Grech & Lagana [2025] FedCFamC2F 1450 | Case summary

Grech & Lagana [2025] FedCFamC2F 1450 | Case summary | Zoe

[54]

From the mother's perspective, X loves the father and enjoys spending time with him. However, she alleges the father has subjected her to family violence, including physical assaults and coercive and controlling behaviour, continuing after separation. She is also concerned the father has engaged in problematic use of substances after separation, including alcohol and methamphetamines. The mother submits the father has not taken responsibility for his use of family violence and drugs and alcohol and meaningfully addressed those behaviours, and it is therefore not safe for X to spend time with him other than on a professionally supervised basis. She ultimately sought X spend professionally supervised time with the father once every three months.
The father denies subjecting the mother to physical family violence, save for on occasions he said he was defending himself from her. He admits verbally abusing the mother, although he described it as exchanging insults with one another. He admits sending her abusive messages after they separated. He admits engaging in past controlling behaviour but denies stalking her after separation. The father submits he has addressed the family violence he has admitted to by undertaking a men's behaviour change program and other courses and programs to support his parenting of X. He denies problematic use of alcohol but says he has nevertheless undertaken alcohol counselling and that hair follicle tests demonstrate he consumes alcohol at safe levels. He denies methamphetamine use, save for on one occasion, notwithstanding positive methamphetamine results relating to a period after his admitted drug use. The father relies on the many supervision reports now available which report positive engagement and affection between him and X and seeks X now spend unsupervised time with him. Whilst the father formally sought an order for X to spend equal time with both parents, from the witness box he said he seeks to see X once a week during the day, unsupervised.
The mother seeks she have sole decision-making responsibility for X, submitting (among other things) that being required to consult with the father would risk her being subjected to further family violence by the father and would not be emotionally safe for her. The father says he tries to have respectful conversations with the mother and seeks an order for "equal shared" decision-making responsibility for X. He seeks a range of orders providing for the sharing of and access to information about X.
The mother seeks injunctions for the personal protection of her and X and a harmful proceedings order. The father offers injunctions in respect of his alcohol use (sought as a mutual injunction, also restricting the mother's alcohol use) and other injunctions to protect X from exposure to denigration of his parents and parental conflict, which are supported by the independent children's lawyer.
The mother seeks orders facilitating X travelling overseas with her. The father seeks orders providing for X's interstate and overseas travel with both parties, subject to the provision of notice, information and make-up time in respect of overseas travel.
The independent children's lawyer ultimately recommended X spend supervised time with the father for up to six occasions each year, subject to the availability of affordable professional supervision. The independent children's lawyer supports the mother having sole decision-making responsibility for X but also recommends an order requiring the mother to keep the father informed of decisions she makes for X. The orders recommended by the independent children's lawyer otherwise largely reflected those ultimately sought by the mother.
A consolidated minute of orders was tendered, setting out the terms of orders sought by each of the parties and recommended by the independent children's lawyers and identifying orders which were agreed by two or more of them ("joint minute").[1] Some of those orders were not ultimately pursued or were updated during the course of the hearing, including the orders sought for X to spend time with the father as I have indicated.

[56]

(a) What time should X spend with the father? Where it is agreed X will benefit from a relationship with the father, this requires an assessment of:

(i) X's safety in the care of the father;

(ii) If X spending time with the father poses an unacceptable risk to his safety, what measures can be implemented to ameliorate those risks?

(iii) The capacity of each parent to provide for X's needs, including the father's capacity to safely care for X and the mother's capacity to support X's relationship with the father; and

(iv) If supervision is determined necessary, the availability of accessible supervisions services;

(b) Should an order be made for X to communicate with the father by telephone and Facetime, as sought by the father?

(c) How should decision-making responsibility for X be allocated? This requires particular consideration of the parties' capacity to consult with one another and to make joint decisions for X and whether requiring the mother to consult with the father would be safe for her;

(d) Determination of each these issues requires consideration of the mother's allegations of family violence and of the father's use of substances, including methamphetamine and alcohol;

(e) Should stand alone orders be made requiring the father to undertake further parenting education and drug and alcohol counselling as proposed by the mother and independent children's lawyer?

(f) Does section 114AB of the Family Law Act 1975 ("the Act") permit the court to make the injunctions sought by the mother, where there was an intervention order in place at the time of the final hearing? If so, are the injunctions sought by the mother appropriate for X's welfare?

(g) On what terms should X be permitted to travel overseas?

(h) What other orders sought by the parties and/or recommended by the independent children's lawyer are in X's best interests, including in relation to communication between the parties and the sharing of information?

(i) Should a harmful proceedings order be made as sought by the mother and supported by the independent children's lawyer?

[67]

The father's trial affidavit was brief, consisting of four pages of evidence. He provided little evidence in respect of his current circumstances notwithstanding his application for X to live with him on a shared care basis.
In his trial affidavit, the father acknowledged "past controlling behaviours influenced by cultural gender norms" but did not explain what he meant by that statement or identify the behaviours he acknowledged to be controlling. It is significant the father did not avail himself of the opportunity to file an affidavit in reply to the mother's trial affidavit, as directed by the orders made on 3 December 2024. It is particularly significant he did not take up this opportunity to provide evidence in response to the allegations of family violence made in the mother's trial affidavit. For reasons that follow, I find the father has engaged in family violence beyond that admitted by him, including physical assaults of the mother in X's presence.
Under the heading "personal reflection and behavioural change" in his trial affidavit, the father detailed the counselling and education programs he has undertaken and stated "[t]hese efforts have improved my self-awareness and parenting capability" but did not elaborate on that statement. He provided no evidence on affidavit of what he had learned from those programs or how he has implemented what he has learned. His evidence given under cross-examination indicated he continues to hold problematic attitudes in respect of his controlling and abusive behaviour, including in relation to the mother having relationships with other men and blaming her for his violence towards her.
As explained later in my reasons, I do not accept the father's evidence in relation to his use of drugs including alcohol and methamphetamines.
I will return to consider the father's evidence carefully in respect of each of these issues.
I do not put weight on the father's demeanour in the witness box. Whilst counsel for the mother referred to the father smiling and smirking from the witness box, this is not something I have taken into account when assessing his credibility or attitudes. I take this approach bearing in mind the observations of Aitkin LJ in Société D'Advances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The 'Palitana')[5] endorsed by Kirby J of the High Court of Australia in State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq)[6] and by appeal courts in this jurisdiction, including recently in Friseal & Friseal:[7]

[73]

The mother was born in Country L. The father's family is also from Country L. He obtained permanent residency in Australia in 2004. The mother obtained permanent residency in Australia in late 2023.
The parties met in Country L while the father was holidaying there. They commenced their relationship in July 2017, in Country M, where the mother was at that time working.
In 2017, the mother learned she was pregnant with X. The mother deposed she returned to the Country L and the parties married in 2017. However, it was unclear from her evidence if she returned permanently to Country L at that time. The father said she did not return to Country L until March 2018 and he visited her in Country M from December 2017 until January 2018.
X was born in Country L in 2018.
The father spent time in Country L from 2018 (for X's birth); from December 2018 until January 2019; and from May 2019 until July 2019. He otherwise lived in Australia.
While the father was in Country L, the parties and X stayed with the father's parents (X's "paternal grandparents") in Country L. The mother otherwise preferred to stay with her mother (X's "maternal grandmother"). The mother alleges she was subjected to family violence by the father during her pregnancy and following X's birth, including in the paternal grandparents' home, such as choking and other physical violence, and threats to remove X from her care. Those allegations are denied by the father.
In December 2019, the mother came to Australia with X and the paternal grandfather. She travelled on a tourist visa. The mother and X stayed in the father's one-bedroom townhouse at Suburb N, along with the paternal grandfather. The mother planned to return to Country L with X in 2020 but they were required to stay in Australia due to the Covid-19 pandemic and she was granted a 12-month extension on her tourist visa. The father agreed the mother and X were wholly reliant on him at that time, including for housing, food, accommodation, and health care. I accept the mother's evidence she slept in the living room of the father's townhouse along with the father, paternal grandfather and X, because the bedroom was used to store the father's shoe collection.
The mother alleges the father continued to subject her to family violence in Australia, including further violent assaults. The mother's allegations of physical violence are denied by the father save for an admission to the family report writer that he "restrained" her in X's presence, which he said was a protective behaviour in light of her emotional behaviour and verbal abuse towards him and an admission he "held her hand" during another altercation.

[76]

After their separation, the mother did not initially facilitate X spending time with the father. I accept her evidence this was because Child Protection recommended X not spend unsupervised time with the father given her reports of family violence.
In December 2020, a Child Protection worker supervised X spending time with the father on two occasions at a child contact service. Following these visits, Child Protection closed their case with the family, having assessed the mother was acting as a protective parent, and recommended X's time spent with the father continue to be supervised. The mother agreed to supervised visits between X and the father from that time. This began to occur, on average once or twice a week, on Saturdays and Sundays, usually at the mother's home or at a local park.
In early 2021, a final family violence intervention order with limited conditions was made against the father, naming the mother and X as protected persons.[10] This order was made with the father's consent, without admissions.
The mother alleges a significant incident of family violence occurred on 31 July 2021, which I will return to. Following this incident, the police applied to vary the intervention order then in place, seeking an order to include "full and exclusive conditions".[11] An interim intervention order was made in mid-2021[12] and a further final order made in late 2021.[13]
The mother continued to facilitate X spending supervised time with the father. In October 2021, the parties agreed to a parenting plan for X to spend unsupervised time with the father, fortnightly on Saturdays and Sundays (from 10.00 am to 8.00 pm), with changeover initially facilitated by the father's nieces and then by the parties at Suburb O Shopping Centre or outside the mother's apartment building.
The mother deposed that from around March 2022, she became concerned the father was stalking her. She described incidents from May 2022 in which the father contacted her and attended at her home, and alleged he threatened her and caused damage to her property. She deposed she stopped making X available to spend time with the father in around August 2022 as a result of what she said was "family violence and escalating behaviours".
In late 2022, the mother applied to extend the family violence order then in place, asserting she continued to be afraid for her safety and X's safety due to alleged continued breaches of the intervention order by the father. In late 2022, a further final intervention order was made against the father, naming the mother and X as protected persons, for a period of 18 months.[14] The mother alleged that notwithstanding this order, the father continued to harass her, including in his car while she was driving, and by attending at her home without prior written agreement.
The mother was supported by family violence organisations throughout this period.

[79]

On 27 April 2023, further interim orders were made ("April 2023 orders") requiring the father to undergo hair follicle testing, as he had not done so pursuant to the February 2023 orders, and to enrol in and complete the 'P Course' Men's Behaviour Program'. The April 2023 orders also provided for X to spend professionally supervised time with the father for two hours in alternate weeks.
On 21 May 2023, X commenced spending professionally supervised time with the father fortnightly, pursuant to the April 2023 orders.
On 5 July 2023, Dr L performed a psychiatric assessment report upon the father. In his report dated 5 July 2023, Dr L recommended the father undertake hair follicle testing and in the event of repeat positive test results, that he obtain a referral to drug and alcohol services. Dr L also recommended the father's mandatory attendance at a men's behaviour change program and that he consider counselling to assist him to have better intimate relationships.
On 22 August 2023, further interim orders were made, providing for X to continue spending supervised time with the father pursuant to the April 2023 orders in circumstances where the father had not yet undertaken hair follicle testing or commenced the required men's behaviour change program.
The mother gave evidence of incidents in September 2023 which caused her to continue to have concerns the father was stalking her.
In mid-2024 the mother applied to extend the intervention order in place against the father. On the same day, an interim intervention order was made extending the previous final order, protecting the mother and X.[16] The father initially contested that application. In late 2024, a further final intervention order was made against the father, in his absence, for a period of 12 months.[17] That order was in place at the time of the final hearing.
On 10 and 11 September 2024, the family was interviewed for the family report. The family report made alternate recommendations in relation to X spending time with the father depending on the findings made by the court as to whether the father has addressed his substance use and sufficient safety mechanisms being in place to protect X and the mother from being subjected to future family violence.

[105]

The mother alleged that on 15 March 2019, in Country L, at the paternal grandparents' home, the father slapped, punched and choked her, while she was holding X. She alleged the paternal grandfather "started biting" her arm. Those allegations are denied by the father. The mother deposed she attended hospital after this incident due to her injuries and tendered a photograph of a "temporary medical certificate" and a photograph of her alleged injuries.[29] She did not describe the injuries she suffered in her trial affidavit. Only one photograph was tendered, showing part of an arm. The photograph does not show the mother's body or face. Pictured in the photograph are what appear to be small areas of mild abrasion or irritation to the skin on the inside of an elbow, not obviously consistent with being punched, slapped or choked by the father or bitten by the paternal grandfather. The medical certificate was a proforma document completed by hand, in English, bearing the date "3/15/19". The certificate read "multiple physical injuries" but did not describe the injuries sighted. The words, "physical abuse" were recorded in brackets. Details of the reported abuse or of the alleged perpetrator were not recorded. When cross-examined, the father denied the allegations and said the medical certificate was "most likely" made up. In response to questions put to him by counsel for the mother, the father had agreed he was in Country L from December 2018 until January 2019 and then from May 2019 until July 2019. Evidence was not adduced that the father was in Country L on 15 March 2019, when the mother said these assaults occurred. The mother acknowledged she had previously given evidence this incident occurred in or around May 2019 or July 2019. In respect of this allegation, I am not persuaded to the requisite standard of proof that the father assaulted the mother on 15 March 2019. This is not to say I make a finding the assault did not occur. Rather, I am not persuaded to the requisite standard of proof that it occurred as deposed by the mother. My evaluation of this evidence does not undermine my assessment of the balance of the mother's evidence.

[109]

The mother alleges that on or around 17 May 2020, the father hit her in the neck with a baseball bat while X was sitting on the bed nearby. She alleged she did not report the assault because the father taunted her, pretending to call the police, and threatening to have her deported.
She alleges that around one week later, on or around 24 May 2020, the father again assaulted her. She said he did so, blaming her for X falling from the bed. She states the father hit, slapped and kicked her, before X jumped between them and the father accidentally elbowed X in the head. She deposed the father then took his baseball bat and hit her on the forehead while she was holding X and trying to protect him. The mother deposed she received injuries from this attack, including a large bump on her forehead.
The mother's intervention order application made in mid-2020 refers only to the second of these alleged assaults, asserting it occurred on 18 May 2020 (rather than on or around 24 May 2020). In her trial affidavit, the mother deposed she had previously confused aspects of these incidents, deposing that on one occasion she was holding X and the other he was sitting on the bed. I do not find these discrepancies undermine her evidence in respect of the two incidents. The mother was cross-examined in relation to the second of these alleged incidents but not the first.
In his trial affidavit, the father deposed he "confronted" the mother after discovering flirtatious messages between her and another man on her phone and X falling from the bed. He alleged X fell because he was not adequately supervised by the mother. The father deposed that when he confronted the mother, she became aggressive, bit him, and pushed him. The mother agreed the parties fought and the intervention order application reports that she did "fight back" when assaulted by the father. I accept this is a plausible response by the mother, as a victim of family violence. When cross-examined, the father denied using a baseball bat to hit the mother and denied he caused the injuries in the tendered photographs. To the family report writer, the father claimed these injuries were caused by the mother harming herself when intoxicated and that she instead lied, alleging he had hit her with a baseball bat. However, this was not something about which he had given evidence-in chief, either in his trial affidavit, or by taking the opportunity to file an affidavit in reply to the mother's trial affidavit. This allegation was not put to the mother in the witness box.
The mother was cross-examined extensively about this incident and maintained her account. It was put to her under cross-examination the father played baseball before Covid and that a baseball bat was "knocked while [the parties] were having a physical tussle". This had not formed part of the father's evidence. The mother denied it and said the father took the baseball bat from the wall and hit her. She became visibly distressed, crying in the witness box when giving this evidence. Her evidence was compelling. The injuries appearing in the photographs she tendered[30] were consistent with the assault she described, including a large lump on her eyebrow, a bruised eye and scratches to her cheek she said under cross-examination were inflicted by the father to her face. A similar description of this incident was provided by the mother in her application for an intervention order made in mid-2020. The father did not ultimately contest the mother's application and consented to a final order without admissions.[31] The father's evidence given on affidavit, that he "calmly left the house" and returned later and discussed the incident with the mother, that the mother apologised to him and they "resumed peaceful cohabitation" presented as implausible given his own evidence about the confrontation between them.
I accept the father assaulted the mother in May 2020, as she described in respect of the second incident, including hitting her to the head with a baseball bat. In the absence of more detailed evidence and where it was not mentioned in her intervention order application, I am not persuaded to the requisite standard of persuasion the father hit the mother to the neck with a baseball incident on a separate occasion preceding this assault. Again, this is not to say I find that did not occur, only that I am not persuaded on the evidence before me that it occurred as the mother described.

[110]

The mother alleges a significant incident of family violence occurred on the evening of 31 July 2021 when the father was driving her and X home from changeover at Suburb O shopping centre. She gave evidence they argued, the father became aggressive and she asked to leave the car. The mother alleged that after the father pulled over he said she was not to take X. She said he accelerated while she was trying to exit the car, causing her to be thrown to the ground and resulting in pain to her upper left leg and hip. She said she tried to remove X from the car and the father reached into the back seat and attempted to stop her from unbuckling X's safety restraint. The intervention order application made by the police to vary the existing intervention order after this incident alleges the father grabbed the mother's wrist. The mother said a passer-by approached and offered to call the police. She said this enabled her to remove X from the car and she then phoned the police herself later that night. The mother deposed she was injured from this incident and tendered photographs showing bruising to her leg and lower arm,[32] consistent with her description of what occurred. The father was charged in respect of this assault and pleaded guilty to unlawful assault and to breaching the early 2021 intervention order. He was fined without conviction.[33]
The father continues to deny he assaulted the mother on this occasion. Again, it is significant the father did not give evidence on affidavit in reply to this allegation. From the witness box, he gave evidence the charge of unlawful assault related to him holding the mother's hand, which is consistent with the allegation he grabbed her wrist when she was trying to remove X from the car, albeit I find this account minimised what occurred. Notwithstanding some discrepancies in the account given by the mother on affidavit, in the intervention order application and her oral evidence, I accept the father assaulted the mother on this occasion, in X's presence. I accept she was fearful and distressed as described in the application made by police.[34] Through cross-examination, it was put to the mother in respect of her evidence she fell to the ground, that it was slippery, that she had "picked the fight" with the father in the car, that it was not safe for the father to stop the car when she asked him to. None of this had been put in evidence by the father and each proposition presented as an attempt to blame the mother for what occurred rather than as the father taking responsibility for what had occurred.

[143]

However, the family report writer also reported the father's narrative was inconsistent, again reporting (as in the child impact report) he at times showed empathy and understanding regarding the mother's experiences and other times was denigrative.
From the witness box, the father gave evidence that he did not believe himself to be a perpetrator of family violence prior to attending the men's behavioural change program in June 2024 but after attending the program, he now sees he is one. When asked by counsel for the independent children's lawyer what he learned from this program, the father's response included stating there are "ways where you can deal with how you are being treated", "sometimes [...] it's better to be happy than be right" and that "at first... people in there will make you feel guilty of everything, but then you just realise even if you're not guilty... you don't have to be combative always". Even in this response, the father appeared to attribute responsibility to the mother for his behaviour, to minimise his behaviour (identifying it as combative rather than abusive) and to not take responsibility for the violence he has subjected her to. This was consistent with the attitude conveyed earlier in his oral evidence and confirmed when put to him by counsel for the independent children's lawyer, that any acts of violence he perpetrated were caused by the mother, that he had to defend himself from her attacks, and that she had lied or exaggerated what occurred.
I find the attitudes previously observed by the family report writer remained evident in the father's trial affidavit and oral evidence even after attending the men's behaviour change program recommended by the family report writer. For example, blaming the mother for conflict between them and strong feelings about her interactions with other men.
I am not persuaded there has been meaningful change to the father's understanding of family violence behaviour and the impact of that behaviour on the mother and X such that I can be confident he will not again use family violence towards the mother, including to coerce her in an effort to achieve his desired outcome for X to spend more time with him once these proceedings have concluded.
In relation to the father's capacity for change and the likelihood of the father exposing X to further family violence, I rely on the following unchallenged evidence of Dr L:

[148]

(a) Dr L reporting the father told him (when his psychological assessment report was prepared in July 2023):

(i) He had used methamphetamine "two or three months ago" and prior to that had not used drugs for around six to seven years; and

(ii) He had a history of irregular experimental use of drugs, had used marijuana on 10 separate occasions and methamphetamine on two separate occasions;

(b) The range of inconsistent evidence given by the father in an effort to explain the discrepancy in his affidavit evidence with what Dr L reported he had said, including briefly changing his evidence to state he had used methamphetamine in January 2023, not January 2024, and that he might have said to Dr L he used methamphetamines "two to three years" earlier [emphasis added]. These attempts to explain the discrepancy in his accounts only served to further discredit the father's account of his drug use. I find it implausible he does not clearly recall the approximate date on which he used methamphetamine if he had used the drug only on one occasion as he deposed;

(c) His failure to call Dr L in respect of what he said was an inaccurate account of his reported drug use;

(d) The father's oral evidence admitting prior use of illegal drugs, including (although he said could not remember clearly) in or around 2004, 2006 and 2007 and 2013;

(e) The delay in the father undertaking hair follicle testing as ordered, where I did not find his explanations for that delay convincing, including that he had not seen an email from the independent children's lawyer advising funding was available for the testing;

(f) The father's failure to adduce evidence to explain the positive results in hair follicle tests undertaken on:

(i) February 2024, showing positive results for methamphetamine (140 ng/10 mg) and amphetamine (23.5 ng/10 mg) and low to moderate alcohol consumption (9.2 pg/mg);[45]

(ii) June 2024, showing positive and higher readings for methamphetamine (150 ng/10 mg) and amphetamine (27.7 ng/10 mg) and excessive alcohol consumption (35.9 pg/mg);[46] and

(iii) September 2024, showing a positive reading for methamphetamine (27.0 ng/10 mg) and negative results for amphetamine and alcohol;

(g) The father's failure to adduce evidence from an expert in relation to his claims, purporting to explain these results, including that:

(i) The increased methamphetamine result in July 2024 (being six months after his admitted methamphetamine use in January 2024) was due to hair growth; and

(ii) He had been informed positive results for alcohol use can be caused by an autoimmune condition, noting he did not adduce evidence he has been diagnosed with such a condition;

(h) The father being charged on:

(i) February 2024, with failing to accompany a police officer for a further oral fluid test after completing a preliminary oral fluid test on 7 January 2024;[47]

(ii) July 2024 (six months after his admitted methamphetamine use), with refusing to accompany a police officer for an oral fluid test after completing a preliminary oral fluid test on 12 January 2024;[48] and

(iii) August 2024, with multiple driving offences, including (among others), driving a vehicle whilst exceeding prescribed concentration of drugs and failing an oral fluid test within three hours of driving. At the time of the final hearing, these charges were pending in the Magistrates' Court.

[166]

X is reported to be progressing well developmentally, save that the mother describes difficulties X has managing his emotions and separating from her. She deposed X has previously become angry at home, screamed, banged doors, and pushed her. She also described observing him become scared very easily, including at the sound of loud noises or something breaking. In November 2022, X began attending play therapy organised with the mother funded through a family violence organisation.
In around July 2024, X's school contacted the mother with concerns about X's behaviour and emotional regulation, reporting he had a meltdown and threw a chair. Prompted by the school and with a letter of support from them, the mother arranged counselling for X through T Centre. He began seeing a counsellor in or around September 2024, and the mother describes an improvement in X's behaviour since this time.
From around February to March 2025, X participated in a program recommended by a supervisor of his time with the father, "U Program" with B Contact Service, designed to support children affected by family separation.
I accept X's exposure to family violence may be a contributing factor to the behavioural issues and emotional dysregulation described but there may be other contributing factors including disruption in X's life, such as changes in home, school and arrangements for him to spend time with the father and missing the father. I take this into account when considering the proposals of the mother and the independent children's lawyer and the expert evidence of the family report writer that a significant change in the time he spends with the father may result in increased emotional dysregulation for X.
The family report writer reported the parties agree that culturally, developmentally and emotionally, family connection is important for X now, and into the future. It is not in dispute his current arrangements limit such a connection, including that he is presently unable to travel to the Country L to spend time with his extended family there.

[174]

There is a practical issue in respect of ongoing supervised time, due to the limited availability of child contact services once final parenting orders are made and the cost of private supervision, where the parties are both under financial constraints.
The availability and cost of supervision was not the subject of evidence. The limited availability of B Contact Service, the supervision service currently used by the parties, only became apparent at the conclusion of the final hearing.
The father deposed he is unemployed and receiving Centrelink payments. He gave evidence he has been unable to afford the cost of hair follicle testing due to his poor financial circumstances. The mother is employed but supporting X without any child support paid by the father. It was not submitted either party can afford the cost of private supervision.
In light of these difficulties, I made directions at the conclusion of the final hearing for the filing of brief submissions in relation to professionally supervised time. Those submissions were to be of one page, with the terms of a proposed order as to the provider of supervision, and annexing copy correspondence from their proposed supervisor to support their submission. The mother was to file first, followed by the father and then the independent children's lawyer. Each party filed submissions in accordance with that direction. None of the parties submitted a form of order as directed. The submissions of the mother and the independent children's lawyer exceeded the one-page limit. The submissions of the independent children's lawyer were filed late. Only the mother tendered copy correspondence in support of her proposal. Nevertheless, where none of the parties objected to the submissions filed by the other, I have relied on them.
If the court finds X's time with the father is to be supervised, the father proposes a "multi-step visitation" approach "aimed at fostering a gradual and stable reintroduction of parenting time". He seeks X spend time with him supervised by B Contact Service, on a weekly or fortnightly basis for a period of two months. He then proposes transitioning to "supervised community visits facilitated by a mutually agreed-upon family member". He asks the court take into account his limited financial capacity when making orders for supervised time. The father did not tender any correspondence from B Contact Service advising they can provide the regular supervision he has proposed. As already noted, he did not adduce evidence from any family members willing to undertake ongoing supervision, including to be assessed for their suitability.
The mother seeks X spend supervised time with the father on four occasions each year for up to three hours at a time, facilitated by B Contact Service or, if they become unavailable, C Contact Service ("C Contact Service"). In support of her proposal, she relied on tendered correspondence,[53] from:

[176]

The independent children's lawyer recommends final orders providing for X to spend "identity time" with the father on up to six occasions per year, supervised by B Contact Service or, if unavailable for all six sessions, C Contact Service.
After considering all of the evidence and those further submissions, I will make orders providing for X to spend supervised time with the father every second calendar month, supervised by B Contact Service or C Contact Service at the election of the father or at such other children's contact services or private supervisor as the parties may agree in writing.
I do so balancing on the one hand, the benefit to X of maintaining a relationship with the father which he enjoys, and on the other hand, the need to protect X's safety, the practical realities of the family's ability to afford the cost of professional supervision, the availability of the proposed children's contact services and the importance for X of a reliable and predictable routine in the time he spends with the father.
I accept the evidence of the family report writer that X spending regular but infrequent time with the father (commenting upon the recommendation of the independent children's lawyer for "identity time" on four occasions a year) will likely result in a "different" relationship for X with the father than would be provided by fortnightly time but will provide X with an opportunity to know about his family and family history, to know both parents, to feel a sense of belonging in his family. She provided her expert opinion that this will assist X particularly through his teenage years, in terms of his development into young adulthood, in comparison to X spending no time with the father. She considered there was a possibility for X to experience and show some emotional dysregulation, at home and at school, upon a change to the current arrangements providing for him to spend less time with the father. The family report writer considered counselling may be an option to support X with the implementation of the orders I make. I am confident the mother will arrange that support for X if required given she has previously organised play therapy and counselling for him when recommended to address his emotional dysregulation.
B Contact Service is a service familiar to X where he has been observed to engage well with the father. C Contact Service has also previously assisted the family and provides an opportunity for ongoing time if B Contact Service is unable to provide services to facilitate the time I order. I will provide for those two services to facilitate supervised time but also for other services as the parties may agree upon, in case of changes in B Contact Service's availability or other services becoming available. I do so to ensure alternate arrangements can be made to provide for continuity in X's supervised time with the father.
The mother initially proposed an order that X spend further or other time with X as agreed between the parties in writing but with any proposal for additional time to be initiated only by her.[54] However, that proposal was absent from the final minute of orders ultimately sought by her.[55] I will make that order. I do so expecting the mother will support X spending additional time with the father if X wants it and it can be arranged safely, finding she has so far both promoted X's relationship with the father and acted protectively of his safety. The suggested caveat for additional time to only be initiated by the mother will protect the mother from harassment and/or coercion by the father, which I find is necessary given his prior conduct, including his messages sent to her and repeated attendances at her home, notwithstanding the intervention order(s) then in place.

[179]

It is not possible for me to make orders now that contemplate alternate forms of supervision or supervision ceasing in the future. In respect of the father's drug and alcohol use, this is because it is not known if a period of abstinence from drugs and moderate use of alcohol by the father can be sustained following conclusion of a period of further testing and negative results. In relation to the father's use of family violence, it cannot be known now if the father seeking further professional assistance will be effective in addressing the risks identified to X in these reasons. As explained by the family report writer, it is not just a matter of him engaging in counselling and programs, but effecting meaningful change in his understanding of family violence, including its impact on the mother and X, and showing remorse and changes in his attitudes and behaviour. So far, the programs the father has attended have not brought about that change. Significantly, Dr L was of the view the father's prognosis for change is poor.
I will not make the orders initially proposed by the mother and the independent children's lawyer requiring the father to undertake further parenting education and drug and alcohol counselling. For the reasons I have provided, I am not persuaded that if the father was to engage with such support it would be effective in addressing the risks posed to X such that I could make a finding now that it is in X's best interests for there to be any relaxation of the requirement for supervision I have determined is necessary to protect his safety.
I have taken into account this outcome entails the potential for further court proceedings if the father does meaningfully address the risk issues identified in these reasons. If that eventuates, it will be a matter for a court to assess in the future if the requirements of section 65DAAA of the Act are satisfied. Where the assessment of risk to a child is a judicial function, I cannot delegate the responsibility to make that assessment to another person or professional, such as an expert or treating professional.[57]

[192]

Each of the parties seeks injunctions. To make an injunction pursuant to section 68B of the Act in relation to X, I am required to be satisfied that it is appropriate for his welfare. Section 68B is informed by the best interests of the child but not governed by the paramountcy principle.[68] The Full Court in Bielen & Kozma[69] observed there is no definition of the "welfare" of the child in the Act and expressed the view that consideration of matters impacting upon the welfare of a child "necessarily involves focusing upon the immediate, medium and long-term impact of proposed orders upon the child's physical, emotional and psychological safety, security and well-being".
I am satisfied the injunctions recommended by the independent children's lawyer, protecting X from denigration, discussion of this court proceeding and from viewing court documents are necessary for X's welfare. I will include an exception to the proposed injunction to permit the mother to inform X of the orders made by the court. I have considered the expert evidence given by the family report writer in relation to the potential benefit of a neutral professional explaining the change in his care arrangements to him, such as the independent children's lawyer, but am not persuaded that would be of significant benefit to X over the mother doing so where X has a trusting relationship with the mother and it does not appear she has spoken with him inappropriately about the proceeding or his relationship with the father, as was evident from his interview for the family report.
I will not make the injunction sought by the father restraining the parties from exposing X to "any conflict" between the parties and their family, finding that term is too broad, likely to result in further disputes itself and problematic to enforce. I will make the injunction sought by the mother restraining the father from exposing X to family violence or allowing any other person to do so, given the findings I have made in respect of family violence.
I am also satisfied the injunctions sought by the mother and supported by the independent children's lawyer restraining the father from being under the influence of drugs and alcohol while spending time with X are necessary for his welfare. Given X's time with him is to be supervised, I am not persuaded an order restraining him from being under the influence of drugs and alcohol in the period 48 hours prior to X spending time with him is necessary.
I will also make the orders sought by the mother restraining the father from questioning X about the mother and her household and asking X to pass on messages to her, finding such an injunction will serve to protect the safety of X and the mother, including the mother's emotional safety and is therefore necessary for X's wellbeing.
I will make an order permitting these orders to be provided to any supervisor supervising X's time spent with the father, including so that the proposed supervisors are aware of these injunctions. I will make an order providing for the supervisor(s) to terminate supervised time if they form the belief the father is affected by drugs or alcohol or has contravened any of the other injunctions, to support the protection offered to X by those injunctions.
I will make the injunction sought by the mother restraining the father from attempting to locate or attend her home, her workplace or any school attended by X, given the intervention order in place at the time of the final hearing was due to expire in late 2025 and a further order has not subsequently been filed pursuant to rule 2.10 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) ("the Rules"). I find such an order is necessary for X's welfare, to give effect to the orders that he spend only supervised time with the father, and safeguarding him from exposure to family violence between his parents and protecting the mother's safety, including her emotional safety, being the person responsible for his care.

[200]

To the family report writer, the father raised concerns the mother may abduct X and return to Country L. However, this is inconsistent with his claim the mother reported intervention order breaches to support her application for permanent residence in Australia, indicating he believes she would go to great lengths to remain living in Australia. It is also inconsistent with the orders he seeks permitting both parties to travel overseas with X. When asked at the final hearing if he continues to believe the mother would take X from Australia and not return with him, he answered "in some ways, yes". Having considered the father's evidence and his own proposals, I am not persuaded of the father's bona fides in seeking an order restraining the mother from travelling with X overseas.
Counsel for the father cross-examined the mother extensively in relation to her wish to remain in Australia. The mother's evidence given in response to those questions was consistent with her evidence that she intends to remain living in Australia and I accept that evidence. The mother now holds permanent residency in Australia. As mentioned, Mr Q has an application pending for a visa to study in Australia. The mother holds employment in Australia. She is well supported by services here.
Country L is not a country in respect of which the 1980 Hague Convention on the Civil Aspects of International Child Abduction is in force with Australia, meaning that if the mother retained X in Country L, the father could not rely on that convention to seek his return to Australia. I do not have evidence of what avenues for recovery would be available to the father in Country L but note he has connections with the country and he speaks Country L language. On 10 February 2023 an order was made restraining both parties from removing X from Australia and requesting the Australian Federal Police place his name on the Family Law (Airport) Watchlist ("Watchlist") for a period of two years. There was no evidence the mother has attempted to remove X from Australia in breach of the injunction, following the expiration of the Watchlist period.
In these circumstances, I do not find the risk of the mother retaining X in the Country L to be an unacceptable risk warranting an order restraining his travel overseas.
It is not disputed X will benefit from international travel and spending time with his extended family, including in Country L. The family report writer confirmed the benefits of travel for X, including as follows:

[210]

When cross-examined, the family report writer expressed her opinion as to the type of harm a parent may experience by repeat court proceedings, particularly a parent who has experienced family violence. She also spoke of the potential for systems abuse, as a form of family violence, particularly where all other means of contact or harassment are removed. I have taken into account that evidence when considering the mother's application and the required statutory considerations.
In support of her application for a harmful proceedings order, counsel for the mother referred to the mother's evidence she has been diagnosed with PTSD and that she had recently started seeing her psychologist again "due to the stress and anxiety of these proceedings". I note the evidence given by the mother in relation to her stress and anxiety otherwise largely related to direct interactions with the father and X spending time with him, rather than to the court proceedings. About this, I refer to paragraph 71 of my reasons. The mother did not adduce evidence from her psychologist about the potential impact of further court proceedings, including on her psychological wellbeing or on her capacity to care for X. However, the absence of that evidence does not preclude me from making a harmful proceedings order if I am satisfied on the other evidence before me there are reasonable grounds the mother would suffer harm in the event of further court proceedings initiated by the father. I can rely on her self-assessment[76] and I can draw inferences from the available evidence without corroborative expert opinion evidence.[77]
In relation to the financial impact of further court proceedings, the mother is represented by Victoria Legal Aid, so has not personally incurred legal cost in this proceeding. I accept she has had to take time off work to participate in court events but it is unclear if she was required to take unpaid leave. This is not a case though where the mother has been required to take time off work or away from her parenting responsibilities to instruct lawyers and attend court to deal with multiple or spurious applications.
In relation to X, the family report writer observed he was aware of the conflict between his parents but not that he had been adversely impacted by the court proceedings directly. X met with the family report writer twice. The family report writer reported he attended the registry to meet with her for the family report with a happy and relaxed demeanour, that he seemingly recalled the experience of seeing his dad there previously as a positive experience. I nevertheless accept X may have been adversely impacted by stress and anxiety the mother experienced as a result of the court proceedings. As explained by Brasch J in Carey & Prescott (No 2):[78]

Grech & Lagana [2025] FedCFamC2F 1450 (15 October 2025)

At a glance

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Judgment (246 paragraphs)

Legislation Cited (4)

Cases Cited (9)