Fitzwater v Fitzwater

(a) Making critical or derogatory remarks about the father or his family either to, with or within the presence or hearing of the children and will take all reasonable steps to prevent any other person doing so; and

(b) Discussing or sharing the contents of any documents used or intended for use in the family law proceedings either to, with or within the presence or hearing of the children and will take all reasonable steps to prevent any other person doing so.

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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The applicant father, Mr Kuijpers, born 1985, and the respondent mother, Ms Kuijpers, born 1985, commenced living together in September 2012, married in March 2015 and separated on 24 March 2023. There are two children of the relationship, X, born 2015, and Y, born 2017.
2. This judgment concerns an application by the father to spend time with the children, in the context of there having been no time since April 2023, and in the context of his father being diagnosed with a terminal illness.

1. On 9 April 2024 the father filed an application for final orders.
2. On 15 May 2024 the father was charged with two counts of sexual intercourse without consent against the mother. He pleaded not guilty to both counts. The matter was set down for trial from 10 to 13 June 2025.
3. On the same day, orders were made requiring the parties to enrol in the B Family Service, and for the appointment of an Independent Children's Lawyer. An Interim Defended Hearing was listed to determine issues of the reintroduction of the children to the father and whether the father's time should be supervised.
4. On 23 July 2024 a Child Impact Report was filed by a Court Child Expert.
5. On 14 August 2024 at the Interim Hearing, orders were made for the mother to have sole decision making and for the children to live with the mother. The father was permitted to send letters, cards, presents and emails to the children at various times in the year, but was restrained from spending time with the children at their schools or medical appointments.
6. On 11 December 2024 orders were made for the sale of real estate owned by the parties and for interim distribution of the proceeds.
7. On 21 February 2025, the matter was transferred to Division 1 of the Federal Circuit and Family Court of Australia.
8. On 29 July 2025 the court was advised that the father was found not guilty on one of his criminal charges and was to be retried on the other, noting the jury was unable to reach a verdict. The matter is due to be allocated trial dates on 3 November 2025, with the trial likely to occur between April and June 2026.
9. On 27 August 2025, the father filed an application in a proceeding seeking time with the children on Saturdays and Wednesdays, as well as communication via AVL each Thursday evening. The matter was listed to be heard on 23 September 2025.
10. On 4 September 2025, the mother filed a response to the father's application, seeking that it be dismissed.

1. Ultimately the father pursued very different orders from those that he indicated in his application.
2. In the father's Case Outline Document, he sought discharge of the previous interim orders made on 14 August 2024. He sought orders for supervised time to be undertaken with supervision by through the D Family Service . The supervised time was to be done through a gradual reintroduction to time between the father and the children, with an initial one hour videoconference, followed by more regular videoconferences including both the father and the paternal grandfather, and then subsequently face-to-face contact once per week. It was sought that at various stages reports of the father's interactions with the children be prepared. Together, these orders were a significant departure from the original orders sought in the father's Application in a Proceeding filed 27 August 2025, as he had previously sought the children spend unsupervised time with him.
3. The mother asks that the father's application be dismissed. The mother seeks the father continue to engage with his treating psychologist and they be provided with documents filed in these proceedings, including the Child Impact Report and report of Dr C. She also sought an order restraining the parties from making critical comments against the other, or from exposing the children to the court proceedings.
4. The Independent Children's Lawyer also asks that the father's Application in a Proceedings be dismissed.

1. The father relied upon the following documents:

(1) Application in a Proceeding filed 27 August 2025;

(2) Affidavit of the father filed 27 August 2025;

(3) Child Impact Report of Ms E dated 17 July 2024; and

(4) Affidavit of the single expert Dr C filed 5 March 2025.

1. The mother relied upon the following documents:

(1) Response to an Application in a Proceeding filed 4 September 2025;

(2) Affidavit of the mother filed 4 September 2025;

(3) Notice of Child Abuse, Family Violence or Risk filed 6 August 2024;

(4) Child Impact Report of Ms E dated 17 July 2024;

(5) Affidavit of the single expert Dr C filed 5 March 2025; and

(6) Section 69ZBE material from Children, Youth and Families.

1. The Independent Children's Lawyer relied upon the affidavit of the single expert Dr C filed 5 March 2025.

1. The paramount consideration in determining what parenting orders should be made is, pursuant to s 60CA of the Family Law Act 1975 ("the Act"), the best interests of X and Y.
2. The recently amended s 60CC of the Act sets out the considerations that, where applicable to the case, are to be examined and weighed to determine best interests.[1] In this case, it is the considerations at s 60CC(2) that have general application. They are in the following terms:

(2) For the purposes of paragraph (1)(a), the court must consider the following matters:

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i) the child; and

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

(b) any views expressed by the child;

(c) the developmental, psychological, emotional and cultural needs of the child;

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;

(e) 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;

(f) anything else that is relevant to the particular circumstances of the child.

1. As described in the Explanatory Memorandum, the various considerations are designed to be non-hierarchical, non-exhaustive, able to allow different weight to be applied as appropriate to the individual child and, whilst guiding a court, permit flexible adaptation to each child's specific circumstances.[2]
2. By their nature the considerations overlap and are entwined with each other. For example, issues of safety referred to at s 60CC(2)(a) can impact upon the capacity of a parent to provide for a child's psychological needs (s 60CC(2)(d)), and in turn impact upon the benefits of having a relationship with that parent (s 60CC(2)(e)). Similarly, the views expressed by a child at s 60CC(2)(b) can be indicative of the emotional needs of the child (s 60CC(2)(c)).
3. The considerations may point in different directions. It is the synthesis of all of the applicable considerations that will determine the outcome. In determining that outcome, s 60CG further provides that, to the extent that it is possible to do so in a manner consistent with a child's best interests, orders are to be made consistent with a Family Violence Order that is in place, and in a manner that does not expose a person to an unacceptable risk of family violence.
4. Given the interim nature of the proceedings, there are significant limitations in determining factual matters that bear upon s 60CC. Such limitations were identified by the Full Court in cases such as Salah & Salah (2016) FLC 93-713, where it was observed that "it is very common in interim parenting proceedings to see factual disputes which cannot be determined without the evidence being tested in the context of a trial".[3] Reflecting the earlier case of Goode & Goode (2006) FLC 93-286, it was accepted that the Court in interim proceedings should avoid being drawn into (at [68]):[4]

...issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute...

1. The Court is also to look to those matters that are supported by corroborative evidence, particularly from what may be considered independent sources.
2. Importantly, however, and consistent with the need pursuant to s 60CC(2)(a) to consider arrangements to promote the safety of the child and the child's carers, Eaby & Speelman [2015] FamCAFC 104; (2015) FLC 93-654 identified at [18] that such an approach "does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts".[5]
3. That is, the Court, despite the limitations on testing the evidence and the inability to make concrete findings, is still required to give consideration to issues raised, such as those of risk and, as SS & AH [2010] FamCAFC 13 identified at [100]:[6]

...weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

1. In the context of interim proceedings, and the inability of the Court to test evidence and reach ultimate factual conclusions, it is important to recognise the nature of the court's assessment of safety and risk. In Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 at [50] the approach to risk was adopted from Fitzwater v Fitzwater [2019] FamCAFC 251; (2019) 60 Fam LR 212 ("Fitzwater") as:[7]

...a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm...

(Emphasis in original)

1. It was accepted that this is an exercise to be undertaken even where the underlying facts cannot necessarily be determined one way or another. For example, the court accepted from Fitzwater that:[8]

It cannot be correct that the unacceptable risk of a child's sufferance of harm through future sexual abuse can only ever be established if it is proven a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis v Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington (aka Bande) v Cade (No 2) (2009) 42 Fam LR 401; (2009) FLC 93-422; [2009] FamCAFC 230 at [56]-[61]; Johnson v Page [2007] FamCA 1235; (2007) FLC 93-344 at 81,888-9; [2007] FamCA 1235 at [68], [71], [76], [77]).

(Emphasis in original)

1. It can be seen that this approach to the assessment of safety and risk is well adapted to the character of interim proceedings where controversial underlying facts are unable to be determined.

1. The father identified that a key reason for pursuing an immediate change in the arrangements for the children is that his father has been diagnosed with a terminal illness. He proposed a graduated and reportable transition from video time to face to face time, on the basis that the regime was as cautious and graduated as possible.
2. This comes against a background of the children not having spent time with the father since April 2023, a period now in excess of two years. Prior to that, the father moved out from the family home in response to advice from children's psychologist. Given the outstanding criminal charges it is understandable that the father has not more forcefully pursued orders for time to take place.
3. The greater background is the subject of contention. The mother alleges that she has been subjected to many instances of sexual assault by the father, the two with which he has been charged being examples, but not the totality of such. The mother further alleges that the father, prior to separation, was angry, abusive and perpetrated other family violence upon her in the presence of the children. The mother identifies a number of specific instances of physical violence, describes violence perpetrated upon a pet dog, threats directed toward the dog, and angry and abusive physical interactions with the children. The mother further raises the possibility of sexual abuse of Y, based upon medical and physical presentations, Y wetting the bed and suffering nightmares, and allegations that the father experienced erections following giving Y close hugs. The significance of Y's presentation is not supported by any adequate expert evidence at this stage.
4. The children have been identified to be vulnerable, noting in particular for X that this has been long standing. A doctor's report prepared in 2019 regarding X (who was then aged 3 years 8 months) noted significant anxiety symptoms, sufficient then to interfere with daily life.
5. There is a current Family Violence Order, made by consent on [...] November 2023, naming the mother as a protected person from the father.
6. The father denies having perpetrated sexual abuse of the mother or of Y and denies having directed family violence to the mother and children. In aid of his application the father notes that the allegations of sexual abuse of either the mother or Y did not form a part of the application and were only raised later. He contends that the mother's attitude toward him changed and hardened shortly prior to separation when he disclosed to her that he had been sexually abused as a child.
7. The father attends upon a psychologist for support and has engaged in courses putatively designed to improve his insight and capacity as a parent. The extent of the insight gained and improvements in parental capacity gained from the courses is not yet apparent in the proceedings.
8. Dr C noted that the children are well supported psychologically. He considered that the children may relish time with the father.
9. A Child Impact Report was released on 17 July 2024. The author noted that the children, at that stage, appeared to be rejecting the father and aligning themselves with the mother. The author observed that (in a context of contested family violence) this behaviour could be "a justified, protective response to their trauma due to their exposure to family violence and child abuse".
10. At that stage the author recommended against time being spent with the father pending further examination of sexual abuse allegations, after which time the author recommended gradually increasing professionally supervised time.

1. A family report was prepared in later 2024 by a Single Expert, Dr C, a psychologist. His recommendations included that the children begin to see the father twice weekly with a third person in substantial attendance, in order to assist X and Y to feel comfortable with the resumption of time. He further recommended that if the children responded well to the time that it could be increased.
2. This appeared to follow on from an intermediate conclusion by Dr C that with "appropriate professional intervention, there is some possibility of the father reclaiming a warm, loving connection with X and Y, pending, of course, an appropriate provision of time in his care (if safe to do so)". He further observed the relationship to be precarious, but not irrecoverable, even though he considered that the relationship has broken down entirely.
3. He observed that neither child sought to spend time with their father, but also that limited weight ought to be placed on those expressions due to the stages of development of the children, and the absence of substantial reasons. Dr C also described the children as anxious and observed that it was unclear how the children might respond to reunification with the father. He considered that the children have been influenced (he could not say whether deliberately) by the mother's attitude to the father, children being perceptive to pick up on "tone, affect and demeanour." He considered that there are markers of a co-dependence dynamic between the mother and children.
4. Dr C described some corroboration from the father in acknowledging, to some extent, that he had been irritable, reactive and aggressive. He observed indicators that the father has struggled with anger, in a manner that would benefit from further addressing.
5. Dr C did not consider that the father represented features shown by research to predict ongoing sexual violence. He further described that he has not formed the opinion that the father is an imminent sexual risk. The cogency of these conclusions, or their assistance in answering questions of risk, were not apparent. He described the evidence of possible sexual conduct toward Y as tenuous.
6. Dr C considered that the ongoing risk to the mother, given the separation of the parties, was psychological.
7. Despite the tenor of his recommendations, Dr C observed that there were too many unknown variables to make recommendations beyond these, noting that it "is unclear how X and Y will respond to reunification." He also noted potential impact on the mother given the as yet unresolved criminal proceedings.
8. The recommendations of Dr C came in a further context that he did not observe the children with the father due to the length of time since they had seen him, and due to Y's presentation.

1. While the parties accepted that the regime proposed by the father dealt with any potential physical risk issue, the remaining issues were identified to be the nature and extent of benefits that the children may receive from contact with their father, and the potential adverse impacts upon the children.
2. The ICL, who opposed the father's application, pointed also to the inherent limitations in supervised time, providing an artificial environment for the children's time with the father and so, in itself limiting benefits of that time.
3. At present there is a significant gulf between the children and the father. Neither wishes to spend time with him and, although this is a matter for limited weight in terms of the children's views, it is a matter of significance in determining the efficacy of, and benefits realistically available to the children if a regime such as that proposed by the father is implemented.
4. Although the regime suggested by the father is apt to secure the children's physical safety, there can be little confidence that, in the context of their vulnerabilities, they would tolerate the reintroduction. Whilst it might be successful, there is at present a greater risk that it will have a strong negative impact on the children, particularly if they have been exposed to the father's anger and violence in the past, and even more so if Y has been the subject of sexual abuse. It is difficult to understand the pathway taken by the Single Expert to reach his recommendations, or how they sit with his intermediate determinations. Whilst these matters may be resolved at a final hearing, at present they do not give a good basis to implement what has been recommended.
5. What tells strongly against the implementation is that, even in the context of the assessment by the Single Expert, a reintroduction to the father was not effected. If a reintroduction was unable to be undertaken in that context, it is difficult to see how one could be undertaken in the manner suggested by the father.
6. Although the father has cautiously suggested an introduction by electronic means, it is again difficult to consider that the children would participate in such a mechanism.
7. While it is understandable that the father seeks to give the children opportunity to spend time with his father, it is difficult to see a way in which the children would be able to be receptive to, and to tolerate this. They have not spent time with either the father or grandfather for an extended period, they may be significantly challenged by the prospect of spending time with the father, and their capacity to then engage with their terminally ill grandfather is not apparent.
8. While this may be a significant missed opportunity for the children and may deprive them of meaningful connection with their grandfather, I am unpersuaded that imposing such on the children at this stage will be a beneficial experience for them, given the current nature of their relationship with their father.

1. The father's application should be refused.
2. The father should be at liberty to provide his treating psychologist with documents filed in the proceedings, including the Family Report and Child Impact Report.
3. While the mother sought a restraint on both parties regarding making critical comments about the other, or about exposing the children to the court proceedings, it is only she who has contact with the children. She should be restrained as she proposed, particularly in a context where Dr C offers the opinion that the children are influenced by the mother.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

[1] Phillips & Hansford (No 2) (2019) FLC 93-917 at [43]; Jollie & Dysart [2014] FamCAFC 149 at [45].

[2] Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth).

[5] [2015] FamCAFC 104; (2015) FLC 93-654 at [18].

[6] [2010] FamCAFC 13 at [100].

[7] [2022] FedCFamC1A 97; (2022) FLC 94-092 at [50].

[8] [2019] FamCAFC 251; (2019) 60 Fam LR 212 at [140].