Pembroke & Dewitt (No 2) - [2025] FedCFamC2F 191

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pembroke & Dewitt (No 2) [2025] FedCFamC2F 191

File number(s): SYC 1906 of 2015

Judgment of: JUDGE MURDOCH

Date of judgment: 17 February 2025

Catchwords: FAMILY LAW – PARENTING – where the parties have been involved in litigation for much of the subject child’s life – where the mother seeks the child have time with the father on three occasions per year and the father ultimately seeks an equal time arrangement – where the child has steadfastly refused to spend time with the father – where the mother alleges the child is fearful of the father and the father alleges the mother is unable to facilitate a relationship – where it is found that the father has assaulted the child and supervised visits have been troubling – where the parties positions are extremely polarised – where the single expert engaged in a fact finding exercise contrary to his role – where there are significant limitations to the single expert’s report – where significant weight is not placed on the single expert’s ultimate opinion that the child should be forced to spend time with the father on the threat that if he does not comply he will be moved to live with the father – where it is found the father’s capacity for emotional dysregulation places the child at risk and cumulatively the father’s capacities place the child at significant risk of harm – where such risk is ameliorated by the child spending supervised time with the father as sought by the mother – where the Independent Children’s Lawyer’s proposal that the mother determine how and when such time occurs is rejected.

Legislation: Family Law Act 1975 (Cth) ss 4(1), 60CA, 60CC(2), 60CC(2A), 60CG, 61C(2), 61C(3), 61D, 65AA, 65D, 65DAC, 68B

Cases cited:
B&B [1993] FamCA 143

M&M [1988] HCA 68

Hasip & Ruwan [2024] FedCFamC1F 638

Isles & Nelissen [2022] FedCFamC1A 97

Keane & Keane [2021] FamCAFC 62; FamLR 190

Division: Division 2 Family Law

Number of paragraphs: 246

Date of last submissions: 5 December 2024

Date of hearing: 2-5 December 2024

Place: Sydney

Counsel for the Applicant: Ms Kennedy

Solicitor for the Applicant: Kmj Family Law

Counsel for the Respondent: Mrs Mooney SC with Mr Matthews

Solicitor for the Respondent: Sydney Law Group

Counsel for the Independent Children's Lawyer: Ms Stolier

Solicitor for the Independent Children's Lawyer: Mason Mia & Associates
ORDERS

SYC 1906 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR PEMBROKE

Applicant

AND:
MS DEWITT

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE MURDOCH

DATE OF ORDER:

17 FEBRUARY 2025

THE COURT ORDERS THAT:
1.All previous parenting Orders relating to the child X born in 2013 (“X”) be discharged.

Parental responsibility
2.The Mother has sole parental responsibility and decision making responsibility for X.
3.Before any major long-term decision is made by the Mother in relation to X pursuant to Order 1 2:
3.1.The Mother will notify the Father in writing of any basic information considered by the Mother as directly relevant to the proposed decision via SMS/email.
3.2.Within 3 days of the Father receiving such notification, the Father may comment to the Mother or provide the child’s treating medical practitioners and/or school with the information he asserts is important or relevant for the treating medical practitioners and/or school to take into account in formulating treatment for the Child.
3.3.If there is no response from the Father within the time specified in Order ~~2.2~~ 3.2,the Mother may make such decision as she thinks is in the best interest of the child without further notice to the Father.
3.4.If the Father comments in relation to the proposed decision, the Mother must take the Father’s comments into account before making a decision.

Live with/time with arrangements
4.X is to live with the Mother.
5.X is to spend time with the Father:
5.1.from 10am to 1pm on the Saturday immediately preceding Good Friday each year;
5.2.from 10am to 1pm on 20 December each year;
5.3.from 10am to 1pm on Father’s Day each year; and
5.4.at all other times in accordance with the Child’s wishes.

6.X’s time with the Father pursuant to Order 4 5 is to be supervised by B Contact Centre or such other external supervision agency as agreed by the parties in writing with the costs of supervision to be paid by the Father.

Changeover
7.The Mother and/or Mr C will deliver X to the supervisor at the commencement of X’s time with the Father and shall collect X at the conclusion of such time.

Communication and provision of information
8.X shall otherwise communicate with the Father in accordance with his wishes.
9.To give effect to Order 7 8, the Mother shall support X to communicate with the Father by telephone, in writing including by text message, or by other means of electronic communication, including but not limited to, email, ‘Skype’, ‘Facetime’ or equivalent digital AVL technology.
10.Unless otherwise agreed between the parties, communication between the parties about X’s care welfare and development will be in writing by SMS or email, except in the case of a medical emergency when communication will be by whatever means is most practicable, including telephone.
11.The Mother will authorise the school at which X attends to provide the Father with copies of all school reports for X.

Notice
12.Each party will keep the other informed of their current residential address, mobile telephone number and email address.
13.The Mother will notify the Father within 24 hours if X is ill or injured such that he requires urgent medical attention, such notice to include the name and contact details of any medical practitioner consulted in respect to the illness or injury.

Overseas Travel and Passports
14.The mother is permitted to take X overseas for the purpose of holidays during school holiday periods X is in her care and/or at other times as may be agreed in writing between the parties, provided that the mother:
14.1.at least thirty-six (36) days prior to departure, provide the father with notice of the intended travel dates and destination(s);
14.2.at least 7 days prior to departure, provide the father with the following documents/information:
14.2.1.a copy of the itinerary for the period between the dates of departure from and return to Australia;
14.2.2.a copy of the return airline or boat tickets for X and the travelling parent; and
14.2.3.the name, telephone number, and address of the place(s) X will be staying overnight while overseas, but if all accommodation has not been booked prior to departure, the travelling parent must inform the other parent of these details prior to X staying overnight at any place overseas.

15.Within 7 days the father will do all things necessary to return X’s United States of America passport to the mother.
16.The Mother may apply for an Australian travel document (passport) for X without first obtaining the consent of the Father and shall be the only person with ‘parental responsibility’ of X for the purposes of applying for, and being issued with, X’s passport.

Costs of the Independent Children's Lawyer
17.Within 90 days the Mother and the Father each pay to Legal Aid NSW the sum of $9,083.80 as their contribution toward the Independent Children’s Lawyer’s professional costs.
18.All extant applications and responses thereto are otherwise dismissed.

THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as indicated in Orders 3, 3.3, 6 and 9.

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

These are parenting proceedings concerning the sole child of the relationship between Ms Dewitt (“the mother”) and Mr Pembroke (“the father”), X who is currently 11 years of age (“X”). X was less than two years of age when the parties’ two year relationship ended in 2014. Since this time he has lived with the mother.
Much of X’s short life has been shadowed by the litigation between his parents. The father initially commenced proceedings seven months after the parties’ separation. Those proceedings were finalised by consent orders made on 5 February 2018 and 1 November 2018 and broadly provided for the parties to share parental responsibility and for X to spend time with the father on a graduating basis, culminating in an 8/6 arrangement in the mother’s favour per fortnight in the school term. For the subsequent three and a half years a functional co-parenting relationship existed between the parties and time progressed positively until 28 November 2021, when X’s time with the father ceased subsequent to X making an allegation that he had been assaulted by the father.
The father commenced these second tranche of proceedings on 27 May 2022. Pursuant to interim orders made on a defended basis on 18 September 2022, X commenced spending supervised time with the father in November 2022. Following the release of the single expert report in February 2024, the parties were working towards X again spending substantial time with the father, with unsupervised time commencing in April 2024. After the second overnight occasion of unsupervised time, X alleged a further assault and his time with the father ceased once more. X has not spent any time with the father since this occasion.
It is clear that X’s relationship with the father is significantly fractured. The mother contends that X should spend time with the father on three occasions a year as a consequence of both the father’s conduct and X’s stated fears and refusal to spend time. The father contends that the mother has caused X to fear the father and that she is unwilling or unable to facilitate the father-son relationship, which leaves X susceptible to emotional and psychological harm. It is his primary position that X’s time with him graduate to a week about arrangement.
THE EVIDENCE
A direction was made at the commencement of the hearing that no annexures to affidavits or exhibited documents would be read in the matter until they were individually tendered and specifically referred to during the course of submissions.
The father relied on the:-
·Outline of Case and attached Minute of Order filed 28 November 2024[1];
·His Affidavit filed 28 October 2024;
·Affidavit of Ms D filed 12 November 2024;
·Affidavit of Ms E filed 7 September 2022;
·Affidavit and annexed report of Ms F filed 10 April 2023;
·Child Impact Report of Mr G filed 5 September 2022; and
·Single Expert Report of Dr H filed 12 April 2024.
[1] Exhibit F1
The mother relied on the:-
·Outline of Case and attached Minute of Order filed 29 November 2024[2];
·Her Affidavit filed 28 October 2024;
·Affidavit of Mr C filed 28 October 2024;
·Notice of Risk filed 24 May 2023;
·Undertaking as to Disclosure filed 28 October 2024;
·Her Issues in Dispute document filed 4 November 2024[3]; and
·Her List of Contended Factual Findings filed 15 November 2024.[4]
[2] Exhibit M1
[3] Exhibit M3
[4] Exhibit M2
The Independent Children’s Lawyer relied on the:-
·Outline of Case filed 29 November 2024;
·Joint Chronology filed 21 November 2024[5];
·Child Impact Report of Mr G filed 5 September 2022; and
·Single Expert Report of Dr H filed 12 April 2024.
[5] Exhibit J2
This is a complex and nuanced matter encompassing a significant volume of material. All counsel appearing at the final hearing assisted me significantly by the manner in which they conducted their client’s case, not only in their cross-examination but also their relevant and helpful submissions and I thank them for their assistance.
CHRONOLOGY AND FACTUAL FINDINGS
The father was born in 1976 and is currently 48 years old. The mother was born in 1988 and is currently aged 36. Both were born in Australia though the mother was raised in the United States and returned to Australia in 2011 at age 23.
The parties met in 2011 and commenced living together at the father’s home in Suburb J in late 2012. X was born in 2013. The parties separated in August 2014 when X was less than two years old. At this time the father moved out of the shared home temporarily.
Historical Allegations of Family Violence
The mother deposes as to specific allegations of family violence perpetrated by the father both during their relationship and post separation including that:
·He frequently shouted at her in anger, and called her names including “crazy”, “sick in the head”, “bitch”, and “mentally ill”.
·When she was pregnant, she had a terrible cough and the father made her sleep on the floor and told her to “shut up that fucking coughing.”[6]
·On two occasions in late 2013, he pushed her against the wall of their home.[7]
·The father criticised the way the mother cut tomatoes and yelled at her for buying the wrong milk.[8]
·On one occasion the parties had an argument and the father demanded the mother leave the home with X, who was just a baby at the time. They slept in the car overnight.[9]
·In late 2013, the father said “Look at you, you’re fucking sick! Look at you!” and pushed the mother to the ground at Suburb J train station saying, “I’m tired of fucking trying.”[10]
·In April 2014, the father forced the mother and X to leave the home, telling them to “get out”. They stayed at a relative’s home for several nights.[11]
[6] Ibid, paragraph 68.
[7] Ibid, paragraph 72.
[8] Ibid.
[9] Ibid, paragraph 74.
[10] Ibid, paragraph 75.
[11] Ibid, paragraph 76.
Despite the mother’s allegations of family violence being pleaded with specificity, the father fails to address the majority of the allegations, nor does he provide an alternate version of events in his thirty-nine-page affidavit. He did not seek leave to file or adduce any evidence in reply, oral or otherwise. The only allegations the father responded to in his written material are those for which there is uncontroversial evidence; such as a text message.
Neither of the parties was cross-examined as to each and every specific incident. Some of the cross-examination of the father related solely to his failure to respond to the mother’s allegations rather than the mother’s actual evidence being put to him; for example he was frequently asked if he remembered reading an allegation in the mother’s written evidence rather than whether the incident actually occurred. The cross-examination of the mother focused on her allegations as to physical violence, noting that a feature of the father’s case was that the mother’s failure to report physical violence to various third parties including the Police grounded a finding that it had not occurred.
Whilst the father’s evidence in response to the mother’s allegations of physical violence is less than satisfactory, the mother bears the onus of proof. I am not satisfied that the evidence grounds a finding that the father perpetrated physical violence upon the mother by pushing her, either against the wall or at the train station, because:-
·It appears that the first time the mother alleges physical family violence is in her affidavit prepared for this second tranche of proceedings.
·The mother’s partner Mr C does not mention her family violence allegations at all in his affidavit. The mother’s evidence when asked about this was that she may not have spoken about all of the details of the abuse she endured.
·The mother did not report any incidents of physical assaults to the Police in late 2021 when reporting a later alleged incident as recorded above.
·During interviews for the 2017 Family Report on 9 October 2017 with Ms K, the mother revealed that the family violence perpetrated by the father upon her was “primarily emotional” and there was also verbal abuse “with him preventing her speaking about her feelings and saying that she was ‘crazy’ when she tried to tell him about how she felt.”[12] Whilst X told Ms K that “my daddy hits my mum and says mean things to her”, X stated that he knew this as the mother had told him. X was four years old at this time.
·The mother maintained to Mr G in the 2022 Child Impact Report interviews that “her allegations about [Mr Pembroke]’s behaviour towards her in 2014 were accurate in that he was easily angered, raised his voice, and encroached her personal space in an intimidating and scary way.”[13] There are no allegations as to the perpetration of physical violence.
[12] Exhibit F7, Family Report of Ms K, paragraph 36.
[13] Exhibit F5, Child Impact Report of Mr G, paragraph 39.
The father conceded during the course of his cross-examination and I find that he had called the mother names such as:-
·crazy;
·sick in the head;
·bitch;
·mentally ill;
·a nasty piece of work;
·self-righteous; and
·frequently suggested she was lacking in gratitude.[14]
[14] Mother’s Affidavit, paragraph 66.
Text messages tendered between the parties from 27 October 2014 and 5 January 2015 indicate the father’s contemptuous and hostile attitude towards the mother, some examples being:
·On 9 November 2014 at 9:20pm: “What is not okay is your self-righteous stubbornness that invariably leads to you not listening, being argumentative, unhelpful, ungrateful, hurtful, hypocritical and disregarding blatant facts just to win an argument… I cannot describe the resentment I feel towards you over comments like those…seriously [Ms Dewitt], you come from a different planet to me.”[15]
·On 16 November 2014: “You underestimate how much harder you made it for yourself by being lazy and feeling sorry for yourself. I was there [Ms Dewitt], covering for you and doing so much more than the typical man. The only reason I put up with your crap for so long was because I knew how difficult the first 12 months is. You’ve improved because you have to…if I were there you’d still be in the same pattern of avoidance, self-pity and abuse.”[16]
·On 4 December 2014: “Hey, the ‘volunteering’ you do is to ultimately help yourself so please don’t sit there and try to make out like you are helping sick children or homeless people from the goodness of your heart. That is truly sick, twisted logic. You are trying to help yourself and it is me and my mother that are supporting that so again, a little more gratitude would be more than appropriate. You push me too far [Ms Dewitt] and the support will end.” [17]
·On 13 December 2014 at 9:50pm: “Btw, you went out on Tue night as well as so that makes 3 times in the last fortnight…when u [sic] start to give me attitude about me leaving when I am being kind enough to let you and our family stay in my place that really takes it to another level. It’s like you to just try and find new and more spectacular ways to be an ungrateful bitch….and succeed!”[18]
·On 17 December 2014 at 5:56pm: “if u [sic] want to be an arsehole and disregard all the times i [sic] have been there for you then I will be to you also.” [19]
·On 29 December 2014 at 8:07am: “I never expected praise and reward for this…just basic respect and perhaps a little gratitude, which you have made a point of never actually showing.”[20]
[15] Exhibit M4.
[16] Ibid.
[17] Ibid,
[18] Ibid.
[19] Ibid.
[20] Ibid.

I am satisfied having regard to all of the evidence including the father’s own concessions as to his abusive and derogatory forms of dealing with the mother and the further material contained in paragraph 20 below that, on balance, he has perpetrated family violence upon the mother by way of verbal and emotional abuse both during the relationship and post-separation as alleged by the mother and recorded above. His communications with the mother have been, at times, hostile, demeaning, aggressive and threatening.
In December 2014 the mother’s father and brother travelled to Australia from the United States to spend time with the mother and X for Christmas. This period was fraught with conflict between the parties, and during this period, unbeknownst to the mother, the father took X’s Australian and US passports from the Suburb J home.
The Father’s Threats of December 2014
In December 2014 the parties argued about various matters including arrangements for Christmas Day. At this time the mother turned on her mobile phone and recorded the parties’ conversation which included the father saying to the mother:
No, what will happen is you’ll all get fucking thrown out on the street and I’ll fuckin beat the shit out of every last one of you okay, because it’s my place and I’m spending time with my son on Christmas morning…You push me and it’s gonna turn ugly….Don’t push me [Ms Dewitt], you’ve pushed me for two years and this I’m telling you is breaking point….It’s about to all fucking fall apart and I almost want them to come and challenge me so I can let fucking loose [it] before the fucking shit and anger that I have to deal with you for the last two years and you’ve fucking pushed me and pushed me and pushed me…
…
I decide who is here. When you pay for and own a place you can decide and I can’t say a single thing. As soon as anyone comes along, I decide. Don’t push me [Ms Dewitt]. I’m serious don’t push me.[21]
[21] Mother’s Affidavit, paragraph 81.
After the father made threats to “beat the shit” out of the mother and the maternal family the mother changed her Christmas plans and the father and paternal grandmother spent time with X on Christmas Day at the Suburb J home as sought by him.
In December 2014 the mother attended upon Suburb J Police Station and reported the father’s behaviour the previous week where the father had made threats to hurt her and her extended family. [22] The Police subsequently applied for an Apprehended Domestic Violence Order for the mother’s protection. The mother and X moved out of the Suburb J home on this date.
[22] Exhibit F6.
X subsequently spent ad hoc time with the father supervised by the mother in public places.
The father commenced proceedings on 26 March 2015 seeking orders for time with X.
The application for the Apprehended Domestic Violence Order stemming from the mother’s police report of the father’s behaviour was heard and ultimately dismissed in early 2015.
The father commenced living with his current partner, Ms D (“Ms D”) in mid-2017. The couple have one child of their relationship, M, who is aged five. Ms D also has a child from a previous relationship, L, who is 11 years old. X and L are in the same year at school and until this year both attended N School.
Final Orders made 5 February 2018 and 1 November 2018
The initial proceedings were resolved by consent on 5 February 2018 just shy of three years of litigation. On 1 November 2018 overseas travel orders were made and the final parenting orders varied by consent.
From June 2019 X spent time with the father from after school Thursday until before school Monday morning in one week, and Wednesday after school to before school Friday morning in the second week on an alternating basis, together with half school holiday periods and on special occasions. During this time the parties’ communication and interactions improved such that the parties were able to be flexible in their parenting arrangements.
The Couch Incident –November 2021
In November 2021 X commenced a four-night stay with the father. Prior to school on the following day, there was an incident at the father’s home between the father and X, which was referred to as “the couch incident” throughout the final hearing. Later on this day, the mother telephoned the father about collecting X early from school at the school’s request. The father raised X’s behaviour with the mother, stating on a phone call that X’s behaviour has been difficult in the first 12 hours of their time together and that he had been having a bad attitude more frequently; he asked the mother if she had observed the same. She responded that she “sometimes” had similar issues with X. The father later sent the mother a text message stating “he’s fine, and behaving better.” The mother replied: “Thanks, I’m glad to hear. Have a good weekend, maybe we can FaceTime tomorrow.”
When putting X to bed on the first night back in the mother’s care X asked the mother if he had to go to the father’s home on Wednesday. Upon being told that he did, X burst into tears and alleged that the father had called him the “D word”, spelling it as “D-I-C-K” after he told the mother he could not say the word. X was emotional and crying. Whilst placing his hands around his throat he then said that:
Dad threw me on the couch and choked me for like fifteen seconds.[23]
… It happened last Friday. I don’t want to go back. [24]
[23] Mother’s Affidavit paragraph 33.
[24] Mother’s Affidavit, paragraph 34
X told the mother he did not know why it happened. He was visibly distressed, rocking back and forth and the mother comforted him until he settled down and fell asleep. The mother did not contact the father at that time but called her Pastor and spoke to him.
The mother reported X’s disclosure to Suburb O Police the following day. Police attended the home and conducted a video interview with X. A second recorded interview was conducted at Suburb O Police Station.
The transcript of the first police interview with X in November 2021 at the mother’s home records that X told Police that he was standing up when the father picked him up with two hands on the back and threw him onto the couch, and then held his neck with one hand for 10 to 15 seconds for no reason. Whilst he did this, the father said to X that X “was the reason why the house is bad.” When the father placed his hand around his neck it affected his breathing and hurt “a little bit”. He did not know why the father had become angry. When this occurred he felt scared and he emphasised that he did not want to return to the father’s house.
..my dad picked me up and threw me into the couch and tried to [unclear] for a little bit.
…I was standing up…Just picks me up and throws me onto the couch.
The transcript of the second police interview, occurring on the same day though at the Police Station, records X making the same allegations and confirming that he had not told the Police any lies.
In December 2021 Police conducted a video interview with the father at his home. When told that the Police wanted to obtain his version of events, the father responded that he guessed the allegation had come from the mother and asked what would happen if he did not talk to the police as “I’ve done this dance before with – with his mother and so there’s a lot of scar tissue there.” [25] The father initially stated that he did not know what to do as: “..it brings up a lot of bad memories but I am also aware of the fact that by being open and honest in this process, it can come back to bite me …it gets twisted and manipulated I have to go through to end up in court for there to be some form of justice” [26]
[25] Exhibit J3.
[26] Exhibit J3.
The father then stated that at eight years old, X is easily manipulated. When asked about his own relationship with the mother, the father said the relationship had been much better but “you know, I’ve got two police in my house, she has accused me of assault.” Police informed him that it was not the mother but X who accused him of the assault, to which he laughed and added “this is what happened way back and then she made up a whole heap of stories to justify that.”[27] When advised of the allegation, the father immediately asserts that its source is the mother.
[27] Exhibit J3 – Police interview with father regarding couch incident.
After stating that he was disappointed but not surprised the mother had not contacted him prior to calling the police, the father stated in respect of the incident that:
·X was annoyed at him because he had roused on him and told him to close his laptop. X had become sulky and told the father that he hates him.
·M, who was two years old at the time, had approached X to play with him. The father did not see what happened but he heard a crash and M scream then saw M on the floor with X standing over him with a raised arm.
·The father walked over and grabbed X under the armpits with both hands and moved him away saying “Don’t you do that to [M]!” and “You don’t hit your little brother, you don’t hit your little brother” and picked X up, put him on his shoulder and took him up to his bedroom. The father told him to stay there and left for a minute or two before returning a minute or two later and told X to come back down and apologise to M, which he did.
·The father unequivocally denied placing his hands around X’s neck and/or strangling him at any time.
The Police recorded that they did not hold fears for X’s safety and believed that X may have misinterpreted the father’s intention of discipline.[28] No further action was taken. On this same day, the mother took X to see his local GP Dr P and reported to him what X had told her.
[28] Exhibit F13.
The father’s written evidence is consistent with his interview with the police save that he states when he first placed him down it was on the couch. It was only when speaking to the single expert that the father further disclosed that after X had told him that he hated him and was sulking he told X that he was “behaving like a little shit.” [29] He conceded that this response was regrettable.
[29] Single expert report, paragraph 24.
X’s retelling of the incident to the single expert differs, with X being recorded as stating that whilst at the father’s home:-
·X was “fake-coming-close to” M and M became scared of him, even though he did not “touch him.”
·The father then picked him up and started yelling at him “what did you do to [M]?” X responded “nothing” but the father “still picked me up and threw me on the couch. Then he choked me I guess.” [30]
·When asked for further detail, X stated:
Say I’m lying down on the couch and he was like this [gestures, smiling at the clinician]. Then he picked me up carried to room, threw me on my bed, and slammed the door behind him. I lie in room crying. Then I had to get ready for school, then it was a regular day.’ [X] said his father acted like nothing happened, with no further discussion, and then driving [X] to school. Asked whether [X] spoke to [M], he said no. After a ‘normal school day’, he said his mother picked him up. After that, ‘I just lived like a regular kid would live, pretended nothing happened, then told Mum before bed. In the morning, I went to school normally, and Mum called the Police. When asked what for, [X] said, ‘I don’t know, the incident. We went to the police station. The Police interrogated us. Then we lived our daily lives.[31]
[30] Single Expert Report, paragraph 70
[31] Single Expert Report, paragraph 70
I accept that the incident was precipitated by X sulking and the father telling him that he was “behaving like a little shit.” Such a response is clearly not appropriate, and displays the father’s inability to self-regulate to X’s detriment. It echoes the father’s inability to self-regulate in his interactions with the mother.
I accept that the father was erroneously of the view that X had harmed M.
X has consistently stated that his father threw him on the couch. Whilst the father’s versions have differed in this regard, he stated this to the Police. I find that the father picked X up and threw him onto the couch. Having regard to his response to X’s sulking, I find that this was done with some force. I am not satisfied that the father “choked” X in the traditional sense of the word as I accept the single expert’s opinion that the account of the alleged choking provided by X in the two police interviews did not evidence features consistent with a view that strangling was likely to have occurred as a person being strangled for “10-15 seconds” would experience more distress as it was not challenged. I am satisfied however that the force and/or shock of the father throwing X on the couch may have caused X to experience some difficulty breathing.
On 2 December 2021 when X and the father spoke on the phone the following conversation ensued:
The father:      “How are you buddy? What is happening? What’s wrong?”
[X]:                “You hurt me. You’re always hurting me.”
The father:      “That’s not fair buddy. What are you talking about? When?”
[X]:                “Like when you knocked my tooth out.”
The call ended shortly after this and the father deposes that he sent the following text to the mother:
[Ms Dewitt], you may think you are helping [X] …but you aren't. Anyway, you’ve knowingly deceived me today and breached the Orders. I imagine if I did the same you'd have contacted the police by now. Moving forward, I suggest make up time next Wednesday. I’ll pick him up from after care and he’ll be with me till school on Monday morning. [32]
I find such correspondence to be further reflective of the father’s negative attitude towards the mother and representative of the ongoing hostility in his communications with her that is unhelpful to his case.
[32] Father’s Affidavit, paragraph 16.2.
The tooth incident to which X refers in the above exchange is deposed to by the father in his written evidence. He asserts that during the school holidays two months prior to the phone call, one of X’s front baby teeth was loose, and whilst they were playing “kick and catch” with a miniature football, the father tapped the ball out of X’s hands which hit him in the mouth and knocked out said tooth with impact. There was some blood and X looked “like he might faint” however after a brief break, X walked home and posed for a photo with his tooth. This is an example of X either exaggerating, embellishing or fabricating events to avoid coming into contact with the father.
The mother did not send X to school on 3 December 2021. In ordinary circumstances the father would have collected him that day. X did not spend time with his father again until 19 November 2022, almost one year later.
The mother facilitated X’s attendance upon Ms Q, counsellor, on 9 December 2021. At the request of the mother Ms Q prepared a written report which broadly observed that X’s relationship with the father is “problematic”, however the short session did not afford her the opportunity to make a full and accurate assessment. She did recommend that until the issue between X and his father was resolved X should spend supervised time with the father. X attended Ms Q for one further session in January 2022. He did not attend any other psychologist for individual therapy until he commenced with Mr T on 4 April 2023.
“The Pub Incident” of late 2021
The New South Wales Police COPS notes recording an incident at a pub in Suburb R, NSW in late 2021 (“the pub incident”) in which the father was a Person of Interest (“POI”).
…the POI…advised police that while drinking he and the PN had become angry at the VIC, due to his beliefs surrounding COVID restrictions. As the night has gone on and parties have continued to argue and become more intoxicated…The POI has then pushed and stood over the VIC, before security has stopped the altercation.[33]
[33] Exhibit M6.
The victim declined to provide a statement so an assault investigation could not progress, but the father was given a move-on direction due to his “level of intoxication and resultant behaviour.”[34]
[34] Ibid.
Despite being aware of the existence of this material since its production in September 2022, the father did not adduce any evidence regarding the incident, nor did he seek leave to give oral evidence that would lay bare an alternate version of events. The father merely asserted during cross examination that his physical force was not used to intimidate, and that he was separating two friends who were about to get into a “situation.” In light of this evidence, I find that the father used physical force on this occasion.
In early 2022 the father attended an intake session with S Centre for mediation. The mother attended a month later. S Centre deemed the parties unsuitable for mediation.[35] In early 2022 the father attended intake at V Centre and mediation was offered to the parties in mid-2022. At the request of the mother, the mediation occurred with the assistance of the parties’ legal representatives. No agreement was reached and a section 60I certificate was issued.
[35] Mother’s Affidavit, paragraph 183.12.
The father filed an Application – Enforcement on 27 May 2022 seeking orders that the mother comply with the final parenting orders in circumstances where he had not seen X since the prior December.
The mother married her current partner, Mr C (“Mr C”) in 2022.
On 9 June 2022 the mother disclosed Ms Q’s report to the father.
The matter had its first return on 16 June 2022 and orders were made for the appointment of Mr G to prepare a Child Impact Report.
On 20 June 2022 the father’s solicitor wrote to the mother’s solicitor proposing to start professionally supervised time and invited the mother and her husband to be present should they wish. A further letter was sent to the mother’s solicitors on 15 July 2022 seeking a response. The mother did not agree.
The father informed the mother on 15 July 2022 that he had completed an anger management course and the Kids in Focus course.
Mr G opined in the Child Impact Report of 5 September 2022 that the parties at that time appeared to accept the need to engage “with any professional assistance that could improve their co-parenting relationship and help them to develop a framework for positive and respectful communication about [X] and his needs”.[36] He recommended reportable family therapy and that time between X and the father occur in a social/activity-based context such as at “[U Play Centre].”
[36] Exhibit F5, paragraph 73.
The mother completed the Tuning into Teens course after the release of the Child Impact Report.
Interim Orders of 28 September 2022
A defended interim hearing was conducted by a delegated Judicial Officer on 13 September 2022 and interim orders made on 28 September 2022 (“the interim orders”) that:
·The final orders made as to X’s time with the father be suspended until further order.
·The parties attend family therapy with psychologist Ms F and facilitate X’s attendance as may be recommended by the family therapist.
·X spend supervised time with the father each Saturday for a period of at least 2 hours commencing at 11:00 am with the father to nominate the supervisor and provided that the first and second occasions were spent at W Shopping Centre. The mother and Mr C were permitted to be present for the first two visits “subject to the consent and direction of the supervision service.”
·Neither party was to physically discipline or yell, swear at or insult X or any other person within the hearing of X.
·During times when X is in the care of a party that party shall speak of the other parent and their partner respectfully and not denigrate or insult each other in the presence of X.
Notations were made that the parties would use their best endeavours to ensure that X had regular time with his “half-siblings”, L and M, and agreed to complete the “Tuning into Teens” program or equivalent. The father completed the course on 22 November 2022. The mother had already done so prior to the orders being made.

On 29 September 2022, the father sent an email directly to the mother despite her being legally represented at the time to arrange a time for X to spend time with the wider paternal family. The mother’s solicitor responded requesting that the father not contact the mother directly and that he provide the requisite documents to engage supervision as required by the interim orders.
On 18 October 2022 the matter was listed for case management in relation to the father’s Application-Enforcement. The father on this date continued to press for a return to the 2018 orders. The Court was further informed on this date that supervised time was due to commence shortly. The Application-Enforcement was listed for a further interim hearing on 20 December 2022 and a mediation was ordered for attendance by no later than 31 March 2023.
Supervised Time Commences – 19 November 2022
X spent time with the father supervised by B Contact Centre at U Play Centre on 19 November 2022. The supervision report records that X remained silent when the father attempted to engage him in conversation and play, though he eventually began to speak to the father when they began playing a game and became more involved when they began playing and high-fiving on the slide with M. X looked “visibly upset” at the conclusion of the game and the visit ended early. It is uncontested and I find that upon the father leaving X buried his head in his knees and a tear came out of his eye.
The supervisor records that on X’s second supervised visit on 26 November 2022 the parties and X all met at U Play Centre again. X did not respond to the father greeting him but smiled and greeted his stepsister. X spoke to his father a little and they began chasing and throwing balls at each other with X beginning to “laugh and run around excitedly with a big smile on his face.” When X was on a higher level of the play equipment, he looked down and waved to the father who smiled and waved back. The mother was able to encourage X to stay after he advised he wanted to go home and he then interacted with the father more, laughing and waving at him.
Supervised time at the father’s home commenced on 3 December 2022. Whilst appearing initially nervous and taking some time to appear comfortable, X engaged in activities with the father and L including swimming, basketball and cricket.
On 9 December 2022 the father and X had joint family therapy with Ms F. The session did not go well, with X refusing to speak to the father. Ms F ended the session early and X cried in the car on the way home. On 13 December 2022 Ms F sent an email to the mother cancelling the joint session arranged for X and the father for 16 December 2022.
Whilst quiet and withdrawn after the supervised visit on 10 December 2022, this visit was positive with X settling quickly and engaging with the father and the rest of the family.
The next supervised visit on 17 December 2022 was not positive, with X ignoring and refusing to acknowledge the father, though he did eventually settle and play games with him.
On 20 December 2022, the father’s Application-Enforcement was heard by a delegated Judicial Officer. Judgment was reserved.
Supervised time on 21 January 2023 was cancelled by the mother after X refused to exit the car.
X spent supervised time again with his father on 4 February 2023. X initially refused to engage with the father but did so after being spoken to by the mother and Mr C.
4 March 2023 Incident
On 4 March 2023 the mother, Mr C and the supervisor encouraged X to go inside the father’s home for his next supervised time with the father, but he began to walk away and kept “shaking his head” at attempts to engage him. He did not respond to attempts by L or M to greet him. The mother and Mr C both encouraged X to go inside. In front of X the father said to the mother and Mr C “Are you guys happy with [X] attending today?” The supervisor records that they “appeared taken aback by this question” and did not respond. The father repeated the question twice more. The mother and supervisor both told the father they were trying. The contact supervisor records:
[Mr Pembroke] asked, “Is there any consequence for [X] if he doesn’t attend such as taking away his games?” and [Mr C] stated, “It’s not the time now”. I turned my face away from [X] (So he could not understand what I was saying) then explained to [Mr Pembroke] “These conversations are meant to take place between solicitors and not here in front of the kids”. [Mr Pembroke] replied, “We’ll this is the only time I can talk with them without them ignoring me as they have been for fifteen months”. I explained to [Mr Pembroke] that the ten minutes allocated in the beginning of the visit are such that the parents do not come into contact, then [Ms Dewitt] said “We’re trying. We can’t force him.” [Mr Pembroke] said “I’ll use the analogy of a swimming pool. If [X] doesn’t want to swim for many weeks in a row, we need to step in otherwise he won’t learn to swim”, and [Ms Dewitt] responded “We’ll we won’t throw him in the water, we need to keep talking and encouraging him”.
(As per original)
The father refused to wait inside whilst the supervisor spoke to X and said in front of him to the mother:
Since you’re saying [X] is old enough to make his own decisions, he can hear this. I want to know if you are happy with [X] entering my home today. [37]
[37] Ibid
The mother and Mr C stayed silent. The father again refused to wait inside when asked to do so by the supervisor, stating again in front of X:
No, I want to know what you guys are doing to encourage him, otherwise you’re not doing a good job as parents. [38]
[38] Exhibt M13.
The mother began crying and Mr C asked for the time to be cancelled. X, Mr C and the mother followed the supervisor’s instructions to wait up the street. Time did not proceed.
The father emailed B Contact Centre upon release of the contact report for this date asserting that there were “critical components that have not been mentioned at all, and others that are not accurate and do not present events in a fair and accurate light.” He asserted that, among other issues, in the course of asking Mr C and the mother whether they were happy with X attending, Mr C responded “not if he doesn’t want to.” The service responded that the supervisors write their reports “based on observations” and “can’t change them based on disagreement about what was said.”
On 28 March 2023 the mother met with Mr T, psychologist, to arrange the commencement of therapy with X. Ten sessions were conducted with X, one with the mother and two with the father. He suspended this therapy in September 2023.
4 April 2023 Interim Orders
On 4 April 2023, judgment was delivered and interim orders only were made in relation to the father’s Application-Enforcement. The father’s time with X pursuant to the final orders made on 5 February 2018 was suspended with time to continue in accordance with the interim orders made on 28 September 2023. The Enforcement Application was listed for a Compliance and Readiness Hearing.
X spent supervised time with the father on 8 April 2023. The father records this visit as being negative: though the visit commenced at 10:20 am, X remained outside until midday, and when he did eventually come inside he only stayed for half an hour and “gave [the father] the silent treatment for the whole time.”[39]
[39] Father’s Affidavit, paragraph 94.
Ms F provided a report as to the family therapy on 10 April 2023 after engaging in eight sessions with X (four of those being joint with the father), four individual sessions with the mother and four individual sessions with the father. She recommended that, broadly:
·family therapy between X and his father continue weekly, moving to fortnightly when X’s verbal engagement with his father improves;
·the parties attend joint family therapy to improve the co-parenting relationship;
·the mother and Mr C not be visible to X during consultations;
·weekly supervised visits continue and be reassessed when X engages with his father appropriately and effectively without third party assistance; and
·the parties and their partners attend Circle of Security and Tuning into Kids programs as well as Parenting After Separation.
On 12 April 2023 the father filed an Initiating Application seeking to discharge the final parenting orders that X spend time with him for four nights in week one and two nights in week two. He instead sought that X spend time with him during the school term each alternate week from after school Friday to before school the following Thursday. He ultimately discontinued the Application - Enforcement.
Father Files Application – Contravention on 6 July 2023
On 6 July 2023 the father filed an Application-Contravention listing the mother as the respondent.
Ms F suspended family therapy on 27 June 2023.
The father deposes and I accept and find that during X’s supervised time with him on 28 July 2023 X told the father to “go away” and began crying. He then kicked the father’s hand when he tried to comfort him then kicked the father in the side and moved away.
X’s maternal half sibling Y was born in 2023.
X’s Time with the Father on 21 August 2023
X spent supervised time with the father on 21 August 2023. The mother delivered X to the supervisor at the father’s home and left. Throughout the time X ignored and refused to speak with the father. The father explained it wasn’t healthy for X to ignore him and said to him that:
he was a 10 year old boy and he should act like that.
X continued to ignore the father. The supervisor records the father saying that:
fighting was exhausting and he just wanted things to be normal and said it wasn’t normal to behave this way and unhealthy…things needed to change and will change.[40]
It is unclear whether the father said this to the supervisor or directly to X.
[40]Exhibit F9 – Contact Report of 21 August 2023.
The father then asked X to stop being “such a cranky little boy”. The supervisor records and I accept that the father then said to X that there was nothing to be angry about, but encouraged X to talk to him if he thought there was. He further stated there was no way out other than talking to him like they used to before. I accept that the father then told X that “all the experts had encouraged [X] to talk to him” and suggested it would only start with a smile and him talking. Upon X audibly sighing, the father then said to X: “and not with being a smartass.” [41]
[41] Ibid.
I accept that, save for the last ten minutes of this time, X proactively ignored the father; including the father’s attempts to engage with him. On several occasions, X walked to a different location if the father came near him. At one stage X kicked the father and shook his head and walked away from the father when the father attempted to have X apologise to him. X finally agreed to play for the last 10 minutes of the visit. X had small smiles when watching M trip or struggle to play.
X’s Behaviour Towards M on 16 September 2023
X was delivered to the supervisor at the father’s home on 16 September 2023 without issue. The father said good morning to X who ignored him and walked upstairs and locked his bedroom door. The father asked if X wanted to watch a movie with M and L and X ignored him; the supervisor then asked and X said no. X ignored the father reminding him that “you know the rules we do not lock doors in this house”. He eventually opened the door at the supervisor’s request. After a further period of time ignoring the father, X eventually engaged in play with M and the father and “even smiled a few times during the game.” M hit the balloon they were playing with a beanbag. X did the same but hit M and smothered him with the beanbag and refused to let him out, ignoring both the father and the supervisor’s requests to do so. The supervisor eventually got X to let M out. X continued this on multiple occasions and X ignored his father’s attempts to redirect him.
X’s behaviour towards M on this occasion continued to be poor; he did not share his lollies despite being asked and wrestled M, grabbed a pillow and put it over his face. Upon being asked to stop, X placed M in a headlock and ignored requests from the supervisor and the father to stop. The supervisor was required to intervene and separate them. Upon being informed of the dangerousness of his actions, X denied he had done anything.
The father said to the supervisor that: “I do not know what I am allowed to say, or do as I do not want my actions to be misinterpreted nor do I want [M] to get hurt.”[42] He asked the supervisor to inform the mother of X’s behaviour.
[42] Exhibit F9.
X’s Behaviour Towards M on 4 November 2023
X’s time with the father on 4 November 2023 was supervised by a new supervisor that X had not met. During this time X was sullen and withdrawn, refusing attempts to be engaged. He did play with the father but remained verbally non-responsive. He did not respond to offers for lunch and walked out to play by himself.
With 10 minutes of the visit remaining X played with a ball and threw it in M’s direction, hitting M in the head. The supervisor recorded her belief that it was on purpose and “skilfully executed.” The father said he believed it to be an accident. Whilst X eventually said sorry, he also stated that he didn’t care he hit M. The supervisor opined that “he sounded quite choked up, so I believe he was experiencing a lot of painful emotion.” X “appeared relieved to be leaving.” The supervisor shared the day’s incidents and the mother “expressed appropriate concern.”
The parties, their partners and X attended upon the offices of the single expert on 26 September 2023 for interviews and observations.
On 11 November 2023 X initially refused to enter the father’s home with the supervisor and the supervisor had to remind him of the dangers of waiting outside on a busy street. The father greeted X who ignored him and walked into the house, upstairs into his room and locked the door. X continually ignored requests to unlock the door. The father warned X that if he did not unlock the door he would have to remove the handle. X ignored this and the father “calmly removed” the door handle. He reiterated that “you know we don’t lock doors in this house, all I ask is that you please keep the door open.” The father asked X to look at him and X continued to ignore him. X continued to read his book, non-responsive to any attempts by the father and the supervisor to engage him in play and activities. X eventually engaged when the father brushed a balloon on him to play with and began tickling him – he “instantly started laughing, and smiling and he said stop in a laughing manner.” Without notice X then kicked father. X did not join in swimming with his siblings despite being offered to but played with the supervisor. X ignored the father’s attempt at saying goodbye.
When left with the supervisor to walk into the father’s home on 16 December 2023, X turned around and began walking from the house towards the road. The supervisor told him that it was “out of bounds” and he ignored her and remained silent. X refused the supervisor’s attempts to engage him in activities. The father came out to greet him and X ignored him, and again walked to the side gate leading to the road. The supervisor asked him to come into the house and he ignored her, then the father asked the same and he ignored again. The father said “[X] it’s only for a few hours as per orders, please come inside.” X ignored him again.
The father then asked if he wanted his mum to be called and to go home and X ignored him. The father showed him his old Rubik’s cube that was left and a new one he had bought for X. X looked but ignored him. X continued to ignore the supervisor’s attempts to get him inside and refused to help fill party bags with lollies for a party. The father, L and M made a lolly bag for X and when the father attempted to give it to X, X pushed his hand away. X again ignored his father’s attempts to say goodbye to him. The supervisor explained the day’s events to the mother and Mr C who “offered no comments or assistance and were nonresponsive to what [the supervisor] had outlined.”
On 2 February 2024 the father’s contravention application was listed before a Judge of this court. The application was pressed by the father and was adjourned to the first day of the final hearing. The matter was listed for an interim hearing on 17 May 2024 conditional upon the filing by the father of an interim application and the parties attending mediation.
The father filed an interim application on 5 February 2024 seeking orders that broadly:
·Supervision be removed except for at changeover.
·X’s time with his father be extended so that eventually, on a graduated basis X spend every alternate weekend with the father from Friday to Monday in addition to seven day block periods in the long school holidays.
·The mother must leave the father’s home address and suburb immediately following X’s delivery.
X spent supervised time with his father again on 17 February 2024. After hours, the mother contacted the support service for the contact centre as X advised her that the father had grabbed him during the visit. The service responded that the supervisor relayed that the father was appropriate, that she would have intervened if that was not the case, and that X refused to engage with anyone during the visit. The mother responded again that she was concerned as X “came back from the visit distressed” and said his father had grabbed him by the arm and physically moved him twice, leaving a red mark. [43] I accept that if this incident had occurred it would have formed part of the recorded notes. I accept and find that this did not occur as alleged by X. This is a further example of X fabricating events to avoid spending time with the father.
[43] Exhibit F9.
The single expert’s report was released to the parties in February 2024. On 6 March 2024 the mother sent an email to the father proposing an arrangement whereby X would spend unsupervised time with the father. By way of her Response to an Application in a Proceeding filed 25 March 2024 the mother sought orders for X’s time with the father to progress largely in accordance with the single expert’s recommendations.
X spent supervised time on 16 March 2024. He refused to eat any food made for him by the father.
Unsupervised Time Commences 30 March 2024
By agreement between the parties X spent unsupervised time with the father on 30 March 2024 for six and a half hours. It took 10-15 minutes for him to separate from his mother. They had an Easter egg hunt and sat at the beach to have fish and chips but X sat away from the family, refusing offers to eat. He did not say goodbye to the paternal family.
On 3 April 2024 the parties agreed for X to spend further unsupervised time with the father on 6 and 13 April 2024.
The April 2024 Incident
In April 2024 X was attending youth camp near Suburb Z. Mr C collected him from the youth camp and drove him home so that he could spend time with the father. When the father attended the home to collect X, X refused to leave with his father. The father conceded during cross-examination that he said “fuck you [Ms Dewitt]” to the mother and left.
The mother asserts this was in X’s earshot as he was sitting next to her at the time. Mr C deposed in cross-examination that X had moved away as he and the mother had attempted to shepherd him away, but he was still in the father’s line of vison and within earshot when the father made such comment. Whilst the father denies this, he conceded in cross-examination that he did not know where X was at the time he said it.
X refused to attend and time did not occur. Both the mother and Mr C depose that X was within earshot and I accept their evidence. In any event, in circumstances where the father conceded that he did not know where X was, I accept and find that the father said this to the mother when he was unaware whether X could hear, providing a further example of the father’s inability to regulate his emotions.

There is no evidence as to what time, if any, occurred on 13 April 2024.
The parties attended mediation on 18 April 2024.
Unsupervised Overnight Time Commences 20 April 2024
By agreement between the parties X attended his first overnight visit with the father on an unsupervised basis with a supervisor facilitating the changeover. It was uncontested and I find that X was resistant to attending. He refused to walk to the car and pushed himself against a wall, banging his head against it. X then ran down the street requiring the mother and the supervisor to run and catch up with him.
X arrived to the father two hours after the agreed commencement of time. The father deposes that when X arrived he looked unhappy and the father “felt an overwhelming urge to give him a hug but patted him on the shoulder instead…”[44]The father asserts however and I accept that the visit was “mostly positive” and X engaged with the father and M.
[44] Father’s Affidavit, paragraph 143.
On this occasion, the father heard banging upstairs when X was in his room. The father realised it was X banging and that he could not open his bedroom door as “the inside handle has no internal mechanism to activate the latch.”[45] The father then put a door snake on the ground and indicated it was best to keep the door open as it was yet to be fixed.
[45] Father’s Affidavit, paragraph 143.
The Backpack Incident –April 2024
X attended the father’s home for the second period of agreed unsupervised overnight time in April 2024 from 10:00 am until 6:00 pm the following day. It was unchallenged and I accept that the week prior to this occasion X had said to Mr C “I don’t want to go. I’m afraid.”[46]
[46] Affidavit of Mr C, paragraph 44.
The following morning at 9:22 am the mother received the following text messages from X:
He yelled at me and sweared at me
And jumped at me
He grabbed my leg because I said I had a cgoice
Choice
….
I’m fine
A choice of like what I want
I can’t call
He said just act like a normal boy for the rest of the day
…
He says I’ve been brainwashed
And what will I do when this goes to me saying for a week
Or month
Then eventually a year
He took my snacks too [47]
(As per original)
[47] Exhibit F12.
The mother continued to correspond intermittently with X throughout the day via text until he returned home. Upon his return home X said to the mother and Mr C that:-
I woke up and was laying on the bed reading a book and took out [chips] from my bag. I only had like three [chips] and Dad came into the room and took them and said “We do not have [chips] for breakfast”. I said: “Okay.”
He took my bag off the bed and starts searching though my bag….
Dad said: “Why can’t you be like a normal eleven year old boy? Do you want to see the reports? … because they all say the exact same things, [Ms F], [Dr H], [Mr T], they all say you need to have a healthy relationship” Then he called me a ‘smart ass’.
I said: “I have a right” and he said: “No you don’t” then I said “Yes I do” then he yelled “No you don’t!” and he leaped forward and slapped his hand down on my leg and grabbed it hard. It hurt a lot. I curled back toward my pillow and was crying. Then he let go of my leg and backed up. [48]
[48] Mother’s Affidavit, paragraph 209
X then told the mother there was a mark on his leg, and the mother observed red marks on X’s leg in the shape of a hand. In evidence are three photos of X’s leg taken by the mother that clearly show three distinct horizontal red marks of differing lengths on the front of X’s leg. The marks are not inconsequential in their colour or size (both length and width).
The father conceded in cross-examination that he had said to X, as alleged by X, that he told X he was being brainwashed, and that “it’s not hard to brainwash an eight year old kid”.[49] He also conceded that:
·He said to X words to the effect of “why can’t you be a normal eleven year old boy”; and
·At one stage he said to X “do you want to see the reports”.
[49] Mother’s Affidavit, paragraph 209.
The father had not mentioned this event at all to the mother when the parties had exchanged text messages over the course of that weekend. It is uncontested that the mother text messaged the father asking him what had happened. There is no evidence that the father responded to this message.
The parties attended an unsuccessful mediation with Ms BB in April 2024 for two hours. Immediately following the mediation, the mother took X to his GP, Dr AA. The three marks were still visible to Dr AA when he saw X in April 2024. They were described by him as being three marks of approximately 5 cm in length and 1cm width "horizontal, evenly spaced, and mildly erythematous. The most distal of these […] was mildly tender."[50] I accept the doctor’s recorded observations of the red marks at that time. The marks are concerning and cause me significant disquiet.
[50] Exhibit F23.
The mother reported the allegation to Police in April 2024, who interviewed X at Suburb O Police station. Police interviewed the father at his home the next day.
X’s reporting to the police as to what precipitated this incident is consistent with his reporting to the mother; he uses both the words “slap” and “grab”. He alleged that the father “kind of leaped at me and he grabbed my leg and kind of slapped it, yeah….it was like a slap and then a grab.” He stated to the Police that this made him scared and he was crying. He reported that this makes him feel scared to go back to the father’s as:
..it could happen again, and we only just started doing unsupervised visits so it could happen again and it could escalate. [51]
[51] Exhibit J3.
When asked by the Police at his home as to what happened on this weekend the father’s immediate response was:
Um so look, there’s a long-long-long history here um about me and [X]’s mother [Ms Dewitt] um. To cut a long story short, incredibly short like my version is that she’s trying to steal him from me and we’ve been battling at the courts for a long time. [52]
[52] Exhibit J 3
After speaking to his solicitor the father then told the police his version of events which was that, broadly:-
·He went upstairs to X’s bedroom to see if he was awake and wanted the pancakes he was cooking for breakfast on the Sunday morning at approximately 8-8:30 am. Upon finding X in bed eating chips he told him that he could not be eating those for breakfast and to give him the box.
·Upon X’s refusing the father reached over to get the box and it ripped and X was becoming upset. He told X to give him the backpack and X refused so the father grabbed it. X lashed out at the father with his legs.
·The father grabbed his left leg and “pushed it down-and held it there for a moment while I kind of had his backpack in this hand.” The father then started going through X’s backpack.
·X was highly emotional and then quiet and X and the father subsequently spoke for approximately 15-20 minutes.
·He received a photo of X when he was dropped back to the mother with a message from the mother asking him what the marks are. The father repeated again that:
I don’t know how better to say it, the kid’s been completely brainwashed, and you know this is – this is an alienation case if there’s ever been one, it’s just, it’s so bleedingly obvious.
The father expressed his surprise that his action in holding down X’s leg “momentarily” could have led to the marks exhibited in the photo. He then told the police officers that after their conversation X went to the bathroom and they then went downstairs where X went to the bathroom on a further three occasions over approximately a half hour period. Though he did not think much of it at the time, the father after receiving the text message and pondering the day then suggested that X did something on these trips to aggravate the marks:
…like maybe he’s done something there to…aggravate or-..make things look worse than they are or something….then that goes back to the whole story of…the cunning what I’m up against in trying to not have my son um you know removed from my life basically.
..you know, he doesn’t want to be here, he’s been completely brainwashed..
The father’s version of events contained in his affidavit has some differences to that reported to the Police; he deposes that X let him have the chip box with little resistance and does not mention that the box rips and that when X screamed at him that it was his choice where he lives the father yelled back at him: “ It’s not your choice, it’s not your choice.” [53]
[53] Father’s affidavit, paragraph 150
The father does not depose in his affidavit as to X’s subsequent numerous attendances to the bathroom and his hypothesis that X had made/or exacerbated these marks himself, though his oral evidence was very clear:
COUNSEL:You believe [X] self-harmed because of the level of cunning going on between he and his mum to get him out of the house. That’s what you believe isn’t it?
FATHER:Yes.
…
COUNSEL:You just don’t accept that what you did to him caused him to get bruises, do you?
FATHER:I don’t accept that.
When asked during cross-examination why he didn’t inform the mother that X may be self-harming if that was his view, he asserted he did not know that the marks were there; he first became aware when the mother texted him the evening X returned home. There is no evidence as to why the father did not voice those concerns subsequent to the mother’s communication with him.
I do not accept the father’s hypothesis that X was so cunning as to engage in an act of self-harm to avoid spending time with the father and agree with the single expert that:-
·It is quite a strange thing for a child to be doing.
·The marks are at a potentially very difficult angle for a young child with his presumed hand size and finger size to achieve:
the width of the marks themselves give a greater impression of adult’s fingers than… a child’s fingers. It’s so far up the thigh, as I said, that it would be difficult for [X] to have actually achieved that without angling his fingers rather than having them at a 90-degree angle on the side of the thigh…
I further do not accept that the father himself genuinely believes that X self-harmed on this occasion as any belief would have been raised by the father, if not to the mother then to an independent third party, subsequent to the mother notifying him of the red marks on X’s leg. I further find on a consideration of all of the evidence above including the father’s cross-examination that the contention as to X’s self-harming is a device created by the father in an effort to bolster his case.
Having regard to X’s consistent reporting and the father’s own concessions, I am satisfied and find that the father caused the red marks to X’s leg. I do not accept that such red marks would have come about merely by holding X’s leg in place – there is no evidence of bruising but rather red marks indicative of some force. I accept and find on balance that the father’s hand meeting X’s leg occurred with such force as to cause clear red marks that remained for a period of at least 22 hours.
Further Instances Alleged by X
The mother asserts that the November 2021 and April 2024 incidents have not occurred in a vacuum; X has disclosed further details of the father’s temper to her, including:
“It starts with one thing like spilling the water jug and then he’s angry about everything. He throws me on the bed and tells me to stay there for like thirty minutes or an hour and it hurts ‘sometimes’. He sometimes slaps me and [M] on the face, but I’m used to it…”
[X] also said [Mr Pembroke] has said to him words to the effect:
“Stop being a dickhead!”
“Fuck! Fuck! Fuck!”
“You’re the reason why this house is bad.”
X made similar allegations to Mr G regarding the father’s discipline: the father “picks me up, carries me to my room, throws me on the bed and slams the door” and makes him stay in his room for between 30 and 60 minutes.[54]
[54] Exhibit F5, paragraph 25.
When asked to elaborate on his father’s temper during the single expert interviews, X’s narrative was again similar:
…‘he always gets mad if I have an accident.’…He said ‘normally his father just slaps or yells.’ When asked which one, [X] said ‘normally slap on my hand or arm’. When asked for detail, [X] changed his example to ‘he picks me up and takes me into my room and says stay in there until ready to come out.’
(As per original)
The father denied X’s allegations during the course of cross-examination. As set out above, he has conceded that he has told X “you’re behaving like a little shit” and that he has called X a little shit previously and I so find. The father denied ever saying “fuck” in front of X but conceded that his use of profanities is consistent with documentary evidence about how he uses language. With regard to the “slapping”, he explained that himself, M and X “sometimes play fight.”
X’s allegations as to the father’s disciplinary methods and use of language have remained consistent through his reporting of the allegations to third parties. The father has conceded inappropriate and hurtful interactions with X where he has called him “a little shit”. As a result, I am satisfied on balance that the father uses inappropriate language in front of X that causes him disquiet such as “fuck”. I am further satisfied and find that the father has at times used physical discipline on X. I further accept that the father, in accordance with his own concession, has physically picked X up and carried him to his bedroom and required him to stay there for a period of time as a form of punishment.
Further Interim Orders made on 17 June 2024
Orders were made on a defended basis on 17 June 2024 that broadly:-
·X live with the mother.
·X spend no time with the father.
·The parties be restrained from physically disciplining or restraining X.
·The parties resume family/reunification therapy with Ms F, if possible, otherwise Ms CC or such therapist as recommended by the Independent Children’s Lawyer.
The parties are presently engaging in family therapy with Dr DD of EE Centre. As at the final hearing X remained hesitant to discuss his feelings with Dr DD. He reports feeling anxious about his father and avoids thinking about it. He has not yet felt comfortable enough to read a letter penned by his father to him in October 2024.
On the first day of the final hearing the father’s Application - Contravention was withdrawn and dismissed. The father did not adduce evidence as to the utility of the Application having regard to the history recorded in these reasons.
On the last day of the final hearing final orders were made by consent permitting X to travel to Country GG with the mother in mid-2025 for the purposes of a family event.
THE PARTIES’ POSITIONS
The father seeks orders in accordance with the Minute of Order tendered on the first day of the hearing that broadly:-
·The parties shall share responsibility for making major long-term decisions concerning X.
·The parties will continue to attend upon the family therapist, Dr DD in respect to supporting X’s reunification with the father and paternal family.
·The parties will participate in the service of Parenting Coordination on a non-confidential basis for a minimum term of 24 months.
·X will spend time with the father graduating as follows:
·on the first Saturday after the date of these orders, from 10.30am until 5.30pm;
·on the second weekend after the date of these orders and 2 weekends following, from 10.30am on Saturday until 5.30pm on Sunday;
·thereafter for a period of 12 weeks, each alternate weekend from after school or 3pm Friday until the start of school Monday, or the start of school Tuesday if the Monday is a public holiday.
·thereafter for a further period of 6 weeks each alternate week from after school or 3pm on Friday until the start of school or 9am on Wednesday; and
·thereafter during school terms each alternate week with changeover after school or 3pm Friday.
·X will otherwise spend time with each parent commencing in 2025 for half of each school holiday period and on special occasions.
·Each parent will facilitate X communicating with the other parent at any reasonable time that X requests.
·The parties are to communicate with each other by SMS or email save for emergencies.
·Both parties are permitted to take X overseas on certain conditions being met. For this purpose the parties are to ensure that X’s Australian and United States passports are always current with the father to retain the United States passport and the mother, X’s Australian passport. The father no longer presses for the mother to pay a security bond.
In the alternative, “If the Court finds that [X] is at an unacceptable risk of losing all opportunity of resuming a meaningful relationship with his father if he remains under the influence of the mother” the father seeks that there be a change of X’s residence into the father’s care with a moratorium of time spent by X with the mother of three months prior to a reintroduction of X’s time with the mother as follows:-
·for three months for two hours once a month professionally supervised;
·thereafter for three months twice per month for two hours professional supervised;
·thereafter for three months for four hours each alternate Saturday unsupervised;
·then for three months each alternate weekend from after school Friday - 5:00 pm Saturday;
·for three months thereafter each alternate weekend from after school Friday – before school Monday; and
·thereafter alternate weeks from Friday – Friday save for the Term 4 holiday period.
The mother seeks Orders broadly in accordance with her Outline of Case document broadly that:
·She have sole parental responsibility for X and that X live with her.
·X spend time with the father supervised by B Contact Centre on three occasions each year for a period of three hours and at all other times in accordance with X’s wishes with the father to pay for the supervision costs.
·X shall communicate with the father in accordance with his wishes.
·X be permitted to travel internationally with the mother and the mother provide to the father a copy of the travel itinerary no less than 21 days prior to the date of departure from Australia.
·The father to deliver X’s US passport to the mother with the mother having sole authority to apply for and obtain passports for X.
The Independent Children’s Lawyer seeks orders broadly that:-
·the mother have sole decision-making responsibility with a requirement to obtain the father’s views prior to the exercise of same;
·X live with the mother and spend time with the father “at the sole discretion of the mother and in accordance with the child’s views and wishes” with the mother at liberty to require such time to occur at a professional contact centre with the father to pay any costs arising from same.
·The parties continue to attend upon Dr DD for family therapy and follow the recommendations made “in respect to supporting [X]’s reunification with the father and paternal family”.
THE LEGAL PRINCIPLES
The court is compelled to make such parenting orders that are considered proper. [55] When making parenting orders the court is to regard the best interests of the child as the paramount consideration. [56] A child’s best interests are ascertained by a mandatory consideration of six non-hierarchical criteria set out in section 60CC(2) of the Act.
[55] Section 65D of the Family Law Act 1975 (Cth) (“the Act”)
[56] Section 60CA of the Act. This is confirmed in s 65AA.
In contemplating the mandatory considerations the Court must consider any history of family violence, abuse or neglect involving a child or a person caring for a child, together with any family violence order that applies or has ever applied to a child or a member of the child’s family. [57] Unless it is in the child’s best interests to do so, the court must ensure that orders made are consistent with any family violence order and does not expose a person to an unacceptable risk of family violence.[58]
[57] S60CC(2A)
[58] Section 60CG

I do accept and find that there are instances where the mother’s parenting choices were not optimal. These include:-
·Despite the final orders granting the parents equal shared parental responsibility (as it then was), the mother unilaterally facilitated X’s attendance upon Ms Q, counsellor on 9 December 2021. The mother admitted in the course of her cross-examination that she may have erred in not telling the father about this.
·The mother’s messages to X have at times not assisted in facilitating a relationship between X and the father. I accept the unchallenged evidence of the single expert the mother text messaging X “Good night [X]. We love and miss you so much. It isn’t the same without you here” is placing emotional pressure on X: it is a “fairly obvious effort at invoking guilt…about not being there.” [99] When X tells the mother on 27 April 2024 via text message that he is in his room and “they” are outside, she does not encourage him to go and join the father and paternal family but rather suggests that if he is tired, he could go to bed early. [100] I do not accept however that the mother’s messaging was constantly undermining: when X texts the mother about the backpack incident and him telling the father that he had “a choice” the mother responds:
None of us really has a choice about anything, there are some things we have to do. It’s probably best not to discuss these things if people are upset.[101]
Further, when X complains about the father making him do a maths work sheet, the mother replies “You’re great at maths! I love you.” And when X complains as to how easy the maths it, the mother responds “Nice!” [102]
·The mother’s failure or inability to facilitate X spending time with the extended paternal family, most notably the paternal grandmother, with whom X has had close relationship, although there was a period of time when such requests were made subsequent to the mother giving birth to a further child.
·The mother has inappropriately involved X in discussions of the proceedings and the father’s alleged behaviour. It is concerning that when asked by the single expert what the purpose of the day was, X replied that the mother said “he gets to choose where he wants to live.” [103] X further asserted to the father during the single expert interviews that he is not allowed to get his passport because of the father: “It’s my dad’s fault I don’t have a passport.”[104] He reported that he was of the view that his family were at court “all because of his dad.” [105] From X’s comments to Mr G the mother has told X that the father hits her and is mean to her.
·The mother not speaking to the father after the couch incident and instead reporting X’s allegations directly to the Police. The evidence does not enable me to make a finding as to why the mother adopted this course. It is a possibility that it arose from the mother’s response to the father’s hostile and aggressive form of communicating with her in the past.
[99] Exhibit F12 and paragraph 10, page 3 transcript 5 December 2024
[100] Exhibit F12
[101] Exhibit F12
[102] Exhibit F12
[103] Single expert report, paragraph 61
[104] Single Expert Report, paragraph 100
[105] Single Expert Report, paragraph 100
Whilst the mother’s parenting decisions have at times not been optimal and child focussed, the evidence as recorded above does not ground a finding that the mother has caused X to fear the father and is unable to proactively encourage and facilitate a relationship between them. It was the mother that proposed unsupervised time subsequent to the release of the single expert report, despite X’s resistance to attending same. The mother has spent considerable time on various occasions attempting to have X see the father. I reject the single expert’s opinion that the mother’s behaviour is driven by unarticulated “grievances” remaining from her relationship with the father more than from generalised anxiety issues; there is no evidence to ground such a finding. I accept that it is probable that the mother has anxiety issues arising from both hers and X’s interactions with the father as recorded above. It is possible that such anxiety has empowered X “where he believes in sum, that he is a power unto himself.”[106]
[106] Single Expert Report, paragraph 139
The current difficulties and X’s responses to spending time with the father clearly began in November 2021 after the couch incident. Prior to this time the parties had a workable co-parenting relationship.
The father is unable or unwilling to accept responsibility for his actions and parenting choices; laying the blame instead at the feet of the mother and X. His allegation that the significant red marks on X’s leg after the backpack incident arose from X self-harming is troubling and ultimately indicative of the father’s limited reflective capacity and tendency to deflect accountability. Rather than accepting his poor parenting choices and lack of self-control the father put to the single expert that the backpack incident “was a powder keg” with an amping up of X’s behaviour and the empowerment that X experienced. The single expert opined in response that:
With respect, the father has had sort of two years of training of handling [X]’s defiant, acting out, inappropriate, rude, offensive, you name it, behaviours, so he has had lots of training. He just chose not to switch it on in that moment.[107]
[107] Transcript, page 74, Monday, paragraph 5
The father has consistently sought to lay blame on the mother with little regard for his own behaviour. His lack of insight and comprehension of the significance of the couch incident was demonstrated by the oral evidence of his partner, Ms D. Ms D told the single expert and gave oral evidence that the father informed her that something strange had happened between M and X and after that she simply had no further contact with X. She did not ask the father the reason for this. Such non-disclosure to his current partner of the allegations and harm to X that arose as a result (whether it be from the father’s actions or as he asserts from X’s own actions) is concerning as it appears that the father has not understood the gravity of the situation, reflecting a further significant limitation in his capacity for both insight and accountability.
Whilst deposing that he is embarrassed about his text messages and “obnoxious” communications to the mother, he states that “however, I found it very frustrating and exasperating dealing with [Ms Dewitt]’s passive aggression and gaslighting behaviours.” [108] In his view, X’s behaviour and attitudes arise from the mother “brainwashing” X and her inability to support and encourage the relationship. The father has unfortunately expressed this view directly to X.[109] It was the father’s first response when being interviewed by the Police in November 2021 when they attended his home to investigate the couch incident:
FATHER: Um so who, who – obviously this has come – come from his mother, I guess?
It was also his first response when Police attended his home in mid-2024 as recorded above.
[108] Father’s Affidavit, paragraph 172
[109] Exhibit F12
Material produced by Ms DD on subpoena and tendered at trial reveals that as recently as July 2024, the father is “frustrated, annoyed, and furious with [the mother] overall, and believed that she has stolen his son from him.”[110] On 23 August 2024, the father stated again to Ms DD that he is furious with the mother and believes she deliberately designed situations to set X against him to destroy their relationship. Closer still to final hearing on 14 November 2024, when asked by Ms DD about the upcoming trial, the father expressed that “he was looking forward to it, and stated that he wanted [the mother] to be held accountable for her actions.”[111] The single expert agreed that the father’s actions and words have a similar theme to what he heard from the father ten months previously: “the father is really, really hurt, and he – he is expressing that hurt and distress in the form of anger.”
[110] Exhibit ICL4 – Father’s Individual Session Form 26 July 2024.
[111] Exhibit ICL4 – Father’s Individual Session Form 14 November 2024.
The single expert’s oral evidence was that the father has some empathy for his son’s position, but the prolonged separation from X has come at quite an emotional cost to him; he spends a considerable amount of time ruminating about his wounds and his emotional labour in the proceedings which has regrettably come at the cost of his capacity to demonstrate empathy for X. [112] I accept this opinion. Empathy is exactly what X needs to re-establish his relationship with the father.
[112] Transcript, Monday, page 10, paragraphs 35- 40
The father’s absence of curiosity as to his contribution to the current situation is a window as to the father’s lack of insight and parental capacity, as too is his position as to the orders he seeks from the court on a final basis, as will be discussed further below.
DISPOSITION AND CONCLUSIONS
Time
No submissions were made by the father as to the alternate relief sought by him that there be a change of residence to the father if it is found that “[X] is at an unacceptable risk of losing all opportunity of resuming a meaningful relationship with his father if he remains under the influence of the mother”. This alternate relief was not pressed in any meaningful manner. The alternate relief sought is predicated on, it appears, a single finding being made rather than, as is mandated by the legislation, a consideration of all the factors in section 60CC(2). In any event, I am not satisfied for the reasons recorded above that the fracturing of the relationship is as a result of the influence of the mother. Whilst the single expert’s evidence as to the effect on X of such a drastic change in his primary care-giver was paradoxical as will be discussed later, he was firmly of the view that if such a change was to occur, X’s emotional reaction would be “extreme.”
..the world of options remains available, but it certainly would not be limited to him self-harming, as the words have been put forward, but more likely absconding and obviously being placed at risk in that absconding process.” [113]
[113] Transcript of Thursday, page 17, paragraph 15
The father’s submissions and case theory of “putting [X]’s world back together” to support his primary relief was aspirational at best. It denies the consequences his actions have had, both upon X and the mother. It asks the court to repeat history without any proposed means by which the risks I have found can be mitigated. Arising from my concern as to history simply repeating itself, I asked the father during the course of his oral evidence what he would do in the future if I acceded to the father’s application for time and X continued to refuse to attend. It was the father’s evidence that as far as he could see, he has two options. His first option will be to “step back” and “allow/leave it” for the mother to attend to. The alternative option as the father saw it is for him to commence contravention proceedings with a view to seeking orders from the court that X live with him.
There was no evidence that the father had any meaningful proposal as to how he would ensure X’s compliance with orders made that he spend time with the father when faced with X refusing to move into the father’s care. The sole responsibility for ensuring this compliance rests with the mother. It reflects the father’s position that he bears no responsibility for X’s resistant behaviours. If the mother does not ensure compliance the father will re-litigate and the parties will return to court. Further litigation between the parties cannot be in X’s best interests. The father’s approach and views demonstrate again the father’s lack of insight into the effect of his behaviours and does him little credit.
When asked by me what the effect of this family engaging in litigation again in a short space of time the single expert’s evidence was that:-
It would, I think, depend, your Honour, on whether that had been flagged to [X] from the outset to say, “Here is the options going forward. Option one is you’re just going to dad’s care from now on. Option two is you’re having the care of mum and dad on the proviso so that you do as you’re told and work with the structured plan as being put forward”. And if that falls apart, then it’s back to option 1 – that, “You’re just going to go to dad”. And so if that was presented to him through the, you know, ICL and a child court expert and then reiterated by the mother and [Mr C] to say, “We really want you to make option one work”, then I think it has got certainly a likelihood of success and may actually reduce the possibility of further litigation. I won’t say eliminate, but assist.[114]
[114] Transcript, Thursday, page 19, paragraph 15
Upon being asked to confirm whether my understanding of the single expert’s opinion was correct that X should effectively be threatened with being placed into the father’s care if he did not comply with any orders I may make for him to spend time with the father, the single expert’s answer in summary was yes; he could only assume that his opinions as recorded in the single expert report:
had a significant influence on the mother’s change of heart. So the question then would beg, if that is reiterated this time by the court, whether it would have even greater importance on both mother and child. [115]
[115] Transcript, Thursday, page 19, paragraphs 30 - 40
Thus it is the father’s position, supported by the single expert, that despite the lengthy continued and clear resistance of X spending time with the father which I have found arises significantly from the father’s own behaviours, it is in X’s best interests that he be forced to spend more time – eventually equal time – with the father, by threatening, in X’s view – a more unsatisfactory situation of being removed from the mother’s care and forced to live with the father. It is unfathomable that this would be the stick used to have X comply. The single expert’s opinion that the “symbolic notion” of both parents being seen as equal will give rise to X complying with spending time with the father fails to recognise that the parties in this matter are not “equal”. One party has acted in a manner that has caused X fear and distress, even whilst these proceedings were on foot.
When asked by counsel for the mother how X can feel safe in the father’s care, the single expert’s evidence was that is what the father needs to work on therapeutically; he needs to demonstrate greater curiosity, gain more insight and be more empathetic to look at things from X’s perspective. There is no destination as to when the father will have gained this insight; that is going to be an ongoing process. Paradoxically given his view as to the “stick” to be used to have X comply, he opined that:
…noting [X]’s age now, there’s a very, very tiny window of opportunity left for the father to make any gains. But whatever gains he makes, it’s not going to be done by brute force and it’s not going to be done as blunt as whatever he was – as blunt a manner as he was verbalising in April of this year.[116]
[116] Transcript of Thursday, page 16, paragraphs 20-25.
And then –
The emotional impact on this child, as we’ve all heard described as a sensitive and emotional child, but clearly equally an angry one – angry and stubborn – that there’s going to be a resultant emotional backlash, and that’s by and large going to be completely directed at the father and, as evidenced – and potentially also directed at [M]. So there’s multiple risks, because he just may not – he may continue to steadfastly refuse to accept that this is now her Honour’s orders.[117]
[117] Ibid.
I accept for the reasons recorded above that the father’s proposal poses an unacceptable risk of harm for X, such risk arising from an accumulation of factors:-
·The father’s perpetration of family violence;
·The father’s inability to self-regulate;
·The father’s inability to accept responsibility for his actions; and
·X’s response to the father’s behaviour.
The father’s proposal and its proposed implementation suggested by father and by the single expert compounds that conclusion.
I accept that the proposals of both the mother and the Independent Children’s Lawyer significantly reduces the time that X spends with the father and the paternal family, including his paternal siblings and the consequences of this can be profound as opined by the single expert. I accept the single expert’s evidence that the presence of Mr C in X’s life is a partial dilution of the mother being a single parent as there is a father figure in X’s world. Whilst the single expert clearly recognises the importance of the relationship between X and the paternal family, no specific orders were sought by the father in the alternative should the court not accede to his proposals.
To continue in the same vein and attempt to coerce/cajole X to spend time with the father who poses a risk of physical and psychological harm is in itself psychologically harmful and gives rise to a risk of X absconding and coming to harm. I am not satisfied for these reasons that the father’s proposal is in X’s best interests.
To mitigate the risks of harm I have found would arise for X in the father’s care, the Independent Children’s Lawyer proposes that the mother solely determine how and when X would spend time with the father. I am not satisfied that leaving time up to the mother is in X’s best interests. This position is not supported even by the mother. Time occurring in accordance with X’s wishes is uncertain, unenforceable and will almost certainly mean that X will spend no time at all. Further, I accept the single expert’s view that providing X with a choice would be burdening for a child of his age.
X told the single expert report writer that he did not expect the father to get mad when there is a supervisor. Supervision of the father’s time in the future and such time occurring on a limited number of occasions each year may assist X to feel comfortable in spending time with the father. I cannot be satisfied that Ms D is a mitigating factor in light of her limited knowledge of the history between X and the father.
The father did not respond in any meaningful manner to the proposed orders of the mother that there be only three occasions per year that X spend with the father.
Regrettably, efforts to re-engage X with the father have negatively impacted upon his interests. Weighing all of the above, the father’s perpetration of family violence and his inability to self-regulate leads to the conclusion that it is in X’s best interests that his time with the father continue to be supervised. Supervision of X’s time will maintain a balance between a mitigation of risk and X maintaining a relationship with the father and the paternal family. There being no evidence as to any proposed supervisors in the father’s family, such supervision will continue in a consistent manner for X, via B Contact Centre.
Decision Making Responsibility
The previous final orders provide that the parties have equal shared parental responsibility (as it was then known). X is enrolled to commence Year 7 at HH School this year. The father deposes that he hopes to send X to LL School, a private boys school. Whilst it was suggested during the trial that this was no longer a live issue, the father’s oral evidence was that it was “good to have options” and that it would be good to have a conversation (with the mother) if LL School became an option, though if HH School was “clearly working” X would stay there. I accept that it is possible that this issue may be the cause of further parental conflict and litigation. Further, X’s ability to travel overseas remains a live issue.
Pursuant to s 65DAC of the Act, an order for equal shared parental responsibility requires the parents to make together (and jointly) decisions about major long-term issues affecting the child. For the reasons that follow I am not satisfied that the parties would be able to communicate in a way so as to reach joint decisions concerning X’s care. I am satisfied that, as the resident parent, the mother should have sole decision-making responsibility for major long term issues.

It is uncontroversial that subsequent to X’s disclosure in November 2021 there has been a significant deterioration of the co-parenting relationship. I accept that the father leaves out important details when he communicates with the mother such as the couch and backpack incident. Relatedly, it does not bode well for a joint decision making arrangement that the father is of the view that X has self-harmed and did not seek to inform the mother of such serious concerns.
The father has been verbally abusive of the mother and historically threatened to assault the mother and her family in 2014. I have found that he communicates with her in a contemptuous and hostile manner. I accept that the mother would find the father’s communications with her to be stressful in those circumstances.
I have found that the father blames the mother for X’s conduct and expressed fears of him and is unable or unwilling to accept any responsibility for the significant part he has played. I must determine what is in X’s best interests based on the current evidence, and must take the parties as I find them. The father’s position that the parties will be able to meaningfully discuss and come to joint decisions as to X’s care is aspirational.
For the reasons recorded it is not appropriate to require the mother, as the resident parent, to meaningfully negotiate major parenting decisions with the father. I do not accept however that my findings preclude the father from having the opportunity to be heard prior to any major parenting decision being made as sought by the Independent Children’s Lawyer and am satisfied that this opportunity should be afforded.
Continued Therapy
Whilst the mother agreed in cross-examination that she and X were well engaged in therapy with Dr DD and proposed to continue same, the mother submitted that orders for ongoing therapy are not sought in circumstances where the child has effectively been subject to systems abuse. I give this submission some weight. It is unclear what benefit continued therapeutic intervention would have if X is clearly reluctant to engage with his therapeutic practitioners. This could not be considered unusual given the volume of therapeutic engagement and interviews in his short life to date; he has attended upon no less than six practitioners for the purposes of either assessment or therapy since the first tranche of proceedings.
Even the single expert opines, prior to the second incident, that:
That is not to say however, that ongoing therapy is warranted or indeed that these feelings of the child ought to be explored through conversations with a psychologist, as has occurred under [Ms Dewitt]’s direction. A child of [X]’s age cannot be expected to have sufficiently developed capacities for self- awareness to enable him to come to understand his own perspective through conversations with an adult stranger, as if he were an adult engaged in psychotherapy.[118]
…
The fact that [X] was observed at one point agreeing to [Mr Pembroke]’s request for further contact on the condition that he [X] didn’t have to see his psychologist any more does not necessarily reflect negatively on the efforts of this professional, but is consistent with a view that such conversations are experienced by [X] as burdensome and potentially of questionable value. Without a countervailing rationale for continuing to direct [X] to engage one-on-one in psychological therapy, the child’s views on this point might well be given weight.[119]
[118] Single Expert Report, paragraph 138
[119] Single Expert Report, paragraph 140
This court is not a therapeutic agency. I must take the parties and the subject children as they present at trial. Therapy has not assisted to date. The past is a predicter of the future. I will not order that therapy continue.
Passports and Overseas Travel
No submissions were made by any parties as to issue of passports and overseas travel. The father deposes that he is concerned that the mother will take X with her to the United States to live as the maternal family continue to live there. I am not satisfied that the father has met the evidentiary burden to enable a finding to be made that the mother is a flight-risk. I am satisfied that orders requiring the mother to provide to the father notice of proposed international travel is in X’s best interests as it affords X the opportunity to travel whilst ensuring that adequate provision is made for the provision of notice and information with respect to proposed travel.
Costs
The ICL seeks a costs order that each party equally meet the costs of the ICL in the sum of $18,167.60. Both parties oppose such an order be made, with the mother submitting that though it was unusual to oppose the costs of the ICL, the mother had borrowed over $376,000 from her parents and that should be taken into account. The father requested, if I was against the opposition to costs, that the father be given three months to pay.
Neither party is in receipt of a grant of Legal Aid. According to the Cost Notices filed by each of the parties, the father has spent $297,720 on legal fees and the mother $376,795. Whilst the mother submitted that she would suffer financial hardship should an order as to costs be made, she had the benefit of both Senior Counsel, Junior Counsel and a solicitor instructing throughout the hearing. I am satisfied that neither party will suffer financial hardship if they are required to contribute to the costs of the ICL.
The costs of the ICL are $18,167.60. I am satisfied that it is appropriate for both parties to contribute to the costs of the ICL in equal proportions; being $9,083.80. Each party will have the option of seeking a waiver of fees or an extension of time to pay with Legal Aid NSW.
The Balance of Orders Sought
The other orders made which have not been individually explained are either generally consistent with the orders mutually proposed by the parties or do not permit rational objection.
Orders will be made as set out above.

I certify that the preceding two hundred and forty-six (246) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch.
Associate:
Dated: 17 February 2025

File number(s):	SYC 1906 of 2015
Judgment of:	JUDGE MURDOCH
Date of judgment:	17 February 2025
Catchwords:	FAMILY LAW – PARENTING – where the parties have been involved in litigation for much of the subject child’s life – where the mother seeks the child have time with the father on three occasions per year and the father ultimately seeks an equal time arrangement – where the child has steadfastly refused to spend time with the father – where the mother alleges the child is fearful of the father and the father alleges the mother is unable to facilitate a relationship – where it is found that the father has assaulted the child and supervised visits have been troubling – where the parties positions are extremely polarised – where the single expert engaged in a fact finding exercise contrary to his role – where there are significant limitations to the single expert’s report – where significant weight is not placed on the single expert’s ultimate opinion that the child should be forced to spend time with the father on the threat that if he does not comply he will be moved to live with the father – where it is found the father’s capacity for emotional dysregulation places the child at risk and cumulatively the father’s capacities place the child at significant risk of harm – where such risk is ameliorated by the child spending supervised time with the father as sought by the mother – where the Independent Children’s Lawyer’s proposal that the mother determine how and when such time occurs is rejected.
Legislation:	Family Law Act 1975 (Cth) ss 4(1), 60CA, 60CC(2), 60CC(2A), 60CG, 61C(2), 61C(3), 61D, 65AA, 65D, 65DAC, 68B
Cases cited:	B&B [1993] FamCA 143 M&M [1988] HCA 68 Hasip & Ruwan [2024] FedCFamC1F 638 Isles & Nelissen [2022] FedCFamC1A 97 Keane & Keane [2021] FamCAFC 62; FamLR 190
Division:	Division 2 Family Law
Number of paragraphs:	246
Date of last submissions:	5 December 2024
Date of hearing:	2-5 December 2024
Place:	Sydney
Counsel for the Applicant:	Ms Kennedy
Solicitor for the Applicant:	Kmj Family Law
Counsel for the Respondent:	Mrs Mooney SC with Mr Matthews
Solicitor for the Respondent:	Sydney Law Group
Counsel for the Independent Children's Lawyer:	Ms Stolier
Solicitor for the Independent Children's Lawyer:	Mason Mia & Associates

SYC 1906 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR PEMBROKE Applicant
AND:	MS DEWITT Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE MURDOCH
DATE OF ORDER:	17 FEBRUARY 2025