parker & Kissane
Counsel for the Respondent:	Mr Finch (11-14 September 2023) Ms Karaman (22-26 April,1- 5 July & 2-6 September 2024)
Solicitor for the Respondent:	Universal Law (11-14 September 2023), Doolan Wagner Family Lawyers (22-26 April 2024), Paddingtons Lawyers and Attorneys (1-5 July & 2-6 September 2024)
Counsel for the Independent Children's Lawyer:	Ms Smith
Solicitor for the Independent Children's Lawyer:	McVittie Legal

LEC 175 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR FRIED Applicant
AND:	MS NAVICKAS Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE L. TURNER
DATE OF ORDER:	12 DECEMBER 2024