Nixon & Nixon - [2024] FedCFamC2F 94

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nixon & Nixon [2024] FedCFamC2F 94

File number(s): ADC 4209 of 2020

Judgment of: JUDGE JENKINS

Date of judgment: 1 February 2024

Catchwords: FAMILY LAW – parenting – final hearing – unacceptable risk – children with complex special needs – family violence substantiated – whether risk can be ameliorated – insight into family violence and the impact on children – orders made for children to live with mother and sole parental responsibility – day time only with father

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61DA, 65D, 65DAC, 68P, 68Q

Cases cited:
Grella & Jamieson [2017] FamCAFC 21

Isles & Nelissen [2021] FedCFamC1F 295

Masson & Parsons [2019] HCA 21; (2019) 266 CLR 554

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Division: Division 2 Family Law

Number of paragraphs: 185

Date of last submission/s: 25 May 2023

Date of hearing: 6-9 March and 5 May 2023

Place: Melbourne

Counsel for the Applicant: Ms Boyle

Solicitor for the Applicant: C M Tucker & Associates

Counsel for the Respondent: Ms Miller

Solicitor for the Respondent: Marie Stokes Family Lawyers
ORDERS

ADC 4209 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR NIXON

Applicant

AND:
MS NIXON

Respondent

ORDER MADE BY:

JUDGE JENKINS

DATE OF ORDER:

1 FEBRUARY 2024

Order amended pursuant to r 10.13(1)(g) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 1 February 2024
THE COURT ORDERS THAT:
1.The children X born in 2013 and Y born in 2016 ("the children") live with the mother.
2.The mother have sole parental responsibility for the children subject to forthwith notifying the father upon making any long term decisions in relation to the children.
3.The father spend time with the children:
(a)Each Saturday from 10.30am until 4.30pm;
(b)On the first Sunday of the short school holidays from 10.30am until 4.30pm;
(c)On the first, third and fifth Sunday of the long school holidays from 10.30am until 4.30pm;
(d)On Father's Day from 10.30am until 4.30pm;
(e)If the children's birthdays fall on a Sunday, from 10.30am until 4.30pm;
(f)If the children's birthdays fall during the school week, from afterschool until 6pm;
(g)On Christmas Day from 3.00pm until 9.00pm each year.

4.Handovers occur at the B Children's Contact Centre or if unavailable at the McDonalds closest to that centre.
5.The mother be permitted to suspend the father's time in the long summer holidays for a period of up to 2 weeks to take the children on a holiday provided the mother gives the father 30 days written notice in advance and such time does not coincide with Christmas Day.
6.Each parent be at liberty to enrol the children in extracurricular activities during their time with the children and the other parent be restrained from being in attendance during those activities.
7.The mother forthwith notify the father by email of the children's engagement with a new medical or allied health professional including the name, phone number and address of that health professional.
8.Both parents:
(a)May liaise with any educational institution, including private tutors, attended by the children in relation to the progress of the children; and
(b)May receive, direct from the school, all school reports, newsletters, and other information which the parent may reasonably request, at the requesting parent's expense.

9.Both parents:
(a)May liaise with any person providing a health service, as defined in the Privacy Act 1988 (Cth), to the children; and
(b)May receive, direct from that person, all reports, results and any other health information, as defined in the Privacy Act 1988 (Cth), relating to the children, at the requesting parent's expense.

10.In the event of any medical emergency involving the children, the parent having care of the children shall immediately notify the other parent, either by text message or telephone call.
11.From 6.00pm to 7.00pm each Wednesday and each of the children's birthdays, that is spent with either the father or the mother:
(a)That parent initiate a call to the other parent via a video conferencing application;
(b)That parent must ensure that the children are available at the above time; and
(c)That parent must ensure that the children have privacy during their communication with the other parent.

12.The father be at liberty to send the mother one email within 24 hours of his time with the children with any issues that have arisen during his time and the mother respond to that email within 24 hours thereafter.
13.Pursuant to section 68Q of the Family Law Act 1975 (Cth), to the extent that any intervention order is inconsistent with these orders, the intervention order is invalid.
14.The father be restrained by injunction from:
(a)Denigrating the mother to or in the hearing of the children or permitting any other person to do so;
(b)Verbally or physically abusing the children or permitting any other person to do so;
(c)Leaving the children in the care of the paternal grandmother or permitting the paternal uncle (Mr C) to be left unsupervised with the children;
(d)Attending the children's school or any school events, save and unless the mother notifies him in writing that she will not be in attendance;
(e)Attending any medical or allied health appointment of the children at which the mother is in attendance,
(f)Physically disciplining the children;
(g)Communicating with the mother in any form, either by text, email, or telephone, save in accordance with orders 9 10 and 11 12 herein.

15.The mother be restrained by injunction from denigrating the father to or in the hearing of the children or permitting any other person to do so.
16.All extant applications be otherwise dismissed.

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

This is a parenting matter concerning X aged 10 and Y aged 7.
The children have complex special needs. Both children have been diagnosed with Autism Spectrum Disorder. X also has Attention Deficit Hyperactivity Disorder ("ADHD") and Dyslexia. Y has been diagnosed with behavioural issues and a medical condition.
The children currently live with the mother and spend time with the father each weekend for six hours.
The mother seeks that the current arrangements continue on a final basis whilst the father proposes a change of residence and that the children spend alternate weekends and holiday time with the mother.
Each party asks the Court to make an order that they have sole parental responsibility.
The father's case is that the mother has actively prevented him from having a relationship with the children. He believes she has fabricated instances of family violence and exaggerated the children's special needs in order to sabotage this relationship.
The mother's case is that she has been the subject of family violence, primarily coercion and control, but at times physical and verbal abuse. She says the children have been exposed to this violence both directly and indirectly.
BACKGROUND
The applicant father is 42 years old and has re-partnered but he did not put his partner on affidavit nor call her as a witness. The father is employed as an administrative officer with the public service. He lives in Suburb E, a suburb of Adelaide, which is about 5 kilometres or a fifteen-minute drive from the mother.
The respondent mother is aged 42 and has not re-partnered. She is employed by the public service as a professional on a permanent fulltime basis.
Throughout the relationship the mother worked for the public service which involved the family living in various overseas countries including Country H, Country J and Country K.
The parties were in a relationship from about 2009, married in 2012 and separated on a final basis on 14 May 2020.
Following separation, the mother did not allow the father to spend time with the children. The father consequently initiated these proceedings in September 2020.
On 3 November 2020, orders were made after a contested interim hearing for the father to commence spending time with the children for four hours each week supervised by a professional supervisor.
Further orders were made on 26 March 2021 which progressed the father's time to the current arrangement, which is for time on Saturday each week between the hours of 10.30am and 4.30pm on an unsupervised basis. Handovers are conducted at the B Children's Contact Centre.
The parties attended a Family Assessment Report with Ms L in August 2021 and for an updated report in June 2022. I have had the benefit of her reports dated 30 September 2021 and 21 July 2022 as well as her evidence at trial.
WHAT ARE THE ISSUES TO BE DETERMINED IN THIS CASE?
The issues to be determined in this matter are as follows:
·Are the children at unacceptable risk in the father's care, given the mother's allegations of family violence and/or the children's special needs? If so, can the risk be ameliorated?
·Is it otherwise in the children's best interests to increase their time with the father beyond the current arrangement?
·Is there an unacceptable risk of harm to the children in the mother's care due to her unwillingness to support a meaningful relationship between the father and the children?
·If there is no unacceptable risk of harm in the mother's care, would it be otherwise in the best interests of the children to live with the father?
THE EVIDENCE
This matter proceeded by a face-to-face hearing, save for the final day of evidence from the Family Report writer which took place via Microsoft Teams.
The matter concluded with written submissions.
It has not been possible to include every aspect of the evidence in these reasons. However, I have taken all the evidence into account. Whilst I may not mention something specifically in these reasons, that does not mean I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities. However, pursuant to the Full Court authority of Isles & Nelissen [2021] FedCFamC1F 295 ("Isles & Nelissen"), "findings of 'unacceptable risk' cannot be measured by the civil standard of proof " but rather such findings are based on a prospective assessment of possibility not probability.
In terms of the parties' evidence, the father argues that the mother's evidence was inconsistent in parts and ought not be believed for that reason. However, I found the father's submissions on this point to be unpersuasive. For example, the father points out that the mother says she injured herself during an incident but was playing sports six days later; yet, it is possible that she had recovered in that time. Another example relied upon by the father is that the mother says in evidence that she did not want to go to Country H with the father yet emailed him around that time saying she did want to go. This ignores the distinct possibility that she was thinking one thing and saying another. In any event, just because there may have been inconsistencies or even inaccuracies in the mother's evidence, that does not mean the majority of her evidence should not be accepted.
A large amount of the evidence in this case related to family violence. As is not uncommon in this Court, this evidence was mostly uncorroborated by other witnesses. However, I had the benefit of observing the manner in which each party gave evidence. My observation of the father was that he was rigid in his responses, highly critical of the mother, lacked insight into behaviour which even on his own evidence constituted family violence, and took little or no responsibility for his part in the parties' ongoing dispute. I also found his manner to be somewhat intimidating with the father frequently locking eyes with the Court and not looking away, as if in a staring competition.
Conversely the mother gave her evidence in a straightforward manner, without exaggeration and made concessions where appropriate. In addition, the mother kept a diary in which she made contemporaneous notes of events in dispute. Ultimately, where there is otherwise no way to distinguish between the parties' versions of events, I prefer the evidence of the mother.
SHOULD THE COURT MAKE AN ORDER FOR EQUAL SHARED PARENTAL RESPONSIBILITY IN THIS CASE?
Section 61DA of the Family Law Act 1975 (Cth) ("the Act") states as follows:
(1)When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
Section 4AB of the Act defines family violence as follows:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
The mother's case is that the presumption of equal shared parental responsibility is rebutted by family violence.
On the father's own evidence, he has committed family violence, including physical and verbal violence. I shall return to this further in this judgment. On this basis I find that the presumption is rebutted.
However, the Court is still at liberty to make an order for equal shared parental responsibility if it would be in the best interests of the children.
Section 65DAC of the Act sets out that where a Court makes an order for equal shared parental responsibility that:
(3) The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
Each of the parties assert that they are unable to communicate with the other. The father's case is that the mother is unable or unwilling to communicate with him and that equal shared parental responsibility is not practicable. He describes the mother as a perpetual liar. The mother says the father uses any attempt at communication as an opportunity for further coercion and control.
On either version of events, it is readily apparent that the parties are unable to consult and make a genuine effort to make decisions for the children. Accordingly, I do not propose to make an order for equal shared parental responsibility. The father submits the parent who has primary care should have sole parental responsibility. I agree with that submission.
As such, I do not need to consider whether to make an order for equal time or substantial and significant time but am at large to make orders in the best interests of the children.
WHAT ARE THE LEGAL PRINCIPLES THE COURT APPLIES IN DETERMINING WHERE A CHILD SHOULD LIVE?
Pursuant to s 60CA of the Act the best interests of a child are the paramount consideration for the Court when making a parenting order.
Section 65D of the Act directs the Court to make such parenting orders as it thinks proper. The Court may therefore use its discretion to determine what is "proper". In this regard the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21 has said at [18]:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.
HOW DOES THE COURT DETERMINE WHAT IS IN THE CHILDRENS’ BEST INTERESTS?
Section 60CC of the Act sets out the matters to be taken into consideration when determining best interests.
There are two primary considerations. The first of which is the need to consider the benefit to the children of having a meaningful relationship with each of their parents. Secondly, I must consider the need to protect the children from harm.

If there is conflict between those two considerations, then greater weight must be given to the need to protect the children from harm.
There are also a number of additional considerations set out in s 60CC(3).
I have considered each of the matters under s 60CC(2) and (3). However I will only specifically refer to them to the extent that they are relevant to my decision in this matter.
THE PRIMARY CONSIDERATIONS
Do the parties’ proposals provide for a meaningful relationship between the children and each of their parents?
The Full Court of the Family Court of Australia in the case of McCall & Clark [2009] FamCAFC 92 at [115] observed that the Act does not provide a definition of the word "meaningful", however they noted with approval the view of Brown J in the decision of Mazorski & Albright [2007] FamCA 520, in which her Honour said the term was synonymous with notions such as "significant", "important", "of consequence" and "valuable to the child". Meaningful does not however mean optimal.
Based on this definition the parties both propose orders that could enable each of them to have meaningful relationships with the children. However, pursuant to the High Court decision in Masson & Parsons [2019] HCA 21 at [8] the Court also has the responsibility of:
Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.
The mother's proposal provides for only minimal time for the children to spend with the father. Such an arrangement would severely curtail the opportunity for the father to have substantial involvement in their lives. I must therefore determine, taking into account the other considerations whether such time is the maximum amount consistent with their best interests.
Are the children at risk in either parties’ care?
The mother asks the Court to make a finding that she was subject to family violence on multiple occasions. The father says, "that both parties were involved in mutual disputes during the relationship for which they are equally culpable". He asks the Court to find that the children are at unacceptable risk of psychological harm with the mother on the basis that she has fabricated some instances of family violence and exaggerated others.
The mother's evidence is that she was subjected to both physical and verbal family violence. Her evidence is at paragraph 15 of her trial affidavit filed 13 February 2023:
From the beginning of our relationship, and throughout, the Applicant said that I was "damaged', that our relationship difficulties were my fault and that I needed counselling. He told me I was ''fucked in the head''. He constantly made me question myself; my judgement, my memory and would frequently correct me and talk down to me in front of others and tell me I didn't know what I was talking about. At times I felt confused, powerless and that I had no voice. I questioned my own ability to help others and felt that there was also a chance that he might try to damage my professional reputation if I stepped out of line or if he felt he was losing control over me.
In addition, the mother says that the father "would like to make all the decisions, constantly correct me, withhold affection, and patronise me when I wanted to improve myself or learn something new. He would at times shame me for my food choices and weight gain". In addition, that he frequently swore at her and called her names such as "stupid fucking bitch" and that "at times, his behaviour was unpredictable and on occasions he would have angry outbursts and damage property".
The father admitted in his affidavit filed 28 February 2023 at paragraphs 4b and 10 that "from time to time, when [Ms Nixon] was grossly wrong, I did discretely correct [Ms Nixon] in front of others, this was an infrequent occurrence" and that again "from time to time, in the heat of an argument, I concede that I called [Ms Nixon] a 'stupid bitch' and a 'fucking idiot'". It is clear from this evidence alone that the father has subjected the mother to controlling behaviours such as correcting her in front of others and verbal abuse. However, the mother's allegations are far more extensive. Whilst I have considered the totality of the evidence, I shall only address the key incidents.
The mother’s alleged self-harm attempt
The father says that in 2010 the mother took a combination of alcohol and medication in an attempt to self-harm. Under cross examination he said she took at least 12 tablets over a six-hour period, although he only physically saw her take four. The father's evidence was that upon arriving home the mother started an argument and was upset because she thought he had watched a pornographic video. He says the mother then tore up an engagement card they had received from a friend that the mother had previously taken issue with.
The father's evidence is that, despite being concerned about the mother's state of mind, he went out to get food. He says that when he came home, she was in a worse state and that to prevent her from taking further alcohol and medication he had to restrain her. Under cross-examination, the father said the mother was saying she wanted to "end it all". The father called an ambulance and placed the mother in a lock hold, pinning her arms back before straddling her for about ten minutes. The father clarified that the "lock hold" involved applying finger pressure to the rear of the hand, which "because of the nerves" provides a lock. The father allegedly learnt holds from reading books. This is not the only occasion on which he applied them to the mother.
The mother's evidence is that she was not attempting to self-harm but was saying to the father she wanted to end the relationship, not her life, and that she wanted to leave. Her evidence was the father put her in this hold to prevent her from leaving and fabricated that she wanted to self-harm.
There are no witnesses to this incident itself therefore for reasons already stated I prefer the evidence of the mother. I accept that she told the father she wanted to leave and that he forcefully restrained her from doing so, called an ambulance unnecessarily and fabricated that she wished to self-harm. I find that the father committed family violence not only by his physical restraint of the mother but in endeavouring to control her movement and by fabricating stories about her mental health.
It is also very disturbing that on the father's own evidence he stuck the engagement card back together with tape and put in on the fridge as a reminder to the mother of the damage she can do and how it impacted him. I find this behaviour was also an attempt to control the mother and to undermine her emotional wellbeing.
Mid-2010
On this occasion the parties had an argument after the father attended a friend's dinner without the mother. The father's evidence is the mother became "hysterical" and called the police. The mother does not recall the dinner but remembers an incident around this time where there was "pushing and shoving" and she called the police.
Under cross-examination the father recounted that after the police attended, he left the home and slept in his car. His evidence was that whilst in the car he wrote notes on his phone, which were later transferred into a word document.
The notes state as follows:
[mid-]2010
-Recommence psychological treatment.
-Supplementary report to SAPOL withdrawing phone report, in a written form.
-Apology.
-Accept that I have the friends that I do, you don't have to like them, just accept that they exist in my life now and into the future.
-Accept that I am in the [defence forces], and that I may go away, even for long periods (months at a time).
-Accept the fact that I am going to physically see other women, this does not mean that I AM or WANT to cheat on or leave you.
-Never ever go through my emails/Skype/SMS' etc without asking my permission first.
-Sticky tape [Mr M’s] card to us together and leave it on display for two months.
-Stop being condersending [sic] with respect to nudity and sexually explicit material.
-Do not take illicit drugs.
-Do not lie.
-Support me in my endeavours.
The mother's evidence is that this list was presented to her as rules she had to abide by. The father denied this but on the face of them, that is how they read. Again, for reasons stated I accept the evidence of the mother.
I find the father did make a list of "rules" and presented these to the mother with the expectation that she comply with them and that this constituted coercive and controlling behaviour and thus family violence as defined under the Act.
The holiday incident
In 2012 the parties went on a holiday for a special occasion. It is common ground the parties had an argument. The father says the mother was upset because she thought he was staring at partially clad women at the evening entertainment. He says the mother again became "hysterical" and slapped him and that in order to "deescalate" the situation, he pulled her arm behind her back in a locked position and "eased her" into the wall of the room. He says he did this because he knew the wall "had flex in it" and "had a lot of give". The father's evidence is that he only held her for a few seconds before letting her go. He says the mother then locked herself in the bathroom for about 40 minutes.
The mother denies being "hysterical". The mother says the father called her a "cunt" and that she was so shocked that she awkwardly slapped him. She says that not only did the father force her into the wall; he then manoeuvred her over a wooden chair before pushing her onto the bed where he tried to choke her.
The father's evidence was that the lock hold provided a "disincentive" to moving because it caused pain, and it provided the mother with an opportunity to "apply some rational thought". Although the father denies calling her a "cunt" he admits calling her a "stupid bitch" during the incident.
I find that even on the father's evidence this incident constituted further family violence on his part. Even if the mother was "hysterical", which she denies, the father conceded that he could have left the cabin, albeit he would have had to "brush past" her. For reasons that were unclear he felt it was preferable to physically restrain the mother.
Again, having heard the parties give evidence, I prefer the evidence of the mother. Although the mother admits slapping the father and this constitutes family violence by the mother; I accept her evidence that this slap had little impact on him. In regard to the father, I find the father not only physically restrained the mother causing her pain, but he assaulted her in a manner which would have been very frightening. This is consistent with the father's evidence that she locked herself in the bathroom for a significant period of time.
The incident in Country J on in mid-2018
It is common ground the parties had an argument in their home in Country J in mid-2018 and that the father called the mother "a fucking ungrateful bitch". However, the mother also asserts the father damaged property and that she believed he was going to hit her. The father denies this although conceded he may have looked like he was going to hit her.
For reasons already stated, I prefer the evidence of the mother and find that on this occasion the father committed family violence by verbally abusing the mother, damaging property, and acting in an intimidatory manner which caused her to believe he might hit her.
Late 2018
On this occasion, the mother alleges that the father tried to kick the hallway door down causing damage to it and that as a result she attended Public Trustee to enquire what would happen to the children and her estate if the father harmed her. The father could not recall this incident but denied causing any damage.
I again prefer the mother's evidence and find the father committed family violence on this occasion which caused not only damage to property but led to the mother fearing for her life.
The party incident
It is common ground that in late 2018 the mother collected the father after a party with the children in the car. The mother says the father was very drunk and accused her of having an affair and being a liar. The mother says at paragraph 28 of her updated trial affidavit:
While I was in the driver's seat, he kept pushing me backwards in my seat and reaching for the keys in the ignition. We drove to his mother's home where we were staying. When we arrived there he jumped out the car and tried to take [Y] from his car seat. I put my hand over the buckle, and he bent my fingers back almost breaking them. At one point I lent on the car horn to get assistance. His mother came out and I asked her to call the police because my phone was flat, but she refused.
The father's evidence is at paragraph 189(e) of his trial affidavit:
I wanted the children to remain with me. When we arrived home, and [Ms Nixon] had stopped the car, I did reach for the keys in the ignition, though was unable to reach them. I then went to the rear left door to take [Y] out of his car seat, [Ms Nixon] reached back whilst I was attending to unbuckle [Y]'s restraint and dug her nail into my middle finger causing a laceration, I pulled [Ms Nixon]'s left fingers back to stop her from hurting me or potentially [Y] further…I realised [Ms Nixon] was in a heightened state of anger and was unable to address the situation rationally.
The father said under cross-examination he wanted to take the keys because he knew the mother was going to leave with the children and he needed the car for an appointment the next day. It came to light this this appointment was actually a family function with the mother's family, which the mother would also be attending.
Moreover, in his evidence the father gave an alternate reason for wanting to take the keys and that was to stop the mother driving because in his view it was unsafe for her to do so in her current emotional state. He conceded that he said to the mother in front of the children that she could harm them and in the Family Report that he "realised it was wrong, and unnecessary, to also squeeze her hand during this incident".
The mother's evidence is corroborated by a text message she sent to the father at about midnight that night.
I accept the mother's evidence and find that the father did accuse the mother of having an affair. Indeed, the father conceded under cross-examination that he called her a "fucking bitch" and "a liar". I find that this led to an argument and the mother decided that she did not wish to stay with the father that night. I find the father was not happy with this situation and wanted to stop the mother and children from leaving. For that reason he tried to firstly take the keys and then Y out of the backseat and in the process nearly broke the mother's fingers.
I find the father's actions on this occasion constituted family violence against the mother in the presence of the children.
Late 2018
The father's evidence is that on this occasion the mother attended the paternal grandmother's home where he was staying to talk about their future together.
The mother denies this and says she only attended because the father requested a lift to a family function and that she agreed to meet him to talk about what had happened two days before, being the party incident. She says at paragraph 31 to 32 of her updated trial affidavit:
When we arrived at the home of the Applicant's mother, he started packing the car with his belongings saying that he was coming with us. I said we needed time apart and explained the reasons I did not want him coming with us. He completely disregarded what I was saying.
He told me had ordered [take-away] and so we had to collect them. The children remained with his mother and we drove to collect the [take-away]. While driving I again told the Applicant I didn't want him moving back into the former matrimonial home. His response was that he refused to be separated from "his" family and accused me of assaulting him two days earlier. He said that if he had wanted to break my fingers, he would have and that I should be thankful that he didn't
The mother says she was so fearful that she left the father at the take-away shop and rang the police. The parties subsequently separated for four to five months.
The father agrees he said to the mother that "If I wanted to break your fingers, I would have".
I again prefer the evidence of the mother as to this incident. I find that on this occasion the father committed family violence by trying to coerce and control the mother into recommencing the relationship and that his words were intended to intimidate her.
The special occasion incident
The mother says that despite the separation, the father attended her home in late 2018, pushed his way in and stayed overnight. The father says she consented to him being there. The mother says she did not consent and provides corroboration by way of a text sent to the father that afternoon (per the mother's tender bundle part 1 tab 5):
Just to make it abundantly clear, letting you into this house tonight does not mean that I agree to your staying over. I know you are insisting that you stay but I'm still not comfortable with it. And if you were to stay here tonight by agreement or otherwise, that does not mean that you have moved back in.
I find the mother's version of this event to be more probable. I find the father's behaviour in late 2018 was a further example of coercion and control.
Early 2019
The mother's evidence is that the father attended the home and grabbed the children and told them to pack their bags as they were going to live with him. The mother says there was a scuffle and her leg was injured. This was again corroborated by a text sent that evening.
The father now denies this incident although he did not respond to the mother's text at the time with such a denial, and indeed asks her about her leg.
I again prefer the mother's version of events, which I note is also consistent with the concessions the father makes about previous incidents, in particular his desire to retain the children.
Father’s self-harm threats early 2019
In early 2019, there was an exchange of text messages between the parties in which the mother asked the father if he was wanting to self-harm and he said yes. When she asked him what she could do to help, he said "drive me to a train line". Under cross-examination the father denied he wanted to self-harm but said the message was "tongue in cheek".
It is unclear from the messages how the mother would be expected to think they were "tongue in cheek" and not surprisingly she appears to take them seriously.
Threats of self-harm are a form of emotional abuse and are often used to manipulate or control a partner. As such, I find that the father's threats to harm himself constituted a further act of family violence against the mother.
The Country K incident – early 2020
On this occasion the parties had an argument in which the mother accused the father of knowing the passwords to her computer. She says that during the argument the father pushed her several times and with such force that it caused her to stumble backwards.
The father's evidence is at paragraph 189(k) of his trial affidavit filed 14 February 2023:
[In early] 2020, following 15 minutes of [Ms Nixon] repeatedly and with increasing volume calling me a liar in front of the children, with respect to the me knowing her passwords, which I did not, I walked over to [Ms Nixon], and she braced up. I pushed [Ms Nixon] with my left hand in her solar plexus twice. [Ms Nixon]'s feet did not move at all at this time. [Ms Nixon] did not stumble; she did not hurt her foot and she did not [injure herself] as she has described.

On the father's own version of events, rather than walking away, he again physically assaulted the mother. Furthermore, he acknowledged in the Family Report that "there was no reason for me to do that physical act". However, he does not say why he did it, how he would act differently, or acknowledge the impact on the mother, but rather attempts to minimise the event by stating the children did not witness it and the mother received no injury.
I find it improbable that the father would push the mother to the body, by surprise, and that she would not have moved her feet. For this reason and for the reasons already stated, I prefer the evidence of the mother.
I find this incident constituted yet a further incident of family violence against the mother.
Final separation – counselling session mid-2020
During a counselling session in which the parties participated online from different locations, the mother told the father she wanted to separate. Her evidence is that the father said during this session that he would only let it happen over his "dead body" and that he would not allow her to leave him or separate him from the children and that it was not her "decision to make". The mother says the father's anger increased, he slammed down the laptop and she then received a notification he had turned off "find my phone" on Apple. The inference from this was that he was going to do something he did not want her to be able to see. The mother says the counsellor told her to go and get the children from school. She ran out onto the street, flagged down a stranger's car and went straight to the school.
The father denies that he said most of the things attributed to him by the mother in the counselling session, although concedes he said that he would not allow her to separate him from the children. He says that as a result the mother again became increasingly hysterical. The father does not appear to see that such a statement is, of itself, threatening in nature. He also concedes that he simultaneously switched off the mutual tracking app they had been using for four years which made the mother immediately concerned for the children's welfare.
The mother subsequently reported the matter to police who applied for an intervention order ("the IVO") to protect her and prevent the father from attending the school.
Breaches of Intervention Order
The mother says that in late 2020, the father followed her and the children home from McDonalds and that she feared if she pulled into the driveway that he would block her in and attack her. The father was apparently seen on CCTV driving around her house. The father was charged but the charges were withdrawn.
The mother says that there was a second breach of the IVO in late 2022 when the father attended the children's sports day. Whilst the father was not prohibited by the IVO from attending the sports day, the mother alleges that the father breached the order by constantly standing close to her at each event. The mother said she contacted police and asked them to contact the father and tell him to stop this behaviour. She emphasized she did not want him arrested but just to stop intimidating her. Nonetheless, the police attended and arrested the father. He has been charged with breaching the IVO, which he is contesting and at the time of trial the matter was awaiting a final hearing.
However, this Court has a different standard of proof than the criminal court. I accept the mother's evidence and find that it is more probable than not that the father breached the IVO by harassing and intimidating the mother at the sports day.
Violence directly inflicted on the children
The mother's evidence at paragraph 49 of her updated trial affidavit was that:
I have seen the Applicant be rough with the children on multiple occasions; grabbing, pulling, pushing, and dragging them. I saw him push [X]'s face to the floor when he refused to clean up a mess when we were living overseas. I have seen him throw [X] when he wouldn't go to bed. He would often shout at the children at bedtime. The kids kept telling me that they didn't like their father, that he hurts them when he's angry.
The mother's evidence was that X had consistently reported the abuse to her but that she did not want to believe it. Furthermore, when the mother decided to leave the father, she was cautious about what she told the police as she did not want to impact the father's career and did not think the children would make reliable witnesses in any event.
The father denies most of the allegations, in particular that he threw the children onto the bed or that he otherwise hurt them or swore at them. Although he did admit to carrying X by his wrists about 14 metres to take him to his room.
In the Family Report, it was observed at paragraph 12:
[Mr Nixon] said that he has never physically harmed the children, noting that he may at times have been angry in response to behaviour, which he considered could be appropriate, and he may have guided them to their bedroom, but he has never hit them. He did not consider there to be any risk for them in his care.
However, Ms L's evidence was, in relation to the incident where the father picked up X by the wrists, that "most parents would not necessarily say that that was something that they…calmly chose to do as the best … option" and that it "would typically fit with there being some level of…overwhelming stress for the parent".
For reasons already explained, I accept the mother's evidence in this regard. I am also concerned that where the father does concede his actions, he endeavours to minimise them using words like "guiding" the children rather than dragging them.
I find the father has subjected the children to direct physical and verbal family violence.
Are the children at ongoing risk of family violence?
The father' evidence includes a number of ways in which he says he has examined his part "in the breakdown of the relationship". These include seeking assistance from his GP in 2019 for his mental health and being prescribed with medication. He no longer sees that practitioner but attends another practice "on the odd occasion" he requires assistance.
The father also sets out in evidence his attendance upon various counsellors as well as the programs and courses he has completed. These include the P Program facilitated by the Q Authority as ordered following the Interim Intervention Order. Moreover, following the recommendations of Ms L in her Family Assessment Report dated 30th September 2021 he attended 7 sessions with Mr R. He has also attended the Circle of Security with T Centre and the Kids are First with V Centre.
Despite attending all of these programs throughout these proceedings, the father minimised his involvement in the family violence and attributed the blame to the mother.
In the first Family Report it was noted as follows at page 15:
[Mr Nixon] denied allegations of domestic violence, and said that it was [Ms Nixon] who was verbally, emotionally, psychologically, financially and physically violent towards him (it is noted these allegations were made in his Affidavit, but not in his Notice of Risk). [Ms Nixon] gave examples of [Ms Nixon] repeatedly kicking him, slapping him, or "gouging" at him with her fingernails.
Then by the time of the second Family Report at page 13:
[Mr Nixon] explained he is seeking primary care of the boys because he had taken time to reflect on his own experiences with [Ms Nixon] and could now see that it was she who engaged in coercive controlling abuse towards him.
In both reports the father's primary focus was how the mother was negatively influencing the children against him. Whilst there is some suggestion in the Family Reports that the mother has either intentionally or unintentionally influenced the children, there is overwhelming evidence, even on the father's case that he has perpetrated family violence.
Given the father has failed to take responsibility for the family violence he has committed, there remains a risk that he will subject the children to family violence in the future. Indeed, although the father denied putting lock holds on the children, his evidence was that they may be appropriate as they grow older in the event they were to physically attack him.
I find there is a strong possibility the father will resort to physical or emotional violence in the future when managing the children's behaviour, especially when he is under stress.
Are the children at unacceptable risk in the mother’s care?
The father asserts the children are at unacceptable risk of psychological harm if they live with the mother because she will continue to negatively influence the children against him.
The father argues that during the 2019 separation the mother severely limited his time and that post separation she did not allow any time until he issued his application in these proceedings. Furthermore, he says he had to file a contravention application in relation to two other periods where he did not see the children. However, I do not accept that the evidence shows an ongoing campaign by the mother to limit the father's time. Other than the two periods in the contravention application, the father conceded the mother had complied with the orders and had provided make up time where he had missed time. In fact in his written submissions, he notes she has offered him extra time.
In spite of this, the father argues the mother has done her best to make his relationship with the children difficult, including exaggerating their special needs. Examples provided by the father were again not persuasive. For example, he relies on a time when the mother took issue with Y spending time with him after a medical procedure. However on that occasion the mother sent Y, despite Y being unwell and attending in his pyjamas and dressing gown.
My assessment of the father's evidence is that he is rigid and inflexible in his approach to his time spending and highly critical of the mother's decision making at almost every point. In such circumstances it is likely the mother may have decided not to expose herself or the children to additional contact with him, such as at parent-teacher interviews, where it was not compulsory for children to attend. Whilst this ought not be condoned, it is understandable in the circumstances.
Indeed, the evidence shows that the mother was for the most part supportive of the relationship in spite of what I have found to be ongoing family violence. The mother's evidence was that she has always encouraged the children to attend, "even when it was difficult to do so internally" and even knowing that X in particular was quite anxious and fearful.
However, I find it is still probable that the mother has exposed the children to negative messages about the father as a result of being subject to his family violence and may have either directly or indirectly led them to believe there is something to be afraid of. I note however that Ms L did not think this was a deliberate or malicious attempt by the mother to impact the relationship. Indeed the father's relationship with the boys appears to have improved despite his limited time with them, which is not consistent with his assertions that the mother is somehow attempting to sabotage that relationship.
ADDITONAL CONSIDERATIONS
What are the wishes of the children?
In the second Family Report at page 15 Ms L made the following observations:
With such developmentally struggling children, it is not possible to be clear about their wishes. For [X], his communication challenges impact on this, and for [Y], his young age. Both children are also vulnerable to influence from a range of sources (e.g. exposure to their mother's concerns, how the most recent visit with their father went).
Accordingly, it is not possible to factor the children's views into my determination in this matter.
What is the children’s relationship like with each parent?
Ms L noted in the first Family Report that X had a close and loving relationship with the mother. He said "his mother helps him feel better when he is sad, she gives the biggest hugs, she makes him laugh, she is fun to be with, she cooks good food and she helps with his homework" whereas there was "some ambivalence" towards his father. Y was reported to be similarly close to his mother and scared of his father.
Nonetheless, despite some fear and some ambivalence in the first report, by the second report Ms L noted at page 16:
[Mr Nixon] has been successful in building and maintaining a supportive emotional relationship with [X] and [Y] in the 6-hour weekly times together. This overall is working for the boys.
The observations of the children with the father were very positive. Ms L observed Y kissing the father and to sit closely to him and leaning on him at times as well as sitting on his lap.
Overall Ms L's assessment was:
Again, what was clear was that while the children, based on the observed interactions with both parents, clearly enjoy relationships with both parents, their closest emotional support is their mother, not unexpectedly in the circumstances where she has been providing the bulk of their care since separation.
Have the parents fulfilled their duty to maintain the children?
The father has been assessed to pay child support by the child support agency. The father has subjected the mother to repeated reviews of the assessment through the Administrative Appeals Tribunal and has made claims for reimbursement for costs paid to third parties for amounts as small as $18. The father could not concede that this placed an administrative burden on the mother, on top of already caring fulltime for two children with special needs.
The father also sought to be the children's representative for the purpose of managing their funding the through the National Disability Insurance Scheme (the "NDIS"). The mother's evidence is this led to further administrative reviews and in X's case to a suspension of his services for over 6 months.
The mother argued that the father was using these processes to harass her because he was otherwise prohibited from contacting her because of the IVO. Whilst I am unable to find that this was his motivation, regardless, it is likely to have made the mother's care of the children more arduous.
The mother's evidence was as follows at paragraph 227 in her trial affidavit dated 13 February 2023:
Barely a day goes by when I don't have to deal with phone calls, respond to correspondence and/or provide information including financial information to the Child Support Agency, the AAT, NDIS or the solicitors engaged by the AAT due the actions of the Applicant in challenging anything and everything. I often spend hours in the evening once the children are in bed asleep answering emails/correspondence and gathering information. I am also required to attend at the AAT on dates when the appeals are listed. This behaviour has had a direct and significant impact on the children, as well as my health and employment.
What would be the impact of any change on the children?
The children have complex developmental needs. In addition to their various diagnoses. Ms L noted in the first Family Report at page 18:
[X] is seven years old and clearly emotionally and developmentally vulnerable… He is significantly behind his peers in his literacy skills, his communication skills are compromised, his emotional regulation skills are limited, he does not have any friends, and he is experiencing ongoing anxiety. [X] also continues to experience night-time wetting. Clearly the most pressing need for him at this stage is to further investigate and ensure support is in place for these significant developmental concerns.
[Y] too is highly vulnerable, given his young age, his own poor emotional regulation, his frequent inappropriate behaviour at school/out of school hours care, involving regularly being sent home, his sensory issues, social skill deficits, and tl1e chance that he too may be on the Autism Spectrum. Additionally, his vision requires intervention, and he has been diagnosed with [a medical condition], requiring treatment both in and out of hospital, and reportedly with some unpleasant side effects. Supporting [Y] in these areas is, in the writer's view, the priority.
The evidence from X's psychologist was that he continued to experience high levels of anxiety around trying new things and changes to his routine and had ongoing difficulty with emotional regulation. He had also indicated feeling scared and upset about his father.
The evidence from Ys' psychologist was that in the 12 months prior to the first Family Report there had been a severe increase in Y's behavioural issues where he would "frequently lash out in a physical manner, including scratching, punching and biting". Furthermore, "[Y] is very limited in his ability to verbally communicate his needs and internal states and so subsequently resorts to extreme gestures of communication which include physically lashing out at others".
It was Ms L's opinion that at the time of the first assessment the children were "significantly struggling" and that "they would be unlikely to manage an extension to time purely from a developmental basis". She was of the view that "continuing the current arrangement allows the children stability and consistency from their mother in terms of her behavioural and emotional support". At the second assessment, this opinion had not changed. At page 16:
However, introducing more time at this stage risks disrupting the children, when stabilising them developmentally and helping them to achieve whatever their respective potentials needs to be the primary goal. There is no indication from [Mr Nixon]'s presentation that he would follow [Ms Nixon]'s approach to routines (e.g. if overnight) and he may not heed professional advice, having concerns about the basis for that advice. He does present as having perceived, or accepted, the level of developmental vulnerability that others around the boys have, and the need for intervention. These boys in particular need structure and consistent routines. There is no benefit to the boys in increasing the demands on them to be adaptive/flexible (to different parenting approaches if time increases). They do not have the capacity and it would very likely compromise any developmental progress.
Under cross-examination Ms L reiterated the paramount consideration needs to be the children's level of vulnerability and their developmental needs. It was her view they needed minimal stress in order to engage properly with their supports and that the priority needs to be supporting their developmental challenges which have not progressed thus far. She said the children do not have any resilience to juggle additional stress in their lives. She noted even small changes such as a new sports teacher lead to overwhelming negative emotions. She emphasised the need for early intervention and to keep things stable and constant.
Ms L also observed that the children would be affected by their mother's heightened state and that this would in turn impact on the progress the children are likely to make with their developmental needs. Ms L's evidence was:
The stress involved in being fearful for her own safety and for the children's safety and wellbeing because…there are concerns around physical risks, lack of empathy, a lack of understanding, a lack of flexibility… there's concerns about the children's.. psychological wellbeing in the care of their father…all of that…creates a level of stress that can compromise the amount of physical and emotional energy that she has to attending to the many, many other demands on her as a caregiver.
Ms L's evidence was that:
Before significant changes to parenting time could be recommended, the children would need to have demonstrated consistent progress. The writer is unable to say how long this may take, but it would at minimum be a year of consistent interventions, which cannot happen until adequate resources can be established through NDIS and any other sources of funding (i.e. not a year from the finalisation of this report, at least a year on from the children having regular input from the various professionals involved (e.g. psychology, occupational therapy, speech pathology, supports at school, etc.)).

Furthermore, Ms L was of the opinion that the current arrangements for the children were sufficient for them to have a successful relationship with the father without compromising their developmental needs.
Despite this evidence, the father's proposal is not just for an increase in time with the children but that the children live with him. Quite incredibly, he did not think the children would find it significantly distressing to be removed from the mother's primary care. The fact that the father does not acknowledge the likely impact on the children of such a move is seriously concerning. The father's submissions are essentially that the children are resilient as they have undergone a lot of change in their lives; changing countries, changing houses, changing their family unit and their time spending. However, this belies the one fundamental constant in their lives and that is that their mother has always been present during these changes. The father believes this will be cured by a slow transition into his care, however, there is no evidence to support that. He argues that as there has been no improvement in the children in the last two years, there is no reason to believe a change would undermine their stability. This is not only illogical, but it fails to in any way acknowledge the issues raised by Ms L.
Furthermore, the father has a new partner who was not on affidavit, did not attend either family report nor was she called as a witness. The father was very clear he did not want the mother to even know the identity of his new partner. Despite this, he proposes the children live primarily with himself and his new partner. Nothing is known about her background, how the children relate to her, what practical assistance she is willing to provide and whether she could manage their behaviours.
In any event, the evidence was overwhelming that the children's emotional and developmental needs would likely be compromised by any significant change to the current care arrangements.
What is the capacity of each parent to meet the children’s needs?
The children see multiple specialists as set out in the mother's affidavit in reply at paragraph 224, which was accepted by the father in cross-examination. These include a paediatrician, as well as physiotherapists, podiatrists, speech therapists, ophthalmologists, ENT's rheumatologists, and psychologists.
The most recent assessments of the boys are both very concerning. Evidence from X's psychologist is that he is regressing and withdrawing from engagement at school and with friends. In regard to Y, his behaviour continues to deteriorate at school, including absconding from school multiple times per day and refusing to return.
Ms L reports in the second Family Report at pages 8 and 9:
[Mr W] said that [Y]'s aggressive behaviour significant damage to others, and [Y] has no regard for his own safety when dysregulated (e.g. attacking older/bigger children, at times self-harming, for example, [Mr W] has observed [Y] to claw "savagely" at his own face). [Mr W] said that [Y]'s dysregulated behaviour is more severe than he has seen in other children, and that he considered [Y]'s issues to present as severe.
Disturbingly the father in the Family Report rated Y's behavioural and emotional functioning as age appropriate in all areas. Furthermore, despite allegedly accepting the various diagnoses, the father appears to challenge the need for all of their interventions as follows at page 14:
He said it is his belief that [Ms Nixon] relies on the children receiving a range of diagnoses to create dependence on her going forward. He was concerned that the children do not get time to be children, they are always at appointments, which also impact on school, and that [Ms Nixon] was effectively "tying the children to a range of therapy or interventions that subtract from the children having a childhood".
There is therefore considerable doubt as to whether the father would follow any recommended treatments or interventions.
Furthermore, there was also evidence that the father lacked insight into the children's emotional needs. For example, during his limited time, he convinced the professional supervisor Mr Z to allow him to take X for a flu vaccination. His reasoning was that "a few weeks earlier [the mother] has taken [Y] to get a flu vaccination without my knowledge or consent". It appears the father felt it was more important that he be able to exercise his right to be involved in the vaccination process rather than focusing on his time with the children.
As was noted in the first Family Report at page 19:
There may also be a need for [Mr Nixon] to review how he can demonstrate his child focus in a more child friendly way (e.g., allowing [X] to have his flu vaccination with his mother, who he is closest to and feels most secure with, rather than determinedly insisting against advice that he should be able to do such parenting tasks during his supervised visit.
Furthermore, Mr Z, noted in his report dated 5 May 2021 at paragraph 189:
…I consider that it may not have been the most child focused thing to do at the time particularly because of [X]'s reported discomfort with needles. I would have preferred if [Mr Nixon] did not do this activity. It is generally beyond the scope of what my practice is designed to provide. [X] expressed his discomfort in several ways through the visit.
Indeed, the father conceded in his evidence that X was very hesitant to have the injection and it took the reassurance of the father, the supervisor, and the doctor for it to take place.
There were a myriad of other examples that I have already referred to in this judgment that illustrate the father's failure to place the children's needs first including insisting Y attend a visit with him when not well and his pursuit of control over the NDIS funding (to the detriment of X).
What is the parents’ attitude to the responsibilities of parenting?
One of the responsibilities of parenting is ensuring the other parent is kept informed about the needs of the children. In this case the father argues that the mother has failed to keep him up to date in relation to the children's medical needs.
The mother's evidence was that she has done her best to provide information to the father but that sometimes she has been late. She said she did not get a chance to respond to his emails until late at night and that with these legal proceedings, the criminal matters, and other competing demands, she may not provide the information straight away. The competing demands included working fulltime and caring for the children fulltime which involves taking them to their various appointments and collecting Y from school at short notice due to his behavioural issues. Adding to the burden on the mother is that Y is no longer allowed to attend after school care or the AA Centre social skills group because of his behaviour. Her evidence on this issue was compelling.
Having heard all of the evidence, I find the mother has done her best in very difficult circumstances to keep the father up to date with the children's medical information.
In addition, the question must be asked as to why the father could not get the information directly from service providers. In the second report it was noted that the father was being provided information directly from X's psychologist after each session but that he does not respond to her emails.
As noted in the first Family Report at page 14:
She [the mother] said that he continues to demand from her "high level" medical information (e.g., seeking information regarding diagnoses, length of treatment, prognosis) but he does not attempt to get information directly from the treating practitioner(s). She noted he may say he does not have time or the money to do so, but that creating the time is a parental responsibility, and that even when practitioners have gone out of their way to make sure he is included (e.g., the speech pathologist reportedly emailing him) he does not respond. She felt there was an ongoing element of control of her in this behaviour.
Obtaining this information directly is all the more important because the father clearly does not trust the mother to provide him with both accurate and sufficient information. The father has consequently filed four freedom of information applications to obtain information. This included seeking proof that the children had attended for a COVID test in circumstances where they had missed time with him. This was despite being provided with make-up time.
WHAT ORDERS ARE IN THE BEST INTERESTS OF THE CHILDREN?
In this judgment I have made a finding that the father has repeatedly engaged in family violence including behaving in a violent and aggressive manner towards both the mother and the children and due to his limited insight that the children are at unacceptable risk of physical and psychological harm in the father's care. The father also appears to have limited insight into the children's psychological and developmental needs or how to meet them.
Nonetheless, the children's relationship with the father appears to have been improving and the observations in the latest report were positive.
Pursuant to the Full Court authority of Isles & Nelissen I must consider the magnitude of the risk to the children and whether it can be ameliorated through orders.
The mother's evidence in the first Family Report, was as follows at paragraph 13:
[Ms Nixon] said that things were always at their worst at night, and it was "very very stressful", and it was reason she did not believe the boys would manage overnight time with their father.
The evidence shows that when stressed the father has resorted to manhandling the children. The children, in particular Y, have exhibited very challenging behaviours. There is an unacceptable risk in my view that if the father spends extended periods, including overnight when they are most dysregulated, that he would become overwhelmed and resort to tactics such as carrying them, applying lock holds to restrain them, yelling at them or physically disciplining them.
However the father appears to have been coping with the current arrangements. There have been no examples of issues arising during his limited periods with the children. Furthermore, the time appears to be working for the children and their relationship with the father improving.
In any event the evidence of the children's psychologists and Ms L was clear. The children's developmental and psychological wellbeing would be compromised if there was any substantial change to the care arrangements at this time.
Accordingly, I find that the arrangements which are in the best interests of the children are a continuation of the current orders with some slight variations which I shall now address in turn.
School holidays
Ms L was of the opinion the children may cope with an additional day in the term holidays and couple of extra days in the long summer holidays. Furthermore, there is likely to be less stress during the holidays as well as less disruption to the children's routines. I will accordingly order an additional day in term holidays as well as three additional days, rather than two, during the long summer holidays, given the length of the holiday.
Special occasions
The mother proposes her orders on the basis that are in keeping with the recommendations of Ms L and they line up with the contact centre availability. The father however seeks an additional day on the Father's Day weekend and on any weekend on which the children's birthdays fall. The father's proposal would require the parties meeting up at McDonalds and may mean two consecutive days however given these occasions will only be infrequent, I am of the view the benefits to the children of seeing their father on those occasions outweighs the negatives such as the potential exposure to conflict and disruption to their routine. Accordingly I propose to make orders that Father's Day time and birthday time occur in addition to the Saturday time but in keeping with my findings this should be for the same six hour period if a Sunday and for a shorter period if after school to ensure they children are returned home in time to spend some time with the mother and complete their evening routine.
In regard to Christmas Day, I propose to make orders as proposed by the father, being from 3:00 pm until 9:00 pm. This limited period is consistent with the findings I have made about risk and the later return is acceptable given it is a one-off occasion in the school holidays.
Parental responsibility
In terms of parental responsibility, as set out at the beginning of this judgment, the father conceded that the primary carer should have sole parental responsibility and accordingly this shall rest with the mother. However, I am not going to require the mother to consult with the father before making any decisions. It is clear on the evidence that the father is likely to use such opportunities to harass her for further information which as I have observed makes an already difficult parenting situation more onerous.
Furthermore, as observed by Ms L in the first Family Report at page 19:
… while [Mr Nixon] has indicated he seeks to mediate/work cooperatively with [Ms Nixon], asking this of her if she remains afraid of him due to past alleged behaviour is unrealistic.
Accordingly, the mother will be ordered to notify the father but not consult with him about long term decisions affecting the children.
Information in relation to the children
The father proposes orders that would enable each party to receive information about the children from the school and any health service. However the mother should only be required to keep the father informed of the names and phone numbers of the children's educational facilities and treating medical and allied health practitioners. It will then be the father's responsibility to avail himself of the information.
Communication
The father proposes orders that the parties communicate with each other via email (or via text or phone call in a medical emergency). The mother is silent in her submissions about these orders. However, I remain concerned about the propensity for the father to use communication to harass the mother. Accordingly, I am going to provide a specific time frame in which the father can contact the mother after his time with the children and in which she is to respond.
Otherwise, the father will be restrained from contacting her save in an emergency. I do not propose to make an order that the children be at liberty to telephone or communicate with the other parent at any time they wish. The mother is concerned the father will use this as an opportunity to communicate with her, which is a possibility, but in any event may be perceived by the mother as an intrusion by the father into her home. It also may result in the children playing one parent against the other in the event of a disciplinary issue. Instead, the parties have agreed to set times for video calls between the children and the other parent.
Handovers
The mother seeks that handover occur at the B Children's Contact Centre to reduce the risk of the children's exposure to conflict between the parties. Given my findings about family violence, the children would be at risk of such conflict and therefore it is in their best interests for the handovers to continue to occur at that centre. However, if the centre is not available, the nearest McDonalds would be the next best option, given it is a public place and would likely have CCTV cameras.
As the handover will be occurring primarily at the contact centre it is not necessary to limit who can attend. Either party is at liberty to nominate another person to facilitate the changeover, subject to the other restraints in these orders. Furthermore, there is no need for any direct communication between the parties. If either party is unable to attend or is running late, they can advise the contact centre.
Extracurricular activities and school events
Given my findings as to the father's behaviour at the school sports event it is not in the best interests of the children that he attends school events or extracurricular activities when the mother is present. This would expose the mother to risk of family violence which I have already noted has flow on effects for the children, whether they witness this or not.
I propose to make orders that each party can attend school events or extracurricular activities when the children are in their care but are otherwise restrained from being in attendance unless the other parent notifies them that they will not be attending.
Each parent shall be at liberty to enrol the children in extracurricular activities during their time.
Injunctions
The mother seeks a restraint on the children being left unsupervised with the paternal uncle, Mr C. Mr C lives in City BB and spends infrequent time with the children. In my view it would not be in the best interests of these children, given their special needs, to be left unsupervised with any person, including the paternal uncle, who is likely to be unfamiliar with those needs. Accordingly, I propose to make the restraint as sought by the mother.
The father seeks an order that each parent be restrained from physically disciplining the children. The mother is silent about this order. Given my findings I propose to make such an order but only with respect to the father as there is no evidence to support such an injunction with respect to the mother.
Otherwise the parties have agreed to certain injunctions related to the father which I shall make by consent including verbally or physical abusing the children or permitting any other person to do so and leaving the children in the care of the paternal grandmother. The father seeks the injunction with respect to verbally or physically abusing the children also be mutual but again there is no evidence to support the need for such an injunction in regard to the mother. However in light of my findings I shall make the non-denigration order mutual.
Section 68Q declaration
Pursuant to s 68P of the Act, where a Court makes a parenting order that is inconsistent with an intervention order the Court must specify in the order that it is inconsistent with that order. The father seeks a declaration be made retrospectively to cover earlier orders. However, I am not aware, even if I was prepared to do so, of the ability to make such a declaration retrospectively. Nonetheless, I was informed the IVO contained the standard exceptions for behaviour permitted by an order of a Court exercising powers under the Act. However in case this is not correct, I will make a prospective declaration that to the extent that any IVO is inconsistent with the orders being made this day, that order is invalid.
Passports
I note the father does not seek to press his order for the surrender of the children's passports in circumstances where the children remain living with the mother.
Suspension of time during long summer holidays
I am also going to make an order that the mother be permitted to suspend the father's time in the long summer holidays for up to two weeks, subject to giving the father sufficient notice and provided it does not coincide with Christmas Day. The mother will have the predominant care of the children and works full time. It is important that she is able to take longer breaks with the children so she can ensure she is in the best frame of mind to be able to maintain this role. In my view two weeks gives her the opportunity to take a longer holiday whilst ensuring there is not too long a gap between the father seeing the children.
Variation to these orders
The father proposes an order the parties attend dispute resolution no later than 90 days before each child completes primary school. It is unclear to me for what purpose. The mother has sole parental responsibility and therefore is at large to determine the schools the children attend. Otherwise, the parties are required under the rules to attend dispute resolution before issuing any further proceedings. As such, I do not propose to make such an order.

The final order sought by the father is that the parties be at liberty to agree to vary these orders. Making such an order potentially subject the mother to ongoing pressure by the father to vary the orders. I do not propose to make the order.
For all the aforementioned reasons I make the orders as set out at the beginning of this judgment.

I certify that the preceding one hundred and eighty-five (185) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins.
Associate:
Dated: 1 February 2024

File number(s):	ADC 4209 of 2020
Judgment of:	JUDGE JENKINS
Date of judgment:	1 February 2024
Catchwords:	FAMILY LAW – parenting – final hearing – unacceptable risk – children with complex special needs – family violence substantiated – whether risk can be ameliorated – insight into family violence and the impact on children – orders made for children to live with mother and sole parental responsibility – day time only with father
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61DA, 65D, 65DAC, 68P, 68Q
Cases cited:	Grella & Jamieson [2017] FamCAFC 21 Isles & Nelissen [2021] FedCFamC1F 295 Masson & Parsons [2019] HCA 21; (2019) 266 CLR 554 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92
Division:	Division 2 Family Law
Number of paragraphs:	185
Date of last submission/s:	25 May 2023
Date of hearing:	6-9 March and 5 May 2023
Place:	Melbourne
Counsel for the Applicant:	Ms Boyle
Solicitor for the Applicant:	C M Tucker & Associates
Counsel for the Respondent:	Ms Miller
Solicitor for the Respondent:	Marie Stokes Family Lawyers

ADC 4209 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR NIXON Applicant
AND:	MS NIXON Respondent

ORDER MADE BY:	JUDGE JENKINS
DATE OF ORDER:	1 FEBRUARY 2024