Isles v Nelissen

(a) Y, born in 2010; and

(b) X, born in 2016.

1. Pursuant to s 65Y of the Family Law Act 1975 (Cth) the mother is authorised to remove the children Y, born in 2010, and X, born in 2016, from the Commonwealth of Australia at her discretion and without the consent of the father.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. Mr Mandic, the applicant father, and Ms Mandic, the respondent mother, separated after 13 years of marriage and having three children together.
2. The children, Ms B who turned 18 this year, Y who will shortly be 16 years old, and little X who is now 9 years old, have not spent any meaningful time with the father for close to 6 years.
3. The children's lives have been impacted by family violence and parental conflict. All 3 children have very strong resistance to spending any time with the father.
4. It was not until January 2023, more than 2 years after the parties' separation, that these proceedings, which have a long history, were commenced.
5. During the course of the final hearing, orders were made by consent in respect of Ms B and Y, but the parties were not able to come to an agreement in relation to X.

1. The proceedings were commenced by the father on 18 January 2023, whereby he sought parenting orders in relation to Ms B, Y, and X on both a final and interim basis.
2. Previously, the father had applied for the parties' divorce in early 2021, which was granted in mid-2021.
3. On 13 February 2023, orders were made placing the matter in the Evatt List, for the preparation of a Child Impact Report, for the appointment of an Independent Children's Lawyer, and other orders for the progression of the matter.
4. The Child Impact Report, authored by Ms C, which expressed serious concerns about risks in relation to the father, was released to the parties on 20 March 2023.
5. On 13 April 2023, the mother filed a Response to Initiating Application.
6. On 5 June 2023, orders were made dismissing all outstanding interim applications, listing the matter for a compliance and readiness hearing, and for the filing of documents. A Registrar of the Court noted on that day as follows:

1. The Child Expert Report of CCE [Ms C] released on 20 March 2023 suggests that it would be in the interests of the subject children that they not be reinterviewed as this may have a harmful impact on their mental health. The older two children [Ms B], 15 and [Y], 13, expressed strong views to the Court Child Expert that they did not want to see or communicate with their father. The children have not had any contact with their father since December 2019.

1. The parties and ICL agree that it is preferable to proceed towards final hearing in this matter on the basis that the Child Impact Report of 13 April 2023 is the only report to be relied on at final hearing in relation to the children
2. On 14 August 2023, the father filed an Amended Initiating Application.
3. On 22 August 2023, orders were made at the compliance and readiness hearing for the filing of documents for final hearing, and setting the matter down for hearing from 29 April 2024 to 1 May 2024.
4. The final hearing commenced on 29 April 2024, and after the matter had been stood down to allow the parties time for settlement discussions, the father and his new wife gave evidence. The Court had refused an earlier application for adjournment of the final hearing made by the father on that day.
5. On 30 April 2024, the parties jointly sought to vacate the final hearing and adjourn the proceedings to a further date. This occurred following discussions between the parties.
6. Ultimately, on 30 April 2024, orders were made by consent and on a final basis in relation to Ms B and Y for the mother to have sole parental responsibility, for the two children to live with the mother, and for them to spend time with the father in accordance with their wishes. The remainder of the final hearing was vacated, and orders for the preparation of a family report as well as family therapy were made.
7. The father also made an oral application for X to spend time with him, that application being dismissed. The hearing was adjourned to 2 to 4 December 2024.
8. On 5 September 2024, to allow time for the preparation of the report into family therapy, the final hearing was again adjourned to 29 to 31 January 2025.
9. On 11 December 2024, the family report of Ms D was released to the parties.
10. On 29 January 2025, the final hearing was adjourned to 2 to 4 April 2025 to allow for the preparation of an addendum to the family report, as neither Ms B nor Y had been interviewed by the family report writer.
11. On 17 March 2025, the addendum to the family report was released to the parties.
12. On 2 April 2025, the hearing re-commenced, with the evidence concluding in the afternoon of 4 April 2025. Orders for the filing of written submissions were subsequently made.
13. On 9 May 2025, judgment was reserved.

1. The Court has been greatly assisted by the parties' written submissions, particularly the considered and insightful submissions made on behalf of the mother and separately on behalf of the ICL.
2. The submissions made on behalf of the father reflected his case and his attitude to the children's best interests.

1. The central enquiry is for the Court to determine the outcome that will be best for the child who is the subject of these proceedings. These proceedings are determined in accordance with provisions of the Family Law Act 1975 (Cth) as they were prior to 6 May 2024.
2. Parenting proceedings are governed by the provisions of Part VII of the Act. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
4. In determining what is in a child's best interests, the Court must consider the matters set out in s 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s 60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
5. In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the child of having a meaningful relationship with both of their parents.
6. A meaningful relationship "is one which is important, significant and valuable to the child".[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the child.[3]
7. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child's best interests.
8. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s 65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child's best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[4]
9. While all relevant primary and secondary considerations have been considered, not each of the considerations have been discussed in the reasons. The reason for this is that discussion does not mean consideration.[5]
10. The "provisions of ss.60CC and 60CG of the Act are wide enough to embrace most, if not all, assertions of an 'unacceptable risk' of harm to children and so it is preferable for litigants to conduct their parenting disputes by reference to the express provisions of the Act."[6]
11. As the Full Court held:

The assessment of risk is an evidence-based conclusion... The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children's best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.[7]

1. In assessing whether the risk of harm is unacceptable, the Court is not merely evaluating whether the risk will occur, but also the potential consequences of the risk being realised.[8] The High Court has stated that "the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access will expose to child to an unacceptable risk of [harm]...".[9]
2. Furthermore, it may be taken as well established that:[10]
   • If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
   • If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent's belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent's capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
   • Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent's capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child...

1. The issues of family violence and risk are two separate questions. It is important that they not be conflated. On the one hand, the Court may need to determine whether or not allegations of family violence are proven on the balance of probabilities, and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the allegations of family violence.[11]
2. It is with all those principles in mind that the Court makes its determination.

1. The evidence in the proceedings was lengthy, not only in terms of the oral evidence, but also in terms of affidavits, reports and exhibits. While all of the evidence has been considered, not all of the evidence is referred to in these reasons, and indeed, it is only the most pertinent facts which are referred to.
2. The parties agree as follows:

Respondent Mother, Ms B and Y immigrate to Australia.

The Father is served with a provisional ADVO ("the First ADVO") for the protection of the Mother.

The NSW Police charge the father with:

(a) Stalk/intimidate intend to fear physical harm; and

(b) Common assault.

The NSW Police charge the Father with contravening the First ADVO.

The Defended hearing of the Father's three charges is part-heard before a magistrate.

The Defended hearing of the Father's three charges is part-heard before a magistrate.

The Defended hearing of the Father's three charges is part-heard before a magistrate.

The magistrate finds that the Father is not guilty of the three charges. The First ADVO is also dismissed on the same day. NSW Police are ordered to pay costs in the amount of $1,000 to Mr Mandic in relation to the dismissal of contravene ADVO offence.

Father completes Parenting After Separation course.

The Mother makes a complaint to NSW Police that the Father was in the proximity of her residence in late 2022, and early 2023 and that she fears for her safety.

The NSW Police take out an ADVO on her behalf against the Father ("the Second ADVO").

NSW Police attend upon the Mother's residence to do a welfare check on Y and he has not been attending school.

NSW Police attend at Mother's residence to assist Y attend school as he has not attended for the majority of year 8.

Mother calls NSW Police to report that Y has been aggressive towards X. The mother tells the NSW Police that Y has been hitting X. The Mother states that her and the other siblings are stuck in a room as they are scared of Y.

Y agreed to be scheduled un the Mental Health Act 2007 (Cth) at the suggestions of NSW Police.

The Second ADVO was listed for contested hearing before Suburb F Local Court. The matter was adjourned to early 2025 with the ADVO to lapse on the same date.

The second ADVO lapses pursuant to the order of the Local Court in late 2024 - no contested hearing occurs.

1. The father's case focused significantly on denying the mother's and the children's allegations that the father perpetrated family violence. The mother was cross-examined at length about these matters. The father's case criticised the mother about her lack of specificity of allegation.
2. The mother's case is that the father had been violent throughout their 13-year relationship. She gives account, not only through her sworn evidence, but also to Ms C and Ms D during their interviews with the mother.
3. Each of the two older children gave account of the father's angry and violent behaviour towards their mother and towards them, including a threat to kill (either the mother or the mother and the children depending on how the threat was interpreted by those who heard it). These are very serious matters.
4. As detailed in the mother's submissions, the mother deposes that the father:

(a) repeatedly threatened to kill the mother;

(b) threatened to kill the mother and the children (in the presence of the children);

(c) punched the children and hit them with an open palm;

(d) repeatedly threatened to kill members of the maternal family;

(e) threatened the mother and members of the maternal family with a kitchen knife;

(f) forced the mother to continue in employment that exacerbated pre-existing injuries;

(g) hit the maternal grandmother across her face with an open palm;

(h) violently twisted the maternal aunt's wrist resulting in a soft tissue injury; and

(i) confiscated her mobile telephone and, on one occasion, destroyed it.

1. The mother gives evidence of financial control by the father, in that:

(a) the father demanded the mother continue in employment that she was physically struggling to undertake and that she wished to quit;

(b) that the father demanded that the mother give him access to her debit card and give him her online banking details; and

(c) that, when she was paid, the father would transfer almost all of her wages into his personal account.

1. The mother says that the father would hit her often throughout their relationship, that is two to three times a week, with an open hand and for trivial reasons.
2. In the context of the long history of family violence which the mother deposes to, it is not surprising that there are limited details. However, the mother's evidence provides sufficient particularity for the father to be able to answer it. The father denies the allegations, without providing any alternative as to what might have happened on those particular occasions.
3. On balance, the Court accepts the evidence of the mother.

The Family Dynamics during the Parties' Relationship

1. The parties were married in Country E in 2006. The mother was still only 18 years old at the time of her marriage to the father, who was in his mid-twenties. The father says that the parties were in a relationship for about two to three years prior to their marriage, this must mean that the mother was as young as 15 years old at the time, and a minor, while the father was in his early twenties. The power dynamic at the start of their relationship was in the father's favour. It never shifted. The mother, upon her marriage to the father, moved into the home of the paternal family.
2. The mother deposes that the father started engaging in domestic violence, such as hitting and yelling at her, on the second day of their marriage.
3. A month after the parties' marriage, the mother discovered that she was pregnant with Ms B.
4. The mother asserts that with each pregnancy the father told her that she should get an abortion, but that each time the mother refused. A few days prior to Ms B's birth, at the request of the father and his family, the mother went to stay with the maternal family to have the baby.
5. In about August 2007, following an argument with his own father, the father moved into the home of the maternal grandmother with the mother.
6. In 2009, and while the mother was pregnant with Y, the father started shouting and hitting her. The maternal grandmother intervened and the father hit the maternal grandmother. When the maternal grandmother threatened to go to the police the father threatened to divorce the mother and make their lives hell. The mother explains that due to the stress of the situation, she suffered some abdominal pains, causing her to fear for her pregnancy.
7. As noted in the agreed facts, the mother migrated to Australia with the children in mid-2014. In late 2014, she started working at a supermarket.
8. The mother explains that the father forced her to start working and to take responsibility for all household and children's expenses. While she told the father that she could not do physical work because of having two caesarean sections, the father told her that if she wanted to live in Australia she must work and give him the money, or he would send her back to Country E.
9. In 2015, the father beat the mother such that she threatened to call her family in Country E and the NSW Police. In answer the father forced her and the children into the car, drove to Sydney Airport and forced them out of the car, telling them to buy tickets to go back to Country E. The mother was scared and the children were crying. Ultimately, the father took them back home.
10. In 2015, the mother discovered she was pregnant with X. When the father found out he took her to a clinic and asked for the cost of an abortion. The father also said to her that he would kill her and the kids if she did not have an abortion.
11. Before X's birth, in 2016, the paternal grandmother arrived in Australia. Following X's birth, the mother stayed in hospital for six days, while Ms B and Y were looked after by the father and the paternal grandmother.
12. Between late 2016 and early 2017, the mother and the children travelled to Country E, while the father remained in Australia. The family stayed in the paternal grandmother's home. In or around 2018, the mother and the children again travelled to Country E.
13. On 4 December 2019, the day of separation, when the family was sitting in the loungeroom, the father took one of his shoes off and hit the mother on the shoulder with it. The mother took the children and walked out of the family home. The father then came outside and told her that he would give her a divorce, that she could not stay in the house, and that if she came back that he would kill her. The mother called the Police, who attended and took her statement.
14. During cross-examination, the father stated that on the day of separation the mother and the paternal grandmother had an argument and that he took the paternal grandmother to a friend's home. The father agrees that the mother called the police.
15. In late 2019, the Police took out a provisional ADVO against the father for the protection of the mother.
16. The father has not spent time nor communicated with the children since this date.

1. The mother is the children's sole carer.
2. Y has experienced a number of mental health difficulties post the parties' separation. He has been violent and the mother has called the police for assistance when needed. There were periods of time when Y was not attending school regularly, and the mother has sought to help him, not just by co-operating with the school but also by trying to obtain help from mental health professionals.
3. In about August 2024, X was diagnosed as meeting the criteria for autism spectrum disorder level 2, global developmental delay, and mild intellectual disability.
4. Prior to this diagnosis, in February 2023, X was diagnosed with emotional dysregulation secondary to emotional and physical abuse, extreme separation anxiety, sleep issues, anger issues, and learning difficulties.
5. The mother has not had an easy time with the children post-separation.

The Mother's Evidence About her Various Ailments

1. Part of the mother's case was that she suffered several physical ailments which she attributed to the physical abuse she says she suffered at the hands of the father, including ongoing pain to her shoulder from being hit with a shoe in December 2019. The evidence does not establish this.
2. The evidence establishes that the mother suffered several health complaints for which she sought treatment.
3. It was submitted on behalf of the mother that it is not unreasonable, in circumstances where the mother suffered traumatic and continuous physical abuse, for her to have formed the view that that violence has significantly contributed to chronic pain she suffers. This is not an objectively reasonable view for the mother to have. This is the mother gilding the lily.

1. Significant time was spent both during the hearing and in closing submissions, on discrepancies between the mother's evidence and third party records. The authors of those third party records, as is usually the case in family law proceedings, were neither called nor required for cross-examination. Some of the records are second and third hand hearsay.
2. The Court is not overly troubled by these discrepancies, if they can be called that. The findings the Court makes are made on the balance of probabilities and having regard to the parties' sworn evidence.

1. In or around 2018, the father claimed that the mother went "ballistic" at the children, that they were in the bedroom, that the mother came at him while he was lying on the bed, yelled at him to shut his mouth, grabbed his neck and applied pressure, and that he started to choke. The father claimed that he grabbed his phone to record, that the mother saw this and said she was joking, and that he laughed it off as he was afraid the mother's actions would escalate. Tendered in the proceedings was a video recording, which the father said showed the mother apparently choking the father. The video showed no such thing. The Court does not accept the father's evidence that the mother was violent either towards him or the children on this occasion.

1. As noted in the agreed facts, the father defended the charges against him in respect of stalk/intimidate, common assault, and contravene ADVO.
2. The criminal proceedings were heard over almost 18 months, commencing in mid-2020 and concluding in late 2021.
3. In late 2021, the father was acquitted of the criminal charges against him, and the application for an ADVO against the father was dismissed.
4. During cross-examination, the father confirmed that the children gave evidence in the Local Court proceedings because he wanted to prove his innocence.

1. A child impact report was prepared by Ms C on 17 March 2023. The Court accepts the evidence of Ms C.
2. In the report, Ms C provided a short outline to the background, the parties' circumstances at the time of the report, and briefly set out the respective orders sought by the parties.
3. When considering the children and their experiences, Ms C identified the mother's clear perspective as being that all the children had experienced trauma associated with their being directly physically, verbally, and emotionally abused by the father. Ms C then outlined the mother's descriptions of the children's circumstances. The mother described X as displaying significant behavioural and emotional difficulties at home and at school and as having displayed significant separation anxiety from her. The mother told Ms C that the school had been supportive and that there had been improvement with X, but that she was worried X's mental health and development would be compromised by any re-introduction to the father. In respect to Y the mother said he suffered anxiety and was hyper vigilant, and in respect to Ms B that she was focused on her future goals. The mother was generally concerned that all the children would experience "mental" and physical harm if compelled to see the father. In respect of the father, Ms C noted that he reported the children were safe in the mother's care and that she was a good mother, that he said he was particularly close to Ms B and that he encouraged her to learn and have a good education, that he was also close with Y and they spent a lot of time together, and that he had previously purchased X a tricycle and that X liked to play football.
4. In respect of the children, Ms C described Ms B as a thoughtful, polite, mature, serious, and quiet young person, and noted that she was aware of the reason for her interview and that the father was seeking to reconnect. Ms B told Ms C that her life had improved considerably after the parents' separation and that she now feels safe, giving the example that, during the parents' relationship, the father would place constant pressure on her to have good grades and that he would hit her if she did not. When asked about her recollections when the parents were in a relationship, Ms B told Ms C that she tried not to think about it as the memories were painful and difficult, that the father would on occasion take her and her siblings to a fun leisure activity, but that she primarily recalled the household environment being one of fear. Ms B elaborated to Ms C that her and her siblings would hide from the father because they were scared of him, that the father would get mad at the mother for the "smallest of things", that the father would hit and kick her when he was angry, and that on one occasion when the father came home late he was angry and threw her bag over the balcony, hit her, and that she later noticed the father had smashed a chair. Ms B also told Ms C that she stopped sitting on the balcony after she had seen the father from the balcony. Ms C noted that throughout Ms B's interview, there was a clear theme that being pressured to be reconnected to the father would have a significant adverse impact on her emotional and psychological health, which Ms C noted as appearing genuine and based on Ms B's present and past life experiences.
5. Regarding Y, Ms C described him presenting as quite intense throughout the interview, making strong eye contact and overall presenting as being a very serious, quiet, and mature young person. Y told Ms C that, when he heard the mother had been served with family law paperwork, he was emotionally affected, that the prospect of seeing the father is "terrifying" to him, that the father is "very abusive" and had hit both him and the mother, and that the father would be angry for no reason. Y elaborated that he is scared of the father and that he "lived with fear around him", giving an example that if he asked for a glass of water the father might get angry at him. Y also described himself as being highly vigilant of his surroundings and that he looks out for the father to make sure the father is not following him; in respect of this, Ms C noted in the report that such behaviour is not uncommon for people who have experienced trauma. Y told Ms C that after the mother saw the father outside the apartment, he felt scared and now keeps his bedroom blinds closed, and that at the time of the parents' separation the father was very angry, that the father asked him to choose who he would live with, that he chose the mother, and the father told them he would kill them if they returned to the family home. Ms C noted that Y's concern about being compelled to see the father was evident throughout the interview and that he seemed genuinely disturbed and anxious about the prospect. Ms C further noted that she needed to provide significant reassurance to Y during the interview as he was evidently anxious that his worries and concerns were being heard and would be noted in the report.
6. Ms B also expressed concern for and a desire to protect X to Ms C, telling her that if X was to be reconnected to the father "I would be very angry, I don't want is life to be damaged, that is not fair". Ms B told Ms C that X was hit by the father.
7. Considering X, Ms C described him as a chatty and friendly young boy. Ms C noted that during the interview, he asked if the mother and his siblings were outside which she confirmed they were. When speaking about his living arrangements X said, "I did have a Dad before, he didn't die, and he's in Australia somewhere", and said that he had no memories of when his parents resided together.
8. When setting out the risk and harm assessment, Ms C noted that there were serious and concerning allegations of a pattern of coercive controlling family violence that included physical violence and threats to kill perpetrated by the father. Ms C set out the allegations, circumstances, and accounts of both the mother and the father, and identified that Ms B and Y had clearly indicated that they experience fear when parented by the father, who used physical and emotional violence to manage the children and the mother's behaviour. Ms C opined that a child raised on fear is inhibited in developing a sense of trust and self-esteem, and that they can experience concerning levels of anxiety that interferes with learning and the development of healthy relationships. Ms C viewed the children as experiencing a safe and secure relationship with the mother, and any parenting arrangement which undermined the mother's emotional availability should be avoided in order to maintain the children's recovery from their past experiences of family violence.
9. In respect of each parent's understanding of the children's needs, Ms C noted the mother as presenting as loving and caring, and who actively sought professional support to help provide a safe and secure parenting environment. Ms C noted that the father, while referring to the mother as a good parent, denied all family violence allegations which, if he had committed the allegations as made by the mother and the children, she opined would raise serious concerns about his capacity to provide a safe environment for the children.
10. Overall, Ms C had serious concerns about the father's capacity to provide a physically and emotionally safe environment for the children and, if the family violence allegations were correct, would raise significant concerns for all the children's physical safety, and emotional and psychological wellbeing if they were to spend time with the father.

1. The family therapy commenced in early May 2024, and concluded in late November 2024.
2. X attended two family therapy sessions of approximately 1 hour each. While he was escorted into the therapy room by the mother, she did not participate. The mother herself had 7 cancelled sessions. The father attended the sessions as required.
3. Mr G noted in his report as follows:

42. When speaking about his father, initially, he appeared unsure and avoidant and distressed. However, [X] was curious and did not appear to react as anxiously when discussing his father on his second session. Talking about his father was seeming accompanied by sadness and preoccupation with is mother's worry.

...

62. [X] spoke in a way that suggested he has a suppressed attachment system toward [Mr Mandic]. However, he indicated that he was curious about his father and not entirely rejecting. Speaking about his father caused him to feel uncomfortable and [X] appeared to prefer avoiding thinking and talking about [Mr Mandic] or any other subject which made him feel uncomfortable. When asked if he would like to see his father in family therapy, [X] was aware that his mother may well be worried about this and indicated that he required [Ms Mandic]'s approval. [X] spoke anxiously about being "taken" by [Mr Mandic].

1. To Mr G, the mother appeared often to be preoccupied with her alleged victimisation and appeared anxious. Her reporting of feeling stressed when discussing past interactions with the father, was consistent with the therapist's observations. The mother conveyed limited insight regarding the possible influence that her own coping and negative perception of the father may have on X.
2. In respect of the father, Mr G opined that he appeared to be in denial about the issues that had been raised by the mother throughout her affidavit. The father did not express much concern about X's diagnoses.
3. Further family therapy was not recommended.

Family Report (21 October 2024) & Addendum (3 March 2025)

1. The family report was prepared by Ms D on 21 October 2024, and an addendum, to be read along with the report, was prepared by Ms D on 3 March 2025.
2. The Court accepts the evidence of Ms D.
3. In the report, Ms D noted that the father expressed concern for X's emotional well-being and that it would be beneficial to X for his father's involvement in his life. The father also told Ms D that he had been informed X has "mental health issues" and wearing nappies, but that he did not "believe it still" and that X did not have any issues prior to separation.
4. The father expressed to Ms D that he is open to any option that allows him to spend time with X, that he moved to Australia to allow his family to have a "good future", and that he did not understand how "the Judge and other people can decide" the extent of his relationship with X. In the addendum, the father expressed frustrations that X was not spending time with him, that he felt X's emotional difficulties and developmental delays were impacted by X not having the father in his life, and that X having his father in his life would make him feel emotionally secure. The father also expressed doubt about X's autism diagnosis and developmental delays, but when questioned said he would abide by court orders and would support any therapeutic interventions.
5. In the report, Ms D noted that the mother described X as suffering from extreme separation anxiety which had worsened since separation, that he would have meltdowns often triggered by anxiety and uncertainty, particularly regarding the possibility of seeing the father or dealing with family-related stress, and that X's siblings play a role in comforting him during meltdowns and are protective of him. The mother expressed her belief to Ms D that X's distress and developmental delays have been worsened by his exposure to conflict with the father, and that she is deeply concerned that reintroducing X to the father without proper preparation and support could have a negative impact on X's mental health. Ms D noted that the mother viewed herself as having to shield X from further harm.
6. In the addendum, further to what was mentioned in the report, the mother stated that X does not want to see the father and that the mere mention of him caused X emotional distress and meltdowns. The mother told Ms D that she proposed no contact with the father on account of her safety concerns and the effect on X's emotional wellbeing, and that if it was ordered for X to spend time with the father that she would encourage X but not force him.
7. Ms D set out the allegations made by both parties in relation to family violence, the parties' perspectives on X's safety and well-being, the parties' concerns regarding mental health, and the parties' perspectives of their relationship with the other parent. Ms D noted that it appeared the mother's and the father's relationship was characterised by ongoing conflict and opposing perspectives on each other's roles in the family dynamics.
8. Ms D noted that X impressed as a quiet and thoughtful child, describing his siblings and mother as "nice" and when asked about his father, indicating that he did not want to talk about him. When Ms D asked X if he wanted to spend time with the father, she recorded that X hid behind a pillow saying he did not want to see him, that he did not want to see the father in the future because "I don't like him", and that he did not want to answer any more questions. X was not interviewed for the purposes of the addendum.
9. In the addendum Ms D spoke to Ms B and Y. Ms D noted that Ms B presented as a quiet person, that she stated she had a good relationship with the mother, and that she said she had no desire to have contact with the father. Ms D noted that Ms B described the father as being prone to mood swings, and that the father was physically abusive to the mother. When asked about X spending time with the father, Ms B did not believe that would be safe and feared it would trigger emotional distress in X, negatively effecting his learning, emotional security, and behaviour. Ms B also told Ms D that the mother does not actively speak negatively about the father, allows the children to form their own opinions, and that she did not believe the father has the capacity to change.
10. In respect of Y, Ms D noted he was talkative and spoke in a fast manner, and described the mother as a strong and hard-working parent. When asked about the father, Y stated he did not miss having the father in his life, that he remembered the father's presence at home made the environment tense and that the father was a consistently violent and abusive figure in their household. Ms D noted that Y expressed strong resentment towards the father, and stated that his life had significantly improved since the parents separated. Y expressed extreme concern at the prospect of X spending time with the father, that he was adamantly against X having any contact with the father, and that it would cause unnecessary distress and mental anguish to the family.

1. In her evaluation, Ms D reiterated the concerns and experiences raised by the parties in respect of X, noting that X's use of nappies and meltdowns are indicative of developmental regression, which she said had likely been exacerbated by the family conflict and emotional instability in the home, and that X's response to mentions of the father indicate a negative emotional association. However, considering X's age and that he had spent no time with the father, Ms D recommended limited weight be given to his views.
2. In respect of the family violence described by the father, Ms D took the view that the father's description of the mother's behaviour was most consistent with situational couple violence, being a response to a specific conflict rather than a pattern of control. Ms D suggested in the alternative that it could be consistent with separation instigated violence (reacting violently to the breakdown or impending end of a relationship) or violent resistant behaviour (violence in self-defence or retaliation).
3. In respect of the mother's description of the family violence perpetrated by the father, Ms D noted that it appeared to be most consistent with coercive and controlling type of violence. Ms D then set out general consequences for this type of family violence.
4. Ms D then proceeded to provide comment and/or recommendations based on the allegations and assertions made by each parent. Ms D focused on the allegations of family violence and the assertion made by the father that the mother was turning X against the father. Ms D outlined and considered various hypothetical situations, focusing on identifying the concerns raised by the parents and offering general observations.

1. Ms D set out each party's position and those of the children Ms B and Y, before considering X's Autism (Level 2) diagnosis. Ms D set out the support provided by the mother and the other two children, general characteristics of a person with Autism (Level 2), and noted the father's contradictory information about X's diagnosis. Ms D noted that the father stated he did not accept the diagnosis believing it was his absence that was negatively affecting X, that he had not received medical reports regarding X, and that the father had consulted his GP. Ms D commented that if the father does not acknowledge or support X's diagnosis, it could have serious consequences for X's emotional well-being, developmental progress, and overall quality of life.
2. In her consideration of the mother's proposal for X to spend no time with the father, Ms D noted that the mother, Ms B, and Y presented as strongly against X spending time with the father, describing their past fear and distress. Ms D noted that exposure to family violence could have a significant and lasting impact on X, particularly given his young age and Autism diagnosis.
3. Ms D suggested that growing up in a home with constant yelling, physical aggression, and unpredictability could have overloaded X's nervous system making it harder for him to feel safe, focus, or engage in daily routines; suggesting that this could explain difficulties with toileting, sleeping, and emotional regulation. Ms D then considered trauma symptoms and their connection to family violence and stated, considering that X reportedly has meltdowns and extreme distress when the father is mentioned, that it was possible that X was already experiencing trauma-related reactions.
4. When considering the impact on X of not spending time with the father, Ms D noted the general impact on children when they spend no time with their father, that X's response to the father's absence is likely shaped by his autism-related challenges, and that X's reaction when the father is mentioned suggests the father's absence has not been a significant positive force in his life thus far.
5. Ms D suggests, if X were to spend time with the father, that a therapist could play a crucial role in supporting and facilitating a gradual introduction. However, Ms D also noted that, given the strong views of the mother and the older two children, orders for X to spend time with the father could have significant emotional and social effects on X.

1. At the conclusion of the family report, Ms D recommended that the mother have sole decision-making for X, and that X live with the mother. In respect of time between X and the father, Ms D opined that if the Court finds the father perpetrated coercive and controlling family violence against the mother and the children, that the father spends no time with X. Alternatively, if the Court finds the mother's allegations do not have veracity, Ms D recommended that X spend time with the father on an increased basis. Ms D also made recommendations for the parents not to denigrate one another, that they attend a parenting after separation course, that the mother attend counselling to address her anxiety around X spending time with the father, and that the father complete a men's behaviour change program if the Court finds he perpetrated family violence.

1. At the conclusion of the addendum to the report, Ms D recommended that the mother have sole decision-making for X, and that X remain on the Airport Watchlist if the Court deemed it appropriate.
2. Ms D's recommendation included that if the Court determines the mother is deliberately acting in a way to negatively influence X's views of the father, that X should spend time with the father following a structured approach. However, even in those circumstances, Ms D noted considerable barriers to X spending time with the father, namely:
   • X's distress and anxiety regarding the father;
   • The breakdown of family therapy in the past;
   • X's autism-related needs for routine and stability;
   • The lack of an existing relationship;
   • The mother's strong negative views about the father; and
   • The strong views of Ms B and Y about the father.
3. Alternatively, if the Court determined that the barriers as outlined could cause an unacceptable risk of harm to X, or that the Court finds the father has perpetrated family violence, Ms D recommended that X spend no time with the father.

1. The mother is currently 37 years old. She works as a customer service officer and the children live with her. Both Ms B and Y are in high school, while X is still in primary school.
2. The father who is currently 44 years old, does not work due to a workplace injury. He is in receipt of a Centrelink Parenting Payment. The father has re-married to Ms H. They have a child J born in 2023, and twins on the way. The children do not have any meaningful relationship with their half-siblings on the father's side.
3. Both parents are from Country E, and indeed both Ms B and Y were born in Country E. All follow Islam.

1. X was 3 years old when the parties separated. He has not spent any time with the father since then. While he is slightly curious about the father, X's expressed views are strongly against spending time with the father.
2. X is a child with special needs. He is highly vulnerable. Consequently, not only does he face a number of difficulties, but so does the family unit, and particularly the mother who is the children's primary, if not sole, carer.[12]
3. The father has not demonstrated any meaningful insight into X's needs or his vulnerabilities. Indeed, the father remains of the dogged view that not only would X be better off, but all three children would be better off, if only they would spend time with him. The father continues to blame the mother not only for X's difficulties, but also maintains that the mother is responsible for the children's failed relationships with the father. He takes no responsibility.
4. The evidence does not lead the Court to find that firstly, there is any tangible capacity for X to have a meaningful relationship with the father, and secondly, that such a relationship would be of benefit to X. This is said in light of all of the evidence, particularly Y's and Ms B's views about the father and their protective stance towards their youngest sibling.
5. X has strong bonds with his siblings, and the reintroduction of the father into X's life is likely to have a detrimental and destabilising effect on both of X's older siblings.

1. The Court finds that the father perpetrated family violence towards the mother and the children during the parties' relationship. The father was not only physically and verbally abusive towards them, but he used such physical and verbal abuse to coerce and control the mother and the children.
2. The father's evidence is that the parties had a "love" marriage and that they were very happy together. The Court does not accept the father's evidence in this regard, or at least, that the parties' marriage was objectively a happy one. The father might have been happy, but the mother was not. She was the victim of coercive and controlling behaviour, and the victim of physical and verbal assaults at the hands of the father; as were the children.

1. The mother has been the sole provider for the children's care, since the parties' separation almost 6 years ago. While she has some shortcomings in terms of her capacity, she has a demonstrated ability to meet their needs.
2. The father lacks insight into the effects of his behaviour on the children. He has taken no responsibility for the violence he perpetrated. The fact that the father remains in denial, where the Court has made findings that the violence which the mother alleged occurred, speaks poorly of his capacity to meet the children's needs and to keep them safe. It also means that there is a real risk of further perpetration of family violence. This is particularly significant given X's special needs and vulnerabilities.
3. Lastly, the mother has little to no capacity to support a relationship between the father and X. The reintroduction of the father into X's life would have a negative effect on the mother and her ability to parent not only X, but the parties' two older children. Even though Ms B has just turned 18 and Y is 16 years old, they both remain living with the mother and heavily rely upon her.

Is it in X's best interest to spend time with the Father?

1. For reasons outlined, it is not in X's best interest to spend any time with the Father. While there is some risk to X if he does not spend any time with the father, that risk is much lower than the risk to X if he does spend time with the father, such latter risk being unacceptable and one that cannot be ameliorated in the particular circumstances of this child. This is so, particularly having regard to how the two older children would be affected if X was ordered to spend time with the father.

1. There is no cogent evidence as to why X's name should be on the Airport Watch List.
2. The mother is not a flight risk.
3. The mother should have the opportunity of taking the children overseas on holidays, which the children would benefit from.
4. Noting the Court's findings and the orders made by consent on 30 April 2024, an order for the mother to have sole authority to apply for passports for both X and Y will be made, and the mother will by order be permitted to travel internationally with the children without the need to obtain the father's consent to such travel.

1. The only order which is in X's best interest is for the mother to have sole decision-making responsibility in respect of long-term decisions concerning X.
2. The father conceded in his application filed 14 August 2023, that the mother should have sole parental responsibility.
3. The parents simply have no capacity to have any meaningful communication about long-term decisions, and noting X's special needs it is particularly important that the mother not be restricted in her ability to look after his needs and ensure that they are being met.
4. A requirement on the mother to communicate with the father about any long-term decisions is in the circumstances too onerous, and will not be made.
5. The Court so orders.

I certify that the preceding one hundred and forty-three (143) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

[1] See Slater & Light [2011] FamCAFC 1 at [45].

[2] Mazorski & Albright [2007] FamCA 520 at [26] (cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121] ("McCall")).

[4] MRR v GR [2010] HCA 4 at [13].

[5] Banks & Banks [2015] FamCAFC 36.

[6] Isles v Nelissen [2022] FedCFamC1A 97 at [59] ("Isles v Nelissen").

[8] See for example the discussion in Johnson & Page [2007] FamCA 1235 at [62]- [74].

[9] M & M (1989) 166 CLR 69 at [25].

[10] Blinko & Blinko [2015] FamCAFA 146 at [83].

[12] ICL's submissions, which are accepted.