Petrescu & Aling
[2025] FedCFamC1F 336
•19 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Petrescu & Aling [2025] FedCFamC1F 336
File number(s): PAC 896 of 2023 Judgment of: ANDERSON J Date of judgment: 19 May 2025 Catchwords: FAMILY LAW – PARENTING – Where the mother had a seriously disadvantaged and horrific childhood – Where there is an age difference between the parties of thirty years – Where the parties met at a time when the mother was only 17 years of age and the father was 47 years of age – Where the Court finds that a significant power imbalance existed between the parties for the duration of their relationship – Where the mother has been and continues to be deeply and negatively affected by the events of her childhood and her relationship with the father – Where the court is satisfied that the risks to the child if orders are made for frequent and/or unsupervised time and/or frequent time cannot be ameliorated – Consideration of the impact on the mother in the event of any order for unsupervised time between the child and her father Legislation: Australian Passports Act 2005 (Cth) s 11(1)(a)
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 68B, S 62B, s 65DA(2), s 64B, s 65D, s 60B, s 61C(1), s 61C(3), s 61D, s 61B, s 61D(3), s 4(1), s 61DAA, s 60CA, s65AA, s 60CC, s 60CC(2), s 60CG, s 4AB, s 4AB(3), s 4AB(4), s 60CA, s 60CC(2)(a), s 60CC(2)(b), s 60CC(2)(c), s 60CC(2)(d), s 60CC(2)(e), s 60CC(1)(b), s 60CC(3), 60CC(2)(f), s 117(1), s 117(2), s 117(2A), s 117(4), s 117(5)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: A & A (1998) FLC 92-800
Attwood & Attwood [2022] FedCFamC1F 6
Bayer & Imhoff [2010] FamCA 532
Board of Examiners v XY [2006] VSCA 190
Briginshaw v Briginshaw (1938) 60 CLR 336
CDJ v VAJ (No 2) (1998) 197 CLR 172
Dunst & Dunst [2016] FamCAFC 15
Grant & Grant (1994) FLC 92-506
Hedlund v Hedlund [2021] FedCFamC1A 84
Hollier v Australian Maritime Safety Authority [No 2] [1998] FCA 975
Hollister & Gosselin [2016] FamCA 759
Jacob v Lawrence (No 2) [2013] FamCA 544
Lenova & Lenova (Costs) [2011] FamCAFC 141
Nardini & Legal Aid NSW [2019] FamCA 340
PBF & TRF (2004) 33 FamLR 123
Russell & Russell v Close SA 45 of 1992
Scott v Secretary, Department of Social Security [No 2] [2000] FCA 1450
Slater & Light [2013] 48 Fam LR 573
Division: Division 1 First Instance Number of paragraphs: 198 Date of hearing: 14 April – 17 April 2025 Place: Parramatta Counsel for the Applicant: Ms Vogel Solicitor for the Applicant: Gorval Lynch Counsel for the Respondent: Mr Alexander Solicitor for the Respondent: Kovacevic Lawyers Counsel for the Independent Children's Lawyer: Ms Rebehy Solicitor for the Independent Children's Lawyer: Venus & Smart ORDERS
PAC 896 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PETRESCU
Applicant
AND: MS ALING
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ANDERSON J
DATE OF ORDER:
19 MAY 2025
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
Parental Responsibility
2.The mother shall have sole parental responsibility for X born 2018, and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in s 4(1) of the Family Law Act 1975 (Cth) (‘the Act’) affecting the child.
Parenting arrangements
3.The child live with the mother.
4.The child spend supervised time with the father as follows:
(a)On the last Sunday of the months August and November in 2025;
(b)Thereafter, on the last Sunday of the months February, May, August and November in each calendar year
5.It is a condition of Order 4 that such time be supervised by B Family Services, Suburb D.
6.In order to facilitate Orders 4 and 5 herein:
(a)Within fourteen (14) days of the date of these orders, each party shall do all acts and things and sign all documents as may be necessary to undertake any intake procedures;
(b)The parties shall meet the costs of the supervision agency on a joint and equal basis;
(c)The parties do follow the reasonable recommendations and advice of the Director of the Contact Service at B Family Services, Suburb D.
7.In the event that B Family Services, Suburb D is unable to facilitate time between the child and the father then the child shall spend time with the father under the supervision of such other agency as may be agreed between the parties such time to occur on the same terms and conditions as referred to at Orders 4, 5 and 6 herein.
8.Subject to the direction of the Director of the Contact Service at B Family Services, Suburb D, the father be permitted to bring members of his family to join him during supervised time with the child.
Provision of cards, letters and gifts
9.The father be at liberty to send letters, cards and/or gifts to the child on the occasions of Easter, Christmas and the child’s birthday in each year.
10.For the purposes of Order 9 herein:
(a)Within twenty-eight (28) days of the date of these Orders the mother shall nominate a postal address for the father to send letters, cards and/or gifts;
(b)The letters, cards and/or gifts sent by the father shall be age appropriate, child-focused, and shall not reference these proceedings, any dispute between the parties or denigrate the mother or any other member of the maternal family;
(c)The mother is permitted to open any letter, card and/or gift sent by the father to determine whether the father has complied with the terms of Order 10(b) herein and if not, the mother is at liberty to withhold the cards, letters and/or gifts from the child; and
(d)The mother shall encourage the child to respond to the father in writing to acknowledge receipt of any cards, letters and/or gifts sent by him.
11.Within fourteen (14) days of any such change occurring, the mother shall notify the father in writing of any change to her postal address.
Communication
12.The parties shall keep each other advised of his/her mobile telephone number and email address and advise the other party of any change to these details within twenty-four (24) hours of any change.
Restraints
13.Pursuant to s 68B of the Act, the father be restrained, and an injunction is hereby granted restraining him from:
(a)Attending at, or being within, 200 metres of the residential address of the mother, or any premises at which the child is living or temporarily residing; and
(b)Attending at the child’s school;
(c)Attending at the mother’s place of employment.
14.Pursuant to s 68B of the Act, the parties be restrained and an injunction is hereby granted restraining each of them from:
(a)Abusing, denigrating or criticising the other parent or members of his/her family to or in the presence or hearing of the child or allowing any third party to do so;
(b)Abusing, denigrating or criticising the other parent or members of his/her family on any form of social media;
(c)Discussing these proceedings, or any allegation made in these proceedings, with the child, or allowing any third party to do so.
Costs
15.Within twenty-eight (28) days of the date of these Orders, the father do pay to Legal Aid New South Wales his share of the costs of the Independent Children’s Lawyer fixed in a sum of $9,714.45 including GST.
Discharge of Independent Children’s Lawyer
16.The appointment of the Independent Children’s Lawyer be discharged.
Other
17.Pursuant to s 62B of the Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
18.Pursuant to s 65DA(2) of the Act, the particulars of the obligations that these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Fact Sheet, attached hereto and these particulars are included in these Orders.
19.All other applications pursuant to Part VII of the Act are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 Petrescu & Aling has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ANDERSON J:
INTRODUCTION
These proceedings, brought pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”), concern a female child aged six (6) years.
The applicant father commenced these proceedings on 23 February 2023. He did so in circumstances where parenting arrangements agreed between the parties broke down in August 2022. Pursuant to orders made on 4 December 2024, the child was to spend supervised time with the father on a fortnightly basis for a period of not less than two hours on each occasion. Despite that order, and by the time that the trial commenced on 14 April 2025, the child had not spent any time with her father since 29 January 2025.
The competing applications fell for determination in circumstances where I have concluded that:
(a)The relationship between the child’s parents is dysfunctional. Particularly, the animus between the parties prevents them from sharing the care of the child even to a limited extent;
(b)The parties do not have the ability or inclination to improve their relationship or the communication between them for the benefit of the child;
(c)The dysfunction between the child’s parents represents a risk to the child such that she is unable to transition between her two parents in a manner, which does not cause her psychological harm;
(d)The father’s disrespectful attitude towards women represents a risk to the child;
(e)The father’s behaviour towards the mother since he met her in 2015 and his inability to reflect on the appropriateness of that behaviour infects absolutely the mother’s preparedness to facilitate a relationship between the child and the father; and
(f)Any orders for unsupervised time or frequent time will have a deleterious effect on the mother and her psychological functioning and accordingly, that of the child.
I have determined that the risks to the child can be ameliorated by limited time being spent between the child and the father on condition that such time is supervised.
BACKGROUND
The father is aged fifty-seven (57) years.[1] He is a self-employed sole trader and deals in various household products.[2] He has a male child with his former wife. That child is aged about fourteen (14) years.
[1] Father’s affidavit filed 23 February 2023, paragraph 2.
[2] Father’s affidavit filed 23 February 2023, paragraph 3; Family Report dated 9 April 2025, paragraph 36.
The mother is aged twenty-seven (27) years.[3] She is unemployed and suffered from a horrifyingly wicked childhood. The child’s maternal grandmother was a drug addict and, on the mother’s oral evidence, had consumed with regularity, illicit substances of every description. She worked as a prostitute and exposed the mother and her siblings to such work by inviting men unknown to the children into the family home. As a consequence of her mother’s neglect, the mother gave evidence that she was responsible for the care of her siblings. At one juncture, the mother was removed from her mother’s care by the Department of Communities and Justice and placed into the care of her maternal grandmother. Her horrific childhood was aptly summarised by a psychologist engaged by the parties as follows:
[The mother] reports cumulative developmental adversity.
…
She was raised by her mother and step-father. She reports that her mother was physically and emotionally abusive to her and that she was sexually abused by her step-father and his friend. Police have informed her of multiple reports received of child endangerment for herself and her siblings during her childhood.[4]
[3] Mother’s affidavit filed 27 March 2023, paragraph 2.
[4] Report of Dr E dated 15 February 2024, paragraph 11.
The mother met the father for the first time in May 2015 when she commenced working for him in a sales role. At that time, the mother was aged seventeen (17) years. The father was aged forty-seven (47) years.[5] I find that the mother was impoverished in every way at the time that she met the father. She had little clothing, no money and no support from those persons such as her mother who ought to have protected her. It follows that perhaps for the first time in her life, and on meeting the father, the mother considered that she met someone who might provide her with safety and stability. Indeed, the mother says that the father “would take me shopping and spend hundreds of dollars on his preference of clothing for me”.[6] She was reliant on the father for her income but says that she wanted to escape from her life in City C and “start a life for myself away from the dysfunction of my childhood”.[7] The father agreed under cross-examination by the Independent Children’s Lawyer that the mother has “vulnerabilities” given her difficult upbringing.
[5] Mother’s affidavit filed 27 March 2023, paragraph 10.
[6] Mother’s affidavit filed 27 March 2023, paragraph 15.
[7] Mother’s affidavit filed 31 January 2024, paragraph 12.
On meeting the father, the mother was immediately thrust into a new world of interstate travel with the father and the father’s male colleague. She says, and it is generally conceded by the father, that she was obliged to share hotel rooms with the father and his male colleague, and on the mother’s version of events, she was subjected to inappropriate behaviour of a sexual nature by the father including sexual assault. The father denies the mother’s allegations of sexual assault.
By 2017, the mother had commenced a relationship with the father. However, and as discussed below, the mother says that the father became verbally abusive and stopped paying her any wage. She describes the father as having “complete control of all money”.[8] In the mother’s relatively short life, and between 2015 and 2020, she had also terminated three pregnancies.
[8] Mother’s affidavit filed 31 January 2024, paragraph 39.
The mother fell pregnant again in 2018 and decided to proceed with the pregnancy in circumstances where she felt guilt about her two previous abortions.[9] The mother gave birth to her daughter and the child of these proceedings in 2018.
[9] Mother’s affidavit filed 31 January 2024, paragraph 45.
Between the time of the child’s birth and about May 2019, the mother largely lived in Sydney on her own whilst the father travelled between Adelaide and Queensland for his business.[10] The mother says that she separated from the father in February 2019 and returned to the City C area where she had spent her formative years.[11] The father says that the parties separated in May 2019 but this difference is immaterial to my determination.[12] On separation, the parties’ relationship deteriorated. The mother says that the parties would argue by telephone and that on one occasion, the father said, “You don’t know who I am, I am more than capable than you to do anything”.[13] The father denies that he made such a threat.
[10] Mother’s affidavit filed 27 March 2023, paragraph 25; Mother’s affidavit filed 31 January 2024, paragraph 54.
[11] Mother’s affidavit filed 12 May 2023, paragraph 23; Mother’s affidavit filed 31 January 2024, paragraph 55.
[12] Father’s affidavit filed 28 June 2024, paragraph 35.
[13] Mother’s affidavit filed 31 January 2024, paragraph 57.
At some stage between July and October 2020, the mother travelled on a work trip together with the father and the child. The mother says that she considered this to be an opportunity for the father and the child to spend time together.[14] Regrettably, and on one evening during the trip, the mother became in her words “highly intoxicated”. She says that whilst intoxicated, the father had sex with her. Later, the mother says that the father tried to persuade her that such an encounter was consensual. The mother fell pregnant and had an abortion.[15] The father denies that he caused the mother’s pregnancy and cites the mother’s alleged promiscuity as the basis for his denial.
[14] Mother’s affidavit filed 12 May 2023, paragraph 25.
[15] Mother’s affidavit filed 27 March 2023, paragraph 27; Mother’s affidavit filed 31 January 2024, paragraph 72.
By mid-2021, the mother obtained employment as a support worker in City C. At that time, and when working night shift, she says that the father would sometimes stay at her residence and care for the child.[16] The father says that the arrangements were such that he would spend time with the child for one weekend per fortnight as well as “a visit during the week”.[17] This is disputed by the mother who says that the arrangement was less frequent. Whatever the scenario, the arrangement concluded in August 2022.[18]
[16] Mother’s affidavit filed 27 March 2023, paragraph 28.
[17] Father’s affidavit filed 23 February 2023, paragraph 12.
[18] Father’s affidavit filed 23 February 2023, paragraphs 12 and 13.
Since August 2022, the child’s parenting arrangements have been characterised by dysfunction and conflict between her two parents. Such is the hostility between the child’s two parents that a psychologist engaged by the parties expressed grave concern about the psychological harm, which will likely be caused to the child if she is required to move between “enemy camps”.[19]
[19] Report of Dr E dated 15 February 2023, paragraph 48.
It is against this background that the father commenced parenting proceedings on 23 February 2023.
COMPETING PROPOSALS
By his Amended Initiating Application filed on 29 November 2024, the father promoted an order that the child live with the mother and spend three nights per fortnight with him from the conclusion of school on Thursday until 6.30 pm on Sunday. The father also sought orders for equal shared parental responsibility and a range of ancillary orders in relation to school holidays, special occasions and overseas holidays. The father also sought orders, which:
(a)Injuncted the mother from having her partner at changeovers; and
(b)Required the mother to enrol the child at a school “that is no more than 1.12 hours and 84 km from the father’s residence”.
As discussed below, the injunctive relief sought by the father with respect to who might be permitted to attend at changeovers was in my view a manifestation of the father’s obsession with details about the mother’s partners and/or sexual encounters. For the reasons discussed below, I find that absent any proper basis for injunctive relief, the application is one, which was designed to control the mother. With respect to the enrolment of the child at a school presumably more convenient to the father, neither his counsel nor his affidavit material identified the reasons why I ought to make such an order.
At the time of her closing submissions, the father’s counsel advised me that the father sought to amend his application such that he spend time with the child every three weeks. No explanation was provided by the father or his counsel as to the reasons for the father’s altered position.
For her part, and by her Amended Response to Initiating Application filed on 6 August 2024, the mother did not promote any time between the child and the father. That position changed by the time of Closing Submissions such that the mother promoted an order that the child spend supervised time with the father on four occasions in each year being the last Sundays in February, May, August and November.
For her part, the Independent Children’s Lawyer promoted orders in the terms sought by the mother. This represented a small variation only from the orders promoted at the commencement of the trial, namely, that the child spend supervised time with the father on four occasions in each year with such time to coincide with school holiday periods.
The proceedings also involved a dispute about whether an order ought to be made allocating sole parental responsibility and sole-decision making authority to the mother.
EVIDENCE
On 16 September 2024, the Honourable Justice Riethmuller made directions with respect to the preparation of the competing applications for trial. Pursuant to His Honour’s orders, affidavits for the purposes of trial ought to have been filed by 27 January 2025 (in the case of the father) and 10 February 2025 (in the case of the mother). In the face of the parties’ failure to comply with His Honour’s orders, I made orders on 28 March 2025 permitting the parties to rely upon affidavits, which had previously been filed in these proceedings. I also made an order permitting each of the parties to file a further brief affidavit. The orders were made in circumstances where:
(a)The father’s solicitor made an application to withdraw as the father’s legal representative. I granted that application on the basis that the father had failed to meet the terms of his solicitor’s retainer. Propitiously, the father re-engaged his solicitor prior to the commencement of trial; and
(b)The father made an application to adjourn the trial ten (10) business days prior to the date allocated for its commencement. I dismissed that application having regard to, among other things, the longevity of the proceedings and the demands on the resources of the Court. Further, I considered it to be in the child’s interests that the litigation between her parents be brought to an end.
As a consequence of orders made by me on 28 March 2025, the father relied on:
(a)An Amended Initiating Application filed on 29 November 2024;
(b)The father’s affidavits filed on 23 February 2023, 16 May 2023[20], 28 June 2024 and 4 April 2025; and
(c)Tendered documents.[21]
[20] Two affidavits were filed in the name of the father on 16 May 2023. The father relied on the affidavit filed at 4.50pm.
[21] Exhibits F1 and F2.
The father also sought to cross-examine a psychologist, Dr E, who prepared a report specifically in relation to the risk presented to the child by the father. That report was dated 15 February 2024. Although the father failed to give notice to the psychologist that he wished to cross-examine her, the psychologist ultimately made herself available for cross-examination by electronic means.
For her part, the mother relied on:
(a)An Amended Response to Initiating Application filed on 6 August 2024;
(b)The mother’s affidavits filed on 27 March 2023, 12 May 2023, 31 January 2024 and 7 April 2025; and
(c)Tendered documents.[22]
[22] Exhibits M1 to M6.
The Independent Children’s Lawyer relied on a Family Report prepared by a psychologist and clinical expert dated 9 April 2025. She also relied on some tendered documents.[23]
[23] Exhibits ICL1 to ICL10.
At the commencement of the trial, I advised counsel that I would exclude all annexures to each party’s Affidavit having regard to r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). I advised counsel that annexures to affidavits and documents referred to in tender bundles would not be considered by me until the relevance and probative value of each document was established during any evidence-in-chief and/or cross-examination of the parties.
LEGAL PRINCIPLES
Orders in respect of children are made under Part VII of the Act, where the meaning of a ‘parenting order’ is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation and the principles which underpin those objects (s 60B).
Parental responsibility
Parental responsibility for children is vested in their parents (s 61C(1)) but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B).
When an order is made allocating parental responsibility for a child or children in relation to “major long-term issues” to more than one person, the order may prescribe whether those persons have joint or sole decision-making authority in relation to all or only specified issues (s 61D(3)). The Act defines “major long-term issues” to include those such as the child’s education, religion, culture, health, name, and changed living arrangements (s 4(1)) and defines what “joint decision-making” requires in respect of such issues (s 61DAA). A person allocated with parental responsibility for a child need not be consulted by another person in respect of minor decisions made for the child which fall outside “major long-term issues” (s 61DAB).
Best interests of the child
When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA and 65AA). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child’s best interests (s 60CC). The six considerations referred to in s 60CC(2) are non-hierarchical. The Court is obliged to consider:
(a)arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm)
(i)of the child; and
(ii)each person who has care of the child;
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or will have parental responsibility to provide for the child’s needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and
(f)anything else that is relevant to the particular circumstances of the child.
When considering the arrangements, which would promote the safety of the child and each person who has the care of the child, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary to promote the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. Examples of such behaviour include assault, sexually abusive behaviour, stalking, repeated derogatory taunts, intentional damage or destruction of property, unreasonably withholding financial support needed to meet reasonable living expenses of the family member or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support, preventing the family member from making or keeping connection with his or her family or friends, or unlawfully depriving the family member from his or her liberty.
Section 4AB(3) and (4) makes it clear that children are to be regarded as exposed to family violence either through direct sensory perception of violent action or such perception of consequences of violent action.
As the facts referred to above make plain, this is a case about risk and accordingly the arrangements, which might promote the safety of the child.
Where ultimately the Court’s focus is on formulating orders which attend to the child’s best interests, the Court is required to make findings of fact. The standard of proof is one of “on the balance of probabilities” consistent with s 140 of the Evidence Act 1995 (Cth) which provides:
(1)In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.[24]
(2)Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
[24] Briginshaw v Briginshaw (1938) 60 CLR 336.
A party making an assertion of fact has an onus to prove that fact on the balance of probabilities although the task for the Court ultimately remains as one of weighing and balancing the probity of evidence towards a determination of the child’s best interests.
OBSERVATIONS OF THE FATHER AND THE MOTHER
Before considering the evidence and the application of the relevant legal principles, I make the following observations of the parties.
There is an age gap of 30 years and five months between the parties. Inevitably, and by reason of their significant age difference, the parties had contrasting views and attitudes towards life.
The father attended court well groomed. At all times, he was polite and patient. Although he answered questions in a calm manner, he often asked counsel to rephrase questions when it was unnecessary for him to do so. For example, and when questioned about his dating life, the father asked counsel about his definition of the term “dating”. The father appeared to be amused when asked by the mother’s counsel about his dating preferences and his behaviour towards a 17-year-old vulnerable female (as the mother was when the parties met in 2015). It was my impression, which was supported by the opinion of the single expert, that the father had no regard “for how his actions might be perceived in terms of social mores, such as him arranging for a young teenager to accompany him on business trips, or him continuing to seek relationships with young women who are 30 years younger than he, as he reported during interviews”.[25]
[25] Family Report dated 9 April 2025, paragraph 268.
It was my observation that the father showed no insight as to how his behaviour towards women generally and his treatment of the mother now affected the mother and her ability to parent their child. This concerned me given that by his own admission, the father had knowledge of the mother’s horrific and disadvantaged background. It also became apparent to me that the father did not understand how his behaviour during interactions with the child could have long lasting ramifications for his relationship with the child. For example, and during time spending supervised by a supervision agency, the father told the child that she only had “one dad” and that if she wanted two dads then he would give her “two mums”. It was only after the Independent Children’s Lawyer expressed concern about this behaviour and challenged the father to understand the mother’s perspective, that the penny dropped, and the father conceded that his actions were not child focused. At this point, the father did shed a tear and express his remorse. Regrettably, I have concluded that the father’s realisation has come too late.
For her part, the mother attended court well dressed. In a manner similar to the father, the mother was polite and patient. I was advised by counsel that during several adjournments, the mother cared for her newly born daughter who was otherwise left in the care of her former partner when court resumed.
When cross examined, it was apparent that the mother continues to suffer from the trauma of her childhood and her experiences with the father. She often cried when questioned about her history. As the trial progressed, the mother’s stance with respect to time spending between the child and the father softened. Whilst she conceded that it is in the child’s interest to spend time with her father, the mother could not break though her fear of the child being exposed to harm in the father’s care. I have no doubt that this is due to the family violence, which the mother was exposed to at such a young age and the abuse she suffered at the hands of her own family members. As discussed below, it became apparent to me that the mother’s trauma and horrific upbringing combined with her experiences of the father cloud any prospect of the mother having confidence that the child can spend time with the father in a safe manner other than through the auspices of a contact service. For the same reasons, the mother displayed no confidence in her ability to co-parent with the father.
ISSUES TO BE DETERMINED
These proceedings involve a dispute about whether:
(a)The father presents an unacceptable risk of harm to the child;
(b)If the answer to the above question is in the negative, whether time between the child and the father will cause the mother psychological harm such that her parenting capacity will be detrimentally affected;
(c)Time between the child and her father might be facilitated in a manner, which does not cause the child psychological harm.
When determining whether the father presents an unacceptable risk of harm to the child, I must consider:
(a)The dynamic between the parties and the father’s behaviour towards the mother in 2015;
(b)The dynamic between the parties as it existed from 2017 when the parties commenced a relationship until 2019 when the parties’ separated;
(c)The behaviour of the father in the period subsequent to separation but prior to the commencement of proceedings in February 2023;
(d)The behaviour of the father during supervised time with the child in 2023 and 2025;
(e)Whether the child is able to transition between the parties in a manner, which will not compromise her emotional wellbeing.
Interaction between the parties during 2015
The mother says that in about May 2015, she commenced working for the father in a sales role. This was denied by the father in his written and oral evidence.[26] At that time, the mother was aged seventeen (17) years. The father was aged forty-seven (47) years.[27] The father’s denial that the mother was working for him can be rejected given his advice to the Single Expert[28] and his oral evidence that he would give the mother money, that she was “an assistant to him” and that the mother “did some bits and pieces”. In any event, and whether the mother was in the employ of the father or otherwise is in my mind irrelevant. By reference to the mother’s childhood as described above and having regard to the mother’s oral evidence, I find that the mother was impoverished in every way at the time that she met the father. As discussed above, the mother’s oral evidence causes me to conclude that she had little clothing, no money and no support from those persons such as her mother who ought to have protected her. It follows that for the first time in her life, and on meeting the father, the mother probably considered that she met someone who might provide her with safety and stability. She made such a concession under cross-examination. Indeed, the mother says that the father would take her shopping and spend significant sums of money on clothing for her. With respect to the payment of monies to her, the mother says that the father would withhold her pay from her and “portion small amounts to me as I needed it”.[29] By his written evidence, the father denied the mother’s allegation.[30] Under cross-examination, however, the father did say that he would give the mother “some money”. On balance, and for the following reasons, I consider that the mother’s version of events ought to be preferred to the father’s version:
(a)On the father’s own version of events, the mother was doing some work for him; and
(b)The father’s evidence was to the effect that he would give the mother “some money”. This evidence is also consistent with the mother’s assertion that the father would “portion small amounts to me as I needed it” (supra).
[26] Father’s affidavit filed 28 June 2024, paragraph 11.
[27] Mother’s affidavit filed 27 March 2023, paragraph 10.
[28] Family Report dated 9 April 2025, paragraph 46.
[29] Mother’s affidavit filed 27 March 2023, paragraph 20; Mother’s affidavit filed 31 January 2024, paragraph 44.
[30] Father’s affidavit filed 28 June 2024, paragraph 28.
I infer that the mother tolerated this situation in circumstances where she wanted to escape from her life in City C and “start a life for myself away from the dysfunction of my childhood”.[31] Such a desire is for the reasons referred to above understandable.
[31] Mother’s affidavit filed 31 January 2024, paragraph 12.
After only a few days of being employed by the father, the mother says that she, the father and a male employee drove to City F in Queensland for the “[…]” show. The father denies that the male was an employee and described him as a contractor. Whatever the scenario, the mother says that she and her fellow travellers stayed in a two-bedroom cabin and that she was asked to share a bedroom (albeit a bedroom that contained two beds) with the male colleague. On one evening, the father offered to swap rooms as a consequence of the mother’s complaints about the snoring habits of the male colleague and the fact that she was cold during the previous night. The mother went to the father’s bed as suggested by him. Notwithstanding this, the mother says that she woke the following morning to the father “cupping my vagina with his hand”.[32] The mother says that she never raised the father’s behaviour with him because she did not have the confidence to do so.[33] The father by his written evidence denied the allegation that he sexually assaulted the mother.[34]
[32] Mother’s affidavit filed 31 January 2024, paragraphs 18 to 20.
[33] Mother’s affidavit filed 31 January 2024, paragraph 21.
[34] Father’s affidavit filed 28 June 2024, paragraph 18.
Soon thereafter, the mother travelled with the father to Region H, Queensland.[35] She says that on the father’s suggestion, she shared a one-bedroom apartment with him albeit a bedroom that contained two beds.[36] On that occasion, the mother says that she was woken by the father making efforts to remove her underwear. He was naked and the mother says that she felt the father’s fingers “touching the vulva area of my vagina”.[37] On resisting the father’s advances, the mother says that the father returned to his bed and masturbated.[38] The father denies the allegation.[39]
[35] Mother’s affidavit filed 31 January 2024, paragraph 22.
[36] Mother’s affidavit filed 27 March 2023, paragraph 11.
[37] Mother’s affidavit filed 31 January 2024, paragraph 25.
[38] Mother’s affidavit filed 27 March 2023, paragraph 11; Mother’s affidavit filed 31 January 2024.
[39] Father’s affidavit filed 16 May 2023, paragraph 2; Father’s affidavit filed 28 June 2024, paragraph 19.
In July 2015, the mother says that she again travelled to Queensland together with the father for the purposes of her employment. The trip was notable for two reasons:
(a)The mother says that the father’s male employee asked her to collect drugs, which he had purchased. The father says that it was the mother who wished to purchase drugs, and he expressed disappointment at the time that the mother was engaging in such an activity.[40] Regrettably, the mother says that when collecting the drugs she was exposed to a male who masturbated in her presence. Despite giving written evidence that the mother wished to purchase the drugs, the father’s oral evidence was to the effect that he never observed the mother using drugs of any description;
(b)The mother says it was on this occasion that the father first had sex with her.[41] The mother’s evidence is that she was “disgusted and grossed out” by the father’s conduct. However, the mother says this with respect to her response to the father at the relevant time:
I didn’t know what to do. I laid there and let him do it to me. I was alone in the room with [the father]. He was my boss. He was also my provider. He was the one paying for my accommodation and food whilst I was working. I felt like I couldn’t say no. I was trapped in a situation. He was in control of me and everything I did.[42]
[40] Father’s affidavit filed 28 June 2024, paragraph 20.
[41] Mother’s affidavit filed 27 March 2023, paragraph 13.
[42] Mother’s affidavit filed 31 January 2024, paragraph 30.
On the morning following the parties’ first sexual encounter, the mother says that the following occurred:
I woke to [the father] on top of me naked and he was positioning my body as I laid flat on my stomach. I said to [the father] words to the effect of “I want to sleep” to which [the father] laughed and said words to the effect of “go back to sleep or just lay there”. The father proceeded to have sex with me and then left.[43]
[43] Mother’s affidavit filed 27 March 2023, paragraph 14.
The father denies the allegation as to sexual assault of the mother.[44] In fact, under cross-examination, the father denied having sexual intercourse with the mother at all.
[44] Father’s affidavit filed 16 May 2023, paragraph 2; Father’s affidavit filed 28 June 2024, paragraph 22.
As a consequence of her encounters with the husband, the mother fell pregnant. She says that the father told her to get an abortion. In his oral evidence, the father denied that he knew anything about the mother having an abortion notwithstanding that the mother did so.[45] On this topic, I prefer the mother’s evidence. She says that she was “extremely sick” subsequent to the abortion,[46] and in circumstances where she appears to have been working closely with the father, I reject an assertion by the father that he did not know about the mother’s predicament.
[45] Mother’s affidavit filed 31 January 2024, paragraph 32.
[46] Mother’s affidavit filed 31 January 2024, paragraph 32.
There is insufficient evidence on the balance of probabilities to enable me to find that father sexually assaulted the mother in 2015. Notwithstanding this, and by reference to the facts set out above, I find that the mother was a vulnerable 17-year-old who was placed into a situation where she was obliged to share a bedroom on several occasions with a male colleague and/or the father. She had barely emerged from adolescence. The father was reluctant under cross-examination to acknowledge the inappropriateness of the mother’s accommodation arrangements or the inappropriateness of his sexual activity with the mother in circumstances where:
(a)The mother was reliant on the father for income or the provision of monies (however characterised) and accordingly, the father was in a position of power. I accept the mother’s evidence that she did not consider she was in a position to resist the father’s sexual advances particularly in the context of the mother’s disadvantaged circumstances; and
(b)The mother was a vulnerable young female who the father must have known was escaping a life of dysfunction. Such a conclusion can be drawn in circumstances where the male colleague of the father and the father himself were acquaintances of the maternal grandmother through her employment at a brothel in City C.[47] Even if my conclusion about the father’s knowledge of the mother’s terrible upbringing is erroneous, the father on cross-examination found it difficult to acknowledge that his relationship with the mother started “when [the father] was a mature adult, whereas [the mother] was at an age and developmental stage where she had barely emerged from adolescence”.[48] I accept the Single Expert’s evidence that by reason of this fact alone, namely, the different developmental stages of the parties, a power imbalance must have existed.[49]
[47] Report of Dr E dated 15 February 2023, paragraph 11.
[48] Family Report dated 9 April 2025, paragraph 266.
[49] Family Report dated 9 April 2025, paragraph 266.
The father’s inability to acknowledge the fact that a power imbalance between the parties existed is exemplified by the following comments made by the Single Expert:
… [the father] presented as unprepared to acknowledge the potential for such a power imbalance when this was raised by the Single expert during the interviews for this report. On the contrary, he seemed to be intimating that he was more a victim of [the mother’s] (alleged) burgeoning sexuality, and that she therefore had at least equal, if not more, responsibility for them entering into an intimate relationship.[50]
[50] Family Report dated 9 April 2025, paragraph 267.
My impression of the father’s evidence on cross-examination was also consistent with the findings of the Single Expert in the following terms:
… [the father] presented as lacking any regard for how his actions may be perceived in terms of social mores, such as him arranging for a young teenager to accompany him on business trips, or him continuing to seek relationships with young women are 30 years younger than he, as he reported during interviews.[51]
[51] Family Report dated 9 April 2025, paragraph 268.
For her part, Dr E raised concerns about the father’s behaviour and expressed a view that the father’s behaviour in 2015 “flags his non-normative attitudes about unequal intimate relationships and thus raises valid reasons for proceeding cautiously prior to judicial determination”.[52]
[52] Report of Dr E dated 15 February 2023, paragraph 45.
I accept the opinions of each of the experts, which proved to be maintained under cross-examination.
The relationship between the parties during the period 2017 to 2019
In 2017, the father contacted the mother. The mother says that the father declared that he missed her and then offered her a short-term job in City G.[53] Across 2017, the mother says that she was in a relationship with the father. By the end of 2017, the mother says that the father became verbally abusive and stopped paying her any wage. She describes the father as having “complete control of all money”.[54] This is denied by the father who says that the mother worked on a casual basis for a company.[55] Whatever the precise circumstances, there is no evidence that the mother had been able to improve her disadvantaged circumstances.
[53] Exhibit ICL7 at p.3 of 16.
[54] Mother’s affidavit filed 31 January 2024, paragraph 39.
[55] Father’s affidavit filed 28 June 2024, paragraph 24.
In late 2017, the mother aborted another pregnancy.[56] She says that she “wasn’t ready to be a mother and I wasn’t happy in the relationship”.[57] Particularly, the mother says that the father kept her existence a secret from his family and otherwise isolated the mother from her family.[58] The father gave evidence under cross-examination that he simply wanted to keep news of the mother’s pregnancy contained until the risk of a miscarriage had passed. Whatever the scenario, the mother had an abortion.
[56] Father’s affidavit filed 28 June 2024, paragraph 25.
[57] Mother’s affidavit filed 31 January 2024, paragraph 40.
[58] Mother’s affidavit filed 31 January 2024, paragraph 42.
The mother fell pregnant again in 2018 and decided to proceed with the pregnancy in circumstances where she felt guilt about her two previous abortions.[59] The mother gave birth to her daughter in 2018. She says that the father asked her to keep the fact of her pregnancy secret, but the mother says that at the time of her second trimester, she confided in her family members as she needed support.[60] The father denies these allegations.[61] However, and given the power imbalance, which existed between the parties, I prefer the mother’s version of events. The mother’s version of events is also consistent with the father’s oral evidence that he was concerned the mother may lose the child and this being so, he wished for the mother to keep the fact of her pregnancy a secret.
[59] Mother’s affidavit filed 31 January 2024, paragraph 45.
[60] Mother’s affidavit filed 27 March 2023, paragraph 21.
[61] Father’s affidavit filed 16 May 2023, paragraph 266.
Following the birth of her daughter, the mother says that she was isolated from her family members. Particularly, she says that the father disapproved of any family members attending at the hospital.[62] She also says that the father isolated her and the child for a period of thirty days.[63] The father accepted that this was so but asserts it is a Country J tradition for a mother and her newborn child to remain away from family members and the public for a period of thirty days after the birth of a child to “reduce the chances of getting infections or illnesses”.[64] The father did not lead any evidence in support of such a proposition. Further, and whatever the scenario, I accept that as a mother who was only 20 years of age, the mother would have found it confronting and upsetting to be isolated from her friends and familial support.
[62] Mother’s affidavit filed 27 March 2023, paragraph 23.
[63] Mother’s affidavit filed 27 March 2023, paragraph 24.
[64] Father’s Affidavit filed 16 May 2023 at 12.29 pm, paragraph 4.
Between the time of the child’s birth and about May 2019, the mother largely lived in Sydney on her own whilst the father travelled between Adelaide and Queensland for his business.[65] The mother separated from the father in February 2019 and returned to the City C area where she had spent her formative years.[66] The father says that the parties separated in May 2019, but this difference is immaterial to my determination.[67] On separation, the parties’ relationship deteriorated. The mother says that the parties would argue by telephone and that on one occasion, the father said, “You don’t know who I am, I am more than capable than you to do anything”.[68] The father denied the evidence in his written and oral evidence.
[65] Mother’s affidavit filed 27 March 2023, paragraph 25; Mother’s affidavit filed 31 January 2024, paragraph 54.
[66] Mother’s affidavit filed 12 May 2023, paragraph 23; Mother’s affidavit filed 31 January 2024, paragraph 55.
[67] Father’s affidavit filed 28 June 2024, paragraph 35.
[68] Mother’s affidavit filed 31 January 2024, paragraph 57.
On cross-examination, however, the father did concede that subsequent to May 2019, his relationship with the child was limited in circumstances where he was often working away from Sydney.
Parenting arrangements between 2020 and August 2022, the commencement of proceedings under Part VII of the Act and the obtaining of an Apprehended Domestic Violence Order
At some stage between July and October 2020, the mother travelled on a work trip together with the father and the child. The mother says that she considered this to be an opportunity for the father and the child to spend time together.[69] Regrettably, and on one evening during the trip, the mother became in her words “highly intoxicated”. She says that whilst intoxicated, the father had sex with her and that he did so despite the mother advising the father on many occasions subsequent to the parties’ separation in 2019 that she never wished to have a further sexual encounter with the father.[70] The mother says that the following morning, the father having gone to work contacted her by telephone to advise that the parties had sex and that the mother had consented to it.[71] The mother fell pregnant and had an abortion.[72] The father accepts that the mother had an abortion but suggests that the mother was promiscuous and that the mother must have become pregnant as a consequence of a liaison with another man.[73] The father’s desire to portray the mother as promiscuous was a theme of the father’s written and oral evidence. Whilst the mother’s sexual activities are irrelevant to any determination to be made by me pursuant to Part VII of the Act, the father’s focus on this topic was distasteful. It highlights the degrading manner in which the father speaks about the mother of his daughter.
[69] Mother’s affidavit filed 12 May 2023, paragraph 25.
[70] Mother’s affidavit filed 31 January 2024, paragraph 73.
[71] Mother’s affidavit filed 31 January 2024, paragraph 68.
[72] Mother’s affidavit filed 27 March 2023, paragraph 27; Mother’s affidavit filed 31 January 2024, paragraph 72.
[73] Father’s affidavit filed 28 June 2024, paragraph 42.
By mid-2021, the mother was working as a support worker in City C. She says that her shifts would range between days and nights. When working night shift, she says that the father would sometimes stay at her residence and care for the child.[74] The father says that the parenting arrangements were such that he would spend time with the child for one weekend per fortnight as well as “a visit during the week”.[75] This is disputed by the mother who says that the arrangement was less frequent. Whatever the scenario, the arrangement came to a conclusion in August 2022.[76] The father says that culpability for such an outcome rests with the mother’s partner from whom she has now separated.[77] Tension between the two men was such that the father applied for and obtained an Apprehended Domestic Violence Order against the mother’s partner although the grounds for the obtaining of that order were never explored at trial.[78] The father’s obsession with the behaviour of the mother’s former partner is such that his affidavit filed on 4 April 2025 is largely devoted to an analysis of the behaviour of the mother’s former partner as opposed to what should have been his primary focus, namely, the child. The affidavit filed on 4 April 2025 contains 55 paragraphs. Almost all those paragraphs either identify the mother’s former partner directly or allude to his conduct under the headings “Further harassment and parent [sic] alienation by and behalf of the mother” and “Further Intimidation and harassment incident”. The terms of the affidavit simply highlight the hostility between the two parties. The father’s opinion of the mother and her former partner are distilled in three paragraphs of the father’s affidavit filed on 4 April 2025:
31.[The mother and her former partner] are reckless and desperate to exclude me from my child’s life. I’m afraid that sooner or later they will use physical violence towards me and anyone in my presence.
32.I’m raising the concerned [sic] that I will be assaulted leading up to the final hearing, and I’m very worried and scared that [the mother and her partner] will organise more attacks on myself and property during the finalisation of the proceedings.
33.The patter [sic] is already showing that the escalation is increased with every attack incident. This cannot be tolerated. I urge the court to put a stop to this.
[74] Mother’s affidavit filed 27 March 2023, paragraph 28.
[75] Father’s affidavit filed 23 February 2023, paragraph 12.
[76] Father’s affidavit filed 23 February 2023, paragraphs 12 and 13.
[77] Father’s affidavit filed 23 February 2023, paragraph 13.
[78] Family Report dated 9 April 2025, paragraph 12.
The animus between the father and the mother as highlighted by the father’s own affidavit causes me to reflect on the opinions expressed by each of the experts that I ought to implement a parenting arrangement, which “minimises transitions and disruptions for the child”. Particularly, it was the opinion of Dr E that orders for regular time between the child and her father could have “a paradoxical effect if [the child] were to reject her father in order to escape the stress of moving between enemy camps”.[79]
[79] Report of Dr E dated 15 February 2024, paragraph 48.
For reasons, which will become obvious to a reader of this judgment, I do not need to make any finding about the conduct of the mother’s former partner. I have concluded, however, that the father and the mother’s former partner have engaged in disrespectful behaviour towards the other of them unnecessarily complicating the mother’s life and the life of the child. Regrettably, I came to learn (and it was a matter of concession by counsel during the trial) that the father requested the assistance of Court security to escort him to and from the Court room during the trial on the grounds that the mother’s former partner had been intimidating him. Whilst I cannot make any findings about the father’s behaviour or indeed the behaviour of the mother’s former partner, the spectacle, which unfolded outside my Court room is emblematic of the failure of two men in the mother’s life to act in a mature and sensible manner.
With respect to the parenting arrangements, which existed between some stage in 2021 and August 2022, the mother says that the arrangements came to an end for several reasons, namely:
(a)The mother says that the father would “walk around my home naked with an erect penis”, the inference being that this made the mother uncomfortable.[80] The father denied the allegation in his written evidence[81] and again under cross-examination;
(b)The father was controlling and demonstrated this control by interrogating the mother about her sexual partners and interrogating the mother’s neighbours about her life. The father’s displeasure that the mother was possibly engaging in sex with third persons was demonstrated by the father telling the mother that she was a “dirty slut” and saying, “don’t kiss [the child] I don’t know how many dicks you’ve had in your mouth”.[82] The father denied the allegation in his written evidence;[83] and
(c)The mother says that on handover of the child to the father she “would scream and cry hysterically”. The mother also says that by about July or August 2022, and subsequent to spending time with the father, the child would “engage in abnormal behaviour”. The mother says that such behaviour “included but was not limited to isolating herself in her bedroom, banging her head against a wall, screaming, and crying for at least twenty-four (24) hours following her return”.[84] She also says that transitions between the child and the father became difficult.[85] The mother says she was so concerned by the child’s presentation that she sought assistance from a child psychologist[86] only to learn that the child was too young to receive psychological intervention. The mother was cross-examined about these matters, and I consider that her evidence on these topics was genuine.
[80] Mother’s affidavit filed 12 May 2023, paragraph 28.
[81] Father’s affidavit filed 16 May 2023, paragraph 3.
[82] Mother’s affidavit filed 12 May 2023, paragraph 29; Mother’s affidavit filed 31 January 2024, paragraph 76.
[83] Father’s affidavit filed 16 May 2023, paragraph 3.
[84] Mother’s affidavit filed 27 March 2023, paragraph 36.
[85] Mother’s affidavit filed 27 March 2023, paragraph 37.
[86] Mother’s affidavit filed 27 March 2023, paragraph 36.
Although the father denied the allegations referred to at sub-paragraphs (a) and (b) above in his written and oral evidence,[87] I am inclined to prefer the mother’s evidence to the evidence of the father. Particularly, such a preference would be consistent with an opinion expressed by the Single Expert in the following terms:
…the manner in which [the father] referred to [the mother] in response to questions by the Single expert about the history of their relationship often conveyed a disrespectful attitude. His use of crude and vulgar terms added to an impression of him trivialising and demeaning the relationship between him and [the mother].[88]
[87] Father’s affidavit filed 28 June 2024, paragraph 43.
[88] Family Report dated 9 April 2025, paragraph 269.
My inclination to believe the mother’s version of events with respect to the father’s behaviour and his use of vulgar language to suggest that the mother is sexually promiscuous is also exemplified by text messages, which the mother says she received from the father in February 2022. By those messages, the father suggested to the mother that:
(a)He could “put his dick” in the mother;
(b)He could knock the mother out such that she be rendered unconscious and thereafter, have intercourse with her.[89]
[89] Exhibit M2.
Whilst the father admitted under cross-examination that his behaviour was inappropriate, he sought to trivialise his behaviour by saying that the messages were “taken out of context”.[90] The father did not produce any evidence, which might have enabled me to consider the messages in context. However, the text messages were sent at a time when the mother was aged twenty-four (24) years and charged with the care of a three (3) year old child. The father was fifty-four (54) years. The father’s text messages are vulgar and threatening and, in my view, the content of the messages support the Single Expert’s opinion that the father demeaned the mother and treated her as an object for his sexual satisfaction. The father did not give any evidence during the course of the trial, which might cause me to conclude that the father has reflected on the inappropriateness of his behaviour. Indeed, and under cross-examination, the father sought to justify his behaviour by describing it as “dark humour”. I reject that evidence.
[90] Father’s Affidavit filed 28 June 2024, paragraph 45.
As a consequence of the cessation of time spending between the child and the father in August 2022, the father commenced parenting proceedings in Division 2 of this Court in February 2023. At that juncture, the father filed an affidavit, which focused only on the perceived failings of the mother and her then partner. Particularly, the father expressed the following opinion:
I am concerned that [the mother] is making attempts to alienate me and frustrate my relationship with [the child].
…
I am concerned that [the mother] is being influenced by her own estranged relationship with her father and is punishing me due to our separation, and the fragmented family structure that we now have.[91]
[91] Father’s affidavit filed 23 February 2023, paragraph 23.
The assertion by the father that the mother was estranged from her father was offensive in circumstances where since birth, the mother has never known her father. The mother gave evidence that her father is a convicted rapist and spent time in gaol during her childhood. Further, and on several occasions during the trial, the father’s counsel put propositions to the mother to the effect that because the mother never knew her father, it followed that she placed no importance on the relationship between the child and the father. I assume that such a proposition could only have been put to the mother on the father’s instructions. In any event, such a line of questioning in my opinion represents the worst aspects of adversarial litigation in this Court. It was highly offensive and, in my opinion, unnecessary.
Finally, and in early 2023, the mother obtained an Apprehended Domestic Violence Order against the father, which order identified the mother and the child as protected persons.[92] The father was arrested for a breach of that order in early 2024 after the mother alleged that the father “rang her several times…that [the father] had abused her and physically threatened to murder and assault her”.[93] The father was ultimately released with no charge. Neither party was cross-examined in any detail about these events. Accordingly, and although I am unable to make any finding about the matters alleged by the mother to police and the father’s denial of those allegations, I do consider that the facts referred to by me illuminate the toxicity of the parties’ relationship and the complete dysfunction of the family unit. It is another factor, which I bring to account when considering the evidence of the two experts to the effect that transitioning between her two parents on a regular basis is likely to cause the child psychological harm.
Conclusion as to the relationship between the parties, consequences of that relationship for this litigation and the father’s lack of insight
[92] Family Report dated 9 April 2025, paragraph 21.
[93] Father’s affidavit filed 28 June 2024, paragraph 73(a).
As identified at the outset of this judgment, I hold concerns about the father’s lack of insight with respect to his behaviour towards the mother. For example, and when asked by the Single Expert whether he has any regrets about his behaviour, the father responded as follows:
…he said that he regrets that he never stopped trying to please [the mother], including after they separated. As an example, he said that when he came to her home to look after [the child], he would mention that he needed a bed for the night and offer to give her a “root” and that she would tell him she wanted “five roots”.[94]
[94] Family Report dated 9 April 2025, paragraph 51.
The father was cross-examined with respect to this evidence but particularly the words “he never stopped trying to please her”. He said he was “lured in” by the mother and treated with contempt. He expressed a view that he ought to have ended the relationship much earlier than he did in circumstances where the tenor of the father’s evidence was that he was being “taken for a ride”. At no stage, however, did the father express regret about the power imbalance, which undoubtedly existed between the parties by dint of the significant age difference between them. Further, the father seems not to have learned anything because on interview by the Single Expert, the father indicated that he continues “to date women who are younger than he and said that he has been on dates with women who are 20 years or 30 years younger”.[95]
[95] Family Report dated 9 April 2025, paragraph 45.
I have concluded that the father has adopted a disrespectful attitude towards women, and I share Dr E’s concern as expressed during cross-examination that:
(a)The father will “continue to disregard and dismiss women”; and
(b)The father has not demonstrated any insight with respect to the fostering of a relationship with the mother who at the time the parties met was “such a young girl”.
The risk, which the father’s behaviour represents to his daughter was aptly summarised by Dr E during her oral evidence as follows:
If His Honour can’t find that the father has indicated self-awareness and regret of his judgments, then he will not change and continue to dismiss his daughters wishes.
It was for these reasons as well as the father’s inappropriate comments during supervised time with his daughter (see below) that Dr E advised me that she did not recommend time between the child and the father.
Dr E’s views were supported by the Single Expert who said as follows:
There is also a risk that if [the child] spends unsupervised time with [the father], she may be exposed to sexually inappropriate behaviour by her father. [The father’s] attitudes about his relationships are worrying and his lack of insight and apparent lack of respect of social mores suggests that [the child] may be exposed to sexually harmful behaviours and attitudes.[96]
[96] Family Report dated 9 April 2025, paragraph 291.
Neither expert was challenged by the father’s counsel with respect to these concerns and I accept the evidence of the experts.
The father’s lack of insight is also demonstrated by an Interim Application, which he made on 29 November 2024. On that day, the father sought interim orders that the child live with him. At that juncture, the child had not seen her father since September 2023. When asked about the emotional impact on the child in the event that the application had been granted, the father said as follows:
We made that application – the fact that she has been alienated and kept away from me. I think that she would be in a better space being with me…I think she would definitely be better off with me under the current circumstance.
In my view, the father’s answer demonstrates that despite saying so, he had given no consideration whatsoever to the child’s wellbeing when he made the application. The father was similarly unable to explain the dichotomy between his interim order, which sought for the child to live with him and his final order, which promoted an order that the child live with the mother. When asked whether the orders promoted by him would be consistent with the child’s emotional security the father said as follows:
I am not a psychologist. All I know is that what is happening to her now is not good. Her mind is twisted and pulled apart – it’s not good.
The father’s inability to reflect on his behaviour and his interactions with the mother between 2019 and 2022 is a matter, which weighs heavily on me. It is important for three reasons:
(a)The father’s behaviour towards the mother infects absolutely the mother’s preparedness to facilitate a relationship between the child and the father. It is the prism through which the mother now views the father’s application for time with the child and it is the prism through which I must now consider the child’s best interests;
(b)The father’s failure to reflect upon on his behaviour vis-à-vis the mother and his inability to recognise the inappropriateness of that behaviour is a matter, which Dr E and the Single Expert engaged by the parties bring to account when considering the risk, which the father presents to the child. In Dr E’s view, the father’s lack of social judgment, lack of empathy and lack of respect for boundaries “augurs badly for parental protectiveness overall”;
(c)The father’s responses suggest “a lack of reflective functioning, which is a key aspect of being a responsible and attuned parent”.[97] The absence of such functioning causes me to have significant concern about the child’s psychological wellbeing in the father’s presence;
(d)Given the father’s inability to reflect on the inappropriateness of his behaviour, it is possible that unsupervised time might result in the child “being inappropriately and prematurely exposed to adult sexuality with harmful effects”.
[97] Family Report dated 9 April 2025, paragraph 289.
On cross-examination by counsel for the Independent Children’s Lawyer, Dr E said as follows with respect to the risks presented by the father:
It would be a bad indication…if the father continued to show disrespectful attitudes towards women, disregard for other people’s rights and boundaries, insensitivity; if he continued to dismiss, minimise and deny the harmful effects of his own judgment in starting a relationship with a much younger, vulnerable person.
Simply, the father has not persuaded me that he has learned anything from his relationship with the mother. He has not demonstrated that he understands the mother’s apprehensions about unsupervised time or why she might be concerned about the same. This being so, I am concerned that unsupervised time between the child and the father may expose the child to a risk of harm.
Supervised time between the child and the father between 2023 and 2025
The father commenced parenting proceedings on 23 February 2023. By 18 May 2023, and with the consent of the parties, the Court made an order that the child spend supervised time with the father on a fortnightly basis for up to three hours. Such time commenced on 30 May 2023. At that juncture, the child had not spent any time with the father for a period of about nine (9) months.
On 25 July 2023, the mother says that she was parked on a main road waiting for the supervisor of time between the child and the father to advise her that the father had left so that she could go inside the venue and collect the child. The mother says as follows with respect to her interaction with the father:
[The father] stopped his car alongside of my car. My window was up. He was staring straight at me. I tried not to look at him. I glanced sideways and he was mouthing sometime [sic] at me through the window. I don’t know what he was saying. He looked so angry. He then drove away.[98]
[98] Exhibit ICL7 at p.8 of 16.
The father denies that he stared at the mother or did anything to intimidate her. However, he says that on the previous occasion of time spending, he sent an email to the supervision service “addressing [the mother’s] violation of the directions issued by the…supervisor”.[99] Again, the combative nature of the father and the animus, which the parties hold towards the other reinforces my concerns and the concerns of each expert engaged with this family that the mere act of transitioning between her parents places the child in the centre of conflict.
[99] Father’s Affidavit filed 28 June 2024, paragraph 51.
On 8 August 2023, the mother consented to the attendance of the paternal aunt together with the father during supervised time.[100] In response to questions about the mother’s consent to such an arrangement, the father said he questioned the mother’s motives. Such distrust is emblematic of the poor relationship between the parties. Cross-examination of the father with respect to this distrust proceeded as follows:
[100] Exhibit ICL 2.
Mother’s counsel: The mother’s consent to the paternal aunt coming to the supervised visits was a strategic move to make her look good?
Father: Yes, I question her motives.
Mother’s counsel: Do you not trust the mother?
Father: Not 100 percent.
Mother’s counsel: How much then?
Father: Only ten percent.
Mother’s counsel: Really?
Father: I hope I could.
Mother’s counsel: So you don’t even trust her, you hope you can?
Father: Yes.
The father’s distrust of the mother and his focus on matters other than the child’s wellbeing and enjoyment of time with him is also exemplified by the following exchange with a supervisor on 25 July 2023:
[The father] sat with Worker for a rest and spoke about skewed gender roles, pushed agendas and child trafficking, amongst other topics, whilst [the child] played with two toddlers. [The father] also brought up [the child] not seeming as present overall in their conversations and video calls as she had been in the past and offered, “Know deep down what it is”.[101]
[101] Exhibit ICL 3, page 3 of 5.
The father conceded under cross-examination that his discussion with the worker supervising his time with the child was inappropriate and unnecessary. He also conceded that his time would have been better spent interacting with his daughter than complaining to the supervisor. The fact that the father chose to behave in this manner, however, simply reinforces the concerns expressed by me above. That is, the father has a complete obsession with the behaviour of the mother and the behaviour of the mother’s former partner. He was unable even during his limited time with the child to avoid criticism of the mother.
Whilst time between the child and her father proceeded well, the father’s behaviour during supervised visits causes me some concern. For example, and during a visit on 11 July 2023[102], the father expressed that he was sad when he was unable to speak with the child electronically the previous Saturday and embarked on an enquiry with a four-year-old about the reasons why communication did not occur. Further, and during a supervised visit on 5 September 2023, the father asked the child about a toy given to her by her paternal aunt the week prior. Particularly, the father asked the child the whereabouts of the toy and on at least two occasions asked the child to show the toy to him the following day when he was scheduled to communicate with the child by electronic means. On its face, such a request seems innocuous. However, the request was made in circumstances where the child told the father that her “Mummy put it somewhere” and the father persisted with his request despite the anxiety, which the child would likely suffer if she was unable to locate the toy.[103] During the same supervised session, the child and the father had a discussion about an activity, which the child had undertaken with the mother’s partner whom the child referred to as her “other daddy”. In response, the father reiterated that he is the child’s “real daddy”. Later, the report of the contact service records the following:
[The father] then asked [the child] how her scar was and searched for it on her arm until he found it, “Still there”. [The child] responded, “I pulled it off. The scab”, and [the father] acknowledged, “Looking like it’s getting better” before he added, “You know what you should have done? Call dad. Make it better. Anything like this happens, tell dad”. [The child] then showed [the father] the remnants of a graze on the bottom of her arm. She explained, “My dad did a timer on me…” until [the father] interrupted her, “He’s not your dad, I wasn’t there”, to which [the child] reasoned, “I call him daddy”. [The father] then stated, “His name is…”.[104]
[102] Exhibit ICL 1.
[103] Exhibit M3, page 3 of 5.
[104] Exhibit M3, page 3 of 5.
These exchanges seem innocuous but, in my view, they are demonstrative of the pressure placed on the child by the father despite the child’s obvious acknowledgment that the father is her “daddy”. My concerns are reflected in the report of the Single Expert who said as follows:
Another concern is [the father’s] lack of sensitivity and support towards [the child’s] relationships within her current blended family. It is common for a biological parent to find it hurtful when their child refers to another parent as “Dad” (or “Mum”), but [the father] does not appear to consider that, in many circumstances, it is normal for young children to do so.[105]
[105] Family Report dated 9 April 2025, paragraph 287.
Under cross-examination, the father also conceded that:
(a)The manner in which he spoke about certain food, which the child brought to the supervised session could only have been interpreted by the child as being critical of the mother. He conceded that he is “still learning” and conceded that his comments about the appropriateness of certain food brought by the child probably made the child feel nervous or unsettled;
(b)He ought not have suggested to the child that the mother’s newly born child was not her real sister. Particularly, the report of the contact service records that the father said “Thought you had to have the same mum and dad to have a sister. I’m so confused”.[106] The father expressed such confusion despite his expressed desire for the child to have a relationship with his male child who is now aged fourteen (14) years. The father’s expression of confusion was laced with sarcasm and is an example of his lack of sensitivity towards the child’s relationships with her blended family (supra);
(c)The father’s conversation with the child in the following terms was not only unnecessary but would have caused the child to be confused:
[The child] spoke about her other daddy as she started to draw, as well as her sister, [sister’s name]. [The father] appeared confused and asked, “[Sister’s name] is [the daughter of the mother’s partner].[107]
[106] Exhibit M3, page 4 of 5.
[107] Exhibit ICL6, page 34 of 51.
The father’s behaviour during supervised visits is consistent with the mother’s evidence under cross-examination by the father’s counsel at which time the mother gave evidence that during electronic communication between the child and the father, the latter would ask the child to show him around the house and asked questions such as “who is living at the house?”. I accept the mother’s evidence that the father did so, and it again highlights:
(a)The father’s obsession about the mother and her life; and
(b)The father’s focus on matters extraneous to his daughter during the limited time that he was able to spend time and communicate with her.
The importance of the extracts referred to above is that despite being under supervision, the father exposed the child to inappropriate comments. Dr E shared this view. Further, it is likely to adopt the words of the Single Expert that the father’s comments “would have a negative impact on [the child] and undermine her trust in her relationship with her father”.[108] Simply, there is no evidence, which gives me any satisfaction that the father will be able to control his behaviour or the comments, which he makes to the child in the future. The risk to the child is obvious. That is, the father will expose the child to emotionally harmful behaviour and challenge her “dearly held allegiances, including her strong relationship with her mother”.[109]
[108] Family Report dated 9 April 2025, paragraph 248.
[109] Family Report dated 9 April 2025, paragraph 290.
On 19 July 2024, a Senior Judicial Registrar made further orders for supervised time between the child and the father. Further orders were made by the Honourable Justice Riethmuller on 16 September 2024 in circumstances where time had not been facilitated between the child and the father pursuant to the earlier orders. I then made further orders in December 2024 in an effort to facilitate time between the child and the father. It will not be surprising to a reader of this judgment to learn that despite the clear terms of my orders, the parties fell into dispute about the date and time of the first occasion of supervised time spending in 2024. Particularly, the mother did not agree to the removal of the child from school for the purposes of supervised time spending.[110] The fact that the parties had such a dispute again highlights the absolute dysfunction between the child’s parents.
[110] Mother’s affidavit filed 7 April 2025, paragraph 19.
On cross-examination, the father conceded that:
(a)The mother is the child’s primary carer and that it would be “catastrophic to disturb that relationship”;
(b)There is very little evidence before the Court, which might cause me to conclude that he and the mother have the ability to jointly care for the child.
The father’s own evidence was supported by the Single Expert who expressed the following opinion with respect to the allocation of parental responsibility:
In terms of parental responsibility, it is not considered feasible for [the father] and [the mother] to liaise about [the child’s] upbringing and aspects of her long-term care. Under the scenarios proposed by either parent, and with that recommended by the Single expert, [the mother] will continue to be [the child’s] main carer, and it would be more practical and manageable if [the mother] holds sole parental responsibility and if she is not obliged to communicate with [the father] and seek his views.[153]
[153] Family Report dated 9 April 2025, paragraph 308/
For these reasons and given my findings as to the hostility and absolute dysfunction between the parties, I reject the submission made by the father’s counsel that communication issues between the parties would be remedied by the making of an order to the effect that the parties communicate by way of a “communication app”.
By dint of the orders I will make, the mother will continue to be the child’s primary carer. Further, and in circumstances where I have considered it necessary to limit the child’s time with her father to four occasions per annum, it will be the mother who shall be responsible for making relevant decisions for the child.
The evidence supports a finding that it is in the child’s best interests for the mother to hold parental responsibility.
SPECIFIC ISSUE ORDERS
Attendance of paternal family members during supervised time
The Independent Children’s Lawyer and the mother promote an order that subject to any contrary policy of B Family Services, the father be permitted to bring other family members to supervised time spending with the child. The father’s counsel did not address the proposal.
I consider it to be in the child’s best interests to maintain a connection with her paternal family and this being so, I will make an order in the terms promoted by the Independent Children’s Lawyer and the mother.
Arrangements on the child attaining 13 years of age
The Independent Children’s Lawyer promotes an order that on attaining thirteen (13) years of age, the father be at liberty to spend time with the child as may be agreed between the parties in writing and in accordance with the child’s wishes. I did not receive any submissions with respect to that proposal. I assume it is derived from the report of the Single Expert wherein she speculates that contact centres “often stipulate an upper age limit for providing supervised arrangements for children”.[154] I have no evidence, to support such a proposition. In any event, I do not consider it to be in the child’s best interests to make an order, which is likely to place her at the centre of conflict between her parents as soon as she attains thirteen (13) years of age.
[154] Family Report dated 9 April 2025, paragraph 301.
Provision of Gifts
The Independent Children’s Lawyer seeks an order that the father be restrained from providing gifts to the child during supervised time. She did, however, promote an order that the father be at liberty to send letters, cards and/or gifts to the child on special occasions. Such an order was supported by the mother.
Although counsel for the Independent Children’s Lawyer did not make a specific submission, I infer that the genesis of the application was the mother’s concern as expressed during cross-examination that the father was trying to “bribe” the child with toys during supervised visits. By her affidavit filed on 7 April 2025, the mother also said as follows with respect to a supervised visit, which occurred on 29 January 2025:
At the end of the visit, [the child] was excited as she was given 7 bags full of toys. I became extremely worried that [the father] was buying [the child] toys to begin the same grooming tactics he used with me when I was 17 years old as his new employee.[155]
[155] Mother’s affidavit filed 7 April 2025, paragraph 26.
Given the mother’s vulnerabilities and the difficulties, which she has experienced facilitating time between the child and the father, I am inclined to make an order in the terms sought by the Independent Children’s Lawyer restraining the father from giving gifts to the child during supervised time. Such an order will also ensure that the child’s focus is on a quality interaction with her father as opposed to, for example, a toy. I am, however, prepared to make an order that the father be permitted to send letters, cards and gifts to the child on special occasions.
The Independent Children’s Lawyer promotes an order that the mother be at liberty to open any letter, card or gift sent by the father to ensure that it is age appropriate. Given my reservations about the father’s conduct as set out above, I consider that it is in the child’s best interests to make such an order.
The Independent Children’s Lawyer also promotes an order that on receipt of letters, cards and gifts from the father, the mother do send a photograph of the child to the father. Neither the Independent Children’s Lawyer or the mother made any submission about the proposed order. I decline to make such an order in circumstances where the father will be spending time with the child on four occasions per annum in any event.
Communication between the parties
The Independent Children’s Lawyer promotes an order that the parties keep each other advised of his/her mobile telephone number and email address. The mother did not oppose the making of such an order.
I accept that the parties may need to communicate from time to time in relation to time spending arrangements between the child and the father and accordingly, I will make an order in the terms promoted.
Restraints
The Independent Children’s Lawyer promotes orders that:
(a)The father be restrained from attending at the child’s school;
(b)Being within 500 metres of the mother’s residential address; and/or
(c)Attending at the mother’s place of employment.
The order is supported by the mother. The father’s counsel made no submission with respect to the appropriateness of such an order.
I am concerned about the distress, which the father will likely suffer as a consequence of the orders to be made by me. Further, and as will be obvious from my reasons:
(a)I do not have any confidence that the father will act in a manner, which will shield the child from his distress;
(b)I do not have any confidence that the father will act in a manner, which is respectful of the mother and her family members;
(c)I do not have any confidence that the father will act in a manner, which will not undermine the stability, which I anticipate the child will continue to enjoy in the mother’s household.
The orders promoted by the Independent Children’s Lawyer are orders, which can be made pursuant to s 68B of the Act.
An injunction is not, by definition, a “parenting order”.[156] The Act provides separate powers for making injunctions, parentings orders, or other orders in relation to the welfare of a child.[157] Section 68B of the Act is not, therefore, technically subject to the paramountcy principle — the words of the section lack any express reference thereto. This issue has been addressed in many authorities and, as summarised in Attwood & Attwood [2022] FedCFamC1F 6, has to some extent been reconciled:
31.… Section 68B(1) of the Act states that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child. Section 68B(2) also states that the making of the order may occur in any case in which it appears to the Court to be just or convenient to do so.
32.The Full Court in Bennett v Bennett (2001) FLC 93–088 determined that the power in s 68B was not subject to the express legislative requirement that the Court must regard the best interests of the child as the paramount consideration; and even if s 68B were subject to the “best interests” principle, it is doubtful that this would displace the established common law principles contained in the authorities such as In re Boaler [1915] 1 KB 21; Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29 and Coco v R (1994) 179 CLR 427. However, the Full Court in Flanagan and Handcock (2001) FLC 93–074 considered this and referred to CDJ v VAJ (No 1) (1998) 197 CLR 172 which decided that orders that are not a parenting order do not directly invoke the application of the paramountcy principle. Nevertheless the Court agreed with the Full Court that the consideration of what is in the best interests of the child are “powerful matters to be weighed up against a competing principle such as finality”. The Full Court therefore held that in respect of the issue of an injunction under s 68B, it is incorrect to state that the “paramountcy principle” applies. However, the best interests principle needs to be given careful consideration, especially where the orders sought to be made intimately concern the welfare of the children.
33.Thus, whilst the best interests of the child is not stated explicitly as the governing principle when making an injunction under s 68B, for all practical purposes the concept provides a useful framework within which to explore whether … the injunction is appropriate for the welfare of the child, and is otherwise just or convenient.[158]
(Emphasis added)
[156] Hedlund v Hedlund [2021] FedCFamC1A 84 [118].
[157] Family Law Act 1975 (Cth) s 65D(1), s 67ZC.
[158] Attwood & Attwood [2022] FedCFamC2F 6, [31]–[33].
Given my concerns with respect to the father’s behaviour, I find that it is appropriate for me to make an order restraining the father from coming within 500 metres of any place where the child resides, attending at the child’s school or at the mother’s place of employment.
The Independent Children’s Lawyer also promoted an order that each party be restrained from denigrating the other parent to or in the presence of the child, denigrating the other parent on any form of social media and/or discussing these proceedings with the child. For reasons, which will be obvious to a reader of this judgment, I consider it to be in the child’s best interests to make such an order.
Overseas travel
The Independent Children’s Lawyer and the mother seek orders, which would permit the mother to remove the child from the Commonwealth of Australia for the purposes of travel absent the consent of the father. The mother also seeks orders with respect to the issue of passports to the children. It was not a topic addressed by the mother’s affidavits.
Nevertheless, and in circumstances where I have made an order allocating sole parental responsibility to the mother, it is not necessary by operation of section 11(1)(a) of the Australian Passports Act 2005 (Cth) to make the order sought by the mother.
Application by the Independent Children’s Lawyer for costs
At the conclusion of proceedings, counsel for the Independent Children’s Lawyer made an application seeking an order that the father pay half of the costs of the Independent Children’s Lawyer fixed in a sum of $9,714.45 including GST. An application was not made for the mother to pay costs in circumstances where the mother is in receipt of a grant of aid from Legal Aid New South Wales.[159] The father opposes the application.
[159] Section 117(4).
Section 117(1) of the Act abolishes for the purposes of family law proceedings, the general rule that, in civil proceedings, costs follow the event. Section 117(2) of the Act provides that if, in proceedings under the Act, the Court is of the opinion that there are circumstances that justify it in doing so, the Court may subject to subsections (3A), (4), (4A), (5) and (6) and the applicable rules of court, make such order as to costs as the Court considers just.
Section 117(2A) is expressed in mandatory terms to require a Court when considering what order (if any) should be made under s 117(2) to have regard to seven matters. None of those seven matters is determinative. As was held in PBF & TRF (2004) 33 FamLR 123[160], it is not necessary for more than one factor to exist under s 117(2A) before it is competent for a judge to enliven s 117(2A) so as to make a costs order departing from the general principle set out in s 117(1) of each party bearing his or her own costs.
[160] PBF & TRF (2004) 33 FamLR 123.
The father opposed the application on the following grounds:
(a)The father has borrowed in excess of $80,000 to assist him with his legal fees;
(b)That the mother “should have to pay too” in circumstances where she was meeting her own legal fees at the time the proceedings commenced.
There is no merit to the submission referred to at sub-paragraph (b) above given the operation of s 117(4) of the Act. With respect to the first submission, whether a party is rich or poor has, generally speaking, no relevant connection with the litigation[161]. It may be said, by way of qualification to that general proposition, that a party's financial position may be relevant to the extent that it may inform the structure of a costs order. For example, impecuniosity may justify providing for the payment of costs over time in order to avoid inflicting unnecessary hardship while at the same time improving the likelihood of compliance with the order[162].
[161] Hollier v Australian Maritime Safety Authority [No 2] [1998] FCA 975 at 3; Scott v Secretary, Department of Social Security [No 2] [2000] FCA 1450 at [4]; Board of Examiners v XY [2006] VSCA 190; (2006) 25 VAR 193 at 207-208, paragraph 35, 209, paragraph 41; Dal Pont, Law of Costs, 4th ed (2018) at [8.30].
[162] For example, see Berman J in Jacob v Lawrence (No 2) [2013] FamCA 544
As the Full Court pointed out in Lenova & Lenova (Costs):-
[A] limited financial capacity to meet an order cannot be determinative; if it were, a party would always be able to plead impecuniosity as a means of avoiding a cost order in circumstances where the pursuit of litigation has continued in the face of a reasonable offer to cease that litigation and the incurring of its attendant costs.[163]
[163] Lenova & Lenova (Costs) [2011] FamCAFC 141 at paragraph 12 (Bryant CJ, Coleman and Murphy JJ).
In the matter of Nardini & Legal Aid NSW [2019] FamCA 340, the Deputy Chief Justice considered issues relevant to the payment of costs of the ICL:
22.In terms of s 117(2A)(g), it is relevant that the role played by the ICL in parenting proceedings, including in this matter, is invaluable. The role of the ICL was summarised in the context of an application for costs in proceedings before the High Court of Australia in CDJ v VAJ (No 2) (1998) 197 CLR 172. Specifically, at [11], Kirby J said:
The children's representative has a duty to “act in an independent and unfettered way in the best interests of the child”. This duty carries over to an appeal. The interests of the children and their welfare is of concern to the public. Those interests extend beyond, and are separate from, the interests of the parents. The children are the children of both parties. They should share equally the costs of their children being separately represented in this court. [References omitted].
23.I accept that it is in the public interest for the best interests of children to be represented in proceedings before this Court and that the Court invariably receives substantial assistance, in that regard, from ICLs appointed in parenting proceedings. Such assistance was undoubtedly provided by the ICL in this case.
24.Also relevant to these proceedings is s 117(5) of the Act, which provides:
(5)In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, the court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
25.Accordingly, it is my view that the ICL should be presumed to be unfunded and, having regard to authority, in those circumstances, the Court is generally inclined to order litigants to contribute to the ICL’s costs: Gahen & Gahen (No 2) [2013] FamCA 936 and De Roma & De Roma [2013] FamCA 566.
26.Further, I note that the ICL has sought an order for costs to be paid by the mother in a lump sum amount. Those costs have been itemised in a schedule provided by the ICL to the Court and the mother at the hearing on 20 May 2019.
27.Pursuant to rule 19.18(1)(a) of the Family Law Rules 2004 (Cth), the Court may make an order for costs of a specific amount. Having regard to the principles adumbrated by Kent J in Stoian & Flemming (Costs) [2014] FamCA 944 at [91], I am satisfied that the costs figure sought by the ICL is logical, fair and reasonable. I will, therefore, make an order for costs in favour of the ICL in the sum of $14,903.70, being 50 per cent of the total costs incurred by the ICL in this matter.
At paragraph 22, the Deputy Chief Justice referred to a decision of Kirby J in the matter of CDJ v VAJ (No 2) (1998) 197 CLR 172 (“CDJ v VAJ”), where his Honour said at [11]:
The children’s representative has a duty to “act in an independent and unfettered way in the best interests of the child”. This duty carries over to an appeal. The interests of the children and their welfare is of concern to the public. Those interests extend beyond, and are separate from, the interests of the parents. The children are the children of both parties. They should share equally the costs of their children being separately represented in this court.
(References omitted)
Counsel for the Independent Children’s Lawyer played a pivotal role in these proceedings. Her calm manner of cross-examination and her sensible submissions have assisted me to arrive at my determination.
When considering whether the overall circumstances justify the making of a costs order, I also note the following:
(a)The litigation has been a financial burden to the father. Although I was not provided with any details as to his precise financial circumstances, his Costs Notice reveals that he has paid $67,940 to his solicitors to date[164] and by the time the trial concluded, he owed his solicitors a further sum of $69,856.[165] Nevertheless, the father must have some confidence in his financial circumstances given he has relied on savings and loans to fund the litigation;
(b)Both parties have been afforded a significant benefit in these proceedings from the assistance of the ICL. Particularly, it was cross-examination of the mother by counsel for the ICL and the proposed minute of order promoted by counsel for ICL, which led the mother to alter her application for final orders such that she supported an order for supervised time. This is an additional factor that I bring to account under s 117(2A)(g) of the Act, by reference to the decision of Kirby J in CDJ v VAJ.
[164] Costs Notice filed on 14 April 2025.
[165] Costs Notice filed on 14 April 2025.
Pursuant to Rule 12.17(1)(a) of the Rules, I am permitted to make an order for costs in a specific amount. The amount sought by the ICL is modest particularly in circumstances where by the time I deliver this judgment, the ICL would have been engaged in the proceedings for in excess of 24 months. The costs claimed are against this background fair and reasonable. I will, therefore, make an order for costs in favour of the ICL in the sum of $9,714.45 including GST being 50 per cent of the total costs incurred by the ICL in this matter.
CONCLUSION
The Orders set out at the commencement of these reasons are those that most capably meet the child’s best interests.
I certify that the preceding one hundred and ninety-eight (198) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. Associate:
Dated: 19 May 2025
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