Charles & Charles [2025] FedCFamC1F 310 | Case summary

Charles & Charles [2025] FedCFamC1F 310 | Case summary | Zoe

[13]

The father is to continue to attend upon the practitioners for so long as is recommended by them and the father is to provide the mother with a letter from each practitioner confirming his initial engagement with them (such letter to be provided no later than 14 days after the father's first appointment), and a letter from each practitioner when they recommend the father is no longer required to attend appointments (with such letter to be provided no later than 14 days after the father's last appointment).
The father is to provide a copy of this Order, the reasons for judgment dated 14 May 2025 and the report of Dr C dated 6 March 2019 to the practitioners and attend upon all appointments recommended by the practitioners.
The father is restrained from causing any of the children to attend upon Ms D whether in a professional capacity or not.
A recovery order is to issue and lie in the registry pending receipt of an affidavit, in the first instance directed to the chambers of Senior Judicial Registrar Gray at associate.sjrgray@fcfcoa.gov.au, by the mother deposing to the father's failure to return one or all the children and thereafter the recovery order is to be executed on each occasion the father fails to return one or all the children.
The mother is permitted to obtain and renew Australian Travel documents for each of the children without the consent of the father pursuant to s 11 of the Australian Passports Act 2005 (Cth).
This Order is to be explained to the children by Court Children's Services at the Brisbane registry of this Court.
The father, and anyone accompanying him, shall leave the premises of this Court and its surrounds immediately following the pronouncement of this Order and receipt of a hard copy of the reasons for judgment dated 14 May 2025.
Following paragraph 16 of this Order being complied with, Court Children's Services is to release the children into the care of the mother or the mother's mother and/or the mother's father.
Pursuant to ss 65DA(2) and 62B of the Act, the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

[21]

Mrs Charles ("the mother") and Mr Charles ("the father") have four children, namely, X born [redacted] 2010, Y born [redacted] 2014, Z born [redacted] 2016 and W born [redacted] 2018 (collectively "the children"). These proceedings continue what has been a very long dispute about their care.
After the parents separated in 2018, the children continued to live with their mother. On 2 March 2021, a final parenting order was made by consent in which the parents agreed to share parental decisions for major long-term issues and for the children to live primarily with their mother and spend regular time with their father.
In September/October 2023, the father withheld the children from the mother and stopped sending them to school. The father alleged that the mother had physically abused two of the children. The children did not see their mother again until early 2024 and then only in a supervised setting for two hours per week at a contact centre. The child, Y, has not seen his mother or communicated with her since January 2024. The meagre two hours of supervised time reduced to one hour a week when the father ceased to pay one half of the cost.
For reasons which will be explained, the children will be returned to the primary care of their mother and after a six-week moratorium, where there will be no time or communication between the father and the children, the children will commence living in a week about arrangement between their parents. To give the children the best chance of being able to have an ongoing relationship with both parents, the father will be subject to several restraints during the first six-week period and, if he breaches those restraints, the moratorium will be extended for up to a further 12 weeks.
It is intended that the restraints will provide an incentive for the father and perhaps even the older two children to be able to move forward to the equal time arrangement. If the father continues to breach the restraints, his time with the children will be limited to alternate weekends from Thursdays to Mondays. A recovery order will lie in the registry to be executed in the event the father withholds any of the children contrary to the order. It will be important for the father to obtain support from a clinical psychologist and a psychiatrist given his history of chronic depression and anxiety.

[26]

Before turning to the issues that will inform the making of a parenting order that is in the children's best interests, it will be helpful to set out some background.
The mother was born on [redacted] 1984 and works as a teacher's aide on contract and has a history of employment in childcare. The mother lives with her partner, Mr E, who is employed in the pest control industry. The mother and Mr E commenced a relationship in February 2024 and commenced cohabitation in or about August 2024 when the mother moved into Mr E's townhouse at Suburb B, City K, in Southeast Queensland. Mr E's townhouse is in the same townhouse development as her previous residence where she had lived with the children for three years until late 2023 and thereafter until she moved into Mr E's home.
Mr E has two children, namely, F, aged 10 and G, aged five. Mr E reportedly has a very good relationship with his children's mother, and their children live in a week about arrangement.
The father was born on [redacted] 1983 and has not been employed for over 10 years. The father lives in the same suburb as the mother.
The mother and father commenced a relationship and began cohabiting in 2005, married in 2008, and separated on a final basis on 6 June 2018. They are not divorced.
In or about late 2014, the father commenced receiving a disability support pension because of his depression and anxiety. It is unclear what the father's symptoms were at this time, but he has remained on a disability support pension for chronic depression and anxiety, seemingly, with no review, according to the father.
A protection order was made on [redacted] 2015 and expired on [redacted] 2017. The mother was the aggrieved and the father was the respondent.
The mother left the former matrimonial home with the children on or about 5 June 2018 and was placed in emergency accommodation in City L, about eight hours drive to the north of their then residence. The mother alleged that the father had subjected her to years of coercive and controlling family violence including physical assaults and threats to commit suicide. The father denied the allegations and alleged that he had in fact been the victim of the mother's violence.
On 16 July 2018, the father commenced proceedings in the Federal Circuit Court of Australia (as that court was then known). The father did not see the children for about three months after separation. The circumstances of the mother's departure from the former matrimonial home remained a source of complaint by the father during the current proceedings.
A further protection order was made [redacted] 2018 and expired on [redacted] 2023. It was made by consent without admissions. The mother was the aggrieved and the father was the respondent. The children and the mother's parents were also named as protected persons.
On 2 March 2021, after several days of evidence during a contested trial, an order was made by consent for the children to live with the mother, the parents were to have equal shared parental responsibility and in the absence of agreement, for the children to spend gradually increasing block time with the father, so that by July 2023 the children were spending time with him from 3.00 pm Thursday until the commencement of school the following Monday each alternate week. Immediately prior to that, the father was spending time with the children each alternate weekend from the conclusion of school Friday until the commencement of school Monday and each alternate Wednesday from the conclusion of school until the commencement of school Thursday.
In September 2023, the father withheld the child, Y, and in October 2023, the father withheld the other three children. The father alleged that the mother had excessively disciplined two of the children.
On 24 October 2023, the mother commenced proceedings seeking recovery of the children.
On 11 December 2023, an order was made by consent for the children to live with the father and spend two hours professionally supervised each Saturday with the mother at a contact centre. The mother contended that the only reason she agreed to the order was so that she could at least see the children.
The mother has been spending professionally supervised time with three of the children each Saturday, initially for two hours, but since 31 August 2024 for only one hour given the cost of supervision and the father's failure to pay his one half.
Y has not spoken to or spent time with the mother since 20 January 2024.
The trial was due to commence on 17 March 2025 but was adjourned because the father's legal representatives were granted leave to withdraw on the first day of trial.
The adjourned trial recommenced on 7 April 2025 but was again adjourned when the father's counsel collapsed and was taken to hospital.
The adjourned trial was mentioned on 8 April 2025, and recommenced on Friday 11 April 2025, with the father having retained new counsel. The trial concluded on 17 April 2025.
At the commencement of the trial, an oral application was made by the father for the children to again meet with the ICL to express any views they might have about the possibility of splitting the siblings in their living arrangements.
The mother and the ICL opposed any further interview. The ICL confirmed that she had met with the children in the presence of the Family Report writer in May last year and, given the extent to which the children have been exposed to the conflict between their parents and the numerous interviews with various persons to which they had been subjected, it was submitted that a further interview would not be in the children's best interests.
The legal representatives jointly conferred with the Family Report writer, Ms M, who voiced strong opposition to any further interview with the children and opined that it would be traumatic for the children to be informed of the possibility of them being split. The application by the father was not pressed.
The mother has funded her own legal costs, and her estimated legal fees and disbursements are $186,000.
The father is legally aided and Legal Aid Queensland was expected to pay legal fees of about $30,000.
The ICL's legal fees are estimated at $43,000.

[31]

The objects of Pt VII of the Act are set out in s 60B and are to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the United Nations Convention on the Rights of the Child.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA of the Act).
The best interests of the child are determined by reference to the matters set out in s 60CC of the Act and include: arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child; any views expressed by the child; the developmental, psychological, emotional and cultural needs of the child; the capacity of each person who has or will have parental responsibility to provide for the child's needs; the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so; and in considering those matters, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child's family.
Section 60CG of the Act imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful. Examples of such behaviour include assault, sexually abusive behaviour, stalking, repeated derogatory taunts, intentional damage or destruction of property, unreasonably withholding financial support needed to meet reasonable living expenses of the family member or his or her child at a time when the family member is entirely or predominantly dependent on the person for financial support, preventing the family member from making or keeping connection with his or her family or friends, or unlawfully depriving the family member from his or her liberty, etc.
Abuse in relation to a child is defined in s 4 of the Act and includes a sexual assault or involving the child in a sexual activity in which the child is used, directly or indirectly, as a sexual object, or causing the child to suffer serious psychological harm, including by subjecting or exposing a child to family violence.
In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities,[2] having regard to the "inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding"[3] and proof to the reasonable satisfaction of the Court, "should not be produced by inexact proofs, indefinite testimony, or indirect inferences".[4] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[5]
The High Court in M v M explained at p. 78, the nature of the risk (in that case involving a risk of sexual abuse) in the following terms:

[33]

When assessing the nature and magnitude of a risk posed by a parent or other person, all relevant evidence must be considered as part of the "matrix of evidence"[6] to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[7] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[8] Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.[9]
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court "cannot be diverted by the supposed need to arrive at a definitive conclusion"[11] on each and every factual dispute.
Each parent has parental responsibility (i.e. all the powers, responsibilities, and authority which, by law, parents have in relation to a child) for a child subject to any order made by the Court (s 61C of the Act).
Section 61D of the Act provides that a parenting order can deal with the allocation of responsibility for decision making about major long-term issues, being joint or sole decision making in relation to all or specified major long-term issues. Major long-term issues mean issues about the care, welfare, and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Where an order is made for joint decision making about major long-term issues, parents are required to consult each other in relation to each such decision and make a genuine effort to come to a joint decision (s 61DAA of the Act). Where a decision is not a major long-term one, there is no such requirement to consult with the other parent (s 61DAB).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.[12]

[35]

The father's history of mental illness is an important aspect to consider when determining the issue of the risk he poses to the children. Unfortunately, my task is made more difficult as there is no recent medical or psychiatric evidence for the father.
It is not in dispute that the father has a long history of depression and anxiety and that he has been receiving a disability support pension since 2014 because of these conditions.
It seems that in 2014 there was an escalation in the father's symptoms culminating in an incident on 27 November 2014, where the father threatened to self-harm. The father was in possession of a knife. The mother called the police and ambulance, and the father was transported to hospital where he remained as an inpatient for at least two weeks (I note that the father told the Family Report writer that it could have been for as long as a month). At the time, the father was given differential diagnoses including Major Depression with psychotic features and schizophrenia. The father was prescribed anti-psychotic medications, Solion and Risperidone, and a sedative, Circadin, and discharged with follow up through the Adult Mental Health Service. One month after his discharge from hospital, the father ceased attending follow up appointments and ceased taking the medication.
It is unclear whether the father consulted any further medical practitioner in relation to his mental illness before attending upon a General Medical Practitioner ("GP"), Dr N, in November 2017.
According to the mother, the catalyst for the parents' separation in 2018, was an escalation in the father's coercive and controlling behaviour involving damage to property and physical assault of the mother. The father denied these allegations.
As part of the previous court proceedings, the father was assessed by Dr C, consultant psychiatrist, on 4 February 2019. At that time, the father was regularly seeing his GP, Dr N, and a psychologist, Ms O, monthly. The father also had the support of his three sisters who were at that time supervising his weekly visits with the children. In the current proceedings, there was no mention of whether the father continued to receive any support from his family. None of them were witnesses.
The father acknowledged to Dr C that he had a history of depression but denied any suicidal or homicidal ideation. The father alleged that the mother had a history of rapid mood swings but made no suggestion that she was a risk to the children. Indeed, he proposed at that time that the children live in a week about arrangement with the mother and himself.
During the current trial, the father agreed that the mother was not abusive to the children during their relationship. The father said that "[a]ll she did was smack their bum" and he did not regard such acts as abusive. From his perspective, that just indicated different parenting styles.
In his report, Dr C noted that the father had been the victim of physical violence from his father when growing up but that the father denied this had affected him. Dr C also noted that the father's father and grandfather had both died by suicide.
Dr C found no evidence of psychotic phenomena in the form of hallucinations or delusions at the time he examined the father. He opined that the father had reasonable insight and that his judgment was fair. Dr N confirmed to Dr C that the father regularly and conscientiously attended her practice and that she had no concerns about his care and attention to the children. Dr N described the father's history of significant pain because of an Inguinal hernia which was repaired in October 2017 and for which he had been prescribed a range of analgesic medication. Dr N opined that the father was mostly stable apart from his hospital admission (it is unclear if this is a reference to his 2014 admission or the October 2017 admission). Dr N noted that the father was in receipt of a disability support pension for chronic symptoms of depression and anxiety but not requiring active treatment at that time.
At the time of his report in 2019, Dr C opined that the father suffered from "a chronic Major Depressive Disorder for which he is maintained on the Disability Support Pension" but was "currently stable and capable of having an on-going loving relationship with his children". Dr C noted that the father was "well maintained and reviewed" by Dr N.
It is unclear when the father ceased attending upon Dr N.
As earlier noted, the previous proceedings were resolved by consent and a parenting order was made on 2 March 2021.

[36]

Within a week of the 2021 parenting order, the father was making complaints to the Department of Child Safety, Seniors and Disability Services Queensland ("Child Safety"), as it is now known, about his concerns for one or other of the children. During the current proceedings, the father conceded that he had been dissatisfied with the result of the 2021 proceedings, despite consenting to the order. In his view, he should have been the children's primary carer and they should have spent five nights per fortnight with the mother.
On 6 April 2021, the father told the children's psychologist, Ms D, by text message that X was "ready to open up to you" and that he (i.e. the father) had organised for the child to call "kids helpline". During cross-examination, the father conceded that he had given X a phone and entered the Kids Helpline number into the phone. It seems that rather than convey to the child that a decision had been made about the children's care with the consent of the parents, the father encouraged the child to be dissatisfied with the arrangements.
On or about 16 September 2021, the father commenced consulting Ms D as a client. Ms D's notes reveal that the father's father had been physically abusive to him and that he struggled with anxiety and sought assistance in managing his anxiety. The father disclosed to Ms D his stress over the children's health and safety which he felt was exacerbated by the lack of communication with the mother. Throughout 2021, 2022 and 2023, Ms D's notes reveal that the father was struggling with stress and anxiety. The notes are replete with the father's criticisms of the mother. Nothing in the notes reveal any attempt by Ms D to allay the reasons for the father's escalating anxiety. For example, when the father conveyed his stress about one of the children having school sores, one might have expected an experienced therapist to point out that lots of children have school sores and it is not a major issue. Ms D's suggested strategies of meditation and having a positive attitude seem to have had little effect in allaying the father's anxiety.
Ultimately, the father did not rely upon Ms D's two affidavits filed in these proceedings and sought a restraint, directed to himself, from taking the children to see her in the future. The father conceded during the current proceedings that it was unwise for Ms D to treat both the children and him as it created a conflict for Ms D between her obligations as a therapist to the father and her obligations as a therapist to the children.
It is not in doubt from the material that is before me that Ms D became an advocate for the father, and it seems likely that she may have breached professional boundaries in undertaking a role as a therapist for the father and the children and seemingly becoming more than a therapist to the father and children.
In the current proceedings, the father conceded that he had been photographing any marks or injuries on the children for many years, although he was uncertain if he was doing so prior to the 2021 order. The father tendered numerous photographs of minor scratches and bruises on the children (Exhibits 16 and 17). In several of the photographs, the father appears to be holding down one or other of the children's legs to photograph it (I assume what appears to be an adult hand is the father's hand as he said he took the photographs). It is not in dispute that all the children enjoy sport and outdoor activities and consequently it is hardly surprising that they would have tumbles and scrapes from time to time. The father subjected the children to this constant documenting of any marks or injuries when, even on his case, many of the marks were minor.
What became apparent during the trial is that over several years the father became fixated on the children's health and safety, particularly Y, and his focus on such matters appears to have escalated.
For example, from about late 2020, the father became convinced that Y was allergic to dairy products, yet he was resistant to undertaking testing options and was reluctant to start what is described as a "dairy pil [sic]" seemingly prescribed by Dr Q on 5 August 2022. Throughout the current trial, the father maintained various allegations against the mother, including that she had been "forcing" Y to consume dairy products, failing to obtain necessary medical attention for the children, being negligent in her attention to the children's medical needs, etc.
During Y's interview with police on 6 September 2023 (Exhibit 2), the child referred to the mother "tricking" him by giving him a "tablet" so that he could eat dairy "but it does not [work]". When cross-examined about whether he was the source of the child's information that the tablet prescribed for Y's possible dairy intolerance did not work, the father obfuscated, but his answers demonstrated that he had dismissed the efficacy of the tablet in the child's presence, thus undermining the mother in the child's eyes.

[39]

Ultimately, the charge against the father did not proceed. It is unclear why.
In relation to Y's health, evidence from Dr R contradicts much of what the father alleges, other than that the mother did not immediately collect a stool sample from Y when first suggested in February 2021. Dr R's letter dated 23 July 2022 (part of Exhibit 16) is informative as it demonstrates that while the father had concerns on 26 November 2020 about Y possibly having an intolerance to dairy, the symptoms described and thought possibly to be related to dairy were rejected as establishing a dairy intolerance because there was "not a consistent association". When Dr R next saw Y on 3 February 2021, his examination of Y is described as "unremarkable". On 30 March 2021, a stool sample indicated that Y was suffering from "giardia" (an intestinal infection caused by a parasite), and Dr R prescribed an antibiotic, Flagyl. A follow up stool sample on 29 May 2021 was "essentially normal". On 22 July 2021, blood tests showed that Y had an immune deficiency (IGA deficient) which meant he was at a higher risk of coeliac disease. Dr R spoke to the mother on 21 October 2021, and she indicated that she was happy for Y to have a gastroscopy to exclude coeliac disease. Dr R put a request form in for that to be done at the Queensland Children's Hospital (a public hospital).
Y underwent the gastroscopy on 17 May 2022 (when the father removed Y from school without the mother's knowledge or consent). The results of the gastroscopy were normal, and the biopsies were normal, excluding coeliac disease. Dr R's letter states that Y was presenting as well and did not require any further medical intervention at that time.
Contrary to the father's evidence at paragraph 53 of his trial affidavit, Y did not undergo "surgery last-minute ... for a parasite in his stomach". As Dr R's letter confirms, the gastroscopy procedure was undertaken to exclude coeliac disease, a procedure the mother had agreed to on 21 October 2021. There was nothing urgent about the procedure and ultimately the results were normal.
The whole saga which led to the father being charged with a breach of the protection order was totally unnecessary but brought about by the father not the mother.

[61]

On or about 14 July 2023, Y told one of his teachers that the mother "drags him up the stairs by his feet" and that "she gives his younger brother black eyes". The school records note that Y had no visible injuries, nor did his brother. Nevertheless, as a mandatory reporter, appropriate contact was made with Child Safety. The school records reveal that contact was made with the mother who "seemed shocked and was speechless". It was noted that her voice sounded teary thereafter as she explained that whenever Y has marks or scratches, the father asks questions. The mother admitted to being "strict" with the children but denied ever dragging her son upstairs or giving her child a black eye.
During the current trial, the father was highly critical of the school telling the mother what Y had said and dismissive of the mother's denials. During cross-examination, the mother admitted to speaking to Y over the weekend following contact by the school but contended she was very careful in her approach not to make any accusations. Rather, the mother contended that she was trying to understand things from Y's perspective. The mother conceded that at times she has dealt with the children's resistance to going to bed by putting her hands under their arms and walking them upstairs, giving the impression of 'frog marching' them. After the school's intervention, the mother said she ceased doing so. In the case of Y, she said that if he resisted bedtime, she would take the other children upstairs and leave Y downstairs for a while so that he had time to reflect and could join her and the others when he was ready. The mother's change in approach seems reasonable in the circumstances. I reject the suggestion that the mother was in some way punishing or isolating Y by adopting such an approach.
On 17 July 2023, the school checked in with Y and he said that the mother had spoken with him about why he would say what he had and that she said she had not done so. Y repeated that she did do these things. Y expanded upon what he had previously said on 14 July 2023. The school records reveal the following:

[84]

Child Safety records reveal that between 2018 and June 2024, there were 19 child concern reports and one general enquiry. Contrary to the father's understanding (he declined to read the Child Safety records despite having the opportunity to do so) and contrary to the mother's recollection, Child Safety did question her about the allegations of physical abuse of W and Y.
Between 5 February 2024 and 8 April 2024, Child Safety Officers variously interviewed the mother at her home, X, W and Z at school and Y at the City K Child Safety Service Centre (he refused to be interviewed at school) and conducted two home visits with the father.
During an interview between Child Safety officers and X on 12 February 2024, X recalled hearing his parents fighting when his family were all living together. When asked about his mother, X said they had to go to bed on time every night. He referred to the mother "pushing" his siblings up the stairs. He said he only once saw his mother on top of Y, but he did not intervene, and he did not see any injuries. X said his mother would yell if the rules were not followed. He said that W and Z missed the mother but neither he nor Y wanted to see her. X said he missed his cousins (on his mother's side of the family) and felt sad about not seeing his maternal grandparents.
On 21 February 2024, Y was interviewed by Child Safety officers. It was noted that Y repeatedly stated that his father did not hurt him. When asked if anyone had ever hurt him, Y said that his mother "choked me, and she dragged me up the stairs and she throws me on my bed and sometimes on the ground". Y said that his mother dragged him up the stairs when he was getting his teddy bear and told him to get back to bed. Y said there were marks and bruises after this. Y said he did not want to see his mother again. Y spoke about swimming in Ms D's pool even when not there for their therapy sessions.
On 27 March 2024, Child Safety officers spoke with W and Z. It was noted that when Z spoke about the mother she had a smile on her face. Both children spoke positively about spending time with the mother at the contact centre. W said it felt good to see his mother. Z said, "when we lived with mum she kept dragging [W] and [Y] up the stairs and hitting me". Z said she did not want to see the mother any more than what she was currently seeing her but did not know why. Z spoke about going swimming at Ms D's home and said the sometimes her father and Ms D also swam in the pool.
On 27 March 2024, Child Safety officers conducted a further interview with X. The school informed them that X had been in trouble that month for fighting. X said he was unsure how he felt about seeing his mother. At times during the interview, he said it was fine and he did want to see her but that it stopped him from going on sleepovers on Friday nights. At other times he said he did not want to see her and then at other times he said he did not care. X said he did not like the room in which he had to see his mother which was set up for younger children. X said he wanted to see his mother in a park but later said he would feel sad if he had to see her for more than two hours and unsupervised. He said that W would like it, but Y would not. He said W was excited to see his mother.
I am satisfied that Child Safety undertook a thorough investigation of the various allegations made, which included interviews with the parents, the children, the schools, and others. It is noteworthy that Child Safety were most concerned about the father's inability to see how his actions and behaviours portrayed the mother in a negative light and how that emotionally impacted the children. Child Safety concluded that the father "presents with paranoia and fixations around the children's safety and what he needs to do in order to keep them safe from harm". Child Safety was concerned about the apparent isolation of the children by the father and that the father's "mental health is a significant barrier for him to be able to place the emotional needs of the children first". However, Child Safety concluded the father's emotional abuse of the children was not a sufficient cause under protection legislation to remove them from his care.
Child Safety recorded an outcome of no immediate harm, but had ongoing concerns of perpetration of coercive control, coaching and parental alienation by the father.

[87]

Ms M said that X also said he had seen the mother drag Z up the stairs and believes she was trying to get her to bed. X said the mother had never done that to him. X said that the father was nice all the time and that while the mother was nice at the contact centre and the day of the interviews, that was not what she is really like. X rated his safety with the mother at a three out of 10 and said he would prefer the time he spent with the mother to be at the contact centre so there is a supervisor present.
In her interview with W, Ms M recorded that when asked about the 'not-so-good' things about the mother he said that "she dragged me up the stairs, she put me in my room", and he said he recalled having bruising on his back and legs which were still there. W said he had told the father this had happened twice and that he was aware that the mother also "pulled [Z]" up the stairs and he believes she may have had bruises too. W said he was happy to go to the contact centre and having someone to supervise them. W rated his safety with the mother at one out of 10.
When interviewed by Ms M, Z said the good thing about living with the father was that "we don't get hurt". When asked where Z was hurt, she replied, "at mum's house, she choked [Y], I didn't see it, I heard it from [Y], he said that he was in his room and was choked". In response to a leading question whether the mother ever hurt her, she replied, "yes, she has smacked me on the bum, bum, she dragged [Y] and [W] up the stairs and I saw this". In response to a further leading question, whether the mother had ever dragged her up the stairs, the child said she had, however she did not know if she had any bruises or marks as a result. Z rated her safety with the mother at four out of 10 and said she was happy with the current arrangements about seeing the mother and did not want this to increase.
Y indicated he was happy to speak to Ms M alone. Y said there was nothing "not-so-good" about living at the father's home. Ms M asked Y if the father was a "safe person" and the child replied, "definitely". They then spoke about what feeling safe means and Y agreed that it is was when you felt happy and relaxed around a person and you were not worried. Y is said to have "confirmed" that he used to live with the mother and when asked why he is living with the father, he replied, "cause mum was hurting me, dragging me up the stairs and throwing me on my guitar". Y said the mother used to dragged W and Z up the stairs and that she used to "grab [X] by the ear". He said that the reasons he does not want to see the mother, including on the day of the interview, included, "I'm worried she might hurt me". Y rated his safety with the mother at one out of 10.
During his interview with Ms M, the father disclosed that his father died by suicide when he was 10 years of age and that he had ceased living with his mother after he completed grade nine because it was not a safe home due to his mother's various boyfriends. The father denied that he had perpetrated family violence against the mother and contended that he was the victim of the mother's coercive and controlling behaviour. The father blamed the mother for his hospital admission in 2014 and for what he contended was a misdiagnosis. The father contended that the mother had left with the children in September 2018 because she was jealous of his close relationship with the children.
The father told Ms M that Ms D had told him about the bruising to W's back which prompted him to take photos and take him to the doctor. Inconsistent with this account, I note that the father told the doctor that he did not know how W sustained the bruising and was not accusing the mother. The father also told Ms M that "[W] has told me mum has thrown [him] on the floor on top of a guitar, there is just so much". This is contrary to what the father told police, namely, that Y was thrown on the guitar. When the mother was asked about the allegation of throwing Y or W on a guitar she denied doing so. The mother said that only X had a guitar, and it was not damaged.
The father told Ms M that the ICL wanted the children's psychologist to change from Ms D and for him to see a psychiatrist. He said that did not know why the ICL wanted the children's psychologist changed but he admitted that he had cooked dinner at Ms D's home twice.
The father showed Ms M a photo of a burn on W and explained that he had taken him to the doctor. The photo is part of Exhibit 16 and depicts a small mark on a child's hand. There is no medical evidence suggesting that the burn was ever a significant injury. The mother explained as part of her case that W had accidently burnt himself on a glue gun (used in craft) that had not cooled down.
The father recounted to Ms M his many complaints about how he was treated in May 2022 "because I took [Y] to an operation because he had giardia and his mother wouldn't take him". This is an inaccurate account of what occurred as discussed earlier in these reasons.
When asked by Ms M whether the mother had physically harmed the children previously the father said, "she never did any of the parenting, she did not discipline them and did not even spend time with them". Given that the children had lived with the mother primarily since 2018 (until withheld by the father in September/October 2023), and at the time the parents separated the children were aged eight, four, two, and three months respectively, such a statement is patently inaccurate.
The father told Ms M that Y is allergic to dairy and that he believes the mother forced him to eat dairy. As earlier discussed, there is no evidence that Y was allergic to dairy let alone that the mother forced him to eat dairy.
Ms M's conversation with Ms D was a very one sided affair in that her comments, as reported by Ms M in her Family Report, were entirely negative about the mother. Despite this, Ms M did not give the mother an opportunity to respond to any of Ms D's allegations, something she conceded she should have done. Many of the opinions expressed by Ms D to Ms M were entirely outside any area of expertise she might claim to have. Notwithstanding these deficiencies, Ms M conceded that she had placed considerable weight on the information provided by Ms D and the opinions she expressed.
Ms M said in her report that she "did not observe inconsistencies between the children's account of events and their body language" contrary to observations made by Child Safety who did observe incongruence between what was said and the children's demeanour. Ms M opined that the children were "spontaneous and consistent in their disclosures, which also aligns with information provided by their psychologist [Ms D]".
Ms M did not have the advantage of reviewing all the evidence as presented during the trial and as already noted, Ms M relied heavily on Ms D.
Ms M recommended that the children continue to live with the father, that he have sole parental responsibility and that the younger three children change schools "if deemed suitable". Ms M did not even consider the possibility that the father posed a risk of harm to the children, no doubt influenced by the opinions of Ms D. Ms M recommended that if the mother was found not to pose an unacceptable risk to the children, then X and Y should only spend time with the mother if they wished to do so. In relation to the younger two children, Ms M recommended that they continue to attend upon Ms D "to manage the stress from these proceedings and repair their relationship with their mother" and "gradually increase time with their mother" over about eight months so that eventually they would spend alternate weekends with the mother and half school holidays.
I am unable to place any weight on Ms M's recommendations having regard to her apparent acceptance of all she was told by Ms D, who, although not a witness in the case, was clearly aligned with the father having regard to the evidence attributed to her.

[88]

On the evidence before me including from the parents, Child Safety, Dr S, the school, Ms M and Ms D (indirectly), I find that the father became fixated on "keeping the children safe". Given the father's chronic anxiety, which must be debilitating because it has kept him out of the work force for over 10 years, it must have been difficult for him to put things into perspective.
I accept that, like any parent, the mother became frustrated with the children from time to time, as conceded by her, and that she sometimes 'frog marched' the children upstairs at bedtime, yelled at them and smacked them on the bottom.
Unfortunately, it seems that every bruise or mark the father observed on the children was documented by photograph or a trip to the doctor. On his own admission, the father sent hundreds of emails and texts to the mother enquiring about bruises he observed or other marks or conditions relating to the children. As earlier observed in these reasons, it is not in dispute that all the children enjoy sport and outdoor activities and consequently it is hardly surprising that they would have bruises or other marks on them from time to time.
I have no doubt that the father's fixation was at times overwhelming for the mother who generally did not respond to the father's emails or texts. While understandable, her failure to respond likely exacerbated the father's anxiety about the risk the children faced in her household.
It is apparent that the children were exposed by the father to a constant dialogue around being "unsafe" with the mother. Rather than these feelings being allayed by their therapy with Ms D, it seems her involvement as a joint therapist for the children and the father, only exacerbated their feelings, and those of the father. Having regard to the environment the children had been exposed to by the father and possibly by Ms D, it hardly seems surprising that when asked by Ms M to rate their "safety" with the mother, each of the children gave her a low rating.
The father's behaviour has resulted in psychological and emotional harm to the children, which I find to have been significant in the case of Y. The other three children appear to have a greater resilience than Y. The father's behaviour must be seen in the context of his chronic anxiety which appears to have been largely untreated for a significant period. No one suggests that the father does not love his children and it is not contentious that the children love the father. Indeed, the mother concedes that X "idolises" the father and has always had a close relationship with him.
In my view, while there is future risk posed by the father of psychological and emotional harm it is not an unacceptable risk in relation to X, Z and W but is unacceptable in relation to Y. Even if I am wrong in relation to the magnitude of the risk posed to Y or, indeed, in relation to the other children, I am of the view that any risk is capable of amelioration, by carefully targeted orders.

[98]

It is often said by experts in this area that children can never have too many people to love them. Unfortunately, the children in this case have been deprived, for far too long, of a relationship not only with the mother but with their extended maternal family. It is very sad indeed that the father's chronic anxiety about the mother's treatment of the children and the non-existent risk of her absconding with the children has brought this about.
I have come to the conclusion that the best outcome, in the circumstances, is for the children to live with the mother, or as suggested by her, with her parents for a period and with a moratorium for six weeks of no time or contact with the father but that thereafter, if the father complies with the moratorium, for an equal time arrangement.
While the fallout for the children has been significant, particularly for the most vulnerable child, Y, I am of the view that it would be counterproductive to impose a lengthy moratorium on the children seeing the father and thereafter imposing long term supervised time with him. Such an order would likely further damage the children's relationship with the mother by causing resentment arising from the limitation to their relationship with the father. It would also be difficult to enforce particularly for the older children.
The incentive of equal time after a moratorium is intended to give the children the best chance of reestablishing their relationship with the mother and her extended family without undue interference from the father. Further, the incentive is intended to encourage not only the father but also the children, particularly Y and X, to comply with the moratorium but if the father fails to comply with the restraints I intend to place upon him, the moratorium will be extended. If the father continues to breach the moratorium/s, the long-term arrangements will revert to the 2021 parenting order i.e. alternate weekends from Thursday to Monday. This is what both parents agreed was in the children's best interests at that time, notwithstanding the father later resiling from that agreement.
I propose to restrain the father from having any contact at all with the children during the six week moratorium and any extension of that if he fails to comply. It was agreed at the conclusion of the case that I should have regard to Google Maps to determine the distances between the father's residence and the mother's residence, place of work, the children's schools, necessary routes into and out of the suburb, and shopping centres, to determine an appropriate distance to restrain the father from entering. I have done so and intend to impose a 50 metre restraint against the father from those places including requiring the father not to shop at the local Coles during any moratorium. I am satisfied that there is an alternative shopping centre in a neighbouring suburb which will be unlikely to create any great inconvenience for the father.
A recovery order will also lie in the registry to be executed in the event the father fails to return any of the children to the mother.
The father will be required to engage with a clinical psychologist and psychiatrist to manage his chronic depression and anxiety which must be debilitating given that he has not been in the work force for over 10 years.
I have considered making an order that the mother not physically discipline the children (as sought by the father) but have decided not to as such an order would likely place the children in the middle of any ongoing dispute between the parents, as the father would likely continue to ask the children and photograph the children's apparent injuries. Further, I accept the mother's evidence that she had already implemented an alternative approach to disciplining the children prior to the father withholding them in 2023. The mother also has significant support from her four siblings, her parents, and her partner, Mr E. I consider that any risk posed by the mother to the children is remote.
The father did not oppose the mother being able to obtain passports for the children.
I see little point in the general non-denigration provisions as again such orders would likely place the children in the middle of any dispute because they would be the only source of information about such matters.
The parties all had the opportunity to make submissions about the orders proposed by the others, and the order I propose to make is what I consider to be in the best interests of the children in the circumstances of this case.

Charles & Charles [2025] FedCFamC1F 310 (14 May 2025)

At a glance

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Judgment (107 paragraphs)

Legislation Cited (3)

Cases Cited (1)