Waugh & Rozon (No 2) - [2024] FedCFamC1F 518

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Waugh & Rozon (No 2) [2024] FedCFamC1F 518

File number(s): SYC 3879 of 2022

Judgment of: CURRAN J

Date of judgment: 2 August 2024

Catchwords: FAMILY LAW – PARENTING – Where orders made for the mother to have sole parental responsibility by consent – Where the mother alleges the father is an unacceptable risk of harm – Where the mother alleges the father perpetrated coercive and controlling family violence against her – Where the mother alleges the father perpetrated physical family violence against her – Where the mother alleges the father poses an unacceptable risk of harm due to his mental health – Where the father has not engaged in treatment of his mental health – Where the father alleges the mother poses a risk of harm due to her mental health – Where the father has not spent time with the children since separation – Consideration of Re Andrew principles – Where the father poses an unacceptable risk of harm – Orders made for the father to spend no time and have no communication with the children

Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61B, 61DA, 67ZC, 114AB, 117

Cases cited:
Bant & Clayton (2015) 53 Fam LR 621

Bielen & Kozma (2022) FLC 94-123

Carter & Wilson [2023] FedCFamC1A 9

Fitzwater v Fitzwater (2019) 60 Fam LR 212

Gorman & Huffman and Anor [2016] FamCAFC 174

H v R [2006] FamCA 878

Illgen & Yike [2018] Fam CA 17

Isles & Nelissen (2022) FLC 94-092

Jacks & Samson (2008) FLC 93-387

Keane & Keane (2021) 62 Fam LR 190

Keighly & Keighly [2023] FedCFamC1A 146

Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96

Oberlin & Infeld [2021] FamCAFC 66

Outhred & Outhred [2020] FamCA 639

Ramzi & Moussa [2022] FedCFamC2F 1473

Re Andrew (1996) FLC 92-692

Waugh & Rozon [2024] FedCFamC1F 268

Division: Division 1 First Instance

Number of paragraphs: 418

Date of hearing: 2-5 April 2024

Place: Sydney

Counsel for the Applicant: Ms Cantrall

Solicitor for the Applicant: Gannon Family Law

Counsel for the Respondent: Ms Winfield

Solicitor for the Respondent: Choice Law Group

Counsel for the Independent Children's Lawyer: Mr Hill

Solicitor for the Independent Children's Lawyer: Farah Lawyers, Solicitors & Barristers
ORDERS

SYC 3879 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS WAUGH

Applicant

AND:
MR ROZON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

2 AUGUST 2024

THE COURT ORDERS THAT:
1.The mother shall have sole parental responsibility for the children namely X born 2013 and Y born 2018 (“the children”).
2.The children shall live with the mother.
3.The children shall spend no time with the respondent father, Mr Rozon born 1985 (“the father”).
4.The father is at liberty to provide his treating psychiatrist, psychologist and general practitioner with a copy of the single expert report and a copy of these orders and reasons.
5.The mother is at liberty to provide her treating psychiatrist, psychologist, counsellor and general practitioner with a copy of the single expert report and a copy of these orders and reasons.
6.The mother is at liberty to provide to either of the children's treatment providers a copy of the single expert report, a copy of these reasons, and these orders.

Communication
7.Any necessary communication pursuant to these orders shall occur through the parenting application OurFamilyWizard.
8.Within 7 days of the date of these orders the parties are to download and connect to each other on OurFamilyWizard.
9.The mother shall inform the father via OurFamilyWizard as soon as practicable of any major health issues of the children or either of them, including, but not limited to, either of the children suffering a serious illness or injury or the hospitalisation of either of the children.

Authorities
10.The father is authorised to request from any school attended by the children, or either of them, at his expense, copies of all school reports, school photographs, school newsletters and any other necessary information about the children's academic progress.
11.The mother is to notify the father if the children change schools, and such notice shall be provided via OurFamilyWizard within 14 days of such change.

Non denigration
12.The parties are restrained from denigrating the other or members of the other party’s family in the presence or hearing of the children and each party shall do all acts and things reasonably necessary to prevent any other person doing so.

Costs
13.The application for the mother to pay to Legal Aid NSW her share of the ICL's cost being a total of $7,819.95 is refused.

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

This case concerned parenting arrangements for two children, 11 year old X and 5 year old Y (“the children”). At the time of the final hearing the children were living with their mother and had spent no time with their father since December 2021.
It is non-controversial that the children will live with their mother. Accordingly, the primary issue for determination is whether the children should spend time with their father and if so, under what circumstances and subject to what conditions given serious allegations of risk.
The issues of risk arise from three distinct concerns being: the risk arising from exposure to the father given his long standing and untreated mental health issues; the risk from ongoing time against a history of serious alleged family violence perpetrated against the mother; and whether any time ordered would have a discernible impact on the mother’s parenting capacity.
It is necessary to make findings about what had happened in the past to inform an assessment of the risks that those findings indicate for the future. There are allegations of risk arising from the father’s past family violence and his untreated mental health issues. The issue of the likely impact on the mother’s parenting capacity was subject of evidence from both Dr B (“the single expert”) and the mother’s treating counsellor Ms D.
The father seeks orders for the reintroduction of his time with the children, initially supervised for a month then moving to unsupervised and overnight time. The mother seeks a continuation of the existing arrangements being final orders for the children to spend no time and not communicate with their father. The independent children’s lawyer (“ICL”) identified that there were only three options available to the Court given the serious risk issues: that there be no time; that there be identity time; or that there be indefinitely supervised time. The ICL sought orders for indefinitely supervised time.
For the reasons that follow I find it is in the best interests of the children that they spend no time and do not communicate with their father.
ISSUES IN DISPUTE
The issues requiring determination are as follows:
(a)Should the mother be required to advise the father of each decision she makes and take the father’s comments into account?
(b)Are the children at unacceptable risk of harm if they spend time with the father arising from his mental health?
(c)Are the children at unacceptable risk of harm if they spend time with the father given the serious allegations of family violence?
(d)Are the children at unacceptable risk of harm if they spend time with the father as a result of the discernible negative impact on the mother’s parenting capacity?
(e)If yes to the above questions, can the risk of harm be ameliorated?
(f)If so, what time with orders are in the children’s best interests?
(g)If an order is made for the children to spend time with their father, should that time should be supervised?
(h)Should the children communicate with the father and should the father be authorised to communicate with institutions to obtain information about the children?
(i)Should the father be permitted to attend extra-curricular activities?
(j)Should restraints be made as sought by the mother?
MATERIAL RELIED UPON
The mother relied upon the following documents:
(a)Initiating Application filed 14 March 2023;
(b)Her affidavit filed 11 March 2024;
(c)Affidavit of Ms C filed 13 March 2024;
(d)Affidavit of Ms D filed 18 March 2024;
(e)Notice of child abuse, family violence or risk filed 7 June 2022;
(f)Case Outline Document filed 28 March 2024;
(g)Written submissions received on 3 April 2024; and
(h)Single Expert report of Dr B, psychiatrist, filed 2 April 2024.
The father relied upon the following documents:
(a)Amended Response to Initiating Application filed 19 March 2024;
(b)His affidavit filed 20 March 2024;
(c)Notice of child abuse, family violence or risk filed 4 July 2022; and
(d)Case Outline Document filed 30 March 2024.
The ICL relied upon:
(a)Single Expert Report of Dr B filed 2 April 2024;
(b)Child Impact Report of Ms E filed 11 November 2022;
(c)Minute of orders sought, marked as Exhibit 32; and
(d)Case Outline Document filed 1 April 2024.
ORDERS SOUGHT
Each party sought orders in accordance with their case outline filed.
On the final day of trial, the parties were in agreement that the mother should hold sole parental responsibility.
The only dispute that remained in respect of parental responsibility was whether notice of proposed decisions and an opportunity to provide comment should be provided to the father prior to the mother making any parental responsibility decision.
CREDIT OF THE MOTHER
I was urged to find that the mother lacked frankness and her credibility should be in doubt. The basis of the submission was the assertion that Centrelink records showed that the mother was dishonest, that the mother had failed to be frank in respect of income earned in a project with her sister, and that otherwise the mother exaggerated her evidence, making her evidence unreliable when in conflict with the father’s narrative.
I do not accept that there is basis to doubt her credibility for the reasons that follow.
An income statement dated 27 May 2020 completed by the mother as required by Centrelink showed the mother had indicated “N” to “customer partnered”. The mother’s evidence, which I accept, was that she had separated from the father on a number of occasions and the time she completed the statement it was during such a period of separation. There were a number of periods of separation and it was not in contest that at times the mother left the relationship. Equally there was no evidence that supported a finding that the mother was not frank in respect of the project with her sister as contended.
Many of the mother’s contentions as to the father’s conduct were disputed by him. The mother’s evidence was often corroborated by third party records that had been made contemporaneously by the father’s treating professionals. On a number of other issues in dispute, the mother’s evidence was corroborated by her sister or other records. These factors support the finding that there is no basis to doubt the credit of the mother.
It was contended that the mother exaggerated in her evidence, particularly in her description of what occurred when the father approached the mother in the carpark at Suburb F in December 2022. As referred to later in these reasons, I do not accept the mother was being dishonest or exaggerating. The CCTV recording of the event is in evidence.
I also reject the contention that the mother exaggerated evidence of family violence as detailed later in these reasons.
CREDIT OF THE FATHER
I have reservations about the father’s evidence. Where his evidence is in conflict with the mother’s evidence, unless otherwise corroborated, I prefer the mother’s evidence for the reasons that follow.
The father gave evidence that was inconsistent with independent records and reports from professional third parties, and on occasion inconsistent with his own previous evidence. I refer to several examples below.
The first example is in respect of the mother’s allegation that the father removed and hid her wallet, keys, and phone from her and at other times threatened to do so as a form of control. The father denied such conduct occurred although in evidence he admitted that he had in the past threatened such conduct but did not act on the threat. The father’s denial is inconsistent with the contemporaneous notes of the father’s own report to his treatment providers at G Hospital. The records note that the father reported he “Snaps/yells/antagonises/hassles partner every second or third day…now mostly “vengeful behaviour” - hides keys and phone or hassles her for intimacy.” His treatment provider’s recording that he “hides keys and phone” is consistent with the conduct as reported by the mother. I accept the evidence of the mother as corroborated by the contemporaneous medical notes. I reject the father’s denial.
The second example was the evidence the father gave about the telephone call he had with the mother when she had taken Y to hospital. As referred to in [95] this is an example where the father was selective in his evidence and failed to be full and frank in his oral evidence.
A third example was the father’s evidence in respect of the AVO application in 2022. He filed a statement in the Suburb H local court proceedings dated early 2022 in response to the mother’s AVO application. At paragraph 13 of the statement he said “I never had a conversation raised at all from any psychiatrist, psychologist, or other health professional regarding any type of violence, abuse, or neglect on my part towards the child… or [the mother].” This in inconsistent with the medical notes produced by G Hospital. Further at paragraph 28 of the statement he said “On 17/01/2022 my solicitor spoke to [Ms J] of [K Lawyers] about the mediation outcome. [Ms J] told my solicitor words to the effect that she was unaware of any family violence related allegations made by [the mother] when taking instructions”. The father annexed to his trial affidavit a letter from K Lawyers dated 6 September 2021 which stated: “Our client has disclosed to us that she experienced family violence during the relationship and that you have mental health issues that are largely untreated.” The statement made in early 2022 is inconsistent with the letter received from K Lawyers which raised directly the mother’s allegations of family violence and concerns of his untreated mental health issues.
A final example is the father’s conduct in annexing and relying on a letter from a treating psychologist Ms L. As set out at [216]-[217] below, the letter was substantially amended at his request, to present his own sanitised narrative as to his mental health.
For these reasons, I take a cautious approach to the father’s evidence if it is in dispute, unless corroborated.
THE LAW
The making of parenting orders is governed by Pt VII of the Family Law Act 1975 (Cth) (“the Act”) which provides that in making parenting orders the court must have the children's best interests as the paramount consideration.
The assessment of whether and what orders should be made for the children to spend time with the father is a matter guided by the relevant subsections in Part VII of the Act.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Pt VII. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
The Court is required to balance the benefit to the children of having a meaningful relationship with both of their parents and the need to protect them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. In balancing these considerations greater weight must be given to the need to protect the children from harm pursuant to s 60CC(2A).
Parental responsibility is defined at s 61B of the Act.
The Act applies a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents pursuant to s 61DA. The presumption does not apply in certain circumstances if there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence according to s 61DA(2). Pursuant to s 61DA(4), the presumption may be rebutted if the Court is satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
If the presumption does not apply or is rebutted, the manner and allocation of parental responsibility is determined by consideration of the child’s best interests.
The presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in family violence in accordance with s 61DA(2)(b) of the Act.
CONSENT ORDERS FOR THE MOTHER TO HOLD SOLE PARENTAL RESPONSIBILITY
The parties agreed that an order should be made for the mother to hold sole parental responsibility. As set out below, I find that father has perpetrated family violence. Accordingly, the presumption is rebutted, and orders for parental responsibility are to be determined in accordance with what orders are in the best interests of the children.
The evidence supports the finding that it is in the children’s best interests for the mother to hold sole parental responsibility. She has been making the relevant decisions for the children since separation; there is risk of ongoing family violence and coercive and controlling behaviour by the father; the father has failed to engage in ongoing treatment in respect of his mental health issues as recommended and lacks insight into the impact of his mental health issues on the children; and the parties continue to have a fraught relationship and they are unable to communicate at all. X, in particular, has a need for ongoing therapeutic assistance which she has engaged in since before separation as arranged by the mother. Each of these factors supports that the mother should hold sole parental responsibility and that such an order is in the best interests of the children. The findings in respect of each of these matters detailed later in these reasons are all factors that support such an order, which is sought to be made by consent.
The ICL proposed that the mother notify the father of each decision proposed to be made; that the father provide his comment; that the mother is to take the father’s comments into account; and for the mother to inform the father of the outcome of the decision.
On the final day of the trial the father abandoned his application for equal shared parental responsibility and consented to an order for sole parental responsibility and sought orders in the terms sought by the ICL about notice and his capacity to comment.

The father seeks to have input and receive information as to decisions of parental responsibility in the children’s lives. He has been involved in their care in the past and X has expressed a wish in the past to spend time with him. Looking to the future, when the children are adults, they may seek to have a relationship with their father. If the father remains aware of major decisions it may assist that future relationship. However, there are some factors that do not support such an order being made and the benefit of such an order needs to be balanced with the risks.
As set out in these reasons, the current circumstance is that any communication between the parents is problematic. The father has previously breached orders restraining contact, causing both the mother and children to be fearful, and he has failed to take steps to address his current mental health issues. The opinion of the single expert is that exposure to communication between the mother and the father puts her at greater risk of exposure to family violence which, given the history of family violence, is another factor weighing against such order for communication between the parties. I accept that the mother has mental health vulnerabilities which may be exacerbated by ongoing contact with the father in the opinion of the mother’s treating counsellor Ms D. It is obvious that the parties have an inability to communicate at all which also lends against such an order. The thrust of the submission opposing such an order by the mother was that if the door for communication is ajar, the father pushing against it will have the very same impact as time orders would have, in respect of the mother’s vulnerabilities.
Having carefully considered the orders sought in light of the best interests test, I am not satisfied that the orders sought by the father and ICL that the mother should communicate with the father about the decisions and receive and take into account his input are in the children’s best interests because of the history of family violence; the father’s ongoing and untreated mental health issues; and the likely negative impact on the mother’s parenting. Each of these matters is addressed in more detail later in these reasons.
For the reasons set out above, I am satisfied that the father however should have the capacity to keep himself informed of the children’s progress at school by the usual authority for the school to send information which parents are usually sent. This will both avoid any negative impact of direct communication and ensure the father has information and knowledge of the children’s progress and achievements. I am also satisfied that the mother should be required only to notify the father if the children change schools and that such notice should be by way of communication sent by her to him using the OurFamilyWizard App within 14 days of such change.
PRIMARY CONSIDERATIONS
Meaningful Relationship
It is ordinarily in the best interests of a child to have a meaningful relationship with both parents, but the Court must focus on whether or not the child will derive a positive benefit from the relationship and whether such relationship is one that is important, significant, and valuable to the child.
The children’s relationship with the mother
The mother has a meaningful relationship with the children. The single expert opined that X has an insecure attachment to her mother, but that the attachment can become secure. Y is securely attached to her mother.
There are multiple sources of evidence to support the finding of the mother's appropriate and responsive parenting. The consent position of all parties that the mother hold sole parental responsibility and the children continue to live with the mother also supports the finding. Additionally, the counselling records from M Health Centre, where the mother and X attended for counselling, records that the mother's parenting is appropriate and healthy, that she is “excellent” at implementing parenting strategies suggested and seeks reassurance and guidance from experts in relation to her parenting.
X's psychologist, Ms O, reported in December 2022 that X's “mother appears to be providing appropriate and meaningful emotional support despite the emotional impacts of her own traumatic experiences.”
These independent records are consistent with the single expert’s opinion and support the finding which I make that the mother is an appropriately responsive and attuned parent and that the children have a meaningful relationship with her.
The children’s relationship with the father
X lived with both of her parents, albeit with some periods of separation, until their final separation in 2021. X expressed to the Court Child Expert Ms E (“the Court Child Expert”) in 2022, and to her psychologist Ms O in the presence of her mother, that she missed her father; she cannot be happy without her father in her life; and she wished to see him and have telephone time with him. X also expressed to a number of people including her mother, her school principal, Ms O and Ms E, that she has some fears of the father for herself, but also fears for the safety of her sister and mother. I find that X's relationship with the father is complicated and that her views about time are mixed.
Y has not developed any relationship with her father. The parties finally separated when Y was not yet three years of age.
THE NEED TO PROTECT THE CHILDREN FROM HARM
Per Isles & Nelissen (2022) FLC 94-092, in assessing unacceptable risk it is necessary to have consideration to all of the circumstances, including historical conduct, and consider whether or not there is sufficient evidence to make a finding on the balance of probabilities in relation to the allegations made, in order to determine whether there is a possibility of future harm arising.
As identified in Fitzwater v Fitzwater (2019) 60 Fam LR 212 at [138]-[139], the risk of harm must be heeded even if they are “improbable eventualities” which “at some point on the continuum the risk of harm becomes so potent it cannot be tolerated and is unacceptable.”
Was there family violence perpetrated by the mother during the relationship?
It was agreed that the children were to remain living with the mother. Despite this consent position the father raised allegations that the children were at risk in the mother’s care, giving two specific examples which I infer forms the basis for his allegation as to risk.
The father said that in 2017, the mother smacked X, so hard that it caused bruising. A photograph of markings on a child's stomach was marked as Exhibit 2. The mother denied she smacked X and explained that she had eczema and that is likely what the mark was. The father agreed that the child had suffered eczema in the past. I am unable to make any finding on the balance of probabilities in respect of the alleged assault of X based on the photograph nor am I able to make any finding as to the cause of the red mark.
The father said that in February 2019, the mother became upset and smashed pot plants in the kitchen and threw food everywhere. He did not say he or the children were present. A photograph of damaged pot plants smashed on the floor was marked as Exhibit 3. The mother agreed that she had, out of “exhaustion and frustration” swiped the plants off the counter causing them to shatter but says that she did so when she was on her own in the kitchen.
The mother's conduct in smashing the pot plants must be considered in context. Her explanation as to it being an isolated incident of lashing out in frustration is plausible. This is particularly the case as the father makes no allegation of a pattern of similar conduct or that he or the children were present when it occurred. As referred to below I am satisfied that the mother has appropriate mental health supports in place.
It is also significant to note that the father has agreed to orders that the children continue to live with the mother and that as his counsel accepted in submissions, he does not contend in fact, that she poses a risk of harm to the children. The contention of risk cannot in those circumstances be seriously maintained. I accept the evidence of the parties that the mother did smash the pots. I find that the mother smashed the pots in the circumstances that she set out, when she was alone in the kitchen and did so in frustration. I do not find that the mother presents a risk of harm to the children arising from exposure to family violence or arising from her mental health as contended by the father.
Was there family violence perpetrated by the father during the relationship?
The mother sought a finding that the father engaged in family violence toward her, specifically that he engaged in coercive and controlling conduct toward the mother, and that he engaged in sexual and physical violence during the relationship.
The father denied ever physically assaulting the mother, or being sexually violent, or being coercive and controlling.
Given the allegations and denials it is necessary to make factual findings in respect of the allegations as set out below.
The father’s impulsive and angry behaviour after X’s birth
The mother says she observed unusual behaviours in the father in the first year after X was born. The father said he was triggered because of his father's ill health and he wished to go on a spiritual retreat to Country Q. Despite the mother's opposition in mid-2014, he went to Country Q for about 4 months leaving X in the mother's sole care.
The mother gave specific evidence in relation to incidents of family violence before and after the period he was away, which are all denied by the father. Contemporaneous records provide corroboration of the mother's reports of the father’s anger, outbursts and impulsive behaviour. By way of example, a letter written by Ms R, the father's then psychologist, dated November 2014 records that the father had been receiving treatment for “extremely severe depression, anxiety, stress and [a mental health] disorder” since November 2013. She reported that when heightened: he will struggle to effectively calm himself down and problem solve which means that he will often respond impulsively, usually out of frustration and anger and without great insight into his behaviour and the ongoing consequences. This contemporaneous record corroborates the mother’s evidence as to his conduct from early in the marriage. I accept the mother’s evidence in respect of the father’s conduct of, at times responding impulsively in frustration and anger around this time as corroborated by his treatment notes. However, there is no specific event or series of events that supports a finding that the father perpetrated family violence during this time period.
The father’s assault on the mother following her cousin’s wedding
The mother said that in early 2015 the father was angry with her during her cousins wedding ceremony and that at home later that evening he picked her up and threw her on the floor. She said her head jolted, she was in shock, she felt pain and was winded. She said that the father said “you will be ok. You will be ok. Please, please don't call the ambulance. I have had a rough upbringing. I will get help please don't call the ambulance.”
The mother made a report to her sister the following day of the assault.
The father disagreed this event occurred.
I accept the mother's evidence of this event as corroborated by the contemporaneous report made by the mother to her sister the next day.
The father’s assault on the mother by throwing her on the lounge
The mother said a few months after the incident following her cousins wedding, the father became enraged, grabbed her by the arms, picked her up into the air and threw her against the lounge, but that she bounced off onto the ground, curling up in pain almost immediately and being winded. She says that he said “You are fine. You are fine, you landed on the couch.”
The father disagreed with this allegation.
When the mother first attended at Town S Police station in late 2022 she reported a history of family violence that included the father pulling her by the arm and throwing her on the lounge. Although reported when she first spoke to the police, it was not a contemporaneous report of the mother being thrown on the lounge. Accordingly, I am unable to be satisfied on the balance of probabilities as to the alleged incident.
Did the father assault the mother when she was pregnant with Y?
The mother said when she was around one month pregnant with Y, she refused to have sex with the father whilst X was awake and nearby. She says the father held her down with his hands and then threw her to the ground and dragged her across the floor. She said that X witnessed it, was crying hysterically and yelled for the father to “get off mummy”. Following this incident, the mother and X moved out for 8 months. This was one of many occasions when the mother left the home.
The father in his written and oral evidence initially denied any assault. However, eventually in cross examination he agreed there was an incident where there was a physical altercation where clothing was pulled at and where the mother fell to the floor and then she left.
After this incident the mother reported the conduct to her sister. The evidence of her sister, which was not disputed, was that the mother reported to her “[Mr Rozon] dragged me through the house. I think he hurt the baby.” This contemporaneous report made by the mother to her sister corroborates the mother's evidence.
The notes from G Hospital have a record of a similar report made by the father in mid-2020 that, in the box titled “Anger outbursts verbal/physical” it was highlighted “Yes” and noted that “Severity: has changed over time; worse 12 months ago when he was kicked out of family home due to a physical altercation (he wrestled her to the ground).” This report by the father also supports the mother’s evidence of a physical assault where he threw the mother to the ground following which the parties separated.
I accept the mother's evidence, as corroborated by both her sister and the medical notes, that there was an incident where the mother was wrestled to the ground by the father. This was an incident of family violence.
Allegations of coercive and belittling conduct
The mother's evidence was that the father would become upset if she didn't have his meal hot off the stove when he came home, despite her having poor sleep whilst dealing with X teething or being ill, and that he would become abusive. She contended that when she asked for help he said “You only have one kid, what about the ladies that have four or five?”, or “You have been negligent towards your husband.” This evidence was supported by the mother's sister who deposed to the mother reporting this to her.
In oral evidence the father accepted that he was critical of aspects of the mother's cooking and said his comments were an attempt to help her. He said “I have a certain way I like the food, I will voice that. But I would say not anger, upset”. He went on to give oral evidence that “she wants me to enjoy the food, right? So I don't want her to go make it wrong every time, waste the money, all the time. So I just give her feedback”. In terms of the feedback, he stated he will say “like, microwave when I'm exactly there, not before, or if it’s in the pot, cook it on the stove, like, yeah, things like that.” In respect of the alleged discussion the father agreed he said words as alleged in respect of feedback on her cooking. It was put to the father that he would say words to the effect of “You can't cook, this is terrible.” He agreed in cross examination that he did say these things.
I find on the balance of probabilities that the behaviour as alleged by the mother occurred and it was regular behaviour by the father. However, I am not satisfied that it amounted to coercive and controlling behaviour that constitutes family violence.
Coercive or controlling behaviour has been examined by this Court. The majority of the Full Court in the matter of Carter & Wilson [2023] FedCFamC1A 9, McClelland DCJ and Campton J, cited Gill J’s definition contained in the decision of Illgen & Yike [2018] Fam CA 17 at [123]-[125] with approval:
123. Coerce is defined in the 7th Edition of the Macquarie Dictionary relevantly as
1. To restrain or constrain by force, law or authority; force or compel, as to do something.
2. To compel by forcible action
124. Control is defined in the 7th Edition of the Macquarie Dictionary relevantly as:
1. To exercise restraint or direction over; dominate; command
125. The phrase “coerces or controls” is expressed disjunctively. However, it may be seen that the two concepts are closely related. Together they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command.
The majority also cited with approval Judge Beckhouse’s observation in Ramzi & Moussa [2022] FedCFamC2F 1473 at [45] that:
generally, coercive control is understood as a course of conduct aimed at dominating and controlling another person, including a family member” where it was emphasised that “in order to assess whether the applicant engaged in coercive and controlling behaviour, it is necessary to view his behaviour towards the respondent over the course of the entire relationship (as well as post-separation), and to consider the cultural context in which it arose.
(emphasis added)
Gill J explained the distinction between coercive and controlling behaviours and coercive and controlling family violence in Outhred & Outhred [2020] FamCA639 at [48]-[52]:
[48]The phrase “coerces or controls” is expressed disjunctively. However, it may be seen that the two concepts are closely related. Together they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command. The examples given at s 4AB(2) illustrate the potential modes of force, domination or command as incorporating both physical and non-physical means. For example, control through the unreasonable withholding of financial support constitutes a non-physical means of domination of another.
[49]It should be noted that the definition contained at s 4AB does not encompass all occasions where one family member causes another to act other than in accordance with his or her inclinations. The nature of interactions within a family often involves the various members of the family preferring the interests of other members of the family ahead of their own.
[50]However, where this is the result of the exercise of power, by force or domination or command, that is, it is the product of coercion or control, it then constitutes family violence and falls within the definition at s 4AB.
[51]It should be accepted that the definition of family violence goes well beyond physical assaults to encompass behaviours that, absent context may appear innocuous, but in context may be examples of coercion or control. However, the mere assertion that the conduct has the quality of being coercive or controlling does not make it so. It is necessary that the evidence, particularly where the behaviour is ambiguous and may bear an innocuous explanation, be sufficient to allow a characterisation of coercion or control.
[52]By way of example, a pattern of disagreements and criticism can form controlling or coercive behaviour. Whether they do or not must be derived from consideration of their form, intensity, context and the impact upon a person. The mere fact of disagreement or criticism does not automatically equate to family violence.
I am satisfied that the conduct amounts to family violence after consideration of its form, intensity and context in the relationship. I find it was designed to belittle and dominate the mother particularly in the context of his other coercive and controlling behaviours as set out below. It was more than merely a pattern of disagreement and criticism in relation to meal preparation.
The train station incident

The mother gave evidence that in around 2015 or 2016 the parties were attending family therapy. The mother said that after attending therapy the parties had an argument at a train station. The mother had gone to the toilet and asked the father to watch X but in that time the father left on a train with the child and had taken with him the mother’s wallet, keys, and phone in the pram. The mother called her sister (by a pay phone using money from a stranger) who called the father and confirmed that he was at home with X. The mother’s evidence was corroborated by her sister. In cross examination the father initially did not accept his conduct but eventually agreed he had left the mother in circumstances as alleged by the mother without her keys, phone, or wallet.
The behaviour as alleged, including taking the keys, phone, and wallet with him, was not a single isolated incident. As referred to below at [116] there were other events where the father removed or hid the mother’s keys, phone or wallet. The mother’s evidence was that it occurred multiple times, including when she was asleep. I accept her evidence and find that such conduct and the pattern in which it occurred, was designed to control the mother. I find that this conduct was a course of conduct that was coercive and controlling and was family violence.
The March 2021 assault with a stool
In March 2021, the mother alleges that she picked up the father's plate assuming he had finished, scraped the gravy off into the bin and put the plate in the sink. She said that he began to hit the cupboard with his fist and yelled at her. She says he then grabbed the plate from the sink and put it in her face telling her to lick it. She then says he threw food onto the floor, picked up a barstool and proceeded to throw it in the sink. He then walked over and pushed the stool into her ribs with force. She alleges this was in the presence of the children.
The father agreed that the mother had asserted this behaviour had occurred in support of the ADVO sought by her but did not accept the incident as alleged. He said during an argument about food he was simply washing the stool in the sink.
The NSW Police notes record that “the defendant threw a bar stool into the kitchen sink full of water and dishes causing the water to splash towards her.” There is no record in the NSW Police notes of her complaint that he also pushed the stool into her ribs with force.
The father said in response to the allegations of family violence that he was “generally a quiet, passive and unaggressive person” and he denied any family violence. His description of himself is inconsistent with the mother and her sister’s evidence, and most importantly inconsistent with the historical medical notes from 2013 that record he struggles to calm himself down, and from the G Hospital notes from 2020 which record his own report of “anger outbursts” that were both “verbal/physical.”
I accept the mother’s version of the incident at least insofar as him throwing the stool. That act itself was an incident of family violence.
Allegations of sexual coercion
The father said that the mother had issues with intimacy and avoided a sexual relationship with him, that she had told him of these issues early in their relationship, and that his desire for sexual intimacy was a source of tension between the parties.
The Court Child Expert stated at [18] of the Child Impact Report that the father “explained that the opposing issues about intimacy in the relationship were tied to [Ms Waugh’s] history of past abuse and that she experienced physical pain with intercourse and that he had tried to support her.”
The mother's evidence was that in late 2014 to early 2015 the father's demands for sexual intercourse became more frequent, were daily, and that he would make degrading comments if she refused. She said he became more critical of her body. The mother said that typically he would start to pace back and forth, and through the house would yell loudly, not necessarily speaking to her, but yelling at himself or as if someone else was watching him. For example, she said he has yelled words to the effect of “fuck, fuck, fuck, sooooo angry, so angry, I'm in a rage. I am in a rage fuuuck”, and, “so angry, you have fucked up my body, fucked up my body, I have all this cortisol in it. I can get cancer ... cancer, you fucked my body fucked my body. So angry!”, and that after his rages he would demand “sex or some form of relief”.
The mother said that if she refused the father's advances for intimacy, he would become moody or angry, would deprive her of money and otherwise force himself on her. Some examples follow.
The mother said on an occasion in 2017, after she refused his advances, he forcefully insisted she get into the car with him and X and drove for 15 minutes before he pulled over saying “I need to speak with you outside the car.” She said that she got out of the car and he drove off and that she heard X scream out “Mummy”, in a distressed voice. She borrowed a stranger’s phone to call her sister for assistance. This incident was corroborated by the mother's sister, although her recollection was that it occurred in 2015 or 2016. I accept the mother’s evidence as corroborated and do not consider the difference in recollection about the year is significant.
When Y was very young, she developed a fever and, on the recommendation of her relative, a healthcare professional, the mother took Y to the hospital. She says that when she was leaving the home the father said to her words to the effect of “You don't care about your husband, all it takes is one minute to relieve me, but you have refused. You listen to your [relative], but not me.” The mother said the father called then called the hospital and said “How dare you leave me. I have blue balls ...I am in pain...You left. All I wanted was some relief .... Just watch what happens to you.”
The mother's sister gave evidence that the mother reported this to her either that evening or the following day. The father denied this incident occurred although agreed he called the hospital. In response to a question from me as to why he called the hospital he said “just to get an update on what's happening”. He added in his oral evidence “It would've been the only reason”. His explanation was reasonable and plausible in the context of their young child being at the hospital.
However, in further cross examination, the father was taken to his earlier sworn evidence from paragraph 71 of an affidavit filed 4 July 2022 where he said he called to “check up on them and resolved another argument we had around the same time.” The father was selective and not fulsome in his answer to a direct question as to why he had called.
Following that hospital attendance the mother sent a text to the father's brother's wife, and said:
Yesterday while us girls were burning with fevers and Poor [Y] and I just got back from hospital. [Mr Rozon] stops his meds and started harassing me for sex… I’m so over it. I understand his behaviour but it’s so dysfunctional and feels so inappropriate… because I obviously choose tending to my kids over him he didn’t help at all and instead kept waking me up in the middle of the night. I told […] that the therapist that is new that we are seeing is going through a process with us which is helping but when [Mr Rozon] decides not to take his meds it’s this inner beast that comes out. I’m just not sure what I should do, [X] is already effected by it and I just feel stuck.
This text message sent the next day is highly probative. It is corroborative of the mother's evidence and inconsistent with the father's denials as to his conduct.
I accept the mother's evidence in respect of this incident of sexual coercion as it is corroborated by her contemporaneous report to her sister and her sister-in-law in writing, and the earlier evidence of the father in respect of the continuation of an argument.
The mother gave a further example of conduct of the father’s sexual coercion. The mother’s evidence was that on occasion, she would leave the home to stay with friends to get away from the father, and on one occasion in 2018, she booked an Airbnb to remove herself from the father's unwanted and escalating behaviours including his demands for sexual gratification.
She said on one such occasion, the father followed her to a friend's house, forced his way in and locked the mother in the bathroom saying, “I am not letting you out until you relieve me.” His penis was exposed in front of her. The mother said she could hear X yelling “Mummy, Mummy where are you are you ok”. The father ejaculated and said “That was your fault, for running away. Clean it up.” The mother says X still recalls this incident and has told her on many occasions words to the effect that “I was scared. Daddy would not let me in and locked you in the bathroom.”
The mother’s sister gave uncontested evidence that the mother reported this incident to her at the time.
The father agreed on an occasion he visited a home where the mother was at that time staying but denied he pushed the door with force and denied the assault occurred.
I accept the mother's evidence as corroborated by her report to her sister.
A further example of the father’s conduct came from the evidence of the mother’s sister. She gave evidence of an occasion when she stayed with the mother and the children at their home and that as they lay down to sleep the father repeatedly opened the door and asked the mother to come out of the room, and when she did not he switched the lights on and became aggressive, upsetting X.
The father accepted that he did pursue the mother for intimacy, that he believed intimacy should be a couple of times each week, that he would “say it to her straight” and that he could not recall the exact words he used, but agreed he would be frustrated. His evidence in cross examination was:
So I'm saying the lack of - cos I believe, from studies, intimacy should be a couple of times a week. So if I'm not - she's not been able to do it, I will say it straight to her. Is it just taking too long or - I understand you've been molested in the past, all that. And I will be frustrated. That's the truth. Yeah. So when I'm frustrated - I don't remember the exact words I said.
The notes from G Hospital record that the father sought treatment in 2020 and 2021. The notes which were taken when the father was with his health professionals include the note in February 2020 that he “described some “outbursts” which were reported to be “unexpected at times.” The notes recorded in December 2020 “indicted frequent high urges (5/5) to indulge in problematic behaviour, and frequently acting on these urges”, and in December 2020 “Diary card reflects the difficult week that [the father] reported, with emotions (pain, sad, anger, shame, fear) mostly rated 5, matching high urges that were frequently acted on.” In oral evidence when taken to these records, the father denied that he reported to the medical professionals conducting himself in that way alleged by the wife. I do not accept his denials of these reports. The contemporaneous clinical notes are corroborative of the mother's complaints particularly when read in conjunction with the documented behaviours of “hassles her for intimacy” and “in conflict with wife …usually when his needs aren’t met.”
In the contract to commit to therapy goals document dated June 2020 it was recorded under the heading “Anger outbursts verbal/physical”, “Snaps/yells/antagonises/hassles partner every second or third day…now mostly “vengeful behaviour” - hides keys and phone or hassles her for intimacy.” Under a heading titled “Problematic relationships/relationship difficulties” the same form reads “2-3 times a week in conflict with wife; usually when his needs aren't met or demands aren't followed; gets angry; raises voice; hassles her; snaps”.
The father accepted that the document recorded the problem behaviours on the DBT Diary Card of Anger Outbursts “blaming, controlling, yelling, hiding wife's items.”
The document signed by the father recorded his reported conduct toward the mother at the time. The evidence is highly probative and compelling. It supports the mother's narrative. It is inconsistent with the father's denials. I give this contemporaneous record significant weight.
The father contended that the reports he made were made to appease or please the mother and her sister. When suggested to the single expert this was the basis of his reports, she opined it was very unlikely given the nature of the program. I agree and give weight to her opinion. I also do not accept the father's explanation for the content of the notes that he was merely saying these things to appease his wife and her sister. It is not plausible. The mother's evidence of his conduct is consistent with notes made by professionals who were treating the father in 2014 and again in 2020-2021. The clinical records were taken contemporaneously by medical professionals and provide specific examples of concerning behaviours reported by the father to be addressed in therapy. These behaviours are the same behaviours that the wife complains of in her evidence.
I am satisfied on the balance of probabilities that the father behaved in a dysfunctional and abusive manner as alleged by the mother. I give weight to the fact that the alleged behaviour is corroborated by the father's medical notes, and the contemporaneous reports made to the mother's sister and sister-in-law. I also give weight to the father's own evidence that he could not recall the “exact words” he used but that he was frustrated due to his expectation as to frequency of intimacy. The evidence supports the finding that the behaviour of demands for sexual intimacy and him forcing himself on the mother such as occurred in the bathroom on the balance of probabilities did occur and was family violence.
Alleged assault in 2017 causing bruising to the mother’s leg
The mother said that in 2017 the father grabbed her arm and proceeded to drag her into the bedroom with such force that her knee hit the side of the door, as he was dragging her into the room. Her leg then hit the side of the bed base and she could not walk the next day on the leg. A photograph of a bruise was annexed to the mother's affidavit at Annexure C and shown to the father. The father denied that this is what occurred.
I accept the mother's evidence as to the cause of the bruise and the father's behaviour because it is consistent with his prior conduct of being impulsive and physically assaulting the mother. I also find it is inherently probable that the mother did take the photograph in circumstances as she alleged.
Hiding the mother’s possessions
The mother's evidence was the father's behaviour escalated in 2018 and that she would awake to him taking her items such as her phone and wallet, saying “I am taking these items away from you because you are being a bad wife. If you don't have sex with me, you can't have these items.” She would often awake in the morning and find bruises from his fingers and hands digging into her body searching for these items. She said this occurred about 12 times from 2016 to the date of separation.
The father denied that he would remove the mother's phone, keys and wallet as alleged. His evidence was that he at times threatened to remove her wallet, phone and keys but never carried out the threat. As referred to at [107] above, the father’s denial is inconsistent with his own reports to his treatment providers and I do not accept the father's evidence when he says his behaviour was limited to threats only.
I find, based on the evidence of the mother, the records of the reports made by the father as contained in his medical notes, and as corroborated by the mother's sister, that the father on numerous occasions, removed the mother's keys, wallet and phone. I find that this was part of a pattern of control over the mother as she alleged.
Conclusion in respect of allegations of family violence during the relationship
I am satisfied on the balance of probabilities that the father engaged in family violence toward the mother, specifically, that he engaged in physical violence during the relationship, that he engaged in coercive and controlling conduct, and that he engaged in dysfunctional and abusive sexual coercion towards the mother.
Was there family violence after separation?
The mother sought a finding that the father engaged in family violence toward her, specifically that he engaged in coercive and controlling conduct toward the mother after the parties separated, which is denied by the father.
The father says the incident at Suburb F in late 2022 is an example of the mother exaggerating her complaints. The mother says it illustrates the father’s impulsivity and explains her ongoing fear of him given his conduct was in breach of both an ADVO and restraining order made by this Court.
The father says the incident at T Shopping Centre in late 2023 was not family violence nor, he contended through his counsel, was it a “serious breach of orders” contrary to the mother’s evidence.
Given the allegations made in respect of the father’s conduct and his denials as to some of the conduct, and the dispute as to its characterisation, it is necessary to make factual findings in respect of the allegations as set out below.
Background to ADVO of early 2022
In September 2021, the mother's lawyers K Lawyers wrote to the father advising him that the mother wished to make arrangements for the parenting of the children and for property settlement without proceeding to litigation. That letter contained her instructions that the mother contended that there was a history of family violence.
The father contended that the mother ceased time after a failed financial mediation in December 2021. The mother said the children ceased spending time in early December as she believed he posed a risk to them.
In late 2021, the mother attended Town S Police Station and reported to the NSW Police the history of family violence. The NSW Police issued an ADVO against the father.
In early 2022, the application was amended as an Urgent Application, with conditions providing for the father not to approach the mother or go within 200 meters of where she lived or worked. The mother included particulars of the allegations both in her report to the police and in her ADVO application.
In his affidavit in response to the application for an ADVO, the father denied knowledge of allegations of family violence. Given the contents of the September 2021 letter, that denial must be false.
On 7 June 2022, the mother filed an Initiating Application seeking urgent interim orders. On 8 July 2022 interim orders were made by a Senior Judicial Registrar including Orders 13 and 14 which said:
13. That until further order the father be restrained by injunction from coming into contact with the children or attending at the children’s school, the mother's house, any day care centre, any extra-curricular activities which include before and after school care and vacation care the children may attend.
14.That the father shall not approach the mother or the children and shall not harass and/or intimidate the mother or any member of the mother's family in any way.
In mid-2022, a final ADVO was made for the mother's protection for a period of 12 months, being up to mid-2023.
Accordingly, the mother had the protection of both the ADVO and the Orders of 8 July 2022.
Minimal contact between December 2021 and May 2022
The father said that the mother unilaterally cancelled him seeing the children after a failed financial mediation in December 2021. He said that the mother blocked his mobile phone, blocked him on WhatsApp and prevented any time. He stated in oral evidence “ever since the AVO, I've been blocked. That’s what deterred me.” He gave no evidence of attempting to contact the children until May 2022.
The father reported to the Court Child Expert that “he was worried about being accused of breaching the AVO and his lawyer had advised him to be cautious about contacting the children.” He also said the mother made a threat after the mediation, which the mother denied.

In January 2022 the mother sent a text message to the father that read “The AVO refrains from intimidating, harassing, stalking, abusing etc you are able to speak to the kids, message them, the AVO allows that, and you can verify it via your lawyer of you have confusions.”
Despite the father's allegation that the mother was the reason for no further contact, this is inconsistent with both the January 2022 text message that she sent him, and the explanation he gave to the Court Child Expert. Additionally the counselling notes between X and her first psychologist (Ms U) noted in a session in March 2022 that “[X] is very upset that her father does not respond to her messages” and in April 2022 that “[the mother] has explained to [X] that her parents separated in order to keep things safe but that her father is allowed to message and talk to her.” These contemporaneous notes do not support the father’s narrative that the mother was the reason for no further contact.
The father gave evidence that he received a text message in May 2022 from X using the mother's phone stating “I love you daddy you are the best.” His response was “[…] baby [X] my princess. Did you want to see me today?” The mother agreed this was sent from her phone and stated: “At that point, I was encouraging [X], if she wanted to speak to her father via phone, and yes, that's how that happened.” The mother went on to say that “There was a long period of time where she was not receiving any messages from her dad, from around mid-December to - until that exact time in May”, and that “that was the first time he reached out to her, or he responded to her messages, after nearly five or six months of not responding. And that was a - that was consistently happening.” The mother expressed to the Court Child Expert great concern that the father has not maintained contact with the children.
There is little evidence about communication or contact between the father, and the mother and children between December 2021 and mid-May 2022. I do not accept the father’s evidence that the mother blocked him and prevented time.
The evidence supports a finding that both the parents took a cautious approach to communication after the ADVO but that the mother did not block communication between the children and the father.
Attendance at the school and the childcare centre by the father on two dates in mid-2022
On a date in mid-2022, the father attended V School. He had received a text from X that day to which he had replied. He said he attended to drop off lunch at around 1.00pm. He said the Deputy Principal would not allow him to see X. The father said he told the school he had advice from Suburb W Police Family Violence Unit that the ADVO did not prevent him from seeing X at the school. He said the deputy principal said words to the effect of, “You can come tomorrow as that way the school has sufficient notice of you coming which would be in [X's] best interests.”
On the same day the mother requested through a letter from her lawyers that the father provide an undertaking that he not attend the children’s school or preschool without the knowledge and consent of the mother and if such undertaking was not received it will be necessary to immediately approach the court for injunctive orders.
A few days later, the father attended X's school and Y's daycare centre. The mother received a phone call from X's school principal saying words to the effect of “[the father] is here and he wants to see [X], I have told [X], she is very upset and in tears. She has refused to see him”. The mother says the school principal asked her to collect X as she was upset that the father had attended the school in an effort to see her.
On that same day, the father went to Z Childcare Centre to see Y but was not permitted to see her. He said he called Suburb W police station who told him there were no conditions preventing him from seeing the children.
A letter dated mid-2022 was sent by the father’s lawyers to the mother in response to her letter. The father’s solicitor sought an undertaking that the mother “do everything to cause [X] to return to [V School] from [the next Friday] and not do anything to prevent the father from visiting [Y] at the [Z Childcare Centre].”
A short time later, the father requested that the police do a welfare check due to the fact that the children were not at school.
The next day, the father contacted the Child Protection Helpline to report X and Y not going to school and day care because he said that their lives were disrupted and that it was not good for their routine or for their relationships with friends, teachers and so on, to be at home in a small unit.
The mother home schooled the children for about one month as she says she was fearful of the father removing the children from their school, and as she said X returned home distressed and in tears and had trouble sleeping, after the father had attended the school.
The impact of the father's attendance at the school on X was recorded by her psychologist Ms O that “her father's attendance at her school was associated with an increase in psychological distress including increased anger, fear, crying, and separation anxiety as indicated by session notes.”
The session notes in mid-2022 state “the recent appearance of her father has set back [X's] progress.”
The father initially said that he did not receive the letter of mid-2022 seeking his undertaking not to attend the school. In cross examination he said that his migration lawyer received it, but that he was not sure the letter was shared with him. He ultimately accepted it was shared with him.
The mother commenced legal proceedings as she foreshadowed in the mid-2022 letter. Injunctive orders were made by the Senior Judicial Registrar on 8 July 2022 following an interim defended hearing.
I do not accept the father's evidence that he did not have the contents of the mother's mid-2022 letter relayed to him. The contents of the later letter of mid-2022 seeking they children be returned to school and he not be prevented from visiting is responds to the first letter. I accept the mother's evidence as to her fears for the children if they were to return to school. Her evidence was corroborated by the notes of X’s counsellor. The father refused to give the proposed undertaking. Had he done so the children would likely have returned to school.
The evidence supports a finding that X was distressed by the father's actions in attending the school after months of absence causing her increased anger, fear, crying, and separation anxiety. It is also significant to note that the day he visited her was the same day X sent a text message to the father and to which he responded, after months of him not responding. These events highlight that X has conflicting views about her father and her desire to see him.
The Suburb F incident - late 2022
In late 2022, the husband arrived at a shopping centre at Suburb F where he saw the mother and X. There is CCTV footage of what occurred. He parked his car and after walking a few steps ran to the mother’s car where the mother and X were leaving the carpark. He says seeing them was purely coincidental. There is no evidence that it was other than a chance meeting.
However, in clear breach of the restraint made by the Senior Judicial Registrar on 8 July 2022, the father ran toward the car and touched the car window on the back driver's side window before backing away and walking toward the entrance. The father's evidence was “when the opportunity arose, I merely intended to assure my daughter that her father is still present within her life, as I displayed myself to her.” His evidence was that “this love took over for my daughter”. The father's counsel says he “merely tapped on the window and then stood back.” It was contended that “He was absolutely no threat to anyone in that incident.”
After the father ran toward the vehicle and touched the window he stepped back very quickly from the vehicle. It was contended by counsel for the mother that his conduct was “almost like a compulsion.” Both his conduct as captured by the CCTV in running toward the car, and his explanation in oral evidence, did indeed appear to be like a compulsion. He said the opportunity arose and he “displayed” himself to her. In oral evidence he said he did not have control and that “love will do that”. I agree with the mother's counsel's characterisation of the father's conduct.
The final ADVO was in place from mid-2022. Additionally, orders of this court were made on 8 July 2022, which were further affirmed in order 8 of the orders made by the Senior Judicial Registrar on 14 November 2022. The father accepted he knew he was restrained from approaching the mother and the children at that time.
It was contended that although he should not have approached the mother or children “equally, the mother should not have exaggerated that particular incident.” One of the criticisms of the mother was that she exaggerated reports of the father’s conduct.
It was submitted that the mother had exaggerated this incident in her evidence and that this was the type of exaggeration that has “pervaded these proceedings.” Her evidence was that she:
… sighted [the father], who was running towards me. I panicked and tried to exist [sic] the car park in the car, but in seconds [the father] was at our window, banging on the side of our vehicle. [the father's] fists were banging on the side of my window, yelling out. I was terrified but could not bring myself to look at [the father].
I reject the submission that the mother was exaggerating. The mother had orders restraining the father from approaching her. He ran to the car and knocked two or three times on the rear side window where X was sitting in breach of the orders. The CCTV does not have audio but does show the conduct of the father running toward the car, proceeding directly to the rear window, knocking on the rear car window. He said he was speaking and it is clear he was gesturing with his hands. The mistake as to which window he banged on is explicable and is not the mother exaggerating or giving false evidence. I accept the evidence she felt fear given he approached them in the face of an order restraining such conduct and I accept her evidence that she could not bring herself to look at him.
His conduct gives substance to the mother’s fears about the father’s lack of control, insight, and restraint.
It was put to the mother’s sister that she was exaggerating her evidence in order to support her sister. Specifically, the sister described what she had seen of the father’s conduct on the CCTV footage as him “running toward the mother’s car from the carpark” and “tapping on the window.” The sister did not accept she exaggerated her description. I agree. The father ran toward the mother’s car and tapped the window. There was no basis to suggest the description given was other than accurate. I reject the contention that the mother’s sister was exaggerating. She was a frank witness and I accept her evidence.
Following the above incident, X, in particular, was unsettled and had ongoing trouble sleeping. Her behaviour became disruptive for over one month and she would lash out at the mother and Y on occasions. They had disrupted sleep as a result and X found it difficult to focus on her schoolwork.
There was no acknowledgement by the father of the serious nature of the breach of the order or of its impact. His breach was deliberate and flagrant. He saw them and ran toward the car. Both his conduct and his assertion that the evidence of both the mother and the maternal aunt was exaggerated is extraordinary given his conduct. His actions and his contention of exaggeration are indicative of his lack of insight as is his own sworn evidence that “I am very capable of regulating my behaviour.” His conduct in breaching the restraint and approaching the mother and children does not show a capacity to regulate his behaviour.
Ms O’s note dated February 2023 (Exhibit 26) recorded that following the contact by her father approaching her “[X] had endorsed a number of symptoms consistent with psychological harm and trauma as a result of her father's behaviour and his approach of them at the market.”
The session notes recorded psychological distress associated with contact with her father resulting in functional impairment “significantly interfering with her school work, her sleep, her ability to complete her daily routine, and her emotional wellbeing.” The notes included that X reported the following symptoms when approached by her father, which are consistent with the trauma response:
itching/scratching, raised and hunched shoulders, wide-eyed staring, wanting to run away, butterflies in tummy, feeling like cracking or shattering, curling up/foetal position, feeling alert and hypervigilant, feeling flushed, shaking/agitated, sweating, clenched jaw/tight fist, biting nails, pounding heart, hiding, crying, backing off/recoiling, distracted, frozen, shutting out/covering ears.
These records support the finding that X had an adverse response to the father's conduct on this day.
The father approached the mother and children despite his knowledge of the order of the Senior Judicial Registrar that he not do so. It was frightening and distressing for the mother. It caused a trauma response in X as recorded by her counsellor.
The T Shopping Centre- late 2023
The family attended Dr B for the single expert report interviews on 14 November 2023. The single expert decided not to observe the children with the father on account of the distress that it would cause and advised the father of her decision.
The father was at the T Shopping Centre in late 2023, when he saw the mother and the children. He ran towards them from behind and put his hands on X’s shoulders. The mother and the children then ran away from him.
The mother’s evidence was that she saw the father from a distance a few shops away and started to walk briskly away in the opposite direction. This evidence is supported by the CCTV footage.
The mother contended that the footage shows that the father caused the mother to release her grip of X’s hand as a consequence of him grabbing her shoulders. The father contended that an unknown child came between the mother and child causing them to release their grip, and then the father then put his hands on her shoulders. The footage shows that a small child comes between the mother and X causing them to cease holding hands. At precisely this time the father, who ran from behind, put his hands on X’s shoulders.
X ran with her mother and sister away from the father and continued to run. There was no audio. The father says he gestured that he loved her and blew a kiss in her direction. The footage, although difficult to see, appears to be such a gesture.
Why the mother and child stopped holding hands is irrelevant. The father was seen by the mother and she was trying to leave. She was moving briskly with the children. The father ran after them. He knew this was in breach of the injunction made by the Court. This event happened only days after the single expert report interviews with Dr B. At that time, the single expert advised the father that to assess the children with him might be distressing for them, and the benefit of conducting the observation would need to be weighed against the distress it might cause, which Dr B reported he understood as he had not spent time with the children for two years.
The CCTV footage shows the mother and children were escorted to their car by security. The father said in evidence “I only wanted to reassure them that I was alive. I touched [X] on the back and said words to the effect of; “I love you so much.””
As a result of this incident, in late 2023, the father was served with a Provisional ADVO listing him as the defendant, and the mother and the children as the protected persons. The father's evidence was that he is defending the ADVO and that it is ongoing in the Suburb H Local Court.
This event is important as it shows the father on a second occasion wilfully breaching a restraint of this court, in a public place. It shows the mother to be obviously seeking to leave the area to avoid contact with him. Her behaviour is consistent with her description of being fearful of the father or at least attempting to avoid contact with him. His conduct in chasing after the mother and children shows he is either incapable or unwilling to abide by orders of the Court. This is the second occasion he has happened to see the mother and children, and the second occasion he has breached an ongoing injunction. There is no doubt he lacks insight to understand the impact of his behaviour on the mother and children. He is undeterred by court orders not to approach and through his counsel minimised the significance on both occasions when he breached the restraints and approached. Again, his conduct is inconsistent with his sworn evidence of being very capable of regulating his own behaviour.
I accept the mother’s evidence as to the impact of his conduct in causing her fear and anxiety and that the children were distressed and fearful as a consequence of his conduct on this occasion.
The father’s conduct in approaching the mother and children on both occasions in breach of restraints issued by this court is family violence as defined in section 4AB of the Act.
Conduct of Court Proceedings
On the afternoon of the first day of the final hearing counsel for the father made an oral application that the mother should be required to remove her face covering.
At the same time, counsel for the mother made an application for the father not to be present in the courtroom whilst the mother gave her evidence. The father opposed this application. For the reasons set out in Waugh & Rozon [2024] FedCFamC1F 268, I granted this application.
In relation to the father's application for the mother to remove her face covering, it was submitted that the father would be prejudiced if he were not to see the mother's face, as he would be required to “assess her credibility” for the purpose of giving instructions. The mother opposed the application, however, did not oppose the removal of her face covering if there was a screen and if the father was in a separate room. For the reasons set out in Waugh & Rozon [2024] FedCFamC1F 268, I ordered that while the mother is being cross examined she will remove her face covering; that only necessary males, being the mother’s solicitor and counsel for ICL, be present in the court room; and that the mother will give her evidence where I can see her with the benefit of a screen, in this case being a whiteboard that was brought into the courtroom, which was used to screen the mother.
It was submitted by counsel for the mother that the father's conduct in making the application to remove the face covering and for him to remain in the court room for her evidence, at the commencement of the hearing, were an attempt by the father to intimidate and exert control over the mother.
It was put to the father in cross examination that the application for the mother to remove her face covering could be seen as intimidating the mother, to which he responded “it's a culture thing or a religious thing, so I - I don't see an issue with removing it.” He stated that “It's just transparency for the court”. It was also put to the father that he was aware that the mother had always, since the commencement of the relationship, chosen to cover herself, to which he responded “I asked her to take it off… I never accepted it.”
In written submissions on the issue, it was submitted on behalf of the mother that:
The mother respectfully submits that the father is well aware of the damage and ramifications that will flow from forcing her to remove her [face covering] for the purposes of cross examination. To this end, the mother contends that the father is attempting to intimidate her and therefore the mother urges the Court to not enable the father to lawfully breach his ADVO which was properly issued by the NSW Police.

After carefully considering the father's evidence, and in particular, his adherence to his application that the children spend a limited amount of time supervised (one month) then move to unsupervised time, I have serious reservations about the extent of the father's insight, and scepticism about his capacity to engage with necessary mental health supports. His proposal takes no account of the needs of the children, or the opinions expressed as to the time the father would require to stabilise his mental health issues. There is no basis to make the orders sought by the father which ignores the identified risks. The application itself is a stark example of the father’s lack of insight or acknowledgement of the risk issues arising from his behaviour and his untreated mental health issues.
Will the father engage with treatment options as he now contends?
The father’s mental health is one of the factors which poses an unacceptable risk to the children. The single expert opined that the father required the treatment set out above at [231].
The single expert opines that “because of his lack of insight, the […] medication takes on an even more important role… particularly in the initial phases of treatment”.
In the event the father did embrace and comply with the supports recommended, and only then, the single expert was of the opinion that supervised time could ameliorate the risks of the children being exposed to psychological or physical harm.
The single expert recommended professional supervisors who could initially supervise in a professional setting, and then, ongoing professional supervision, but in a community or more normal setting, supported by ongoing professional therapy of both children, and supported by observations of those caring for the children such as school teachers.
The preconditions to the time occurring as recommended by the single expert was that the father was compliant with medication for at least 6-8 weeks, and thereafter, engaged in the therapeutic treatment recommended by the treating professionals.
As referred to in [234]-[235] above the father has had a long history of non-compliance with treatments.
The father called no evidence as to any supports from professionals, family, or friends. Although his counsel contended he had the support of his mother who could be a supervisor, there was no evidence called from the paternal grandmother as to her prior relationship with the father or the children, of her knowledge of the father’s mental health history, or of supports available.
The father’s evidence in respect of his mental health was minimal. In his affidavit he made a passing reference to his prior history with no detail. Most concerningly, in the context of the multiple recommendations he has received as to treatment and medication, his evidence was that he is currently not seeing any mental health professionals. Although he said there was a financial obstacle in that regard I do not put weight on that as a reason. He previously assessed public assistance and did not continue with that support and he gave evidence he was employed during the marriage. His current financial circumstances are unclear although there was some evidence he was to inherit from his late father’s estate.
The father’s oral evidence showed a disturbing lack of insight as to the nature and extent of his need for treatment and curiously maintained a position that the single expert may change her recommendation as to the father’s diagnosis and treatment once she had seen the mother’s past medical records.
Counsel for the father informed the court during submissions that the father would comply with the recommendations of the ICL. An undertaking was read onto the record by counsel for the father as the following:
I will ensure that I take all medication prescribed to me by my general practitioner or psychiatrist for my mental health issues, for as long as they recommend. I will ensure that I attend all appointments made with my psychiatrist at times and dates, as directed by them. I agree to be bound by this undertaking until excused by the court.
As referred to above, the father provided no evidence of any engagement with mental health professionals or of compliance with recommended treatment. To give an undertaking in circumstances where he has taken no steps, is of very little weight. He provided the undertaking where he failed to appreciate the significance of his breach of an order of this court on two occasions. I can give little weight to his undertaking against a background of inaction as to his treatment and flagrant breaches of court orders.
The best indicator of the future is the past. The father has not engaged in any meaningful way with supports, medication and treatment despite being under the microscope of the court and despite clear recommendations as to necessary treatment. If the father has failed to engage in any way with the recommendations throughout this litigation where his behaviour has been subject to close scrutiny, I can have little confidence he will comply in the future.
Should orders be made for the children to spend time that is subject to supervision?
As discussed above at [294], the father gave evidence of the parenting courses that he has completed pursuant to orders of the court dated 14 November 2022, including “Talking with your kids-post separation course”. Though, as outlined above, his actions in approaching the mother and the children after completion of the courses, in breach of orders, following his interview with the single expert attracts the finding that no insight or parenting skills were gained from the completion of same.
The ICL sought orders that time be supervised for 26 fortnightly visits at a contact centre and thereafter fortnightly visits with a contact service, such as GG Family Services. In effect, the ICL seeks long term supervision orders.
The single expert opined at pages 63-64 that the children are at risk of psychological and physical harm if they spend unsupervised contact with the father. She further opined by that long term supervision was the means by which the children, in her view, would safely spend time with their father. She suggested initially in a professional centre, but thereafter in a public setting to be more normal for the children.
The father raised his mother as a potential supervisor. She was not called as a witness and such a proposal was strongly opposed by the mother. There is an absence of any evidence as to the suitability or otherwise of the paternal grandmother for such a role.
Having regard to the risk outlined above, and the impacts upon both the children and the mother, the only possible outcome where the children spend time with the father is one of indefinite long-term supervision.
The authorities (Gorman & Huffman and Anor [2016] FamCAFC 174 and Keighly & Keighly [2023] FedCFamC1A 146) state that an order for indefinite supervision while often undesirable, may be warranted in circumstances where it would be in the child’s best interests to ameliorate risk by supervision while promoting a meaningful relationship with the supervised parent. While long term supervision orders are rare, that is not a basis upon which a court would decline to make such an order where the evidence supported its making. The authorities which deal with this issue, as his Honour Tree J observed in Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96 at [19] cited with approval in Bielen & Kozma (2022) FLC 94-123 at [67], “are not legislative edicts and each case must be decided on its own facts”.
The question in this instance is whether long term supervision would facilitate a meaningful relationship between the children and the father while ameliorating the risks.
There are numerous reasons why a Court is not often persuaded to make long term supervision orders including: whether the arrangement is capable of supporting a meaningful relationship between the children and the father; the artificiality of the arrangement, particularly in a contact centre; the long-term sustainability of such limited time; and the costs of the professional agency or supervisor.
In this case, the children are very young and have spent no time with their father since 2021. A long-term order would continue potentially for 13 years for Y who is only five years of age. The unacceptable risk in this case, is complex as it is multifaceted.
The single expert said her reason for recommending supervised time was:
Because based on my understanding of the collateral information, that anger at times can be quite significant, and he has reportedly engaged in physical aggression, and emotional – or exposing the children to domestic violence. And despite interventions, he continues to – that his history suggests that he continues to have some of these difficulties, although he didn’t report them in any great detail in the assessment. And so, therefore, I would – I think that the way to mitigate against the risk of that potential manifestation of any kind of emotional dysregulation is for him to have supervised contact with the children.
When asked why there should be contact at all, the single expert said:
Because when I considered what [X] had said to other people, although she didn’t articulate that in the assessment with me, she clearly wants to have a relationship with her father. I also feel that there is – that she is vulnerable to internalising a negative concept of herself if the only – if she’s seen as being similar to her father in some respects, and has no experience of a more positive view of her father that she constructs herself, which will only be able – which will be able to be facilitated if her father can’t have a meaningful relationship with her. In terms of [Y], she presents as being more psychologically intact, and what we know from the literature and research is that it is important for children, or it is usually in children’s best interests, to have a meaningful relationship with both parents.
She went on to say that:
I think overall, if she didn’t have contact with her father, she’s at risk of demonising a part of herself, which in turn – which could potentially impact on her own capacity to self-regulate, and also on her own self-concept. And her father appears to hold her in positive regard and love her, despite his difficulties. And that is a very powerful thing, for children to be reflected in a positive way by people who love and care for them, is how they maintain their own sense of self.
In essence, the reasons were based on X’s wishes to spend time with her father and the other being opportunity to develop a self-concept that is not negative and integrates parts of her father into her self-concept.
I am troubled by the reasoning as it appears to put significant weight on what was expressed in 2022 and fails to address the fear and concern more recently expressed by X.
Y is at a different developmental stage and as such, she does not have a pre-existing relationship with her father. Therefore, there will be less sensitivity to the absence of her father. The single expert opined if she was exposed to a negative view of him that could be detrimental.
The single expert agreed that if the father had no intervention in relation to his mental health, then more caution should be applied as to whether there was to be any supervised time. I agree that a cautious approach is warranted in circumstances where the father has not engaged with any ongoing intervention in respect of his mental health despite recommendations that he do so.
On balance, if each of the identified risks were ameliorated, then the fact that supervision would be long-term is no impediment to such orders being made in the event it was ultimately in the best interests of the children. Such order would protect the children from risk of harm arising from physical harm. Such orders would potentially give the mother a level of comfort in relation to the safety of the children. Such orders would ensure that X was able to have a relationship and spend time with her father as she had previously articulated as her wish while protecting her from her expressed fears arising from anger or risk.
However, there is no evidence that the father will develop the insight into his own perpetration of family violence and the impact of this upon the children, or the benefit of treatment for his mental health, that would ameliorate the risk. This is especially so in circumstances where the children have a very limited relationship with him. Further, in the circumstances of long-term supervision, which I have found is the only contemplatable outcome for the children to spend time with their father, their capacity to build a meaningful relationship with the father would be limited. Additionally, the potential risk to the mother’s parenting capacity as identified above is a factor to which I give weight. Although finely balanced, considering all of the benefits and risks, it is ultimately not in the children’s best interest to spend indefinite supervised time with their father because the identified risks are unacceptable and are unable to be ameliorated.
What are the risks to the children of not spending time with their father?
The single expert opined that the risk of harm to X of not spending time with her father was twofold, first it was contrary to her “wishes” and secondly it was necessary for her sense of self for her to spend time with her father.
As referred to above, I am not satisfied that the “wishes” were necessarily as clear as the single expert appeared to accept. The evidence supports a finding that X has expressed mixed views and wishes.
The single expert recommended a cautious approach to weight to be afforded to the wishes of a ten-year-old child and said, “I think we have to be judicious in according ability and capacity to make rational decisions that are very emotionally laden for very young children, and that’s what the science tells us.” I agree that a cautious approach is appropriate in the circumstances of this case.
The second reason opined as to why X should spend time with the father was in respect of the development of her “sense of self” and identity. The single expert also deposed that having the father missing from her life may see her run the risk of “having a more fragmented identity”.
It was noted by the single expert that, in respect of Y, she is at a different developmental stage, does not have a pre-existing relationship with the father, and therefore, there will be less sensitivity to the absence of her father than with X. However, she opined that time will be particularly important if she is exposed to a view that her father is a negative person and that she has not had the opportunity to experience him.
Importantly, the single expert agreed that if the father is unwilling or unable to attend to his mental health concerns, the possibility of the children building a positive self-concept from time with their father diminishes. I give significant weight to this factor given his failure to engage on an ongoing basis with the recommended mental health supports and treatment.
The single expert agreed however that if the children start spending time with their father and it is an entirely negative experience, and they do not experience it as positive, it would have the opposite effect and be potentially damaging to their positive self-concept.
In respect of the second of the reasons for X to spend time with her father, the mother has arranged for ongoing counselling for X as required and such counselling should ameliorate the risk identified.
In respect of Y, she was young and has no direct memories of her father. She has not expressed any views. The issues identified by the single expert of the risk arising from her sense of self and identity may also apply to Y. I am satisfied that in the event Y has a need for therapeutic support and counselling the mother will make appropriate arrangements for Y as she has for X.
As such, I find that the risks associated with spending no time with the father, particularly to the children’s development and sense of self, do not outweigh the risks of harm arising from spending time with the father. I find that it is in the children’s best interest to spend no time with the father.
Should the children communicate with the father?
No party made any submission about identity time and whether it provided any benefit to the children. The single expert was not asked about identity time. Based on the evidence there is no capacity for a finding to be made that identity time provides benefit for the children or is in their best interests.
Similarly, there was no evidence and no submissions made about the children’s best interests being served by letters and gifts being received. X has a clear memory of her father and expressed a mixed presentation of her stated desires in 2022 and was not interviewed by the single expert for the recent report.
The only evidence that was relevant to this consideration is found in the detailed counselling records where X expresses positive memories and wishes to have a relationship while also expressing significant fears and concerns as to her and her mother’s and sister’s safety. The notes of X’s counsellor in April 2022 recorded that “[X] keeps a box in which she puts artworks and letter for her Dad which she hopes to present him one day.” This accords with her wishes reported to the Court Child Expert in November 2022 and supports a finding that X has expressed a desire at that time to communicate through writing with her father. Shortly after separation the mother had facilitated text and telephone communication. I am satisfied that if X through her counsellor expresses a desire to send cards and letters to her father, and it is agreed to be in her best interests, that the mother would again facilitate such communication.
The mother sought that the father be restrained by an injunction from communicating with the children in anyway or causing another party to communicate with the children on his behalf. The father sought an order for the children to communicate with him each Thursday from 6.30pm to 7.00pm and at any reasonable time and frequency that the children wish. The father also sought further communication orders in school holiday periods. It was submitted on behalf of the mother that, in terms of the risk of family violence, if there is communication between the parties, that risk is ongoing. The single expert in her report at page 79, indicates that the mother is at risk of continual exposure to family violence and indeed sexual violence if it is that there is contact between her and the father.
The provisional ADVO that was current at the date of final trial includes a prohibition on the father approaching or contacting the mother or the children in any way.
Dr B identifies the risks to the mothers parenting capacity if there is ongoing communication between the parties. Given the young ages of the children and the father’s inability to regulate his conduct at times, it would be necessary for the mother to filter any written or telephone communication in circumstances. Imposing this responsibility on the mother, in light of all of the evidence about the impact upon her mental health and parenting capacity in interacting with the father, could not be considered to be in the children’s best interest. This is particularly so in circumstances where I am already satisfied that they should not spend any time with the father – them having communication with him is of little utility. For these reasons, I decline to make any order for communication between the father and the children.
OTHER ORDERS
Information sharing
Although I am not satisfied that is in the best interests of the children that communication occurs directly between the parents for the purposes of making decisions and considering views. I have found that the mother should inform the father about a change of school to enable him to remain informed of their progress if he chooses to seek such information.
Restraints

I have found that the mother was exposed to physical and sexual violence, as well as coercive control. The father denied the extent of the family violence alleged by the mother. He lacks insight about family violence and has marked deficits in empathy.
A provisional ADVO was made in late 2021 which became final in mid-2022, and expired in mid-2023. On 8 July 2022 the Senior Judicial Registrar made injunctive orders. In late 2023 a further interim ADVO was made after the incident at T Shopping Centre. The final determination of the further ADVO had not been concluded at the date of the final hearing. The father gave evidence he is “fighting it” and that it was next listed in the Suburb H Local Court at a future date.
The mother sought an order of this court that the father to be restrained from approaching her, the children, her residence or the children’s schools. The evidence from the children’s and the mother’s treaters was that the father approaching them in T Shopping Centre and in Suburb F caused fear, and had an ongoing deleterious impact on the mother and X following these incidents. Even with the orders restraining him, the father has been unable to resist approaching the mother and children on the two occasions.
The mother sought injunctions against the father in the nature of orders precluding him from contacting or approaching her or the children. The Act (s 114AB(2)) precludes such injunctive orders when orders of that sort made by State and Territory courts are in force, or alternatively, proceedings in respect of such orders are pending before a State or Territory court.
The existence of the NSW ADVO proceedings precludes such an order being made at this time.
The father made a complaint about the mother’s sister to a professional regulatory body. The complaint was without merit and was dismissed. There is no doubt that would have been distressing for the mother’s sister and likely for the mother, as her sister is a significant support to her in the care of the children. In this case however, the complaint was dismissed and there is no evidence of other similar conduct by the father. I refuse to make the restraints sought.
Engagement with mental health providers
The ICL and the father sought orders for the father’s attendance upon his mental health providers and ancillary orders.
As the Full Court held in Oberlin & Infeld [2021] FamCAFC 66, the Court does not have the power to make a self-standing order of this nature. As confirmed in the decision of the Full Court in Jacks & Samson (2008) FLC 93-387 an order compelling a parent to attend upon a therapist can be made pursuant to s 67ZC absent an attached parenting order, but only if it is necessary for the welfare of the children.
I decline to make the orders sought because there is no connection with a parenting order that is to be made. I, however, agree that the parties each may benefit from appropriate psychological and psychiatric support if they choose to seek the supports that have been recommended in furtherance of their roles in the children’s lives. Accordingly, I order that each parent is at liberty to provide a copy of the report of Dr B and a copy of these reasons to their respective treatment providers. I further order that the mother is at liberty to provide a copy of the single expert report and these reasons to the children’s treatment providers.
School holiday, special occasions time and changeover
In circumstances where I have ordered that the children spend no time with the father, the father’s orders sought in relation to school holiday time and special occasions time are dismissed.
Communication between the parties
The parties have an inability to communicate.
The ICL sought an order for the parties to communicate through the application OurFamilyWizard. As referred to earlier in these reasons, the only communication that should occur is communication that is necessary to keep the father informed medical emergencies or a change of the children’s school and should occur in a way that limits the impact on the mother’s parenting and minimises interaction between the parties. The father made no submission about the mode of necessary communication.
It was submitted by counsel for the mother that if there is any ambiguity built into a set of orders about communication of information about the children, the father will behave in the way he has previously behaved, which is take what it is he desires and interpret his rights around that. That conduct was illustrated by his attendance at the school and his approaching the mother and children at Suburb F and T Shopping Centre. Having a clear mode of communication where necessary will remove any ambiguity in respect of the obligations arising pursuant to these orders.
The single expert opined that exposure to communication between the mother and the father puts the mother at great risk of exposure to family violence. The single expert also opined that the mother’s symptoms of that PTSD can be triggered by contact or communication with the father. I agree and give weight to that opinion.
In balancing the need for specific communication against the risk of harm the most appropriate order is that the mother should notify the father of change of schools or medical emergencies through the OurFamilyWizard application as sought by the ICL. No party suggested an alternate parenting application for the purposes of communication and accordingly, the application proposed by the ICL shall be the mode of the parent’s necessary communication.
For the reasons above, I do not find it in the children’s best interests, noting the risks identified, that the parents notify each other of their residential address or telephone numbers, or otherwise communicate.
The father sought an order that the parent with whom the child is spending time with notify the other of any medical decisions to be made. As the mother holds sole parental responsibility pursuant to these orders such as order is not necessary and is not supported on the evidence. The father and the ICL, in slightly different terms, sought orders for the father to be notified of any medical issues of the children. It is appropriate, as sought by the ICL that the mother shall inform the father as soon as practicable of any major health issues of the child via OurFamilyWizard for the reasons set out at paragraphs [391] - [394].
Non-denigration
The father contended that the mother had influenced the children against the father. He raised his concern of alienation by the mother with his then psychologist Ms L in his written notes to her. The father was critical that the child X had seen legal documents which he contended influenced her against the father. The mother explained the police paperwork was usually locked away and if X did see any material it was inadvertent. There is no evidence that the mother had otherwise denigrated the father.
However, given the evidence from the single expert about the importance of the children having a positive self concept, any negative talk or exposure to documents that may denigrate the father should be prevented. Given the mother says any exposure to written material was inadvertent and that otherwise she does not say negative things about the father, the order is not onerous on her.
Accordingly, I make such an order.
Attendance on school events and extracurriculars
In circumstances where I have ordered that the children spend no time with the father, the father’s orders sought in relation to school events and extracurriculars are dismissed.
ICL costs
The ICL sought that the mother to pay to Legal aid NSW her share of the ICL’s cost being a total of $7,819.95. The mother is the sole provider for the children and receives minimal funds in child support, she has minimal assets and no income stream. I am satisfied having regard to the financial circumstances of the mother and the evidence about child support that the provisions of s 117(4)(b) of the Act apply in respect of the mother and that she would suffer financial hardship if she had to bear a proportion of the costs of the Independent Children’s Lawyer. The application is refused.
BEST INTERESTS – ADDITIONAL CONSIDERATIONS
In addition to the reasons above, I address each of the additional considerations below.
s 60CC(3)(a) - Any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child’s views
The views of the children, and particularly of X, have been addressed extensively in these reasons. This matter involves significant and complex issues. I put little weight on the view expressed by X in 2022. The ages of the children are a significant consideration as to the weight to be given to the view expressed at that time.
s 60CC(3)(b) - the nature of the relationship of the child with each of the child’s parents and other persons
The children are primarily attached to their mother and they have a strong relationship with her. Their relationship with the father is estranged, particularly for Y who was three years of age at the time of separation.
Y said that she remembers her father, but that “my Mum said that I can’t see him because my Dad’s working”. She remembers that she went to the park with her father and that it was “fun”. Y commented that she is not scared of her father, but does not miss him, and that she remembered playing games with him.
The maternal aunt is a source of support to both the mother and the children, and I accept that she is an important person in their lives.
s 60CC(3)(c) - the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The father has not spent time with the children or played a role in their lives since 2021. The mother’s evidence, which I have accepted, is that early in separation the father did not engage with the children, or did so sparingly.
The mother is the children’s primary caregiver, and she has continued to appropriately exercise her parental responsibility, this is demonstrated in her engagement of psychological care for X in particular.
s 60CC(3)(ca) - the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents obligations to maintain the child.
The father has been working part time throughout the proceedings and although he indicated an intention to return to full time employment. His child support obligations are minimal at present.
s 60CC(3)(d) - the likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either parent.
The protection of the children from the identified harm in this matter has been extensively addressed in the reasons above and although the consequence is a complete separation from their father for the reasons set out that is in the best interests of the children. This will not represent any significant change from their current circumstances, which have been in place since separation, save for the finality of such arrangements.
s 60CC(3)(e) - the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The orders made are a continuation of the arrangement that has been in place since 2021, which imposes no practical difficulty. If the children were to spend supervised time with the father on a long-term basis this would create both practical and financial complexity.
s 60CC(3)(f) - the capacity of the each of the parents and any other person to provide for the needs of the child (e.g. emotional and intellectual needs)
A diagnosis of a mental health issue does not of itself mean a party lacks parenting capacity, however, in this case, the lack of engagement with identified mental health concerns, coupled with the father’s lack of insight and emotional regulation cumulatively raise serious issued of risk. These aspects have been addressed earlier in these reasons, as has the mother’s capability to provide for the needs of the children, particularly against the backdrop of the trauma of her relationship with the father and her own mental health challenges.
s 60CC(3)(g) - the maturity, sex, lifestyle and of the child and of either of the child’s parents and
This is dealt with in the balance of the judgment.
s 60CC(3)(i) - the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
This is dealt with in the balance of the judgment.
s 60CC(3)(j) - any family violence involving the child or a member of the child’s family
As referred to in the body of the judgment, the mother has expressed, and I accept her evidence, that she is fearful of the father and has been exposed to family violence both before and after the parties separated. Section 4AB of the Act defines family violence and includes in the definition behaviour that causes the family member to be fearful. This ongoing fear and its impact on the mother’s parenting, coupled with the issues of risk, supports that the orders made are in the children’s best interests.
s 60CC(3)(k) - if a family violence order applies, or has applied, to the child or a member of the child’s family - any relevant inferences that can be drawn from the order
The father was subject to an ADVO which expired in mid-2022 and, at the time of trial, was subject to a provisional ADVO from late 2023 following from the incident at T Shopping.
s 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The father’s untreated mental health issues are a significant risk factor. If his mental health improves, and he has a sufficient period of treatment and compliance with any necessary regime, there may in the future be grounds for a variation to these orders. However, as it currently stands the father has taken no such steps as discussed in detail in the above reasons. His inaction and lack of insight, together with the other identified risk factors causes me to conclude that it is in the best interests of the children for there to be no time and no contact with their father.
CONCLUSION
I am satisfied that the orders made are in the best interests of the children for the reasons set out herein.

I certify that the preceding four hundred and eighteen (418) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Curran.
Associate:
Dated: 2 August 2024

File number(s):	SYC 3879 of 2022
Judgment of:	CURRAN J
Date of judgment:	2 August 2024
Catchwords:	FAMILY LAW – PARENTING – Where orders made for the mother to have sole parental responsibility by consent – Where the mother alleges the father is an unacceptable risk of harm – Where the mother alleges the father perpetrated coercive and controlling family violence against her – Where the mother alleges the father perpetrated physical family violence against her – Where the mother alleges the father poses an unacceptable risk of harm due to his mental health – Where the father has not engaged in treatment of his mental health – Where the father alleges the mother poses a risk of harm due to her mental health – Where the father has not spent time with the children since separation – Consideration of Re Andrew principles – Where the father poses an unacceptable risk of harm – Orders made for the father to spend no time and have no communication with the children
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61B, 61DA, 67ZC, 114AB, 117
Cases cited:	Bant & Clayton (2015) 53 Fam LR 621 Bielen & Kozma (2022) FLC 94-123 Carter & Wilson [2023] FedCFamC1A 9 Fitzwater v Fitzwater (2019) 60 Fam LR 212 Gorman & Huffman and Anor [2016] FamCAFC 174 H v R [2006] FamCA 878 Illgen & Yike [2018] Fam CA 17 Isles & Nelissen (2022) FLC 94-092 Jacks & Samson (2008) FLC 93-387 Keane & Keane (2021) 62 Fam LR 190 Keighly & Keighly [2023] FedCFamC1A 146 Norton v Landell (Consent Final Parenting Orders) [2015] FamCA 96 Oberlin & Infeld [2021] FamCAFC 66 Outhred & Outhred [2020] FamCA 639 Ramzi & Moussa [2022] FedCFamC2F 1473 Re Andrew (1996) FLC 92-692 Waugh & Rozon [2024] FedCFamC1F 268
Division:	Division 1 First Instance
Number of paragraphs:	418
Date of hearing:	2-5 April 2024
Place:	Sydney
Counsel for the Applicant:	Ms Cantrall
Solicitor for the Applicant:	Gannon Family Law
Counsel for the Respondent:	Ms Winfield
Solicitor for the Respondent:	Choice Law Group
Counsel for the Independent Children's Lawyer:	Mr Hill
Solicitor for the Independent Children's Lawyer:	Farah Lawyers, Solicitors & Barristers

SYC 3879 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS WAUGH Applicant
AND:	MR ROZON Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CURRAN J
DATE OF ORDER:	2 AUGUST 2024