Rannells & Whitaker - [2025] FedCFamC1F 305

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rannells & Whitaker [2025] FedCFamC1F 305

File number(s): NCC 4067 of 2021

Judgment of: SMITH J

Date of judgment: 23 April 2025

Catchwords: FAMILY LAW – CHILDREN – Where parties proposed a minute at the commencement of trial – Independent Children’s Lawyer opposed the minute – where trial proceeded in circumstances where the court was not satisfied the proposal was in the best interest of the child – where parties and the Independent Children’s Lawyer agreed for the mother to have sole parental and decision making authority and for the child to live with the mother – where evidence demonstrated that the father had engaged in a pattern of persistent violent and coercive and controlling behaviour with partners, including the mother – where evidence further showed that the father’s mental health was volatile and his mental health condition presently unmedicated – where contrary to her evidence at the conclusion of the trial the mother still sought that the child spend time with the father, opposed by the Independent Children’s Lawyer – father an unacceptable risk of harm – supervision will not ameliorate those risks - finding that it is in the best interests of the child to spend no time and have no communication with the father - finding that the mother lacked protective capacity - further referral to Department of Communities and Justice to consider removal of child

Legislation: Family Law Act 1975 (Cth), Pt VII, ss 60CA, 60CC, 65AA, 68B, 91B

Cases cited:
Betross & Betross [2017] FamCAFC 90

Keighley & Keighley [2023] FedCFamC1A 146

Keighley & Keighley (No 2) [2023] FedCFamC1F 42

Pointer & Cheadle (No 2) [2023] FedCFamC1F 602

Division: Division 1 First Instance

Number of paragraphs: 203

Date of hearing: 14-16 April 2025

Place: Newcastle

Counsel for the Applicant: Mr Spicer

Solicitor for the Applicant: Sydney Triumph Lawyers

Counsel for the Respondent: Mr Hartwell

Solicitor for the Respondent: Scb Legal Pty Ltd

Counsel for the Independent Children's Lawyer: Mr Murray

Solicitor for the Independent Children's Lawyer: Coast Law
ORDERS

NCC 4067 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS RANNELLS

Applicant

AND:
MR WHITAKER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SMITH J

DATE OF ORDER:

23 APRIL 2025

THE COURT ORDERS BY CONSENT THAT:
1.All extant interim applications are dismissed.
2.MS RANNELLS (“the mother”) shall have parental responsibility for X (“the child”) 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) affecting the child.
3.The child live with the mother.

THE COURT FURTHER ORDERS THAT:
4.The child shall spend no time with MR WHITAKER (“the father”).
5.The child shall have no communication with the father.
6.Pursuant to s 68B of the Family Law Act 1975, and for the personal protection of the mother and the child, the father is injuncted from:
(a)Attempting to contact the child, the mother or any members of the mother's family by any means, including through any third party.
(b)Harassing, stalking or intimidating the child, mother or any members of the mother's family, including but not limited to via the internet or social media.
(c)Approaching, entering or coming within 250 metres of any place where the mother or child may reside from time to time.
(d)Approaching, entering or coming within 250 metres of any place of employment where the mother may work from time to time.
(e)Approaching, entering or coming within 250 metres of any school or before or after school service, day care or vacation centres which the child may attend or at which the child may be enrolled.
(f)Approaching, entering or coming within 250 metres of any place where the child may be engaged in any school related, extra-curricular or sporting activity.

7.The mother (Ms Rannells born 1984) have sole parental responsibility and sole decision making authority in respect of the child (X born 2019) in respect of any application for a passport and in respect of any travel outside the Commonwealth of Australia.
8.The mother be authorised to apply and forthwith obtain an Australian passport for the child so as to enable her to travel in and out of the Commonwealth of Australia.
9.The consent of the father (Mr Whitaker born 1983) to the issuing of such an Australian passport for the Child be forthwith dispensed with AND IT IS DECLARED that such consent is not required for such passport to now issue.
10.The child be permitted to depart the Commonwealth of Australia with the mother or at the mother’s direction.
11.The mother is required to, and the Independent Children’s Lawyer may, provide a copy of these Orders to any school or educational or similar facility which the child attends from time to time so they are on notice of the s 68B injunction.
12.The Court provide a copy of these Orders to the New South Wales Police Force.

13.The Court provide a copy of the Judgment and Orders to the Department of Communities and Justice New South Wales (“DCJ”), with particular reference to the heading “Notification to DCJ”, together with a copy of the Family Report dated 8 September 2023, and DCJ may be given any other filed material which DCJ may request.
14.The Independent Children’s Lawyer, or any party, have liberty to approach the Court in Chambers within 28 days to list the proceedings for further hearing in relation to any costs application.
15.The Independent Children’s Lawyer otherwise be discharged 42 days from the date of these orders in the absence of any Appeal.

THE COURT NOTES THAT:
A.Section 68C of the Family Law Act 1975 (Cth), provides that if a police officer believes, on reasonable grounds, that the father has breached the injunction as set out in Order 6 above by causing or threating to cause bodily harm to the protected person or by harassing, molesting or stalking the protected person, such Police Officer may arrest the father without warrant.
B.Pursuant to ss 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

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

These are oral reasons for decision in proceedings to determine the parenting orders which are in the best interest of X (born 2019), aged five (“the child”), pursuant to Pt VII of the Family Law Act 1975 (Cth), (“the Act”).
The parents are the applicant mother, Ms Rannells, aged 40, and the respondent father, Mr Whitaker, aged 42.
The parents have two older children, Ms B, who is aged 20 and an adult, and C, aged 17 (“the older children”). Sole parental responsibility for C lies with the Minister (“the Minister”) of the Department of Communities and Justice (“DCJ”), to who it was granted when the older children were removed from the parents' care by DCJ and the children's court in 2011. Neither of the older children are the subject of these proceedings.
It is common ground that the child should live with the mother, and the mother should exercise sole parental responsibility and decision-making authority for the child. I agree, and find that those orders are in the child's best interests.
The principal issue is whether the father poses an unacceptable risk of harm to the child, and, if so, whether that risk can be adequately ameliorated through long-term supervision.
I find the father is not a witness of truth. His oral evidence was repeatedly inconsistent with objectively proven facts, and sought to deflect and minimise his long history of violent and criminal behaviour.
I find that the mother was also often not truthful with the court, although some of that appeared to arise from her well-justified fears of the father.
SUMMARY OF FINDINGS AND ORDERS
As this is an oral decision, I will indicate now that, in summary, for reasons I will give shortly, I find that the father does pose significant and grave risks of both psychological and physical harm to the child, that these risks are unacceptable, and that, upon careful consideration, these risks cannot be adequately ameliorated and made acceptable, even for a limited identity time arrangement, by professionally supervised time in a contact centre.
Accordingly, noting the consent orders that the mother exercise sole parental responsibility and decision-making authority, and that the child live with the mother, which I make, I also make orders broadly in line with those proposed by the Independent Children's Lawyer (“ICL”) which are that the child shall spend no time with the father, have no communication with the father, and that, given the father's repeated breaches of AVOs, in respect of which he has been imprisoned, that there should be a s 68B injunction directed to the father to enforce those orders.
I will also make a passport and international travel order in the mother's favour, an order that a copy of these orders be provided to New South Wales Police for their information in case of a breach of the s68B injunction, and also to be provided to the child's school by the mother or the ICL, so that the school is aware the father is not to attend or see the child.
This result is, as has been said in many decisions, an extreme decision. It is one the court makes reluctantly and only in rare cases. It reflects the gravity of the risks, the unacceptable risks, the father poses.
This decision, however, is in no way a finding or an indication that the mother possesses good or even “good enough” parenting capacity.
On 29 September 2023, an order was made pursuant to s 91B requesting DCJ to intervene. Despite having taken the parents' two older children, DCJ declined. I consider and find that the child remains at a significant risk of harm in the mother's care, for reasons discussed later, and direct that a copy of these reasons and orders, and of the Family Report, be provided to DCJ for their further consideration, or consideration when issues further arise, as they probably will.
PARTIES AND PARTNERS
The mother and child live in community housing in Region D. The mother has been in a post-separation relationship with Mr F, but is now single.
Mr F is not a party to these proceedings and was not represented, so that no findings can be made about him in a manner which affects him. Nothing in this judgment may be taken as evidence or findings against him, given he is not represented.
However, for the purpose of these proceedings, only between these parties, and for the purposes of this judgment, and for the consideration of DCJ, I find that the mother's relationship with Mr F was marred by family violence by Mr F against the mother, as described for example by the child to the Court Child Expert, and included circumstances which led to the child being exposed to a violent home invasion, which appeared to have been directed to Mr F's “business arrangements”, whatever those business arrangements may have been.
Although it appears that Mr F was the primary family violence perpetrator, it is Mr F who has now obtained an AVO against the mother.
The father lives in a house on his father's property at Suburb E. He lives in a second house, which he built on the property. The paternal grandfather, Mr G, and the father's stepmother, Ms H, reside in the other house. C now lives with the father.
The father was in a post-separation relationship with a Ms J, which ended in late 2024, in what I find was a family violence incident by the father against Ms J. I will refer to this later.[1]
[1] Exhibit ICL6
REMOVAL OF THE OLDER CHILDREN
In 2011, DCJ removed Ms B and C from the parents and sought orders, which were subsequently made by the Children's Court of New South Wales, granting the Minister sole parental responsibility.
The older children were placed into the residential care of the maternal grandmother, Ms K.
Ms B was seven and C three at that time.
That was in the context of the father's extensive criminal history, where he had been sentenced to and served terms of imprisonment for various offences by that time as set out in his criminal history which was not in dispute.
The specific trigger for removal appears to have been the incident in 2010 in which the father assaulted police following a domestic violence incident against the mother. The father had pleaded guilty, received a good behaviour bond, and a no-contact AVO was put in place. The father then breached the AVO, and so the children were subsequently removed.
The father told the expert:[2]
60.…The father said he “had no choice but to breach the ADVO”, and further advised, “I would have breached the ADVO a hundred times to see the kids.” The father then placed blame on the mother and alleged the mother invited him to the pub to see the kids.
(Emphasis in original)
[2] Family Report dated 8 September 2023, paragraph 60.
Throughout the evidence, over an extended period of time, the father has demonstrated a persistent pattern of blaming everyone but himself for his violent and criminal behaviours.
That pattern of behaviour, of blaming others, continued throughout his oral evidence before me. I note that while he occasionally, reluctantly, conceded personal responsibility before me, it was clear that this was merely because he was being pressed in questioning to do so, and realised that this was what was expected of him if he was to obtain the orders he sought.
I note that the expert recorded that:[3]
59.The father reported [Ms B] and [C] were removed from his and the mother’s care, due to false and exaggerated information that he was perpetrating family violence, and physically harming and intimidating [Ms B] and [C]. The father denied the kids were ever at risk, and denied he ever harming [sic] the children as alleged by the DCJ, however he did concede he was struggling to cope with [Ms B] and [C], and said “the kids were being defiant. [Ms B] was a naughty kid. She played the adults against each other. Both kids were being naughty.”
(Emphasis in original)
[3] Family Report dated 8 September 2023, paragraph 59.
Contrary to the father's statements to the expert, it is clear, and I find, that DCJ’s application was made and the orders were granted by the Children's Court due to the father's proven extensive criminal history and family violence behaviours against the mother, due to concerns the father was also physically harming, as well as intimidating the children, and due to the mother's inability to be a protective parent in that context.
The father's suggestion to the expert that his then seven and three year old children may have borne some of the blame for his violent behaviours due to their being "naughty" is consistent with his ongoing attempts to blame others for his own violent behaviours, and his refusal to accept, except occasionally and grudgingly, and I find solely for the purposes of these proceedings to obtain orders he seeks, any responsibility for his own behaviours.
The father's criminal history, and the father's admissions at various times to historical family violence, make it clear that the father knew his statements denying family violence to the expert, and in his oral evidence before me, were false. I find these were intentional misstatements designed to try to avoid the consequences of his prior family violence behaviours to his application in this case.
CHILD'S PATERNITY AND MR L
DNA expert evidence was presented to the court on an interlocutory basis that the child's biological father is, in fact, a Mr L, who is a friend of the mother.
Mr L was served and invited to participate. Mr L advised the court that he had no intention of taking any part in these proceedings and would not seek any orders.
In circumstances where Mr L was provided the opportunity to participate, and specifically and positively refused to do so, and where the child's welfare requires that orders be made, by orders of 14 May 2024, the matter was ordered to proceed to a final hearing in the absence of Mr L.
At that time, the father did not accept the paternity testing, suggesting that the mother may, for example, have sent DNA from one of Mr L's other children. Accordingly, orders were made for further paternity testing of the child by reference to the father on his application. The father did not undertake that further testing.
The mother's evidence in her affidavit, at [14], is that:[4]
I am not sure who [the child's] father is.
[4] Mother’s affidavit filed 1 April 2025, paragraph 14.
The father's position in his trial affidavit, at [19], confirmed in his oral evidence, was that he does not care about the DNA testing, as he considers the child to be his daughter, and wishes to have a meaningful relationship with her.
It was common ground that the parents reunited after the mother became pregnant with the child, and that the child considers the father to be her father.
Contrary to the mother's position in her case outline suggesting that absent paternity testing confirming the father as the child's biological father that the father's application must be dismissed at trial, ultimately the father's standing to seek parenting orders was not contested by the mother, nor by the ICL. I find, noting no other submission was made, that the father is a person who is concerned with the care, welfare, or development of the child, and has standing to seek the parenting orders sought.[5]
[5] Section 65(c) of the Act.
I was not asked to make any positive finding about the child's paternity by any party, and Mr L has actively refused to participate or to seek an order. As it is unnecessary to make a finding as to the child's paternity, and as no one asked me to, I make no findings or declaration as to paternity.
The mother gives evidence that she had been facilitating time with Mr L and his children.[6]
[6] Mother’s affidavit filed 1 April 2025, paragraph 26.
The mother has an outstanding Application in a Proceeding, filed on 8 April 2024, seeking orders that Mr L have no time with the child. The Application is redundant. Mr L has specifically decided not to participate. There is no finding that he is a parent. He has declined to participate. There are no orders for parental responsibility sought or made in his favour. In these circumstances, the mother is entitled to make such arrangements concerning the child's spending time with Mr L as she sees fit, in the exercise of sole parental responsibility, in the same way that she may control the time the child spends with any other person. That Application in a Proceeding being redundant, is dismissed. It is the only extant application.
THE TRIAL

The trial commenced before me in person at Newcastle on Monday, 14 April 2025, with the parties and ICL all being legally represented, including by counsel, and ran over three days.
At the commencement of the trial, the mother and father put forward a joint proposal (MFI 10), that was opposed by the ICL. Based on the evidence before me, I did not consider it appropriate to make those orders without a trial. The trial then proceeded.
The mother read or relied upon her:
(1)Further Amended Initiating Application filed 8 April 2025,
(2)Trial affidavit filed 1 April 2025, and
(3)Case outline filed 13 April 2025.
The father read or relied upon his:
(1)Response filed 20 January 2023,
(2)Affidavit filed 11 April 2025, and
(3)Case Outline filed 14 April 2025.
The ICL read or relied upon the:
(1)Family Report prepared by Ms M, dated 8 September 2023 (Exhibit ICL1), and
(2)Case outline filed 11 April 2025.
The ICL also provided a tender bundle (MFI 11), which was not read, but from which documents were tendered. The relevant tendered documents became exhibits and will be referred to as appropriate.
The mother, father, and expert were required for cross-examination and attended, and were cross-examined.
BACKGROUND
RELATIONSHIP AND FATHER'S FAMILY VIOLENCE
The parties commenced a relationship after they met in late 2003, shortly after the father was released from a period in custody for drug supply.
On the mother's evidence[7] the father perpetrated family violence across their entire relationship, and that family violence has continued post-separation. This included physical violence, included choking, ripping hair from her scalp, throwing her to the ground whilst pregnant with C, being glassed, having objects thrown at her, including at her head and face, verbal insults and threats to harm her, and emotional abuse and intimidation, name-calling, stalking, telecommunication abuse and intimidation.
[7] Family Report dated 8 September 2023, paragraphs 40-43.
The mother also alleges long-term coercive control, including the father coercing her to remain in the relationship through regular threats of suicide if she left, stating that they were more likely to have the older children returned if they stayed together, and threatening her family, assaulting and intimidating her parents and siblings, and causing her to remain through fear of being hurt.
The evidence in support of the mother's allegations of family violence is overwhelming, including not only contemporaneous complaints, but also the police’s own observations, the father's various admissions during treatment and assessments, his pleas of guilt, and his convictions.[8]
[8] See e.g. Exhibit ICL 2; Exhibit ICL 3; Exhibit ICL 7; Family Report dated 8 September 2023, paragraph 109.
The mother's evidence is also that the father has breached AVO’s and the father's criminal history makes it clear that he has been convicted of breaching AVO’s.
FATHER'S MENTAL HEALTH HISTORY
The father's evidence, in his affidavit at [50] to [60], was that in 2011, whilst incarcerated, he was diagnosed with a mental health condition by Dr N, a psychiatrist acting as an expert in his criminal case.
The father said he was treated by mental health professionals provided by Corrective Services during his incarceration, and they diagnosed the mental health condition and prescribed Seroquel which is prescribed for multiple conditions, and Avanza which is prescribed for depression.
Upon his release from prison in 2011, he said he commenced seeing Dr N monthly and eventually every few months, and he continued to be prescribed the same medications as at the gaol, that is to say Seroquel and Avanza. The father does not say when he ceased seeing Dr N. He says he commenced seeing Dr O, a psychiatrist. There is no evidence from Dr N or Dr O, or any other mental health practitioner, in the father's case.
The parties separated in November 2018 after an incident in which the father threatened suicide and tried to kill himself at the maternal grandfather's house, as a result of which he spent some time in a mental health unit. The hospital records state that the father was brought in by a friend. The history was that the father:[9]
…attempted to [kill] himself […] at his partner's father's house [in Region P]. It was reported that [Mr Whitaker’s] father-in-law had to [intervene] and that he had lost consciousness. [Mr Whitaker’s] ex-partner, [Ms Rannells], reported that [Mr Whitaker] had sent her a photo […] before he attempted to [kill] himself…
[9] Exhibit ICL 4.
There was a self-report, and collation of collateral information, as follows:[10]
…He reported labile mood, suicidal ideation with poor sleep and anhedonia, and was ruminating on breaching his AVO and thoughts of being taken to gaol by the police. Collateral history suggested a 6 month deterioration in his mental state with pressured speech and disorganised thinking corresponding to episodes of hypomania and chronic suicidal ideation…
[10] Exhibit ICL 4.
The father told the expert:
79.The father advised he has a history of self-harm and suicidal ideology, with this also being reported by the mother. The father spoke candidly about this and recalled a number of stories where he had thoughts of ending his life. The father reported one occasion where he attended the paternal grandfather’s home, threatened to burn the house down, and then proceeded to […] and attempt to end his own life. The father alleged the mother had made statements to him to “Go kill himself”, and he said to himself “that’s a good idea.”
80.The father advised the maternal grandfather intervened, […] and called Triple Zero, however the father fled from the home and drove into a police car to avoid being arrested or taken to hospital. The father said he was eventually taken to [the] hospital by a friend, and remained an inpatient for approximately two weeks. The father reported being charged with various offences in relation to this incident, however he was vague about this.
(Emphasis in original)
I also note that the threat to burn the maternal grandparents' house down beforehand was consistent with the mother's evidence that the father would threaten not only her, but her family.
As an inpatient in the mental health facility at Suburb Q in December 2018 the principal diagnosis was attempted suicide and “[m]anic episode of [mental health condition] with psychotic features”.[11]
[11] Exhibit ICL 4.
It was noted that the father:[12]
…reported he had previous diagnoses of "[mental health conditions]" initially diagnosed by "[Dr N]" in Canberra. He had previously been on medications, however he had been non-compliant with these for some time before admission.
[12] Exhibit ICL 4.
While there is no medical evidence, the admission report gives rise to an inference that the non-compliance with medication was causally connected to the deterioration of father's mental health and his suicide attempt.
The father was asked about this episode in oral evidence. He attempted to suggest in oral evidence before me that it was not a serious suicide attempt. I prefer the contemporaneous history and records which show that it was a serious attempt, noting that he was unconscious and so had gone past the point at which he could rescue himself. The photo sent to the mother is consistent with her evidence of his use of suicide threats as part of his pattern of coercive control.
PARTIES REUNITE FOR THE CHILD
The parties remained in contact and intimate, and reunited after the mother became pregnant with the child. I note that C self-placed with the parents shortly following the child's birth.
FINAL SEPARATION
The parties finally separated in about October 2021. The mother says this was in the context of long-term ongoing family violence, and also after the father specifically: pushed her to the ground; threw her clothes on the footpath; and sent her a video stating he had killed her dogs.
Push to the Ground
The father admits pushing the mother to the ground. In the Family Report interviews the father told the expert:[13]
47.… “I pushed her on her arse. And she thought she broke her arm (pause). But she smashed the window of [C’s vehicle], and nearly smashed my [vehicle].”
(Emphasis in original)
[13] Family Report dated 8 September 2023, paragraph 47.
In oral evidence the father accepted he pushed the mother to the ground, but again sought to justify his conduct on the same basis that it was a reasonable response to her actions.
Video of blood on dogs
The mother says that the father directed C to place his own blood on and around her dogs in an attempt to convince the mother that the dogs were dead and cause emotional distress.
The father was asked about this by the expert:[14]
54.The father agreed that he directed [C] to cut his own hand and place blood over, and around, the mothers dogs to “set up a crime scene as a practical joke”, to convince the mother her dogs were dead. The father said he had no other option, as the mother refused to collect the dogs from his home. The father denied that this caused [C] any emotional harm, or that he was encouraging [C] to be complicit in his family violence perpetrating against the mother. The father said following this he dropped the dogs, and the mother’s personal items at a local vet and left.
[14] Family Report dated 8 September 2023, paragraph 54.
Despite telling the expert that he had directed C to cut his own hand, in oral evidence before me the father denied that and said that C had just happened to cut it while working but did not otherwise deny the incident had occurred. I find that the father did tell the expert that he directed C to cut his hand, as she recorded, and prefer that as likely the more honest answer, which the father tried to deny in oral evidence before me by suggesting the cut was already there to minimise the conduct.
In oral evidence the father also defended his conduct, suggesting it was a joke. I reject that evidence. I find this was an act of family violence intended to cause significant emotional harm and distress to the mother, by suggesting her dogs had been killed or badly injured.
The father also suggested in oral evidence that the dogs were already seriously injured because they were vicious and harming each other. However, if that was the case, and the dogs were already injured, there would have been no need to have C smear his blood on the dogs. I reject that evidence as a dishonest attempt to minimise and evade responsibility for his violent behaviour. I also note that he involved C in this behaviour and modelled violent and manipulative behaviour towards the mother as appropriate, and in his evidence, funny behaviour.
Belongings on the ground
The father also confirmed in oral evidence that he threw the mother's belongings around the back of the vets, leaving some of them in bags and some of her goods just strewn across the ground. He did not appear to consider this act of family violence to be inappropriate behaviour.
POST-SEPARATION
Motorway Suicide Attempt
There was an incident on a motorway. The father told the expert:[15]
81.The father reported another event where he spent [several] hours on a cliff overlooking the [motorway], with Police negotiators attempted to convince the father not to harm himself. During this time the father said he made a number of phone calls to the mother, and [C], said goodbye and indicated he was going to end his life. The father said he eventually handed himself to NSW police, and was taken to […] Hospital, however fled from the hospital, and was later relocated by Police and returned to hospital. The father said he had not considered how this would have impacted on [X], [C] or the mother.
[15] Family Report dated 8 September 2023, paragraph 81.
These Proceedings
I note that these proceedings then commenced on 7 December 2021 when the mother filed an Initiating Application in the context of the father withholding the child post-separation.
Between 1 and 3 December 2021, the parents were in high conflict.
The mother says on 3 December 2021 the father lured her to his house under the pretence that C wanted to return to live in her care. When she arrived with the child, she said the father distracted her, and C removed the child from the car and took the child inside.[16] The father retained the child in his care until this court ordered the child be returned to her.
[16] Family Report dated 8 September 2023, paragraph 52.
The father told the expert[17] that whilst C did remove the child from the car and take the child inside the home, and he did retain the child until the mother obtained a recovery order, he did not use C to bring the mother to his home and did not direct C to remove the child. The expert said that on questioning, the father firstly offered no explanation for why C would have removed the child, and ultimately claimed the mother had, in fact, consented to the child remaining with him.
[17] Family Report dated 8 September 2023, paragraph 53.
In the Family Report, both parents told the expert that “[C] has unstable mental health, that he has a pattern of violence, that he is using cannabis, and is known to NSW Police.”[18] C has also apparently been scheduled.
[18] Family Report dated 8 September 2023, paragraph 64.
The expert recorded that the father told her that “[C] will do whatever I tell him to.”[19] The father denied that he said this to the expert, or that this was the case. I prefer the expert's evidence and find that the father said this to the expert. I find that this is probably a true reflection of the father's view of his r relationship with C and that, to some extent at least, it's probably a true reflection of the relationship, noting this incident and the dogs and blood incident.
[19] Family Report dated 8 September 2023, paragraph 35 (emphasis in original).
I accept the mother's version of events. I do not accept the mother voluntarily left the child with the father. I consider the father's evidence in that regard to be fanciful. I do not accept that C acted on his own accord without encouragement by the father, and that the father then decided to withhold the child. I find that the father's evidence on this topic was intentionally dishonest.
I find that C acted as the father's tool in this act of family violence in the same way he had in respect of placing blood upon the dogs. This was another extremely disturbing example of the father using his own child, and involving his own child in serious acts of family violence against the mother, to meet the father's own ends.
As was set out in the Family Report, and as is clear from the oral evidence, the father gave no consideration whatsoever to C's interests when the father used his own child as a tool of violence.
The evidence in this regard strongly suggests to me that he will have no more regard to the subject child's needs or best interests than he has had to C's interests.
In December 2021 a provisional ADVO was issued for the mother's protection.
Interim orders were made on 9 December 2021 for the father to return the child to the mother, and for the child to live with the mother and have supervised time with the father twice per week. An ICL was appointed.
The child was returned on 10 December 2021. The father breached the ADVO and was imprisoned in late December 2021.
On 19 January 2022, the prior spend time with orders was suspended in the circumstances where the father was incarcerated.
He was released in mid-2022.
The father's evidence is that he ceased taking the Seroquel in January 2022 when he was transferred from one correctional centre to another correctional centre. See the father's affidavit at [54], stating:
…as that Centre ceased providing my medication to me, I am unsure why they did this. By the time I was released in [mid] 2022, I no longer being prescribed any medication.
(As per the original)
There is no suggestion that the father was medically assessed as being incorrectly diagnosed, as medicated, or that he no longer required the medication. It appears from the father's own evidence that the cessation of his medication was a consequence of his change of facility and otherwise unexplained.
The father remains un-medicated for his mental health condition, which has been a long-term diagnosis. The father does not believe further medication is necessary, as he told the expert.[20]
[20] Family Report 8 September 2023, paragraph 78.
The parents told the expert in the Family Report interviews that the child had not spent face-to-face time with the father since Father's Day, September 2022.
However, the child, being only three, disclosed to the expert that she had spent time with the father and C at about that time, and that the mother had told the child to lie to the expert about that.[21]
[21] Family Report 8 September 2023, paragraphs 6, 95-97 and 101.
I find this was a significant example of the mother acquiescing to the father's demands due to either fear and/or a lack of protective parenting capacity. The fact that she attempted to hide her complicity was highly indicative of the likelihood that, despite the orders I make, she will continue to be overborne by him and/or to fail to understand the risks he poses, and to voluntarily expose the child to him on an unsupervised basis.
The mother says the father's stalking and family violence have continued post-separation. In relation to the stalking allegations the father told the expert:[22]
48.The father strongly denied ever stalking the mother, ever attending her work place, or being found the in boot of the mother’s car. However, the father advised being provided with regular information about the mother’s comings and goings from her home by neighbours and associates. It remained unclear how the father initially connected with the neighbours, however the father further alleged being provided (on multiple occasions) CCT footage from the mother’s home cameras. It remained extremely unclear how the father has obtained this footage, however the father gave the impression that he was aware of the mother’s movements in and around her home.
[22] Family Report 8 September 2023, paragraph 48.
In oral evidence the father maintained that he had made no efforts to stalk the mother, suggesting that people he did not know, who were neighbours of the mother's, were so concerned about her conduct that they tracked him down through the internet via his business advertisements to let him know what she was doing and to send him CCTV footage.
The father's evidence in this regard was sheer fancy. I find it was intentionally dishonest. I find the father has, in fact, been continuing to stalk the mother as alleged.
The father was incarcerated again for stalking and intimidating the mother in late 2023 and released in about early 2024.
MS J
In the Family Report interview with the father he “denied any family violence in his relationship with his current partner [Ms J] [sic].”[23]
[23] Family Report dated 8 September 2023, paragraph 49.
Subsequently, the father and Ms J separated in circumstances of family violence as recorded in the police material.[24]
[24] Exhibit ICL 6.
In his oral evidence the father did not substantially dispute Ms J’s version of events in the police record, but nevertheless sought to blame Ms J and her son for the circumstances which led the incident, and for his acts of family violence towards her.
Again, whilst at times in oral evidence, the father made statements purporting to recognise his behaviour was inappropriate, he nevertheless consistently sought to deflect responsibility onto others, including Ms J, for his violent and aggressive behaviours.
FATHER'S INSIGHT INTO THE IMPACT OF FAMILY VIOLENCE ON CHILDREN
The expert recorded that:[25]
58.Neither parent was able to explain the likely impacts on [Ms B] and [C] being removed from their care. In response the mother said she was unsure, however the impacts were likely negative. The father said “There are heaps of impacts. He ([C]) would feel abandoned. But does he ([C]) remember? If he does remember there would definitely be an impact. But these are questions for him ([C]). I don’t have the answers.”
(Emphasis in original)
[25] Family Report dated 8 September 2023, paragraph 58.

The mother's evidence was that she had recommenced the connection with Ms B after a long separation. The father has not had any direct contact for a long time. The expert recorded at that “both parents advis[ed] [Ms B] remains very fearful of the father, however [the father] was unsure why.”[26]
[26] Family Report dated 8 September 2023, paragraph 57.
The obvious answer why Ms B might feel very fearful of father is that she was removed because she was experiencing his family violence, without protection from the mother, for the first seven years of her life.
The father's inability to consider this as a possibility is indicative of the father's lack of insight into the impacts of his family violence on children.
The father's suggestion that C may not remember the family violence, and he may not have been impacted by it, indicates a complete lack of parental capacity and insight.
In the Family Report interview, the father was asked about the impact of family violence on C and, at [50], said he did not know because he was not a mind reader. Either that was a dishonest answer or again suggests a complete lack of parental insight.
The expert said at Family Report [110] that “[t]he father however, spoke without remorse or empathy and demonstrated no insight into the likely emotional impacts on [C]” of his involving C in family violence against the mother.[27] I find it is likely that the father really does not see anything wrong in involving one of his children, being C, in acts of serious family violence against his own mother.
[27] Family Report dated 8 September 2023, paragraph 110.
C has, in his own right, threatened to burn down a house as a consequence of an argument when upset. He has been scheduled. He has an emerging criminal record[28] and on both parents' evidence, I consider it is likely he is headed towards a life of crime and incarceration, similar to the father's. Despite that, in oral evidence, when asked whether C was "troubled" the father said, “no, he is doing really well." The lack of insight is, again, deeply troubling.
[28] Exhibit ICL 9.
The expert said in oral evidence that it appears that C has learned to imitate the father's patterns of family violence, and violence generally. This has had a severe negative impact on C. The negative impacts that the father's relationship have had on C raises real doubts as to what benefits, if any, the child would have from having a relationship with the father, other than avoiding the natural and inevitable negative consequences associated with the termination of a parental relationship, as described by the expert, which can include psychological harm, self-doubt, self-blame, and other matters as set out by the expert.
It was recorded in the Family Report that the:[29]
50.…CCE asked the father what the impact on [X] would be if she heard and saw ongoing family violence, which the father said would not be good.
[29] Family Report dated 8 September 2023, paragraph 50.
I found that answer was not indicative of real insight or development and understanding, but the father merely saying what he thought was necessary to say to obtain the orders he wants.
THE FATHER'S ATTITUDE TO FAMILY VIOLENCE AND LIKELIHOOD OF A FUTURE CHANGE
The expert said at the Family Report that the father spoke about the allegations of family violence “in a cold and dismissive fashion”.[30]
[30] Family Report dated 8 September 2023, paragraph 47.
The father told the expert, that had had done about 40 men's behaviour courses but spoke about them, the expert considered, “in a dismissive and mocking” way.[31]
[31] Family Report dated 8 September 2023, paragraph 50.
In early 2019, when being assessed for a domestic violence perpetrators program, it was recorded that the father:[32]
…stated he had made choices in his life which had resulted in him being violent towards [the mother]. He indicated his determination to make better choices in the future, in the hope that his children would be restored to him and [the mother's] care.
[32] Exhibit ICL 3.
In that context, however, the father:[33]
...talked about how [the mother] had provoked his violence and abuse towards her. However, when challenged to focus on his own behaviours, he responded in a positive manner, and stated he was prepared to take responsibility for his violent and abusive behaviours.
[33] Exhibit ICL 3.
In the Family Report interview:[34]
46.The father firmly denied all allegations about family violence, and said all the allegations of family violence have either been fabricated or exaggerated by the mother and various other people, including caseworkers from the DCJ. The father denied that he was violent, and said for the most part the arguments with the mother would have been considered normal couple disputes. The father made allegations the mother was a perpetrator of family violence including talking, intimidation, verbal, telecommunication and emotional abuse, and name calling.
[34] Family Report dated 8 September 2023, paragraph 46.
The expert also recorded that:[35]
109.Family violence has been identified as a significant concern for this report. Both parents made admissions of breaching AVO’s, and the father made admissions that he has perpetrated family violence against the mother for over 18 years, and it would appear the father is possibly stalking the mother and obtaining personal information about her from her neighbours and acquaintances. However, the father appeared non-apologetic, and demonstrated no genuine empathy, and appeared unable to consider how this behaviours would impact on [X]. Instead he was heard to justify his behaviour and attempt to blame the mother. In comparison, the mother reported a pattern of being a POI in relation to ADVO,’s, and also breaching ADVO’s protecting the father. When discussing this, the mother appeared unapologetic and attempted to justify her behaviour, and demonstrated no capacity to consider how this behaviour would likely place [X] at risk of harm.
[35] Family Report dated 8 September 2023, paragraph 109.
Based on the father's statements to the expert, in which regard I accept her evidence, and on his similar oral evidence before me, I find that the father is “non-apologetic and demonstrated no genuine empathy and appeared unable to consider how his behaviour would impact on [X].”[36]
[36] Family Report dated 8 September 2023, paragraph 109.
I find that the father's oral evidence of contrition before me, in the context of his repeated attempts to deny or avoid responsibility or to blame the mother for his conduct in that same oral evidence, was no more than the father saying to the court what he believed he needed to say to obtain the orders he wants, and were in no way a genuine statement of insight, contrition or recognition of wrongdoing.
It was clear from his statement to the expert, and his oral evidence before me, that he holds exactly the same view in relation to his violent conduct towards Ms J, that he was not to blame.
The fact that the father holds the view that he is not a family violence perpetrator and has done nothing wrong with regards to the mother, and has done nothing wrong in his conduct with C, even taking into account his various concessions of specific conduct and occasional statements of contrition, and multiple convictions, I find to be clear and overwhelming evidence that the father is extremely unlikely to change his behaviours. I find that it is almost certain that, given he does not believe there is anything wrong with his past actions, he will continue to behave in the same violent ways in future.
The father told the expert at [51] that he would do further men's behaviour courses as directed by the court and if he had time. I find that the caveat “if he had time” indicated the view he has of these courses.
The expert was asked for the father in cross-examination what courses might be recommended and said a men's behaviour course. I find there would be no benefit in the father doing another, 41^st, men's behaviour course when he clearly considers it is no more than a box-ticking exercise and that he has not had his views or consequently his behaviours changed by attending the previous 40.
PROPOSALS CONCERNING THE CHILD'S TIME WITH THE FATHER
The mother's position has varied over time. In her Initiating Application and in her Amended Initiating Application, the mother sought that the child spend short periods of unsupervised time with the father. At the time of the Family Report in August 2023, she told the expert she was seeking that the child spend one weekend per month with the father unsupervised. In her Amended Application for final orders, filed on 8 April 2024, however, the mother sought a no time and no communication order supported by a s 68B order.
In his Response to final orders, filed on 20 January 2023, the father sought spend time with orders as agreed between the parties in writing or, failing agreement, in a graduating scheme with the child finally spending time with the father on Wednesdays and every other weekend and half school holidays.
As noted previously at the commencement of the trial, the parents proposed consent orders in MFI 10. The proposed orders were for the mother to have sole parental responsibility and for the child to live with the mother, and the child spend time with the father as agreed, which by implication would include anything the parties decided on, including unsupervised time, half school holidays and etcetera, but failing agreement, then an indefinite supervised regime for four hours each alternate Sunday. There were also proposed other matters.
As I said, the ICL opposed the proposal, and on the evidence before me at the time I was not willing to approve those orders as being in the child's best interests. The matter proceeded to trial.
At the conclusion of the trial, both the father and the mother, despite her oral evidence of fear of the father and for the risks he poses to the child, again proposed MFI 10 or in the alternative, the father sought at least long-term supervised time.
The ICL submitted that the mother was clearly afraid of the father and that the only way to protect the child was for there to be a no time and no communication order supported by s 68B injunctions.
THE MOTHER
There was an issue about the mother being a heavy drinker. She denies that.[37] There is no evidence this is a significant issue. The grave risk I find the mother poses to the child is her ongoing inability to protect the child from the father, from C, or from other violent men with whom she may have a relationship, and also her lack of empathy or understanding that more is required than merely feeding and clothing a child for it to be safe.
[37] Mother’s affidavit filed 1 April 2025, paragraphs 30-31.
The mother described to the expert that the father was a “good father" at that time, said she had no concerns about his ability to provide for the child's "basic care and needs" and said she had no concerns he will harm the child.[38] In the context of the historical evidence, that was a stunning statement.
[38] Family Report dated 8 September 2023, paragraph 21 (emphasis in original).
However, in her affidavit at [47], the mother said she did not feel it was safe for the child to see the father “given the circumstances and the domestic violence I have suffered in the last few years. I do not want her exposed to family violence.”[39] That was consistent with the last filed application seeking no time and no communication, and with her oral evidence, but inconsistent with her opening position re MFI 10 which was also her closing position at trial.
[39] Mother’s affidavit filed 1 April 2025, paragraphs 47.
In her oral evidence, the mother effectively maintained the position that the father was an unacceptable risk in cross-examination by the ICL. She was not able to offer any convincing explanation for why she had proposed orders that would facilitate unsupervised time with the father. She did say that ongoing supervised time between the older children and the father had been organised with DCJ for an extended period. That does not explain her acquiescence at the start or end of the trial to the proposal that would allow her to agree to unsupervised time, and put her in a position where she would doubtless be constantly subjected to the father demanding unsupervised time.
I note that the Family Report suggests that there were six visits per year initially arranged between the parents and the elder children, and I accept that would be consistent with DCJ facilitating supervised identity visits in accordance with their common custom.
I note that while the mother told the expert on 15 August 2023 that the father had not seen the child in person for three months, that was a blatant lie, and also that she clearly told the child to lie to the expert about this, showing that she was aware how inappropriate it was and how it would be viewed.
It also shows that she is more than willing to lie, including in a formal court process, to hide her avoidance of what she knows to be appropriate conduct, and I find that it is almost certain that if the father pressures the mother, as I find he inevitably will, that she will allow him to have unsupervised time with the child despite these orders.
It is for these reasons, that I consider the mother is also a grave risk to the child, that the child remains at grave and unacceptable risk despite the orders that I make, and why I will be referring this matter back to DCJ again, with a request that they again consider this matter.
I accept the ICL’s submission that the likelihood is that the mother is doing this because she is unable to resist the father and protect the child from him given her grave fear of the father, which I find is well-justified in the context of her long history of being a victim of family violence.
Despite the fact that that is true, that does not make this child safe in her care.
I note the mother was also in a relationship with Mr F. The child told the expert unprompted that the mother and Mr F were in a fight and broke up. The fighting between them made her feel “very, very bad, and very, very sick.”[40] She said there was a great deal of fighting, that the mother would often go to the neighbours for help, on one occasion throwing the child over the fence for help, on another occasion taking her to the neighbours and telling her to stay there.[41]
[40] Family Report dated 8 September 2023, paragraph 99 (emphasis in original).
[41] Family Report dated 8 September 2023, paragraphs 99-100.
The child also recounted her traumatic experience of a home invasion, in which there was a man with a knife and fighting, and she was quite scared and shaking and hiding in her bedroom.[42] The home invasion, as I said, appears to be associated with Mr F. Mr F was living with the mother and the child but relocated in circumstances where Mr F obtained the AVO. This shows that the mother, having extracted herself from one violent relationship, chose to enter into another similar relationship, and shows no protective capacity for herself or for the child.
[42] Family Report dated 8 September 2023, paragraph 100.
Given the mother’s history, there must be a real risk that she will again enter into such a relationship, and the child will again be exposed to significant and unacceptable family violence.
THE CHILD
The child does not have any formal diagnosis, learning or cognitive delays, or identified behavioural issues and appears to be meeting her milestones. The expert considered that she “presented as bubbly, engaging and friendly, and presented with well-developed expressive and receptive language.”[43] She takes swimming lessons for extracurricular activity and is in primary school.
[43] Family Report dated 8 September 2023, paragraph 9.
To the extent it was suggested for the father to the expert in cross-examination that this was evidence that the mother must have good parenting capacity, and therefore could be trusted to act protectively with respect to any agreement that might be reached for the child to spend unsupervised time with the father, the expert did not accept that causal correlation and neither do I. This child happens to be resilient but the objective facts show that the mother has not protected the child, from Mr F, and from spending time with the father on at least one occasion.
DISCUSSION OF RISKS TO THE CHILD
The expert interviewed the father and mother and observed the child and the mother on 15 August 2023. In her report she identifies significant impairments in both parties' parenting capacity:[44]
105.A number of significant risk of harm issues have been identified by the CCE in relation to family violence, parental mental health, parental substance misuse, criminal activity, and impaired parenting capacity, which bring into question [X’s] ongoing emotional and physical safety and wellbeing in the care of both parents. Due to this, the CCE made a risk of harm report to the NSW Department of Communities and Justice (DCJ).
106.The available information would suggest the parents’ capacity to protect [X], and ensure she is not placed at risk of physical, psychological and emotional harm and neglect is extremely impaired. Both appeared unable to consider how the risk issues identified within this report will likely impact on [X]. Both appeared unable to reflect on how the DCJ identified the same risk issues in 2011, resulting in [Ms B] and [C] being removed from their care, and that these risk issues have continued to be a concern for a further 12 year period. Neither parent demonstrated the capacity to consider the impact of these risk issues on [X’s] emotional safety and wellbeing and her overall development, if these risk issues remain unaddressed.
107.Of further concern, was the fact the parents appear to have a distorted view of what actually equates to safe, nurturing and loving parental capacity and functioning. They both appeared to think that an ability to adequately feed, clothe, supervise and provide [X] with housing, diminished the impact of the family violence, parental substance misuse and parental mental health on [X]. Essentially, they both appeared to have a line of demarcation between providing [X] with her basis needs, to their ability to provide her with emotional and physical safety and wellbeing, with no capacity to consider these issues are not separate and will likely impact on [X’s] emotional and physical wellbeing.
[44] Family Report dated 8 September 2023, paragraphs 105-107.
When interviewed, the father denied that the child was at risk of emotional and physical harm in his care.[45] Despite his own and documentary evidence:[46]
77.The father denied having any formal mental health diagnosis, and described himself as spontaneous and impulsive, and reported his treating psychologist is questioning an ADHD diagnosis. The father said he is loathed to take Ritalin (or similar) due to concerns “he should not be taking amphetamines” meaning the father felt, given his spontaneous and unpredictable personality, that taking amphetamines would cause more problems than what it may resolve.
78. The father said he is not currently medicated and does not believe this is necessary. The father said he has been engaged in counselling for the past two years with Clinical Psychologist [Dr R] at [S Centre]. It remained unclear however what the purpose of this counselling is as the father said he wasn’t sure although he found the sessions useful. The father said he initially attended [Dr R] for family counselling with the mother in 2021 (approximately), however the mother never attended any appointments, and therefore he has continued with individual appointments with [Dr R].
(Emphasis in original)
[45] Family Report dated 8 September 2023, paragraph 38.
[46] Family Report dated 8 September 2023, paragraphs 77-78.

There is no evidence for any medical practitioner. The father is unmedicated and denies a need for medication. He suggested in oral evidence that he has medical practitioners who know he is unmedicated and are not concerned about that. However, given the father's blatant dishonesty throughout his oral evidence, I give no weight at all to this hearsay evidence of the alleged expert opinions of these practitioners.
There is no material to suggest that the mental health condition resolves naturally with time and does not require medication. The father said if he had known expert evidence was required, he could have called it. It must have been clear that expert evidence was required, that his mental health was a significant, if not the major, fact in the case, along with his family violence.
The untreated nature of his mental health condition in the context where there is evidence that suggests a lack of treatment has led to a significant suicide attempt and acts of violence, means that this poses a grave risk.
The father's history of unpredictable and violent behaviours, particularly when unmedicated, means that whilst he might not intentionally physically harm the child when not in a poor mental state, there is a very high risk that he could gravely harm the child when in a poor mental state. In relation to the father's history of suicide attempts, the expert said that:[47]
117.The Court will also need to consider, although both parents reported the father had a history of suicidal threats, that this maybe more related to his history of perpetrating family violence than mental health. It is not unusual for people to make threats of self-harm, or make suicide attempts, to exhort power and control over another person. This tactic is very effective because it leaves the victim feeling responsible for the perpetrators life, leaves the victim with a sense of obligation to ensure the perpetrator does not harm themselves of commit suicide, and being fearful it will be their fault if the perpetrator dies, and the children are left without a parent. Alternatively, if the father has unmanaged and unstable mental health, leading him to make suicide attempts, this may highlight the extent of the father’s mental health, and the need for intensive mental health intervention.
[47] Family Report dated 8 September 2023, paragraph 117.
These two alternatives are not mutually exclusive. I find that the father's suicide attempt at the maternal grandfather's house was likely related to his untreated mental health condition, and was also indicative of both a genuine attempt to end his life, noting he had gotten to the point of unconsciousness and beyond the point of no return if not rescued, but he also threatened to burn the maternal grandfather's house down, and he made sure the mother knew what was doing. I find this was both a suicide attempt and form of extremely manipulative coercive controlling family violence.
Similarly, the father involved the mother and C in his suicidal actions on a motorway. To the extent to which the father also denied that the incident on the motorway was a genuine suicide attempt in his oral evidence, deflecting and avoiding questions, I find that he was intentionally dishonest.
I find that there is a real danger that the father might, particularly if he is unmedicated, take the child and involve her in a genuine suicide attempt in which she might also be either severely injured or killed, and that he also may expose her to family violence through threatening suicide as part of his established pattern of coercing and controlling those around him.
There is a further significant risk of the child maintaining a relationship with her father, which is he will instil in her or teach her the same life lessons he has taught C, which is that family violence and violence in general are acceptable behaviours. This is consistent with his apparent view of criminal behaviour and on the expert's observation:[48]
121.At times the father appeared to have a romanticised view of crime and violence, and appeared proud and dismissive when speaking about his behaviours. The father also appeared unsympathetic to the crime [C] has witnessed (and perpetrated), or the potential impacts on [X] if the father continues to involved [sic] in crime and anti-social behaviour
[48] Family Report dated 8 September 2023, paragraph 121.
In this context, as the expert also noted of the father's relationship with C, it “brings into question the father's capacity to be a safe and nurturing parent for [X] and raises the concern the father may in future use [X] to perpetrate family violence against the mother.” [49] That would be an act of family violence against the child as noted in the Family Report at [112], causing her potential lifelong emotional scars and traumas.[50]
[49] Family Report dated 8 September 2023, paragraph 111.
[50] Family Report dated 8 September 2023, paragraph 113.
The expert's opinion was that “it is imperative she is permitted to have an ongoing relationship with both parents if this is safe to occur however, [X’s] right to have an ongoing relationship with her parents should not supersede her ongoing emotional and physical safety and wellbeing.”[51]
[51] Family Report dated 8 September 2023, paragraph 125.
In oral evidence in cross-examination for the father, the expert confirmed her opinion, saying it was imperative for the child to have a relationship with both parents. However, she repeated the caveat that this was only if this was safe to occur. She said, appropriately, that whether it was safe to occur was ultimately a question for the court.
I note the father's alternate case in submissions was for indefinite supervision, citing Betross & Betross [2017] FamCAFC 90. I note that indefinite supervision is available as an option if it is in the best interests of the child and I note the authorities as conveniently summarised in Pointer & Cheadle (No 2) [2023] FedCFamC1F 602 at [269] to [271], which was discussed in oral submissions.
The father also relies upon the Full Court authority of Keighley & Keighley [2023] FedCFamC1A 146. I note in the trial decision, Keighley & Keighley (No 2) [2023] FedCFamC1F 42, the trial judge had made an order for long-term supervision of time between the father and two children of age approximately 12 and 8 in circumstances submitted to be similar to this. The father in that case appealed seeking further time. The appeal was rejected. There was no appeal by the mother against the orders made allowing long-term supervised time. That was not dealt with.
I have considered the first instance and the appeal decisions. This case, as all cases do, rests upon its own unique facts and weighing the risks and benefits. The similarities are of little assistance.
It was submitted that the child in this case will be safe from harm because a worker at a contact centre would assess the father and protect the child physically from him if he turned up in a florid state seeking to harm or abduct the child. I reject that submission. The father is a large man with a history of violence. He has been willing to assault and threaten police. To suggest that the child is safe because a worker at a contact centre would protect her, and be able to protect her from being abducted, is a proposition I reject.
It was also submitted that such a worker would be able to prevent inappropriate conversations, but no supervision is perfect. Supervisors cannot guarantee they will hear every word a person says, and they cannot guarantee that the father will not tell the child quietly, for example, that he is going to kill himself because of the mother's lies, or because she told the expert she had seen him when she was specifically told not to, or that he will not tell her that it is the mother's fault she cannot see him, or it is her fault as a child she cannot see him, or a plethora of other manipulative and damaging things.
In my assessment, the nature and extent of the risks that the father poses satisfies me that even close supervision inside the best supervised contact centre will not be adequate to ameliorate the grave risks the father poses, either of a physical outburst or attempt to take the child, or saying inappropriate and manipulative things to the child.
In respect of the mother, there is no issue as to her basic capacity to meet the child's food and hygiene needs and to send her to school; however, as I have said, the evidence raises real issues about her capacity to provide a safe and nurturing environment for the child. The expert noted throughout her report the mother's presentation, including at paragraph 19, that she “presented as flat and detached in her demeanour, and often answered in a robotic manner and rarely displayed any emotion."[52]
[52] Family Report dated 8 September 2023, paragraph 19.
The expert raised issues with mother and “said she had not considered the impact on [X] until speaking with the CCE."[53]
[53] Family Report dated 8 September 2023, paragraph 19.
The expert asked the mother about what she enjoyed about being a mother and was told "[i]t is hard to answer because I have never been a mother"[54]as the older children were taken from her, but she had to be reminded she had been the child's mother for three years.
[54] Family Report dated 8 September 2023, paragraph 20 (emphasis in original).
The expert recorded that the mother told her at [44] that though engaged in family violence counselling, she was "unsure" about what she had learned and "did not know" how family violence impacted the child herself. The mother also raised that her own counsellor said she appeared to be, "emotionally disengaged and unavailable", likely as a result of family violence. The mother was unable to explain any strategies to address this trauma.[55]
[55] Family Report dated 8 September 2023, paragraph 44.
The mother in oral evidence said she had suffered an ectopic pregnancy a week before the interviews which affected her. It is not clear why she did not raise this with the expert. It is not clear if it was only a temporary issue, why her own counsellor, she said, had told her she was apparently emotionally disengaged and unavailable. There was no evidence of the ectopic pregnancy, further it would not be an explanation or an adequate explanation for what the mother's own counsellor had observed in similar terms to the expert.
I have also already referred to, paragraph 109, in which the expert noted the mother also attempted to justify her behaviours and demonstrated no capacity to consider how her behaviours placed the child at risk of harm:[56]
109.Family violence has been identified as a significant concern for this report. Both parents made admissions of breaching AVO’s, and the father made admissions that he has perpetrated family violence against the mother for over 18 years, and it would appear the father is possibly stalking the mother and obtaining personal information about her from her neighbours and acquaintances. However, the father appeared non-apologetic, and demonstrated no genuine empathy, and appeared unable to consider how this behaviours would impact on [X]. Instead he was heard to justify his behaviour and attempt to blame the mother. In comparison, the mother reported a pattern of being a POI in relation to ADVO,’s, and also breaching ADVO’s protecting the father. When discussing this, the mother appeared unapologetic and attempted to justify her behaviour, and demonstrated no capacity to consider how this behaviour would likely place [X] at risk of harm.
[56] Family Report dated 8 September 2023, paragraph 109.
In cross-examination, counsel for the mother suggested to the expert the child is at no risk in the mother's care, a proposition with which the expert firmly disagreed. The expert maintained her opinion that the mother had a lack of parenting capacity, a lack of insight into the child's psychological and emotional needs, citing her apparent lack of insight into the impact on all the children's exposure to the parents' family violence and the need to protect both the child and herself from family violence.
Given all the evidence, I accept and agree with the expert's opinion that the mother has a significant lack of parenting capacity and has in the past, and will continue, I find, to place the child at grave risk of harm through the likelihood that despite the orders I make, the mother will act on the proposal she made, which will allow her to facilitate unsupervised time between the child and the father, between the child, the father and C, and potentially other violent men who she may engage with, and through also her lack of capacity to engage in an empathetic and caring and child-focused way with the child.
In this regard, I do note that, during the mother’s oral evidence, at times I thought that perhaps the expert had been harsh, as the mother did appear to show some insight and understanding, but I give weight to the expert's opinion ,and also note the fact that whilst one must consider presentation, when one looks at the entirety of the evidence, the expert's assessment is clearly correct. One has to be careful with demeanour, and I prefer the objective evidence of the mother's lack of capacity over the fact that sometimes, when being questioned, she was able to appear to have insight and understanding.
LEGISLATIVE FRAMEWORK
In the legislative framework, the objects of Part VII of the Act are to ensure the best interests of children are met, including by ensuring their safety and to give effect to the Convention of the Rights to the Child done on 20 November 1989. The paramount consideration of the best interests of the child (see s 60CA and 65AA).
The parents and the ICL jointly agree and propose that the mother should exercise sole parental decision-making authority. I note the father's history of family violence and that he poses an unacceptable risk to the child. He clearly cannot share parental responsibility. I find that it is in the child's best interests to make the consent orders.
I also note that it is agreed the child should live with the mother and, based upon my findings, that is in the child's best interests.
In coming to these conclusions, I have considered s 60CC factors. These include what arrangements would provide safety, including safety from being subjected to or exposed to family violence, abuse, neglect or other harm, of the child and each person who has the care of the child.
For the reasons I have given the child can never be physically or psychologically safe if she spends any time with the father. Similar issues apply to communication, given the likelihood that he will use communication to attempt to manipulate her and to harm the mother, nor can the mother be safe, physically or psychologically, while she remains engaged with the father.
The views of the child are required to be considered. The child told the expert she felt safe and loved with both parents and that she enjoys spending time with the father.[57] She is too young for her views to be given any weight, particularly in the context of the grave risks the father poses.
[57] Family Report dated 8 September 2023, paragraph 98.
I have considered the developmental, psychological, emotional, and cultural needs of the child. the father is unable to meet any of these and poses an unacceptable risk. The mother has severe limitations upon her capacity to meet them, but is the only alternative at present.
I am required to and have considered the capacity of each person who has parental responsibility for the child to provide for the child's developmental, psychological, psychological, emotional, and cultural needs. That has been discussed. The only person proposed is the mother. I have grave doubts about her parental capacity. I find the father has limited, if any, parental capacity, but that has been considered.
I am required to consider and have considered the benefit to the child of being able to have a relationship with each of the child's parents and other people significant to the child where it is safe to do so. The idea that it is safe to do so is in the legislation, as it was in the expert's opinion, noting that the safety of the child is at the heart of the legislation.
The expert's evidence that it would be in the interests of a child to have a relationship with both parents, "if it is safe to do so", and I find that there will almost certainly be significant long-term psychological harm to the child by reason of the orders for no time and communication that I make.
The expert was asked questions by counsel for the father, and went through in detail the significant psychological risks that are likely to be suffered, and the likelihood that they will be suffered by the child, who will have a parent removed from her life. She may blame herself. She may question at some stage whether the mother has done the wrong thing by participating in a process where the father was no part of her life. She may think she is not good enough and that the father does not want to deal with her. All these things are risks that have to be weighed. They are likely, I find, to come true.
The problem is that the gravity of the risks the father poses makes the risks, or even likelihood of psychological harm from the orders I make, lead to the conclusion and finding that termination of the paternal relationship is nevertheless the significantly less risky and less harmful result for the child, and so in the child's best interests.
I require to consider family violence and have.
The child is not an Aboriginal or Torres Strait Islander child.
NOTIFICATION TO DCJ
This should be read with the rest of the judgment.
The expert noted that: [58]
124.The Court is in an unenviable position, where it would appear neither parent has the current capacity to provide [X] a safe, nurturing, and consistent home environment, which would support the healthy development of [X’s] physical, emotional, psychological and social development. It would appear that the removal of [X’s] siblings ([Ms B] and [C]) 12 years ago has not been a catalyst for change for either parent, with neither parent demonstrating any meaningful change even though they both reported an extensive history of engaging in counselling, and support services including family violence support. Therefore, it maybe the Court determines [X] is unsafe in the care of both the mother and the father.
125.For [X] to thrive and achieve all her expected outcomes, it is imperative she is permitted to have an ongoing relationship with both parents if this is safe to occur. However, [X’s] right to have an ongoing relationship with a parent, should not supersede her ongoing emotional and physical safety and wellbeing. Therefore, the Court may wish to consider it may be in [X’s] best interest for other options to be canvassed. Options that will support [X] to thrive, and not be subjected to physical and emotional harm, whilst remaining connected with both parents. It may be in [X’s] best interest to live with another safe adult, and spend supervised monthly time with both parents. For instance the Court may consider the maternal grandmother, and the maternal uncles and aunt, or the NSW Department of Communities and Justice being invited to join these proceedings.
[58] Family Report dated 8 September 2023, paragraphs 124-125.
On 29 September 2023, an order was made pursuant to s 91B requesting the Department of Communities and Justice to intervene. The Department declined.
The evidence comfortably establishes, and I find, that the mother has limited parenting capacity, and that the child faces grave ongoing risks in the mother's care by reason, in particular, of the likelihood that she will be coerced into ignoring these orders and facilitating time between the child and the father.
Whilst parental responsibility and who the child should live with is not in dispute, that reflects the father's unacceptable risk and lack of other alternatives and not the mother's having any proper parenting capacity.

I find that the mother is, for good reasons, so scared of the father that her capacity to protect the child from the father, or from C, is negligible, and that it is likely that the mother will be intimidated into facilitating unsupervised time between the child and the father despite the orders I make, and that she will actively work to hide this from DCJ and others, as she has already tried to do during the course of these proceedings when she told the child to lie to the expert at the Family Report interviews about having seen the father.
I find this is also established by the fact that she proposed orders that would allow her to facilitate unsupervised time between the child and the father contrary to her evidence.
I find that mother's relationship with Mr F placed the child at grave danger of physical and psychological harm, and there is a real prospect the mother will continue to select violent and dangerous partners in future.
I note that, as I said, the mother's presentation in the witness box at times almost persuaded me the expert had misunderstood the mother or had formed a partisan opinion, which only shows the dangers of relying on presentation.
It is clear from a careful consideration of the overwhelming evidence that despite her presentation, the mother's consistent behaviours establish her lack of basic parenting capacity.
I order that a copy of the judgment or these proceedings be provided the Department of Communities and Justice New South Wales, together with a copy of the Family Report so that should the mother conspire with the father, whether through fear or indifference, to circumvent the s 68B injunction protecting her and the child from the father, as I find is not only possible, but likely to occur, given the mother's joint application with the father to allow them to agree on supervised time, this relevant information is available to DCJ, so that further consideration may be given by DCJ to whether the child should be placed under the care of the Minister for her own safety at some future time, given my finding that the child is at grave risk in the mother's care.
Those are my reasons.

I certify that the preceding two hundred and three (203) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Smith.
Associate:
Dated: 9 May 2025

File number(s):	NCC 4067 of 2021
Judgment of:	SMITH J
Date of judgment:	23 April 2025
Catchwords:	FAMILY LAW – CHILDREN – Where parties proposed a minute at the commencement of trial – Independent Children’s Lawyer opposed the minute – where trial proceeded in circumstances where the court was not satisfied the proposal was in the best interest of the child – where parties and the Independent Children’s Lawyer agreed for the mother to have sole parental and decision making authority and for the child to live with the mother – where evidence demonstrated that the father had engaged in a pattern of persistent violent and coercive and controlling behaviour with partners, including the mother – where evidence further showed that the father’s mental health was volatile and his mental health condition presently unmedicated – where contrary to her evidence at the conclusion of the trial the mother still sought that the child spend time with the father, opposed by the Independent Children’s Lawyer – father an unacceptable risk of harm – supervision will not ameliorate those risks - finding that it is in the best interests of the child to spend no time and have no communication with the father - finding that the mother lacked protective capacity - further referral to Department of Communities and Justice to consider removal of child
Legislation:	Family Law Act 1975 (Cth), Pt VII, ss 60CA, 60CC, 65AA, 68B, 91B
Cases cited:	Betross & Betross [2017] FamCAFC 90 Keighley & Keighley [2023] FedCFamC1A 146 Keighley & Keighley (No 2) [2023] FedCFamC1F 42 Pointer & Cheadle (No 2) [2023] FedCFamC1F 602
Division:	Division 1 First Instance
Number of paragraphs:	203
Date of hearing:	14-16 April 2025
Place:	Newcastle
Counsel for the Applicant:	Mr Spicer
Solicitor for the Applicant:	Sydney Triumph Lawyers
Counsel for the Respondent:	Mr Hartwell
Solicitor for the Respondent:	Scb Legal Pty Ltd
Counsel for the Independent Children's Lawyer:	Mr Murray
Solicitor for the Independent Children's Lawyer:	Coast Law

NCC 4067 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS RANNELLS Applicant
AND:	MR WHITAKER Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	SMITH J
DATE OF ORDER:	23 APRIL 2025