Antoun v R

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

House v The King (1936) 55 CLR 499; [1936] HCA 40

Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Malcom & Pereira [2025] FedCFamC1F 256

New South Wales v JR [2024] NSWCA 308

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

SS Hontestroom v SS Sagaporack [1927] AC 37

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

1. The appeal is dismissed.
2. The appellant shall pay the respondent's party/party costs of and incidental to the appeal, fixed in the sum of $24,120.54.

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 Malcolm & Pereira has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The appellant appeals orders made on 22 April 2025 by a judge of the Federal Circuit and Family Court of Australia (Division 1). The Court ordered that the respondent ("the mother") have sole parental responsibility for the children, X, born 2014, and Y, born 2016 (collectively "the children"), for the children to live with the mother and that the appellant ("the father") spend no time nor communicate with the children. The reasons for the orders were published in Malcolm & Pereira [2025] FedCFamC1F 256 ("the judgment").
2. The orders were made following a six-day hearing which commenced in February 2025. Each party was represented by counsel as was the Independent Children's Lawyer ("ICL"). There are ten grounds of appeal. The grounds can be summarised as follows:

(a) the primary judge erred by failing to accede to the recusal applications made by the father (Grounds 1 & 2);

(b) the primary judge erred by not allowing the father to lead evidence concerning his employment. Alternatively, the primary judge erred by not affording the father procedural fairness by not giving the father's counsel an opportunity to respond to the mother's counsel's objection (Ground 3);

(c) the primary judge erred by not allowing into evidence the affidavit of Mr J concerning attempts to engage contact centres and to seek counselling with counsellors and psychologists (Ground 4);

(d) the primary judge erred by making erroneous findings of fact (Ground 5);

(e) the primary judge erred by making a no contact order (Ground 6);

(f) the primary judge erred by not finding that the mother and her unknown partner presented an unacceptable risk to the children (Ground 7);

(g) the primary judge erred by not taking into consideration the mother's failure to call "Mr G" to give evidence or, in the alternatives, by not drawing an adverse inference or failing to afford the father procedural fairness by not considering the father's argument regarding the failure to call "Mr G" (Ground 10); and

(h) the primary judge erred by failing to have regard to ss 60CC and 60CG of the Family Law Act 1975 (Cth) ("the Act") (Grounds 11 & 12).

1. By way of background, the parties were married in an Islamic religious ceremony in 2013. They commenced cohabitation in August 2013.
2. For a brief period, the father relocated to City E in the Country F for employment and the mother remained in Country B. The first child was born in 2014. In 2016, the parties moved to Australia and the second child was born shortly thereafter.
3. At the beginning of 2020, the parties separated on a final basis. It was the mother's case that physical separation occurred in September 2020 after family violence perpetrated by the father onto her and the children. The mother's allegations include that the father was physically and sexually abusive towards her and sexually abused the eldest child.
4. The father was arrested in late 2020 and, on the mother's evidence, was charged with:

(a) two counts of common assault against the mother;

(b) stalk or intimidate intending to cause fear of physical or mental harm;

(c) sexually touching the mother without consent;

(d) two counts of intentionally inciting the elder child to "sexually touch" the mother; and

(e) two counts of intentionally inciting the younger child to "sexually touch" the mother.

1. The father was convicted of the offences referred to at (c), (d) and (e) above. Those convictions were set aside in early 2023 by a judge in the District Court of New South Wales.
2. The mother has remarried but elected not to reveal the identity of the individual, referring to him as "Mr G". He did not give evidence but met with the Court Child Expert ("CCE") and his exchanges with the CCE are recorded in the Family Report dated 6 March 2025 ("Family Report").
3. The primary judge identified the allegations of family violence made by the mother at [75] of the judgment as follows:

75 ...

(a) Whether the father has physically and sexually assaulted the mother;

(b) Whether the father has denied the mother financial autonomy and/or unreasonably withheld financial support;

(c) Whether the father has made repeated derogatory taunts of the mother;

(d) Whether the father sexually abused the child;

(e) Whether the father has engaged in "inappropriate and sexual behaviour towards the children";

(f) Whether the father assaulted the children by the method of "waterboarding" as a means of punishment; and

(g) Whether the father has verbally and physically abused the children and exposed them to family violence.

1. The primary judge held that the evidence established that:

(a) The mother was subjected to family violence in August 2013 (although the primary judge at [86] of the judgment erroneously stated that this event occurred in August 2023);

(b) the father abused the mother in City E by locking her out of the apartment where they lived from time to time;

(c) the mother was a victim of family violence in May 2020 where it was alleged that the father pushed her over and slapped her. The primary judge held that the children had witnessed this instance of family violence; and

(d) the mother was the victim of family violence in July 2019 by the father taunting and denigrating the mother by suggesting that she required medical assistance and taking video footage of her when she was distressed.

1. For reasons expressed in detail, the primary judge did not accept that the evidence established, to the requisite evidentiary standard, that the father had engaged in family violence by:

(a) assaulting the mother by inserting a cotton ball covered in a "red substance" into her vagina;

(b) requiring her to carry out his sexual fantasies or coercing third parties to participate in sex acts with the father;

(c) denying the mother financial autonomy;

(d) repeatedly subjecting the mother to derogatory taunts;

(e) sexually abusing the children; and

(f) subjecting the children to punishment by waterboarding.

1. The primary judge held at [146] of the judgment, that the children might need protecting against harm they are liable to suffer through abuse by the father. The primary judge qualified that statement with, "even if that finding was erroneous, the risk to the children arises from implacable opposition by the mother to any time between the children and the father". It was the opinion of the CCE at paragraph 73 of the Family Report that "any form of communication between the parties is likely to cause increased distress for [the mother]". The primary judge held at [147] of the judgment:

147 Further risks arise from:

(a) The father's "very limited insight into the gravity of his proposal in having the children go through a change of residence, and the distress that this may cause them";

(b) The rejection by the children of any form of relationship with the father. It is the opinion of the Court Child Expert that given such rejection, she would have concerns about the children's physical safety if they do spend any time with the father; and

(c) The lack of any form of co-parenting relationship between the parties following their separation.

(Footnotes omitted)

1. A significant portion of the judgment is concerned with what the primary judge regarded as the father's lack of insight into the difficulties arising from a change of residence for the children, where they had not spent time with him for about five years and were trenchantly opposed to spending time with him. The primary judge gave reasons for not acceding to the father's primary application for there to be a change of residence at [157]-[158] of the judgment. At [168] of the judgment, the primary judge set out their conclusions in relation to the children's best interests and arrangements that would promote their safety and each person who has the care of the children in the following terms:

168 I have set out above my findings. I have concluded that:

(a) The father has engaged in family violence;

(b) The children were exposed to family violence perpetrated by the father during the parties' relationship;

(c) The children's fear of their father is genuine irrespective of the reason(s) why the children are so fearful;

(d) The mother's parenting capacity would be adversely affected if I make an order for the children to spend time with the father;

(e) If I make the final orders sought by the father, the children risk broken and disrupted relationships with each of their parents; and

(f) I cannot make the alternate orders sought by the father as firstly, it would be speculative to do so and secondly, the making of such orders would adversely affect the mother's mental health and accordingly, the mother's parenting capacity.

1. Before turning to the grounds of appeal, it is useful to set out the well settled principles which govern appeals from discretionary judgments, as identified in House v The King (1936) 55 CLR 499 at 504-505. There, the majority of the High Court said:

...The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred...

1. Grounds of appeal in relation to bias and procedural fairness are challenges to the integrity of the administration of justice; thus, they must be dealt with first, before other discrete grounds of appeal: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577 at 581, 611-612 and 634; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]-[10]. Accordingly, we turn first to Grounds 1, 2, 3 and 10.

Grounds 1 & 2 - the primary judge erred by failing to accede to recusal applications made by the applicant as a result of demonstrating apprehended basis

1. On day four of the final hearing, counsel for the father made two applications that the primary judge recuse themself from the hearing. The primary judge declined each application and provided written reasons for the denial of the second application.
2. The basis for the first application was:

(a) the primary judge's queries as to the father's allegations regarding the mother's anger management;

(b) comments by the primary judge as to the father's use of an interpreter;

(c) comments by the primary judge that they would make a finding that the father recorded the mother for the purposes of showing her in a heightened state; and

(d) the primary judge not permitting the father to adduce evidence during re-examination.

1. In the judgment, the primary judge addressed each of these and rejected that a fair-minded lay observer might reasonably apprehended that the primary judge might not bring an impartial and unprejudiced mind.
2. The second recusal application is not addressed in the primary judge's written reasons but is apparent in the transcript of the proceedings. There, counsel for the father made the application on the basis that:

(a) the primary judge was interfering with what would ordinarily be standard cross-examination;

(b) comments made by the primary judge about probative value and family violence; and

(c) allowing the ICL to engage in unfair cross-examination by suggesting that a particular person could have been called to give evidence.

1. The primary judge declined the application and delivered reasons orally.
2. As articulated in New South Wales v JR [2024] NSWCA 308 at [253], the apprehended bias test is the "double might" test of "whether a fair-minded lay observer might reasonably consider that the judicial officer might not carry out his or her judicial functions with an impartial and unprejudiced mind to the resolution of the issues arising on the motion."
3. The application of the test requires the establishment of two limbs. First, an identification of what it is said might lead the judge to decide the particular case other than on its merits and second, the articulation of the logical connection between the first matter and the feared deviation from the course of deciding the case on its merits (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 345 [8]).
4. Where it is contended that the apprehension of bias arises from conduct during the hearing, a close analysis of what is said, when it is said, its context and its frequency is necessary.
5. As the High Court reminds in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488:
   1. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modem litigation. At the trial level, modem judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of "the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case". Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
   2. ... No doubt some statements, or some behaviour, may produce an ineradicable apprehension of prejudgment. On other occasions, however, a preliminary impression created by what is said or done may be altered by a later statement. It depends upon the circumstances of the particular case. The hypothetical observer is no more entitled to make snap judgments than the person under observation.

1. In analysing the submissions of the mother, we are mindful of what Ward JA said in Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128:
   1. ... the hypothetical observer is taken to be a rational person who is neither complacent nor unduly sensitive or suspicious and to be someone who is aware of the oath or affirmation taken by judges and their judicial obligations more generally.
2. This Court recognises that there can be times when robust exchanges occur, and intemperate things are said. As Kirby J observed in Antoun v R [2006] HCA 2; (2006) 224 ALR 51:
   1. So far as the first point is concerned, it is certainly true that the trial judge's remarks were strong and forthright. In some circumstances, that will be a permissible expression to adopt, especially where the trial judge is conducting a trial as the sole judge of fact and law and the parties are legally represented by counsel able to respond with clarity and forthrightness. Judicial indignation at a particular course of action, or proposed action, may on occasion be understandable. Couched appropriately, at the proper time and in due sequence, it may give rise to no reasonable apprehension of bias. For centuries in courts of our tradition, judges have been telling parties and their lawyers, sometimes in quite robust terms, that they consider that a particular submission or course of action is hopeless, a waste of the court's time or doomed to fail. I would not want to say anything that needlessly mollycoddled candid judicial speech addressed to trained advocates.

1. That passage must be read in conjunction with the following remarks at [29]-[30] of that judgment:
   1. A line is drawn between forthright and robust indications of a trial judge's tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings. Sometimes, that line will be hard to discern. But, in this case, I agree with the other members of this Court that the trial judge crossed it.
   2. The most powerful evidence that he did so appears from the record. He expressed his conclusion as to the outcome of a submission before hearing any argument from the fathers, whether on the facts or the law. Every judge of experience knows that pertinent facts can be forgotten or mistaken. As well, the law can be misunderstood or an aspect of it overlooked. Some opportunity should therefore have been given to counsel to develop their submissions, if necessary in writing, prepared overnight. The repeated insistence that any submissions would not bear fruit and the later unrequested, unargued revocation (or non-continuance) of bail reinforced the conclusion initially given. The line was crossed. The trial judge thereby disqualified himself.

1. In this matter, the statutory context is also highly relevant; Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 135 at [23]. In this case, the relevant statutory context includes the obligation of Federal Circuit and Family Court of Australia judges to conduct proceedings in accordance with the principles set out in s 69ZN of the Act (now s 102NE of the Act) including that "the court is to actively direct, control and manage the conduct of the proceedings".
2. In determining the recusal applications, the primary judge correctly identified the relevant authorities which set out the principles they were required to apply.

1. The comments about the mother's anger management referred to by the father appear to arise from this interaction:

Primary judge: But, sir, you don't think the mother has anger management issues now, do you?

[The father]: I know she has anger issues.

Primary judge: But you're promoting unsupervised time between the children and the mother.

...

Primary judge: You don't seek that her time be supervised.

[The father]: No.

Primary judge: No. So you have every confidence in her ability to parent the children?

[The father]: Yes, because I have no option.

(Transcript 17 February 2025, pp 73-74 lines 24-47, 1)

Primary judge: Well, it must be your client's position that the mother has a stable home, otherwise he wouldn't promote the orders he does.

[Counsel for the father]: What, say that again?

Primary judge: It must be your client's position that the mother has a stable home, otherwise he wouldn't' be promoting the orders he does, but I think the ICL's position is - - -

[Counsel for the father]: Well, I mean I'm not - - -

Primary judge: - - - does your client have a view that by placing the children into the mother's primary care their stability is put at risk. And I think that's what the ICL is saying.

(Transcript 20 February 2025, p 318 lines 22-35)

1. At [44] of the judgment, the primary judge stated that they asked the father why he was promoting orders for the children to spend unsupervised time with the mother in circumstances where he was alleging that the mother had anger management issues such that she had been prescribed medication to treat same. At [45] of the judgment, the primary judge stated:
   1. When determining the children's best interests, I reject any assertion that it was improper for me to make such an enquiry. I was entitled in the discharge of my function as a judicial officer to explore the disconnect between the father's application and his assertions with respect to the mother. There is no basis for concluding that a fair-minded lay observer might reasonably apprehend that I was not bringing an impartial and unprejudiced mind to the resolution of the parties' competing parenting applications.
2. No written or oral submission was made in relation to this conclusion. There is no error apparent in the conclusion.
3. The primary judge made the following comments regarding the father's use of an interpreter:

Primary judge: Sure. But we've also got issues with translation. And, for reasons not known to me, your client decided yesterday afternoon that he wanted every question translated, but - anyway. All right. Well - anyway. So your question for your client is, if you don't get the orders you want, would there be any other alternative?

(Transcript 20 February 2025, p 345 lines 10-14)

1. The primary judge gave reasons for rejecting this ground of the first application at [46]-[49] of the judgment. At [48] the primary judge stated:

48 The father's counsel made his application in circumstances where:

(a) The father filed an affidavit, which was 493 pages in length. The affidavit was not translated for the father's benefit and an interpreter's oath and form of jurat was absent;

(b) The father did not require an interpreter when he attended on the Court Child Expert in January 2024;

(c) When, on the afternoon of the third day of trial, the father requested the assistance of an interpreter, I said nothing whatsoever and similarly, when he continued to use the services of the interpreter for the balance of his cross-examination, I said nothing whatsoever; and

(d) As discussed above, I made it plain from the commencement of the trial that if the father wished to utilise the services of the interpreter engaged by the Court for his benefit, then he was at liberty to do so.

1. When making the recusal application, counsel for the father submitted that the primary judge had discouraged the use of an interpreter. When it was raised in response that the primary judge on three of four occasions indicated to the father that if he wished to use the services of an interpreter, he was able to, counsel for the father responded:

[Counsel for the father]: Well, your Honour certainly did say that. There's no doubt about that.

(Transcript 20 February 2025, p 347 lines 44-45)

1. There is no merit to this aspect of the ground.
2. The comments of the primary judge regarding the father's reasons for taking a video of the mother which were a ground for recusal are:

Well, [counsel for the ICL], if it assists you, as a consequence of the questions asked by [counsel for the mother], I think I will find that the videos were taken because the father wished to show someone - I will find this in due course, but wished to show someone videos of the mother in a heightened state. For what purpose, I haven't yet quite finalised a view about that, but I think we all know that that's why he did it.

(Transcript 20 February 2025, p 336 lines 39-44)

1. It is said by the father that he gave evidence at the hearing that he had followed the mother into a bedroom when she held a knife. It was submitted by the father that the predominant reason that he took the video of the mother was in case the mother hurt herself, so he could have evidence of what had occurred, in order to defend himself if he were blamed in anyway. It was said that the reason why it was necessary to put himself in close proximity to the mother was to protect her, the children and himself by removing the knife.
2. At the time that the primary judge made the impugned comment, they had heard considerable cross-examination of the father. The father was asked by counsel for the mother about a Notice of Risk he had filed which raised concerns about the mental health of the mother. In relation to the video taping of the mother, the father was asked:

[Counsel for the mother]: Right. And you were using these videos to say to the court, that is the judge or the judicial registrar who would be relying on [the Notice of Risk], you were using those videos against the mother to show that she had mental health issues. Correct?

[The father]: Yes.

(Transcript 19 February 2025, p 191 lines 17-22)

1. The complaint about the impugned comment is that it was made prior to the cross-examination of the mother and the final submissions of the parties where there were competing narratives about why the video was taken and what it showed.
2. A fair reading of the transcript of the hearing demonstrates that the primary judge expressed the tentative view based on extensive evidence that had been given. Any tentative view about the father's subjective motivations for filming the mother was not dependent on the cross-examination of the mother and the primary judge did not foreclose the father giving evidence on the subject or prevent submissions being made. Nor did the primary judge state that receiving further evidence or submissions on the subject was futile. The primary judge's reasons, as expressed at [51] of the judgment, demonstrate that they were aware of the father's stated reasons for filming the mother and that they had not formed a concluded view.
3. The primary judge allowed cross-examination to continue on the subject thereby giving the father an opportunity to explain his conduct. When the cross-examination continued, a further objection was taken to what was said to be repetitive questions in the following terms:

[Counsel for the father] ...this line of questioning has been so repetitive, and it really is - I mean your Honour can make your own assessments, and it has just gone on and on and on.

(Transcript 20 February 2025, p 341 lines 20-23)

1. There was no error by the primary judge in this regard.
2. The next aspect raised to support the first recusal application was that the ruling of the primary judge limited re-examination of the father and thereby created an apprehension of bias. The evidence that the father sought to adduce during re-examination arose out of this question by counsel for the father:

[Counsel for the father] Thank you, your Honour. Sir, you were asked questions by the ICL. You were asked this question, "If you don't get the orders you want, would you be seeking any other orders, or would you be satisfied with any other orders?" I think you said something like, I will do what the court decides, or I will do - I will speak to my lawyers, or something like that anyway. Just going back to that question. If you don't get the orders that you're currently seeking, would there be any other alternative scenarios that would be acceptable to you?

(Transcript 20 February 2025, p 343 lines 39-45)

1. An objection was taken to this question, to which the primary judge ruled:

Primary judge: All right. [counsel for the father], I've thought carefully about the objections and the submissions. I think I need to disallow the question. I think [counsel for the mother's] last point is one which has persuaded me, namely your client was given every opportunity in the course of this cross-examination to consider this position, so I'm not going to allow the question.

(Transcript 20 February 2025, p 345 lines 42-46)

1. The primary judge dealt with this at [55] of the judgment where they stated:
   1. The difficulty with the question as framed by the father's counsel is that cross-examination of the father had closed, and I considered it to be unfair to the mother and to the Independent Children's Lawyer for the father's counsel to elucidate evidence of an alternate position after the father's case had effectively closed. I also agreed with submissions by the Independent Children's Lawyer and the mother's counsel that if the father had an alternate application, then it should have been included in the father's evidence-in-chief. The approach adopted by the father's counsel would have deprived the mother and the Independent Children's Lawyer a proper opportunity to cross-examine the father with respect to any alternate proposal or for such a proposal to be put to the single expert. Further, the father was given every opportunity during cross-examination by the Independent Children's Lawyer to put an alternate position. He did not do so.
2. The primary judge was required to rule on a properly formulated objection and there is nothing in that ruling which could sensibly or reasonably said to give rise to an apprehension of bias. The father had been extensively cross-examined (to the point of objection as to its length). The father was seeking to raise a different case by way of re-examination. If that was to happen, as was correctly identified by the primary judge, that may have created procedural unfairness and/or prolonged what was already a lengthy hearing.

1. As to the issues raised in the father's second application, they resulted from, first, this comment made by the primary judge:

Primary judge: All right. I overrule the objection. And if an issue was going to be taken with these notes, I would have thought that your client would have called the case worker to give evidence.

[Counsel for the father]: Well, if - I don't know what the funding system is on a 102NA, but I've never seen that happen before, but - anyway.

(Transcript 20 February 2025, p 333 lines 27-32)

1. The comment made by the primary judge that if there was issue taken regarding the accuracy of notes taken by an individual at the Department of Communities and Justice, the person who created the notes could be called to give evidence does not give the apprehension of any bias or a failure to bring an impartial mind to the proceedings. The fact that counsel for the father does not accept that calling the author of the file note was a realistic option does not establish a basis for acceding to a recusal application.
2. The second basis for the application arises from a comment by the primary judge when ruling on an objection during the course of cross-examination of the mother by counsel for the father. Counsel for the father asserted that the primary judge had interfered with what was said to be legitimate cross-examination. This arose in the context of the mother being cross-examined about seeking comfort from the father at the time of her grandmother's passing. She was cross-examined to the effect that this was behaviour which is inconsistent with of a victim of family violence towards an alleged perpetrator. Objection was taken to the line of questioning which required a ruling. In the course of considering the objection, the primary judge raised that the subject of the cross-examination might be better dealt with by way of submissions:

Primary judge: Sorry. Well, a submission about these events. You would say she was grieving. She sought the husband out for solace. That is behaviour which is inconsistent with someone who has suffered family violence. But why do I need the mother's subjective view about her behaviour?

[Counsel for the father]: Look, your Honour, I don't even know what to say, your Honour. That's just standard cross-examination, your Honour.

Primary judge: Well, Mr ICL, what do you say?

[Counsel for the ICL]: I see nothing to be gained from it. Each party can make a submission at the end.

Primary judge: Well, that's my view. I mean, if [counsel for the father] wants to tender that extract from the transcript, so be it.

[Counsel for the ICL]: And he can ask the court to draw the inference from it. And my friend can respond by saying something different. The evidence is there. I don't think the evidence - it seems to me that the purpose of cross-examination is either further your own case or diminish the other person's case in some way. And I don't think - I think that there doesn't seem to be any dispute as to the factual content of what happened here. The mother was affected by the demise of her grandmother. And she sought, and she concedes she sought, some compassion, for want of a better word. I'm trying not to get into the context of the actual words that were used - sought some solace and compassion from her then husband. And what you draw from that - - -

Primary judge: Is a matter for me.

[Counsel for the ICL]: - - - is a matter for you, your Honour.

(Transcript 20 February 2025, p 385 lines 17-46)

1. The primary judge then addressed counsel for the father and said:

Primary judge: All right. Well, mister, I think where I've landed on this issue, [counsel for the father], is, you can ask whatever questions you like, I guess, but I can indicate to you that it's almost of no probative value to me in circumstances where it was a specific event. People who are the subject of family violence behave in all kinds of ways. I'm not sure I can do much with it.

(Transcript 20 February 2025, p 386 lines 1-5)

1. At that point counsel for the father then asked for the matter to be stood down. The Court resumed shortly thereafter, and the second recusal application was made as result of that and the earlier mentioned exchange.
2. The primary judge did not rule that counsel for the father could not continue to ask questions but properly raised that there may not be any utility in asking those questions for the reasons the primary judge clearly and sensibly explained. The primary judge did not unreasonably interfere with the cross-examination. Rather, the primary judge made a ruling as they were required to do.
3. There is nothing said by the primary judge in the course of hearing which were raised in the recusal applications that might give a reasonable observer apprehension that the primary judge might determine the matter other than on its merits.
4. Grounds 1 and 2 must be dismissed.

Ground 3 - The primary judge erred by not allowing the father to lead evidence concerning his employment. Alternatively, the primary judge erred by not affording the father procedural fairness by not giving the father's counsel an opportunity to respond to the mother's counsel's objection

1. Orders were made for the filing of material for the final hearing with the father's trial affidavit due to be filed by 15 November 2024. This was not filed until 8 February 2025, nine days prior to the commencement of the trial.
2. At the commencement of the trial, counsel for the father sought to introduce evidence regarding the father's work, his working hours, flexibility of hours and whether there was sufficient flexibility to enable him to come to Sydney (from Melbourne where he was then living). Leave was granted to adduce evidence limited to where he lived and worked and his current hours of work. Leave was not granted to adduce evidence about work flexibility and his capacity to travel to Sydney whilst employed because the mother had not been given proper notice of that evidence.
3. A ruling was made after counsel for the father sought leave to introduce that evidence. The reception of that evidence was the subject of objection. Counsel for the father did not raise at that time that he wished to be heard further by way of reply. There is no error in the ruling and that decision was within the discretion of the primary judge. Counsel for the father was not denied an opportunity to respond to the objection to the reception of that evidence.
4. The father was given an adequate opportunity to present his case (Kioa v West (1985) 159 CLR 550 at 582). Moreover, even if we are wrong in that respect, not every departure from the rules of natural justice gives rise to appellate intervention and a new hearing (Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145). To succeed, the applicant must demonstrate that the asserted denial of procedural fairness was material to the outcome. The appellant has failed to do so in the present case.
5. This ground is without merit.

Ground 10 - The primary judge erred by not taking into consideration the failure of the mother to call "Mr G" to give evidence. Alternatively, the primary judge erred by not drawing an adverse inference by the mother not calling "Mr G" to give evidence. Alternatively, the primary judge did not afford the father procedural fairness by not considering the father's argument regarding the mother not calling Mr G

1. The father's Summary of Argument at paragraph 19 is to the effect that, in an interview with the CCE recorded at [29]-[32] of the Family Report, Mr G had:

(a) made disparaging remarks about the father, including calling him a paedophile; and

(b) insisted that he was the real father of the children.

1. It is submitted that there is no acceptable reason why Mr G was not called to give evidence. The father asserts that his submissions on this point were ignored by the primary judge which constitutes an error of law and a denial of procedural fairness.
2. The transcript shows that counsel for the father did, in closing submissions, raise the mother's failure to call Mr G to give evidence. The relevant exchange was as follows:

[Counsel for the father]: That's exactly right, your Honour, but my submission is - and it's a fair point, if indeed that conclusion could be made, because this is not about right or wrong; this is about the best interests of the children. But there are some problems with coming to that conclusion in the circumstances of this case, and there are some really big problems. The first problem is - and I would take it a step further - I would say it's a fatal problem to the mother's case. The first problem is the so-called identity of Mr G.

...

Primary judge: He has been with her for five years; there's no evidence that he's of bad character. She didn't call him - all right, I understand. There's no suggestion from the school or police, or any authority that he's abusing the kids. Where does it get you?

(Transcript 26 February 2025, pp 647-648 lines 31-37, 1-4)

1. This interaction was preceded by the following:

[Counsel for the father]: The starting point is heavy reliance, and many references were to this individual by the name of Mr G. The mother had the opportunity to put on evidence with Mr G. A completely unsatisfactory reason was given to the court. This is a person who is referred to by the children, according to the family report, as their father. This is a person who aggressively asserts one - in one where I know that he is the children's father. This is a person whose primary concern was his own protection, and either him or the mother, at the end of the day, chose not to give evidence to the court.

The suggestion that giving his criminal record would be of some comfort to the court is - well, obviously, in some ways is inconsistent with what the mother is saying, because she did not report these so-called allegations to the police in relation to the father who she alleges abused her children, and then she - so when I put to her in cross-examination, "You would report this particular person - we will call him Mr G - if he committed offences?" She said, "Yes," she would, she's that type of person. Well, that suggests it is entirely inconsistent with their evidence in relation - - -

...

Primary judge: Well, what can I do with that criminal history document that was tendered this morning?

(Transcript 26 February 2025, p 627 lines 8-22, 42-43)

1. The document the primary judge is referring to is a redacted criminal record pertaining to Mr G which indicated that he has no criminal history. The primary judge continued:

Primary judge: No, I don't - I have to say, I don't understand the fixation on Mr G, which is why I raised it. You're not seeking an injunction with respect to his attendance on the children. I don't understand what your case is about him.

[Counsel for the father]: Well, we're not seeking an injunction on his attendance on the children. We don't - well - - -

Primary judge: Nor do I understand the cross-examination about whether or not he's going to be there in a year's time.

[Counsel for the father]: Well, it's pretty obvious. Well, I don't say it's pretty obvious, your Honour. The cross-examination for this, this is a person who aggressively is asserting that he is the father of the children. He's aggressively intervening and interfering with the relationship between the mother and the children. This person hasn't come to court. The court could take a very adverse and, indeed, a Jones v Dunkel inference about this particular person, that the evidence that he would give, that he would be expected to give, would not assist him, would not assist the mother. No proper explanation has been given about why this person has not given evidence.

Now, there are two flow-on effects from that, is that, putting aside the mother's credit generally, that, in my respectful submission, would suggest and mean that the court could not accept the mother generally as a witness of credit because it is such an implausible situation that the mother would not call a person who is aggressively asserting to be the stepfather, she would not call him to give evidence and not really give a proper explanation. So generally speaking, the mother's case is flawed for that reason. Secondly - - -

Primary judge: What do I do with the fact that Y was three? She was three when the parties' relationship ended, and she was in a relationship with him, I think Mr ICL says, almost instantly, and he has known the children for five years.

[Counsel for the father]: And he hasn't given evidence, your Honour.

Primary judge: Well, I know, but he might consider himself to be their father, but that's just by dint of his involvement in their daily life, etcetera, probably holds him with a high degree of affection. I can't see the issue, but I'm - - -

[Counsel for the father]: Well, I do see it as a great issue because it's something unusual where a person of that nature has chosen (a) to remain anonymous, and (b) to not give evidence. That simply goes to the heart of the credibility of the mother's entire case. One would expect him to give evidence. No proper explanation has been given, and he didn't give evidence. Furthermore, he has rolled up and met the independent court writer and has said a number of things, including asserting that the father is a paedophile, insisting that he's the father, and the father is not the real father, insisting that he would not be able to cope, or it's unacceptable, or words to that effect, that the father should have any contact with the children, and then he has not given evidence. That is a big problem for this court. As I said, I go back to my original proposition, the court has no way of knowing whether this person himself is a sex offender, has a drug problem, has engaged in domestic violence.

Primary judge: Well, I would have thought in the five years subsequent to 2020 they might manifest themselves in some way. Aren't I entitled to infer that? The cops would be at Mum's house every two seconds, the kids wouldn't be rocking up at school. The school said - and it's agreed across the bar table, the children are doing fine at school.

(Transcript 26 February 2025, pp 628-629 lines 1-47, 1-8)

1. A fair reading of the transcript indicates that counsel for the father did not directly and coherently respond to questions raised by the primary judge in relation to Mr G. Moreover, it is not necessary for a judge who is exercising a discretionary judgment to detail each factor which they have found to be relevant or irrelevant in accepting or rejecting the evidence of a party (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 per Mahoney JA).
2. There is no failure on the part of the primary judge to consider submissions on this point nor was there any denial of procedural fairness in the conduct of the hearing in relation to this point. This ground is without merit.

Ground 4 - The primary judge erred by not allowing into evidence the affidavit of Mr J concerning attempts to engage contact centres and attempts to seek counselling with counsellors and psychologists

1. At [26]-[32] of the judgment, the primary judge dealt with the circumstances in which the father sought to rely on an affidavit sworn by his solicitor, Mr J, on the second day of the hearing. The primary judge referred to the father seeking a change of residence in circumstances where the children had been living with the mother and had not spent any time with the father for over four years. At paragraph 2 of his Amended Initiating Application, the father sought an order to the effect that he would engage a "suitably qualified therapist" for the purpose of providing therapeutic assistance to assist with the children's transition into living in his household. At [26] of the judgment, the primary judge noted that they had expressed the preliminary view that they would have difficulty making the orders sought by the father in circumstances where the father's affidavit filed on 8 February 2025 gave no evidence about:

(a) whether the father had made enquiries of a "suitably qualified therapist" and the identity, the qualifications and the costs associated with the provision of their services;

(b) whether the "suitably qualified therapist" had been provided with a copy of the Family Report or had knowledge of the nature of the allegations made and the needs of the children; or

(c) whether the father had made enquiries of a contact centre which may be prepared to assist the father and the children.

1. The primary judge noted at [27] of the judgment that the Family Report had been published on 6 March 2024 and that included a recommendation at paragraph 95 of the report that:

If determined that the children are to spend time with their father...[a] counsellor will be of great value in supporting the children and [the mother] processing this information in a safe and planned way.

1. The father's position in relation to a change of residence for the children remained unchanged until the afternoon of the final day of the hearing, immediately prior to the commencement of closing submissions. At [29]-[32] of the judgment, the primary judge stated:

1. At 11.16am on the first day of trial, the father commenced his brief evidence-in-chief and at 11.19am, the mother's counsel commenced his cross-examination of the father. At 11.42am, the father's counsel advised me that his client may be seeking amended orders. Particularly, the father's counsel said that "the father's case is now different". This is despite the effort I undertook at the commencement of the trial to clarify the orders sought by the father. The matter was not then recalled until 12.31pm to afford the father's counsel the opportunity to speak with his client about the orders sought by him. At that juncture, the father's counsel advised me that the orders promoted by the father remained unchanged save that in lieu of the Independent Children's Lawyer, the father proposed that he select the "suitably qualified therapist". It is important for a reader of this judgment to understand that despite an enquiry made by me at the commencement of the trial, the father never promoted any alternate position until the afternoon of the final day of trial immediately prior to the commencement of closing submissions. That is, and until very late in the trial, the father never proposed any arrangement, which might apply if the Court determined that it is in the best interests of the children to remain in the primary care of the mother. To that extent, the father's application was one of high stakes. Immediately prior to the commencement of closing submissions, and without any notice to counsel for the mother or counsel for the Independent Children's Lawyer, the father promoted an alternate position, namely, that:

(a) The children spend time with the father on one occasion each month at a contact centre in Sydney; > > (b) Thereafter, the children spend time with the father on one occasion each month from Friday afternoon to Monday morning.

1. On the morning of the second day of trial and without having raised the issue with counsel for the mother or the Independent Children's Lawyer, the father's counsel indicated that the father sought to rely on an affidavit in the name of the father's solicitor filed without leave at 6.58pm on 17 February 2025. By that document the father's solicitor:

(a) Deposed to his understanding of the availability of a contact service, which may be able to assist the parties and the children. That understanding was expressed having regard to the solicitor's recent experience as opposed to any enquiry made by him or his client; > > (b) Deposed to enquiries he had made of two psychologists; > > (c) Deposed to enquiries, which his client made of a psychologist.

1. There were several troubling aspects with respect to the solicitor's evidence, namely:

(a) The affidavit could only have been filed by the father's solicitor to address the deficiencies in the father's case as identified by me on the first day of trial; > > (b) The affidavit referred throughout to enquiries, which "we have made". The irresistible inference was that the father's solicitor had made those enquiries together with his client despite the fact that his client was under cross-examination. The text of the affidavit also suggested that the enquiries were made after Court on 17 February 2025; and > > (c) The father's solicitor deposed to information provided by his client and enquiries made by his client, which again suggested that the solicitor discussed various matters with his client after Court on 17 February 2025 despite his client being under cross-examination.

1. Irrespective of any finding about the conduct of the father's legal representatives, I declined to admit the affidavit into evidence in circumstances where it was firstly, prejudicial to the mother and to the Independent Children's Lawyer and secondly, of limited probative value. Indeed, and by reason of the hasty manner in which the affidavit was apparently prepared and filed, it failed to address any of the deficiencies identified by me on the first morning of trial. It is one thing to identify a practitioner or a service but in a high stakes matter such as these proceedings, it is an entirely different task to identify a practitioner and properly brief him/her as to the orders sought by the father and thereafter, identify the ramifications for the children if the Court accedes to the application and the measures, which might be implemented to protect the children's emotional needs.
2. There is no error apparent in the ruling by the primary judge not to accept into evidence the affidavit of Mr J. The primary judge explained their reasons for that decision in clear terms. By reason of trial directions for the filing of affidavits, the father had the opportunity to file evidence in relation to the use of a counsellor or a suitably qualified therapist to assist the children in implementing the orders he sought, and he did not take that opportunity. Seeking to introduce this material after the close of the mother's evidence and shortly before closing submissions was likely to cause prejudice to the mother and the decision that was made was well within the discretion of the Court having regard to s 69ZN (now s 102NE) of the Act which provides relevantly:

69ZN Principles for conducting child-related proceedings

...

Principle 2

(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.

(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.

Ground 5 & 7- The primary judge erred by making erroneous findings of fact and the primary judge erred in not finding the mother and her unknown partner represented an unacceptable risk to the children

1. To succeed on appeal, the father must establish that the incontrovertible facts or the uncontested evidence demonstrates that the primary judge's conclusions were erroneous or alternatively, that the primary judge's determination was "glaringly improbable" or "contrary to compelling inferences" (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [28]-[29] ("Fox v Percy")). The father must demonstrate that the findings made were not reasonably open (Edwards v Noble (1971) 125 CLR 296 at 304). It is not sufficient to merely point to an alternative finding (Chancellor & McCoy [2016] FamCAFC 256; (2016) FLC 93-752 at [76]).
2. Appeal judges are at a "permanent position of disadvantage as against the trial judge" in assessing evidence and credibility (Fox & Percy at [77] quoting SS Hontestroom v SS Sagaporack [1927] AC 37).
3. The father's submissions refer to a range of matters that are said to give rise to the conclusion that the mother should not be believed and that the father's evidence should be. These go to the mother's allegations that the father sexually abused the children, that she was the subject of family violence both in Australia and overseas and that she was subject to family violence by means of financial control.
4. The focus of the father's complaint about the findings of fact are that the primary judge ought to have found that the father was a credible and honest witness, and the mother was not a person of "good credit" and that little weight ought to be given to her testimony. Similarly, it is said the evidence of the maternal grandmother lacked credibility and her evidence ought to be rejected. It is said at paragraph 9 of the father's Summary of Argument, that there was no serious attack on the father's credit and that his demeanour in court was calm and he did not appear aggressive (which was put to the mother in cross-examination, and she agreed). It is said for those reasons that the father's account of events should be accepted and the mother's rejected.

1. The primary judge observed the cross-examination of the maternal grandmother and made findings at [93] of the judgment that "the maternal grandmother gave her evidence in a straightforward and calm manner. I consider her to be an honest witness". At [94] of the judgment, the primary judge stated, "given the consistency between the mother's and the maternal grandmother's evidence, I find that the father did abuse the mother in City E by locking her out of the apartment from time to time". In relation to the evidence of the maternal grandmother, the submissions of the father provide:

9 ...

1. She has not prepared her affidavit by direct communication with a translator, rather her sister wrote it in English and it was than translated. (T296.25)
2. Living with her purported son-in-law "Mr G" in Australia, who prepared her visa.
3. She alleges "Mr G" would regularly send photos of the children to her while she was in Country B, however does not attach any photos to the affidavit.
4. She agrees "Mr G" regularly gives her money and she lives with him giving her greater than usual motivation to support the mother's case.
5. Creates an ideal picture of "Mr G" ( as does the mother) which appears unrealistic, particularly as he does not gave evidence.
6. She gives evidence that "woman are expected to be subservient and obedient to their husband" AB113 paragraph 36 (sentence read back in, after originally not being admitted). An inference can be drawn that the suggestion is that Country B men expect their wives to be subservient and obedient. However, when asked the witness cannot explain what a typical Country B person is like. While not a direct inconsistency, one might expect that the witness would have been more readily able to answer the question.

1. Even if accepted, these do not undermine the findings made by the primary judge. The primary judge was in the position to assess all the parties' evidence, including the evidence of the maternal grandmother, and there is no error apparent in the treatment of her evidence.

1. The father points to numerous examples in the mother's evidence to demonstrate her alleged lack of credit. First, it is said that the mother's failure to call Mr G to give evidence and disclose his identity impacts on her credibility. No explanation is given as to why his evidence would significantly impact the decision required to be made and why the failure to call him undermines the mother's credibility. The father submits that the evidence establishes that Mr G assumed the role of father to the children shortly after the mother left the matrimonial home. The father has failed to establish why that circumstance undermines the mother's credit at the trial of this proceeding.
2. In closing submissions, the primary judge raised with the father's counsel that he did not "understand the fixation on Mr G... You're not seeking an injunction with respect to his attendance on the children" (Transcript 26 February 2025, p 105 lines 1-3).
3. This proposition was accepted by the father. In oral submissions to the primary judge and to this Court, it was not made clear what Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 inference could be raised against the mother, or why any evidence given by Mr G would adversely affect the mother's credit. Counsel for the father submitted to the primary judge that the problem with Mr G not giving evidence was that the Court has no way of knowing whether he is a drug offender, has a drug problem, has engaged in family violence or abused the children. This submission was completely without merit. There was no established basis for speculating that Mr G was a drug offender, had a drug problem, had engaged in family violence or was a risk to the children. That point was correctly noted by the primary judge at [153] of the judgment when they stated:
   1. _..._It was also beyond belief that the father's counsel asked the Court Child Expert questions about the mother's husband sexually abusing the children despite there being no evidentiary basis whatsoever for such a proposition and/or the possibility that the mother's husband might leave her in the future. The questions were speculative and, in my view, designed to diminish what the evidence suggests is a strong and loving relationship between the mother and her husband.

1. The father alleges that the form (by which we take to mean style and substance) of the mother's trial affidavit reads more as work of fiction and points to evidence given by the mother at paragraph 39 of her affidavit that the father sent her an erotic novel for her to read to him over telephone and video calls when he was working in Country C and she was living in Country B. At paragraph 40 of the mother's affidavit filed on 3 February 2025, the mother states:
   1. I started to read the novel he sent me and very soon discovered that this was an erotic novel. The novel had very graphic depiction of sadomasochism and dominant submissive sexual acts.

1. The father says that the mother was unable to explain what sadomasochism meant. During the hearing, on questioning as to what sadomasochism meant, the mother stated:

[The mother]: In my knowledge, that's something psychologically, like driven by the sexual arousal. The tendency - the tendency, a psychological tendency, accompanied by the psychological arousal. Something like that.

(Transcript 21 February 2025, p 421 lines 30-33):

1. Counsel for the father did not then put to the mother that she had never received such a book from the father.
2. The mother raised the erotic novel in the context of her allegations that the father's family violence escalated when she refused to carry out his sexual fantasies. These allegations are referred to at [95]-[96] of the judgment.
3. The primary judge held at [96] that the father "denied the allegation and again, the facts were not sufficiently strong to enable me to make a finding that the father physically assaulted the mother as so asserted." By the use of the expression, "facts were not sufficiently strong", we understand that the primary judge did not find that the evidence was sufficient to discharge the evidentiary onus, to the required standard set out in s 140 of the Evidence Act 1995 (Cth), that the father had assaulted the mother as alleged. The primary judge did not make a particular finding about the receipt of the erotic novel as that became unnecessary because they did not make a finding that the mother had been subject to family violence in this aspect as alleged.
4. The same point is raised in the submissions that the mother's credit is diminished because she was said to be unable to give detailed examples of when the father's unfulfilled sexual desires caused him to be violent. Again, the primary judge did not find that the mother had been assaulted as a result of the alleged sexual behaviours and desires of the father.

1. Paragraph 10 of the father's Summary of Argument challenges the findings at [86] of the judgment in relation to an allegation made by the mother that the father had inserted a red substance into her vagina. At [83] the primary judge sets out the mother's allegation that in August 2013, following a wedding celebration in Country B, the father obliged her to undergo treatment to "cleanse herself" after the father learned that the mother was not a virgin. It was said that the mother accompanied the father to the residence of a third party who gave the father a small jar of a red substance. It was alleged that the father then inserted the cotton ball in the red substance and then inserted that ball into her vagina with his fingers and subsequently had sexual intercourse with the mother with the cotton ball in situ. The mother alleged that she attended a medical centre, and the cotton ball was extracted. The father denied the allegations referring to them as "complete nonsense" (father's affidavit filed 8 February 2025, paragraph 138). At [86] of the judgment, the primary judge held that they found it curious that the mother had not produced medical evidence to support her allegation. The primary judge found that the "facts were insufficiently strong" to permit a finding that the father inserted a red substance into the mother's vagina in August 2023 (noting that this is meant to read 2013) but went on to say:
   1. ... I am persuaded by reason of the mother's presentation in the witness box and the specificity of the details provided by the mother that she was subjected to family violence on this occasion and something occurred, which the mother continues to find deeply distressing. The mother's evidence was so specific and detailed that on balance, I do not consider the evidence to be fabricated.
2. By the father's Summary of Argument it was submitted that:
   1. ...The fact that the mother gave detailed evidence is not a sufficient reason to conclude the event was not fabricated. The mother gave specific evidence on a range of matters that were not accepted by the trial judge. The trial judge notes the mother's emotional response in this instance. The trial judge not [sic] does not specify what parts of her evidence [their] Honour is accepting on this matter despite saying that her account is not fabricated. Even if the Court were to accept this evidence, and were also to consider it family violence, it has little relevance in any event to the determination of unacceptable risk to the children.
3. The primary judge made it clear that they did not find that the mother had proved that the father had engaged in family violence by inserting a cotton ball dipped in a red substance into her vagina and did not use this incident, or any part of it, as a basis for the decision in relation to the children. By his own submission, the father accepts that the determination of whether family violence occurred arising from these allegations is of little relevance to the determination of unacceptable risk to the children (although it is said to adversely reflect upon the mother's credit). This claim of factual error has no merit.

1. The father challenges factual findings arising from allegations of family violence occurring in City E. The mother gave evidence that, on moving to City E in January 2014, the father's physical abuse escalated. Detailed evidence of alleged physical abuse was given by the mother and that evidence is recounted at [88] of the judgment. At [91], the primary judge held that "the facts as presented are insufficiently strong to enable me to find that the father physically assaulted the mother in 2014 and/or that the father threatened to kill the mother and the party's unborn child at that time". However, the primary judge did find at [94] of the judgment, that the father did abuse the mother in City E by locking her out of the apartment from time to time. In reaching that conclusion, the primary judge made reference to the mother's evidence and the corroborating evidence of the maternal grandmother (reference to which has been made previously). The primary judge was entitled to form a view about the quality of evidence given by the mother and maternal grandmother. Further, the father has not identified what relevant material fact the primary judge has failed to have regard to. The conclusion reached by the primary judge was reasonably open and no error of law has been established.

1. In relation to the knife incident referred to previously in the recusal grounds, the father submits that the primary judge's findings were not available on the evidence. The primary judge's finding in relation to this incident is found at [124] of the judgment:
   1. I am satisfied on the balance of probabilities that the mother was the subject of family violence on the evening of 24 July 2019. Particularly, I am satisfied that the father taunted and denigrated the mother by suggesting that she required medical assistance and taunted the mother by taking video footage of the event.
2. The father contends that where it is the mother's case that he frequently engaged in coercive and controlling behaviour, it would be expected that there would be numerous occasions where the father has recorded the mother, yet there was no reference made to such. The father submits that this was an exceptional case and the mother's account of the events as described in paragraph 235 of her affidavit filed on 3 February 2025 contradict the primary judge's findings. The mother gave evidence that the father was 'badgering' her whilst she was holding a knife when cooking. She then says she got upset and he suddenly tried to grab the knife off her (noting that the mother did not say there was any filming at this time). She then said she wanted to get away and went to her room but realised that she took the knife and at this point the father began filming her. The father contends that this narrative as provided by the mother is consistent with the reasoning provided by the father as to why he filmed her (being for his protection in case the mother hurt herself).
3. At [123(d)] of the judgment, the primary judge found that the mother was in such distress that she was incapable of harming any person. The father submits that this overlooks the dangers presented by a person suffering from mental illness or who are temporarily distressed and are carrying knives.
4. In their judgment at [119]-[121], the primary judge made reference to the competing versions of the events. It is plain from their reasons that the primary judge reviewed the videos which were submitted as evidence before the Court. At [122] of the judgment, the primary judge notes that significant time was spent by counsel for each party and the ICL on cross-examining the parties about the events and each party's counsel made efforts to depict the other parent as the villain.
5. At [123] of the judgment, the primary judge gave detailed reasons for finding that the father's videotaping of the mother constituted family violence. The findings that have been made by the primary judge were open to the Court having regard to the evidence before it which was accurately and fairly summarised.

1. As to the incident of 13 May 2020, the primary judge accepted at [103] of the judgment that the mother was a victim of family violence after an incident where the father pushed her and she fell to the floor and he then proceeded to slap her. The mother's evidence was that the children saw her on the floor and ran towards her crying. In accepting the mother's account, the primary judge at [101] of the judgment referred to the evidence given by one of the children to a CCE in January 2024 that the father would hit him and the mother and said:
   1. ...Given the concerns expressed by the Court Child Expert to the effect that the children may have been influenced by the mother to express certain views about the father, I cannot discount the possibility that the mother has influenced the male child to say that his father would hit him and/or the mother. On the other hand, the mother says that at least in May 2020, the children were exposed to family violence and witnessed her on the floor after been assaulted by the father. Such an account is consistent with the male child's advice to the Court Child Expert to the effect that he witnessed his father do so. Given that the male child was six years of age at the time, I place some weight on the male child's report to the Court Child Expert.
2. The father submits that no weight should have been placed on the child's recollection of the events and that, even if the Court were to accept the child's recollection of the event, it does not prove that the father was the perpetrator.
3. The primary judge was entitled to place weight on the views of the child as expressed to the CCE. The primary judge qualified their remarks by accepting the possibility that the mother had affected the child's views of the father. There is no misstating of the facts such as to give rise to any appealable error.

1. By paragraph 16 of his Summary of Argument, the father contends that the Family Report suggested that the father had insight (Family Report, paragraphs 23-25 and 42) and the mother has not made any effort for the children to seek counselling despite the recommendations of the Family Report. This is within the context of the primary judge's findings that the father lacked insight which was demonstrated by his application for a change of a residence.
2. The father's contention that those above-mentioned paragraphs of the Family Report are suggestive of him possessing insight is entirely unclear. On reading of those paragraphs, there is no suggestion that the father has insight, instead the CCE notes at paragraph 24, that the father's proposed co-parenting plan "was unclear and appeared not thought through given the extensive allegations made against him".
3. There is no apparent appealable error arising from this. The submissions are simply a disagreement with the primary judge's findings and do not constitute any error of fact such as to give rise to any appealable error.
4. At [149] of the judgment and following, the primary judge addressed the father's application for primary care of the children. At [150] of the judgment, the primary judge set out in detail the deficiencies that they perceived in the father's application if the children were to remain in the primary care of the mother. In summary those findings are:

(a) at the time of giving evidence, the father was living in Melbourne whilst the children were living in Sydney. Despite saying that he would relocate to Sydney to have the children on a full-time basis, the father failed to give evidence regarding his employment, where he might live in Sydney and where the children might attend school;

(b) the father failed to give consideration to the logistical difficulties associated with facilitating time between the children and the mother on each alternate weekend as proposed if he chose to remain living in Victoria;

(c) when asked whether the children will require the assistance of a therapist if they were to be placed in his care, he said "maybe";

(d) the father said that he would decide on a therapist to assist him in transitioning the children to his primary care, but had not given any evidence as to any enquiries he had made;

(e) the father proposed that changeovers occur at a contact centre in Sydney but gave no evidence of any enquiry he had made with any contact centre; and

(f) the father proposed that children do not spend time with the mother for a period of eight weeks, but gave oral evidence that he would facilitate time if the children asked to see the mother, not appreciating the emotional difficulties if he did accede to such a request.

1. At paragraph 17 of the father's Summary of Argument, issue is raised with the primary judge's findings that the mother's parenting is impacted by her fear of the father at [168(f)]. At [161]-[162] of the judgment, the primary judge said:
   1. The father also failed to acknowledge the impact of the orders sought by him on the mother's mental health and accordingly, the mother's parenting capacity. The Court Child Expert's evidence was to the effect that even nominal time between the children and their father in the form of "identity contact" would have an impact on the mother's mental health and accordingly, the children's psychological well-being. Particularly, the Court Child Expert said as follows:

This is a mother who has very real fear of her location being found, to the extent that ...[the] stepfather has not disclosed who he is. They're very fearful of the children's school address being found, the home address being found, so I think that ensuring the [children's] safety needs to extend to their mother as well.

1. The Court Child Expert described the mother's fear of the father as genuine. There is merit to such a conclusion if a reader of this judgment understands that the mother has been attending on a clinical psychologist so that the mother can "better process what happened to me in the past and be able to better support [the children]".

1. The father submits that the mother denied any mental illness during the hearing, that her evidence was not supported by a psychologist report and that an adverse inference should therefore be drawn. The father continues that the primary judge did not make a finding that the mother has a genuine fear of the father, only that the opinions of the CCE had merit. To this extent, he also challenges the findings at [174]-[175] and [185] of the judgment which repeated the conclusions regarding the mother's compromised parenting capacity if the children spent time with the father.
2. The findings complained of at [168(f)] and similar, are ones that were available to the primary judge on the evidence before them and those conclusions must be read in light of the detailed analysis of the evidence and findings in relation to that which preceded these findings. The primary judge also had the benefit of observing the parties give their evidence.
3. There is no appealable error established by the primary judge's findings or by the treatment of evidence and credit of witnesses. These grounds are without merit.

Ground 6 - The primary judge erred in making a no contact order against the father, and restraining the father to come into contact with children

1. The father's submissions are to the effect that whilst the children may have genuinely held fears of the father it may be the case that:

(a) these fears are being instilled by Mr G;

(b) the children are in fact scared of Mr G because of his "conduct" (which is not specified but the inference is that this should be drawn from his alleged assertive and inappropriate conduct when meeting the CCE (which is, again, not specified)); and

(c) the primary judge should have reached his own conclusions regarding Mr G.

1. The primary judge's conclusion that the children were genuinely fearful of the father was not conditioned by any finding that that fear had been caused by the conduct of the father. There was also no evidence that the children were fearful of Mr G at the time of the final hearing and the primary judge found at [165] that the children were excelling at school and their home life now appears to be happy and stable.
2. As submitted by the mother, the primary judge had evidence to support their finding that the children were fearful of the father, including:

(a) paragraphs 262-285 of the mother's affidavit filed on 3 February 2025 and her oral evidence where she describes the children's fear of the father post separation; and

(b) the written and oral evidence of the CCE that the children appear to be genuinely fearful of the father.

Grounds 11 & 12 - The primary judge erred by failing to have regard to ss 60CC and 60CG of the Act

(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order:

(a) is consistent with any family violence order; and

(b) does not expose a person to an unacceptable risk of family violence.

(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.

1. At [63] of the judgment, the primary judge made specific reference to the operation of that section. The primary judge took into account and made findings in relation to family violence and the fears that both the mother and the children have in respect to the father.
2. There is no failure on the part of the primary judge to have regard to the provisions of s 60CG of the Act.
3. In relation to s 60CC of the Act, it is apparent from the terms of the judgment that the primary judge had specific regard to the relevant provisions of s 60CC of the Act and addressed each of the relevant considerations appropriately. There is no failure on the part of the primary judge to engage with the evidence or with the specific subsections of s 60CC of the Act. The father's submissions under this ground are essentially to the effect that the primary judge failed to make findings to the satisfaction of the father.
4. The primary judge was required to make orders in light of the evidence before them and the proposals put by each party and the ICL. The primary judge's determination of matters was obviously influenced by the manner in which the case had been conducted on behalf of the father, including how the mother had been cross-examined and how submissions had been put. This included the following comments by the primary judge at [153]-[154] of the judgment:
   1. The father's failure to consider the implications of a change of residence of the children stood in stark contrast to the inclusion of paragraphs in his written evidence about an alleged abortion undertaken by the mother, a focus by the father's counsel during cross-examination on whether or not the mother had an affair during her relationship with the father, and an alleged concern about the safety of the children on account of the mother's mental health. It is beyond belief that the father's counsel would consider questions on the first two topics to have any relevance to a determination of the children's best interests...
   2. The father made several allegations with respect to the mother's mental health. I assume that those allegations were made to strengthen his application for primary care of the children. Particularly, the mother was cross-examined about her attendance on a neurologist whilst living in City E. The father's written evidence sought to create a link between that attendance and an alleged anger management problem on the part of the mother. The issue was pressed by the father's counsel even though on the father's own application, he was necessarily conceding that it was appropriate for the mother to spend extended and unsupervised time with the children. In any event, the mother's written evidence is that she sought assistance for migraines. The documentary evidence supports a conclusion that the mother was prescribed several medications. It was put to the father that the medications were prescribed to treat vomiting and nausea. The father said that he could not remember why the mother was prescribed medications undermining his assertion that the attendance on the neurologist was for anger management issues.

1. The primary judge was plainly cognisant that the father was placed in difficult circumstances by a number of factors. He had been accused, and convicted of, sexual offences against the children and an Apprehended Domestic Violence Orders prevented him from spending time with the children ([16] of the judgment). He was subsequently acquitted of those offences, however, that did not lead to him resuming time with the children. He was faced with implacable opposition from the mother, and the children had expressed to the CCE that they did not wish to spend time with him. Rather than proposing, at an earlier course, an arrangement which might involve a gradual reintroduction to the children with the assistance of professionals, he instead proposed that the child live with him. This is in circumstances where the father lived and worked interstate and had not spent time with the children for about four years.
2. The primary judge engaged with the submissions made by the father and in exercising their discretion, they did so against the background of how the case was conducted by the father. The father is no doubt dismayed that there is an order that he spend no time with the children in the face of his acquittal of criminal charges and where the primary judge has not accepted most of the allegations of physical family violence. The primary judge, however, has clearly explained their decision and considered options other than those which were ordered. The father's proposal was comprehensively dealt with at [149]-[167] of the judgment.
3. These grounds are without merit.

1. In circumstances where each ground of appeal has no merit, the Court will make orders dismissing the appeal. At the hearing of the appeal, counsel for the mother sought that if the appeal was dismissed, a costs order be made in the sum of $24,120.54 (which also covers the costs of an Application in an Appeal). This was not opposed by the father. Section 114UB(2) of the Act allows the Court to make any orders for costs as it considers just if there are justifying circumstances. The Court will make orders accordingly.

I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Altobelli & McNab.