Sims & Keller - [2023] FedCFamC2F 834

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sims & Keller [2023] FedCFamC2F 834

File number(s): NCC 898 of 2020

Judgment of: JUDGE BETTS

Date of judgment: 30 June 2023

Catchwords: FAMILY LAW – Parenting – two subject children, aged 6 and 4 – where the eldest child suffers from a medical condition – where the mother has two older children from a different relationship, aged 16 and 15, one of which whom resides with the mother and the subject children – where the parties were in a “toxic relationship” – where both parents were actively involved in the children’s lives – where the father perpetrated coercive and controlling family violence against the mother during the relationship and well after separation – where the subject children and the two half-siblings witnessed frequent disputes and family violence –– where the mother sought a “no time” order – where the ICL sought an order that the father complete a raft of behavioural courses before graduating to unsupervised time – where the father adopted the ICL’s proposal at trial – where the Court considers that making a “no time” order and finalising the proceedings is in the best interests of the children given the evidence – best interests outcome.

Legislation:
Evidence Act1995 (Cth)

Family Law Act1975 (Cth), Pt VII

Cases cited:
Isles & Nelissen [2022] FedCFamC1A 97

M & M (1988) FLC 91-979

Rice & Asplund (1979) FLC 90-725

Division: Division 2 Family Law

Number of paragraphs: 290

Date of last submission/s: 19 April 2023

Date of hearing: 17, 18 and 19 April 2023

Place: Newcastle

Counsel for the Applicant: Ms Court

Solicitors for the Applicant: Harpers Legal

Counsel for the Respondent: Ms Jewison

Solicitors for the Respondent: Single Law

Counsel for the Independent Children’s Lawyer: Mr Bateman

Solicitors for the Independent Children’s Lawyer: Sharon Moore Solicitor

ORDERS

NCC 898 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS SIMS

Applicant

AND:
MR KELLER

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE BETTS

DATE OF ORDER:

30 JUNE 2023

THE COURT ORDERS THAT:
1.All previous Orders be discharged.
2.The Mother have sole parental responsibility for the children X born in 2016 and Y born in 2019, (“the children”).
3.The children live with the Mother.
4.The children spend no time and have no communication with the Father.
5.Pursuant to section 68B of the Family Law Act1975 (Cth) and for the personal protection of the children, the Father is restrained from:
(a)approaching or removing the children from their school, from any carer, or from extra-curricular activities;
(b)coming within 100 metres of any school, extra-curricular activity or place the children may be residing or attending from time to time unless there has been prior written consent from the Mother;
(c)attending the B Venue where the Mother works and the children attend for lessons; and
(d)contacting the children by social media.

6.The Mother is at liberty to provide a copy of these Orders to the school, to any carer of the children including any day care centre, any extra-curricular care provider as well was to the Manager of the B Venue.
7.Pursuant to section 68B of the Family Law Act1975 (Cth) and for the personal protection of the children, the Mother is restrained from facilitating any contact between the children and their Father, including phone calls, by way of social media, face to face, or in writing.
8.By consent of the Mother, the Mother inform the Father by email of any change in the children’s schooling arrangements within seven (7) days of such change with the Mother to email the Father at ….com.
9.These Orders authorise any school attended by the children to provide each parent with all documents usually provided to parents including copies of school photograph order forms, school reports and other correspondence normally sent to parents.
10.By consent of the Mother, the Mother inform the Father by email as soon as practicable of any hospitalisation, serious illness or injury sustained by the children.
11.Pursuant to section 11(1)(b) of the Australian Passports Act 2005, the Mother be permitted to do all acts and things necessary to apply for, renew and maintain an Australia Passport for the children X born in 2016 and Y born in 2019, without the consent of the Father.
12.Pursuant to section 65Y of the Family Law Act 1975, the Mother is at liberty to travel outside of the Commonwealth of Australia with the children whether or not the Father has consented to any such travel.
13.If the Independent Children’s Lawyer intends to apply for costs against the Father, the Independent Children’s Lawyer is to file and serve an Application in a Proceeding and supporting Affidavit setting out the basis for such costs Order within forty-two (42) days, failing which the proceedings will be removed from the list of active pending cases.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Sims & Keller has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS

These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.
OVERVIEW
This is a particularly difficult parenting case relating to two (2) young and vulnerable children:
·X, who was born in 2016 and is presently six (6) years and nine (9) months of age. X is presently in Year 1 at C School, where she is doing well. X has a significant health issue in that she has a medical condition, involving features which are quite noticeable. The practical consequence is that she suffers more headaches than most children and she is an increased risk of medical episodes, which requires her to take medication. She also has reduced vision in her eye. In short, she is a child who requires ongoing medical monitoring, as well as allied health support in the form of optometrist attendances, as well as some speech therapy;
·the other child the subject of these proceedings is X’s younger brother, Y. He was born in 2019 and is four (4) years and four (4) months of age. He presently attends for three (3) days per week at a D Early Learning Centre. He may or may not be commencing school next year. He has some speech delays and receives speech therapy.
The children have two (2) older half-siblings, the eldest being E born in 2007, who is presently sixteen (16) years. E identifies as male and has done so for some years. E now goes by the name F. In these reasons any reference I make to this child as either E or F is not intended to be in any way disrespectful. Some of the relevant subpoenaed notes refer to the child as E, but to be clear we are talking about one and the same child. I should say that F lives with his biological father, the mother’s ex-partner, and spends alternate weekends in the mother’s care.
The mother’s other child is G born in 2008 who is presently fifteen (15) years old. He lives in the mother’s full-time care.
These parents had what can only be described as a toxic relationship. They commenced cohabitation around 2015. It is unclear when they separated. The mother, Ms Sims, contends that the parties finally separated in August 2019. The father, Mr Keller, contends that the parties finally separated in March 2020.
It may not matter too much which one of these parties is correct about the exact separation date. It is clear that theirs was a relationship characterised by: frequent disputes; family violence throughout the relationship which was witnessed by one or more of the children in the household which at that time included F and G; regular separations, but the separations were “messy” in the sense that the parties did not ever seem to have much of a “clean break” but instead continued to regularly have contact with each other. The father stayed at the mother’s home and the parties still had sex from time to time.
It seems to me on the weight of the evidence that final separation was probably March 2020, consistent with the father’s version of events, but as I say not much really turns on this.
Police were called to the parties’ home on many occasions during the relationship. It is clear that the household was a tense one. G in particular had behavioural difficulties and he clashed with the mother on occasions, as well as clashing with the father. The mother seemed to think that the father was too harsh on G in a disciplinary sense - and he was. For his part, the father considered that the mother was too lenient in relation to G’s behaviours.
Both parents were actively involved in the children’s lives throughout the relationship. They dispute who was their primary carer. The father is a self-employed tradesman who conducts his own business and he has always had fairly flexible work hours, including since separation. So he certainly had plenty of opportunity to care for the children. The mother works at the B Venue at Suburb H, but that employment is of a part-time nature and she has been significantly available to care for the children as well, given that she only works there for three (3) days each week.
In any event, I accept that both parents were actively involved in the children’s lives.
The mother commenced these proceedings as a result of the father holding X over.
It would be fair to say that, throughout the course of the proceedings, the father was spending substantial and significant time with the children and, despite the parents having difficulty in their relationship and their ongoing communication problems, it is clear that both parents understood that each of them would continue to be actively involved in the children’s lives whatever the outcome. As recently as the Family Report interviews on 28 February 2023, the father was seeking equal shared parental responsibility and equal time. Though seeking sole parental responsibility, the mother for her part was proposing that the children spend alternate weekends with the father.
However, there was an abrupt change in the parenting arrangements when the Family Report in this matter was released. That Family Report, prepared by Court Child Expert Ms J , can only be described as alarming. It raised very serious issues concerning the parental conflict and the father’s alleged perpetration of coercive and controlling family violence against the mother throughout the course of the relationship. The report writer raised real concerns about the welfare of the children, noting that they had been exposed to family violence and significant conflict. The report writer was so concerned about the risks posed to the children in this case that she recommended that, if the Court found that the father posed an unacceptable risk of harm to the children, the Court would consider making a “no time” order, which is the most radical order that a Court can make.
Given the content of the Family Report, the matter was listed for the specific release of that report and an urgent interim order was made suspending the father’s time and communication with the children pending further order.
In the lead-up to the trial, the father amended his response by “winding back” the orders sought. That is to say, he no longer sought week-about time, but was content to spend five (5) nights per fortnight with the children. When the trial commenced he further retreated from his original position, this time abandoning equal shared parental responsibility.
The mother ran a “no time” case.
By the end of the trial, the case had really devolved into an argument as to whether the father’s time with the children should resume at all and, if so, then on what terms and with what safeguards.
The mother contended for findings that the father posed an unacceptable risk of harm to the children that could not be rendered acceptable by him undertaking any family violence-related course or the like.
The ICL contended for a positive finding that the father had perpetrated family violence against the mother of a coercive and controlling nature. But rather than seeking a “no time” order, the ICL’s position was that the father ought to be given a “lifeline” as set out in the minute of order proposed as exhibit 15. Pursuant to exhibit 15, the father was to enrol in and complete:
·the K course conducted by L Counsellors, which apparently takes some six (6) weeks to complete;
·the M course conducted by L Counsellors, which apparently takes eighteen (18) weeks to complete with a ten (10) week waiting time to enrol;
·a parenting course conducted by L Counsellors for parents of children at the ages of X and Y; and
·a ‘Parenting after Separation’ course conducted by L Counsellors.
The ICL reasoned that if the Court made these orders and put in place these safeguards, that the father would then, upon providing certificates of completion of the courses, spend unsupervised graduating time with the children. The ICL also contended that if the father failed to undertake the courses then, effectively, he would remain in a circumstance where he had “no time” with the children. That is to say, the ICL proposed a self-executing order for “no time” in the event the father did not undertake these courses.
The father was willing to concede the appropriateness of the orders sought by the ICL, although he wanted some amendments to the orders in exhibit 15. In particular, he wanted to be able to have phone calls with the children once per week pending his completion of these courses and he wanted some specific additional orders in relation to seeing the children on a Father’s Day breakfast at the school and to be able to attend parent/teacher interviews and award ceremonies and the like.
Implicit in the ICL’s proposal - and acquiesced in by the father (with his suggested amendments) - is that a “no time” order would be the fallback position unless the father was able to demonstrate that he had completed the courses and, by extension, had addressed some fairly significant issues that were raised in the course of this hearing.
In closing submissions the mother maintained that a “no time” order was the only appropriate order. She contended that if I was minded to make the orders sought by the ICL, then I should be including an additional requirement that the father undertake “at least 12 months of intense cognitive behavioural therapy and at least 12 months of personal counselling with a copy of the Family Report to be disclosed to his counsellor”. That is to say, the mother wanted to make the conditions in exhibit 15 more rigorous.
FINAL HEARING & MATERIAL RELIED UPON
This matter proceeded to final hearing on 17, 18 and 19 April 2023. Ms Court of counsel appeared for the mother, Ms Jewison of counsel appeared for the father and Mr Bateman of counsel appeared for the ICL.
The mother relied upon: a Case Outline Document; her Further Amended Initiating Application filed 3 April 2023, the mother’s trial affidavit filed 6 April 2023 and some written submissions that had been prepared by Ms Court and which were handed up at the close of the hearing. The father relied upon: his Case Outline Document filed 13 April 2023, his Amended Response filed 11 April 2023 (although this was superseded by exhibit 15 referred to earlier); and the father’s affidavit filed 11 April 2023.
The ICL relied upon a Case Outline Document and an initial proposed draft minute of order which was consistent with the ICL’s preliminary view. That is, the ICL was proposing, subject to testing the evidence, that the children live with the mother, that she have sole parental responsibility, and that they immediately spend alternate weekend and holiday time with the father, subject to various restraints being put in place.
I was somewhat surprised that this was the ICL’s preliminary position and expressed that at the commencement of the hearing. This is because the Family Report raised alarming concerns, as did the mother’s affidavit. And it is quite apparent that by the time the evidence had concluded the ICL had come to the same view, namely that her initial proposal was not sufficiently protective of the children.
The ICL also relied upon: a Child Dispute Conference Memorandum prepared by the former manager of child dispute services at the Court, Ms N. This became exhibit 1. The ICL also relied upon the Family Report of Ms J of 24 March 2023, which became exhibit 2.
The parties tendered numerous other exhibits, including subpoenaed documents and audio recordings which themselves were quite devastating in terms of the father’s case, which I will refer to later.
CHRONOLOGY OF EVENTS
The father was born in 1976. The mother was born in 1981.
The mother’s first child, F (then E), was born in 2007. The mother’s second child, G, was born in 2008.
The relationship
The parties commenced their relationship around 2015 when the mother, E and G moved into the father’s home.
It would be fair to say that at first the relationship between the father, the mother and her older two children was a positive one. Things however do seem to have deteriorated reasonably early on in the relationship.
I should pause here and record that the mother suffers from depression and anxiety and, it seems, has been diagnosed with bipolar disorder. When the mother was pregnant in 2015, the father says that she took a packet of pain medication and a large amount of her bipolar medication. The mother afterwards had a miscarriage.
It is the mother’s case that the father called her a “baby killer” and a “murdering bitch” after this event, and that he did so from time to time.
It is also clear that the father taunted the mother in relation to her mental health generally from time to time during the relationship. His willingness to criticise her mental health - and to exploit it to avoid or minimise difficulty with Police later during the relationship - was another feature of the way that the father conducted himself. The father also began calling the mother a “slut”, or “slut-shaming” her as she describes it. Again, as with criticism of the mother’s mental health this was a feature of the father’s derogatory put-downs and taunts of her during the relationship.
This is not to say that all of the abuse went one way from the father to the mother. I accept that on occasions the mother was quite verbally abusive to the father as well. The difference, however, between her abuse and the father’s abuse is that hers was in the nature of “reactive retaliation”. His was more insidious and long-lasting in terms of effect.
In 2016, the first child of the proceedings, X, was born.
As I have indicated, she was born with a medical condition. Her condition manifested when she was a few days old. The father seems to blame the mother, at least in part, for the child having a medical condition. This is because the father says that the mother told him that she had again taken “a packet of pain medication and a large amount of bipolar medication” when she was pregnant, apparently in an attempt to take her own life. This (overdose) allegation was not really explored at the trial, but it is common ground that the parties certainly did not seek any medical help for the mother, which I find odd if in fact it is true. If it was true, then it would seem to have perhaps been more of a “cry for help”, but I am unable to make a finding as to whether the mother took that medication. The overdose issue simply was not explored, and I have such concerns about the evidence in this matter, particularly from the father, that I make no positive finding.

The relevant point however is that in my view, the father had a degree of, and maintains a degree of, resentment of the mother in relation to X’s condition.
Shortly after X had been born, the mother went to the Police station telling them that she was having money arguments with the father. She was trying to register X’s birth with Centrelink so that she could obtain the necessary family payments and other benefits from them. The mother complained that the father was refusing to give her his financial information or his tax file number and instead would tell her that she had “mental health issues”. I accept that evidence.
A feature of the way these parties conducted their financial affairs is that the husband, who conducted his own business, frequently had cash in his possession which he used to pay for various expenses - but otherwise his cash was very much his own. The wife’s income was paid into her bank account and (like some of the father’s cash) was used for family expenses.
In late 2016 the parties had another argument. On this occasion the mother later found a soft toy sitting on the desk in her study, this being a place where she used to keep mementos. The head had been ripped off the soft toy. The child, F, had given the mother the soft toy for Mother’s Day. Given my findings about the father’s family violence in this matter, which I will be turning to in due course, and given the timing of this event, the weight of the evidence is strongly suggestive of a finding that the father ripped the head off that soft toy and I am so satisfied.
Indeed, from time to time the father destroyed other toys or sentimental items belonging to G. These included such things as school certificates and the like.
There was a serious event which occurred between the father and G in November 2016, which was the subject of some fairly significant evidence at the hearing.
As I have indicated earlier, G was at times a difficult child and he and the father, as well as he and the mother, would get into arguments about disciplinary matters. On this occasion, the mother was in the shower and there were delays in getting G to get out of bed and go to school. The mother says that on this occasion G came running into her bedroom, telling her, “Mum, Mr Keller put his hands around my neck in bed and tried to choke me”. She says she was alarmed and that she spoke to the father, who told her that G was lying, that the father did not do anything and that G would not get out of bed for school “so I put my hand on his shoulder”.
The mother told the father to leave. She called the Police who attended and a report was made to the JIRT. Subsequently, Police took out an AVO to protect G from the father for a period of twelve (12) months.
The father denies putting his hands on G’s neck at all or choking him in any way. However, I have before me as part of exhibit 14 the Police subpoenaed records concerning this event. According to the Police records they attended the premises on the morning in question and they noted that it had been reported to them that the father had thrown a stuffed toy towards G’s head and yelled at him to hurry up; that the toy had not hit him; but G then said, “I’m getting ready. I’m getting ready”, and the father then placed his hand around G’s neck and started to choke him, dragging him from his bedroom into the lounge room by the neck before letting him go.
The note records that:
·G’s sister (a reference to F, then known as E) was standing in the doorway of the nursery and witnessed the assault;
·that G screamed; and
·his mother, who was showering at the time, walked out to see what was happening and she noticed red marks on G’s neck;
·that G told his mother that the father had choked him and grabbed him around the neck;
·that the mother asked the father about it, that he denied it before verbally abusing the mother, taking some belongings and leaving in his work vehicle.
There are some inconsistencies here, which is not surprising given the passage of time. Was the mother in the bedroom or was she in the shower for example? But what is clear is that the mother took a photograph of G, particularly his neck, that the Police were shown it - and the photograph according to Police notes “do show red marks on the victim’s neck”. (Police made a notification to DOCS and applied for an urgent AVO).
It is notable, however, that despite the Police applying for an AVO, the mother gave a letter to the father for use in the Local Court AVO proceedings. The father annexed the letter to his affidavit. He said in his affidavit that in the letter the mother admitted that she had made up the choking allegation and that she even supplied the letter to the Court.
The letter was apparently the basis, or a basis, for the AVO application not proceeding.
The letter relevantly reads:
This letter concerns the incidents that took place at my address [in] November.
1, My partner [Mr Keller] is a loving, caring man who would never harm my kids or myself.
I have lived with my partner [Mr Keller] for about 2 ½ years since leaving my husband of 10 years because of his alcohol abuse.
2, At no time did my partner [Mr Keller] choke or put his hands on my sons neck.
I was upset with [Mr Keller] because he yelled at [G] and made him cry.
We have been having trouble with [G] for some time getting ready for school, he has been throwing tantrums and throwing toys around his room.
3, [Mr Keller] has taken on the roll [sic] of fathering my two kids, they call him Dad and love him very much.
They always give each other a hug and kiss before bed each night.
[Mr Keller] and I have also had a child together and she is 2 months old.
4, the mark I took a photo of on [G]’s neck was a result of a physical confrontation he had with his sister [E] the night before, they were argued over a book [sic] and I had to break them up
5, I called the police because [Mr Keller] and I had a disagreement the day before and I felt he was reluctant to commit to me. I wanted [Mr Keller] to help me pay off the credit card debt from my previous relationship with my husband and to take over the house we have at [Suburb O]. When [Mr Keller] was reluctant to do this I felt like he never loved me.
The content of this letter is relevant and sheds light on the nature of the dynamics of the relationship between these parties - but not in the way that the father would have preferred. In my view, the letter is in fact a classic example of a coercive, controlling relationship evidenced in the form of the letter. Not only does the mother entirely exculpate the father, she also deprecates herself, effectively suggesting that she is somewhat mentally unstable and would make up these sorts of allegations simply because the father was reluctant to “commit” to her.
Moreover, it is common ground on anyone’s view that the mother did not herself witness whatever happened between the father and G. So when the letter said that:
At no time did my partner [Mr Keller] choke or put his hands on my sons neck
there is no way the mother could have known for certain the truth of that.
I am satisfied that the father got the mother to write that letter and that the mother was willing to “cover” for the father in a way which is consistent with the nature of the coercive and controlling relationship that these parties were in. The letter also reflects that the father was remaining in “absolute denial mode” in relation to this event and I should also add that he continues to be in denial of this event even now, his position at trial being that he did not in any way choke this boy.
Mindful of the standard of proof applicable to these proceedings and also the serious nature of findings about family violence, having regard particularly to section 140(2) of the Evidence Act 1995 (Cth), I am satisfied on the balance of probabilities that:
·the father did put his hand on [G]’s neck;
·that [G] panicked and ran in to see his mother afterwards.
I am satisfied that this event occurred.
I am satisfied, however, that whatever force the father applied to G’s neck was such that by the time Police arrived at the home the mark had already faded. So it is inevitably serious for a parent, or a person in position of a parental role, to grab a child around the neck, but it is also the case where, inferentially, the amount of force used was such that it did not leave a lasting mark. I also add that there is no reason for the mother to have photographed G’s neck based on a mere fight with E the night before.
As I have indicated, it would be fair to say that the parties’ relationship was rocky and indeed “on and off”. In March 2017 the parties had undergone another apparent separation and the parties got into an argument about the mother apparently selling some of the father’s birds, which she had asked him to remove from the property. Later on after this argument when the mother went out to the garage, she found that the mower cord was snapped. She did not see the father break it, but consistent with other behaviours of his during the relationship, she suspects that he did so and I am satisfied that he did, notwithstanding his denials.
On 4 April 2017 the parents were separating once again. The mother was packing various boxes that contained both her goods, as well as the father’s goods. At one point, the father kicked over one of his own boxes and the mother then went on to call Police: see exhibit 14.
Around the same time the mother was moving house with the children when G found a pile of broken toys of his. I accept the mother’s oral evidence that G had been playing with the toys not long before, that the father had come over to the home in the intervening period and that G later found that the toys were all broken. G was very upset. He was crying and talking to his cousins and saying that the father had “trashed his toys again”. I am satisfied that the father did deliberately destroy G’s toys on this occasion.
That is not to say that G was always entirely careful in looking after his toys. The father gave evidence that G “often” destroyed his own toys when he was angry and the mother did say that G may have done so on one occasion. I accept the mother’s evidence about this and I am satisfied that overwhelmingly G’s broken toys were a result of the father choosing to punish G in this way - a way that in my view was cruel, needless and rather callous, consistent with observations of the father’s personality type as made by the Family Report writer to which I will return later.
A serious incident of physical violence occurred in December 2017 in the context of the parties doing some Christmas shopping. The evidence again is somewhat inconsistent in this respect, in that I have a version from the mother, a version from the father, as well as Police records that are, essentially, contemporaneous and slightly different again.
It suffices to say that having heard the evidence in this matter, and having regard to the weight of the evidence as a whole, I am satisfied that the argument that day was about Christmas presents for the children and, in particular, that it arose because the mother told the father that he needed to be fair and that they needed to spend roughly the same amount on all of the kids. The father was wanting to spend less money on her older children than the mother was, which is consistent with the attitude the father had towards her older children during the relationship, particularly G. I reject the father’s version of events, which is that the argument related to the mother being “jealous” of him in some way or accusing him of seeing or flirting with other women.
The mother’s evidence in her affidavit is that, while she was driving, the father reached over to pull her hair and punched her arm. She says she froze, she stalled the car and she feared that the father was going to kill her. She says she got out of the car in a panic, collected X and ran to a random house. She says the father then took off in the direction of their house and she got back in the car and called the Police.
The father accuses the mother of being violent towards him in the car, by punching him and attempting to grab him by the testicles. That is to say, he was the victim in this situation. I reject the father’s version of events.
The most accurate record of this event appears in exhibit 6, being the contemporaneous Police notes. These broadly corroborate the mother’s version. There are some inconsistencies as to whether or not she, in fact, “stalled” the motor vehicle or not, but that is a minor detail. I accept that the father grabbed the mother by the hair and that he punched her, although even on the mother’s case he did not punch her very hard. The mother also said to Police, and I accept, that on this occasion she told the father she didn’t want him to come to her house any more.
After this event, police took out the first of two (2) apprehended violence orders to protect the mother from the father. The father says that he agreed to the order on a “without admissions” basis, but he otherwise disputes what occurred on that particular day.
In May 2018 the parties again had an argument at home and found themselves in a tug-of-war over an iPad. When the father left, the mother called the Police. She told them that she was not sure how to end the relationship, which was “on and off”.
In December 2018, the mother again called Police following an argument with the father. She told Police that she was still inviting the father to stay at the house.
In January 2019 the mother called the Police about the father giving G a hard time about behavioural and disciplinary issues at home. She raised with them a possible AVO breach by the father for damaging property, but the father had apparently only been “throwing in the bin” some property that the mother had given him as a gift, which Police did not consider to be a breach of AVO.
Also in January 2019 the father and G got into an argument over some bath towels. The father called G a “know-it-all cunt”, which upset G, who went to his room crying. The mother called Police after this event, telling them she was worried about the father being verbally belittling towards G as he had been over the previous six (6) months or so. G admitted to Police to being “cheeky” on the day in question, but he was clearly upset that the father had called him a “cunt”.
Police spoke to the mother about making some decisions about the relationship with the father, as in their observation this was not a good environment for G. I agree. Police also spoke to the father about his “bad parenting” [their words] and the need for the father to start acting like a parent or that he himself would have to make some hard decisions concerning the relationship with the mother.
I should add that after this event nothing really changed in terms of either the father’s behaviours, or the nature of the parents’ relationship.
Y was born not long after in 2019.
In April 2019, the mother again called Police. This time the father had called her a “prostitute”, as well as saying she had a “loose pussy” in front of the children while they were driving home in the car. I am satisfied that the father did these things.
In mid-2019 G was to go on a school camp. The father sabotaged G’s experience by removing various clothes from G’s bag after he had gone to sleep. G unknowingly went to camp with no spare clothing, meaning that he was embarrassed, ashamed and felt like an outcast when he ended up wet from activities and did not have a change of clothes.
This was an example of the father being needlessly mean, callous and petty to a young boy. He says that, following her own argument with G, the mother insisted that the father remove some surplus items from the bag that G did not need, and that she told him she would fix his bag later and make sure that everything was in it. I reject the father’s evidence about that, which attempts to blame both the mother and G for the situation.
In the Family Report interview, the father did not deny that he removed and hid items from G’s bag, but said that he only removed additional items above and beyond what was supposed to be taken. He alleged that G still had all the things he needed. I reject that that is the case. The school themselves appear to have been the parties who made a referral of this matter to the Department of Communities and Justice. Removal of G’s items was a particularly mean-spirited act on the father’s part.
In July 2019 the father was having a work-related call on his mobile phone in the living room. G walked in, turned on the television and the father thought it was too loud. The father told G to turn the TV off. G argued back with him. The mother then came into the room and she entered into an argument as well, telling the father that he had never liked G.
I pause here to make this observation. I am sure that G was “pushing the father’s buttons” in walking into the room and turning on the TV when the father was having a phone call, but the point that I find most interesting here is that the father was on a mobile phone, not a landline. The father could have walked out, he could have de-escalated and continued his call by going somewhere else. Given that G wanted to watch the TV, it was easier for the father than for G to use a different room.
In any event, the sequel to this rather unhappy “flare-up” is that the father ripped the antenna out of the TV. The mother was upset about the situation and then went to the car and tried to take the children with her. The father would not let her take X and Y; the mother ended up calling Police who were too busy to attend the home that day.
Police attended the next day and indicated that they could not lay any charges because the television in question belonged to the father. They did however give both parents advice, once again, about the need to, if they were going to separate, do so properly and not expose the children to their disputes.
It seems that the father left the home not long after this event and that the children were with the mother, but it is somewhat murky in that the father was still staying at the home sometimes and still had a set of house keys. The mother herself said that there was not really a “clean break” at that time.
In September 2019 the mother had car problems. She invited the father to stay over for the night, but the next day she wanted him to leave. He left and she then could not find the car keys and ended up calling Police. There is a likelihood that the father moved or otherwise hid those keys, given that he was no doubt annoyed and probably felt that he had done the mother a favour in fixing up the car only to find himself “kicked out”.
At that time, the Police assisted the father to collect and remove some of his items from the home.
On 30 September 2019 - so at a time when the relationship was particularly fractious - the father attended at the mother’s home and knocked on the door. The mother told the children not to answer and on this occasion the father retrieved X through a window at the property and took her to McDonald’s for an ice cream. He knew that the mother did not consent or agree to this. She rang the Police. When they arrived, the father also arrived at the home, and the father simply said that he had taken X out of the window “when she came up to it”. This is just another example of coercive behaviour on the father’s part.
In November 2019 the father again attended the mother’s home. On this occasion he was making reference to her as “babe” and “darl”, which the mother apparently objected to, telling him they were no longer in a relationship. When the father left, the mother then discovered that her remote door locking key for her Motor Vehicle had been snapped and was no longer useable. The mother had seen the key earlier that day. In the witness box the father denied snapping the key but said that he “didn’t really remember” what had happened that day. I am satisfied that the father snapped that key. It is consistent with other behaviours that he engaged in and it would also be consistent with a heightened state of anger or upset at the mother rejecting him on that occasion, or perhaps more accurately, rejecting his advances.

I should also note that Police recorded on this occasion (exhibit 7) that when they spoke to the father he did say he had been arguing with the mother about G. He told Police that G was “just a spoiled child”, which very much sums up the father’s somewhat hostile attitude towards this young man.
In November 2019, again with the relationship being “on and off”, the father attended the mother’s home in his car. He sat in his car in the driveway for a while before eventually leaving. When the mother then left in her car, she saw him following her. This was stalking-type behaviour on his part. It led, effectively, to the second AVO taken out to protect the mother from the father In December 2019. This is another AVO that the father consented to “without admissions”. This AVO ran for six (6) months.
The relationship between the parents was clearly spiralling and was headed towards its inexorable demise. On 30 December 2019 the father retained X in his care. He wanted to have her overnight, but the mother refused, telling him that he could see her at a park while the mother was present. It is quite clear that the mother did not trust the father not to take X with him. Notwithstanding, at the end the father still refused to return X to the mother. When the mother went back to her car, she saw that her house keys were not in the console of the vehicle. She called the father to ask him to bring the keys to her.
It is a little unclear to me exactly what happened with the mother’s keys. It is certainly possible that the father hid them, but the evidence about her keys was somewhat confusing in that she did find a house key later on back at the home. It is also obvious that the mother was flustered, so I do not make a positive finding that the father took the mother’s key on this occasion or that he otherwise hid it.
In any event, the mother got home and the father arrived not long after with X in his car. The mother attempted to get X out of the car, but the father pushed her away. It was a time of high emotion between these parties which reflects the unhappy nature of their relationship. The father then took off with X in the car.
That night, or perhaps 31 December 2019 – the evidence is a little unclear – the mother went to the father’s house to collect X from him. The father at that time was living, and still lives, in a mobile home at Suburb P about ten (10) minutes away from the mother’s home. The mother wanted to collect X. She had G with her at the time and he witnessed some of what followed.
The mother attempted to get into the door of the house so that she could get X and take her with her. The father blocked her access, effectively positioning himself against the door jamb.
I should record that the father is a large, muscular and well-built man and his evidence is that he did not push the mother at all, but it seems that she bumped into him. The mother’s evidence about the issue was confusing. She said in her affidavit that she had been “pushed” by the father but in the witness box she was not so sure about it at all. She said she “felt” she had been pushed, but the evidence was all a little bit confusing. She did say that there were only about three (3) steps up to the front door and the landing was only about fifty (50) centimetres wide, noting that it was a mobile home, so it was not big.
Clearly, the mother was very emotional at the time. Frankly, I find it quite plausible that the mother could have attempted to push her way past the father in an agitated state trying to get her daughter back and simply bouncing off the father’s frame and falling back down the steps. I initially had some scepticism about that version of events, but the more I reflect on the evidence in this case and particularly having seen the father’s solid frame and noting the nature of the property, I consider it is the most likely situation - that is that the mother fell down the steps; the father did not push her. I make no adverse finding about the father in that respect.
Nonetheless the relationship between the parties was spiralling. The mother attempted again to get the child, X, back from the father on 3 January 2020, but he would not give her back and on that occasion he pulled the child back out of the mother’s arms. It is regrettable that X found herself in the middle of that very unhappy conflict.
However, it is noteworthy that the mother was able to get X back, either on 5 January or 6 January. Again, the evidence is a little bit conflicting about this date, but the mother got her back in circumstances where the father and she agreed to have dinner as a family. That is to say, the mother was able to get X back only after agreeing that they have dinner together as a family. I regard that as a classic example of the father having all the power in the sense that he had the child with her, he was the one who wanted to have the family dinner and I regard it as coercive.
The father’s evidence is that the mother was having “many manic episodes” at the time. I reject his evidence in that respect and consider that he is deflecting.
Some six (6) days later, as set out in exhibit 8, the father had the children in his care. The mother was worried about whether the father was going to be giving X her medication. She was trying to contact the father to get him to confirm, but he would not respond. The mother requested Police go around and undertake a welfare check, which they did.
Police found the child sleeping soundly. Notably, the father told Police that the mother had “bipolar” and she was calling the police all the time under the “guise of concern for welfare” and that this was her way of trying to obtain custody.
I pause here to observe that that father said in the witness box that he had told the mother that he had given X her medication. I reject that evidence. I do not believe the mother would have sent the Police around for a welfare check if that was true. Moreover, one would think that when Police did undertake the welfare check, that the father having told the mother about the medication would have been the first thing the father would have said to Police, yet it does not appear in the subpoenaed record.
Notably, the father also said to Police on that occasion that he would consider returning X the next day to the mother if she was in a good state of mind.
I accept the mother’s evidence that not long after this period, or certainly around this period, the father made a “one-off” suicide threat to the mother by saying he would kill himself if the mother did not stop stressing him out. It does not appear that this was anything more than a cry for help on the father’s part. It is perhaps consistent with him experiencing significant stress around the relationship issues. In this respect I should also add that it is also agreed by the mother that during the relationship she also felt depressed and at times felt like there was not anything worth living for.
In February 2020 at a time, clearly when the relationship was particularly difficult, the mother noticed her Notebook had gone missing. She went to Police saying that it was gone and had been gone for a few weeks. Given all of the other matters that were happening between the parties and the fraught nature of their relationship at the time there is a real likelihood that the father removed or hid that Notebook, but I do not make a positive finding about it.
In 2020, the mother allowed the father to stay in the home to care for the children while her own mother was ill. Her mother passed away and the funeral was to occur in 2020. It is common ground that the children did not get to go to the funeral. The mother wanted them to come. The father would not bring them. I reject his evidence that he was “protecting the children” from the situation. I consider that he made a very emotionally difficult time for the mother much worse, and needlessly and callously so. It is clear that the father did not have a high opinion of the maternal grandmother, as is evident from various criticisms he makes of the mother by reference to her late mother and I consider that the father was being spiteful and coercive on this occasion.
Father retains X & mother files these proceedings
On 12 March 2020, the father again removed X from daycare without the mother’s consent. When the mother went to collect her that afternoon she found out that X was not there. She called the father, and in a situation where she had no real power, she agreed that he could keep her for the night. This is fundamentally what led to the institution of these proceedings.
On 13 March 2020 the mother got into the car at home with Y. She was about to drive off when the father drove in. The mother had messaged the father to do a changeover for X at Suburb H. Notwithstanding, the father came to her house. He told the mother that X “wanted to go shopping with him” rather than go with the mother.
I should record here that at that time X was not even four (4) years old. It was an example of the father trying to dominate and coerce the situation. I accept that the mother became angry on this occasion, feeling that she was being coerced and controlled - which she was - and that she yelled at the father, including verbally abusing him, which was witnessed by X. She tried to get X out of the car and the father left. He says that he “panicked”. I reject his evidence about that. He says that the mother hit his car. I reject that evidence.
The mother subsequently called Police who conducted another welfare check with the father. Police reported back to the mother that the father was not returning X to the mother’s care due to concerns about the mother’s “mental health” – just as the father had earlier said to Police. In this respect, I reject the father’s evidence that he was genuinely fearful of the mother or had any real concerns about mental health issues or her care of the children. He made no attempt to retrieve Y from the mother’s care; he did not bring Court proceedings; he did not himself involve Police or the welfare authorities.
Notably, the father told Police at this welfare check that he would return X to the mother on 16 March 2020, some three (3) days later. He did not. Either the father did not ever intend to return X or he changed his mind, but either way he was behaving in a coercive and controlling manner.
It was against this backdrop that on 18 March 2020 the mother filed her Initiating Application seeking a recovery order, which was duly made five (5) days later.
Interim hearing & orders
At the interim hearing on 30 April 2020, the parties consented to an order whereby the father spend time with the children each Sunday from 9 am to 12 pm, as well as having telephone or electronic communication twice a week. There was a non-denigration injunction put in place.
Notwithstanding this order, the father pressured the mother into giving him extra time with the children and she relented, including giving him overnight time.
The relationship between the parties continued to have some ambiguity, although on anyone’s version they were separated. I consider on the evidence that the father was still “somewhat invested” in his relationship with the mother and that at times this clouded his vision in terms of his actions and his recognition, or lack of recognition, of what was best for the children and the need for there to be orderly arrangements in place.
On 11 June 2020 the father filed a Response seeking equal shared parental responsibility and week-about time.
Child Dispute Conference
The Court referred the parties to a Child Dispute Conference on 15 June 2020. The Memorandum of that conference reveals that:
·firstly, each parent was accusing the other of perpetrating family violence. I pause here to observe that the family violence perpetrated by the father was vastly more significant than any abuse coming from the mother towards him;
·the father told the Court Child Expert that he “still loved” the mother;
·the Court Child Expert was concerned about the parents contacting each other and suggested that the interim orders be clarified as to avoid parent-to-parent communication unless it was about the children. She also observed that if the father did not comply with communication orders, any such non-compliance would lend weight to the mother’s concerns about the nature of the father’s behaviours and his capacity to be manipulative.
Notably, the Memorandum records that the father was wanting to spend the upcoming school holiday period (two weeks) with the children. At this time, Y was just sixteen (16) months old. The father had said he had never even had overnight time with Y to that point. When asked by the Court Child Expert whether the children would miss the mother if that holiday occurred, the father said that “X misses him enormously” - thereby deflecting the question and, with respect, not really showing any insight into the children’s needs.
The Court Child Expert recommended that the father attend some parenting courses, particularly courses focused on the emotional needs of children. She recommended two (2) organisations. The father did not in any adequate way follow up on these recommendations. He said he had enrolled in one particular program but had been unable to set up Zoom. In my view, he made only a limited effort and, logically, his limited effort was because he did not really think he needed to do the course.
Interim orders amended
On 25 June 2020 the mother again rang Police, complaining that the father was pressuring the children to be able to see them on a videolink, contrary to what she wanted. She felt that he was undermining her parenting.
On 2 July 2020, the mother made an oral application in Court to restrain all parent-to-parent contact. This was dealt with the next day, 3 July 2020, when an interim order was made restraining the parents from contacting each other except in an emergency and where it was impractical to communicate via the legal representatives. An ICL was also appointed.
Notwithstanding those orders, it is clear that the parties did continue to communicate with each other. Broadly speaking, the father was regularly late for handovers and the mother was thereby forced to have to communicate with him. The father also communicated with the mother on occasions even in the face of letters from the mother’s solicitor saying that all communication was to be through the solicitor. Sometimes the mother relented and simply contacted the father directly because it was just too difficult to abide by the orders for there to be no contact.
Further interim orders
On 11 July 2021 the parties entered into an interim consent order whereby the children were to live with the mother and spend time with the father from after school to 6.30 pm Monday, Tuesday and Thursday and see them each alternate weekend from Saturday to Monday. I record here that there was no phone or electronic communication contained in the orders. Those orders had effectively lapsed upon the making of the orders of 11 June 2021.
Father “lashes out” at mother verbally in leadup to trial date
In the lead-up to what should have been the first trial of this matter on 28 April 2022, the father lashed out at the mother in ways that were broadly consistent with behaviours he had engaged in during the relationship, and in ways that were quite telling.
I have listened to all of those recordings, which collectively form exhibit 12.
On 8 February 2022 the father left a voicemail message with the mother telling her not to be selfish and saying:
We’ve got the ribbon organised - - -
this being a reference to a [motor vehicle] he had bought for his business –
- - - so that they can see it.
this being a reference to the kids.
Mate, don’t be jealous of my success, just because you’re – you know, you’ve made your bed, mate, you know, with your brother‑in‑law and sister and old man, mate, and all turned against me and stabbed me in the back, so don’t be jealous of my success, okay? You know, and, look, it only cost me $100 a week to pay it off. You could do the same thing. I don’t know what the matter is with you, you know. I don’t know why you’re so jealous all the time. Every time I, you know – you’re that jealous and selfish and self-centred, you know.
The father went on to refer to child support issues, and I should record here that his attitude to payment of child support to the mother can be summarised in one word – “recalcitrant”.
In his message he goes on to say that he was going to build a future for him and the kids and:
You know, we will soon see in 10 years’ time who’s sitting where and what you’ve done, you know. The kids will be able to see what you’ve done, okay, and it will be able to be explained to them what has really happened. Okay. I’ve done everything for you when I was with you, [Ms Sims]. Like you said, we are separated now. I don’t want a bar of you now.
And I pause here because what the father goes on to say falls within the category of derogatory taunts and indeed “slut shaming”, which the mother referred to as being a constant theme of the relationship:
You’ve been with too many fellas. I wouldn’t touch you, mate, with a fucking 40-foot pole, okay. You’ve just been with too many fellas. Okay. You’ve spread yourself around too much.
This was a disgraceful thing to leave on a voice message for the mother. Notably, when asked by the ICL’s counsel why he had said these things, the father said “it was the only opportunity” for him to tell the mother these things. He said he couldn’t say this to her face or he would get murdered. His response to that question really says it all. He shouldn’t have said any of it.
On 13 February 2022 the father again left a message on the mother’s voicemail saying that he was telling the kids that he was going to go out and get them coffee:
And, you know, you have to be a control freak again, you know, what your fucking – you know, with your, fucking, bipolar and shit and, you know, start screaming out, mate. You act – what you’ve done with all this Family Law Court shit is something a common fucking prostitute would do and that’s all you fucking are, mate, what you do. Mate, your legs are open to fellas every fucking weekend. You’re unbelievable, you know. I can’t see how you can look yourself in the fucking mirror with what you do. Anyway, listen, I’ve got something to do. I’ve got to be somewhere early Saturday morning next week so, you know, you might have to have the kids next Saturday night, okay. Just to let you know. So you will have to tell the fellas that your legs aren’t open that night, you know. Bloody – and as far as bleaking out all over me bloody car frame and carrying the kids out, “You can’t pay your child support”, fucking hell, you’ve screwed me over for 15,000. You stand in Court. You’re like a fucking common prostitute, mate, you know. You waste all this money. What about child support? Whenever you’ve opened your legs, you’re a fucking joke, mate. A pathetic joke.
In April 2022 the child, F, contracted COVID and the mother’s household had to go into isolation. It was agreed that the father would keep the children in his care. He did so for approximately ten (10) days, but then when he returned the children he wanted to immediately see them again the following weekend in accordance with the orders.
It may strictly have been within his power to spend that extra time with the children, but it was clearly a situation where there had been a significant disruption to their usual routine with their mother and a little bit of good grace and common sense might have caused the father to rethink his position in that regard.
Instead, when the mother said she did not want him to have the time on the weekend, given that she had not herself seen the children for ten (10) days, the father told her she had “mental limitations” and was a “control freak”. He also said to the children in the face of the mother’s refusal for him to have the usual weekend, “Mummy won’t let you come to my place this weekend. Sorry, guys”, and the children then started crying.

On 15 April 2022, within a fortnight of what would have been the final hearing had it been reached, the father again left a message on the mother’s voicemail referring to Easter which said:
Anyway, stop ignoring my calls and fucking answer, mate, you know, because I’m getting sick of it with your stubbornness and your fucking flirting around with fellas all the time, mate, and, you know, the fellas are more important than the kids. All your kids are fucking falling apart, mate, you know. Give me a ring back.
The next day he left a message complaining that the mother was not communicating with him, and his message went on to say:
You know it is my weekend with the kids, [Ms Sims]. It doesn’t matter, you know, if they stayed with me while you were in isolation. That was for health reasons. What is set in concrete is, what, every weekend, mate, okay, and you can’t be changed at will. That’s it. You can’t just chop and change like you do all the bloody time, you know, and you shouldn’t be leaving the kids on their own, anyway. I know you’re leaving them on their own while you go out and have, you know – have a flirt around with the fellas, but, mate, as far as my kids go, you can’t go leaving them with somebody who’s not a responsible adult. It is just being a bad parent. It’s a bad mother. You can’t, you know, as X’s parent and as Y’s parent you don’t have my permission to do it. I don’t see how you get off thinking you’re the absolute boss of them, in absolute control and you do what you fucking like, you know. It’s not on, mate.
During the Easter holidays the mother in fact booked vacation care for the children during her time with them. Notwithstanding, the father took X out of vacation care and spent block time with her. There was no block time provided for in the orders.
On 21 April 2022, a week before what should have been the final hearing, the father left a message on the mother’s phone which read:
Yes, [Ms Sims], don’t bother coming to my house at 5.30, because I’m going to –
it doesn’t make sense the part that follows, but it goes on to say:
I will drop the kids off 6.15. I don’t want you bring any weirdo to my house or anything or any of your boyfriends, you know, like, so – if you don’t mind. Okay.
It then goes on to say that he would drop the children off at the mother’s place or at sports at 6.15 or 6.30, whichever one suited. He then continued:
And I don’t understand why you’re doing this just before the Court case and stuff, mate, because, you know, it was only, like, two weeks ago you’re trying to get me to come pick you up at [Suburb H], sitting right next to me at the gathering we had at the beer house and nothing has happened between now and that. So all you’re doing is doing the usual thing, causing trouble, stirring up shit, got your legs open and up in the air with all the fellas, mate. So we know about you. We know all about you, right. We know all about you and you’re trying to pull this safety thing to get sympathy through the Court, mate. I’m going overseas at the end of the year for three months. I won’t even be here. So you’re going to be stuck with the kids then, anyway, so – so, look, pull your act together, mate. See you later.
I pause here to observe that the father was not in fact going overseas. He admitted that he was just “blowing off steam” and, in his description, “talking like an idiot” on the spur of the moment.
The sixth voicemail recording on 24 April 2022 states as follows:
Yes, [Ms Sims]. I’ve come to drop the kids off. Some stranger appeared from [E]’s room. I don’t know what sort of weirdo house you’re running there, but – and reckons you’re not home. Reckons his dad is staying there now, so I would say it is some weirdo you are fucking from [Town Q] or something, you know. Yes, mate, honestly, mate, I’m that worried about my kids in your care, because you know the amount of guys you’re with all the time. I guess the other one doesn’t know about all the other guys, either, does he? Honestly, I know all about you, [Ms Sims]. I know everything about what’s going on, so don’t think I don’t, because I do, but, anyway, you’ve got that boy appearing from [E]’s room. Look, honestly, I’m always speechless at what to say to you, it’s that weird what’s going on there. Anyway.
Like the previous message in which he says he “knows what is happening” at the mother’s home, there is a uncomfortable flavour of potential stalking in the father’s voicemail.
Final hearing is not reached
On 28 April 2022 the matter was meant to come on for final hearing but was not reached. A section 102NA order was made.
It is noteworthy that the mother’s affidavit for that trial had apparently stated that the current parenting arrangements “were working well for the children and the only issue was negotiating the changeover location”. Given the voicemail messages the father had only so recently left on the mother’s phone, it shows:
·the extent of abuse that the mother was willing to put up with that she would have even deposed to such things; and
·that the father himself was the one who drew to the Court’s attention that the mother had deposed to these things in that affidavit. In many ways, that reveals his lack of insight as well.
Problems continue
In April 2022, the father was trying to get the mother to agree to let him take the children at sports. She says the children became upset when she would not agree. By way of some background context, at this stage there was some additional time occurring as between the father and the children as agreed with the mother. Effectively it was the father turning up at the house or at social events, but there were also some occasions when the mother initiated the father caring for the children as well.
In May 2022, the father started calling the children during their time with the mother. This was despite the fact that there had been no phone communication provided for in the orders since 11 June 2021 and the father had not in fact been speaking with the children by telephone in the mother’s care for about twelve (12) months.
The father was pressuring the mother to spend more time with the children. He wanted to be able to have that phone communication.
On 6 June 2022, the mother’s solicitor Ms Lawson emailed the father saying that the orders did not provide for phone communication and that he had not been having it for 12 months. But notably, Ms Lawson’s email went on to say:
However, if you are insistent in calling the children this will need to occur at 7 pm and not at the stated 4.30 pm and 5 pm.
those times being a reference to the previous interim orders:
As you are well aware, our client is employed and is not able to facilitate the calls any earlier than 7 pm. We are instructed you are continually harassing our client at work and this needs to completely stop.
I pause here to say that even with the benefit of a solicitor the mother was still placating the father. The fact that the email said:
…if you are insistent in calling the children –
demonstrates acquiescence and the power imbalance, even with the benefit of the mother having a solicitor on the record.
The father’s response was to criticise Ms Lawson suggesting that she was telling the mother not to let the children see the father beyond the Court orders. His email also said that because his time had been reduced to a bare minimum:
I expect that paragraph 2 and 4 of the orders of 30 April will be upheld and will be pursuing this.
Paragraph 2 was a reference to the orders of 30 April 2020 which provided for the father to spend Sunday 9 am to 12 pm with the children and paragraph 4 provided for the two (2) phone calls per week on Wednesday and Friday afternoons.
As I have indicated, efforts by the mother’s solicitor to get the father to put all correspondence through her office, broadly consistent with the previous interim orders, were not successful. It was sometimes easier for the mother just to communicate with the father, particularly when he was running late to handovers.
The parties argued about the June/July 2022 holidays. The father was wanting to have block time with the children, notwithstanding that it was not provided for in the orders. The mother in fact offered the father week-about time, but it seems as though the father “bit off his nose to spite his face” as he did not take up her offer. He also accused the mother of apparently allowing a new boyfriend’s children to bully their children, including leaving their children unsupervised or in the care of “juveniles”. This prompted the mother’s solicitor to accuse the father of continuing to behave in a controlling and coercive manner which, in my view, was an accurate summary.
On 16 July 2022 the father texted the mother saying:
You can’t even pass on [X]’s medical needs. The kids are very sick. They have obviously caught all this stuff through your boyfriend who caught it off all the prostitutes he visits before coming to see you.
which was again a disgraceful, derogatory sexual taunt by the father of the mother, which I note that she did not respond to.
On 17 August 2022 the father messaged the mother telling her the only reason she wanted to be the primary parent was for money reasons. That is, she was using the money to benefit herself and that it was child abuse with her neglecting the children’s education and their development.
The maternal grandfather’s funeral occurred in 2022 and, like the maternal grandmother’s funeral, the father added a lot of stress onto the mother at a time which was entirely avoidable and rather callous.
Given the funeral, the mother asked to be able to return the children to the father at 5 pm Saturday instead of 10 am. The ICL supported this request, emailing the parties to say that the mother’s request “seemed very appropriate and that she hoped the father would accommodate it”. He flatly refused.
The mother’s solicitor asked for compassion and suggested that the mother would have a “reasonable excuse” for returning the child late.
The father responded proposing handover at 12 pm rather than 5 pm and saying that the proceedings commenced because of the mother’s psychological breakdown after her mother died, resulting in abuse of the children. This is a grossly unfair and callous characterisation of how these proceedings commenced. The father also said he could not see why he should miss out on a day when they had made plans and that he had only a small amount of time with his children which he made the most of.
The father said that the orders were very one-sided and unfair and that if they were fair and if there had been agreement to the fifty-fifty arrangement “I would feel very lenient in these sorts of circumstances to give Ms Sims an extra day”. Such a pitiless approach from a pitiless man. It was coercive and controlling behaviour.
The mother did not, however, relent and in fact she returned the children as she had originally proposed and I consider that, in the unusual circumstances of this case, it was entirely appropriate for her to do so.
In October 2022, the mother pulled Y out of daycare due to financial reasons. The father took a swipe at her by saying that he did not want “Y staying home with you guys while G is wagging school and playing video games all day”. He also spoke to X about the situation, because X later said to the mother, “You know, mum, Y shouldn’t be staying home with you. He should be at daycare”. The father directly involved X in these adult issues.
In early November 2022 the mother’s solicitor again tried to slow down or stop the frequency of communication between the father and the children. The complaint was that the father was trying to talk to the children every night, as well as communicating regularly with the mother. The father’s response was to email Ms Lawson asking her to refrain from contacting him unless it was of extreme importance as he found her emails and bullying tactics menacing “and I feel I may have to block your contact”. In fact the father texted the mother afterwards to say that he had blocked Ms Lawson.
It does not take a great deal of thought to realise that a solicitor dealing with a self-represented litigant does not want to have to telephone them (leading to potential disputes about what exactly was said, indeed, almost inevitable disputes) nor to have to send letters which take a day or more to arrive. Email is a far better method of communication. The father was trying to put a block on the mother’s solicitor, running quite contrary to the spirit of the earlier orders. Indeed his behaviour demonstrates that he was not really in any way cowed into submission nor, indeed, in any way did he feel intimidated or bullied by Ms Lawson.
On 15 December 2022 the father left a message with the mother on her voicemail accusing her of treating the children as “just a free meal ticket” and suggesting that fifty-fifty custody was the appropriate result.
On 7 January 2023 the father texted the mother complaining about school absences and saying that G was ruining his (own) life and that he was a delinquent and ruining everyone’s life around him. He also sent a message to the mother to the effect of:
I pay a lot of tax, [Ms Sims], and I’m a real man. Far better than the sleazy things you’ve been hanging out with. You’re the one that’s in no position to lecture me. You’re just like your mother.
this being a reference to the deceased maternal grandmother.
As I had indicated, on 24 March 2023 the Family Report was released which resulted in the radical change to the dynamics and it is common ground that the father has not communicated or spent time with the children since this Court made interim orders.
THE LAW & THE STATUTORY PATHWAY
These being parenting proceedings, the Court has to make orders that are in the “best interests” of each of the children: s 60CA of the Act. The mandatory “best interests considerations” are set out in s 60CC(2) and s 60CC (3).
Pursuant to s 61B of the Act, “parental responsibility” for a child means all of the powers, responsibilities and authority which by law parents have in relation to children. Pursuant to s 61C, each parent has parental responsibility subject to Court orders. Section 61DA(1) provides that, when making a parenting order, the Court must presume that it is in the best interests of the child for the parents to have equal shared parental responsibility. Section 61DA(2) provides that the presumption does not apply if the Court has reasonable grounds to believe that a parent has perpetrated family violence.
If the Court makes an order for equal shared parental responsibility then the statutory pathway in section 65DAA is triggered and the Court must consider making an equal time order as the first option. In this particular case it is an agreed position that the mother ought to have sole parental responsibility and so that statutory pathway falls away.
The concept of “unacceptable risk” is also a significant matter that arises in s 60CC. In particular, the High Court M & M (1988) FLC 91-979 held that a Court cannot make an order which exposes a child to an unacceptable risk of abuse. In that case it was a sexual abuse concern, but it has since been held that the unacceptable risk test is good law in respect of broader and other risks to children and remains good law notwithstanding subsequent changes to the Family Law Act. In its recent decision of Isles & Nelissen [2022] FedCFamC1A 97 the Full Court set out relevant law concerning the assessment of risk and the application of the unacceptable risk test.
Also relevant in this context is s 68B of the Family Law Act which provides that Courts may make such orders or grant such injunctions as it considers “appropriate” for the welfare of a child, including injunctions to personally protect a child, a parent or a person with whom a child is living, as well as injunctions restraining a person from entering or remaining in certain places or attending at certain locations.
BEST INTERESTS FINDINGS
I turn then to specific best interests findings in this case against the backdrop of the evidential findings that I have already made.
In terms of s 60CC(2)(a), I am satisfied that it would be of great benefit to the children to continue to have a meaningful relationship with their mother. They will be doing so regardless of the order that I make.
I am satisfied that it would be to the benefit of the children to have a meaningful relationship with their father, but the question is whether he poses an unacceptable risk of harm to the children which cannot be reasonably ameliorated and which outweighs the benefit of such a relationship. That is to say, the question is whether there would be a net benefit to the children in maintaining a relationship with their father.
Against that backdrop, I turn then to section 60CC(2)(b).
I have already made numerous detailed findings in relation to coercive and controlling behaviour by the father towards the mother throughout the relationship and subsequently. I am satisfied that the father has engaged in longstanding coercive and controlling behaviours; that he has damaged property or otherwise hidden it; that he has regularly preyed upon the mother’s somewhat vulnerable mental health; as well as causing the mother to doubt herself at different times by simply suggesting that it is “her mental health” that is the problem, not his behaviour or his requests.
As is clearly evident from the material, and for want of a better expression, the father has “slut-shamed” the mother, and he has done so in an insidious and ongoing way. The recordings which are exhibit 12 were suggested to have been simply said “in anger”. I do not accept that that is the case. The recordings demonstrate the father being quite calm, indeed, chillingly calm in his “slut-shaming” of the mother. I accept that the father may have been motivated by anger at least in part, but I am also satisfied that the father is well used to engaging in such behaviours.
The father has destroyed property belonging to young G; he has grabbed him around the throat as I indicated earlier. He has told G that G is responsible for most of the arguments between the parents, which is an unfair burden to place upon him. Even if G was probably responsible for at least some of the arguments that occurred, it is not something that should be said to him. I accept the mother’s evidence that the father often called G “a wimp” or even referred to him as “gay”. It is particularly troubling in this respect to read paragraph 79 of the Family Report:
There has also been an issue raised with [X] saying derogatory things to both of her older brothers when she returned from the father’s home.
X is reported to use expressions such as “gender bender” amongst others of a similar connotation when speaking to her brothers. The mother is concerned about the impact this could possibly have on their sibling relationships if it continues. The father reported that he does not use terms such as these and that the children would not have heard them in his care, notwithstanding that:
·all of these things are recorded in paragraph 79 of the Family Report, and;
·that the report writer goes on to say that: “In X’s interview she reported that the father refers to her older brothers as ‘weirdos’”.
The father made a number of comments during his Family Report interview which suggested that he struggled with accepting F’s gender change. I accept that the father has indeed engaged in such conduct. This is not to say that X would never have heard a comment, perhaps from G, along these lines as well, but to simply deflect all of it onto others as the father is so prone to doing, rather than taking responsibility for his own behaviours, is not something this Court accepts.
I also accept the evidence of the mother that there was an occasion when the father humiliated G by putting his mattress out in the front yard after G had wet it, writing a message on it, “Kids have pissed on mattress”. The father denied doing this. I reject his evidence and prefer the mother’s evidence.

In terms of s 60CC(3)(c), both parents are as involved in the children’s lives as they can be.
In terms of s 60CC(3)(ca), the father has previously been assessed to pay the minimum rate of child support but he still managed to accrue a debt of something like $7,000 or $8,000 by the time of the final hearing. He now pays $163 a month to the mother. In the witness box he said he had disputed his past child support assessments but that a long time ago he had “gotten over” any ill-feeling he had. I reject his evidence about that as his voicemail of 15 December 2022 tells me exactly the contrary.
The father only entered into a payment plan in the shadow of a trial and, who knows, perhaps even on legal advice, but his attitude to child support has been generally resistant and recalcitrant. Nonetheless, it is a relatively minor consideration in the grand scheme of this case. It is more reflective of the father’s general attitude.
In terms of s 60CC(3)(d), changes in circumstances, the children do not presently see their father. It will be a significant loss to them if this continues, especially X. If the father is re-introduced into their lives, the Court needs to weigh up the risks and the benefits to that. This will be addressed when I weigh the competing proposals shortly.
In terms of s 60CC(3)(e), the father lives close by the mother. There are no real issues that arise.
In terms of the attitude and capacity of the parents in s 60CC(3)(3)(f) and s 60CC(3)(i), the mother has adequate parenting capacity but not fulsome capacity. She has a lot on her plate, particularly given behavioural issues with G, issues relating to F, particularly concerning his gender, and her own mental health challenges that she negotiates. She does not have “a lot left in the tank” to cope with the father engaging in conflict, pressuring and put-down behaviours or being coercive towards her. She simply does not have that spare capacity.
The Department of Communities and Justice have assessed the mother as having a vulnerable personality type and I agree with that. She has some weaknesses, restrictions or limits there.
In terms of the father, as a parent he has a lot to offer the children in some ways. He is a very active father. He enjoys his time with them. His affidavit talks about taking them fishing and other activities with them. He talked in the witness box about the children liking to go for a swim at the premises where he lives. He clearly is very affectionate with the children and I think one thing that can be said about the father in this case, despite the significant criticisms the Court inevitably has to level at him, is that he has done a remarkable job in attending to his daughter’s reading needs in particular, such that she has gone from struggling to winning awards. He has put an enormous effort into his daughter to her evident benefit - and I fully record that in these reasons. I have no doubt he loves both of his children and, particularly, that he has a close relationship with X and she with him.
There are, however, some significant negatives in terms of the father’s attitude and capacity as identified in the course of the hearing and by the Family Report writer. She had real concerns about the father’s apparent deficits in his capacity for empathy, which is rather a glaring and fundamental personality trait and she also raised concerns about the father’s own mental health or psychological profile. She gave the example that if he was truly empathetic about the mother’s mental health issues, then he did not go about it in a way that showed that he actually cared. Instead he “used the information in his pattern of denigration of her in the assessment”, and that is exactly what he did. He also did so in his affidavit, and with Police.
The Family Report writer also said that the father’s lack of empathy was not something that was able to be “teachable”, by which I infer that what she means is you cannot teach empathy. Again, as I indicate, it is a fundamental human trait.
The father also seemed to lack a capacity to consider the impact on the children of being exposed to family violence. The Family Report writer referred to the assault in the car in December 2017 and observed that the mother talked about how upset X was, whereas the father downplayed X’s trauma. He merely observed that X was calmed by a pacifier, but he could not help himself in that he then went on to criticise the mother for having used the pacifier for too long on X and possibly causing long-term damage to her teeth.
I, too, have grave concerns about the father’s seeming lack of empathy, but his co-parenting capacity is also limited, in my view. He has denigrated the mother heavily in the proceedings. He has denigrated her to Police, he has denigrated her to Court Child experts. At times he has displayed a distinct lack of basic respect for the mother as a parent and even as a human being. I accept the mother’s counsel’s submissions that the father has engaged in what might be called “psychologically trolling behaviour that demonstrates a lack of insight”.
The father has been needlessly punitive towards the mother’s older siblings and particularly towards G. Telling X that her older brothers are “weird” is a matter of grave concern to the Court. He also denigrated the mother to X, as I referred to previously and, in particular, at paragraph 114 of the family report it is recorded:
[X] is perceptive of the conflict between the parents. [X] reported that the mother and father are “not nice to each other at all”. She attributed the cause of the conflict to the father’s treatment of her older brothers and the mother. She reported that the father “says mum is a bitch”. [X] used this in the interview to illustrate “how mean” the father was to her. [X] reported she was unaware what the mother thinks or says about the father.
This is rather a damning child interview because notwithstanding consent orders to the effect that there be no denigration, it reveals the father openly denigrating the mother in a way that inevitably shows great disrespect for her and undermines her as a parent.
I accept that the father has broadly tried to “drive a wedge” between these children and their older siblings in that he has treated the older siblings much less favourably, particularly G. I would also add that up until the very end of the hearing – by which time the evidence supporting his case was very much in tatters - the father’s proposed orders had demonstrated a lack of child focus, if not a sense of entitlement.
In relation to s 60CC(3)(g) - the children’s characteristics - I have already observed that X has a medical condition and I have dealt with her issues already and I will not repeat myself. Y himself has some speech therapy but is otherwise doing reasonably well.
It is well known that there are risks to children’s psychosocial development if exposed to family violence. It is possible, though no finding can be made, that Y’s delayed speech issues may relate to some of his traumatic experiences in the parents’ household.
I have addressed family violence in 60CC(3)(j) and (k) at great length, as well as referring to the family violence orders. It is common ground that the children have been exposed to the family violence between the parties.
One other matter I should raise, though it is perhaps relatively minor in the grand scheme, is that the mother accuses the father also of cutting cords and damaging property. I have already referred to the lawnmower, but in particular the father cut some cords to the blender as well. I am satisfied that he did so purely to render the blender inoperable.
In terms of section 60CC(3)(l), if I make an order for “no time”, then there will be no further litigation - subject to the father perhaps attending upon courses and demonstrating significant change in his life. The onus will be on him to do so.
If I make a final order as proposed by the ICL and, essentially, acquiesced in by the father, there is a real likelihood of further litigation. But I do not consider, in any event, that I can make the final order the ICL and the father propose for reason that I will come to shortly.
If I make the order proposed by the ICL and acquiesced in by the father as an interim order, then I guarantee that there will be future litigation in this case.
In terms of s 60CC(3)(m), although perhaps it arises in a s 60CC(3)(f) context as well, I record that the mother, as I have indicated, does have mental health issues. She does take medication to manage her condition. She is a person who has managed her condition as best she can. I have before me as exhibit 3 a report from her psychiatrist, Dr S, of 15 January 2020 which refers to her depression being well managed and not affecting her capacity to work or parent, but the doctor also says that the parenting arrangements need to be clarified because the stress surrounding them is bound to affect her mental health.
As I have indicated, the mother has some limitations or weaknesses in her parenting capacity and the father knows which buttons to push with her. If the father continued to spend time with the children and continued to push the boundaries as he has done in the past, then there is a real risk that the mother’s parenting capacity will be adversely affected and that this will have a negative impact on the children.
Since the “no time” order was made, I accept the mother’s evidence that she has felt that a huge weight has lifted from her shoulders.
The Family Report writer also expressed a concern at paragraphs 148 and 149 of the Family Report that coercive controlling family violence can have a profound impact on a primary parent’s parental functioning, including mental health and wellbeing and the ability to make decisions and act accordingly. The report writer records there that it would appear that the mother’s capacity to appropriately parent and to reflectively respond to the needs of the children has been significantly impacted - and I agree with that. A good example is the letter that the mother wrote for the Police which resulted in the AVO application to protect G not proceeding.
At paragraph 149, the Family Report writer says that although the mother has demonstrated some improved ability to resist the father’s coercion, the intensity of his behaviour appears unrelenting and she remains highly vulnerable to capitulating to his tactics. She says it is important that she is braced by other strategies, such as Court orders, to ensure she is supported in being able to make child-focused decisions in relation to all of the children in her care. But she also notes that, as a primary parent places greater protections around themselves to limit abuse and control, that there becomes a greater risk that the children will be increasingly the targets of abuse and control and that when dynamics are of a punitive nature in the contact or the lack of parental empathy from the perpetrator, children and primary parents can be at serious risk of harm.
If the father is to spend time with the children longer term, there needs to be very strict boundaries in place to remove or ameliorate the risk of the mother’s mental health decompensating. I turn then to weighing up the competing proposals.
WEIGHING UP THE COMPETING PROPOSALS
I am satisfied having regard to all of the factual findings in this matter that I have referred to, particularly the family violence perpetrated by the father, and my observations in relation to section 60CC(2)(b), that I cannot presently make an order for the father to spend time with the children immediately. They would be at unacceptable risk in his care if I were to do so; indeed, so much is effectively conceded by both the ICL and the father in terms of the orders proposed.
I agree with the report writer that at a young age X and Y require a consistent, safe and secure home where their psychological and emotional needs are nurtured and where they need a primary attachment figure and they need to develop the foundations of their self-esteem.
X is missing her father, I have absolutely no doubt about that. Even by the time of the final hearing, the mother admitted that X had asked her about - or said to the mother - that she missed him.
If I make an order for “no time”, this is not a risk-free option. There would be a huge loss to the children, particularly X in the medium to longer term, in relation to identity issues and self-esteem issues. At trial it would have been obvious to all parties that I was extremely concerned about X in particular, and I said as much more than once. I have great empathy for this little girl and it would be disastrous if as she grew older, particularly with the disability that she has, she would have felt rejected by her father or in any way blame herself for what has happened.
At paragraph 16 of the Family Report, neither parent reported any social concerns for X; however both reported feeling concerned that as she grows older she might have self-doubt due to the physical manifestation of her health condition. Both parents discussed being conscious of actively parenting to support X to be resilient and confident.
The father value-adds to X’s life in significant ways to which I have already referred, in terms of her reading, his active involvement and in terms of bolstering the child’s self-esteem. It would be a disastrous outcome if X were to blame herself for losing her father.
But as against that, I have made findings about the father, well supported by a significant body of evidence that demonstrates the enormous risks he himself poses to X’s emotional wellbeing. There is also the obvious risk of denigration in relation to her mother or the denigration of X’s older half-siblings. These are all things that X can “take on board” as well, and, ultimately, start to absorb some of them herself, which would be enormously to her detriment.
The Family Report writer agreed that X would need ongoing counselling and support, including psychological support, if there was a “no time” order, as X is particularly vulnerable.
The other perhaps insidious risk in a “no time” order is that the mother may potentially, given her past history, re-partner with someone who might themselves be violent, and I know that in this case she “covered up” for the father in relation to G in relation to the choking incident. I am concerned that X in particular may be at an increased risk in that situation given her disability and particularly the increased risk of a medical episode.
That is not to say that all step-parents are inevitably more “dangerous” than parents are, or that step-parents are necessarily less trustworthy in terms of looking after children, or more prone to being violent to other people’s children. But it does happen and it can result in devastating consequences.
Having said these things, the mother knows the risks of being partnered with a violent man. She has spoken to W Counsellors caseworkers, she has been involved in the R program. She has had dealings with the Department of Communities and Justice.
The Family Report writer considered that the mother had made real progress. At paragraph 62 of the Family Report she said:
62The mother presented as being remorseful and concerned about the violence that the children have witnessed. She spoke with regret about her role in remaining in the relationship and resuming the relationship. She appears to have developed a good understanding and insight into the dynamics of family violence and the impact on children and it appears that she has gained this understanding through her engagement with support services, in addition to noticing changes in the children since time has lapsed following the final separation.
I accept that evidence. I also accept that the father is not an “honest broker” in the sense that, on the evidence before me, I could not rely on him to act as an honest set of eyes in keeping an eye on X in the event of the mother re-partnering and potentially exposing her to violence or other problems. The father has a history of withholding X capriciously in the past as a means of controlling the mother and he has demonstrated significant jealousy and “slut-shaming” as I have referred to. So I do not regard the father as being really any form of safeguard in this respect. Moreover, the mother has taken such steps as she needs to take, in my view, to ameliorate such risks to an acceptable level. I also note that X will remain, in any event, visible in the community given that she attends school, etcetera.
Should the father be given a chance to change and to demonstrate that he can be a good, responsive, loving parent who does not engage in family violence? Can he reduce the risks by doing the courses proposed by the ICL, perhaps buttressed by some additional counselling, which is the mother’s fallback position?
The Family Report writer did say that the courses proposed by the ICL can work, but only if the father is prepared to acknowledge his behaviour. I have already assessed that he is a long way off from doing that. I reiterate that, but for the voice recordings, he would still be painting himself as the victim, and that he shows a distinct, if not total, lack of empathy for the mother and for the children.
I cannot make the ICL’s proposed order as a final order
The ICL says that I should make a final order giving the father the opportunity to do these courses. In closing addresses, the ICL’s counsel submitted that there is an:
“almost-within-reach possibility that the treatment referred to by the Court Child Expert with a genuine attempt to recognise the difficulties that he has inflicted and a genuine attempt to do something about it may save the situation. The orders that the ICL has framed have every incentive for the father to undertake those courses and in a bona fide way to complete the courses and present the certificates, and they are by no means an easy undertaking. We are referring to a total of six weeks [K Course] and 18 weeks with a 10-week wait [M Course]. So there will be considerable time for him to cogitate about what has happened, cogitate about where it is going and cogitate about what he wants to achieve. Until those courses are satisfactorily completed then there is no time with the children, not even a phone call, on my instructions. And in that regard, I should note, the family report writer did say in relation to the [M Course] that the course coordinators can provide reports to the Court.”
But how can this Court make a final order which automatically locks in unsupervised, substantial and significant time with the children without further testing the evidence and seeing what the father has gleaned from the courses which are referred to in the proposed order? I raised this concern with the ICL’s counsel, whose response was that:
“To continue the risk of giving evidence from the bar table, your Honour, the certificate that issues at the end of the course only issues to somebody who has engaged with an adequately completed the course.”
Contrast that submission with the submission by the mother’s counsel, who said this:
“Whilst I appreciate what the ICL has attempted to do in putting the father through his paces, it is a “tick and flick”. There is nothing before this Court to suggest that the father is even near the crossroads of change. He’s nowhere near it. He has been adamant to the CCE in his material and even up to the point of him hearing those phone calls, it is clear he has no issues with not changing. So the Court, with respect, is making orders for which on the father’s case there is just no evidence before the Court.”
The father’s counsel submitted that:
“A certificate would not be given unless the course administrator found that there had been fulsome participation and genuine effort put into participating. Certainly the father would be unlikely to receive a certificate if he went there and did not really listen or participate.”

But there followed the killer concession - properly made by Ms Jewison - and with which I agree entirely:
“I appreciate that participation doesn’t necessarily equate with an ultimate change of behaviour.”
This is the “elephant in the room” on the ICL’s submission. At least Ms Jewison had the courage to confront it, and I agree with her.
If this Court were to make an order which:
·starts from the standpoint that the father poses an unacceptable risk of harm; but
·that upon him completing and brandishing various certificates he is then automatically able to spend unsupervised time with the children; then
·in my view this Court would simply be taking a risk that it cannot.
This is not to say that course providers will not do their job. And I think I can take judicial notice of the fact that there are very good courses out there addressing perpetrators of family violence that are quite intensive and that the report writer herself said that such courses can be beneficial. But it seems to me that if I were to make a final order in the terms proposed by the ICL and acquiesced in by the father, that I would effectively be delegating judicial authority in a way that could not then be pulled back. That is to say, I would be relying on whoever provides the certificate to do the Court’s job for it by determining that the risks are gone or are at least ameliorated so that they are no longer unacceptable.
I just do not think, in a nutshell, that I can make such an order and I said as much at trial.
Should I make an interim order?
What about then making an interim order for the father to go through the various processes and courses that are referred to in exhibit 15?
The ICL’s counsel contended that such an order was a “very unattractive alternative”. Nonetheless the ICL and the father would prefer that I make an interim order rather than a “no time” order.
To be fair, no-one really wants an interim order in this case. The making of an interim order is incompatible with the nature of the hearing itself. It was a final hearing, not an interim hearing. The making of an interim order ought to be very much the exception rather than the rule in such a situation. Making an interim order plainly grates against the legislative best interests consideration set out in s 60CC(3)(l).
The father in this case has had a long time to address the issues that he has and to make changes. He has been resistant to doing so. The issue of family violence has loomed large for a very long time, I would suggest long before proceedings were commenced and at a time when Police were talking to these parties telling them to “get their act together” for the children’s sake.
Despite the lengthy period of time that has elapsed, the father now says to the Court: “Give me more time to change”, while keeping the proceedings “alive”.
Such an order has a potentially tyrannical impact. It keeps the family stuck in this Court system based on the “hope” – and that is all it is – that the father will be able to complete the courses adequately and effect the necessary change. Such a finding seems much less likely than not, based on the evidence that is before me, and this raises a fundamental question under s 60CC(3)(m).
What is the Court’s role in a parenting case? Surely, the Court’s role is to quell a justiciable controversy on the evidence before it. The Court takes litigants as it finds them, not as the Court would like them to be. I accept that there is a role for the Court in educating people about parenting issues. There is a role for the Court in assisting parents to become better parents, but at the end of the day Courts fundamentally are here to make decisions and to quell justiciable controversies.
If the father fails to be accepted into these courses, or if he fails to adequately complete any of them, or if he does complete them but does not really show the necessary changes, then a final order now for “no time” will work in the best interests of the children. In this situation, it is better than an interim order where the matter will continue to linger on in the system.
If a “no time” order is made as a final order, the father has all the opportunity in the world to change these things at his own pace and in his own time. If he can do so he then has an arguable basis to come back to the Court to seek a re-opening of the orders on the basis that there has been a change in circumstances which would enable him to avoid the rule in Rice & Asplund (1979) FLC 90-725. Such application can then be heard on its merits with the benefit of updating evidence as to everyone’s circumstances.
As presently drafted, exhibit 15 if made as an interim order is essentially open-ended and it leaves these parties stuck in litigation in the hope that the father completes the courses and that he undertakes the necessary change, which in any event would require a further oral hearing and, I would think, some significant cross‑examination. How is that different in a practical sense to making a final order for “no time” now, letting the father address these issues at his own pace and then bring fresh proceedings in the event he does so? If he fails, and on the evidence before me there is a very high prospect he will in my view, a “no time” order means the case is over and it does not need to linger on. If he does achieve real change in his life, which frankly at the moment seems much less than likely, he can produce such evidence to the Court. But I do not consider it would be in the best interests of the children nor in the best interests of the mother dealing with the stress of these proceedings to have them linger on in the hope that the father is able to change.
As I have indicated, in a practical sense I do not see any particular prejudice to the father in my making a “no time” order now as a final order if he is in fact going to be true to his word and undertake the courses. He can bring a fresh application when he does so and it will be considered on its merits.
CONCLUSION & ORDERS
In all of the circumstances, I have come to the melancholy view that, notwithstanding my concerns particularly for the child X, that I ought to make the orders proposed in the mother’s Further Amended Initiating Application, but for the record I am going to read the orders out that I propose to make.
In terms of the injunctions, I pause here to observe that all of them in my view are “appropriate” having regard to s 68B and consistent with the findings of the Court.
In relation to the B Venue, I do note that the father is a founding member. He said that it was not possible for him to simply change venues as it is regarded as “traitorous” to do so. I do not consider it appropriate, however, for the mother who works at the B Venue and the children who attend there to be attending when the father is there. And I do not consider that any lesser injunction will properly work without requiring the parties to be engaged in further communication about, “Who’s going to be where and when”, none of which I see as being consistent with the orders I am making or in the best interests of the children.
Again, it is a regrettable outcome, because I accept that the father does train other children at that venue. It may be that the father will have to consider attending sports somewhere else.
I am going to specifically add to this order that the mother is at liberty to provide a copy of these orders to the school, to any carer of the children, including day care, any extra-curricular care provider as well as to the manager of the B Venue. One would think that if this Court has decided that the father cannot attend there that perhaps he would not be regarded as a “traitor” in having to go somewhere else if he does not have a choice. Certainly, no-one could reasonably call him a “traitor” for changing venues in any event in circumstances such as this. I am afraid that making the injunction is the “lesser of two evils”.
For these reasons, again, with some melancholy I make these orders. The orders will be published. The reasons will be published.
The ICL may potentially wish to bring an application for costs against the father. I do not know, because the ICL is not here today. The ICL cannot make an application for costs against the mother by reason of the statute.
In the circumstances I will order that if the ICL intends to apply for costs against the father then the ICL is to file and serve an Application in a Proceeding and supporting affidavit setting out the basis for such a costs order. I will direct that that occur within, I will say 42 days, failing which the proceedings will be removed from the list of Active Pending Cases.

I certify that the preceding two hundred and ninety (290) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts.
Associate:
Dated: 6 July 2023

File number(s):	NCC 898 of 2020
Judgment of:	JUDGE BETTS
Date of judgment:	30 June 2023
Catchwords:	FAMILY LAW – Parenting – two subject children, aged 6 and 4 – where the eldest child suffers from a medical condition – where the mother has two older children from a different relationship, aged 16 and 15, one of which whom resides with the mother and the subject children – where the parties were in a “toxic relationship” – where both parents were actively involved in the children’s lives – where the father perpetrated coercive and controlling family violence against the mother during the relationship and well after separation – where the subject children and the two half-siblings witnessed frequent disputes and family violence –– where the mother sought a “no time” order – where the ICL sought an order that the father complete a raft of behavioural courses before graduating to unsupervised time – where the father adopted the ICL’s proposal at trial – where the Court considers that making a “no time” order and finalising the proceedings is in the best interests of the children given the evidence – best interests outcome.
Legislation:	Evidence Act1995 (Cth) Family Law Act1975 (Cth), Pt VII
Cases cited:	Isles & Nelissen [2022] FedCFamC1A 97 M & M (1988) FLC 91-979 Rice & Asplund (1979) FLC 90-725
Division:	Division 2 Family Law
Number of paragraphs:	290
Date of last submission/s:	19 April 2023
Date of hearing:	17, 18 and 19 April 2023
Place:	Newcastle
Counsel for the Applicant:	Ms Court
Solicitors for the Applicant:	Harpers Legal
Counsel for the Respondent:	Ms Jewison
Solicitors for the Respondent:	Single Law
Counsel for the Independent Children’s Lawyer:	Mr Bateman
Solicitors for the Independent Children’s Lawyer:	Sharon Moore Solicitor

NCC 898 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS SIMS Applicant
AND:	MR KELLER Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE BETTS
DATE OF ORDER:	30 JUNE 2023