Fontain & Pretre (No 4) [2025] FedCFamC1F 218 (4 April 2025)

1. The Respondent Father is restrained, on a without admissions basis, from:

(a) physically approaching the Applicant Mother; and

(b) following or observing the Applicant Mother or arranging or requesting a third party to follow or observe the Applicant Mother.

1. The costs of, and incidental to these proceedings is reserved and remitted for consideration by the trial judge at the conclusion of the final hearing.

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 Fontain & Pretre (No 4) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This case concerns two children, X born 2014, now eleven 11 years old, ("X"), and her brother Y born 2016, now nine years old ("Y") (collectively "the children"). The children currently live with Ms Fontain ("the mother") and spend supervised time with Mr Pretre ("the father") (collectively "the parents"). The Court must decide what further interim orders should be made for the children to spend time with the father and with Mr M ("Mr M"), the mother's current husband.

1. This matter has a long and tumultuous history both in and out of this Court. Throughout the proceedings each parent has made very serious allegations against the other, all of which have been denied. The allegations include family violence, coercive and controlling conduct, neglect, abuse of the children, mental health difficulties, and abuse of drugs and alcohol. These allegations form the background of the complex interpersonal and interfamilial dynamics at play in this case.
2. The father is 46 years old, and the mother is 32 years old. The parents commenced cohabitation in 2012 when the mother was 19 years old. The parents separated in or about May 2018. Shortly after the parents separated, the father left the former matrimonial home located in Suburb O, New South Wales ("the former matrimonial home"). Around the same time, an informal agreement was reached between the parents whereby the father would spend time with the children each Tuesday and Saturday from 9.00 am to 5.00 pm.
3. In August 2018, the mother and the children moved from the former matrimonial home into the maternal grandparent's home in Suburb C, New South Wales. The father subsequently moved back into the former matrimonial home. Between 10-22 August 2018, the father retained the children contrary to the parents' agreement. The mother commenced the first tranche of proceedings at this time as a result.
4. On 22 August 2018, Baumann J made orders for the father to return the children to the mother by 5.00 pm that day. On 24 August 2018, Baumann J further ordered that the children were to live with the mother and spend time with the father each Tuesday from 9.00 am to 5.00 pm, each alternate weekend from Friday 5.00 pm until Monday 9.00 am, and each alternate Thursday from after day care to Friday 5.00 pm (Fontain & Pretre [2018] FamCA 675).
5. On 27 August 2018, McClelland J, as his Honour then was, suspended the Orders made on 24 August 2018. In their place, his Honour ordered that the children live with the mother, spend supervised time with the father, and appointed an Independent Children's Lawyer (Fontain & Pretre (No 2) [2018] FamCA 676).
6. On 24 September 2018, Johnston J varied the Orders made on 24 August 2018. The effect of the variation was to ensure that the maternal uncle was not permitted to care for the children, or to be present with the children without the mother being present.
7. In December 2018, the children were assessed by a paediatrician, and Y was diagnosed as having expressive and receptive language delay, a degree of global developmental delay, and autistic features that warranted further assessment by a developmental paediatrician. Around the same timeframe, the mother commenced a relationship with Mr M
8. Between 29 January 2019 and 9 July 2019, the mother asserts that the father did not spend any time with the children.
9. On 7 February 2019, Dr K, a developmental paediatrician, formally assessed Y and diagnosed him as having autism spectrum disorder level 3 and global developmental delay.
10. In July 2019, the father filed an Application in a Proceeding seeking unsupervised time with the children. On 5 September 2019, Senior Registrar Campbell, as his Honour then was, dismissed this application and made alternative orders that the father spend not less than eight hours weekly with the children to be supervised by a commercial agency and that the mother be restrained from permitting the children to be in the unsupervised care of the maternal uncle and/or Mr M
11. Between 31 December 2019 and 17 October 2020, the father did not spend time with the children.
12. On 22 December 2020, the father filed an urgent Application in a Case seeking to restrain Mr M from spending any time with the children. On 23 December 2020, this Court made such order.
13. In April 2021, the parents sensibly settled all matters outstanding in relation to alteration of property interests.
14. The parties had the benefit a Family Report prepared by Court Child Expert Ms P dated 16 September 2021.
15. The matter was heard on a final basis in this Court for four days commencing 1 November 2021.
16. During the period in which that final judgment was reserved, the father filed an Application in a Proceeding seeking urgent injunctions against the children receiving their second dose of the Covid-19 vaccine. On 9 February 2022, this Court delivered ex-tempore decisions for judgment (Fontain & Pretre [2022] FedCFamC1F 198). The father's application was dismissed, and he was ordered to pay the mother's costs for the same on a party-party basis.
17. I delivered the final judgment in the first substantive proceedings on 26 May 2022; Fontain & Pretre (No 2) [2022] FedCFamC1F 200 ("the final reasons for judgment"). In such judgment the Court concluded that Mr M presented a risk of harm to the children because of his online grooming activities of a young person. To ameliorate this unacceptable risk, orders were made restraining the mother from bringing the children into contact with Mr M, for the mother to attend psychological or psychiatric therapy, and for the father to spend supervised time with the children for three hours on each alternate Saturday or Sunday, on 25 December each year, and on Easter Sunday each year.
18. On 6 December 2023, the parents commenced the second tranche of these proceedings.
19. On 5 February 2024, Senior Judicial Registrar Buttriss transferred the matter to Division 1 of the Federal Circuit and Family Court of Australia, listed the matter in my own docket and made orders appointing an Independent Children's Lawyer.
20. On 2 July 2024, this Court made orders by consent re-opening the parenting proceedings between the parents pursuant to s 65DAAA of the Family Law Act 1975 (Cth) ("the Act"). Orders were also made appointing Dr U as a Single Joint Expert ("the Single Joint Expert") to conduct an updated Family Report.
21. On 15 November 2024, orders were made in chambers releasing the Single Expert Report of Dr U dated 13 November 2024 to the parties ("the Single Joint Expert Report").
22. On 20 February 2025, the parents came before this Court for the purpose of the current interim proceedings. Submissions were finished that day, judgment was formally reserved, and the matter was listed for final hearing commencing 25 August 2025 for an estimated duration of four days ("the impending final hearing").

1. Broadly, within her Application in a Proceeding filed 18 December 2024 ("the mother's application") the mother seeks that Order 8 of this Court made 31 March 2022 be discharged and that the mother be permitted to bring the children into contact with Mr M on a gradually increasing regime:
   • For the first three-month period, for a period of three hours per week under professional supervision;
   • For the second cumulative three-month period, for a period of six hours per week under the supervision of the maternal grandmother or Ms V (Mr M's sister in law);
   • For the third cumulative three-month period, for a period of twelve hours per week under the supervision of the maternal grandmother or Ms V; and
   • For the fourth cumulative three-month period, for a period of twenty-four hours per week under the supervision of the maternal grandmother or Ms V, or any other extended family member.
2. The mother also seeks that the Court make orders that she be able to facilitate telephone or video link communication between the children and Mr M, and that the Court impose restraints against the father from physically approaching the mother, following or observing the mother, and/or causing a third party to do the same.

1. Within his Response to an Application in a Proceeding filed 30 January 2025 ("the father's response"), the father sought that the mother's application be dismissed and that Orders 3-5 of this Court made 31 March 2022 be discharged. Further, he seeks that the children spend time with him as agreed in writing, and failing this, in accordance with a gradually progressing scheme as outlined below:
   • For a period of six weeks from the date of these orders on each alternate Sunday from 9:00 am until 12:00 noon on an unsupervised basis;
   • Following the conclusion of the above order until the date which occurs six months from the making of these orders, on Sunday from 9:00 am until 3:00 pm on an unsupervised basis on the first alternate week, and, on Friday from 3:00 pm until 7:00 pm on unsupervised basis in the second alternate week;
   • Following the conclusion of the above order, for a period of a further three months, on Sunday from 9:00 am until 5:00 pm on an unsupervised basis in the first alternate week, and, on Friday from 3:00 pm until 7:00 pm on an unsupervised basis in the second alternate week; and
   • Commencing on the date which falls nine months from the date of these orders, on each alternate Sunday from 9:00 am until 7:00 pm (presumably on an unsupervised basis), and, on Friday from 3:00 pm until 7:00 pm on an unsupervised basis.
2. The father also seeks incidental orders regarding the changeover venue, therapy sessions and a partial concession, on a without admissions basis, that the father refrain from physically approaching the mother, following the mother or arranging/requesting a third party to do the same and that the mother pay the father's costs of and incidental to the current application.

1. Within her Case Outline document filed 19 February 2025 ("the Independent Children's Lawyer's case outline"), the Independent Children's Lawyer seeks that both the mother's application and the father's application be dismissed, that the Court make orders to prepare the matter for final hearing, and that the parents pay the Independent Children's Lawyer's costs.

1. In support of her case, the mother relies upon the following material:

(a) Initiating Application filed 24 October 2023;

(b) Application in a Proceeding filed 18 December 2024;

(c) Her affidavit filed 18 December 2024, including annexures;

(d) Affidavit of Mr M filed 18 December 2024, including annexures;

(e) Case Outline document provided to chambers on 17 February 2024, including attached Minute of Order; and

(f) Orders of this Court made 31 March 2022.

1. In support of his case, the father relies upon the following material:

(a) Response to an Application in a Proceeding filed 30 January 2025;

(b) His affidavit filed 30 January 2025; and

(c) Outline of Case Document filed 17 February 2025.

1. In support of her case, the Independent Children's Lawyer relies upon the following documents:

(a) Outline of Case Document filed 19 February 2025; and

(b) Fontain & Pretre (No 2) [2022] FedCFamC1F 200; and

(c) Single Expert Report of Dr U dated 13 November 2024.

1. The applicable law is found in Part VII of the Act. The Family Law Amendment Act 2024 (Cth) ("the Amendment Act") came into effect on 6 May 2024 and made substantive amendments to the previous Act which apply to these proceedings. In determining parenting matters under Part VII of the Act the Court must still regard the best interests of the child as the paramount consideration: s 60CA.
2. The objects and principles of Part VII are set out at s 60B:

(a) to ensure that the best interests of children are met, including by ensuring their safety; and

(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

1. In regard to parental responsibility, the presumption of equal shared parental responsibility as created by the previous s 61DA of the Act has been abolished. Instead, s 61D(3) of the Act provides the Court with the ability to deal with the allocation of responsibility for making decisions in relation to children as follows:

61D Parenting orders and parental responsibility

(3) A parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision-making in relation to all or specified major long-term issues.

1. Section 61DAA of the Act provides the Court with an understanding of what joint decision-making about major long-term issues entails:

61DAA Effect of parenting order that provides for joint decision-making about major long-term issues

(1) If a parenting order provides for joint decision-making by persons in relation to all or specified major long-term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:

(a) to consult each other person in relation to each such decision; and

(b) to make a genuine effort to come to a joint decision.

(2) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.

1. Subject to any order to the contrary, s 61DAB clarifies that if a child is spending time with a person under a parenting order, the order is not taken to require that person to consult with a person who has parental responsibility about decisions that are made in relation to the child that are not major long-term issues.
2. Because s 60CA and s 60B refer to the best interests of the child, the Court must consider s 60CC which specifies how the Court determines what is in a child's best interests:

60CC How a court determines what is in a child's best interests

(1) Subject to subsection (4), in determining what is in the child's best interests, the court must:

(a) consider the matters set out in subsection (2); and

(b) if the child is an Aboriginal or Torres Strait Islander child - also consider the matters set out in subsection (3).

(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:

(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.

(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:

(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and

(b) any family violence order that applies or has applied to the child or a member of the child's family.

1. The new legislative focus is on promoting the safety of children and carers, whereas the former provisions focused on protection from harm. The legislature must have intended there to be a distinction between the former provisions, which focused on protection from harm, and the current provisions which focus on the promotion of safety, otherwise the amendments would lack utility (Melounis & Melounis (No 4) [2024] FedCFamC1F 778). Pending guidance from the Full Court, this Court believes that the amendments require a more nuanced, proactive and future-focused approach to considering the safety of children and those who care for them. This will be guided by historical risk assessment.
2. Acknowledging this, the Court cautions against lapsing into simplistic binaries such as contending that promoting safety is always different from protection from harm. The reality is much more nuanced. Every case is different. Perhaps in many cases it will make no difference which approach is adopted, but in other cases the nuanced, proactive and future-focused difference is very important to the child and carer.
3. It should further be noted that due to the repeal of the former s 65DAA of the Act, there is no longer the statutory requirement for the Court consider equal time or substantial and significant time. Cases that refer to this section will need to be carefully considered as to whether they still apply in limited ways, if at all.

1. The Full Court's decision in Goode & Goode (2006) FLC 93-286 at [68] provides some guidance as to the procedure of interim parenting hearings:

...the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is "significantly curtailed". Where the Court cannot make findings of fact it should not be drawn into 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 and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.

1. An interim hearing proceeds on evidence that is yet to be tested. There is no cross-examination to establish the veracity of the evidence before the Court. Where facts are in dispute the Court cannot make conclusive findings about those matters. As the Full Court observed in Franklyn & Franklyn  [2019] FamCAFC 256 at [73]:

In interlocutory hearings, to the extent it is possible, judges are enjoined to make decisions about interim orders based on agreed facts, less contentious evidence, and inferences which fairly arise (citation omitted), but decisions must still be made despite contentious evidence. Judges are obliged to act on the strength of the evidence presented and, if it is relatively weak, are entitled to treat it so.

1. Nonetheless, any such findings made at an interim hearing "should be couched with great circumspection, no matter how firmly a judge's intuition may suggest that the finding will be borne out after a full testing of the evidence" (SS v AH [2010] FamCAFC 13 at [88]).
2. As explained by the Full Court in Marvel & Marvel (No 2) [2010] FamCAFC 101; (2010) 43 Fam LR 348 at [120], it is important to recognise that interim orders are only a waypoint on the road to a final solution for the family unit.
3. As has been frequently emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires or thinks to be in the best interests of their child or children.

1. In the final reasons for judgment this Court made several findings in respect of the parents and Mr M that are still relevant for the current proceedings. Except where otherwise specified all references within this section should be construed as referring to the final reasons for judgment.
2. At paragraph 116 the Court found:

... consistent with the totality of the evidence, that the father did perpetrate family violence, including coercive and controlling family violence, both before and after separation. In the course of a volatile relationship, the mother was also abusive and violent towards the father and that, more likely than not, this was both the result of, and the response by, a long-term victim of violence and controlling behaviour. It is more likely than not that the children were exposed to this behaviour. The Court will find that it is likely that the father's intimate relationship with the mother commenced when she was young, before she was 18, and at a time when there was a significant differential in the balance of power between the parents as a result of the father's much greater age and maturity. However, the evidence does not allow the Court to conclude that the father groomed the mother when she was under the age of 18 years. The Court will make findings consistent with the family consultant's concerns about the father's lack of adequate parenting capacity, and the significant adverse impact of any change on the children if they were to revert to living with their father. The Court will find that the father's proposal for the children to live with him, but spend time with their mother, not to be in their best interests, and not reasonably practicable.

1. Regarding the mother, the Court accepted the family consultant's assertion that "the mother has been the children's primary source of love, care and nurturing for all of their lives..." (paragraph 98). However, it also cautioned that "the mother is blind to the risk of harm that [Mr M] presents to her own children, and especially to [Y] who, because of his disability..." (paragraph 39). Consequently, immense concern was caused by the mother's proposal to remove any restraints on Mr M as it created "the impression of prioritising a relationship with her partner [Mr M], over the children's safety" (paragraph 109).
2. Regarding the father, at paragraph 73, the Court found that:

There is ample reason to be concerned about the father's capacity to care for these children, and to meet their needs, both physical and emotional. The reality in this case is that he has actually had very little to do with their care for many years. He presents as being immature and at times irresponsible in terms of his attitude towards the children and the needs that they have. There are disturbing undercurrents of attempts to control throughout the evidence.

1. In respect of Mr M, the Court found that he "presents a very real risk to the children" (paragraph 118) based on a series of text messages that were "chilling to read" (paragraph 35). I was "comfortably satisfied that the evidence referred to ... demonstrates grooming behaviour" (paragraph 35). On that basis the Court concluded that there "was a risk of harm to the children, and particularly to [Y]", such that Mr M may "groom the children for the purposes of a sexual relationship, or any other form of inappropriate relationship" (paragraph 36).

1. The children experience vulnerabilities that must be considered by the Court. These vulnerabilities are uncontested and most succinctly expressed in the mother's Case Outline filed 17 February 2025 ("the mother's case outline"):

1.2. [X] is in Year 5 at [W School] at [Suburb AA]. She suffers from a

number of developmental and learning difficulties including:

• Language disorder comprising difficulties with reading and written expression;

• Low average cognitive skills;

• ADHD; and

• Anxiety.

1.3. [Y] too has special needs arising from:

• ASD Level 3
• Global development delay;
• ADHD; and
• Behavioural difficulties.

1. The Single Expert Report adds some nuance to this. X was described as experiencing separation anxiety and difficulties with reading and writing expression (Single Expert Report paragraph 21). Despite this, there has been "positive behavioural changes in [X] since seeing her Psychologist, [Dr BB]" (Single Expert Report, paragraph 46). Y was observed to be significantly more cognitively limited than X, speaking in incomplete sentences and requiring facial expressions and gestures to communicate (Single Expert Report, paragraph 20). Similarly, there is progress under the current arrangement with Y engaging "well in a satellite position in a [...] school which provides him opportunity to mingle and integrate in mainstream classes" (Single Expert Report, paragraph 44).
2. The Court pauses to note three important questions that arise from the material above:
   • How, if at all, do current accounts of the father's supervised time provide reassurance to the Court about ordering unsupervised time?;
   • How, if at all, could the Court at an interim hearing overlook previous final findings of unacceptable risk regarding Mr M in light of the uncontroverted vulnerabilities of the children?; and
   • Given the impending final hearing of this matter, why would the Court disrupt the current stability of the children in a manner that may lead to harm or further conflict?

1. Pursuant to Order 3 of the final reasons for judgment the children are to spend time with the father for three supervised hours on each alternate Saturday or Sunday; on 25 December each year and on Easter Sunday each year. The father is to meet the costs associated with the supervision and may be accompanied by up to three members of his family during such time.
2. The father attests in his affidavit filed 30 January 2025 ("the father's affidavit") that he has been regularly exercising his right to supervised time, with such sessions occurring at his primary place of residence. When the children are in the father's care they interact with the broader paternal family "cousins, grandparents, aunts and uncles" (the father's affidavit, paragraph 60). The father is only permitted to have three members of his extended family attend whilst he is having supervised time with the children.
3. The father proposes that the Court remove supervision and order gradually increasing time with the children over a nine-month period.
4. The current supervised time has not been without issue and there are several concerns that the Court must address.

1. At paragraphs 65-72 of the mother's affidavit filed 18 December 2024 ("the mother's affidavit") she deposes to numerous issues that have occurred since the final reasons for judgment were delivered. The mother's recollection of events can broadly be confirmed with reference to the annexed supervision reports.
2. The father does not convincingly address or reassure the Court about many if not most of the incidents referred to by the mother and recorded in the supervision reports. Just taking one example only, the supervision reports dated 9 April 2023 and 4 June 2023 clearly demonstrate that that father was warned numerous times that he was in breach of the conditions of his supervised time.

1. The mother asserts that the father does not adequately supervise Y near public roads (the mother's affidavit, paragraph 68(C)) and lets him wander into his cousin's home without the supervisor being present (the mother's affidavit, paragraph 69(b)). The father does not directly address these concerns. The mother's accounts align with numerous contemporary emails drafted by the supervision agency.
2. Failure to adequately supervise children, especially when such supervision occurs with professional help for a limited three-hour window, demonstrates reason for continued concern about the father's parental capacity.
3. X is now of an age where she is perceptive to her parents' strength and weaknesses. The Single Joint Expert opined that X had a tendency to "step in and assist [the father] in managing [Y's] emotional dysregulation" (Single Expert Report, paragraph 202). This action leads the Court to infer that X feels that the father is providing inadequate care to Y. This view is consistent with that expressed by the Single Joint Expert at paragraph 203 of the Single Joint Expert Report:

[X] may have taken on this role, having spent more time with her brother and observing ways in which their mother handles [Y]. She may have wanted to equally support her brother and father. This is reflective of [X] internalising her father's capacity to manage [Y], and awareness of the gap in parenting when she is in her father's company.

1. X's behaviours give the impression that the previous findings of this Court as to the father's parental capacity remain the same. Y has limited risk perception skills owing to his vulnerabilities. Supervision was previously ordered as a necessary guardrail for the childrens safety. Consequently, the father must be aware that active engagement with the children's wellbeing and whereabouts during his supervised time is the bare minimum required. The father has failed to demonstrate an ability to take actions to alleviate clearly perceptible risks of harm. On this basis alone, the father's actions, or lack thereof, during the current supervised time provides the Court with little faith as to the safety of the father's unsupervised time proposal.

1. Both parents note several occasions in which the children have been involved in incidents or have had difficulties during supervised time.
2. One such incident involved Y arriving at the supervised time with a head injury (the mother's affidavit, paragraph 69(a)). The father provides an explanation for this, and a plausibly viable alternate account at paragraph 67 of his affidavit. Given the limited ability of the Court to assess evidence during interim proceedings, the Court is unable to attribute any fault or negligence to the father for this event.
3. It is uncontentious that X has become upset and withdrawn during supervised time with the father (the father's affidavit, paragraph 65) (the mother's affidavit, paragraph 70). The mother further asserts that X is broadly reluctant to spend time with the father (the mother's affidavit, paragraph 67). The father hesitantly concedes that X has reservations about spending time with him and speculates that "[the mother] is the cause of [X's] newfound (and occasional) hesitation toward time with me" (father's affidavit, paragraph 69).
4. Such speculation is unhelpful and fuels further conflict between the parents. There is insufficient evidence to conclude that the mother has done anything of the sort, especially when an alternate plausible explanation for X's attitude exists, namely her reaction to overzealous personal interactions with the paternal aunt.
5. Even if the Court were to accept the father's allegations, X has directly stated that the father "loves hear (sic) and keeps her safe (Single Expert Report, paragraph 148). Y, likewise, referred to us father as a "friend" (Single Expert Report, paragraph 165). In his own evidence the father attests to the children expressing a desire to spend time with the father or equally a displeasure when leaving the father's care. The children clearly are not alienated from the father and value his presence in their life.

1. The children derive some benefit from spending supervised time with the father. However, as explored above, the father struggles to follow clear and necessary boundaries when spending time with the children, even when he is plainly aware that he is being closely scrutinised. The children report "satisfaction with the supervised visits, and the frequency and duration of these visits with their father" (Single Expert Report, paragraph 200). As noted by the Single Joint Expert, the father is "as yet untested in an unsupervised capacity to care for the children" (Single Joint Expert Report, paragraph 258). Consequently, one can understand the concern of the mother and, indeed, of the Court, about readily progressing to unsupervised time where the father's conduct during supervised time is not unproblematic.
2. There seems no desire by the children for change and no valid reason why the Court would feel comfortable removing any of the existing safeguards in place.

1. The evidence provided by Mr M in his affidavit filed 18 November 2024 ("Mr M's affidavit") was his first direct evidence during the proceedings.
2. In Mr M's affidavit he deposes to being an altruistic and caring individual who is prepared to financial and emotionally support the mother and the children. By all accounts this characterisation appears to match the mother's evidence and that provided by the Single Joint Expert. It is also uncontroversial that the children bear positive views of, and feelings towards Mr M. This is to be commended. Notwithstanding such praise, the Court is tasked with determining at this interim stage whether Mr M should be permitted to spend time with the children despite the previous findings of this Court.

1. In his affidavit, Mr M outlines the background behind the grooming messages that formed the basis of the prior finding of unacceptable risk.
2. In short, Mr M was asked by a family friend to assist his troubled adolescent son due to prior experience Mr M had as mentor to his own younger brother. The subject child was undergoing serious family issues and potential abuse, truanting from school and newly expressing his homosexuality and desire to identify as a female. Mr M was asked to engage with the child through text messages, seemingly as a form of quasi-therapy, for the sole purpose of informing the child's "father how far [the child] would go" (Mr M's affidavit, paragraph 53).
3. Mr M acknowledges that he pushed beyond the limits of acceptable conduct, rationalising that it was a "complete lapse of judgment on [his] behalf" (Mr M's affidavit, paragraph 56).
4. Respectfully, such characterisation minimises the seriousness of what he did to a vulnerable minor. Mr M's characterisation of his actions as an error or mistake was also a point of concern for the Single Joint Expert:
   1. ...My concern is the characterisation of the communication with the child as a "mistake" and the suggestion that this communication was in the service of the child's father who was seeking more information. The lack of accountability for the communication is concerning as there is no real understanding of why the inappropriate conversation occurred, and what may have followed had the minor decided to meet with [Mr. M].

1. The Court finds unconvincing the evidence given by Mr M in relation to his prior grooming behaviour. This is a perspective shared by Dr CC and the Single Joint Expert as noted at paragraphs 239 and 240 of the Single Joint Expert Report:
   1. [Dr CC's] opinion is that [Mr M's] "account is somewhat difficult to accept but is not implausible and it is consistent with the text message exchange between [Mr M] and the child's father. I am also of the view that [Mr M's] reasoning in relation to his conduct is superficial and clearly inappropriate but commensurate with his intellectual capacity."
   2. I concur with [Dr CC's] assessment [Mr. M] has limited in insight and self-reflective capacity and with unsophisticated reasoning. This may explain his superficial explanation about his inappropriate communication.

1. In the absence of cross-examination of Mr M and the relevant experts, the Court remains concerned about his actions, and his attitude about this, particularly given the vulnerability of the subject child and the children in this case.

1. Recognising, of course, that Mr M has not yet been cross-examined and may still, therefore, give evidence that reassures the Court, his affidavit does not cause the Court to revisit its previous findings.
2. The Court views the family and interparty dynamics as basically the same today as they were before. The Court notes the evidence of counselling and coursework completed by Mr M since the final reasons for judgment were delivered. This is encouraging, but of itself proves little. The mother places significant reliance on the Single Joint Expert Report to further her proposal for the children to spend time with Mr M The mother seeks supervised time of increasing length largely based on that expounded at paragraph 259 of the Single Joint Expert Report.
3. Due to the limited nature of these interim proceedings, her reliance on the Single Joint Expert Report is understandable. The Independent Children's Lawyer notes at page three of her case outline, and the Court agrees, that "the report of [the Single Joint Expert], whilst it cannot and should not be ignored, needs to be considered carefully and the Court needs to act conservatively". The mother's case outline at point 6.2 similarly concedes that "the Court's natural instinct, supported by the provisions of s 60CC, will incline the Court towards a conservative and protective position in relation to the children, especially in light of the findings made in 2022 concerning [Mr M]".
4. The Full Court in Andrew & Delaine [2009] FamCAFC 182 at [72 (a)] acknowledged that there is "no magic" in a Family Report. The recommendations of such reports do not bind the Court and can never usurp the role of the Court as a finder of fact. The untested recommendations of the Single Expert do not dissuade the Court from its innately protective stance, especially considering the potentially inadequate explanation provided by Mr M, the prior findings of this Court regarding the unacceptable risk Mr M poses, and the mother's seemingly continuing blinkered attitude towards the risk of Mr M spending even supervised time with the children.
5. The Independent Children's Lawyer observed during her submissions that, whilst the imposition of supervised time with Mr M might prevent overt grooming behaviours, it would not prevent certain foundations from being laid. For example, seemingly innocuous behaviours such as gift giving, physical play or games involving secrets may lead to an unwitting acceptance of bribery, physical touch and secrecy by the children in future less guarded circumstances. For abundant clarity, the Court does not suggest that Mr M currently holds an intention to lay any malicious frameworks. The Court simply accepts the Independent Children's Lawyer's assertion that supervised time cannot ameliorate all risks of harm that may flow on from grooming behaviours.
6. The Court finds that there is no sufficiently persuasive evidence available at this interim hearing to cause it to reconsider its previous factual findings. This may change at a final hearing. Therefore, the mother's interim proposal cannot be accepted as being an arrangement that would promote the safety of the children in this matter.

1. The parents agree, on a without admissions basis, that there should be an injunction made against the father in a form akin to Order 6 of the mothers' case outline:

6.1 physically approaching the Applicant Mother; and

6.2 following or observing the Applicant Mother or arranging or requesting a third party to follow or observe the Applicant Mother.

1. The parents were unable to agree on whether the terms "observing" or "observe" should be included as part of the restraint.
2. In Hartley & Hartley [2021] FedCFamC1F 178, McClelland DCJ restated the relevant principles for the granting of injunctions:
   1. The Court is empowered to grant injunctive relief in the nature of that sought by the parties pursuant to s 68B of the Act which relevantly empowers the Court to 'grant such injunction as it considers appropriate for the welfare of the child' including, pursuant to s 68B(2), by interlocutory order 'in any case in which it appears to the court to be just or convenient to do so.'
   2. At the outset it should be noted that the granting of an injunction restraining the exercise of what otherwise would be a person's inherent rights and freedoms is a serious matter. The breach of such injunction potentially exposes a person to an action for contempt of Court. As noted by the plurality in Cardile v LED Builders Pty Limited [1999] HCA 18 ('Cardile') at [31]:

...that the court may grant an injunction in all cases in which it appears to the court to be just and convenient to do so - does not confer an unlimited power to grant injunctive relief. Regard must still be had to the existence of a legal or equitable right which the injunction protects against invasion or threatened invasion, or other unconscientious conduct or exercise of legal or equitable rights.

(references omitted)

1. In considering the nature of the injunctive relief, it is important to be aware of the general principle that 'equity intervenes to the minimum extent necessary to do justice'.1

2. In the context of family law, in Sieling and Sieling [1979] FamCA 23; (1979) FLC 90-627 at 78 264, the Full Court said:

The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order and frame its order in such a way to impose no further restriction than is necessary to achieve the protection of the applicant's interest.

FN1 See Giumelli v Giumelli (1999) 196 CLR 101 at [10] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ referred to in Norton & Locke [2013] FamCAFC 202; (2013) 284 FLR 51 at [72].

1. The father's counsel objected to the inclusion of the words "observing" and "observe" in the restraint on the basis that there may be some ambiguity in the interpretation of how the phrases would be interpreted.
2. Senior counsel for the mother in reply suggested that both "observing" and "observe" are ordinary words that are to be interpreted as such. The Court agrees. It is important to note that at paragraphs [81]-[82] of the final reasons for judgment it was found that the father had previously exercised unlawful control over the mother by following, or arranging for others to follow her, during their relationship.
3. The Court equally agrees with the submission of the mother's senior counsel that words following and observing function best as a pair to illuminate precisely what behaviour the Court seeks to prevent. For example, if the Court were to omit the words, as per the father's proposal, it may lead to the absurdity that the father may stand still whilst otherwise observing the mother without penalty.

1. There is little common ground between the parties. The mother seeks that the children be brought into contact with Mr M, and that the father's time with the children remain undisturbed. The father vehemently opposes Mr M having any contact with the children and seeks to both expand his time with the children and rapidly remove any supervision requirement. The Independent Children's Lawyer opposes both proposals.
2. The only common ground between the mother, the Independent Children's Lawyer and the father is that the children suffer from the vulnerabilities described earlier in these reasons, and that such vulnerabilities impact on how the Court ought to determine parenting arrangements in these proceedings.

1. None of the material placed before the Court cause a conclusion that what is in the best interests of the children is, for the time being, anything different to the existing orders. Such orders keep the children safe, whilst at the same time, facilitating their relationships with important adults in their life.
2. The father struggles, at times, with observing boundaries and acting in a child focused manner during supervised contact with the children. The children seemed content with the existing arrangement. The impact on them of making the orders proposed by both the mother and father is unknown. The impending final hearing is only a few months away.
3. The mother not only recognises but emphasises the children's vulnerabilities in the context of opposing unsupervised time with the father, but fails to recognise the significance of this in seeking time with Mr M. Whilst the mother's case contends that she is no longer "blinkered" with respect to the risks posed by Mr M, her failure to recognise the association between the children's vulnerabilities and the risks associated with spending any time with Mr M perhaps suggests to the contrary, and this will need to be the subject of cross examination at the final hearing.
4. From the Court's perspective, and pending the testing of his evidence in cross examination, Mr M remains a challenge to the safety of the children.
5. All parties acknowledged that the findings made in the final reasons for judgement remain extant. Thus, all the concerns expressed therein about the mother, the father, and Mr M continue to guide these proceedings. Only the Independent Children's Lawyer seemed to contend that these findings would contraindicate making interim orders inconsistent with them. It is important to note in these circumstances that a final hearing, and a new opportunity to challenge the status quo, is only a matter of months away.
6. There are issues about parental insight that need to be explored further at final hearing. The Court is not satisfied that the proposals put forward by either the mother or the father promotes the safety of the children.

1. The orders sought by both parents are dismissed and the Minute of Order put forward by the Independent Children's Lawyer is made.
2. Order 6 of the mother's case outline is made, inclusive of the phrases "observing" and "observe", on a without admissions basis.

I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.