Rasul & Momin (No 2) - [2023] FedCFamC1F 947

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rasul & Momin (No 2) [2023] FedCFamC1F 947

File number(s): PAC 3390 of 2021

Judgment of: CARTER J

Date of judgment: 8 November 2023

Catchwords: FAMILY LAW – CHILDREN – Whether either parent poses an unacceptable risk to the children – Where one child has special needs – Allocation of parental responsibility – Orders made.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA

Cases cited:
AMS v AIF (1999) 199 CLR 160

Bielen & Kozma (2022) 66 Fam LR 59

Fitzwater & Fitzwater(2019) 60 Fam LR 212

Loddington & Derringford (No 2) [2008] FamCA 925

McCall and Clark (2009) FLC 93-405

Mazorski v Albright (2007) 37 Fam LR 518

MRR & GR (2010) 240 CLR 461

Oberlin and Infeld (2021) FLC 94-017

Division: Division 1 First Instance

Number of paragraphs: 262

Date of hearing: 14 – 18 August 2023, 14 and 15 September 2023

Place: Heard in Parramatta, delivered in Melbourne

Counsel for the Applicant: Mr Dura

Solicitor for the Applicant: Walter & Elliott Family Lawyers

Counsel for the Respondent: Mr Hill

Solicitor for the Respondent: Jacqui Griffin Mobile Solicitor

Counsel for the Independent Children's Lawyer: Mr Sperling

Solicitor for the Independent Children's Lawyer: Legal Aid New South Wales
ORDERS

PAC 3390 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR RASUL

Applicant

AND:
MS MOMIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CARTER J

DATE OF ORDER:

8 NOVEMBER 2023

THE COURT ORDERS THAT:
Parental responsibility
1.All previous parenting orders are discharged.
2.The parties have equal shared parental responsibility for the children X born in 2015 and Y born in 2017 (collectively, “the children”).
3.The children live with the mother.

Spend time arrangements
4.The children spend time with the father as agreed in writing between the mother and the father, and failing agreement as follows:
(a)commencing 11 November 2023 until 30 December 2023 each Saturday from 12.00 pm to 5.00 pm;
(b)commencing 6 January 2024 until 3 March 2024 each alternate weekend from 10.00 am to 5.00 pm on Saturday and 10.00 am to 5.00 pm on Sunday;
(c)commencing 15 March 2024 and until 12 May 2024, each alternate weekend from 10.00 am on Saturday to 5.00 pm on Sunday;
(d)commencing 24 May 2024 and until the conclusion of the term 2 June/July school holidays 2024, each alternate weekend from the conclusion of school on Friday, or 3.00 pm if it is a non–school day or the children are not otherwise in attendance at school that day, to 5.00 pm on Sunday;
(e)commencing term 3 2024:
(i)each alternate weekend from the conclusion of school on Friday, or 3.00 pm if it is a non-school day or the children are not otherwise in attendance at school on that day, to the commencement of school on Monday, or 9.00 am if it is a non-school day or the children are not otherwise in attendance at school on that day;
(ii)with X each alternate Wednesday, from the conclusion of school, or 3.00 pm if it is a non-school day or the children are not otherwise in attendance at school on that day, to the commencement of school on Thursday, or 9.00 am if it is a non-school day or the children are not otherwise in attendance at school on that day commencing the first Wednesday of each term; and
(iii)with Y each alternate Wednesday, from the conclusion of school, or 3.00 pm if it is a non-school day or the children are not otherwise in attendance at school on that day, to the commencement of school on Thursday, or 9.00 am if it is a non-school day or the children are not otherwise in attendance at school on that day commencing the second Wednesday of each term.

(f)commencing in the September/October 2024 school holidays, and for each Term 1, Term 2, and Term 3 school holiday period thereafter:
(i)in odd ending years, for the first half of the school holidays from the conclusion of school on the last day of the school term until 3.00 pm on the day that is the midpoint of the school holiday period, and if there are two middle days, the first of those middle days; and
(ii)in even ending years, for the second half of the school holidays from 3.00 pm on the day that is the midpoint of the school holiday period, and if there are two middle days, the first of those middle days, to the commencement of school on the first day of the new school term.

(g)commencing in the Term 4 summer school holiday period in 2024/2025 and each long summer holiday thereafter for one half of the holidays on a week about basis with changeovers to occur at 3.00 pm, unless otherwise agreed, as follows:
(i)with the mother for the first week in 2024/2025 and each alternate year thereafter; and
(ii)with the father for the first week in 2025/2026 and each alternate year thereafter.

Christmas
5.Notwithstanding any other order the children spend time with the father:
(a)from 2.00 pm on Christmas Eve to 6:00 pm in 2023;
(b)from 2.00 pm on Christmas Day to 2.00 pm on Boxing Day in 2024 and each alternate year thereafter; and
(c)from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day in 2025 and each alternate year thereafter.

6.Notwithstanding any other Order the children spend time with the mother:
(a)from 6.00 pm on Christmas Eve to 2.00 pm on Boxing Day in 2023;
(b)from 2.00 pm on Christmas Eve to 2.00 pm on Christmas Day in 2024 and each alternate year thereafter; and
(c)from 2.00 pm on Christmas Day to 2.00 pm on Boxing Day in 2025 and each alternate year thereafter.

Mother’s Day
7.In the event Mother's Day falls on a weekend the children are in the father’s care, the father’s time shall be suspended from 9.00 am on Mother's Day to the commencement of school on Monday.

Father's Day
8.In the event Father's Day falls on a weekend the children are in the mother’s care, they shall spend time with their father from 9.00 am on Father's Day to the commencement of school on Monday.

Birthdays
9.Commencing in 2024, unless it is a day on which the children will be spending time with both parents (being a changeover day), the children shall spend time:
(a)with the parent with whom they would otherwise not reside on the children’s birthdays from after school to 7.00 pm if the birthday falls on a school day and from 9.00 am to 2.00 pm if the birthday falls on a non-school day;
(b)with the mother on the mother’s birthday from after school to 7.00 pm if the birthday falls on a school day and from 9.00 am to 2.00 pm if the birthday falls on a non-school day; and
(c)with the father on the father’s birthday from after school to 7.00 pm if the birthday falls on a school day and from 9.00 am to 2.00 pm if the birthday falls on a non-school day.

Religious festivals
10.That notwithstanding any other Order, the children spend time with the mother and the father for religious festivals as follows:
(a)in odd ending years commencing in 2025, on the weekend of the festival, or if the festival falls during the week, the weekend immediately following the festival:
(i)with the mother from 3.00 pm on Friday to 3.00 pm on Saturday; and
(ii)with the father from 3.00 pm on Saturday to 7.00 pm on Sunday;

(b)in even ending years commencing in 2024, on the weekend of the festival, or if the festival falls during the week, the weekend immediately following the festival:
(i)with the father from 3.00 pm on Friday to 3.00 pm on Saturday; and
(ii)with the mother from 3.00 pm on Saturday to 7.00 pm on Sunday.

Communication between the children and the parents
11.The parent with the care of the children shall facilitate the children communicating with the other parent by WhatsApp, FaceTime or such other agreed audio/visual communication means each Tuesday between 5.00 pm and 6.00 pm with the parent seeking to communicate with the children to initiate the call.

Changeover
12.Unless otherwise agreed in writing between the parents:
(a)if changeover coincides with the commencement or conclusion of school, changeover shall occur at the children’s school(s); and
(b)otherwise changeover is to occur at the entrance to the B Library.

School and extra curricula activities
13.The parents forthwith do all acts and things and sign all documents necessary to ensure the children’s school(s) are advised that each parent is at liberty to receive/obtain from the school copies of all school reports, progress reports, notice, photo order forms, and other like communications.
14.Both parents are at liberty to attend all school events for each of the children to which parents are ordinarily invited, including but not limited to sports days, assemblies, and parades.

Non-denigration
15.Each parent be and hereby is restrained from:
(a)discussing these proceedings with either child or in their presence or hearing;
(b)showing either child any documents relating to these proceedings;
(c)questioning either child in relation to their views or preferences concerning their living arrangements or the time they spend with the other parent; and
(d)physically disciplining the children.

Provision of information between the parents
16.Within seven days the mother provide to the father in writing:
(a)the children’s daily schedule including:
(i)times of mealtimes and foods eaten by the children; and
(ii)activities undertaken by the children;

(b)the names of the children’s current medical practitioners and educators; and
(c)copies of all documents in relation to the health and educational progress of the children that have been obtained by the mother since 2020.

17.Each parent forthwith inform the other in writing of their current residential address, and a contact telephone number and advise one another within 48 hours in writing should there be any change to said contact details.
18.The parents communicate in relation to matters pertaining to the children’s parenting arrangements and the children’s care, welfare and development:
(a)for all non-urgent matters, being those that do not require a response within 48 hours, by “Our Family Wizard” application; and
(b)for all urgent matters, being those that require a response within 48 hours, in the first instance by text message and/or email.

Medical information
19.The parents notify each other forthwith of any serious injury or hospitalisation in relation to the children and provide full particulars of any medical practitioner, health service provider or institution attended by the children and provide any authority and direction necessary to enable the other parent to obtain all necessary information concerning the children.
20.The parents notify the other of any medical appointments scheduled for the children as soon as possible and in any event no less than three hours prior to the appointment occurring.
21.This Order constitutes an authority for any medical professional or practice attended on by the children to provide all information in relation to the children’s care to each of the parents regardless of which parent facilitated the children’s attendance at the appointment.
22.Within seven days of orders being made, the mother do all acts and things and sign all documents necessary to restore the father’s access to X’s National Disability Insurance Scheme (“NDIS”) Portal including but not limited to authorising the NDIS to make the father a plan nominee for X’s NDIS Plan and thereafter each be restrained from doing any act of thing to cause the other parent to remove as an authorised person on the NDIS Portal and/or authorised decision maker in relation to any NDIS Funding application.
23.The father have leave to serve a copy of these orders on the National Disability Insurance Agency.

Airport Watchlist Order
24.Each of MS MOMIN and MR RASUL and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X born 2015 and Y born 2017 from the Commonwealth of Australia.
25.IT IS REQUESTED THAT the Australian Federal Police give effect to the preceding order by placing the names of the said children on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List for a period of five years.
26.Upon expiration of the period referred to in Order 25 hereof, and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the children’s names from the Watch List.

Other
27.All extant applications otherwise be dismissed.

AND THE COURT NOTES THAT:
A.Pursuant to sections 65DA(2) and 62B 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 and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER

This matter concerns the appropriate parenting orders for the parties’ two children X and Y.
X has multiple medical conditions. She also has a severe intellectual disability, global developmental delay and is non–verbal. X attends a special school. She requires considerable support and assistance and is provided with funding through the National Disability Insurance Scheme (“NDIS”) to assist with access to the significant supports she requires. Her condition is enduring, and she will require support and assistance throughout her life.
In early 2020, the mother asserted that the father had sexually assaulted X. At that time, she took two videos of the father interacting with X after her bath upon which she relied in making that assertion. The parties separated, and the children’s time with their father ceased.
The father was charged with sexual offences.
In early 2021 those criminal proceedings were summarily dismissed. The Magistrate found the prosecution had not established a prima facie case for the offences and commented that the father’s behaviour in the videos was “perfectly valid and legitimate” and that there was no foundation to the mother’s concerns of sexual abuse.
Notwithstanding the conclusion of the criminal proceedings, the mother did not agree to the recommencement of time. The father issued proceedings in this Court on 21 June 2021 seeking time with the children. Interim orders were made by the Court on 13 May 2022 providing for the children to spend supervised time with their father. That time commenced on 3 June 2022.
By then, the children had spent no time in their father’s care for over two years.
Supervised time has continued since. Initially, that occurred on a fortnightly basis. By agreement, the visits were made weekly at the end of July 2022. In around December 2022, the mother ceased contributing towards the costs of those visits – and the father accordingly has paid for all supervision since that time. In May 2023 the mother decided that the visits would revert to occurring fortnightly.
The case advanced by the mother and the Independent Children’s Lawyer
At the commencement of the trial, the mother conceded she did not press for a finding that there was an unacceptable risk to the children in the father’s care as a result of the sexual abuse allegations. At the conclusion of the trial, she maintained the father remained unable to provide safe and appropriate care for the children without supervision until he had completed a Men’s Behaviour Change Program.
It was the mother’s evidence that the father engaged in coercive and controlling behaviour during the relationship, that he subjected her to physical violence, and that he becomes emotionally dysregulated. She also said the father was not able to properly manage the children’s competing needs and X’s special needs. She said the father needed to address these issues before progressing to unsupervised visits, and these matters also meant that time must be confined to daytime visits only.
The Independent Children’s Lawyer shared the mother’s concerns regarding the father’s asserted emotional dysregulation.
In summary both the mother and the Independent Children’s Lawyer proposed the father complete a Men’s Behaviour Change program before time progress to unsupervised daytime visits, for a full day each Saturday and for an afternoon each Wednesday for one-on-one time with each child. The Independent Children’s Lawyer proposed that after a further three months, time could increase to include one overnight stay each alternate weekend, as well as making proposals for time on special occasions.
The mother and the Independent Children’s Lawyer also both proposed orders requiring the father to engage with a clinical psychologist:
…for the purposes of obtaining intensive and ongoing support to address his emotional regulation, historical perpetration of family violence, and difficulties in his co‑parenting relationship with the Mother…
In relation to parental responsibility, the Independent Children’s Lawyer proposed the mother have sole parental responsibility for the children’s health and education, save that the parents have equal shared parental responsibility in relation to decisions regarding the administration of X’s NDIS funding. The Independent Children’s Lawyer also proposed orders for the provision of information to the father from the mother and from those involved in the children’s care. The mother’s proposed orders in this regard mirrored the proposals of the Independent Children's Lawyer.
The case advanced by the father
It was asserted by the father that the mother’s allegations of violence perpetrated by him were false, save for one incident in 2015 in which he admitted he put his hands on the mother’s throat. He also said the allegations of sexual abuse of X were false. The father asserted it was the mother who presented an unacceptable risk to the children, as she maintains an unshakeable belief that he subjected X to sexual abuse. It was the father’s evidence that the mother subjected him to relentless verbal abuse and denigration, as well as having spat on him and hit him across the head with a handbag. He was also critical of the mother’s use of X’s NDIS funding – asserting she had used it unethically on occasion, to meet her needs instead of to assist X, thereby putting the funding at risk.
The father’s primary proposal was that he have sole parental responsibility, and the children live primarily with him. He proposed that the children spend initially professionally supervised time with the mother, increasing over time to unsupervised alternate weekend visits, together with a weeknight, holidays, and special occasions.

Alternatively, the father said if the Court did not find that the mother posed an unacceptable risk, the parents should have equal shared parental responsibility for the children. In those circumstances he proposed the children remain living with the mother, and spend unsupervised time in his care, gradually increasing in duration to a regime where they spend alternate weekends with him from Friday to Monday, and that Y spends each Tuesday overnight with him and X each Wednesday overnight with him. In addition, he sought orders for a sharing of holidays and special occasions.
ISSUES TO BE DETERMINED
Accordingly, the issues I must determine are:
(a)how should parental responsibility be allocated? That will include a consideration of how decisions can be best made regarding the use and application of X’s NDIS funding; and
(b)what care arrangements are in the children’s bests interests?
Determining the appropriate care arrangements for the children will include a consideration of:
(a)whether either parent presents an unacceptable risk to the children;
(b)if so, whether those risks can be ameliorated; and
(c)the primary and additional considerations as set out in the Family Law Act 1975 (Cth).
In order to determine the risk issues, what I must consider include:
(a)the parents’ competing allegations of family violence;
(b)whether the father is unable to appropriately emotionally regulate himself;
(c)the circumstances surrounding the making of the allegations of sexual abuse; and
(d)whether the parents will expose the children to their negative views of each other.
THE EVIDENCE
The father relied on:
(a)his trial affidavit filed 3 July 2023;
(b)affidavit of Ms C, the paternal aunt, filed 1 August 2023; and
(c)affidavit of Ms D, the paternal grandmother, filed 27 July 2023.
The paternal aunt and paternal grandmother were required for cross examination.
The mother relied on:
(a)her trial affidavit filed 6 August 2023;
(b)affidavit of Ms E, who has been a support worker for X, filed 6 August 2023;
(c)affidavit of Ms F, director of service delivery at G Services, an NDIS registered provider, filed 1 August 2023;
(d)affidavit of Ms H, the mother’s friend and former neighbour, filed 1 August 2023;
(e)affidavit of Ms J, director of K Early Learning Centre, filed 1 August 2023;
(f)affidavit of Ms L, a former neighbour, filed 1 August 2023;
(g)affidavit of Ms M, X’s dietician, filed 1 August 2023; and
(h)affidavit of Mr N, the mother’s psychologist, filed 1 August 2023.
Only Mr N was required for cross examination. The other witnesses’ affidavits were tendered into evidence, save for the last paragraph of Ms M’s which was struck out by consent. I note that Ms F’s affidavit is not based on her own observations, but purports to set out what she was told by other support workers about what they had seen and what the mother had reported to them. None of those support workers were on affidavit, or even named.
Both parents are from Country P. The father did not require an interpreter. The mother was assisted by an interpreter, but that was not without issue. Mostly the mother required the interpreter to interpret the questions put to her in cross examination. The mother answered partially in English and partially in Country P language. I requested the mother on several occasions to answer through the interpreter as it was at times difficult to understand the mother’s answers and I wanted to ensure I could properly hear her evidence. On the fourth day of the hearing, on a couple of occasions the mother was concerned the interpreter had not fully translated her answers. However, the mother indicated she was content for the matter to continue.
There were clearly language and cultural issues of which I must be aware when assessing the parties’ evidence. Even allowing for these concerns, neither parent was an impressive witness. At times they did not answer questions directly and gave lengthy unresponsive answers. They took many opportunities to criticise the other. They both struggled to make concessions. The father remained steadfast in his view that he had been a victim of the mother’s abuse and denigration, and the mother remained fixed in her view that she provided superior care for the children.
The father’s psychological assessment conducted by the Family Report Writer indicated he had an inflated view of himself and an impoverished view of the mother. He was unable to acknowledge even minor shortcomings in himself, but the testing did not reveal any evidence of anger management concern nor a proclivity to aggression.
In her oral evidence the mother similarly refused to consider any flaws or weaknesses in her parenting. She insisted that only she can provide a suitable level of care for the children which suggested she too is somewhat self-promoting and has an inflated view of her parenting, at least in the context of these proceedings. Her view of the father was similarly impoverished. I note that given her language limitations, the Family Report Writer did not conduct psychometric testing of the mother.
Having made those observations, however, I did not regard either parent as deliberately seeking to mislead the Court. Rather, as is often the case in these matters, they each saw their marriage and each other through a lens of distrust and suspicion.
It was also abundantly clear that both parents love their children and wish to play an important role in their lives. For the reasons I will set out later in these reasons, I am satisfied that the mother’s allegations of sexual abuse by the father of X were not malicious. Rather, they reflected the mother’s conservative upbringing, and seem more likely to have been a misinterpretation of innocent events, at a time of significant parental distrust towards the very end of the parties’ relationship.
The allegations nonetheless have had a devastating effect, resulting in the children’s complete cessation of their relationship with their father for more than two years. It is to the mother’s credit that when time was reintroduced, the children were delighted to see their father. That indicated to me that the mother shielded the children from the parental dispute and conflict and had taken active steps to ensure the children remained emotionally connected to their father despite his physical absence from their lives.
Further, for the reasons set out in this judgment, I am also of the view that the children’s best interests will be met by:
(a)remaining living with their mother;
(b)spending substantial time with their father; and
(c)for the parents to have equal shared parental responsibility for the children.
HOW ARE THE CHILDREN’S BEST INTERESTS ASSESSED?
Section 60CA of the Family Law Act sets out that when deciding whether to make a particular parenting order in relation to children, the best interests of the children must be my paramount consideration.
In Bielen & Kozma (2022) 66 Fam LR 59 the Full Court observed at [28] that that means:
…the focus of parenting proceedings should be on “the effect on the child” of the parties’ respective proposals (Fairfield & Hoffman (2021) FLC 94-045 at [71]).
Accordingly, I must consider the short and longer term impacts of the parties’ proposed orders “upon the [children’s] physical, emotional and psychological safety, security and wellbeing”: Bielen at [30].
The objects of Part VII of the Family Law Act inform how I must exercise my discretion. Those objects include ensuring children have the benefit of both of their parents being meaningfully involved in their lives to the maximum extent consistent with the children’s best interests [s 60B(1)(a)]. The legislation further provides that unless it is contrary to their best interests, children have a right to know and be cared for, and to spend time and communicate with both of their parents, and other persons significant to their care, welfare and development [s 60B(2)].
There are a range of considerations set out in s 60CC that I must take into account in determining what is in the children’s best interests. Section 60CC(2) of the Family Law Act sets out the primary considerations in determining what is in the children’s best interests. Those require me to consider:
(a)the benefit to the children of having a meaningful relationship with both of their parents; and
(b)the need to protect children from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
In applying those primary considerations, I must give greater weight to the need to protect children from harm.
Section 60CC(3) of the Family Law Act sets out a raft of additional considerations that I must also take into account in determining the children’s best interests. The Full Court in Bielen at [35] recently conveniently grouped those as follows:
·Issues relating to the children – including their views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h);
·Issues relating to the parents – including decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i);
·Issues of family violence: ss 60CC(3)(j) and (k);
·The likely effect if a child’s circumstances are changed: s 60CC(3)(d);
·Practical difficulty of implementation: s 60CC(3)(e);
·Avoiding further proceedings: s 60CC(3)(l); and
·Other relevant matters: s 60CC(3)(m).
Will the children benefit from having a meaningful relationship with each of their parents?
The Family Law Act does not define the word ‘meaningful’. However, it has been held to be synonymous with notions such as “significant”, “important”, “of consequence” and “valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518. For it to be meaningful, the relationship must be “healthy, worthwhile and advantageous” to the child; per Cronin J in Loddington & Derringford (No 2) [2008] FamCA 925.
This is a prospective enquiry – and my focus is upon whether the children having a meaningful relationship with their parents will be to their advantage in the future; McCall and Clark (2009) FLC 93-405 at [117].
The parties all agree the children will benefit from the father being involved in the children’s lives. I have significant doubts that the limited time proposed by the mother will promote the development of a meaningful relationship between the father and the children. Similarly, the proposals of the Independent Children's Lawyer, for one overnight each alternate weekend will restrict the ability of the children to develop a valuable relationship with their father. They would not have the benefit of him engaging in their day-to-day care activities, their schooling or social lives, the usual weekday routines, or extended time during holidays.
It does not appear to be in dispute that the children will benefit from the mother being meaningfully involved in the children’s lives, albeit that the father proposes there be some immediate – but reasonably short lived – reduction in time.
What are the risk issues facing the children in this case?
Clearly any orders I make need to ensure the children are protected from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence. That consideration is to be given greater weight than the consideration of the children having a meaningful relationship with both of their parents.
In order to determine whether there is an unacceptable risk of harm, I must undertake a two step process. First, I must consider the evidence regarding what has already occurred, and where appropriate, determine whether relevant allegations can be made out on the balance of probabilities.
Secondly, I must then determine whether, moving forward, there is an unacceptable risk to the children. That will involve a consideration of where on the continuum of chance – between remotely possible, and highly possible – the risk for these children lies, and whether “the risk [is] so potent it cannot be tolerated: it is unacceptable”: Austin J in Fitzwater & Fitzwater(2019) 60 Fam LR 212 at [139].
These are two separate enquiries. In terms of that second, predictive step it is an evidence based conclusion which will of course inform my overall determination of what is in the children’s best interests.
What are the asserted risks the father poses?
The mother’s material was prepared on the basis that she asserted the father had subjected X to sexual assaults in early 2020. However, as already indicated, at the outset of the hearing counsel advised the mother did not pursue a finding that the father was an unacceptable risk on the basis of those allegations.
The mother maintained, however, that the children would be at an unacceptable risk of harm in their father’s care if time immediately progressed to unsupervised visits as a result of;
(a)his emotionally dysregulated and violent behaviour towards her, and what she said is his propensity to become angry and aggressive when he is frustrated;
(b)his strong dislike of her and the likelihood he would expose the children to his negative view of her; and
(c)his inability to manage the significant demands associated with caring for X and juggling those demands with the needs of Y.
It is the mother’s evidence that the father at times is unable to manage his anger. She said he exhibits dysregulated and violent behaviour, including that in 2015 he choked her. She said he continues to become angry and irritated if he does not achieve what he regards as an optimal outcome. It is the mother’s concern that this emotional dysregulation will impact on the father’s ability to provide safe and appropriate care for the children.
The Family Report Writer shared the mother’s concerns – who described the father as having a fixed critical view of the mother, and that his negative comments about her in the presence of the children could be psychologically damaging for them.
Mid-2015 incident
In mid-2015, there was an altercation between the parents culminating in the father choking the mother, causing her to faint. He called an ambulance, and the police also attended the home.
The police records set out that the father:
…grabbed the [mother] around the neck with both hand [sic] and applied pressure for 2 to 3 seconds, as a result the [mother] began to have difficulty breathing and an Ambulance was called.
The report further records that when the police and ambulance officers arrived, the mother was struggling to breathe, and the father said, “I lost it and put my hands around her neck”. He was interviewed and recorded to have made “full admissions to having choked the [mother] stating that ‘I just lost it, she was provoking me…I put my hands around her neck’”. The father was described as appearing to be “genuinely remorseful” for his actions.
The father was charged with an offence. He pleaded guilty to that offence and in mid-2015 was convicted and directed to enter into a good behaviour bond.
The father’s evidence about this incident was unsatisfactory, and inconsistent.
In an affidavit filed on 21 June 2021, the father deposed the mother had denigrated him about his weight, and he pushed her away and she pretended to faint. He said he called an ambulance, and subsequently pleaded guilty to avoid a jail term. He did not mention that he had put his hands on the mother’s neck.
In his oral evidence the father conceded this was inaccurate. However, he went on to say he did not, at that time, have the benefit of the police file, that that was his recollection and that he could not remember whether he recalled putting his hands around the mother’s neck when he prepared that earlier affidavit. He was, in my view, unable to satisfactorily explain the omission in the June 2021 affidavit of any reference to choking.
The father told the Family Report Writer that his hands “inadvertently” went around the mother’s neck. That description appeared to be minimising his responsibility.
The father attended upon a counsellor, Mr Q in relation to anger management, describing that he was quite shaken following the conviction. He attended for four sessions, which the Family Report Writer described as highly unlikely to be sufficient to have brought about behavioural change for the father.
The parents obtained further therapeutic intervention the following year, with Brighter Futures and were also referred to Mr N (who has continued to treat the mother). The father said these interventions assisted the parties to improve their relationship and educated him with strategies to manage anger and ensure the family remained safe. He said he is now confident he can manage his anger effectively.
The mother also said there were improvements in the parental relationship in 2016, such that the parties decided to try for another baby.
Whilst the father somewhat minimised this incident at trial, he completed his good behaviour bond, without incident. Moreover, there was no repeat of that behaviour in the almost five years that the marriage endured following that event.
Incident at X’s birth
When X was born, as was the hospital’s protocol, only the mother’s surname was recorded on X’s hospital records.
According to a report made to the Department of Communities and Justice, the father was yelling in the hospital ward about this issue, and despite efforts made by the mother and the hospital staff to diffuse the situation, he reportedly remained “heightened”. It is not known who made that report, and there are no further details provided.
In his oral evidence, the father refused to concede he was upset, and insisted he was just “confused”. He denied yelling or speaking with a raised voice. He admitted discussing the surname with hospital staff, and said it was explained to him that it was standard procedure to record the baby’s surname as the mother’s surname. He said initially he did not understand their explanation, but then when the position was clarified, he accepted that explanation.
No records from the hospital were tendered so I have no further details of this incident. I accept it was inappropriate for the father to be yelling and angry at hospital staff who were just following protocol. I also accept the father may have felt confused and upset by the surname not including his. Although he probably did raise his voice, it does not appear any additional intervention (such as from hospital security) was required. There was no additional evidence to suggest a report was made to the police as a result of concerns about the father’s behaviour.
Events in early 2020
The mother asserted that in early 2020, the parties were in the car together, and the father got angry, and grabbed her. In the Notice of Child Abuse, Family Violence and Risk filed 29 July 2021, the mother said the father hit her in the stomach while driving home. In her trial affidavit, the mother deposed that the father “grabbed” her while driving. She asserted to Mr N that he grabbed her stomach and dug his fingers into her belly, twisting the skin. The father denied the allegation. It appears the mother also reported this incident to a support worker. I note that there is inconsistency in the mother’s reporting of this event.
Events at separation in 2020
There was an incident in early 2020. At that time the parties argued over the mother having used X’s NDIS funding to meet the costs of transporting the mother to and from an educational institute. It was the father’s evidence that during the disagreement, the mother swung her handbag at, and struck the father’s face and spat at him. The father did not seek medical attention.
The mother then left the premises. She returned home at around 9.30 pm. The father had locked the doors and did not allow her inside. The father said the children were asleep and did not witness the mother attempting to come inside. He said he locked her out as he felt “unsafe”. The father called the police, who attended around 9.45 pm. They escorted the mother away. She later returned at around 4.00 am, and the father allowed her to come into the home. The police provided each of the parties with interim Apprehended Violence Orders, and the parties slept in separate rooms.

The mother denied having hit the father in the face with her bag.
When interviewed by police, the mother said the father spat at her as she walked away, and she turned and retaliated in kind.
In her oral evidence, the mother said she spat at herself, in shame, towards the floor. Instead of attending the educational institute, she presented at R Hospital before returning home.
In her trial affidavit, the mother did not refer to having an argument with the father about the NDIS funding, or about him spitting at her, or her spitting back at him. In the mother’s Notice of Risk filed 29 July 2021 she referred to the father having spat at her, but makes no reference to the mother having spat at him.
I have some reservations about accepting the mother’s evidence of this event in circumstances where she provided a somewhat sanitised version of the incident – omitting that she spat – in documents filed in these proceedings. However, I cannot reach a conclusion about what occurred on that occasion, save to note there was clearly an unpleasant exchange between the parties. The marriage, at this time, was almost at an end.
Events at supervised visits
In relation to the supervised time, it is conceded that generally the children enjoyed the time with their father, and he provided appropriate and child focussed care. However, the mother emphasised that time was not without issue. In particular, she says the father denigrated her in the hearing of the children.
It is correct that on several occasions across the many supervised visits, the father did refer to the mother not properly preparing the children for supervised time, and for being irresponsible for delivering them for visits when they were unwell. On occasion he is described as being angry and speaking in a raised voice when he felt X was brought to visits when she was unwell or overly tired and he felt she should have been kept at home. On one occasion he asked Y if the mother had told her not to speak to the paternal grandparents. At trial, the father was able to concede he should not have asked that question of Y.
Ms E is a support worker who was involved with providing care for X from the end of 2020. She said she spoke with the father in March 2021, and he was derogatory about the mother. Ms E does not say that either child heard that conversation.
At a visit in August 2022, the mother was four minutes late to deliver the children. The supervisor noted that this upset the father, who was agitated by this. In my view, it was not reasonable for the father to be irritated or agitated by such a short delay, particularly given that the mother had to manage the needs of X. There was no suggestion that the children were exposed to his frustration on that day.
At a visit in September 2022, the father formed the view that X had not had adequate sleep the night before, which he expressed to the supervisor. He suggested the visit end early as X was falling asleep and there was nowhere in the library for her to lie down. The father said the mother should “prepare” the children for the visit. He then apologised and said he was infuriated that the girls were not prepared. According to the supervisor he was sitting in an armchair and “gently patt[ing]” X’s back, and then was ‘chatting’ with Y while he “continued to express his concern” and that he did not know if the mother was handling X’s disabilities. The father should not have expressed those views in front of the children.
When the carer arrived to collect the children at the conclusion of the visit, the report sets out the father “expressed his concerns [about the mother] in a raised voice” and that he “continued to speak to [the carer] in a raised voice”. There is nothing to suggest in the report that the father was threatening, or offensive. However, as the supervisor noted, the father appeared oblivious to the possible implications of his comments about the mother in the children’s presence. There was no need for him to raise his voice.
When the children were taken to the carer’s car it became apparent there were no child seats in the vehicle. When the mother arrived, she only had one child restraint in her car. The father regarded this as demonstrating poor parenting by the mother as she should have ensured that the carer and she had appropriate child restraints in their vehicles. I understand that the seat situation was promptly rectified. The father’s communication with New South Wales Child Protection in relation to that issue was, in my view, unnecessary.
Despite the father raising his voice at times during this visit, there is no evidence the children were upset or distressed by his conduct that day.
It is also true that the mother, on occasion, commented negatively about the father in the presence of the children. For instance, at the conclusion of a visit in April 2023 the father ended the visit early asserting that X was not well. The report writer commented it appeared the mother was not happy with the father’s actions, and said if she had not brought the children for the visit, the father would have been displeased. The mother acknowledged in her oral evidence that she was quite upset at that time. She also said Y told her that the father was angry that day. That is not reflected in the supervisor’s report. It was after that visit that the mother determined to reduce the visits to fortnightly rather than weekly visits.
The father ended a visit in July 2023 early as he said X was not well. The supervisor recorded X was sniffling and had red and watering eyes. She also started crying and hitting her face. The father said he was angry the mother had brought X when she was not well, which he described as irresponsible.
Ms E was the carer at that visit. She is reported to have advised the father that X may have been tired as she had been awake since 4.00 am. In her affidavit Ms E also said the father was angry and said the mother was not a responsible parent for having sent X when she was unwell. She also observed that X was not unwell when the visit started.
Neither Ms E nor the supervisor recorded that the children were upset in any way by their father’s behaviour. However, he should not have expressed his views about the mother being irresponsible in front of the children.
The supervisor recorded that the mother “expressed her displeasure” at the father having ended the time early that day. It is not clear whether that was in the presence or hearing of the children. Given X’s presentation it does not appear unreasonable that the father sought to end the visit early. The visit was in a public space, rather than at the father’s home. If the visit had occurred at the father’s home, it may well be that he could have allowed X to rest in a bedroom or on the couch, rather than becoming distressed and upset in a public setting.
Importantly, despite the father at times expressing irritation and frustration at some of the mother’s behaviours, there is little evidence this impacted the children. Moreover, what the reports reveal is that when the children have attended unsettled at the start of any visit, the father has generally been well able to soothe and calm the children, and that his care throughout the visits has been attentive and appropriate. I also note that at the vast majority of the many supervised visits the father behaved entirely appropriately.
Other assertions as to risk
The mother repeatedly asserted she did not believe the father has the temperament or patience to deal appropriately with X. She described him as having “zero tolerance”, that he is not “fit” to care for them as she does, and that he is “busy with his personal and social life”.
The mother stated the father:
(a)could not provide the same level of calm care that she can. The mother provided few specifics as to what she could do that the father could not do beyond an assertion he would not be capable to clean X up after she has defecated, and no one else but her can clean X’s teeth;
(b)could not properly provide food for X;
(c)was unable to manage Y at the library on a few occasions, when she ran around; and
(d)he returned the children early on a few occasions, complaining that they were unwell.
The mother was unable to outline any specific instances where the father’s care of either child had fallen short. I note the Family Report Writer did not have concerns about the father’s capacity to adequately care for the children.
As already observed, a perusal of the multiple supervised visit reports reveals the father provided a high level of calm, patient, and considerate care for the children. He was also able to soothe X when she became upset or distressed. He engaged positively with both girls – and they with him – with the observations referring to loving interactions, laughter, games, colouring in, ball play, physical affection, songs, and child focused discussions. There was nothing in the reports that demonstrated any lack of tolerance or patience exhibited by the father in terms of his caring for the children. He was able to feed them, clean Y when she soiled herself and generally managed the competing needs of the children well.
In terms of his ability to attend to X’s hygiene, the mother conceded that during the marriage the father did attend to nappy changes on occasion. The videos tendered also showed the father competently dealing with X after her bath and readying her for bed.
On occasion the time was ended early, when X was unwell or overly tired. It does not seem inappropriate to me that this occurred. Had the visits not been in a public place, but at the father’s home, it may be he would have been able to care more appropriately for X, and not had to end the visits prematurely.
The father did express concern about his ability to appropriately and safely manage both children in an outdoor setting given what he described as X’s tendency to “wander off”. The father, accordingly, said that he did wish for a carer to be present when he had visits outside the supervised contact centre. In my view that does not suggest the children would be at risk in the father’s care outside a professionally supervised setting. It does, however, likely reflect that the mother is more skilful than the father at managing the children together. That is hardly surprising given she has been the children’s primary carer for a protracted period. I anticipate that the father may need to utilise a carer at least in the beginning if he is to take the children on public outings. I am unclear as to why the mother did not allow the father to use the services of X’s carer throughout the supervised visits. The carer was engaged from 8.00 am to 1.00 pm on the days supervised time took place. Supervised time occurred between 10.00 am and 12.00 pm during which time the carer was called into the visits on occasion to change X’s nappy. The carer otherwise waited until the conclusion of the children’s visit with their father.
At any rate, the risk of X wandering off in a public setting can be mitigated by the children spending time with their father at his home. However, that too, is not without risk, as was demonstrated by X absconding from the mother’s care on two occasions in 2022.
In addition to referring to the father’s behaviour at some supervised visits, counsel for the mother argued the father’s presentation in the witness box demonstrated rigid and unreasonable thinking – reflected in his requirement that he have “full visibility” in relation to the school, X’s treaters, and the NDIS funding. Counsel pointed to the father’s insistence that he did not know if the school the mother selected for X was structurally sound after reading about how run down it was in a publication, and that he would need to physically attend the school himself to satisfy him it was safe for X to attend there.
I do not regard these matters as adding any real weight to the concerns about the father and whether he presents any risks to the children.
The father’s presentation to the Family Report Writer
The Family Report Writer remained of the view that there was a risk that the father could become emotionally dysregulated. She emphasised the father was unable to regulate himself at interview with her, during which he maintained his innocence regarding the sexual abuse allegations, and expressed a view that the mother was deliberately and maliciously concocting false allegations. The Family Report Writer described him as persistent in making negative comments to her – and the supervisors – about the mother. She said she formed a view that the father was “likely controlling and abusive” to the mother, based on the accounts given by the parties, and on the father’s;
184. …fixed, negative and disparaging views of [the mother], his minimised and irresponsible account of his own reportedly abusive actions and his presentation and personality structure.
In her oral evidence, the Family Report Writer was particularly concerned about the incidents in 2015, the father’s behaviour at the hospital regarding X’s name, and the nature of some of the interactions he has had with the supervisors, and the carer (regarding the car seat). She described the father at those times as being “aggressive, forceful, passionate, and angry”.
The paternal grandmother and aunt confirmed that the father can talk loudly, and that all the family members do from time to time.
I accept the father may be easily irritated, and at times can become angry. However, I am not of the view the father’s comments and behaviour during supervised visits are such that I need to be concerned for the psychological wellbeing of the children. There is no evidence that his behaviour upset or concerned them at any of the supervised visits. Neither child appeared fearful of him, or resistant to seeing him. Y’s obvious delight in seeing her father for the first time in years also suggested that she did not experience her father as frightening or aggressive.
The Family Report Writer also expressed concerned the father may expose the children to his negative view of the mother.
I accept the father does have a negative view of the mother. He regards her use of X’s NDIS funding to meet her own needs on occasion as irresponsible and unethical. He regards her as having maliciously made false claims of sexual abuse, to deliberately impede the children’s relationships with him and to ruin his reputation. He regards her as having sent the children unwell to visits. He struggled to acknowledge any positives about the mother’s parenting.
However, there was nothing that arose in the days the matter ran before me, or in the parties’ material, that led me to share the concerns of the Family Report Writer that he would expose the children to those views. At its highest, there were a handful of occasions during the supervised visits where the father made inappropriate comments, including that X had not had enough sleep, that the mother had not prepared the children for time, and was irresponsible for having sent them when they were unwell. Whilst the father ought to have refrained from making such inappropriate comments in the presence of the children, there was no evidence either children heard, understood, or were impacted by such comments. Of course the father needs to take care to moderate the criticisms he makes of the mother in the presence of the children.
There was also no suggestion in the evidence from the paternal aunt or the paternal grandmother that they would undermine the mother to the children.
Further, whilst the Family Report Writer was concerned about the father’s persistently negative view of the mother, it is also plain that the mother similarly makes repeated, negative comments about the father. That was clear in her trial affidavit and her oral evidence. She regards the father as sexually deviant and incapable of providing care for the children and is an incompetent and abusive parent, and a violent husband. The mother promoted that view to a number of people, including writing a lengthy letter in 2020 addressed generally to “Dearest [City S] Community Members” in which she set out in great detail a number of complaints about the father. The mother said this letter was intended to assist her in raising funds for legal fees for which she established a GoFundMe page to assist her to retain the former matrimonial home. She also insisted that she only provided the letter to one friend and her psychologist. That is not consistent with the father’s evidence that there were a number of people who received a copy of that letter.
The mother also provided information to the supervisors that the father is not a good person, not interested in doing the right thing for the children, that his family are angry and violent and always shouting. She told them that he was charged and inaccurately reported that he was convicted of sexual assault of X, jailed and the case then dismissed.
I note the mother also did not inform the children’s schools or preschool when the criminal proceedings were dismissed, notwithstanding that the school had been instructed to implement lockdown procedures and contact police if he attended at the premises.
What are the asserted risks the mother poses?
It is the father’s case that the mother maliciously concocted the abuse allegations to excise him from the children’s lives, that the mother’s attitude towards him is poor, and she is unable to appropriately support a relationship between him and the children.
Notwithstanding the concession that the mother was not asserting the father poses an unacceptable risk to the children in terms of sexual abuse, it was plain from the mother’s evidence that she remains of the view that the children are at risk in his care. Having watched the videos of the father caring for X after her bath, I agree with the submissions made by counsel for the father that, viewed objectively, there was nothing in those videos that could rationally be regarded as the father engaging in inappropriate or sexual behaviour with X. I note that absent those two videos, there is nothing in the mother’s evidence to suggest she – or any other person – ever witnessed any sexually inappropriate behaviour by the father to X.
The circumstances surrounding the making of the abuse allegations include that it was at the very end of the parties’ relationship. The allegations arose:
(a)after the mother said she discovered the former matrimonial home had been purchased 95 per cent in the name of the paternal grandmother and five per cent in the name of the father, and after reading a text message conversation between the father and his sister regarding what her entitlements to the house might be;
(b)after the father confronted the mother regarding her use of X’s NDIS funding, in 2020; and
(c)after the mother discovered text messages between the father and sex workers and pornography on the father’s phone. The mother had also been concerned that the father was masturbating and had declined her attempts at intimacy.
The level of distrust and suspicion between the parents was high.
It is also notable that the mother was raised within a conservative and highly religious family, which may have impacted her reactions to and interpretations of events.
According to the mother’s trial affidavit, she reported her concerns to her general practitioner, who saw the first video and recommended she obtain another video. She made a second video five days later, and returned to her general practitioner and showed that to him as well.
In her oral evidence the mother prevaricated as to whether her doctor did, or did not say that it looked like abuse to him. She also gave inconsistent evidence as to whether or not he saw the video. Curiously, there is no mention in the medical notes of the mother ever showing her general practitioner either video, nor of any such advice being given. The doctor certainly did not make a notification to child protection.

I am not satisfied the mother acted with malicious intent in making the abuse allegations. I accept the observations made by the Family Report Writer that the mother’s cultural background, and conservative upbringing influenced her views, and interpretation of the events of early 2020. Added to that was the mother’s belief – again influenced by her cultural background and conservative upbringing – that the father having masturbated indicated something was awry. Mr N, upon whom the mother attended from 2018, also did not form the impression the mother was being malicious regarding the allegations.
I am also satisfied that the mother’s distrust of the father, and fear of him, coloured her perception of the events.
Does either parent present an unacceptable risk?
In assessing whether there is an unacceptable risk, I must engage in a two step process. First, based on the facts as outlined, I am not satisfied that either parent has in the past subjected either child to abusive behaviour. In my view, that is not made out on the evidence.
I am not satisfied that the mother has exposed children to her attitude towards the father. There is no evidence that she has shared her views with the children, although she clearly shared those views with many other adults, including seeking to tell the Country P community in City S. At times, no doubt she has made inappropriate comments – such as Y saying “mummy said [the father] won’t miss [Y]” when visits were reduced in July 2023. However, what is overwhelmingly clear is that the children love spending time with their father and are delighted to see him. If the mother had wanted to damage or destroy the children’s relationships with their father, she had his two year absence to do so. That the children were so clearly thrilled to see him makes it plain that the mother did not denigrate the father to the children.
I have already traversed the incidents relied on by the mother as to her concerns about the father’s ability to self–regulate and manage his anger. The father has on occasion made inappropriate comments about their mother and spoken in a raised voice in their presence. I do not regard this to have risen to the level of abuse, although the father absolutely should refrain from making further like comments.
The second step is a predictive exercise. This requires me to consider the likelihood that either child would be exposed to an unacceptable risk of harm into the future.
In relation to the father, I note that what occurred in mid-2015 was absolutely unacceptable. Fortunately, there was no repeat of that behaviour in the following the five years that the parents remained in an intact relationship. In relation to the additional evidence as to the father’s alleged emotional dysregulation, in my view, the evidence was not compelling. Certainly, at times the father had become annoyed, or frustrated or angry and expressed that. However, it does not seem to me that this could be accurately described as emotional dysregulation to the extent that the children could be described as being at risk in their father’s unsupervised care.
Similarly, there is little evidence to support a finding that the father lacks the ability to provide safe, patient, kind, and appropriate care for the children. The interactions observed by the professional supervisors do not support the mother’s concerns.
I am satisfied the father is sufficiently able to regulate his emotions and provide appropriate care for the children. It is, of course, essential that he does so. I am not satisfied he lacks the mental or physical capacity to provide safe, loving, and appropriate care for the children.
Similarly, the mother has cared for the children well, and has protected them from her negative views of him. I am satisfied the risk that she will seek to undermine the father/daughter relationships in the future is in my view minimal. As set out, I am not satisfied the sexual abuse allegations were made maliciously.
I am not satisfied there is an unacceptable risk to the children in the care of either parent. There is no need to consider whether those risks (that I do not find) can be ameliorated.
Accordingly, I am not satisfied there is any need for the children’s time with the father to remain supervised or be significantly curtailed. Nor am I of the view that the father needs to undertake any further programs, or therapy before time can progress to unsupervised or overnight time as proposed by the Independent Children's Lawyer and the mother.
Additional considerations
Issues relating to the children – including their views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h)
X is seven years old. As set out, she attends a special school, T School, after having attended pre-school at U School in 2021. X experiences quite disrupted sleep and can require parental attention several times overnight.
The father expressed a view that the parties had earlier agreed that X would attend U School for her primary education. He was at times critical of the mother for not going ahead with that enrolment. His criticism appeared to overlook the affidavit of Ms J, who explained that X has profound global developmental delay. Accordingly, she did not meet the eligibility criteria for U School, who cater for children with a mild or moderate intellectual disability. In those circumstances Ms J deposed the Department of Education Placement Panel determined that X would commence at T School.
X attends upon a dietician, Ms M. She prefers a very restrictive diet and struggles with various tastes and textures. Ms M deposed the mother has worked hard to improve X’s diet since she commenced working with the family in late 2021.
X has the assistance of support workers through the NDIS. The mother said in addition to a number of therapeutic interventions, a worker attends at the mother’s home between 6.00 am to 8.10 am, and from 3.30 pm to 6.30 pm or 7.00 pm each school day to assist with X’s care. The mother can also access a support worker for a total of five hours each weekend, which she generally divides equally between the weekend days.
X is also supported by a speech pathologist, an occupational therapist, a physiotherapist, a psychologist and a paediatrician. None of those experts have provided affidavits to the Court for the purposes of this final hearing.
The mother said X has the following schedule of therapists:
(a)Speech therapy, at home, each alternate week;
(b)Music lessons, each alternate week;
(c)Occupational therapy, at school, each alternate week;
(d)Swimming lessons and/or hydrotherapy each week;
(e)Physiotherapy, at home, each alternate week;
(f)Behavioural/psychological therapy, each alternate week.
Y is five years old. She is in kindergarten, at V School.
Y attends music lessons, two sports and Country P language school each week.
It appeared that X’s appointments with various therapists had reduced from weekly to fortnightly. The father seemed to regard this as insufficient for X’s needs. I do not know whether that is a matter for which the mother can be criticised. X attends school, as does Y. There are only so many hours on weekdays after school. It may be very difficult for X to be engaged more regularly with therapists than the mother has currently arranged. The mother’s household is very busy, and the children are on a demanding schedule – which must also include time for eating, bathing and getting ready for bed. There is little time left for leisure activities.
It is not in dispute that the children are closely bonded to their mother, and that she provides warm, loving, and appropriate care for them.
As already set out, it appears from the observations of the supervisors that the children thoroughly enjoy spending time with their father. Y was described as squealing with excitement when she saw him for the first time in over two years. The children interacted warmly, affectionately, and comfortably with their father. Both children were described as happy to see him. When either child has been reluctant to attend for any reason, or became upset or unsettled, the father responded calmly and resolved any discomfort quickly. He dealt with Y’s soiling of herself calmly – although in August 2022, he gratuitously commented on the failure to toilet train her. When X has been upset or unsettled, the father has been able to soothe and comfort her. X’s medical records in November 2022 also record that X is very excited before she sees her father and remains very upset after their time has finished.
Issues relating to the parents – including decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i);
The parties are both of Country P descent. They each follow the traditions and cultural practices of their birthplace.
The father is 47 years old. He lives with both of his parents in Suburb W. The paternal grandmother – who used to be an entertainer – has expressed a desire to share with the children Country P music, singing and dancing. The paternal grandfather is bedridden, and requires constant attention, which is undertaken by the father, his mother, and a carer who attends the home twice daily. The father said his caring responsibilities for his father included meal preparation, feeding, and changing nappies.
Since late 2022, the father has been employed as a professional, on a full-time basis. He said he pays child support as assessed at around $400 per week.
The mother is 37 years old. She lives with the children in rented accommodation in Suburb Z. She has not re-partnered. She has worked in childcare and is otherwise engaged in home duties and caring for the children. The mother receives child support for both children – which until recently was very modest, and NDIS funding for X’s therapies and support workers. She is otherwise wholly responsible for meeting the children’s needs.
The mother has experienced poor mental health on occasion. That included a period in late 2017 when the mother was diagnosed with depression, for which she was prescribed medication. The mother has attended upon a clinical psychologist, Mr N since around 2018. She also apparently attended hospital – or considered attending hospital – in around early 2022 and early 2023.
Concerns about the mother’s parenting
Despite the mother’s insistence that she alone can provide that exemplary care, records from the school revealed that on a number of occasions X has arrived in dirty clothes. There are also reports from support workers that raise some concern about the mother’s level of care and attention. The mother was unable to concede that she delivered X to school in dirty clothes, and said she may have made them dirty after she arrived. She was also unable to contemplate any criticism of her parenting. I agree with the assessment by the Family Report Writer that the mother’s inability to identify any weaknesses she has as a parent is somewhat naive and likely sanitised.
I note that in 2017 the Department of Communities and Justice received a report that the mother had left X, at 22 months old, alone for 10-15 minutes when she went for a driving lesson. That was denied by the mother.
It is clear that X requires a high level of care and providing that care for her is evidently demanding in terms of time and attention. It is also clear that on occasion, the mother has struggled to manage all the demands of caring for X.
The mother relies on the presence of a support worker for X and at times, has put some pressure on X’s support workers to assist her more generally. There are references in the documents tendered from the Department of Communities and Justice and from AA Services occupational therapy that support workers complained the mother required them to provide care for Y, and to help with housework – duties that fell outside their responsibilities.
In her oral evidence, the mother admitted at times to begging support workers for help, as she was struggling to provide all the care for the children. Whilst the mother’s demands have at times been an inappropriate imposition on the support workers, it is somewhat understandable that the mother has become overwhelmed with her responsibilities towards the children on occasion. However, it is also important to note that misuse of support workers potentially puts X’s NDIS funding at risk, and accordingly must be avoided.
I note that in early 2021 the mother was not able to ensure X’s regular attendance for speech pathology. In early 2022 the mother was described as disengaging from X’s school and relying on social workers to undertake additional tasks.
Additionally, there have been times X has wandered off whilst in her mother’s care. This occurred on two occasions in 2022, when X was able to let herself out of the garden and walked away from the home. On both occasions, X was located laying in the middle of the road. The records from the Department of Communities and Justice describe the mother as being “so inattentive that she was disregarding the basic needs of [X] resulting in [X] absconding from the home”.
The mother did not inform the father on either occasion – nor did she refer to these events in her affidavit material. She said that was an oversight. The mother said she has now ensured that the back garden is secure, and X is unable to open the gate and let herself out.
As already set out, generally the mother can be complimented for having ensured the children’s relationship with their father endured notwithstanding the years of separation. However, there are times the mother has inappropriately involved the children in the parental dispute. For instance, when the mother unilaterally determined to reduce the weekly visits to fortnightly visits, Y is reported to have said “mummy said you won’t miss me”. The mother denied making this comment – she said when Y asked if her father missed her, the mother said she was not sure. Giving Y positive reassurances would have been more appropriate.
It also does not reflect well on the mother that in May 2023 she unilaterally decided that time should revert to alternate weekends. Her explanation to BB Contact Centre was the reduction was necessary for the “[s]ake of my kid’s [sic] health wellbeing”. There was no medical evidence adduced by the mother that supported her claim. Her oral evidence was that X was frequently unwell and tired by the weekly visits, that the father criticised the mother as not capable when she sent the children unwell, and this made the mother upset.
Whilst there are some concerns raised regarding the mother’s parenting, overall it appears she is providing a high level of care for the children, and that she takes her responsibilities and duties as a parent very seriously.
Concerns about the father’s parenting
I have already set out at length the concerns expressed regarding the father’s emotional dysregulation and anger management issues.
The mother said the father is unable to manage the children without significant assistance. As already observed, X does require very attentive parenting, and is supported by a carer for several hours each day. I anticipate that the father, like the mother, will require that assistance.
The mother said the father is not able to provide appropriate care for the children, had played a limited role in their care during the relationship and was a disengaged father. She said he became irritated, overwhelmed, angered, and frustrated when caring for the children. Those concerns are not reflected in the multiple reports from the supervised visits. At those visits the father is described as an engaged and attentive father, able to tend to the children’s very different and at times competing needs.
The mother said the father has an addiction to porn and sex workers. I did not find the mother’s evidence in this regard compelling, or of any relevance.
The mother said the father is unable to cook properly for the children, and that he will give them takeaway food. Similarly, she said he cannot attend to X’s hygiene. I have already dealt with these concerns.
The mother also asserted the father left the children unattended on occasion. This was corroborated by Ms H, a neighbour and friend of the mother. She said in early 2020 she was with the mother when the father called her mobile phone, and angrily demanded she return home so he could leave for an activity. Ms H and the mother immediately returned to the parties’ home and discovered the father had left before their arrival, leaving the children unsupervised and alone. Y was two years old. Ms H was not required for cross examination. It is obviously entirely inappropriate that the father left the children unsupervised.
There was some evidence about the father ending some of the supervised visits early on the basis that the children, or one of them was not well. The mother said the father should be criticised for this, and it demonstrates his inability to provide proper care. Conversely, the father said the mother should not have sent the children when they were unwell – and he regrettably expressed those views in the presence of the children. I have already dealt with these issues.
The mother asserted the father acted in an un-child focussed manner in December 2021 when the mother was required to vacate the former matrimonial home by 15 December. The parties had settled their property dispute by consent on 1 October 2021. Pursuant to the orders, the father was to pay the mother $50,000 and the mother was to vacate the home. However, by 15 December 2021, the mother still had not secured rental accommodation for herself and the children. She was then required to remain with the children in a motel until January 2022. The mother complained she was not able to take any furniture with her – which appears to have been part of the property settlement.
Whilst the parents did negotiate consent orders with the assistance of lawyers, it is regrettable that the father insisted the mother to move out strictly in accordance with the consent orders in circumstances where she had not yet secured accommodation. Living in a motel with X and Y for a month was very far from ideal. It would have been distressing and confusing for the children, and for X in particular. I accept that he had to house himself and his parents. However, it does not reflect particularly well on the father that he insisted on strict compliance with the orders in all the circumstances.
It is clear that both parties harbour significant resentment towards the other. Whatever views the parents have of the other, it is incumbent upon them to ensure that they shield their children from those views. If they do not, the impact on the children may be significant.
Issues of family violence: ss 60CC(3)(j) and (k);
It is the mother’s case that the father has subjected her to repeated violent and controlling behaviours. She told the Family Report Writer the physical assaults included punching and pushing her, often occurred in front of the children and that there were about 20 assaults during the marriage. The mother also said the husband’s family – with whom the parties lived – were supportive of the father, and negative and critical towards her. She said this added to her distress and unhappiness in the home. She also alleged coercive behaviours including financial control.
I have already set out the significant events that are specifically deposed to by the mother.
The father denied having subjected the mother to any form of violence or coercive control, save for the mid-2015 incident, for which he said he was remorseful. Conversely, he asserted the mother subjected him to ongoing denigration and abuse.
As already observed, in mid-2015, it is common ground that there was an altercation between the parties, during which the father put his hands on the mother’s neck. He subsequently pleaded guilty to an offence. This was a significant and serious incident. Choking is frequently referred to as a ‘red flag’ behaviour because of its potential to be lethal.

There has been no repeat of that behaviour.
The mother also deposed to an incident in early 2020 in a vehicle, during which time the father grabbed her on the stomach. It does not appear the mother reported this incident to the police. As already noted, the mother’s evidence about that incident is somewhat inconsistent.
In relation to the other incident in early 2020, the police determined it would be unlikely that an assault on the father could be proven. When the police were involved at this time, the mother apparently still did not refer to the alleged assault the month before.
The police then assisted both parties to obtain Apprehended Domestic Violence orders. Neither party was charged.
The father denied restricting the mother socially, and said they were both active members of the Country P community in City S, with a wide circle of friends.
I accept that the parents’ relationship was conflictual and unhappy, and they were both disappointed in the marriage. I am also satisfied that there were times the father subjected the mother to abusive behaviour. This clearly occurred in 2015. There is no evidence the father has perpetrated violence against the children. However, I agree with the Family Report Writer’s observation that the children were “exposed to a family environment in which there was tension, discord, abuse and at times, violence”.
The likely effect if a child’s circumstances are changed: s 60CC(3)(d);
The children have been in the mother’s primary care throughout their lives. They did not have any contact with their father for over two years, and only resumed seeing him on a professionally supervised basis in June 2022.
The father’s proposal – that the children move immediately into his primary care – would likely be deeply distressing and confusing for them. I have serious concerns about how the children would manage such a profound change, particularly in circumstances where they have already endured a two-year separation from their father. X’s needs also suggest she would find such a significant alteration in her living circumstances very difficult to understand. I accept the evidence of the Family Report Writer that such a disruption to the children’s primary attachment to their mother would be traumatic for them.
It also seems likely the father would need to rely on his mother to assist him with the care of the children, given his work commitments and the time it takes him to commute to and from work. Again, that would be a significant change for the children – being removed from the primary care of their mother, and being placed with their father, who would also require his mother’s assistance when he is absent, and unable to attend to the children due to his employment.
The father was also unsure whether he would change X’s school. He had previously raised concern about the structural condition of her current school. He said he would need to physically attend the school, meet the teachers, and assess for himself whether it was the appropriate school for X. If he did change her school, that would be another significant change that would likely be difficult for X to manage.
Conversely, the impact on the children of moving to unsupervised time with their father, and that time gradually increasing to overnight time would be more manageable for them. It would also likely be positive, in terms of enabling the children to develop a deeper and more enduring relationship with their father. It is also likely to be more relaxing for the children to have time with their father at his home. If, for instance, X is tired and needs to rest, that will be more easily accommodated at a private residence.
Moreover, the Family Report Writer also said that separating the children from the mother for a period that did not interrupt their primary attachment to her would be manageable for them. That would include periods for a weekend, and “even a week is probably fine”. Whilst the Family Report Writer did not support unsupervised time, she said if that was to commence, a build-up of time over a period would be appropriate, although it would not need to be a protracted build up.
It is quite clearly an enormous undertaking to provide a high level of care for X. It is apparent it is not always easy for the mother to manage her caring responsibilities. The mother wrote a letter addressed as: “To Whom it May Concern [sic]” dated 16 December 2022 in an effort to increase X’s NDIS funding. In that letter she outlined the ongoing care she must provide for X, which requires her to spend much of the night awake attending to X. The mother also wrote that she suffers from severe mental health issues, broken sleep, and a condition which causes her pain when having to undertake chores caring for the children.
Communications exchanged between the NDIS and various service providers show that there have been times the mother has been unwell and taken herself to hospital (for instance in early and mid-2022) and left the children with X’s support worker. The documents from the Department of Communities and Justice includes a report from early 2023 that the mother was worried about her own ill health, and concerned about whether she would be able to collect the children after school.
In her trial affidavit the mother deposes that she has suffered from panic attacks and had to stay overnight in hospital on unspecified occasions. There have been times the mother has requested X’s support workers to assist her in caring for the children and attending to domestic tasks. Additionally, documents from the Department of Communities and Justice refer to the mother having no family supports in Australia, and accordingly no-one else other than support workers to assist her in her caring responsibilities.
Increasing the children’s time with their father will provide the mother with some respite, and the opportunity to ‘recharge her batteries’, making her more available to resume the care of the children upon their return to her. That can only be to their benefit.
Practical difficulty of implementation: s 60CC(3)(e);
In terms of housing, the father lives in a four-bedroom home, with his parents. He said the children will be able to have a bedroom each. He said he will have some assistance from his mother, which could include assisting him with caring for the children and making their meals.
An arrangement that sees the children remaining in the mother’s primary care, and spending time with their father would be practicable to implement.
However, there are substantial practical difficulties with the father’s primary proposal. In particular, he is currently working full time. He said it took him about one hour to travel to work in the mornings, and one hour in the afternoon. The paternal grandmother said it took the father one hour at least, and one hour and 15 minutes if there was traffic. He said his working hours were between 9.00 am to 5.00 pm (leaving around 8.00 am and returning around 6.00 pm), but he had a lot of flexibility and could also work from home two days per week. He was still required to work seven hours on the days he works from home. He referred further to there being different periods of the year when his workload is substantial and additional hours are worked and banked as flex time to be taken when elected.
The paternal grandmother said the father left at 7.45 am “at the latest”. She said he worked from home occasionally, and that he tried to arrange this for Fridays, as that is when her appointments are arranged. She said he returns home around 6.15 pm to 6.30 pm, as he will do the grocery shopping on the way home.
The father produced some documents from his work. They showed that he did not always work from home two days each week. Those documents also showed that the father frequently commenced work at 7.00 am, or else somewhere between around 8.00 am to 8.30 am. There were times he started later. He generally worked until somewhere between about 3.30 pm and 5.00 pm. On occasions he worked as late at 6.00 pm.
The father also did not appear to have a plan to enable him to seamlessly commence full time care for the children. He did not initially appear to have a plan as to how his daughters would be cared for, for instance, in the hours after school and before he returned home. That would also require the children to be taken to their various activities/therapies. He later said he could potentially employ a nanny, and he would also use X’s NDIS case worker. The father also said if he dropped the children at school and returned in time to collect them, he would be at work between 10.00 am and around 2.00 pm. However, he had not discussed that with his manager. He also thought he could resume work in the evenings after putting the children to bed, which will of course become later in the evening as the children get older. The mother said currently the children are meant to be in bed at 7.30 pm, but it can take X until around 9.00 pm to 10.00 pm to settle and fall asleep.
As a matter of practicality, full time work, and the caring responsibilities for these particular children will be extremely difficult for the father to balance.
As already set out, the paternal grandfather is gravely unwell, and requires considerable attention from the paternal grandmother and from the father. He is on a waiting list to be placed in appropriate accommodation close to where the father and paternal grandmother live. Until that occurs, there are multiple demands on the father’s time – and it seems to me unlikely that the father could immediately commence the full-time care of both the children in the circumstances. Whilst the paternal grandmother is deeply committed to her son and grandchildren, as a matter of practical reality and as a result of her caring responsibilities towards her husband, her availability to assist the father with the children must be limited.
The paternal aunt also clearly supports her brother and nieces. However, she lives in the United Kingdom, and would be unable to provide practical assistance or support save for when she travels to Australia for visits.
Avoiding further proceedings: s 60CC(3)(l);
It is in the children’s best interests that further proceedings be avoided if possible.
In my view, orders for the limited time as proposed by the mother are likely to result in proceedings being instituted in the future, with the father seeking more time.
Other relevant matters: s 60CC(3)(m).
It is the mother’s case that she remains fearful of the father, and anxious about the safety of the children should unsupervised time occur.
The mother has attended upon a Mr N, psychologist, since 2018, with the mother experiencing depression, anxiety, and low self-esteem and for treatment for a mental health condition. The father also attended upon Mr N on one occasion.
In his affidavit filed on 1 August 2023, Mr N reported that the mother’s complaints of family violence, particularly in the form of financial control and emotional abuse, pre-dated the end of the relationship. He observed that there is no trust in the relationship and that whilst the mother understood the children had a right to a relationship with the father, the mother “feels under threat and protective” of the children. He did not suggest that the mother’s mental health would be impacted to the extent that her parenting capacity would be affected if unsupervised time was implemented. Indeed, he did not comment at all as to the mother’s ability – or inability – to cope with a regime that incorporated unsupervised and/or overnight time. He concluded only:
9. [The mother] is conflicted about the best way forward and will need the guidance of the court to resolve this matter in the best interests of her children.
In his oral evidence, Mr N said building the mother’s self-esteem and self-confidence, and reducing her anxiety has been central to his treatment of her. He said over the course of her engagement with him, the mother’s coping mechanisms and strategies have improved, as has her problem-solving ability. He further described that over the course of his involvement with the mother she has grown in her capacity for resilience. He acknowledged there had been no real change to the mother’s mental health when the children commenced spending time with their father.
In the circumstances, there is no evidence to suggest the mother’s mental health and/or general functioning will become compromised to the extent that this will impair her parenting capacity if time progresses to unsupervised visits. The Family Report Writer concluded similarly that there was no evidence to suggest that the mother’s mental health concerns adversely impacted on her parenting capacity, although she may be “emotionally triggered to distress” at times and will need to regulate her emotions in the presence of the children.
I understood from Mr N that subject to his personal needs, he remains available to support the mother after I make final orders.
ORDERS TO BE MADE
How should parental responsibility be allocated?
The presumption that it is in the children’s best interests for the parents to have equal shared parental responsibility does not apply in this matter as the father has subjected the mother to family violence. It is incontrovertible that he did so in 2015.
It is also plain that post separation, the parties have demonstrated a limited ability to liaise with each other and make a genuine attempt to come to a joint agreement about matters affecting the children’s long-term care, welfare, and development. In the context of their separation, it is perhaps not surprising that they have not yet developed much of a co-parenting relationship.
Notwithstanding the limitations in their ability to communicate, I am satisfied that both parents have much to offer their children, and both should remain involved in the decision making for the children. I accept this will be difficult for the parents, given that there is little trust and communication has been difficult. But in the circumstances of this matter, and considering X’s complex needs, it is my view that her best interests will be met with the involvement of both of her parents in the decisions made for her, and with both her parents able to engage in ensuring she receives all the supports and interventions that will assist her.
It is not sufficient, in my view, for the mother to be required to keep the father informed about the children’s progress, or X’s treatment. She has not done so since separation. Given X’s complex needs it is vital that those providing her with care are well informed about her needs and how to work with her to ensure she continues to thrive. If the mother had sole parental responsibility, even if there were orders requiring that she provide information to the father, I am concerned not all the relevant and important information about X in particular would be given to the father. That could be potentially quite significant for X, her care, welfare, and development. The most effective way to ensure that both parents are fully informed and abreast with X’s needs is for them both to share parental responsibility, for her education and her medical needs.
Prior to the parties’ separation, the father was significantly involved in arranging funding through the NDIS for X. He was also engaged with her treatments and therapists – his attendance for instance for assessments with the speech pathologist, and at appointments with X’s paediatrician is reflected in their reports that were tendered. Similarly, he attended meetings at the school the parents were considering for X prior to separation.
The mother conceded the father’s English skills were superior to hers and that he was instrumental in obtaining a high level of funding and securing various supports for their daughter. Both parties appear to agree that navigating the NDIS can be complicated. The father was very involved in advocating for X in 2019 when the family received a funding plan that was insufficient for X’s needs, successfully taking the matter to the Administrative Appeals Tribunal. The NDIS funding secured was approximately $353,000 for the 12 months to June 2021.
At separation, the father was removed from X’s NDIS portal. Since that time, X’s funding has subsequently significantly reduced, to the point where at least from late 2022 and into 2023 professionals involved with X’s care expressed concerned that she was “underfunded” and not receiving a sufficient level of support from the services she required. The mother also described the NDIS funding in late 2022 as inadequate, and she wanted the funding level to increase to the amount it was in May 2020. From January 2023 to January 2024, X’s NDIS funding increased, to a little over $208,000.
It does seem that it will be of enormous benefit to X if her father is reinstated on the NDIS portal, and able to advocate for funding on her behalf. Indeed, the mother’s own proposals include that the father remain involved in the NDIS funding.
I do have concerns that if the parents cannot agree about X’s treaters or her treatment regime, this will lead to conflict. I am also concerned that the father’s suggestion in the event of any disagreement was to “escalate to our solicitors”. However, I also note there is little evidence that prior to the parties’ separation they did not agree as to X’s therapists, treatment schedule or schooling issues. That gives me considerable comfort. I note, however, that the mother says they did disagree about the carers and that three carers left as a result of the father’s behaviour. That was not referred to in the mother’s affidavit, it was never put to the father, and no documents from the NDIS were adduced to support that concern.
The mother has, on occasion, used carers in a manner that was not strictly for X’s benefit. That included having X’s carers provide care for Y on a number of occasions and to undertake other household tasks. Concerns to this effect are referred to in:
(a)case notes from AA Services (an NDIS provider engaged with X) in April 2022;
(b)reports from CC Services (another NDIS provider engaged with X) in March 2022; and
(c)documents from the Department of Communities and Justice in April 2022. These also suggest that at times the mother has difficulty understanding the NDIS, and what can and cannot be accessed and funded.
I appreciate at times the level of care and attention X requires, and the difficulties of balancing that against the needs of Y and even the mother’s personal needs must become overwhelming. However, it is also plain that the utmost care needs to be taken to ensure that X’s funding is not at risk.
Reasonable practicability
As I am making an order for equal shared parental responsibility, pursuant to s 65DAA, I must consider the reasonable practicality of both an equal time arrangement and of a substantial and significant time arrangement.
Section 65DAA(5) provides that in considering the issue of what is reasonably practicable the Court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
I note the observations of the High Court of Australia in MRR & GR (2010) 240 CLR 461, at [15], that this section “is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spend by the child with each parent”. Their Honours said what is required is that the Court make a “practical assessment” of whether equal time (or substantial and significant time) is feasible and that the Court is “obliged to consider the circumstances of the parties” when making this practical assessment.

Given the father’s employment responsibilities, an arrangement for equal time would not be practicable.
An arrangement pursuant to which the children live with their mother and spend substantial and significant time with their father is reasonably practicable. The parties live in reasonably close proximity to each other and the children’s schools. I am satisfied that they do have the capacity to implement an arrangement whereby the children spend weekends and holiday time with their father, and that such an arrangement will have a positive impact on the children.
Children to live with mother
The children have lived with their mother their entire lives. The proposal by the father to alter that would, in my view, likely have a profound impact on the children. They have already endured his absence from their lives for over two years. That must have been confusing and distressing for them. To remove them from their mother and place them with their father – who has had limited time with them – would be traumatic and destabilising. X in particular may be unable to make sense of her new circumstances.
It was also plain that the father’s proposal that the children live with him was not a carefully considered proposal. He had not, in my view, seriously contemplated how the arrangements would work practically. He had no understanding of the children’s most basic routines, including what time they started school, or how they got to and from school. He could not satisfactorily articulate how he would manage the children’s school commitments – and X’s additional appointments with various therapists and other allied health professionals – with his work commitments and his obligations to care for his father in a manner that was satisfactory. Whilst the mother may not have provided him with information about the children’s routines, the father had not apparently taken proactive steps to ascertain this information himself. For instance, he had not contacted the children’s schools to find out when the school day commenced or concluded, or whether they were able to catch a school bus, and if so, what time and from where it would collect and drop off.
Additionally, the father’s current work arrangements would make it difficult for him to provide full time care for the children.
Conversely, the children have been doing very well in the mother’s care. She is a dedicated mother and manages the children’s competing needs well. She was well aware of the routines for the children and impressed as being child focussed and driven to ensure that X’s additional needs were well met.
The children’s time with the father
The Family Report Writer did not recommend orders that progressed the children to spending unsupervised time with their father. She agreed that the father was able to provide appropriate care for the children in a physical sense. However, she remained of the view that the risks to the children of being exposed to their father’s negative attitude towards the mother, and to his emotional dysregulation was such that professionally supervised time needed to continue.
The final proposals put by the Independent Children's Lawyer envisaged time progressing to one overnight per fortnight with both children. I understood from the submissions made by counsel that this limited proposal reflected the Family Report Writer’s cautious approach. It was also apparent from counsel’s closing submissions that the Independent Children's Lawyer did not strongly oppose an increase of time to three nights over a weekend, although there remained a lingering concern that the father may become dysregulated.
The Court is under no obligation to accept the recommendations of a Family Report Writer. Certainly, the evidence of the expert was very helpful, even though my conclusions are different to the expert’s recommendations. I note that part of the evidence the Family Report Writer considered as indicating coercive control included that the mother had to vacate the home in December 2021. As already observed, this was far from ideal. However, what the Family Report Writer did not appear to know was that the parties had engaged solicitors and reached an agreement as to the date she would vacate the home. It is, in my view, inaccurate for the mother to refer to herself as having been ‘evicted’ from the home.
Moreover, having had a protracted period to hear from the parents, to hear them giving evidence, and having had the opportunity to consider all the documents tendered in the course of the hearing, I have come to a different view.
I have determined that the risks to the children of being harmed by spending unsupervised time with their father are remote. I have also come to the conclusion that there is insufficient evidence to support a finding that he is unable to adequately care for and manage the children when they are with him, either in terms of his capacity to meet their physical needs, or to attend to their emotional wellbeing. Of course, he does need to be adequately briefed by medical and allied health professionals regarding X’s needs as soon as practicable, and certainly before overnight time commences.
Considering all the matters as I must, and in particular the strength of the children’s relationships with their father, it seems to me that the children’s best interests will be met by orders that progress their time with him substantially in accordance with the father’s ‘fallback’ proposal. I note the Family Report Writer was of the view that if time progressed to unsupervised, she considered the father had good parenting skills, and the children had good relationships with him and were comfortable with him, such that any build up in time did not need to be over a protracted period.
The orders I am making provide for the children to spend weekend time, mid–week time and holiday time with their father. Initially, the time will be daytime each Saturday for five hours, before it then moves to longer, consecutive day visits, and thereafter to include overnight visits. Those visits will be extended to a full weekend each alternate weekend by the middle of next year. School holiday time will then commence. In my view the orders appropriately balance the children’s need for stability and predictability and gives them sufficient time to adjust to each new regime before it progresses further.
My orders have the advantage that once full weekends commence, the majority of the changeovers for the children will occur at school.
The father will need to meet with and discuss X’s needs with her health and education providers to familiarise himself with her needs prior to time progressing to overnight visits. That will include the father learning the foods that X can and cannot tolerate, and how to prepare her meals and attend to her nutritional needs as outlined by Ms M.
All parties proposed one on one time. The Family Report Writer also supported such an arrangement. The mother and the Independent Children's Lawyer proposed Wednesday afternoons, with one child one week, and with the other child the alternate week. The father proposed overnight visits with Y every Tuesday and with X every Wednesday during school terms.
I am satisfied that overnight visits mid-week will enable the father to be further engaged with the children, their day-to-day routines and their schooling. However, in my view, those visits should occur on Wednesdays, with each child spending time with their father every second Wednesday night. That will ensure the children do not spend significant time apart from each other. Making the mid-week visits occur only once per week will also minimise the number of changeovers and disruption in care routines experienced by the children. It will also mean the parents can both engage with any therapies or activities undertaken by either child on a Wednesday.
The mother’s proposed orders handed up on the last day of the hearing did not make any provision for special occasions.
The father made detailed proposals, which included time for Christmas, and overnight time for religious festivals. I am of the view that the father’s more detailed proposals are in the children’s best interests. They provide for a sharing of various festivals and celebrations and will not require the parents to reach their own agreement. In my view, it is appropriate that specific orders be made. Otherwise, there is a real risk that no agreement will be reached, and the opportunity for the children to celebrate these occasions with each of their parents will be compromised.
However, as overnight time will not have commenced by Christmas, the children’s time with their father will be daytime only for this year. I have also extended the children’s time with their relevant parent on Mother’s and Father’s days until the commencement of school Monday, to prevent an unnecessary additional changeover between their parents.
Additional orders
Provision of information between the parents
In many respects, the parties had similar provisions for the parents to communicate with each other and provide information but used slightly different wording. I have made orders that seem clear and appropriate to ensure the timely provision of information.
Information sharing about the children
Since separation the mother has provided the father with minimal information about the children. She did not provide him with reports from any of X’s treaters, and despite him making requests about the therapies X was receiving, the mother did not provide that information to him.
As indicated, I am satisfied the children’s best interests are met by an order that the parents have equal shared parental responsibility. They will, accordingly, each be involved in decision making for the children. They will each be able to engage with the children’s schools and treaters, and neither will wholly rely on the other to provide information to them.
I do not intend to make an order requiring the parents to ensure X continues with her current treaters and follow the recommendations of those treaters. There was no suggestion that the father objected to X continuing with any of the treaters currently engaged for her benefit – and it is in my view likely to be appropriate that the treaters remain consistent for X’s comfort. However, the father has been substantially excluded from these processes for a protracted period. He will shortly be provided with all the relevant information and be at liberty to discuss matters with those involved in X’s care and form his own views about whether there should be any alterations to her medical and allied health and other support services. The parents, with equal shared parental responsibility, will need to reach agreements about her treatment and therapies moving forward.
Both parents will need to keep the other advised of appointments that are made for X. Presumably, in light of the father’s work commitments, those will ordinarily be arranged by the mother, who will retain the primary care of the children. However, both parents should be at liberty to attend the appointments, and the father’s attendance should not, in my view, be only with the consent of the mother. Of course, if there are issues with poor behaviour at appointments, disputes regarding appropriate treaters, or situations where each parent arranges their own appointment and takes X to more appointments than necessary or fails to take her to scheduled appointments – it might become necessary to reconsider these issues, and indeed, even the allocation of parental responsibility.
Extra curricula activities
The mother sought an order that each parent take the children to all activities in which they are enrolled. I am not prepared to make an order to that effect in circumstances where the mother has unilaterally enrolled Y in a language school on Sundays.
If I did make that order, then on the mother’s proposals, Y’s time with her father would be further curtailed as she attends language school for a number of hours each Sunday.
The father will need to consider this activity and decide whether he does or does not support it. I would expect both parents to be child focussed, and if a child was attending an activity that they enjoyed, or wished to commence one, the parents should both support that.
The parents ought to discuss and agree about the children’s activities. I will not make directive orders – as the Court is not required to take on a supervisory role – but the parents should know that the Court would likely take a dim view of one parent enrolling a child in an activity without the agreement of the other parent and expecting that parent to also take the child to the activity.
Men’s Behaviour Change Program
Both the mother and the Independent Children's Lawyer proposed the father undertake a Men’s Behaviour Change Program. I am not prepared to make an order to that effect.
Certainly, the father’s behaviour in 2015 was unacceptable. Choking is a particularly troubling event, given the possible implications. However, that behaviour has not been repeated. The parents had some therapeutic intervention in 2016 with Brighter Futures.
Further, despite the mother’s repeated claims that he does not have the patience to deal with the children, there is also no evidence that the father has ever lashed out at or been angry with the children.
The Court’s role in limiting or directing a parent’s behaviour is restricted only to what is necessary for the welfare of a child. It is not a supervisory power; see Gaudron J in AMS v AIF (1999) 199 CLR 160 at [85]-[87]. Moreover, the Full Court in Oberlin and Infeld (2021) FLC 94-017 said at [51] to [52] that a self–standing order requiring a parent to engage in therapeutic treatment will not usually sit within s 67ZC of the Family Law Act.
Father to engage with therapist
The proposals as written by the mother and the Independent Children’s Lawyer sought an order that the father attend a psychologist to obtain “intensive and ongoing support to address his emotional regulation, historical perpetration of family violence, and difficulties in his co‑parenting relationship with the mother”. The proposals did not tether the requirement that the father engage with such a professional to any parenting order, and it was not expressed in the minute of proposed orders to be a precondition to his time with the children becoming unsupervised.
In closing submissions, counsel for the mother proposed that the requirement the father attend a psychologist should be a pre-requisite to the time progressing to unsupervised.
I repeat that the Court’s role in limiting or directing a parent’s behaviour is restricted only to what is necessary for the welfare of a child. I do not regard it as necessary to the children’s welfare that the father’s time be dependent upon him engaging with a psychologist. Accordingly, I do not propose to make an order for him to attend such counselling either as a free standing order, or tethered to any parenting order.
At any rate, the proposed order as drafted could not be made. What does it mean to require the counselling to “address” the issues outlined? Further, the proposed order would require the father to continue to attend until such time as the psychologist determined the father no longer needed to attend. On what basis would the psychologist decide that the issues had been ‘addressed’ or that attendance was no longer needed? Care needs to be taken by counsel to ensure when putting forward proposals that any orders sought are meaningful, and enforceable, and that the Court has the power to make the order as sought.
Communication between parents and children
The proposals by the mother and the Independent Children's Lawyer envisage the children having weekly communication with the children. The father proposed such communication occur twice weekly.
In my view, weekly communication is sufficient. The orders I am making for time provide for the children to spend alternate weekends with their father and then one night individually with him each fortnight, so they will see their father regularly. X has many medical and allied health appointments to attend, and I am mindful that the mother’s household is already very busy. Adding in a second night each week for communication may become difficult and burdensome for the mother to manage given all the other commitments for the children.
Additionally, I have made the communication mutual – so the children can communicate with each parent whilst in the care of the other.
Changeover
I am satisfied that changeovers that do not occur at school shall occur at the B Library. This has been occurring to date substantially without incident.
Other interventions
I am not prepared to make additional orders as sought by the mother and the Independent Children's Lawyer regarding further parenting education or engagement with supports. Each parent would no doubt benefit from parenting education and could be assisted by various support services. In circumstances where I am satisfied both parents are reasonably able to care for the children, it is, in my view, a matter for each parent, and not a matter in which the Court needs to be involved.
Airport Watch List order
The father proposed the children be placed on the Airport Watch List. This was not opposed by the Independent Children's Lawyer or by the mother. The mother is from Country P and remains a citizen there. Most of her family live there or in the United Kingdom.
I am satisfied in the circumstances that it is appropriate the children be placed on the Airport Watch List at this time. However, this order will not be indefinite and will only be in place for a period of five years. If either party wishes to seek the order be re-made at that time, they will need to apply to the Court.
For all of the foregoing reasons, I make the orders as are set out.

I certify that the preceding two hundred and sixty-two (262) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter.
Associate:
Dated: 8 November 2023

File number(s):	PAC 3390 of 2021
Judgment of:	CARTER J
Date of judgment:	8 November 2023
Catchwords:	FAMILY LAW – CHILDREN – Whether either parent poses an unacceptable risk to the children – Where one child has special needs – Allocation of parental responsibility – Orders made.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65DAA
Cases cited:	AMS v AIF (1999) 199 CLR 160 Bielen & Kozma (2022) 66 Fam LR 59 Fitzwater & Fitzwater(2019) 60 Fam LR 212 Loddington & Derringford (No 2) [2008] FamCA 925 McCall and Clark (2009) FLC 93-405 Mazorski v Albright (2007) 37 Fam LR 518 MRR & GR (2010) 240 CLR 461 Oberlin and Infeld (2021) FLC 94-017
Division:	Division 1 First Instance
Number of paragraphs:	262
Date of hearing:	14 – 18 August 2023, 14 and 15 September 2023
Place:	Heard in Parramatta, delivered in Melbourne
Counsel for the Applicant:	Mr Dura
Solicitor for the Applicant:	Walter & Elliott Family Lawyers
Counsel for the Respondent:	Mr Hill
Solicitor for the Respondent:	Jacqui Griffin Mobile Solicitor
Counsel for the Independent Children's Lawyer:	Mr Sperling
Solicitor for the Independent Children's Lawyer:	Legal Aid New South Wales

PAC 3390 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR RASUL Applicant
AND:	MS MOMIN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CARTER J
DATE OF ORDER:	8 NOVEMBER 2023