Pacotto & Galvin - [2025] FedCFamC1A 27

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pacotto & Galvin [2025] FedCFamC1A 27

Appeal from: Galvin & Pacotto [2024] FedCFamC1F 582

Appeal number: NAA 248 of 2024

File number: SYC 5557 of 2019

Judgment of: ALDRIDGE, JARRETT & CAMPTON JJ

Date of judgment: 26 February 2025

Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the heart of the appeal is the assessment as to whether the father poses an unacceptable risk of harm to the child – Where the grounds of appeal assert mixtures of complaints as to legal, factual, and discretionary error – Where the primary judge correctly identified the applicable legislative framework and principles – Where the errors alleged by the father cannot be sustained on a plain reading of the reasons – No error demonstrated by the primary judge – Appeal dismissed – Costs ordered in favour of the mother and the Independent Children’s Lawyer.

Legislation:
Evidence Act1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60CG, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 7, Sch 3, rr 1.04, 12.17 and 13.23)

Cases cited:
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25

Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221

Blinko & Blinko [2015] FamCAFC 146

Cizek & Mihov (2024) FLC 94-206; [2024] FedCFamC1A 151

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84

House v The King (1936) 55 CLR 499; [1936] HCA 40

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Kellerman & Kellerman [2024] FedCFamC1A 126

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

Yarrow & Yarrow [2022] FedCFamC1A 135

Number of paragraphs: 113

Date of hearing: 7 February 2025

Place: Sydney

Solicitor Advocate: Mr Reeve

Solicitor for the Appellant: Marsdens Law Group

Counsel for the Respondent: Ms Reid

Solicitor for the Respondent: Walter & Elliott Family Lawyers Pty Ltd

Counsel for the Independent Children's Lawyer: Ms Davey

Solicitor for the Independent Children's Lawyer: Sydney West Family Lawyers
ORDERS

NAA 248 of 2024
SYC 5557 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR PACOTTO

Appellant

AND:
MS GALVIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALDRIDGE, JARRETT & CAMPTON JJ

DATE OF ORDER:

26 FEBRUARY 2025

THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the costs of the respondent fixed in the sum of $35,000 and the costs of the Independent Children’s Lawyer fixed in the sum of $4,356 within 28 days of the date of these orders.

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

By way of a Notice of Appeal filed on 30 September 2024, Mr Pacotto (“the father”) appeals from 26 orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 2 September 2024 regulating the parenting of X (“the child”), who was born in 2016 and is currently eight years old. Ms Galvin (“the mother”) and the Independent Children’s Lawyer (“the ICL”) oppose the appeal.
Notwithstanding the Notice of Appeal challenged all the orders made, the father confirmed at the commencement of the appeal that he did not challenge the orders for the mother to have sole parental responsibility for the child, for the child to live with the mother and be able to travel internationally with her, for the father to communicate with the child by way of letters and gifts on six occasions each year, for the father to undertake up to four hair follicle testing procedures for illicit drugs for a period of 12 months, injunctions restraining the father from consuming alcohol or illicit substances in the period of 48 hours prior to and during the time with the child, and an injunction restraining both of the parents from abusing or denigrating the other or members of their respective families to or in the presence of the child, or permitting any other person to do so.
The orders remaining under challenge on appeal are:
Time Spending and Communication
5. Henceforth the father shall spend time with the child on the first Saturday of each calendar month from 9.00 am until 4.00 pm.
6. The father’s time spending with the child shall at all times be supervised by B Contact Centre or any other professional supervision service as agreed between the parties from time to time, and failing agreement, as nominated by the mother in writing on the parenting app provided for in Order 16, and in relation to the same:
(a) The father shall be solely responsible for the costs associated with B Contact Centre or any other service; and
(b) Each of the parties shall do all acts and things required of them to comply with the guidelines of B Contact Centre or any other service.
7. Handover for the purposes of the father’s time spending shall take place outside the home of the father, between the mother and the supervisor.
8. The child’s time with the father in Order 5 shall be suspended if the father misses three (3) consecutive visits without any reasonable excuse.
…
14. For a period of 12 months from these orders, the father shall submit to CDT testing at the written request of the mother, and in relation to the same:
(a) Any request by the mother shall be made on the parenting app provided for in Order 16;
(b) The mother shall be permitted to request up to four (4) such tests;
(c) The father shall submit to such testing within 24 hours of any request being made;
(d) The cost of the testing shall be met solely by the father;
(e) The father shall provide the mother with written confirmation (on the parenting app provide for in Order 16) that he has submitted to testing forthwith upon doing so, with such written confirmation to include the details of the service provider utilised; and
(f) The father shall authorise any service provider to release any information and report about such testing directly to the mother and to the extent that it is necessary these orders shall stand as authority for that information and report to be released to the mother.
For the reasons that follow the appeal is dismissed.
BACKGROUND
The mother was born in early 1985 and is currently 40 years old. The father was born in mid‑1985 and is currently 39 years old. They married in early 2016. The mother left the parties’ home and commenced living with her parents sometime in December 2016, prior to the birth of the child. Following the child’s birth, the mother continued to live with her parents. The parties separated on 25 February 2017. The child has lived with the mother since birth.
From separation until August 2019, the parties negotiated an arrangement for the child to spend time with the father twice each week, and on each alternate Saturday. That arrangement ceased following a verbal altercation between the parties in August 2019. The police attended. Between August 2019 and 5 September 2019, the father did not spend time with the child.
On 22 August 2019 the mother commenced proceedings in the Federal Circuit Court of Australia (as it then was) by way of an Initiating Application seeking orders regulating the parenting of the child. The parties, with the assistance of their respective solicitors, agreed that the father would spend professionally supervised time with the child for three hours each Friday.
Between the hours of 4.40 am and 6.33 am on a date in September 2019 the father, whilst intoxicated, sent the mother 34 text messages containing abusive language that the father conceded was threatening and intimidating (at [84]). The reasons record that the messages included threatening the mother’s ability to work, calling the mother and the maternal grandparents derogatory terms such as “bush pigs” and a “thief”, threatening that he was “coming for” the child, asserting that other people had “naked photos” of the parties, and directing the mother to “bow to me bitch” (at [84]). The father further conceded that across the same period he sent text messages containing similar language to the maternal grandfather (at [85]). Findings were made, unchallenged on appeal, that the father’s conduct was designed to coerce and control the mother into meeting his wishes and demands with respect to the child (at [84]).
Thereafter the father was arrested and charged with an offence. A provisional Apprehended Domestic Violence Order (“ADVO”) was made on the same day prohibiting and restricting the father’s behaviour for the protection of the mother.
In late 2019 the father entered a plea of guilty to the criminal charge. He consented to a final ADVO for a period of two years for the protection of the mother. The ADVO expired in late 2021.
On 30 October 2019 orders were made that provided for each parent to undergo hair follicle testing for the presence of illicit substances within seven days.
In the month following the criminal charge the father was sentenced in relation to the charge. A Community Correction Order was imposed. This sentence was reduced on appeal to a Conditional Release Order, and no conviction was recorded.
On 4 February 2020, following a contested hearing, interim parenting arrangements were determined by a judge of the Federal Circuit Court of Australia for the child to live with the mother and spend professionally supervised time with the father for three hours each Friday, and for the father to undertake hair follicle testing. From November 2019 to November 2020, three hair follicle tests produced positive results for an illicit drug.
In early 2020 the father made professional misconduct allegations against the mother to the relevant professional regulatory body. He conceded the complaint was made with no proper foundation (at [96]). The primary judge found that this complaint appeared to be an attempt by the father to “make good his threat” to the mother in the text messages sent in September 2019 (at [100]) and that he sought to intimidate the mother and damage her financial security.
In mid-2020 the weekly supervised time between the father and the child reduced to occur each fortnight. In early to mid-2021 they moved to a monthly basis (at [21]).
Between March 2020 and July 2021, the father sent written messages to his cousin’s former wife, Ms Q, asserting falsehoods and referring to the mother in a derogatory fashion. The primary judge found that the messages were designed to negatively influence third parties and mutual friends against the mother, and isolate Ms Q and the father’s brother-in-law from socialising with the mother and/or the child (at [106]).
In August 2021 the maternal grandparents commenced residing with the mother and the child.
Dr G was appointed as the single parenting expert pursuant to ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and produced a Family Report dated 28 February 2022. The child attended upon Dr G for an appointment after the report was published. The observations and conclusions from that appointment were provided by way of oral evidence (at [41]). The expert was cross-examined.
On 8 March 2022 the proceedings were transferred to the Federal Circuit and Family Court of Australia (Division 1).
On 12 May 2022 orders were made for the father to complete a Men’s Behavioural Change Program. On 15 December 2023 a U Family Services report recorded that the father had completed one course and was one session off completing the “Men’s Behaviour Change” Program (Exhibit H3).
The father adduced evidence from his treating psychologist, Ms K, upon whom he had attended approximately five times in the lead up to trial (at [73]). Ms K prepared a report in early May 2024 after four sessions with the father. The primary judge did not place any weight on the opinion of Ms Kthat the father had made “concerted efforts to learn and grow” from his experience (at [77]) because:
76 …
(a) On 15 May 2022 the father was ordered to engage with [another identified psychologist] and obtain a report after three months of treatment, however he failed to comply with this order.
(b) It does not appear that any of the father’s therapists have read the report of Dr G which the father was directed to provide to the practice pursuant to court orders made 15 May 2022 with the specific purpose of his therapy being directed to working on the concerns raised in Dr G’s report.
(c) The father has not identified or acknowledged the extent of his poor behaviour with any of his therapists, and in particular his coercive and controlling behaviour that took place during the marriage and prior to the [September 2019] text messages, together with his poor behaviour throughout the post separation period (discussed throughout these reasons).
The father elected not to spend any time with the child from January 2024 until a weekend during the final hearing. The primary judge found, absent challenge on appeal, that the father’s approach to spending time with the child was “lacking in child focus” and that he had been “haphazard” and “self-centred” in making arrangements for spending time, giving minimal warning to the mother about his plans, not taking up time afforded to him by the orders, and giving notice to the mother through a contact service (at [162]). The primary judge found that the father encountered challenges in appreciating the impact of these uncertainties on the mother and the child, being reflective on his inability to think beyond his own wants and needs.
The proposals of each of the parties and the ICL at trial
The mother’s position at trial was for she to have sole parental responsibility and for the child to live with her and spend no time with the father, or in the alternative for any time with the father to be professionally supervised by B Contact Centre, a professional supervision service (at [4]). The mother’s case was that the father presents an “unacceptable risk of harm” to the child, predominantly in the form of emotional and psychological harm, and that the “only way that [the child] can be kept safe” is for the father’s time with the child to be supervised (at [82]).
The father’s primary position was for he and the mother to have equal shared parental responsibility for the child, for his time with the child to move away from professional supervision, and for he to spend time with the child on an incrementally increasing basis to include overnight time and each alternate weekend (at [5]). In the alternate, he sought for his time with the child to be supervised by the paternal grandmother, or in the second alternative to be supervised by B Contact Centre (at [6]). The primary judge therefore identified that the parameters of the father’s case was restricted by time being spent either unsupervised, or supervised by the grandmother or by a professional contact service (at [138]).
The ICL’s position at trial was for there to be time spent between the father and the child on 12 occasions each year, and for such time to be professionally supervised by B Contact Centre (at [7]).
The conclusions of the primary judge
The central issue at trial was whether the father posed an unacceptable risk of harm to the child. As will be seen later, the primary judge made findings, absent challenge on appeal, that the father had perpetrated family violence by way of coercive and controlling behaviour upon the mother (at [84]–[85], [88], [92]–[93], [100]–[101], and [106]–[109]) and found:
110 As I have earlier identified, I am satisfied that there is an appreciable risk that the father will continue to commit acts of family violence towards the mother in the future.
(Emphasis added)
The primary judge made findings as to the father’s historic use and consumption of illicit drugs and alcohol at [111]–[126] and concluded:
127 When all of these matters are taken together, the Court is left with an inability to exclude the father’s illicit drug use and alcohol consumption as a risk factor to be taken into account when considering the parenting orders that would meet [the child’s] best interests and keep her safe from harm.
As to the risk of harm to the child posed by the father, the primary judge concluded:
130 I have identified earlier in these reasons that there is a need to protect [the child] from harm when spending time with the father (emotional and psychological) as a result of the family violence the father has perpetrated and continues to present as a risk of perpetrating in the future, together with the harm that would flow to [the child] if the father was affected by drugs or alcohol when spending time with [the child].
131 I have also identified that I accept the opinion of Dr G, that supervision of the father’s time spending with [the child] would significantly ameliorate these risks of harm. I additionally consider that targeted injunctions and ongoing testing, coupled with supervision ameliorate the concerns about the father’s illicit drug use and alcohol consumption.
132 Having come to these conclusions, it is apparent that in undertaking the evaluative exercise discussed in Isles, I do not accept the mother’s contention that the father presents an unacceptable risk of harm.
133 Illustrative of the suitability of supervision is that it has been protective of [the child] to date, and it has enabled [the child] to develop a relationship with the father and the paternal family in a safe way. Whilst I accept that the success of this arrangement might suggest that it would be safe to move away from supervised time spending, for the reasons that I have discussed throughout these reasons, I do not consider that [the child] would be safe and protected from harm and/or the risk of harm if there was to be unsupervised time spending.
(Bold and italicised emphasis added)
THE APPEAL
There is a presumption at law that a primary judge’s decision is correct, the onus resting on the appellant to show otherwise (Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621). The relevant principles which govern appeals from discretionary judgments such as that under appeal are well known. Error of the type identified in House v The King (1936) 55 CLR 499 (“House v The King”) must be established. There, the majority of the High Court said at 504–505:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…

The weight given to evidence in the exercise of discretion in making parenting orders that promote the best interests of children is a matter quintessentially for the primary judge. As identified in Kellerman & Kellerman [2024] FedCFamC1A 126:
22There is no doubt that in making parenting orders, the Court is exercising a very broad discretion. In CDJ v VAJ (1998) 197 CLR 172 the majority said “The evidence in residency cases is often such that the same body of evidence may produce opposite but reasonable conclusions.” (at [140]). They added:
152.The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G [[1985] FLR 894 at 897–898], Lord Fraser of Tullybelton pointed out:
“The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.”
23The burden placed on an appellant seeking to establish that a discretionary decision is unreasonable or plainly wrong is thus a heavy one.
(Emphasis added)
The purpose of a Notice of Appeal is to identify with precision where error is to be found in a judgment under appeal, whether it be an error of fact, law, or general principle. As will become apparent, the Notice of Appeal raises 12 grounds of appeal constructed in a narrative style and amalgamating differing contended appellate errors or repeating them in separate grounds.
The father’s Summary of Argument (filed on 6 January 2025) adopted a grouping of grounds with headings as to “unacceptable risk”, being Grounds 1 to 4 and 7, and then as to “Flawed Reasoning [or] Lack of reasons”, being Grounds 5, 6, 8, and 9. It then devolved into a discussion format, absent orientation to the grounds, making submissions as to topics of “Imposition of supervised time”, “Long-term or indefinite supervised time is not preferred”, “Rejection of Paternal Grandmother as Supervisor”, and “Ongoing Alcohol Testing”.
Rule 13.23(2)(a) of the Rules requires the setting out of a statement of the arguments and the points of law or fact and the authorities relied on for each ground (together with references to the relevant pages of the Appeal Book and transcript). At the hearing of the appeal, the father could not explain why he had not complied with the rule.
The approaches adopted by the father in the construction and delivery of his complaints generated self-imposed challenges in his prosecution of the appeal. Notwithstanding, the focus of his contentions as to error are that the primary judge “erroneously exercised [the] discretion by making parenting orders that do not address the risks that [the primary judge] identified and do not explain why alcohol testing, supervision, or the limiting of time or communication with [the child] are in her best interest” (father’s Summary of Argument filed 6 January 2025, paragraph 5). His primary complaints are intertwined in Grounds 2 and 5 and are repeated, in differing guises, in other grounds. Grounds 2 and 5 will be considered prior to the remaining grounds.
CONSIDERATION
Ground 2 – “[The primary judge] correctly identified the relevant authorities concerning the assessment of risk and unacceptable risk. [The primary judge] correctly finds that there is no unacceptable risk. [The primary judge] then mistakenly applies a test of ‘appreciable risk’ and makes orders for ongoing supervision. [The primary judge] does not weigh or consider the likelihood of further family violence and the severity of the impact.”
Ground 2 contained a mixture of contended legal errors by failing to apply identified principles or by making inconsistent findings, and of discretionary errors, including a failure to consider a relevant matter or complaints as to the primary judge’s attribution of weight to be given to evidence.
As to the contended legal error, the father conceded that the reasons identified applicable legal principles to the determination of a parenting dispute that includes a contention as to a parent posing an unacceptable risk of harm (at [22]–[34]). As will be seen, the chronology of the second and third sentences in the father’s construction of the ground do not reflect, and misstate, the reasons.
Apposite to this particular of the ground is that where it is contended that a parent poses an unacceptable risk of harm in parenting proceedings, the first enquiry is whether there is objectively an unacceptable risk. If there is, steps must be taken proportionate to the degree of risk (Bielen & Kozma (2022) FLC 94-123).
As for risk, or unacceptable risk, which is the heart of this appeal, the Full Court clarified in Isles & Nelissen (2022) FLC 94-092 (“Isles & Nelissen”) that past allegations of violence are to be determined by reference to s 140 of the Evidence Act1995 (Cth) and that the assessment of an unacceptable risk cannot be measured by the civil standard of proof; rather, the court is required to look at possibilities. The factual findings made about past events inform the task of the risk assessment predicting the safety of the child or the parent from family violence.
Section 60CG(1)(b) of the Family Law Act 1975 (Cth) (“the Act”) provides that in considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.
The father’s Summary of Argument (at paragraphs 7–9) sequentially presented the integers of the first particular of the ground as:
(a)The primary judge finds there is no unacceptable risk; and
(b)Having done so, mistakenly applies a test of “appreciable risk”;
(c)Hence, the “problem is that [the primary judge] has already determined that there is no unacceptable risk, and so we are left with an unexplained and [un]determined concept” pivoting the conclusion to limiting the child’s time with the father and requiring it to be supervised.
At the hearing of the appeal the father, in addition to that contained in the ground, said that the primary judge “circumvents the exercise that was necessary” to assess risk to the child. The father’s contentions by way of the ground, and what was contended at the hearing of the appeal, are misconceived. The evaluation of this particular of the ground requires an examination of the pathway constructing the reasons.
The reasons recite the evidence as to family violence (at [83]–[106]), and are interspersed with factual findings and reasons for them. As to the father’s conduct by way of text messages to the mother in September 2019 generating the criminal convictions and ADVO, and the consequential impact on the mother, the primary judge found, unchallenged on appeal:
84During his oral evidence the father conceded that the messages were threatening and intimidating. I am satisfied that this was the case, particularly taking into account the insulting and derogatory tone of the messages. I am equally satisfied that the messages were designed to control and coerce the mother into submitting to the father’s wishes and demands regarding [the child’s] time spending with him…
85It is also conceded by the father that across the same period of time he sent text messages of a similar nature to the maternal grandfather. Again, I am satisfied that these messages were also designed to threaten and intimidate the mother and ultimately coerce and control her into meeting the father’s wishes and demands with respect to [the child].
86 I am fortified in coming to the conclusion that the events of late 2019 were exemplary of the father’s controlling and coercive behaviour directed to the mother, because Dr G also formed the view that the events in late 2019 were an episode of coercive and controlling behaviour perpetrated by the father towards the mother. This is an opinion which I accept.
87I also accept the mother’s evidence that she felt scared, threatened and intimidated when she received these text messages from the father and became aware that similar messages had been sent to her father.
88It is uncontroversial that the receipt of the text messages resulted in a number of events. The mother immediately made a report to the police. Thereafter the father was arrested and charged with an offence and a provisional ADVO was made in late 2019 (Exhibit “ICL2”). At the first hearing in the local court relating to the charge and the ADVO in late 2019, the father entered a plea of guilty to the charge and consented to a Final ADVO for a period of 2 years. The Final ADVO expired in late 2021. The following month in 2019, the father was sentenced in relation to the charge and a Community Correction Order was made commencing that same day (Exhibits “W16” and “ICL2”). This however was reduced as a result of an appeal against the sentence which reduced the sentence to a Conditional Release Order, and no conviction was recorded (Father’s affidavit filed 16 April 2024, paragraph 131).
The primary judge then found, unchallenged on appeal, that the September 2019 events were not isolated examples of the father occasioning family violence and the amplified impact of it upon the mother:
92 However, during cross examination of the father by the mother’s senior counsel, and when confronted with examples of his poor behaviour prior to late 2019, the father conceded that the inappropriate messages in late 2019 were not isolated examples of his intimidatory, threatening and aggressive behaviour towards the mother. Significantly, the father acknowledged that he exhibited this type of coercive and controlling behaviour towards the mother in their text exchanges, including those received as exhibits (Exhibits “W3”, “W4”’, “W5”, “W6” and “W7”) which span the post separation period between 6 January 2017 to 16 May 2019. I agree that these text exchanges are examples of the poor manner in which the father at times communicated with the mother, and that they were indeed examples of his coercive and controlling behaviour towards her.
93 Having regard to the totality of the evidence, I am satisfied that the nature of the parties’ relationship was cyclical. There were periods of time where the parties were loving and caring towards each other, together with periods in the post separation period in which they communicated appropriately and effectively. There were however also periods of time (particularly in the post separation period), where the father behaved in ways towards the mother which were designed to coerce and control her by use of threats, intimidation, derogatory language, humiliation and aggression. In that context I am satisfied that the mere existence of periods of time in which the parties were appropriate, loving and caring towards each other, does not serve to erase and/or counteract the effect of the occasions when the father behaved in an intimidatory and threatening fashion towards the mother. Moreover, I am satisfied that it is this very cycle of behaviour which amplified the impact of the father’s coercion and control upon the mother.
(Emphasis added)
Unchallenged on appeal were two other instances of coercive and controlling behaviour perpetrated by the father during the proceedings, found to be “particularly calculated, manipulative and egregious” (at [94]). The first was the father’s allegation against the mother of professional misconduct. The father agreed it had no proper foundation (at [96]). The primary judge found:
100In my view, this complaint appears to be an attempt by the father to make good his threat to the mother in his texts sent in late 2019 […] and evidences the lengths the father was prepared to go to, to inflict harm upon the mother.
101 Moreover, at the time that this groundless allegation was made, the father was the subject of the ADVO and sentence imposed following his guilty plea. I consider that had the father acknowledged at the time that he had made this baseless allegation, he would have likely been in breach of both the ADVO and the terms of his sentence.
(Emphasis added)
The second instance was the father’s messages to his cousin’s former wife, Ms Q, between March 2020 and July 2021. The findings were:
103 On any objective view, the father’s written communications to Ms Q are appalling. The messages contain falsehoods, including an assertion that the text messages that he had sent the mother in late 2019 were not threatening or violent, and that the mother and her family had stolen money from him and his parents. Additionally, throughout the messages, the father refers to the mother in a derogatory fashion, calling her variously a “sneaky bitch”, “liar”, “master manipulator” and his “enemy”. Of additional concern the father also told Ms Q in the messages, “I love my daughter with all my Fkn heart I would do anything for her I would die for her if that’s what was needed” (emphasis added).
(Emphasis in original)
The primary judge concluded, not challenged on appeal, that the text messages to Ms Q were designed to negatively influence third parties and mutual friends against the mother, and isolate Ms Q and her husband from socialising with the mother and/or the child (at [106]).
The primary judge thereafter, under the heading “Conclusion as to family violence”, found:
107 In light of the incidences that I have discussed, I am satisfied that the father has perpetrated family violence against the mother. That family violence has included the father’s attempts to isolate the mother from family and friends, overt denigration of the mother both directly to her but also to her family members and associates, efforts to damage the mother’s financial security and the use of threats and intimidation.
108 I accept the mother’s evidence that all of the conduct perpetrated by the father towards her has had the effect of leaving her feeling fearful, harassed, threatened and intimidated.
109 I am also satisfied that the father’s behaviours were focussed at placing maximum pressure on the mother so that she would relent to his demands generally, and in the post separation period regarding the parenting arrangements for [the child]. I am satisfied that in those circumstances the father’s behaviour amounts to coercive and controlling behaviour.
110 As I have earlier identified, I am satisfied that there is an appreciable risk that the father will continue to commit acts of family violence towards the mother in the future.
(Emphasis added)
The prospective conclusion at [110] as to “appreciable risk” is the focus of the contended legal error by way of Ground 2.
The expert evidence of Dr G, accepted by the primary judge at [44] (except as to the identity of the supervisor of time spent) and considered further in the determination of Ground 5, was:
46 In relation to the father, in the Family Report Dr G recorded the following opinions:
(a) Concerns were held for the “father’s capacity for emotional regulation and his previous history of minimising his own behaviour”.
(b) When considering the “aggregate” of the father’s behaviour, concerns were held “that the father may have some deficits with emotional regulation and that he is unable or unwilling to accept responsibility for his own behaviour”.
(c) The “father does not react well to being challenged, and when challenged, may use manipulation or lash out and use threat to punish another person”.
(d) The father “attempted to excuse his abusive and threatening behaviour by referring to the mother”.
(e) Text messages sent by the father to the mother “reflect an attitude of control, manipulation, and cruelty”.
(f) The father when challenged about specific incidents was “defensive” and his responses “entirely deflected from the issue of his own behaviour, and focused blame on the other person”.
(g) While [the child] appeared to be “very pleased to be seeing and spending time with her father”, the father was “very passive when it came to interacting with [the child]” and “relatively passive” in terms of meeting [the child’s] needs.
(h) There were concerns that the paternal family’s “behaviours and attitudes will ultimately cause [the child] distress and anxiety and may, in time, significantly undermine her level of comfort and emotional connection to her paternal family”.
(i) There was “no indication that the father or the paternal family have ever failed to care for [the child] properly or safely”.
(j) The father has “extremely poor capacity” to facilitate and encourage [the child’s] relationship with the mother.
(k) The father has raised “spurious concerns” with respect to the mother to “evoke fear” and in an attempt to manipulate and/or blackmail the mother.
(l) The content of the text messages sent to the maternal grandfather, by the father, and the “disturbing imagery and offensive terms” are “reflective of an underlying attitude of disrespect for women and retaliation for the mother raising the issues of the father’s behaviour”.
(m) The father has limited insight into the seriousness of his behaviour and was “not remorseful about his behaviour towards the mother, aside from regretting the consequences to him”.
(n) The father has no intention of supporting [the child’s] relationship with the mother and has engaged in acts of “retaliation, coercion and intimidation” towards the mother.
(o) The father does not appear to have accepted any responsibility for consuming an illicit drug and does not appear to have “any insight into the effect on his mood, behaviour or interpersonal relationships”.
47 In addition, during her oral evidence Dr G commented that when she read the father’s trial affidavit, the contents did not strike her as evidencing that the father had changed his behavioural and thought patterns from those that she had observed when preparing her written report and that she did not consider that he had developed insight and awareness of the harmful nature of his behaviours and the impact on the mother.
48 In summary Dr G’s opinion so far as future time spending between [the child] and her father are concerned were:
(a) [The child] derives value from the relationship that she has developed with the father, and wider paternal family (grandparents, aunts, uncles and particularly her cousins).
(b) The harm to [the child] in depriving her of a relationship with the father and her wider paternal family would be significant and is not supported.
(c) Whilst there are significant risk factors associated with the father (particularly concerning coercive and controlling family violence) and the environment of the paternal family (particularly concerning denigration of the mother and the maternal family), the mother is able to counteract those risk factors, provided however that the time [the child] spends with the father is not excessive.
(d) Time spending between [the child] and the father that occurs more frequently than once each month would not be appropriate for [the child]. Equally, time spending should not be any less than bi-monthly.
(e) Overnight time spending between [the child] and the father is not supported.
(f) Long term professional supervision is problematic, particularly if it results in there being uncertain and sporadic periods of time spending between [the child] and the father.
(g) Whilst not without its risks (particularly the risk of [the child] being exposed to the negative views held by members of the paternal family towards the mother and the maternal family), time spending in the home of the paternal grandparents, and supervised by the paternal grandmother is supported.
49 For all of the reasons that follow, the only deviation from Dr G’s recommendations is in the identity of the person to supervise the father’s time spending.

The primary judge found at [55] that the father failed to understand that he behaved poorly and/or that his actions had a coercive and controlling effect on the mother. At [57], the primary judge said:
Whilst I am satisfied that the father’s remorse was genuine (particularly because of the impact it has had on his relationship with [the child], and in turn [the child’s] ability to be immersed within the paternal family), I remain concerned that the father is unable to comprehend just how damaging his behaviour has been to the mother, her sense of security and particularly her security as [the child’s] mother and primary carer, which combined have the potential to negatively impact [the child] as she matures.
(Bold and italicised emphasis added)
This conclusion was reached notwithstanding the father had undertaken therapy and various courses (as discussed in Ground 3), the primary judge accepting the expert evidence as to the father’s likely recidivism of behaviour (Ground 5).
The likelihood of further family violence was expressly considered by the primary judge (at [60]), implicitly accepting the opinion of the ch 7 single expert that a “good indicator” of whether a perpetrator of family violence presents a risk of recidivism is whether they can offer “spontaneous concessions and insight about the impact of their behaviour on their victims and others”. The primary judge thereafter concluded:
60…Having reflected on the oral evidence given by the father, I do not consider that he was able to consistently offer such spontaneous concessions and insight. To the contrary, on reflection, the father had the appearance of making rote concessions each and every time he was confronted with his problematic behaviours, and there was no consistent spontaneous acknowledgement or meaningful spontaneous engagement with why it is that he now saw that his behaviours were so inappropriate, nor as to the deleterious impact of those behaviours on the mother and [the child].
61 In light of all of these matters (and when regard is had to the discussion that follows as to family violence), I have significant concerns that there is a risk of the father perpetrating further family violence against the mother in the future, particularly in the form of coercive and controlling behaviour.
(Emphasis added)
As to the severity of the impact, the primary judge found that the father’s behaviour was designed to control and coerce the mother (at [84]), and that the impact of the father’s coercion and control was amplified by the cyclical nature of the father’s conduct (at [93]). The primary judge found that the conduct perpetrated by the father has had the effect of leaving the mother feeling fearful, harassed, threatened, and intimidated (at [108]).
Implicit in the reasons is that, as the father had occasioned family violence of some magnitude upon the mother and did not have the requisite insight into the impacts and effects of his behaviours, a mandate was presented to protect the child from emotional and psychological harm due to the possibility that the father may start to behave in that same way towards the child.
The reasons then recite the evidence as to what the mother contended comprised other risk factors posed by the father’s use of illicit drugs and alcohol. This was part of the evidence of risk as opined by Dr G (at [46(o)]). As to the father’s historical use of illicit drugs and alcohol, the primary judge concluded:
117 In the first year of the proceedings the father submitted to hair follicle testing on three occasions; with hair samples taken in November 2019, June 2020 and November 2020. Each of those hair samples were positive for an illicit drug with varying concentrations (Exhibit “H11”). In the absence of expert evidence interpreting these results, it is difficult for me to form any views about the concentration levels and the rate of the father’s use. The results however make it possible for me to find (and I do find) that the father had used an illicit substance at least over a 12 month period ending in November 2020, but possibly over a 15 month period (being three months prior to the sample taken in November 2019 and the last sample taken in November 2020).
118 The father’s position was that the first and subsequent positive results were as a result of having consumed three to four shots of tequila at a party which was unknowingly laced with the illicit drug; this incident said to have happened in November 2019 with him only discovering this information when trying to make sense of his positive hair follicle test results for the sample taken later in November 2019.
119 There was however no evidence, expert or otherwise, to substantiate the father’s claims in this regard and it is not a finding that I am prepared to make.
(Emphasis added)
The primary judge made further findings as to instances in which the father had talked about and/or engaged in the use of illicit substances (at [125]), and found:
127 When all of these matters are taken together, the Court is left with an inability to exclude the father’s illicit drug use and alcohol consumption as a risk factor to be taken into account when considering the parenting orders that would meet [the child’s] best interests and keep her safe from harm.
(Emphasis added)
The father does not challenge any of these factual findings (including as to illicit drug use and the risks it poses to the child) except to challenge the conclusion in [127] as it relates specifically to his alcohol consumption (being the subject of Ground 12).
The father’s complaint by way of Ground 2 misstates the integers of the reasoning constructing the final conclusions as to risk (at [130]–[133]).
The intermediate conclusion that “there is an appreciable risk that the father will continue to commit acts of family violence towards the mother in the future” (emphasis added) (at [110]), is one category of evidence informing a risk that is not fanciful. The evaluative prospective conclusion at [130] that “there is a need to protect [the child] from harm when spending time with the father (emotional and psychological) as a result of the family violence the father has perpetrated and continues to present as a risk of perpetrating in the future, together with the harm that would flow to [the child] if the father was affected by drugs or alcohol when spending time with [the child]” is derived from a culmination of intermediate findings (Isles& Nelissen at [85]).
The finding of unacceptable risk at [130] hence necessarily invokes a consideration of the means which might be adequate to sufficiently mitigate the risk to an acceptable level (Bielen & Kozma at [51]–[55]). As was said by the Full Court in Blinko & Blinko [2015] FamCAFC 146:
27A consideration of risk, and factors which impact upon or ameliorate the risk, will in most cases be inextricably linked. That is because “[t]he object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’”.
The reasons, by application of relevant principle, progress to conclude that the unacceptable risk of harm posed by the father can be ameliorated by taking steps proportionate to the degree of risk. Those steps are determined to be the measures as set out in [131]–[133], being for any time spent between the child and the father to be professionally supervised, for the father to undertake drug and alcohol testing for 12 months, and for specified injunctive orders to be imposed.
Notwithstanding the clarity of the whole of the reasoning, the father:
(a)By some illogical uncharted process, elevates the intermediate conclusion as to an “appreciable risk” of prospective family violence at [110] to be the conclusory prospective determination as to risk of harm; and
(b)Fails to understand that the import of measures (at [131]–[133]), if implemented, will ameliorate that risk so that it would become not unacceptable.
Ground 2 as to failing to apply relevant principles, as to making inconsistent findings, and as to the contention that the primary judge did not “weigh or consider the likelihood of further family violence and the severity of the impact”, is absent of merit.
Ground 5 – “There is no link between the type of behavior [sic] of the father (coercive and controlling family violence in the form of written messages and correspondence) and the orders that are ultimately made in respect of frequency, duration, and supervision of time. None is expressed in the judgment. What is assumed is that less time and more supervision means a lower risk of a repeat of his earlier behavior [sic]. There are no findings upon which this assumption could be rationally founded. There is no reason to think that limiting his time, limits the likelihood of sending a coercive or controlling message. The court’s exercise of discretion expressed in the final orders has miscarried in these circumstances.”
As to the form of family violence, being occasioned in writing, and how it could impact on the child or the mother if repeated, the father said in his Summary of Argument:
16.There is nothing that either limiting time or supervising it does to stop the father from once again becoming a keyboard warrior and venting, engaging, or disseminating hurtful criticisms, or abusive messages. This type of behaviour does not, has not, and is inherently unlikely to occur when he has [the child] with him, when he is picking her up, or when he is returning her.
The submission echoes the father’s views that any risk posed by family violence must be direct upon the mother in his presence, or that the child must have been directly exposed to it. The submission itself reflects the primary judge’s findings as to his lack of insight into the impacts and effects of his behaviours.
The father’s submissions in his Summary of Argument continued:
17. This point was made in submission and the challenge was not taken up there and it is not addressed in the judgment. (T Day 7 P678 L 1) The findings against the father are that he has sent written messages to the mother, members of her family, and members of his which constitute family violence of a coercive and controlling type. That behaviour, unsavoury and even harmful as it may be, is not prevented by supervision, it is not more or less likely because [the child] sees her father more often or for longer periods.
Coercive or controlling conduct can manifest itself in subtle and nuanced ways. The impact of family violence by coercive or controlling conduct, as in this appeal, for the reasons discussed in Ground 2, can be far reaching for the mother, as the uncontested parent with whom the child lives, and for the child, both historically and prospectively.
Specific findings were made as to how the supervision of the father’s time spent with the child will ameliorate the risk of harm to the child at [133], including that supervision has been protective of the child to date and has enabled the child to develop a relationship with the father and the paternal family in a safe way. This forms part of the context of the wider evidential picture determined and accurately concluded by the primary judge as canvassed in Dr G’s evidence in Ground 2, including:
(a)The “father’s capacity for emotional regulation and his previous history of minimising his own behaviour” (at [46(a)]);
(b)The father “not react[ing] well to being challenged, and when challenged, may use manipulation or lash out and use threat to punish another person” (at [46(c)]);
(c)His messages “reflect[ing] an attitude of control, manipulation, and cruelty” (at [46(e)]);
(d)His responses “entirely deflected from the issue of his own behaviour, and focused blame on the other person” (at [46(f)]);
(e)His raising of “spurious concerns” to “evoke fear” and in an attempt to manipulate and/or blackmail (at [46(k)]);
(f)His conduct being “reflective of an underlying attitude of disrespect for women and retaliation for the mother raising the issues of the father’s behaviour” including that he appears to have “limited insight into the seriousness of his behaviour” (at [46(l)] and [46(m)]); and
(g)There were concerns that the paternal family’s “behaviours and attitudes will ultimately cause [the child] distress and anxiety and may, in time, significantly undermine her level of comfort and emotional connection to her paternal family” (at [46(h)]).
These findings are coupled with the findings as to the father not availing himself of the opportunity to spend time with the child, having the effect of him weaning the child away from more frequent time (at [163]). The findings are in turn linked in the reasons with the primary judge’s acceptance of the opinion of Dr G. That opinion grounds the conclusory findings as to supervision, at [48(c)] and [48(d)], being that the mother is able to counteract risk factors provided the time the child spends with the father is “not excessive”, and it would not be appropriate for the child to spend time with the father on more than one occasion each month, or less than once every two months. Dr G’s oral evidence in cross-examination was:
[SOLICITOR FOR THE FATHER]: And in terms of frequency, that too, if it was more frequent, and let’s work with fortnightly, would allow the mother to have the weekend and then the father to have a weekend. That could create a pattern which might be, I’m going to suggest to you, a fairly natural pattern for a seven-and-a-half-year-old to start to accept as part of her life?
[DR G]: When – when you say the weekend, what – so - - -
[SOLICITOR FOR THE FATHER]: I mean, I’m just talking about one day at the moment?
[DR G]: One day. The risk in fortnightly contact is it starts to – and I think, this is sort of what I was trying to impart to the court earlier when we were talking about monthly as being about the right amount. Fortnightly starts to become – the risks, if you like, in that environment become more prevalent in terms of [the child’s] – if there are negative comments from the grandmother, if there is undermining of the mother, if there – if there are really toxic relationships between the two families, fortnightly is enough exposure. Then it might start to actually really impact on this child and – and the mother. I’m not sure that, you know, if – unfortunately, in highly toxic, big family groupings when children are shunted between them, it usually takes them time to build up to that going – going and time to recover from. And fortnightly means that if she is emotional or anxious and there are issues that occur, you know, and it happens every fortnight, it might take her three days to kind of relax back into the mother’s home. And then the same thing on the, sort of, way out, if you like. And that, potentially, could have an impact on her social skills, school, sense of, sort of, stability in her everyday world. So I don’t think it is like the naturalness that might occur in less acrimonious separations where children can get used to a sort of fortnightly kind of cycle where they’re – which is much more about children’s memories and knowing what’s happening on what day. This is, I think, a different sort of level. The reason I’m recommending the monthly is sort of balancing that need for frequent enough contact, that the relationships are comfortable and familiar, and she feels a sense of belonging. But not so frequent that the risks there undermine what is otherwise a very stable, happy childhood and home environment.
(Transcript 21 May 2024, p.115 line 27 to p.116 line 8) (Emphasis added)
The conclusion of the primary judge that the historic conduct of the father will be reflected in his conduct going forward was open. The primary judge balanced the benefit to the child of maintaining a relationship with the father and the paternal family, with the need to protect both the child and the mother from harm.
The father’s complaint by way of the ground that a “basic problem with the judgment is that it does not make a connection between the reasoning and the orders” (father’s Summary of Argument, paragraph 13), specifically as between the type of family violence, and the protections the orders purport to create for the parenting of the child, is hollow. The link or connection between the findings as to the father’s family violence, including it being expressed in writing, and the frequency, duration and supervision of time, is explicit and cogent. The reasons resolve the point critical to the contest between the parents (Yarrow & Yarrow [2022] FedCFamC1A 135). In so far as the father complains as to these determinations and the reasons for them, the ground fails.
Ground 1 – “[The primary judge] failed to evaluate correctly the ‘risk’ that the father poses of further coercive and controlling family violence particularly in the context of the last incident having occurred in July 2021 three years before the trial. The actual form of family violence, how it could impact on [the child] or the mother if repeated are not explored or explained.”
As constructed, Ground 1 makes complaints as to weight, an alleged inadequacy of reasons, and possibly, although not clear, a factual error. At the hearing of the appeal the father said that a failure to “evaluate correctly” meant that the task of determining what is in the best interests of the child had miscarried because the evaluation has not been performed in a way that is robust on appeal as it misses out on some of the “key strands” it needs to be consistent with the principles in House v The King. Parts of the particulars of the ground morphed at the hearing of the appeal to include a complaint that relevant matters had been “completely ignored” and a failure to give “proper” weight to matters.
The failure to “evaluate correctly” risk because the last incident of family violence “occurred in July 2021 three years before the trial” is inaccurate. The father’s complaint fails to engage with the unchallenged finding at [113] that the father chose to “weaponise” historic conduct of the mother as to drugs and/or alcohol to embarrass and intimidate her in his trial affidavit, filed one month prior to the trial. The error is not made out.
Any complaint in Ground 1 as to weight, consequently, also must fail. Complaints in an appeal about too much or too little weight being attributed to some portion or portions of the evidence are meaningless unless it is contended the ultimate exercise of discretion was manifestly unreasonable or unjust (Hedlund & Hedlund (2021) FLC 94-065 (“Hedlund”) at [12], [36], and [37]). No ground of appeal asserted the appealed decision fell into that category and, even if one had, such a ground would fail. As has been demonstrated, the orders were clearly made within the bounds of a reasoned exercise of discretion.
As to the form of family violence, this complaint has been addressed in Ground 5 and fails for the same reasons. Ground 1 fails.
Ground 3 – “[The primary judge] fails to consider, or evaluate in [the] reasons the relevant evidence that mitigates the risk of the likelihood of ongoing coercive and controlling family violence and specifically:
a.        The specific behavior [sic] which is entirely in the form of written messages or correspondence,
b.        The passage of time since the last incident, and what has happened since,
c.        The immediate plea of guilty in respect of the offence matters,
d.        The completion of the men’s behavior [sic] course,
e.        The evidence to suggest that the mother was likely to exaggerate risk, including Dr [G]’s observations on the hypervigilance of the mother and her tendency to ‘disproportionately’ assess risk.”
Ground 3 contends a discretionary error by a failure to take into account material considerations, or an error as to inadequate reasons. Each of the particulars of the ground, except particular (e), are repetitions of the subject matters determined by Grounds 1, 2 and 5 Additionally, as to these particulars:
(a)Leaving aside the illogical premise of this submission, the father did not identify where this contention was made at trial, by reference to either the transcript or the appeal book. The father had the opportunity to adduce expert evidence from Dr G to the effect that occasioning coercive and controlling behaviour in the form of writing promotes a conclusion mitigating the prospective risk of future violence. He did not do so and cannot now raise it on appeal.
(b)The last incident of the fathers coercive and controlling conduct was a month prior to trial, being part of its cyclical character. The mother currently feels fearful, harassed, and intimidated by him and it (at [108]).
(c)The father’s immediate plea of guilty to the criminal offence is expressly considered at [88] and [101].
(d)The completion of the men’s behaviour course is the subject of express findings at [58]–[59]. The intermediate conclusions, after considering this evidence, coupled with the evidence as to the father’s attendance upon a psychologist in the shadow of the trial, are found at [60] and [61] and then at [110] (as above at [26], [47], and [52]).

The reasons record the primary judge (at [44]) accepting the evidence of Dr G that:
45 In relation to the mother, in the Family Report Dr G recorded the following opinions:
…
(d) The mother has been “particularly vigilant about [the child’s] well‑being in the father’s household” and the mother has some “hypervigilance” and that she had “disproportionately assessed the level of risk that [the child] is exposed to in the father’s household”.
…
(f) The mother is “constrained in her capacity to facilitate and encourage [the child’s] close and continuing relationship with the father” due to the mother’s own experience with the father.
(g) The mother presents as “fearful” of the father and “very concerned about him continuing to threaten and intimidate her” and as such, the mother would be unable to properly communicate with and make decisions with the father in a manner that would assist [the child].
(Emphasis added)
Particular (e) of the ground, being that the primary judge failed to consider or evaluate the mother’s hypervigilance and her tendency to disproportionately assess risk, is incongruous. It was expressly considered. Ground 3 fails.
Ground 4 – “[The primary judge] similarly fails to consider evidence relevant to the benefit of [the child] having more time more frequently with her father particularly:
a.        The positive supervision reports over a period of many years;
b.        The interactions between [the child] and her father demonstrative of the positive relationship she has and underlying needs of the child;
c.        The need to consider the changing needs of [the child] as she grows up.”
Ground 4 complains as to a failure to take into account material considerations or an error as to inadequate reasons. As occurred in the determination of Ground 3, it may be that the father has not effectively read and digested the reasons.
The primary judge expressly considered the evidence as to the benefit of the child having a relationship with the father at [48(a)] and [48(b)] and accepted at [133] and [135] that the child’s time during supervision had been positive. The primary judge further accepted that the child derives a benefit from the relationship she has with the father and the wider paternal family, in particular, her cousins, which has been achieved during supervised time (at [157]–[158]).
As to the interactions between the father and the child, the primary judge accepted the opinion of Dr G at [46(g)] that that while the child appeared to be “very pleased” to be spending time with the father, the father was “very passive when it came to interacting with [the child]” and “relatively passive” in terms of meeting the child’s needs.
As to the changing needs of the child, the primary judge acknowledged at [134] that the child is young and that there may be some future difficulties, including the child questioning the need for supervision, potentially undermining the time spent with the father by making the child question her own safety, and/or undermining the child’s relationship with the mother, as she may come to challenge or resent the need for supervision.
The primary judge acknowledged that long-term supervision is an arrangement that would be adopted in rare circumstances, and is somewhat artificial in nature, however concluded that such an order was open, and that the circumstances of the case warranted such an order (at [137]–[138]), including balancing the range of factors identified in these reasons.
Ground 4 fails.
Ground 6 – “[The primary judge] correctly finds that there is no unacceptable risk posed to the child … but nevertheless makes Orders for continuing supervision. It is not articulated how or why this is necessary or in the best interests of [the child]. [The primary judge] is in error in relying on Dr [G] on this point. Dr [G]’s opinion was that supervision was not necessary.”
The first two particulars of this ground are a repeat of the same complaint determined by way of Ground 2. As to the balance of the ground, in his Summary of Argument the father said:
18. The closest [the primary judge] comes to dealing with the connection is at DAB 69, J 131 where she comments that “I accept the opinion of Dr [G], that supervision of the father’s time spending with [the child] would significantly ameliorate these risks of harm”. In fact the opinion of Dr [G] was that she “did not think that ongoing supervision of [the child’s] time in the father’s household is necessary. I think that [the child] is well cared for in the context of the paternal family” (DAB 193). She goes on to explain that she sees the father as having some deficits in his parenting ability and says “I think on balance, [the child’s] time with her father should occur in the context of the paternal family, for example, ensuring that the paternal grandmother or paternal aunt were present”.
19. In her oral evidence Dr [G] did not accept that supervision was the [sic] appropriate, or necessary. She is asked about it by the ICL and her answer is in Day 6 21 May 2024 at P 50 L 45. She gives a comprehensive answer which is to the effect that supervision is not necessary and is in fact potentially harmful.
(Emphasis added)
In Dr G’s report, she opined “I do not think that ongoing supervision of [the child’s] time in the father’s household is necessary” (Annexure “[ICL]-01” to the affidavit of the Independent Children’s Lawyer filed 8 August 2023, p.62).
The alleged oral evidence of Dr G, after she had read the trial material, as asserted in paragraph 19 of the father’s Summary of Argument, is a reckless distortion and is wrong. The primary judge recorded:
104 During the final hearing, Dr G was shown a copy of these messages [to Ms Q] for the first time. Her reaction when reading the messages was visceral and overt; drawing comment from the bench.
105Dr G commented that the messages demonstrated “disgusting behaviour, it’s exactly the sort of coercive, violent, aggressive, threatening actions of a person who has a disdain for ordinary civility” (Transcript 21 May 2024, p. 30 lines 44-46). This is an opinion which I accept.
In oral evidence the expert opined that there may be more risk to the child of long-term professionally supervised time than of supervision in the father’s household, however, the expert maintained that there are risks to both forms of time (Transcript 21 May 2024, p.50 line 46 to p.51 line 25). The expert later said:
[SOLICITOR FOR THE FATHER]: Yes. And the overall result can I suggest that one takes from your report – and I think this is something you’ve already canvassed – is that on balance, you still say that there should be a relationship between [the child] and her father?
[DR G]: Yes.
[SOLICITOR FOR THE FATHER]: And on balance you say that that should include time with him?
[DR G]: Yes.
[SOLICITOR FOR THE FATHER]: And that that time does not need to be supervised?
[DR G]: No, not quite. I – I said, I hope I said, it didn’t need to be professionally supervised - - -
(Transcript 21 May 2024, p.111 lines 40–47)
The primary judge expressly considered the expert opinion of Dr G (at [48(f)], [48(g)], and [49]), considered the child’s report to the expert as to “daddy’s family saying mean things” (at [140(d)]), and explained the reasons to depart from experts’ opinion as to the identity of the supervisor of the father’s time spent with the child (at [49], [65]–[70] and [138]). Ground 6 fails. Challenges made to the findings as to the paternal grandmother not supervising the father’s time with the child are the subject of Grounds 10 and 11.
Ground 7 – “[The primary judge] is in error in finding that the father’s trial Affidavit showed no ‘contrition, remorse or insight’ with respect to issues of coercive and controlling family violence. Equally the judgment is in error in findings that there were ‘concerns’ due to the father’s lack of spontaneous acknowledgment of his conduct during cross examination, or that a disconnect between the two paragraphs of his affidavit (255 and 256) and the entirety of his oral evidence forms a basis for finding that there is a ‘appreciable risk’ of his ‘perpetrating in the future’.”
Ground 7 contends factual errors, linking them in part to Ground 2. The finding under challenge of the primary judge reads:
54 Concessions of this nature are often commendable and can be indicative of contrition, remorse and insight. However, what was troubling about the father’s evidence is that a month earlier, the father swore his trial affidavit in which he seemingly had no such contrition, remorse or insight. This was most obvious from the following portions of the father’s trial affidavit filed on 16 April 2024, drawn to the attention of the father and the Court by the mother’s senior counsel during the father’s oral evidence:
255. I have been deeply affected about the things said about me in the context of family violence. The allegations made by [the mother] are strongly denied. My behaviour that led to the Local Court charges goes against my character and nature.
256. It is confusing to me why aspects of my behaviour were perceived as me perpetrating family violence when [the mother] has behaved in the same way, for example…
(Emphasis added)
At the hearing of the appeal, the father said that the foundations for the criticism directed towards him in the finding under challenge were “weak, putting it mildly” as the primary judge had not considered that there had been continual supervision of the father’s time with the child since 2019 which showed “no signs” of coercive and controlling behaviour.
To demonstrate error as to a finding of fact, the father has to establish that the findings were not open on the evidence (Edwards v Noble (1971) 125 CLR 296) or that they were glaringly improbable, contrary to compelling inferences, or demonstrably wrong by way of incontrovertible facts or uncontested testimony (Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550 at [43]; Lee v Lee (2019) 266 CLR 129 at [55]).
The subsidiary findings made by the primary judge directing the finding at [54] commence with the acceptance of Dr G’s evidence (at [46(m)] and [47]), and then progress to the finding that the father continued to fail to develop insight or an understanding that he had behaved poorly (at [55]), and that his behaviour had a coercive and controlling effect on the mother, even after he had undertaken courses and attended upon therapists. The primary judge, after observing, hearing, and assessing the father’s evidence at trial, concluded that he was unable to offer spontaneous concessions and insight about the impact of his behaviour on the mother and others (at [60]).
It is well accepted that appellate courts should generally respect the advantages enjoyed by trial judges to evaluate the evidence and the credibility of witnesses, although obvious errors must be corrected (Fox v Percy (2003) 214 CLR 118 at 127–129 and 138–147; Cizek & Mihov (2024) FLC 94-206 at [20]).
The father did not demonstrate on appeal that the findings were not open or glaringly improbable. The complaint by the father on appeal is that he disagrees with the finding at [54]. Such disagreement does not amount to appellate error. Ground 7 fails.
Ground 8 – “[The primary judge] fails to give adequate reasons or explain how limiting time as to frequency and duration are protective against any identified risk, or in the best interests of [the child].”
Ground 9 – “[The primary judge] fails to give adequate reasons or explain how Orders for continuing supervision are protective against any identified risk or in the best interests of [the child].”
The subject matter of each of these grounds has been determined in Grounds 1, 2, and 5. They fail.
Ground 10 – “[The primary judge] is in error in excluding the paternal grandmother as a supervisor where she has correctly found that the paternal grandmother ‘would act protectively of [the child’s] physical safety’.”
Ground 11 – “[The primary judge’s] finding that the grandmother would not be able to protect [the child] ‘from the more subtle forms of family violence’ is irrelevant given that there is no finding that [the child] has ever been exposed to family violence of any description.”
Grounds 10 and 11 are directed to the findings at [69]:
69 Having heard the evidence of the paternal grandmother, I am satisfied that she would act protectively of [the child’s] physical safety. I do not however have the same confidence about the paternal grandmother’s ability to ensure [the child’s] psychological and emotional wellbeing and safety. In coming to this conclusion, I am of the view that this is not because the paternal grandmother would knowingly subject [the child] to psychological or emotional harm, but rather, that she is unaware and therefore unable to protect [the child] from the more subtle forms of family violence which includes the coercive and controlling behaviour that I am satisfied the father has perpetrated and is at ongoing risk of perpetrating.
(Emphasis added)
The Summary of Argument of the father contained no submissions in support of these grounds.
Ground 11 is constructed as an error as to taking into account an irrelevant consideration. The father did not identify the extraneous or irrelevant matters, except repeating the complaint determined by Grounds 1 and 5 as to the child never being “exposed” to family violence. Ground 11 fails.
Ground 10 is constructed as a discretionary error. At the hearing of the appeal the father conceded that he no longer contended that the primary judge “got the assessment of the evidence of the [paternal] grandmother wrong”. The complaint then reverted to a challenge as to weight.
Unpacking the reasons for the conclusion at [69]:
(a)At [44] and [46(h)] the primary judge accepted Dr G’s opinion that there were concerns that the paternal family’s “behaviours and attitudes will ultimately cause [the child] distress and anxiety and may, in time, significantly undermine [the child’s] level of comfort and emotional connection to her paternal family”.
(b)At [66] findings were made that the paternal grandmother encountered challenges in understanding the extent to which she might be able to act proactively if she was to supervise time, as she was unaware, with any level of specificity, of the father’s prior conduct directed to the mother. She had a very broad understanding of the events in September 2019 and that the father had returned positive hair follicle tests for an illicit drug.
(c)At [67] those findings were supported by Dr G’s assessment of the paternal grandmother trusting her son whom she said was “passive, gentle and kind” and would never hurt anyone, it being the paternal grandmother’s view that “the difficulties” had been caused by the mother “going on and on” and refusing to accept the father’s apologies. The paternal grandmother told the expert that she had not read any of the text messages.
The father cherry-picked a single subsidiary finding from the reasons and ignored the balance of the subsidiary findings that were weighed in concluding that, while the paternal grandmother would act protectively of the child’s “physical safety”, she is not an appropriate supervisor of the time spent between the father and the child. As explained, this was because “she is unaware and therefore unable to protect [the child] from the more subtle forms of family violence which includes the coercive and controlling behaviour” that the primary judge was satisfied the father had perpetrated and is at an ongoing risk of perpetrating (at [69]).
At the hearing of the appeal the ground shifted to a complaint that the primary judge did not consider alternative individuals in the paternal family as supervisors of the father’s time spent, other than the paternal grandmother. At trial the father sought three alternatives as to time spent. His primary relief was for it to be unsupervised. The second alternative was for it to be supervised by the paternal grandmother. The third alternative was for it to be professionally supervised by B Contact Centre. He did not provide any alternate individual to supervise his time with the child when he had the opportunity, it is now too late to raise it. He is bound by the conduct of his case at trial (Metwally v University of Wollongong (1985) 60 ALR 68). Ground 10 fails.
Ground 12 – “[The primary judge] is in error in insisting on CDT testing in the Orders where there is no evidence of any alcohol dependence by the father, or evidence of any risk to the child through alcohol dependence that would not otherwise be adequately dealt with by way of a restraint.”
The primary judge’s findings as to the risks posed by the father’s historic use and consumption of illicit drugs and alcohol (at [111]–[126]) have been considered in earlier grounds. The father did not challenge the findings as to his historic use of illicit drugs, fixing the ground upon his alcohol consumption. This ground is constructed as a factual and discretionary challenge.
In September 2019 the father had consumed alcohol to excess and sent text messages in a fit of anger, and said he ingested an illicit drug when drinking alcohol (at [83] and [111]). It was not submitted on appeal that these findings were not open. The factual challenge fails. While minds can differ in the exercise of judgement when evaluating a prospective regime promoting the best interests of a child, the requirement for CDT testing for 12 months was not established to be otherwise than within the bounds of the reasoned exercise of discretion. The discretionary challenge fails. Ground 12 fails.
CONCLUSION
The appeal will be dismissed.
COSTS
If the appeal was unsuccessful, the mother sought for the father to pay her costs incurred on the appeal in the sum of $51,807, being less than what she contended the costs at scale to be at $59,426. The ICL sought for the father to pay costs on a scale basis in accordance with Sch 3 of the Rules in the sum of $4,356.
The father opposed the making of any costs order.
The relevant principles as to costs are well settled. While the starting position established by s 117(1) of the Act is that each party pay their own costs, s 117(2) allows the Court to make such orders as to costs as it considers just if there are circumstances which justify it doing so. In considering what order for costs, if any, should be made, the Court is required to have regard to the matters set out in s 117(2A) of the Act and give weight as it considers appropriate to any relevant factor. It is well settled that no single factor in s 117(2A) has priority, nor must more than one factor be satisfied. Rather, any one factor may be sufficient.
The father submitted that he is currently unemployed and has modest financial circumstances. He said that an order for costs would cause hardship to him. The final property orders made between the parties and the balance sheet identifying their items of property and their contended values are in the Appeal Book. The orders provide for the father to receive $30,000, and the mother to receive $90,000, from a controlled monies account held by the father’s solicitors, and thereafter for he to retain his 50 per cent interest in a property with a value of $615,000 absent secured encumbrance. The father’s financial circumstances are such that he has expended more than $50,000 in the prosecution of this appeal.
The father’s financial circumstances do not militate against the making of a costs order. By the dismissal of this appeal, the father has been wholly unsuccessful. The circumstances justify the making of a costs order in favour of both the mother and the ICL.
The father did not dispute the quantum of costs claimed by the ICL. He did dispute the quantum of costs claimed by the mother.
We are mindful of the requirements of r 1.04, to facilitate the just resolution of disputes according to law as quickly, inexpensively, and efficiently as possible. Rule 12.17(a) permits the Court to adopt a course to fix costs, although it is accepted that the fixing of costs is entirely a matter for discretion. It cannot be disputed that the father has caused the mother to incur significant legal expense, engaging in appeal litigation on an informed basis, and knowing that the absence of success would likely lead to a costs order looming on the horizon. There is some symmetry between the costs incurred by the father as an appellant and those claimed by the mother at scale. The costs notice filed by the mother includes items charged by her solicitor that could not be said to be reasonable for the conduct of the appeal. There is some duplication in the work undertaken by senior and junior counsel in the preparation of the response to the appeal. Applying a broad-brush approach, it is just to fix the mother’s costs at $35,000. The father will be ordered to pay the mother’s costs in the sum of $35,000 and the ICL’s costs in the sum of $4,356 within 28 days.

I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Jarrett & Campton.
Associate:
Dated: 26 February 2025

NAA 248 of 2024 SYC 5557 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR PACOTTO Appellant
AND:	MS GALVIN Respondent
INDEPENDENT CHILDREN'S LAWYER

Appeal from:	Galvin & Pacotto [2024] FedCFamC1F 582
Appeal number:	NAA 248 of 2024
File number:	SYC 5557 of 2019
Judgment of:	ALDRIDGE, JARRETT & CAMPTON JJ
Date of judgment:	26 February 2025
Catchwords:	FAMILY LAW – APPEAL – PARENTING – Where the heart of the appeal is the assessment as to whether the father poses an unacceptable risk of harm to the child – Where the grounds of appeal assert mixtures of complaints as to legal, factual, and discretionary error – Where the primary judge correctly identified the applicable legislative framework and principles – Where the errors alleged by the father cannot be sustained on a plain reading of the reasons – No error demonstrated by the primary judge – Appeal dismissed – Costs ordered in favour of the mother and the Independent Children’s Lawyer.
Legislation:	Evidence Act1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60CG, 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 7, Sch 3, rr 1.04, 12.17 and 13.23)
Cases cited:	Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25 Bielen & Kozma (2022) FLC 94-123; [2022] FedCFamC1A 221 Blinko & Blinko [2015] FamCAFC 146 Cizek & Mihov (2024) FLC 94-206; [2024] FedCFamC1A 151 Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84 House v The King (1936) 55 CLR 499; [1936] HCA 40 Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97 Kellerman & Kellerman [2024] FedCFamC1A 126 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 Yarrow & Yarrow [2022] FedCFamC1A 135
Number of paragraphs:	113
Date of hearing:	7 February 2025
Place:	Sydney
Solicitor Advocate:	Mr Reeve
Solicitor for the Appellant:	Marsdens Law Group
Counsel for the Respondent:	Ms Reid
Solicitor for the Respondent:	Walter & Elliott Family Lawyers Pty Ltd
Counsel for the Independent Children's Lawyer:	Ms Davey
Solicitor for the Independent Children's Lawyer:	Sydney West Family Lawyers

ORDER MADE BY:	ALDRIDGE, JARRETT & CAMPTON JJ
DATE OF ORDER:	26 FEBRUARY 2025