Sedgwick & Lind - [2021] FamCA 605

FAMILY COURT OF AUSTRALIA
Sedgwick & Lind [2021] FamCA 605

File number(s): SYC 4647 of 2008

Judgment of: MCCLELLAND DCJ

Date of judgment: 20 August 2021

Catchwords: FAMILY LAW – CHILDREN – Child related proceedings – Best interests of the child –Where the father seeks orders for equal shared parental responsibility and regular unsupervised time with the child – Where the mother seeks orders for sole parental responsibility and that the child has no contact with the father – Where the child has had no contact with the father for over six years – Where the father opposes professional supervision – Where the child wishes not to be compelled to contact the father – Primary consideration is the issue of risk to the child – Finding that the father has propensity to lose temper – Finding that the father has history of engaging in a pattern of abusive, coercive and controlling conduct in his close relationships– Finding that the father perpetrated significant injuries to his infant child over a period of time – Conclusion that the risk to the child outweighs benefits of a meaningful relationship with the father – Finding that supervision impracticable and will not mitigate risk – Orders made for the mother to have sole parental responsibility and for the child to have no contact with the father

Legislation:
Family Law Act 1975 (Cth) Pt VII, ss. 4AB, 60B, 61DA, 60CA, 60CC and 65DAA

Evidence Act 1995 (Cth) s. 140(2)

Family Law Rules 2004 (Cth) Pt 15

Cases cited:
A v A (1998) FLC 92-800

Adamson & Adamson (2014) FLC 93-622

B and B (1993) FLC 92-357

Blinko & Blinko [2015] FamCAFC 146

Bondelmonte v Bondelmonte (2017) 259 CLR 662

Cotton and Cotton (1983) FLC 91-330

Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5

G & C [2006] FamCA 994

Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186

Johnson and Page (2007) FLC 93-344

Jurchenko & Foster (2014) FLC 93-598

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

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

M v M (1988) 166 CLR 69

Marvel v Marvel (2010) 43 Fam LR 348

McCall & Clark (2009) FLC 93-405

McGlen-McLeod v Galloway [2012] NSWCA 368

R & C [1993] FamCA 62

Stott & Holgar [2017] FamCAFC 152

Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)

The Hon. John Fogarty AM, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249

Number of paragraphs: 354

Date of hearing: 26, 27, 29 and 30 April 2021

Place: Sydney by web conference

Counsel for the Applicant: Ms Bateman

Solicitor for the Applicant: Swifte Law

Counsel for the Respondent: Mr Hill

Solicitor for the Respondent: Elizabeth Fleming & Associates Lawyers

Counsel for the Independent Children’s Lawyer: Mr Moore

Solicitor for the Independent Children’s Lawyer: Kathryn Renshall Lawyers
ORDERS

SYC 4647 of 2008

BETWEEN:
MR SEDGWICK

Applicant

AND:
MS LIND

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

20 AUGUST 2021

THE COURT ORDERS THAT:
1.All previous Orders be and are hereby discharged.
2.The Mother have sole parental responsibility for X born … 2007 (“the child”).
3.The child live with the Mother.
4.The child shall spend no time or communicate with the Father.
5.The Orders placing the child on the Airport Watch List are discharged and the Court requests the assistance of the Australian Federal Police in removing her name from the Airport Watch List.
6.The Mother be entitled to apply for an Australian Passport for the child, without the written consent of the father.
7.The Mother be entitled to travel outside of the Commonwealth of Australia with the child, without the consent of the Father.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sedgwick & Lind has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McClelland DCJ:
INTRODUCTION

This matter concerns the competing Applications for parenting orders by the parties, being Mr Sedgwick (“the father”) and Ms Lind (“the mother”), in respect to their child, X (“X” or “the child”) born in 2007.
The child currently lives with the mother in New South Wales, and spends no time with the father who currently resides in Queensland. The father previously spent time with the child on alternating weekends supervised by either or both Ms Sedgwick (“the paternal grandmother”) and her partner, Ms B. This time arrangement ceased in December 2014 when the paternal grandmother refused to continue supervising the father’s contact with the child.
Aside from X, who is the subject of these proceedings, the father has three (3) other younger children, being Y born in 2009, Z born in 2010, and W born in 2017. Y and Z are the children of the father’s subsequent relationship with Ms Yi, which terminated in 2013 when he and Ms Yi separated. Z is currently the subject of separate parenting proceedings in this Court.
Pursuant to child protection orders made by the Children’s Court of New South Wales on 27 August 2010, Y currently resides with the paternal grandmother and Ms B, who share parental responsibility for Y with the State of New South Wales. Notwithstanding the child protection orders, both Y and Z currently live with primarily their mother, Ms Yi, and spend approximately five (5) nights per fortnight with the paternal grandmother.
W is the child of the father and his current partner, Ms C, and lives with the father and Ms C in Queensland.
There has been a long and protracted history of litigation between the parties. This is despite having twice reached consent orders finalising the parenting issues in 2011 and 2014. Since proceedings were initiated in 2008, there have been 12 Applications filed by the parties and the paternal grandmother, who was joined as a respondent in the proceedings until 2015. Those applications include Applications for Contravention Orders, Final Orders, Applications in a Case and an Appeal.
Regrettably, that history of litigation and the resulting communication in respect to this litigation has contributed to tension in the relationship between mother and the paternal grandmother. As a consequence, the child is no longer spending time with either her paternal grandmother, or her half-sisters Y and Z. Further, regrettably, the acrimonious relationship between the parties has also impacted X’s half-sister W who she met in the context of interviews with the family consultant, Ms D, but with whom she has not otherwise spent time.
BACKGROUND
There is an extensive history of conflict in this matter, and a significant aspect concerns issues arising subsequent to the parties’ separation, with respect to Y and Z, and the parties’ respective relationships with the paternal grandmother. I will now, however, set out the agreed facts relevant to this matter and, where controversial, the parties’ respective factual contentions. I will subsequently set out my findings in respect to contentious factual issues where it has been necessary for a factual finding to be made, in arriving at my conclusion as to the orders that I make in these proceedings.
In 1973, the father was born in Australia. He is currently aged 48 years.
In 1978, Ms Yi was born in East Asia (“East Asia”). She is currently aged 43 years.
In 1978, the mother was born in East Asia. She is currently aged 42 years.
In 1992, Ms C was born in South East Asia (South East Asia). She is currently aged 29 years.
In 2005, the mother migrated from East Asia to Australia on a working holiday visa.
In 2005, the parties commenced their relationship.
In April 2006, the parties commenced cohabitation.
Later in 2006, the parties married in Australia.
In 2007, an incident occurred between the parties while the mother was pregnant with X. The mother contends that, during the course of an argument between the parties whilst travelling in a motor vehicle driven by the father, the father became verbally abusive towards her which caused her to become distressed. She further contends that the father then forced her out of the vehicle and drove away, leaving her alone by the side of the road for an hour on a hot day before returning to drive the parties home. The father denies that he forced the mother out and, comparatively, contends that she left the motor vehicle upon her own request to do so.
In 2007, X was born. She is currently aged 13 years.
The mother contends that, from 2005 until the parties separated in June 2008, the father would often become angry and throw objects towards her but that they did not injure her. The father acknowledged that he may have thrown a newspaper down in anger but otherwise denies throwing objects at the mother.
In June 2008, the parties separated. The mother contends that this occurred on 13 June 2008 when she left the former matrimonial home with X.
On 13 June 2008, the mother left the former matrimonial home with X to stay in a women’s refuge. The mother contends that this was as a result of the domestic violence perpetrated by the father over the course of the parties’ relationship. Comparatively, the father contends that there was no reason for the mother to go to a refuge for victims of domestic violence.
On or about 19 June 2008, the mother attended Suburb F Police Station to report alleged incidents that occurred in January 2008 whereby the father threw a can at her and then hit her on her finger. She did not contend that either incident caused injury to her. She further reported an alleged incident, which occurred two weeks, prior whereby she contended the father verbally abused her and chased her through the former matrimonial home until she locked herself in the bathroom due to her fear of being assaulted.
On 26 June 2008, the father attended Suburb G Police Station to report the mother and X as missing persons and, as a result, police officers performed a welfare check on X at the refuge. The police officer did not disclose their location to the father but informed him that a check had been done and that X was safe. The mother contends that the father contacted police to locate her and X and that he made some threatening remarks to the police about hiring a private investigator to locate them. The father denies making any such threatening remarks to police.
Following the police welfare check, on the same date, the mother attended Suburb F Police Station to discuss the missing persons report made by the father and, as a result of the father’s report, police were advised by the refuge that the mother and X would be moved to a new accommodation.
In late June 2008, the father hired a private investigator to locate the mother. The father acknowledged that this was to ascertain the mother’s location, however, he contends that this was in order to serve documents on her.
The father acknowledges that, in June or July 2008, subsequent to the parties’ separation, the police applied for an interim Apprehended Domestic Violence Order (“ADVO”) naming the father as the defendant and the mother as the person in need of protection.
The mother contends that, in late 2008, the father attempted to contact the mother, in contravention of the interim ADVO, by sending messages to her. She further contends that the father was verbally abusive towards her in those messages and that he boasted of only receiving a small fine for breaching the AVO. The father acknowledged that he did breach the interim ADVO by attempting to contact the mother, however, he contends that he only did so on two (2) occasions by email. He otherwise denies being verbally abusive towards the mother, and also denies boasting about receiving a fine in respect to the breach.
On 11 August 2008, the father commenced parenting proceedings by filing an Initiating Application for parenting orders in what was then the Federal Magistrates Court of Australia. That Application sought interim and final orders for shared parental responsibility of X and for X to spend equal time with the parties on a week about basis.
On 4 September 2008, the mother filed a Response to an Initiating Application and Interim Application for parenting orders in the Federal Magistrates Court of Australia. That Response sought orders for the mother to have sole parental responsibility and for X to spend supervised time with the father on an ongoing basis.
On 19 September 2008, the parties attended a Child Dispute Conference and were separately interviewed by a Family Consultant, Ms H. The outcome of that conference, as recorded in a Child Dispute Conference Memorandum filed on the same date, was that the parties reached agreement for the father to spend time with X supervised by a contact centre, on an interim basis.
On 28 April 2009, interim parenting orders were made by Federal Magistrate Altobelli, as his Honour was then, in respect to X. Those orders provided for the father to spend time with X under a graduated arrangement that would progress from visits initially supervised by the paternal grandmother or Ms B to unsupervised contact, if the paternal grandmother and/or Ms B assessed the father to be capable of caring for X.
In 2009, Y, the child of the father and Ms Yi, was born. She is currently aged 12 years.
On 30 July 2009, the mother filed an Application in a Case in the Federal Magistrates Court of Australia seeking orders permitting her to travel to East Asia for a period of 21 days.
On 7 September 2009, orders were made by Federal Magistrate Altobelli, as his Honour was then, dismissing the mother’s Application in a Case filed 30 July 2009.
In September 2009, the parties divorced.
In 2009, the father and Ms Yi married in Australia.
On 25 September 2009, interim parenting orders were made by Federal Magistrate Altobelli, as his Honour was then, providing that the father spend four (4) hours with X supervised by the paternal grandmother or Ms B at all times, and that changeover occur at X’s preschool. Those orders also required the parties to attend interviews with a family consultant for the preparation of a Family Report.
On 13 October 2009, Y was admitted to the Emergency Department at J Hospital to undergo assessments that revealed multiple bone fractures across her body. As a result, a referral was made to a New South Wales Joint Investigation Response Teams (“JIRT”) unit in respect to Y, who subsequently became the subject of a joint investigation of the Department of Family and Community Services, as the Department of Community and Justice was then named (“the Department”), the New South Wales Police Force and the Child Protection Unit of the J Hospital.
On 14 October 2009, the father and Ms Yi were interviewed by Dr K, a consultant paediatrician of the Child Protection Unit, and Suburb L Police JIRT officers, who also interviewed the paternal grandmother, in respect to Y’s injuries. The father contends that he does not know the cause for Y’s injuries stating that Ms Yi was the primary carer for Y whilst she was in their care.
Immediately following Y’s hospitalisation, the Department removed Y from the care of the father and Ms Yi and placed Y under the parental responsibility of the Minister. A summary of the Department’s reasons for assuming care of Y was recorded at page 85 of the Independent Children’s Lawyer’s tender bundle of subpoena documents, marked ‘Exhibit 6’ in the proceedings, set out as follows:
Reasons for the assumption of care of child: 5 month old Y has sustained a left femur fracture, left radius fracture, right arm ulna fracture, left humerus fracture, multiple rib fractures and bruising to the left ear, chest and left wrist. Medical opinion is that the explanations offered by the parents as to the cause of the injuries sustained by Y appear to be inconsistent with the nature of the injury. Y is totally dependent on adult care and protection. [Ms Yi] and Father Mr Sedgwick both listed as PCH. Open plan at [Suburb M] CSC.
Half sibling X age 6 resides with her natural mother. No open plans, legal or alerts.
In October 2009, care proceedings in respect to Y were commenced in the Children’s Court of New South Wales (“the Children’s Court proceedings”). Around this time, the father and Ms Yi became aware that she was pregnant with Z but did not disclose this to the Department. While the care proceedings were on foot, Ms Yi travelled to East Asia while pregnant with Z.
On 8 December 2009, the paternal grandmother filed an Initiating Application in the Federal Magistrates Court of Australia seeking orders for X to spend time with her, and was joined as a respondent in the proceedings.
In 2010, Z, the child of the father and Ms Yi, was born in East Asia. Z is currently aged 10 years
In August 2010, Ms Yi returned to Sydney with Z using an East Asian passport issued under Z’s East Asian name. The father and Ms Yi did not disclose the fact of Z’s birth to the Department. The father contends that he and Ms Yi did not make this disclosure as they wanted to await the outcome of the care proceedings in respect to Y and were otherwise under no obligation to disclose Z’s birth.
On 27 August 2010, the Children’s Court of New South Wales made child protection orders in respect to Y, which allocated parental responsibility for Y jointly to the Minister of the Department, and the paternal grandmother and Ms B (“the child protection orders”). Those orders provided that Y was to live with the paternal grandmother and Ms B, and for the father and Ms Yi to have contact with Y on a minimum fortnightly basis, conditional on that contact being supervised by the paternal grandmother, Ms B or such other persons approved by the Department.
On 4 November 2010, the father filed an Application for Interim Orders in the Federal Magistrates Court of Australia seeking orders for the paternal grandmother be confirmed as an appropriate supervisor for X’s time spent with the father.
On 30 November 2010, the mother filed a Response to an Application in a Case in the Federal Magistrates Court of Australia seeking interim parenting orders that the paternal grandmother supervise the time X spends with the father.
On 17 February 2011, final parenting orders were made by Federal Magistrate Altobelli, as his Honour was then, with the consent of the parties. Those orders provided that the mother was to have sole parental responsibility for X, and that X was to live with the mother and spend time with the father each weekend to be supervised by the paternal grandmother or Ms B. The consent orders also included an airport watchlist order restraining both parties from removing X outside of Australia.
The mother contends that, on 20 February 2011, following a supervised visit with the father, X disclosed to the mother that she had witnessed the father screaming. She further contends that, in the subsequent weeks, X made further similar disclosures regarding the father’s behaviour during supervised visits.
The mother contends that, on 2 May 2011, X disclosed to her that the father had struck X on the right cheek during a supervised contact visit. She further contends that, as a result of X’s disclosure, she took X to the N Hospital.
The mother contends that, on 19 June 2011, she took X to the N Hospital after X disclosed being hit by the father during a supervised contact visit.
The mother contends that, on 10 July 2011, X contracted a vomiting illness during a contact visit with the father supervised by the paternal grandmother. She further contends that neither the father nor the paternal grandmother informed her of this illness.

In July 2011, the father attended three (3) sessions with Mr O, personal counsellor through P Services, for assessment and possible treatment of anger management issues.
The mother contends that, on 13 November 2011, she noticed bruises on X’s face following a supervised contact visit with the father and, as a result, she took X to the N Hospital.
The mother contends that, on 1 April 2012, the paternal grandmother and the father took X and attended upon a medical centre without her knowledge.
The mother contends that, on 30 April 2012, the paternal grandmother cut X’s hair which caused X to be distressed.
In August and September 2012, the father attended upon Dr Q, clinical and forensic psychologist, for three (3) counselling sessions to address anger management and ongoing matters in this Court.
On 18 December 2012, the father recommenced parenting proceedings by filing an Initiating Application for final parenting orders in what was then the Federal Magistrates Court of Australia. That Application sought orders suspending the supervision requirement of the father’s time with X, pursuant to the final consent orders made 17 February 2011, and for the mother to provide her contact details and address, and authorise the school to contact the father with respect to X.
The mother contends that, on 10 February 2013, X was emotionally distressed after an overnight contact visit with the father supervised by the paternal grandmother.
The mother contends that, on 13 February 2013, the father attended upon X’s school without the paternal grandmother or Ms B, in contravention of the consent orders made on 17 February 2011, and that this attempted contact caused X emotional distress. She further contends that, as a result, the mother subsequently reported her concerns about the father first to the police on 17 February, and then to X’s school on 19 February.
The mother contends that, on 18 and 19 February 2013, she sent text messages to the paternal grandmother regarding the incident of the father attempting to see X at school unsupervised, and raising her concerns that the paternal grandmother was not complying with the consent orders made 17 February 2011.
The mother contends that, on 19 February 2013, the Department informed her that X was the subject of a current child protection investigation by the Department. Comparatively, the father contends there has been no involvement by the Department with respect to X.
In 2013, the mother unilaterally relocated with X to Adelaide without the consent of the father, the paternal grandmother or Ms B.
On 12 April 2013, the mother filed a Response to an Initiating Application in the Federal Magistrates Court of Australia for parenting and property orders. That Response sought orders dismissing the arrangement for the father to spend time with X pursuant to the final consent orders made 17 February 2011 and for X to spend time with the father up to six (6) occasions per year supervised by a contact centre.
On 15 April 2013, the mother filed a Notice of Risk of Child Abuse or Risk of Family Violence in the Federal Circuit Court of Australia, alleging risks of child abuse and family violence. That Notice set out, amongst other allegations, the child protection orders made in respect to Y and the mother’s contentions regarding the incidents of 2 May, 19 June, 10 July and 13 November 2011, as set out above.
On 20 May 2013, the paternal grandmother filed a Response to an Initiating Application in the Federal Magistrates Court of Australia seeking orders that the mother’s Response filed 12 April 2013 in respect to parenting orders be dismissed.
On 23 May 2013, the parties attended a Child Dispute Conference and were separately interviewed by a family consultant, Ms CC. The recommendation of the family consultant was, as recorded in a Child Dispute Conference Memorandum filed on the same date, for an updated Family Report in respect to X.
On 27 May 2013, the father filed an Application for Contravention of Child Order with respect to the mother’s unilateral relocation, and an Amended Initiating Application in the Federal Circuit Court of Australia seeking final parenting orders dispensing of the requirement that the time X spends with him be supervised.
Sometime before June 2013, the Department became aware of Z’s existence and commenced a child protection investigation with respect to Z.
On 14 June 2013, the father was interviewed by caseworkers from the Department with respect to Z and Y. The mother contends that, during the course of his interview with the Department’s caseworkers, the father disclosed to “roughly” handling Y in the period that Y was in his and Ms Yi’s care, which he described as a stressful time exacerbated by his undergoing withdrawal from drugs.
In 2013, the father and Ms Yi separated. The father contends that this was due to the Department pressuring Ms Yi to separate from him in order for Z to remain in Ms Yi’s care.
On 24 June 2013, orders were made by Judge Altobelli, as his Honour then was, requiring the mother return X to Sydney by 3 July 2013 and providing that the consent orders made on 17 February 2011 continue to apply in the event the mother returned to Sydney with X.
In July 2013, the mother returned to Sydney with X.
On 24 July 2013, orders were made by Judge Altobelli, as his Honour was then, varying the final consent orders made 17 February 2011 to remove reference to Y.
On 14 August 2013, the paternal grandmother filed an Application for Contravention of Child Order with respect to the mother’s unilateral relocation to Adelaide in February 2013 and failure to attend with X for changeover in the period, from February to July 2013, pursuant to the final consent orders made 17 February 2011.
On 15 August 2013, the mother filed an Application in a Case seeking orders suspending the final consent orders made 17 February 2011 with respect to X spending alternate weekends with the father, the paternal grandmother, Ms B and Y together until the finalisation of the mother’s appeal. That Application also sought orders joining Ms Yi and the Department to the parenting proceedings.
On 20 August 2013, the mother appealed the orders made 24 July 2013 by way of filing a Notice of Appeal.
On 21 August 2013, orders were made by Judge Altobelli, as his Honour was then, requesting the Department intervene in the parenting proceedings.
On 8 November 2013, orders were made by Judge Henderson, as her Honour was then, finding the mother in contravention of the final consent orders made 17 February 2011.
On 21 November 2013, orders were made by Ryan J joining the Department as a party to the appeal proceedings with respect to the orders made 24 July 2013.
On 17 February 2014, sentencing orders were made by Judge Henderson, as her Honour was then, requiring the mother enter into a bond with the Federal Circuit Court of Australia in respect to her contravention of the orders made on 17 February 2011.
On 19 February 2014, orders were made by Ryan J allowing the appeal, on the consent of the parties in the appeal proceedings. Those orders varied the final consent orders made 17 February 2011 to provide for X to spend time with the father on alternate weekends and Christmas Days supervised by the paternal grandmother, with no reference to Y.
In 2014, the father and Ms C commenced their relationship.
On 9 April 2014, orders were made by Judge Henderson, as her Honour was then, granting the father leave to withdraw his Contravention Application filed 27 May 2013.
On 22 April 2014, the father filed an Application in a Case in the Federal Circuit Court of Australia seeking Ms B be joined as a party to the parenting proceedings and dismissing the mother’s Response to an Initiating Application filed 12 April 2013.
On 29 April 2014, final parenting orders were made by Judge Walker on consent of the parties. Those orders maintained the allocation of parental responsibility and the care arrangements for X, as established by the consent orders made on 17 February 2011, save for the frequency of the father’s supervised contact visits reducing to alternate weekends and with that time continuing to be supervised.
In 2014, the father commenced spending time with Y and Z supervised by the paternal grandmother and/or Ms B, and such contact visits coincided with the time X spent with the father.
On 7 March 2014, the Department sent a letter to the father notifying him that the Department had closed their case on X.
The father contends that, on 29 July 2014, the Department closed their child protection case in respect to Z.
The mother contends that, on 16 August 2014, during a supervised contact visit, the father attempted to take X away on his own but was prevented by the paternal grandmother with the assistance of security and police.
The mother contends that, on 6 September 2014, during a contact visit with the father supervised by the paternal grandmother, the father physically assaulted Ms Yi while X, Y, Z and the paternal grandmother were present.
In September 2014, the father and Ms Yi divorced.
The mother contends that, on 26 December 2014, during a supervised contact visit, the father attempted again to take X away on his own but was prevented by Ms B who called the police. She further contends that X informed her that, during this incident, Y helped X to hide from the father.
In December 2014, the paternal grandmother and Ms B withdrew their role as supervisors for the father’s time with X, Y and Z. The father contends that, as a result, the Department arranged for the father to spend supervised time with Y, however, he discontinued this arrangement as the supervised visits would not include Z.
The mother contends that, on 11 December 2014, the paternal grandmother and Ms B sent a letter to her solicitors at the time, stating that they had withdrawn supervision because the father had become “too volatile”.
Since 26 December 2014, the father has not spent any time with X outside of interviews with a family consultant for the preparation of a Family Report.
On 31 December 2014, the paternal grandmother and Ms B sent a letter to the father’s solicitor at the time and the mother stating that they had withdrawn from their role as supervisor for X, Y and Z’s contact visits with the father because he “has become too volatile at times, due to his expectations that surpass a supervisor’s role”.
On 15 January 2015, the father commenced these proceedings by filing an Initiating Application for interim and final parenting orders in the Federal Circuit Court of Australia, together with a Notice of Risk of Child Abuse or Risk of Family Violence alleging that X was not at risk of child abuse or family violence but was at risk because of the mother’s alleged serious parental incapacity. That Application sought final parenting orders for the parties to have shared parental responsibility for X and for the father to spend unsupervised time with X on alternate weekends. In addition, the father also sought interim orders for the Application to be shortlisted and heard ex parte, and for an information order to locate X.
On 21 January 2015, the father filed an Application for Review of an Exercise of Power by a Registrar seeking a review of the decision not to shortlist his Initiating Application filed 15 January 2015 by an unidentified Registrar of the Federal Circuit Court of Australia in the Wollongong Registry.
On 29 January 2015, orders were made by Judge Altobelli, as his Honour was then, in Chambers applying r 1.05(2) of the Federal Circuit Court Rules 2001 (Cth) to determine the father’s Review Application ex parte and without the parties’ consent. Those orders dismissed the Review Application filed 21 January 2015 and transferred the proceedings to this Court.
On 4 May 2015, the mother filed a Response to an Initiating Application in this Court seeking the father’s Initiating Application filed 15 January 2015 be dismissed and for the final consent orders made 29 April 2014 to remain in place.
On 24 June 2015, Ms Yi commenced parenting proceedings by filing an Initiating Application for final parenting orders in respect to Z.
On 1 July 2015, the paternal grandmother and Ms B filed separate Notices of Discontinuance in these proceedings.
On 17 September 2015, the father filed an Amended Initiating Application for final parenting orders in respect to X. That Application substantially sought the same interim and final orders as contained in his Initiating Application filed 15 January, save for the fact that the father sought orders for the mother to have sole parental responsibility with the provision the parties advise each other of X’s medical needs and treatments as well as their contact details, and that the father no longer sought unsupervised contact visits with X on an interim basis.
On 28 September 2015, the mother filed a Response to an Initiating Application in this Court seeking the orders as set out in her Response filed 4 May, or, in the alternative, for final parenting orders that the mother have sole parental responsibility for X and for the father to spend supervised time with X as organised by the Department.
The father contends that, in 2015, he and Ms C relocated to South-East Queensland. Comparatively, the mother contends that this occurred in April 2016. The father and Ms C continue to reside in South-East Queensland with Ms C’s aunt and uncle who own the property.
On 1 February 2016, orders were made by Judge Henderson, as her Honour was then, in the parenting proceedings between the father and Ms Yi in respect to Z, providing that the matter be transferred to this Court and for the matter to travel with these proceedings.
On 28 June 2016, orders were made by Registrar Ryan consolidating these proceedings with the parenting proceedings in respect to Z.
In October 2016, X ceased spending time with the paternal grandmother, Ms B, Y and Z, as a result of the breakdown of the relationship between the mother and the paternal grandmother and Ms B.
In 2017, W was born. She is currently aged four (4) years, and currently lives with the father and Ms C and Ms C’s extended maternal family.
The father contends that, since early 2019, he has not spent time with Z.
On 12 April 2019, these proceedings and the parenting proceedings in respect to Z, as consolidated, came before Henderson J for a first day Less Adversarial Trial. Her Honour made orders separating the two (2) parenting matters and providing for the parties to attend upon a family consultant for the preparation of a Family Report. Those orders included a notation requesting the same family consultant be appointed in these proceedings and the parenting proceedings in respect to Z. That has occurred.
On 20 and 21 November 2019, the parties and Ms C attended upon interviews with Ms D, family consultant, for the preparation of Family Reports. During the course of the interviews, X spent time with the father, Ms C, W and Z for the purpose of observations by the family consultant. Since then, the father has not spent any time or communicated with X.
On 19 December 2019, the paternal grandmother attended a telephone interview with Ms D, family consultant, for the preparation of Family Reports.
On 12 February 2020, a Child Safety officer from the Queensland Department of Child Safety, Youth and Women (“the Queensland Department”) attended upon the father and Ms C’s residence to conduct an interview in respect to child safety concerns raised about W. Those concerns related to reports received of the father’s historic involvement with child protective services in New South Wales. The father acknowledges that he was “possibly a little bit evasive” towards the caseworker from the Queensland Department. He otherwise denies being hostile and, comparatively, the father contends that he gave the caseworker “all [his] particulars and was very accommodating”.
On 31 March 2020, the Queensland Department sent a letter to the father and Ms C, notifying them that the Department was not further proceeding with an investigation in respect to child safety concerns raised about X.
On 29 June 2020, I made orders listing these proceedings for a five (5) day final defended hearing and providing for trial directions. In addition, I made notations in accordance with s102NA(2) of the Act providing, inter alia, that “any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party.”
On 13 April 2021, the mother filed an Amended Response to an Initiating Application in this Court for final parenting orders with respect to X. That Response sought final orders that the mother have sole parental responsibility for X and that the father spend no time and have no communication with X, in addition to orders permitting X to travel overseas.
On 14 April 2021, during a telephone conversation with a solicitor on behalf of the Independent Children’s Lawyer, X advised the solicitor that she did not want to see her father but wished to spend more time with her siblings, being Y, Z and W.
The father currently resides in South-East Queensland with his partner Ms C and W, and has done so since he and Ms C relocated there in late 2015 or early 2016. The father and Ms C, with W, reside in the downstairs section of a five bedroom house which is owned by Ms C’s aunt and uncle, who also reside in the property. The father currently owns and manages a business and works as a driver, and his hours of work are variable. Ms C is currently employed as an educator.
The mother and the child currently reside in a two bedroom unit. She has not re-partnered since the parties separated in 2008. The mother is currently in full-time employment as a health technician, and her hours of work are usually between 7:30 am and 3:30 pm.
APPLICATIONS
Orders sought by the father
The father seeks that orders be made in accordance with his case outline document provided to the Court by email sent 23 April 2021, marked ‘Exhibit 4’ in these proceedings, as follows:
1.That the Mother and Father have equal shared parental responsibility for the child of the relationship namely X Sedgwick born … 2007 (“the child”).
2.That the child live with the Mother.
3.That the child spend time with the Father in Sydney as follows after the child has had four telephone calls with the Father once a week in the first month after the date of these Orders:
(a)For the first two months from 10:00am to 2:00pm on the first Saturday of each month commencing on the first Saturday after the date of these Orders supervised by [Ms C] at the commencement and conclusion of the time and with changeover to occur at Suburb R Shopping Centre at the commencement and conclusion of the time;
(b)For the next two months on the first Saturday of each month from 10:00am to 5:00pm supervised by [Ms C] with changeover to occur at Suburb R Shopping Centre at the commencement and conclusion of the time;
(c)For the next two months from 9:00am on Saturday to 3:00pm on Sunday on the first weekend of each month with changeover to occur at Suburb R Shopping Centre at the commencement and conclusion of the time.
(d)Thereafter from after school on Friday to before school on Monday on the first weekend of each month with the Father to collect the child from school at the commencement of the time and return the child to school at the conclusion of the time.
(e)From the commencement of Order 3(c) the Father shall spend time with the child in Queensland for the first week of the Autumn, Winter and Spring school holiday periods from the Saturday immediately following the last day of school from a time on that Saturday to be advised by the Mother at least 48 hours in advance depending on the availability of flights to 5:00pm on the following Friday or such other time on that Friday depending on the availability of flights as notified by the Father to the Mother at least 48 hours in advance with the Father to collect the child from and deliver the child to the MYC Airport at the commencement and conclusion of the time.
(f)From the commencement of Order 3(d) the Father shall spend time with the child in Queensland for the first half of the Christmas school holiday period in even-numbered years and the second half of the Christmas school holiday period in odd-numbered years. The Father shall collect the child from MYC Airport on the Saturday immediately following the last day of school at a time to be advised by the Mother at least 48 hours in advance depending on the availability of flights on that Saturday in even-numbered years and from MYC Airport on the day that falls at the mid-point of the holiday period from MYC Airport in odd-numbered years and return the child to MYC Airport at the conclusion of the time in both odd and even-numbered years.
(g)At all other times as agreed between the parties.
Father’s Day:
4.From 6:00pm on the Saturday immediately preceding Father’s Day to 6:00pm on Father’s Day each year.
Christmas:
5.In 2021 and every odd-numbered year thereafter from 9:00am on Christmas Eve to 3:00pm on Christmas Day.
6.In 2022 and every even-numbered year thereafter from 3:00pm on Christmas Day to 7:00pm on Boxing Day.
Easter:
7.From 6:00pm on Easter Saturday to 6:00pm on Easter Monday in 2023 and each odd-numbered year thereafter and from after school on the Thursday immediately preceding Good Friday until 6:00pm on Easter Saturday in 2022 and each even-numbered year thereafter.
Communication:
8.That the Father shall have communication with the child by Facetime or telephone at 4:00pm each Sunday for up to 30 minutes if the child is not otherwise spending time with the Father.
Other Orders:
9.The parties shall use a Parenting App for the purposes of exchanging non-urgent information pertaining the child including details of medical treatment and activities which concern the child and shall contact each other via SMS text message in the event of an emergency.
10.That on a without admissions basis the parties be restrained from consuming illicit substances or drinking more than the legal limit for driving after consuming alcohol in the presence of the child.
11.The parties shall advise each other as soon as reasonably practicable of any major medical issues involving the child and each party shall keep the other party informed of any required treatment or medication required in relation to the child and the parties shall ensure the proper administration of such medication and treatments is performed by them.
12.The parties shall keep each other advised of their current residential address and current telephone numbers and email addresses and shall provide the other party with details of any changes to these contact details within 7 days of such change.
13.Neither party shall denigrate the other party, their family or any other person with whom they live in the presence or hearing of the children or allow any third party to denigrate the other parent or any family member in the presence or hearing of the children.
14.The Mother shall authorise any school attended by the child to provide the Father with information pertaining to the child including school reports, details of school events and extracurricular activities such as sports and concerts and school photographs at his own cost.
15.That the Father be at liberty to attend school events such as sporting events, extracurricular activities and concerts to which parents are invited.
16.The Mother shall authorise any professional providers seen by the child to speak to the Father about her ongoing treatments, progress and interventions.
17.That until further Order each party, Mr Sedgwick date of birth … 1973 and Ms Lind date of birth … 1978, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child X Sedgwick born … 2007 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name/names of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s names on the Watch List until the Court orders its removal.
Orders sought by the mother

The mother seeks that orders be made in accordance with her Amended Response to an Initiating Application filed 13 April 2021. With the amendments struck through, that application was as follows:
~~1.        That the final orders of the Court dated 29 April 2014 remain in place;~~
2.        That the father’s application is dismissed;
3.        Costs.
In the alternative:
1.        That all previous orders are discharged
2.That the mother shall have sole parental responsibility for the child of the relationship namely X born … 2007.
3.        That the child live with the mother.
4.~~That the child spends time with the father supervised and organised by the Department of Family and Community Services.~~ That the child spends no time and have no communication with the father.
5.The father forthwith signs all documents and does all things to allow the child to have an Australian Passport issued. In the event that the father fails to or neglects to sign any document or anything pursuant to this order, then a registrar of this Court is authorised to sign such a document or do such a thing pursuant to s106A of the Family Law Act, an affidavit from the mother shall be sufficient evidence of the father’s non-compliance with this order and shall allow a Registrar to act under this order That the mother be entitled to apply for an Australian Passport for the child, X born … 2007, without the written consent of the father.
6.~~The mother is at liberty to travel internationally with the child.~~ That the mother be entitled to travel outside of the Commonwealth of Australia with the child X born … 2007, without the consent order the father.
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer seeks that orders be made in accordance with their case outline filed 23 April 2021, marked ‘Exhibit 7’ in these proceedings, as follows:
1.That all previous Orders be and are hereby discharged.
2.That the Mother have sole parental responsibility for X born … 2007 (“the child”).
3.That the child live with the Mother.
4.The child shall spend no time or communicate with the Father.
5.The Orders placing the child on the Airport Watch List are discharged and the Court requests the assistance of the Australian Federal Police in removing her name from the Airport Watch List.
6.That the Mother be entitled to apply for an Australian Passport for the child, X born … 2007, without the written consent of the father.
7.That the Mother be entitled to travel outside of the Commonwealth of Australia with the child, X born … 2007, without the consent of the Father.
EVIDENCE
The father relies upon the following documents:
(a)Amended Initiating Application filed 15 January 2015;
(b)Affidavit of the father filed 16 April 2021 together with annexures (“the father’s Affidavit”); and
(c)Affidavit of Ms C filed 16 April 2021 (“Ms C’s Affidavit”).
The mother relies upon the following documents:
(a)Amended Response to an Initiating Application filed 13 April 2021;
(b)Affidavit of the mother filed 15 March 2021 (“the mother’s Affidavit”);
(c)Family Report of Ms D dated 26 February 2020 (“the Family Report”); and
(d)Tender bundle of subpoena documents provided to the Court on 27 April 2021 (“the mother’s tender bundle”).
The Independent Children’s Lawyer relies upon the following documents:
(a)Family Report of Ms D dated 26 February 2020; and
(b)Tender bundle of subpoena documents dated 23 April 2021 (“the Independent Children’s Lawyer’s tender bundle”).
The following exhibits were relied upon:
(a)File note by Ms Giblin, solicitor acting on behalf of the Independent Children’s Lawyer, of a telephone conversation with X Sedgwick on 14 April 2021 at 3pm (“the file note of the 14 April 2021 telephone call”) (‘Exhibit 1’);
(b)Affidavit of father filed 16 April 2021 together with annexures to that Affidavit (‘Exhibit 2’);
(c)Affidavit of Ms C filed 16 April 2021 (‘Exhibit 3’);
(d)Case outline of the father provided to the Court on 23 April 2021 (‘Exhibit 4’);
(e)Family Report of Ms D dated 26 February 2020 (‘Exhibit 5’);
(f)Tender bundle of subpoena documents provided by the Independent Children’s Lawyer to the Court on 23 April 2021 and being 199 pages, together with restricted electronic recordings of JIRT interviews conducted with the father, Ms Yi and the paternal grandmother, Ms Sedgwick (‘Exhibit 6’);
(g)Case outline of the Independent Children’s Lawyer filed 23 April 2021 (‘Exhibit 7’);
(h)Case outline of the mother filed 19 April 2021 (‘Exhibit 8’);
(i)Affidavit of the mother filed 15 March 2021 (‘Exhibit 9’);
(j)Amended Response of the mother filed 13 April 2021 (‘Exhibit 10’);
(k)Tender bundle of subpoena documents provided by the mother to the Court on 27 April 2021 (‘Exhibit 11’);
(l)File note by the Independent Children’s Lawyer dated 28 April 2021 of telephone conversation with S Contact Service at 2pm (‘Exhibit 12’);
(m)Memorandum from T Contact Service with schedule of fees for supervised visits (‘Exhibit 13’); and
(n)Assessment Report of Dr U, the V Hospital dated 27 April 2010 (‘Exhibit 14’).
CREDIT AND RELIABILITY OF EVIDENCE
The Court is reluctant to make adverse findings in respect to a party’s credit in parenting proceedings unless it is necessary “to determine the real issues joined between the parties”: Adamson & Adamson (2014) FLC 93-622 (“Adamson”) at [90].
The parties’ written and oral evidence were at odds in a number of significant respects. This was most significantly the case in respect to the parties’ respective contentions regarding the conduct of the father constituting acts of family violence and the possible cause of Y’s severe injuries during infancy. In those circumstances it is necessary to make findings in respect to the parties’ credit, in particular in respect to the differing accounts they give in respect to allegations of family violence between them.
In McGlen-McLeod v Galloway [2012] NSWCA 368 at [87], Tobias AJA, with whom Allsop P and Campbell JA agreed, referred with approval to the test for assessing the truth of a witness’s evidence as being stated by Tugendhat J in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at 73, where it was said:
There is great assistance to be obtained from extra-judicial writing of Lord Bingham in a chapter headed “The Judge as Juror: The Judicial Determination of Factual Issues” … Lord Bingham cited Sir Richard Eggleston QC Evidence, Proof and Probability (1978), 155 who set out the main tests to be used by a judge to determine whether a witness is lying or not.
(1)the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence, to have occurred;
(2)the internal consistency of the witness’s evidence;
(3)consistency with what the witness has said or deposed on other occasions;
(4)the credit of the witness in relation to matters not germane to the litigation;
(5)the demeanour of the witness.
The evidence of the family consultant
In this matter, the family consultant, Ms D, was cross examined in respect to views she expressed in her Family Report and to issues that were raised in the course of giving oral evidence. Ms D presented as a serious and considered witness. Indeed, she adopted the practice of taking time before responding to some answers, in order to ensure that she gave a considered response. She was an impressive witness, and her opinions expressed in her Family Report and in oral evidence were not, in my view, cast into doubt when tested under the process of cross examination. It can be taken that, where I refer to the opinions expressed by Ms D in this decision, I accept the basis for, and validity of, those opinions.
The evidence of the mother
In terms of assessing demeanour, the mother appeared to have some difficulty in responding to questions asked of her in circumstances where English is her second language. The witness did experience difficulty in comprehending some questions, particularly when they were expressed in double negative terms (see Transcript 27 April 2021, p.100 lines 20–39). Having regard to that limitation, in my opinion, she endeavoured to give her evidence in a direct and forthright manner. Her answers were responsive and she did not seek to unnecessarily embellish them will irrelevant or self-serving material: see Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [62]. The veracity of her evidence was not, in my view, diminished by her responses to questions asked of her in cross examination.
In particular, the mother did not exaggerate her allegations and, in that respect, while she attested to being the victim of family violence including the father throwing objects at her when he lost his temper, she did not allege that the father had physically injured her. She also attested that the father hit the back of her hand with an empty cereal box but stated that his actions did not cause her injury (Transcript 27 April 2021, p.167 line 45 to p.146 line 23).
The evidence of the father
The credibility and the reliability of the father’s evidence was detrimentally affected by several inaccuracies contained in his evidence in respect to a number of different matters. This included his assertion, at paragraph 113 of the father’s Affidavit, that the father’s “annual net income is $18,000.00 per annum”, in circumstances where it is clear, from his oral evidence given in these proceedings, that he failed to include these profits that he has generated from trading cryptocurrency as part of his income.
I am further satisfied that the father has understated the extent of his previous drug use. In that respect, he acknowledged, at paragraph 128 of his Affidavit, that he “occasionally consumed marijuana” but denies consuming any drugs for at least seven (7) years.
That evidence, however, appears to significantly understate the extent to which the father has had issues with substance abuse in the past. Notes of an interview conducted by a caseworker from the Department with the father on 14 June 2013, included at page 72 of the Independent Children’s Lawyer’s tender bundle marked ‘Exhibit 6’ in these proceedings, record the father disclosing that he roughly handled Y, the child who was the subject of the question to which he was answering, because “it was a terrible time for me” and that he was “[with]drawing from drugs” which had included using “alcohol, marijuana & s[ome]times ecstasy”. The fact that the father has, in these proceedings, failed to acknowledge the extent to which he has suffered from substance abuse in the past, is a factor that I have taken into consideration in assessing the credibility and reliability of his evidence.
Furthermore, the father acknowledges breaching the interim ADVO naming the mother as a protected person, the circumstances of which I will set out in greater detail below. The father, stated, however, in the course of giving oral evidence, that he did so “unwittingly and unknowingly” (Transcript 26 April 2021, p.32 lines 4–5). This is despite the fact that, at paragraph 147 of his Affidavit, the explanation that he provided for acting in breach of the interim ADVO was that he “was not aware of the conditions of the AVO as [he] had lost the document”. That statement necessarily means the father had been in possession of the interim ADVO prior to losing a copy of the order and, thus, he was aware that he was the named defendant of an interim ADVO for the protection of the mother at the time of the breaches. The fact that the father did not, in answer to questions put by counsel for the mother during the course of giving oral evidence, acknowledge that he did communicate with the mother, knowing that the interim ADVO had been issued, is therefore also a factor that I have considered in assessing the credibility of the father’s evidence.
There were other aspects of the father’s evidence that were implausible, including his assertion, in these proceedings, that he did not order either the mother or the paternal grandmother, on separate occasions, out from the car that he was driving and in which they were travelling as passengers. Rather, his assertion that, at least in respect to the mother, she had asked to leave the car, is in circumstances where I accept that the mother was, at the time she left the vehicle driven by the father, without her wallet or a mobile phone.
Most significantly, however, is the father’s denial that he was responsible for causing the injuries suffered by Y, the child of the father and his second wife, Ms Yi. In this respect, at paragraph 49 of his Affidavit, the father attests:
Y was removed from our care in October 2009 when she was 5 months old by FACS due to unexplained injuries. Y was taken to hospital for an illness on or about 14 October 2009 and whilst she was in hospital it was discovered that she had multiple fractures. I was not home at the time during all of Y’s care and I cannot say how the injuries occurred. Only Ms Yi who was Y’s primary carer for the first five months of her life until she was removed from our care could say what happened but she has never done so. It still remains a deep mystery how the injuries were sustained to Y without Ms Yi knowing about. Looking back on that period now I believe it was possible that Ms Yi was suffering from post-natal depression as she was lethargic after Y’s birth and did not seem to be her usual self.
It is also noted that the father made similar comments to the family consultant, Ms D, during his interview with her conducted for the purpose of Ms D preparing her Family Report, as recorded at paragraph 39 of her Report.
The father’s evidence, in that respect, is entirely inconsistent with the evidence in these proceedings, to which I refer below, which satisfies me that the father was, in fact, the person who perpetrated the injuries upon Y. It was disingenuous, in the extreme, for the father, in these proceedings, to attempt to attribute responsibility for Y’s injuries to Ms Yi, the mother of Y.
Further, I agree with the submission made by counsel for the Independent Children’s Lawyer, that the father is a person who “would be involved in deceit to achieve his desired outcomes” (Transcript 30 April 2021, p.241 line 26). In that respect, I accept, and agree with, the contention by counsel for the Independent Children’s Lawyer that this is evidenced by the father failing to disclose that Ms Yi had given birth to her and the father’s second child, Z, to either relevant officers of the Department or the Children’s Court of New South Wales, at the time that the Court was considering whether Y could be restored to the care of the father and Ms Yi. I acknowledge that the father took the view that he had no legal obligation to so notify the Department or the Children’s Court, however, common sense and reasonableness would have led the father and, indeed, it must be said with respect, Ms Yi, to the conclusion that the relevant authorities should have been informed of the fact that, at that time of the Children’s Court proceedings enquiring into the fitness of the father and Ms Yi to be responsible for Y’s care, they had another daughter who was approximately 6 weeks of age. I again, respectfully, agree with the submission of counsel for the Independent Children’s Lawyer that it can reasonably be inferred that the magistrate hearing the Children’s Court proceedings would have felt that the father and Ms Yi had misled her Honour by not advising her of that fact.
For completeness, while it is secondary to those matters to which I have referred immediately above, in assessing the demeanour of the father, I observed that he presented as a confident witness, however, he frequently failed to provide a direct response to questions asked of him by both counsel for the mother and counsel for the Independent Children’s Lawyer in the course of cross examination. This included a number occasions where he responded to questions asked of him by counsel for the mother, and also counsel for the Independent Children’s Lawyer, by asking rhetorical questions (see, for example, Transcript 26 April 2021, p.35 lines 34–38; p.48 lines 16–19).
Having regard to those concerns, I generally prefer the evidence of the mother to that of the father. However, where I make findings contrary to the evidence provided by the father, I will set out my reasons in doing so, by focusing upon the specific evidence considered in respect to the relevant factual dispute and, where necessary, with the plausibility of the testimony from each witness being tested against the broader evidentiary context.
THE LAW – CONCEPTS AND PRINCIPLES
Part VII of Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B sets out the objects and principles of Part VII. These are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
A determination of what order is in the child’s best interests is statutorily mandated, by s 60CA of the Act, as the paramount consideration in whether to make a particular parenting order in relation to the child, the assessment of which falls against the mandatory considerations legislated under s 60CC. In the determination of what is in a child’s best interests, s 60CC(2) and (3) respectively provides for primary considerations and additional considerations.
As noted by the High Court in Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [32]:
The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion [Norbis v Norbis (1986) 161 CLR 513 at 518], as does the overall assessment of what is in the best interests of the child.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
…
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
…
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Family violence is defined in s 4AB(1) of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

Section 4AB(2) provides a non-exhaustive list of behaviour that may constitute family violence and relevantly for these proceedings includes:
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property;
…
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; …
Despite entering into consent orders made on 17 February 2011, and, subsequently, further consent orders made on 29 April 2014, that allocated sole parental responsibility for the child to the mother, the father, nonetheless seeks, in these proceedings, equal, shared parental responsibility in respect to the child.
In this matter, for reasons which I will set out in greater detail, I am satisfied that the father has engaged in a pattern of abusive, coercive and controlling conduct which constitutes family violence as defined by s 4AB of the Act, and, consequently, the presumption of equal shared parental responsibility should not apply in this case.
For completeness, for reasons which I set out in detail below, I am also satisfied that requiring the mother to communicate with the father, in order to give effect to an order for the parents to have equal shared parental responsibility, would be inappropriate in circumstances where I have found the parties are unable to effectively communicate about matters concerning the child: see Marvel v Marvel (2010) 43 Fam LR 348 at [103].
In making that finding I have noted the father sets out, at paragraphs 116 through to 126 of his Affidavit, his proposals to improve communication between himself and the mother, including the father stating his preparedness to undertake a parenting after separation course to try and improve the communication. Those proposals would not, in my opinion, address the mother’s legitimate concerns, as a result of the history of coercive and controlling conduct to which she has been subjected by the father and her understandable anticipation that the father would engage in similar conduct of that nature in his engagement with her in the future. My opinion in this respect is reinforced by the father’s assertion, in paragraph 149, that the mother is “pathological liar”.
Further, I am satisfied that any communication between the parties will cause stress and anxiety for the mother. During the course of the hearing, I observed that the mother was often distressed in giving evidence. In that context, in responding to a question I asked of the family consultant, Ms D stated:
I think she’s really affected by whatever has occurred in the past in their relationship, and I think it would be incredibly stressful for her to have to, yes, have communication with [the father], even if that’s through email. I think it would just bring up a whole range of emotions about what has happened in the past, which wouldn’t be good for her and wouldn’t be good for X.
In this matter, the father’s proposal, set out at paragraph 120 of his Affidavit, for the paternal grandmother to possibly act as an intermediary in the communications between himself and the mother, is also impractical, particularly in circumstances where, as a result of the history of litigation between them, the mother and the paternal grandmother are not on good terms and, most significantly, where the paternal grandmother has, herself, complained about being the subject of abusive and coercive and controlling conduct on the part of the father.
As an order for equal shared parental responsibility will not be made, the pathway set out in s 65DAA of the Act does not apply to the task before the Court. That is, the Court is not required to apply a presumption that, in those circumstances, the child should spend equal or substantial and significant time with each of the parties. The Court’s focus will therefore be on making parenting orders that it considers to be in the best interests of the child.
Best interests of the child
As noted, section 60CA of the Act provides that, in deciding whether to make a parenting order, the Court “must regard the best interests of the child as the paramount consideration”. This obligation is also reinforced in s 65DAA of the Act.
Section 60CC sets out the list of matters that the Court must have regard to in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all of the s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: see s 60CC(2)(b) of the Act.
Meaningful relationship
Section 60CC(2)(a) of the Act requires me to consider the “the benefit of the child having a meaningful relationship” with each of the parties. On the other hand, I must consider the issue of the risk associated with the children possibly being subject to physical or psychological harm, neglect or abuse in the care of either of the parties.
In considering that first matter, I note that, in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at [122], the Full Court said:
No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child, by a Court attempting to pass orders to foster a relationship with one parent, if it would not be in the best interests.
In McCall and Clark at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child. In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
In Jurchenko & Foster (2014) FLC 93-598 at [123], the Court noted that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
I respectfully agree with the typically succinct analysis of this issue by Cronin J in Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”), including where his Honour said at [169],:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.
(Emphasis added)
His Honour’s analysis was consistent with the decision of Nygh J in Cotton and Cotton (1983) FLC 91-330, where his Honour noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
However, that desirability only operates where there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
(Emphasis added)
For reasons which I set out below, I am not satisfied that it would be “healthy, worthwhile and advantageous to the child” to have a meaningful relationship with the father, in circumstances where I have determined that there is an unacceptable risk that she will be exposed to the father continuing to engage in a pattern of abusive and coercive and controlling conduct including towards her.
Protection from harm
The second primary consideration, as set out in s 60CC(2)(b) of the Act, is the question as to whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
In Stott & Holgar [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm. If a determination is made that such a risk exists, the Court is then required to consider whether that unacceptable risk could be ameliorated by safeguards.
The task of determining whether an unacceptable risk, in terms of s 60CC(2)(b) of the Act, exists is assisted by having regard to the following principles:
·In devising tests to determine whether unacceptable risk exists, the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from abuse and the possibility of benefit to the child from parental access: see M v M (1988) 166 CLR 69 (“M v M”) at 78; B and B (1993) FLC 92-357 at 79,778.
·It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M at 77.
·Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148].
·The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or some only of which are proved to that standard: see Johnson and Page (2007) FLC 93-344 at 81,890–81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249.
·Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 (“Blinko”) at [83] referring to R & C [1993] FamCA 62 (“R & C”).
For reasons which I set out below, I have determined that there is an unacceptable risk in the child spending time with or communicating with the father, which I am not satisfied can be sufficiently managed or ameliorated.
Additional considerations
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. To assist analysis, those considerations can conveniently be grouped under the following headings:
(a)Issues relating to the children – their views, level of maturity, culture and relationships:
·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
(b)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
(c)Effect of change:
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
(d)Practical difficulty of implementation:
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(e)Avoiding further proceedings:
·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
(f)Other relevant matters :
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
In this matter, the Court’s obligation to consider the issues of family violence, pursuant to s 60CC(3)(j) and (k) of the Act, are wholly captured by my consideration of the issues of risk raised in these proceedings and, as a result, those relevant sub-sections have not been set out under a relevant sub-heading. Further, while relevant to my consideration of this matter, the other matters set out in s 60CC(3) are very much secondary to the main issue of unacceptable risk which has been raised in these proceedings.
CONSIDERATION
The most relevant considerations in this matter are the primary considerations set out in s 60CC(2) of the Act. That is, balancing the general presumption that it is in the best interests of a child to have a meaningful relationship with both parents against any factors or circumstances which would be contrary to the child’s best interests for that relationship to occur. Most relevantly, in that context, is the issue of risk to the child and, specifically, whether the child would be exposed to an unacceptable risk of physical and/or psychological harm, in the event that orders are made for the child to spend time or communicate with the father.
For reasons which I set out below, I am satisfied that the father has engaged in a pattern of abusive, coercive and controlling conduct directed towards his intimate partners. I am also satisfied that the father has a propensity to lose his temper and, consequently, engage in dysregulated and harmful behaviour. Accordingly, as I explain below, having regard to the matters under s 60CC of the Act, I have determined that it is likely the father will continue to engage in that pattern of conduct in the future, and that it would not be in the best interests of the child to be exposed to that conduct.
Meaningful relationship
At paragraph 73 of her Family Report, the family consultant opined:
There are many benefits to children of being able to share a relationship with both parents following separation, as long as it does not pose a significant risk to their safety and wellbeing. One of the primary benefits is simply for the child to have the opportunity to feel that they are loved and cared about by both their parents. It can also be very beneficial for children to maintain a relationship with both parents following separation in order to simply know their parents and help satisfy questions they may have about their origins and their own identity. Indeed, it appears that X may have a curiosity about her father and desire to feel loved by him and it may benefit X to have these desires met. An added benefit for X of spending time with [the father] is that she might have the opportunity to develop a relationship with her younger half-sister W (and Z too, dependent on what orders are made regarding her time with [the father]). As such, it may benefit X to re-establish her relationship with [the father], so long as it does not pose a significant risk to her safety or wellbeing.
As I explain below, it is relevant that the child no longer wished to spend time with her father. Of greater relevance, however, is my finding that the child would be at significant risk of emotional and psychological harm, in spending time or communicating with the father.
In those circumstances, I am not satisfied the child’s relationship with the father would be advantageous to the child. To the contrary, I am satisfied that, as result of the likelihood of the father continuing to engage in abusive, coercive and controlling conduct, in the event of orders being made for the child to spend time with the father, the child’s relationship with the father would not develop into one which is “healthy, worthwhile and advantageous to the child”: Loddington at [169].
Issue of risk
Past history of drug use
A potential issue of risk that has been raised in this matter concerns the father’s past history of drug use. For reasons which I have earlier set out, I am satisfied that the father has understated the extent of his previous drug use, which he describes at paragraph 128 of his Affidavit as the “occasional” consumption of marijuana in the past. Despite my concerns that the father has understated the extent of any issues with substance abuse that he has had in the past, there is no evidence that he is currently impacted by an issue of substance abuse. This is, therefore, not a risk factor.
History of abusive, coercive and controlling conduct towards family members and intimate partners
By far the most serious and significant issue in this matter, as I have earlier noted, is a pattern of conduct that I have found the father to have engaged in which is both abusive, coercive and controlling towards his intimate partners and, indeed, members of his family which, relevantly in this case, includes the paternal grandmother.
In this matter, the mother alleges that the father is quick to lose his temper, shout and use offensive language, and engage in coercive and controlling conduct. Those allegations are denied by the father. Determining whether the mother’s allegations are of substance necessarily involves evaluating the credibility and reliability of the parties’ evidence.
Relevantly, in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 at [29] after summarising a number of authorities dealing with the credibility of a party’s evidence, Ipp JA, with whom Mason P and Tobias JA agreed, stated:
Often important issues of credibility involve sub-issues. Often, objective facts, or facts that are probable, are capable of having significant bearing on the sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, they should then turn to the ultimate facts in issue and explain how their decisions on the sub-issues have assisted them in forming a conclusion on the ultimate issue.

I accept that, in failing to make orders for the child to communicate and/or spend time with the father, it means that it is unlikely X will establish a relationship, in the future, with her half-sister, W, who, as noted, is the child of the father and his current partner, Ms C, and resides with them in Queensland. That possibility needs to be weighed, however, against issues of risk to which I have referred.
It is further recognised that, by not making orders for X to spend time with the father, it will also lessen the likelihood that X spends time with her other half-sisters, Y and Z, who, as I have noted, are the children of the father’s subsequent marriage to Ms Yi. However, I note that re-establishment of those sibling relationships could possibly occur, if the mother, in these proceedings, is able to reach an accommodation with Ms Yi, who currently has care of Z, and the paternal grandmother, who has joint parental responsibility, with the Department, for Y.
In this respect, at paragraph 35 of her Family Report, Ms D records the mother’s stated desire for the child to have an opportunity to spend time with her half-sisters, Y and Z, and her preparedness to reach an arrangement with their mother, Ms Yi, so that might occur. Counsel for the mother advised the Court that this continues to be the mother’s position. Whether that occurs is beyond the subject matter of this decision. I am satisfied, however, that it would be very good thing for X and also for Y and Z.
In terms of other significant relationships, the mother stated, at paragraph 79 of her Affidavit, that the child has FaceTime communication with her maternal grandmother, who has resided in East Asia throughout her life. The mother stated that she would like the child to have the opportunity to travel to East Asia, in order to meet her maternal grandmother and also develop a relationship with other members of the maternal family. I accept the importance of the child developing her connection with her maternal family and her East Asian culture more, broadly, and agree with the mother’s contentions in that respect. For that reason, and further reasons which I will set out below, I will make an order removing the child from the Commonwealth Airport Watch list, to enable her to travel to East Asia with her mother and meet her extended maternal family.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i)
It was not disputed that the mother has been the child’s primary carer since her birth. It is further not disputed that, save to the extent that she saw the father during the interview conducted on 21 November 2019 for the purpose of preparing the Family Report, the child has not seen the father since December 2014.
The circumstances in which the child ceased the previous contact she had with her father in December 2014, were that the parties agreed to final orders, on 29 April 2014, which provided for X to spend time with the father, under the supervision of the paternal grandmother and her partner, Ms B. As has been detailed above, in December 2014, the paternal grandmother indicated that she was no longer prepared to supervise the time which the child spent with the father. The father denies that this decision was a result of the paternal grandmother’s decision that she was not prepared to further tolerate the father’s abusive conduct. However, for reasons which I have set out above, I am satisfied that was indeed the reason for the paternal grandmother withdrawing as a supervisor of the time that the child spent with her father.
In circumstances where I have made findings that the father has difficulty in managing his anger, and where he has engaged in a pattern of abusive, coercive and controlling conduct in respect to his intimate partners, I have serious concerns relating to his parenting capacity. In that context, I note and accept the opinion expressed by Ms D to the Court, that:
If it’s found that [the father] does have a serious problem controlling his anger and that he is abusive to people in intimate relationships, yes, this would signify a really serious, perhaps deficiency in his parenting and his ability to show empathy to his – to X; to be sensitive to X. And I think I said it in this report – I think I was reading it just earlier – that the concern is that – I mean, there’s a myriad of negative impacts on children from exposure to family violence. But even removing that exposure, you know, parents – perpetrators of family violence have been shown to have less – or might be likely to use more inappropriate forms of discipline with children, whether that be physical; harsher forms of punishment; insensitivity. And so I think that, yes, if it’s demonstrated that he has a problem in controlling his anger, then has a whole, yes, range of potential impacts for X about his ability to control his anger with X; his ability to be sensitive to her; yes, to say appropriate – to speak appropriately with her about matters. And I think [the mother] has raised that in the past that when they were having contact that [the father] was denigrating her to X and children can be still used as a weapon to try to control the other parent; to cause upset to the other parent. And, yes, the child can be used as a pawn in that.
(Transcript 29 April 2021, p.182 lines 29–45)
The family consultants concerns about the father’s ability to show empathy is consistent with my earlier observation of the inappropriateness of the father describing the fractures sustained by Y as “miniscule”. Her concerns are, in my opinion, justified. In that context, the family consultant also questioned whether the father had the capacity “to put X’s needs above his own” (Transcript 29 April 2021, p.189 line 34).
Comparatively, it is apparent from the evidence before the Court that the mother has demonstrated her capacity to provide for the child’s physical and emotional needs. As I have earlier noted, I accept that, as described by Ms D, the mother and X have a close relationship. It is not in dispute that, in order to support herself and the child, the mother is employed full time as a health technician, and works from Monday to Friday between the hours of approximately 7.30 am until approximately 3.30 pm. It is also undisputed that the mother has not re-partnered, and I am satisfied that X is the primary focus of her life.
The father is not seeking orders for the child to live with him, but, rather, is seeking for the child to spend an increasing amount of time with him, his current partner, Ms C and their daughter, that is, her half-sister, W. Accordingly, the father’s financial capacity to support X is primarily relevant in my assessment of the practicality of his proposed orders.
In his Affidavit, the father attests at paragraph 113, to having an annual income of $18,000. In addition, the evidence given by the father and his current partner in these proceedings is that Ms C has an annual income of $63,000. For reasons which I set out below, I am satisfied that the father’s income is slightly higher than what he has stated in his Affidavit.
Even taking the father’s income to be greater, in the order of $25,000 to $35,000 per annum, I am not satisfied that the orders proposed by the father are practicable. This is because the evidence, presented by the father and Ms C, has not satisfied me that they have the financial capacity to travel to Sydney, and pay for accommodation, for the periods of time ultimately proposed under the graduated scheme in the father’s orders. Further, I am not satisfied that the father has given adequate thought to appropriate accommodation arrangements which would be required, in the event that orders are made for the child to travel to Queensland to spend time with the father, his current partner and her half-sisters, W and Z. In other words, I am not satisfied that the father has the capacity to provide appropriate accommodation for the child in either or both Sydney and, Queensland, if orders were to be made in terms of those which he seeks.
While of far less relevance to the issue of risk that I have explained above, a relevant consideration in this matter is the little financial support that the father has provided to the mother, to assist in the physical sustenance of the child. In that respect, the orders made on 24 June 2013 refers to the father as being, at that point in time, $5,000 in arrears of his child support obligations. Counsel for the mother was not challenged on her submission that the arrears represented an accumulation of the father’s obligation to pay child support at the time, at a rate of $37 per month. Reference to the small amount of his obligation, was made in the context of counsel for the mother submitting that the Court should have regard to the fact that the father had not paid the mother child support for a considerable period of time (see Transcript 30 April 2021, p.267 lines 2–6).
Of further relevance is that, while the father attests in his Affidavit, of having an annual income of $18,000, during the course of the hearing, the father gave evidence that he had understated his income. In that respect, the father stated that the income he earns from his business has “doubled year on year” (Transcript 26 April 2021, p.61 lines 41–43). The father clarified that this exponential increase was, however, commencing from a low base. Nevertheless, during the course of his oral evidence, her stated that, for the financial year ending 30 June 2021, he expected that his business would have a $45,000 turnover, with gross profit being in the region of $35,000, though he anticipated that net profit coming down to about $25,000. In addition to that income derived from his business, the father further stated that he engages in “cryptocurrency trading” which, for the 2021 financial year, would result in him receiving a profit of $8,000 (Transcript 26 April 2021, p.64 lines 7–20).
It should be noted that it cannot be suggested that the father has failed to comply with his child support obligations in respect to the child, which requires him paying $8 per week, since that assessment is, as the father stated, based on the income he received during the financial year ending 30 June 2020. Nevertheless, it is a matter of significance, albeit, lesser significance, that the father has not offered to provide any additional support for the physical sustenance of X, despite his admissions to earning a higher income in the period since the start of the 2021 financial year, being 1 July 2020.
Effect of change: s 60CC(3)(d)
In circumstances where the child has not spent regular time with the father, for a period of over six years, it would be a significant change for the child to now commence contact with the father. This change would be all the more significant, in circumstances where the father proposes that the child spend half of each school holiday with him in Queensland.
A relevant factor, in respect to that proposed change, is that the child would be separated from the mother, who is her primary carer and attachment. Such a situation would be untenable, in the event of the child having concerns about spending time with her father, having regard to my findings that, as a matter of probability, the father is likely to continue to engage in a pattern of coercive and controlling behaviour in the context of his relationship with the child.
Practical difficulty of implementation: s 60CC(3)(e)
I have earlier referred to the financial capacity of the father and his partner, Ms C. In these proceedings, it was clear that neither the father nor his current partner have thought through the practical consequences of travelling with W, from Brisbane to Sydney, to spend time with the child, during the proposed transitional period, prior to her commencing to spend school holiday time with the father in Queensland. It was clear that little thought had been given, by either the father or his current partner, as to how they will meet the cost of the orders proposed by the father. In that respect, for instance, the following evidence provided by Ms C is relevantly set out as follows:
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:] his Honour asked you a question about this earlier, but do you have any ideas to how much an individual trip for you, Mr Sedgwick and W to Sydney would cost?
[MS C:] Well, I didn’t – we didn’t really search at this time, but the last – a couple of years ago, we would – we would travel down there, at Sydney. So me, W and [the father], it just cost us, like, $250 back and forth for the three of us.
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:] But sorry, you - - -?
[MS C:] But definitely – but definitely, we will sort it out. But - -
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:] Yes?
[MS C:] And we already talked it with [the father].
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:] When you say, “$250 there and back for the three of us”, do you mean by that that the maximum amount you paid was $250, or are you saying it was $500?
[MS C:] $250 minimum.
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:] And then - - -?
[MS C:] But that is – that is because W before is, like, is not paying yet, because she is two years old.
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:] Yes, and - - -?
[MS C:] Yes.
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:] And it is – do you have to pay for W now?
[MS C:] Yes. Yes, she is turning four years old.
[COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:] And so do you have any idea of what the cost for W would be?
[MS C:] Yes, so her costs will be the same as adults at this stage.
And what about where you would stay in Sydney? Have you made some enquiries as to how much that would cost you?
[MS C:] Well, [the father] already had a look at it, but I didn’t. But I know [the father] already done his research about it.
(Transcript 27 April 2021, p.78 line 40 to p.79 line 20)
Further, in circumstances where the father and Ms C currently reside in the ground floor of a two storey house that is owned and also occupied by Ms C’s aunt and uncle, it is my view that neither the father nor his current partner have given adequate consideration to the practicality of the child and her half-sister, Z, as proposed by the father in his Affidavit, spending time him, Ms C and W at their premises in Queensland. In respect to that living arrangement, the father stated that the downstairs area of the property, in which he and his current partner live with their child W, has two (2) bedrooms available to them (Transcript 26 April 2021, p.42 lines 28–33). It is not clear how that arrangement could adequately accommodate the child and/or her sister, Z, during those school holiday periods that he proposes they spend with him.
Avoiding further proceedings: s 60CC(3)(l)
In this matter, as I have noted above, there has been a very extensive history of litigation which dates back to 2008. On 17 February 2011, final orders were made, by consent, for the mother to have sole parental responsibility, and for the child to live with the mother and spend time with the father, under the supervision of the paternal grandmother.
Following the mother’s decision to unilaterally move to Adelaide, in 2013, under the circumstances that I have outlined above, the mother was ordered in June 2013 to return the child to Sydney.
On 29 April 2014, further final orders were made, by consent, again for the mother to have sole parental responsibility, and for the child to live with the mother and spend time with the father, under the supervision of the paternal grandmother and/or her partner Ms B.
Subsequent to the paternal grandmother’s refusal to continue supervising the child’s time with the father, in December 2014, the father commenced the current proceedings in this Court in January 2015.
Counsel for the mother submitted that the father’s current Application for the parties to have equal shared parental responsibility, in circumstances where he has previously consented to the mother having sole parental responsibility, and further in the context of the background where he has not spent time with the child since December 2014, is a factor that the Court should consider, in arriving at the conclusion that the father has prosecuted this application for ulterior purposes, as part of an ongoing pattern of coercion and control of the mother. It has not been necessary for me to consider that contention put by counsel for the mother. It was, however, clear to me, during the course of the hearing, that the mother was extremely distressed by the litigation. That distress was evident by my observations that the mother, in the course of her giving evidence in these proceedings, had a strained look on her face, appeared to have slight sweating and watery eyes, and frequently had cause to wipe her runny nose. On one occasion, it was necessary for me to adjourn the proceedings because of the mother’s distress.
In short, the mother, who is admirably discharging her responsibilities as a single mother, has been embroiled in litigation in excess of 12 years, which I note is almost the entirety of the child’s life. The Court must consider that situation to be one which is intolerable, and has clearly had an impact on the mother. The Court trusts that this decision will put an end to the litigation between the parties, and allow the mother and the child to get on with their lives, without the shadow of litigation hanging over their heads.
Other relevant matters: s 60CC(3)(m)
The father contends, at paragraph 151 of his Affidavit, that the mother has “a history of breaching court orders to the extent that she unilaterally relocated to Adelaide” with the child. The mother acknowledges that she did so, however, she states that this was in circumstances where she was under significant financial stress and required a place to stay with the child (Transcript 27 April 2021, p.103 lines3–13). The mother was not challenged on her evidence that she has a sister who lives in Adelaide, and otherwise no other family in Australia. Nonetheless, I accept that the mother unilaterally moved with the child to Adelaide during 2013, and that her conduct in doing so was contrary to orders made on 17 February 2011.
The mother subsequently complied with an order of the Court to return with the child to Sydney, which she did in 2013, and has remained living with the child in Sydney since that time. Her conduct in temporarily unilaterally relocating the child to Adelaide, without first seeking approval of the Court, was regrettable and I accept that, as result of her conduct, the mother was placed on a bond for a period of 12 months, which expired in November 2014. However, in the context of the totality of circumstances of this case, the mother’s conduct in unilaterally relocating with child to Adelaide has not impacted upon the orders that I make.
Irrespective of my conclusion that the mother’s conduct, in unilaterally moving to Adelaide with the child in 2013, was irresponsible, in circumstances where she did not previously obtain approval of the Court, I am satisfied that the mother is currently a competent and responsible person who is taking appropriate care of the child. In fact, I am satisfied that she is doing so admirably.
As noted above, the father seeks orders imposing restrictions on the mother’s travel with the child, including maintaining the child’s placement on the Commonwealth Airport Watch List. One of the reasons, which the father has advanced, for seeking that order is the mother’s conduct in having unilaterally relocating with the child to Adelaide. I note, however, that event occurred some eight years ago, and no other evidence has been presented that the mother would unilaterally relocate to East Asia with the child. As I will set out below, the evidence before the Court satisfies me that the mother will not attempt to do so.

A further reason, which the father stated for seeking such orders restricting the child’s travel, was his assertion that “[the East Asian country] is a non-Hague Convention country”: paragraph 194 of his Affidavit. The father acknowledged, during these proceedings, that his understanding in that respect was erroneous.
I am satisfied the mother and the child have very much rooted their lives in Australia. In that respect, the mother’s evidence, in response to a question from counsel for the father as to whether she was prepared to give assurances that she would not relocate the child to East Asia, was “my job is here. Everything is – I’m Australian citizen. Why should I stay in East Asia? I have my job everything here. My house… Everything here – my work” (Transcript 27 April 2021, p.134 lines 19,–22). Further, the mother confirmed that both she and the child hold only Australian citizenship.
It is entirely understandable that the mother wishes for the child to have the opportunity to travel to East Asia. Indeed, as I have earlier stated, it is desirable, in my view, for the child have the opportunity to travel to East Asia so that she can meet and spend time with members of her maternal family, as well as experiencing East Asian culture. The evidence presented by the father has not satisfied me that there is a risk of the mother unilaterally relocating to East Asia with the child. In those circumstances I will not make the orders proposed by the father which would restrict the mother’s ability to travel overseas with the child, and, as I noted earlier, I will make orders permitting that to occur.
Counsel for the father asked the mother whether she was prepared to provide, to the father, broad particulars of the details of her travel plans prior to departing overseas. The mother indicated that she was prepared to provide information concerning her departure date and return date, as well as flight details. The mother further indicated that she would be prepared to provide details as to where she was staying, however, not the full address (see Transcript 27 April 2021, p.135 line 41 to p.136 line 9). However, in circumstances where I am satisfied that the mother does not present at risk of permanently leaving the jurisdiction with the child, the father has not satisfied me that imposing such obligations on the mother, requiring her to provide him with particulars of her travel, are necessary or appropriate.
A further matter arose, during the course of the proceedings, in the context of the mother acknowledging the possibility that the child, who has access to her own communication devices, may seek to establish contact with the father, in the future, by reaching out to him. In those circumstances, a question arose as to whether the mother should be permitted to inform X about matters relating to, what I have found to be, the father’s history of engaging in abusive, coercive and controlling conduct, including my findings that the father inflicted very significant injuries upon Y, over a sustained period of time when she was less than five months of age.
Having considered the parties’ respective submissions in respect to that issue, I have determined that no such orders are necessary. In this matter, I am satisfied that the mother has commendably devoted herself to meeting the physical and emotional needs of the child, and I am satisfied that the mother has and will continue to act in the child’s best interests. In those circumstances, I do not propose to make orders, sought by the father, restraining the mother from discussing with the child such matters as she considers to be appropriate, consistent with the child’s level of understanding and maturity. This is in circumstances where the child will be 14 years of age in October of this year, and where I am satisfied, on the basis of the accounts given by the family consultant, that the child is relatively mature and sophisticated for her age.
Summary of findings in respect to the s 60CC considerations
By far, the most relevant consideration in this matter is the issue of risk, as set out in s 60CC(2) of the Act. Section 60CC(2A) directs me to prioritise the need to protect the child from unacceptable risk, ahead of the benefit to the child of making orders that would promote a meaningful relationship between the child and the father.
In this matter, for the reasons which are set out above, I have found that the father does have a propensity to lose his temper, and that he has a history of engaging in a pattern of abusive, coercive and controlling conduct towards his intimate partners and family members, which includes the paternal grandmother. Further, and most relevantly, I have found that the father was the perpetrator of serious injuries sustained by his then infant child, Y, and, of further concern, that those injuries were perpetrated over an extended period of time.
Having made those findings, I note, and respectfully agree with, the opinion expressed by the family consultant in this matter, who stated that, in the event that I make such findings, “it would be recommended that X either spend only supervised time in the [the father’s] care, or that X spend no time with [the father]”: paragraph 76 of the Family Report. As Ms D noted at paragraph 77 of her Report, at the time she made that recommendation, a difficulty was that X appeared “to desire a relationship with her father” and, as she further noted, in those circumstances, there was a risk that X might feel “quite aggrieved and not having the opportunity to know her father and share some kind of a relationship with him”.
Relevantly, however, the child has expressed a view since that time, as recorded in the file note of Ms Giblin, that the child does not want to be compelled to spend time with her father. That change of attitude, on X’s part, together with the findings I have made, that there is not a viable option for supervision of the time which the child might spend or communicate with the father, has led me to conclude that the Court should not make orders requiring X to either spend time with, or communicate with, the father.
CONCLUSION
For all the reasons that I have set out above, I am satisfied that orders should be made providing for the mother to have sole parental responsibility, in respect to the child, and that the child shall live with the mother and, otherwise, spend no time or communicate with the father.
Further, for reasons which I have set out, I dismiss the father’s Application for orders restraining the mother from travelling overseas with the child. This is in circumstances where the child has extended family in East Asia, and is entitled to know about her East Asian heritage. It is also in circumstances where I am satisfied that the mother has very much made her life in Australia, and I do not consider there to be an unacceptable risk of the mother permanently leaving the Commonwealth with the child.
To facilitate such travel occurring, I agree with the submission of the Independent Children’s Lawyer that an order should be made removing the child from the Airport Watch List.
In final submissions, counsel for the mother indicated that the mother was in agreement with the orders proposed by the Independent Children’s Lawyer. I also agree with the appropriateness of those orders and, accordingly, in this matter, I make the orders as proposed by the Independent Children’s Lawyer.

I certify that the preceding three hundred and fifty-four (354) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.
Associate:
Dated: 20 August 2021

File number(s):	SYC 4647 of 2008
Judgment of:	MCCLELLAND DCJ
Date of judgment:	20 August 2021
Catchwords:	FAMILY LAW – CHILDREN – Child related proceedings – Best interests of the child –Where the father seeks orders for equal shared parental responsibility and regular unsupervised time with the child – Where the mother seeks orders for sole parental responsibility and that the child has no contact with the father – Where the child has had no contact with the father for over six years – Where the father opposes professional supervision – Where the child wishes not to be compelled to contact the father – Primary consideration is the issue of risk to the child – Finding that the father has propensity to lose temper – Finding that the father has history of engaging in a pattern of abusive, coercive and controlling conduct in his close relationships– Finding that the father perpetrated significant injuries to his infant child over a period of time – Conclusion that the risk to the child outweighs benefits of a meaningful relationship with the father – Finding that supervision impracticable and will not mitigate risk – Orders made for the mother to have sole parental responsibility and for the child to have no contact with the father
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss. 4AB, 60B, 61DA, 60CA, 60CC and 65DAA Evidence Act 1995 (Cth) s. 140(2) Family Law Rules 2004 (Cth) Pt 15
Cases cited:	A v A (1998) FLC 92-800 Adamson & Adamson (2014) FLC 93-622 B and B (1993) FLC 92-357 Blinko & Blinko [2015] FamCAFC 146 Bondelmonte v Bondelmonte (2017) 259 CLR 662 Cotton and Cotton (1983) FLC 91-330 Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 G & C [2006] FamCA 994 Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 Johnson and Page (2007) FLC 93-344 Jurchenko & Foster (2014) FLC 93-598 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Loddington & Derringford (No 2) [2008] FamCA 925 M v M (1988) 166 CLR 69 Marvel v Marvel (2010) 43 Fam LR 348 McCall & Clark (2009) FLC 93-405 McGlen-McLeod v Galloway [2012] NSWCA 368 R & C [1993] FamCA 62 Stott & Holgar [2017] FamCAFC 152 Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) The Hon. John Fogarty AM, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249
Number of paragraphs:	354
Date of hearing:	26, 27, 29 and 30 April 2021
Place:	Sydney by web conference
Counsel for the Applicant:	Ms Bateman
Solicitor for the Applicant:	Swifte Law
Counsel for the Respondent:	Mr Hill
Solicitor for the Respondent:	Elizabeth Fleming & Associates Lawyers
Counsel for the Independent Children’s Lawyer:	Mr Moore
Solicitor for the Independent Children’s Lawyer:	Kathryn Renshall Lawyers

SYC 4647 of 2008
BETWEEN:	MR SEDGWICK Applicant
AND:	MS LIND Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	MCCLELLAND DCJ
DATE OF ORDER:	20 AUGUST 2021