Kuang & Kuang [2025] FedCFamC1F 410 (20 June 2025)

AND BY CONSENT OF THE PARTIES AND THE INDEPENDENT CHILDREN'S LAWYER THE COURT ORDERS THAT:

1. The father and his legal advisers in proceeding number PAC 2628 of 2023 be released from his implied undertaking to the Court, and have leave to:

(a) Use the affidavits of the mother filed 4 August 2023 and 6 June 2025 and the supplementary report of the single expert dated 26 March 2025 in, and for the purposes of defending the charges for which he is standing trial in the District Court of New South Wales and any superior court to which the criminal proceedings may be referred or appealed ("the criminal proceedings");

(b) Provide a copy of the report to his counsel in the criminal proceedings, to be used as such counsel considers appropriate in and for the purposes of the criminal proceedings;

(c) Provide a copy of the report to the Director of Public Prosecutions in New South Wales and New South Wales Police for the purposes of the criminal proceedings; and

(d) Provide a copy of the report to any legal practitioner appearing on behalf of, or advising, the father and the mother, or either of them, in relation to the criminal proceedings.

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).

(a) The dismissal of the father's application seeking an order that the children commence spending supervised time with him; and

(b) My preparedness to vary Orders, which I made on 30 April 2025 such that the children spend supervised time with their paternal grandparents each week for a period of four hours.

1. These reasons are delivered in circumstances where the competing parenting applications are listed for a final defended hearing commencing on 27 October 2025.

1. The father is aged 30 years.[1] The mother is aged 27 years.[2] They married in 2014[3] and separated on 17 February 2023.[4]
2. The two children of the relationship were born in 2015 and 2020[5] and are aged ten years and four years respectively. The mother and the father migrated to Australia in 2022 following the commencement of conflict in their country.[6] At that juncture, the father and the children were reunited with the paternal grandparents who arrived in Australia in 2019.[7]
3. The children have not spent any time with the father since February 2023 save in the presence of a single expert engaged by the parties on 14 March 2025.[8] Until recently, the children were also deprived of a relationship with their parental grandparents.
4. On the day of separation, the father reported the mother as a "missing person".[9] Ten hours later, the father was charged with common assault offences.[10] The events of February 2023 appear to have equally surprised the paternal grandmother with whom the parties were then living. She said that she had "a close and loving relationship [with the mother] which changed suddenly from about January 2023".[11]
5. Although a trial in respect of the charges against the father was listed for hearing in September 2024, the trial could not proceed due to the absence of suitable interpreters. The trial is now listed to commence in July 2025.[12]
6. On 24 October 2023, a Senior Judicial Registrar made an order that the parties contact F Contact Centre to arrange an appointment with the manager of the contact centre "for assessment and suitability of supervised time".[13] For reasons, which were not explained to me, the father was not advised until April 2025 that his "matter has been deemed suitable for contact pending further Family Court Order".[14]
7. On 25 January 2024, and with the consent of the parties and the Independent Children's Lawyer, a Judicial Registrar joined the paternal grandparents to the proceedings. The paternal grandmother is aged 51 years, and the paternal grandfather is aged 53 years.[15]
8. On 30 April 2025, and with the consent of the parties and the Independent Children's Lawyer, I made orders that:

(a) The paternal grandparents spend time with the children for a period of four hours on one occasion each fortnight such time to occur under the supervision of a professional supervisor or at a contact centre; and

(b) Throughout the period of supervision, an interpreter be present. Among other things, my orders contained a direction that the interpreter make a report to New South Wales Police if the children are asked which school they attend or the location of their residence.

1. As a consequence of my orders, the children spent time with the paternal grandparents on 1 June 2025[16].
2. It is against this background that I must assess the merit of the orders sought by the father and his parents.

1. The father and the paternal grandparents relied on:

(a) An Application in a Proceeding filed on 12 May 2025;

(b) An affidavit in the father's name filed on 14 May 2025;

(c) An affidavit in the name of the paternal grandmother filed on 14 May 2025;

(d) An affidavit in the name of the paternal grandfather filed on 14 May 2025;

(e) Reports prepared by a single expert forensic psychiatrist dated 29 July 2024 and 26 March 2025;

(f) Tendered documents;[17] and

(g) An Outline of Case Document filed on 12 June 2025.

(a) A Response to an Application in a Proceeding filed on 6 June 2025;

(b) An affidavit in the mother's name filed on 6 June 2025;

(c) Tendered documents;[18] and

(d) An Outline of Case Document filed on 12 June 2025.

1. The Independent Children's Lawyer relied on an Outline of Case Document filed on 12 June 2025.

1. Orders in respect of children are made under Part VII of the Act, where the meaning of a "parenting order" is defined (s 64B). The Court may make such parenting orders as it thinks proper (s 65D), within the context of the objects of the legislation (s 60B).
2. When making parenting orders, the Court is mandated to regard the child's best interests as the paramount consideration (s 60CA and s 65AA) and the Act specifies the criteria which must be considered when determining the form of orders which meets and promotes the child's best interests (s 60CC).
3. Parental responsibility for children is vested in their parents (s 61C(1)), whether they live together or are separated (s 61C(2)), but that situation only applies whilst ever no order is made to change it (s 61C(3) and s 61D). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). Since legislative amendments took effect on 6 May 2024, parental responsibility orders no longer have any bearing upon determinations about with whom a child should live or spend time.
4. Such principles apply equally to interim parenting orders.
5. Being an interim hearing in respect of parenting orders, the procedure is that established by the Full Court in Goode & Goode (2006) FLC 93-286, where it was said (at [68]):

...the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is "significantly curtailed". Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties' respective proposals for the future.

1. In Banks v Banks [2015] FamCAFC 36; (2015) FLC 93-637 at [47] - [50], the Full Court observed how a paucity of uncontested evidence means only limited consideration may be given to the factors prescribed by s 60CC of the Act. Interim disputes should be confined to only those issues which, in the best interests of the child, require determination prior to a proper determination at trial. The trial is the time and place to settle factual controversies. Interim hearings ought not be used for that purpose unless circumstances are urgent and there is no alternative.
2. In this case, I am also compelled to consider whether it is appropriate to vary the interim orders made by me with the consent of the parties and the Independent Children's Lawyer on 30 April 2025. Schonell J in Gonzales & Gonzales (No 2) [2023] FedCFamC1F 438 described the approach to be adopted with respect to revisiting the terms of an earlier order as follows:

It has been clearly articulated it numerous authorities that the Court should not "lightly entertain an application to reverse" an earlier order unless it is satisfied that there are changed circumstances (in the sense that a new factor has arisen or some material factor was not disclosed at the previous hearing) which would justify the reversal (see Rice and Asplund [1978] FamCAFC 128; (1979) FLC 90-725 ("Rice and Asplund") at 78,095). It is sometimes inelegantly described as the rule in Rice and Asplund.

1. The father seeks an order that he spend supervised time with the children at F Contact Centre and that throughout the period of supervision, he arrange for an interpreter to be present so that his interaction with the children may be appropriately interpreted for the benefit of the supervisor.[19] That application is opposed by the mother.[20] Indeed, and since the time that the mother filed her Response to Final Orders on 4 August 2023, she has promoted an order to the effect that the children spend no time with the father whatsoever. Further, and during oral submissions, her counsel argued that the children should not be reintroduced to the father prior to a resolution of the criminal proceedings. The mother's counsel argues that if the father does receive a custodial sentence, it will cause the children psychological harm to reintroduce them to him now only for the father to again be absent from the children's lives. The mother's counsel also submits that I ought to dismiss the father's interlocutory application on the basis that:

(a) There are no "new facts" or "changed circumstances"[21], which justify the variation or setting aside of the interim parenting orders made by a Senior Judicial Registrar on 24 October 2023. Those orders did not provide for any time or communication between the children and their father;[22] and

(b) The orders promoted by the father are not in the children's best interests in any event.

1. The mother's position was supported by the Independent Children's Lawyer.
2. The mother makes several allegations of family violence against the father. It is these allegations, which comprise the gravamen of her application. Particularly, the mother says that whilst the parties were living in Country G:

(a) The father physically assaulted her in 2013, 2017, 2019 and November 2021. On each occasion, the mother says that the father was under the influence of alcohol;[23]

(b) The father would physically assault her with regularity;[24]

(c) On the departure of his parents for Australia in late 2018 and early 2019, the father's abuse of alcohol became worse and, as a consequence, the father's propensity for violence increased.[25] The mother also refers to the suspension of the father's Country G driver's licence and his involvement in a motor vehicle accident in Country H in 2020 and 2021 respectively. The mother says that each of these events were caused by the father's abuse of alcohol;[26]

(d) The father assaulted her in mid-2022. The mother says that the father was intoxicated on this occasion and that each of the children were present at the time.[27] Particularly, the mother says that the elder child tried to protect her and as a consequence, the elder child was also assaulted;[28]

(e) The father sexually assaulted her on several but unspecified occasions.[29]

1. With respect to events, which occurred following the arrival of the children's parents in Australia, the mother says that:

(a) On 11 February 2023 and 12 February 2023 being shortly prior to the parties' separation, she was sexually assaulted by the father;[30]

(b) She was physically assaulted by the father on 19 December 2022.[31] Again, the mother says that alcohol was a feature of the assault.

1. The father denies that he has ever physically abused the mother, but he does concede that the parties would have arguments. He says that he and the mother "would always reconcile".[32] The father supports his denial by reference to the fact that he does not have any criminal convictions in Country G.[33] The mother explains the absence of any report to police by her on the basis that the father threatened to take the children from her if she made any such report.[34] The truthfulness (or otherwise) of the mother's allegations and the father's denials will no doubt be tested at trial.
2. In response to the submission made by the mother's counsel that the father's evidence "discloses little to no evidence of any changed circumstances since October 2023", the father's solicitor advocate made submissions that:

(a) The preparedness of F Contact Service to supervise the children's time with the father as expressed by an email dated 6 November 2024 was evidence of a changed circumstance;[35]

(b) The release of the second report of the single expert on or about 26 April 2025 represented evidence of a changed circumstance;

(c) The mother's statement to police in late 2024 to the effect that she had erroneously identified the physical assault in Australia as occurring on 19 December 2022 when in fact it occurred on 18 December 2022[36] is evidence of an inconsistent statement on the part of the mother. Given that the statement to police was given in late 2024 and after the interim orders of 24 October 2023, the father's solicitor advocate submitted that this too was evidence of a changed circumstance;

(d) The father was now seized of medical evidence that the mother did not receive any treatment at the J Hospital during 2020 and 2021[37] despite the mother's assertion that she did so.

1. Whilst the father is desirous of identifying inconsistencies in the mother's evidence, I accept the submission made by the mother's counsel that I ought to refrain from entertaining an application to vary an earlier order unless I am satisfied that there is a changed circumstance. Simply, I am not satisfied that some new factor has arisen or that a material factor has now been disclosed, which was not so disclosed during the October 2023 hearing. The opportunity for the father to test the mother's evidence will arise in about four months' time.
2. With respect to the question about whether it is otherwise in the children's best interests to commence spending time with their father, I accept that observations of interaction between the children and their father by the single expert on 14 March 2025 identified that interactions between the elder child and his father were relaxed and warm. Particularly, and despite his initial presentation, the single expert made the following observation with respect to the elder child's interaction with his father:

[The elder child's] affect shifted rapidly from apprehension to relaxed engagement. His body language and spontaneous conversation indicated genuine comfort in his father's presence. He maintained appropriate eye contact, displayed spontaneous emotional warmth, and engaged in reciprocal play. These behaviours are indicative of a reactivatable attachment and a capacity for positive relational repair with his father.[38]

1. Similarly, the younger child's affect during observations of interaction with his father were "consistently positive". He too displayed "spontaneous and relaxed engagement" with his father.[39]
2. At [71] of his report, the single expert opined that the Court ought to give consideration "to the re-establishment of contact between the children and their paternal family" but only if the Court considers it appropriate. This highlights the difficulties associated with the father's application. That is, the father's application ignores well established authority that any decision about the "re-establishment of contact" between the children and their father must be that of the trial judge.[40] Indeed, the single expert himself acknowledges that the Court is not obliged to adopt an expert opinion and in due course, the parties will be provided with the opportunity to persuade me why the single expert's evidence ought to be adopted or why different evidence might be preferred.
3. When considering the safety of the children, I also find that there is merit to submissions made by the Independent Children's Lawyer that it would not be in the children's interests for them to commence spending regular time with their father if there is a risk that he may be incarcerated following the trial in respect of the criminal charges. Further, the mother's counsel invited me to take into account evidence given by a migration lawyer, which suggests (albeit with equivocation) that the husband's visa permitting him to reside in the Commonwealth of Australia might be cancelled if he is convicted of the offences the subject of the Crown's prosecution.[41] Obviously, such an outcome would have significant ramifications not only for the father but also the children.
4. The accuracy (or otherwise) of the legal advice contained in an email from a migration lawyer and marked as an exhibit during the hearing before me will need to be tested at trial.
5. Finally, I reject the submission made by the father's solicitor that there is "no allegation of violence against the children". As discussed above, the mother asserts that the children have been exposed to family violence on at least one occasion when she says she was physically assaulted by the father. This allegation will no doubt be tested at trial.
6. For these reasons, I do not consider that it is in the children's best interests to commence spending time with their father.

1. On 30 April 2025, I made an order that the children spend time with the paternal grandparents for a period of four hours in each alternate week, such time to be supervised by a professional supervisor. At the time of the interim defended hearing, the children had spent one occasion of supervised time with the paternal grandparents, namely, on 1 June 2025.[42]
2. The paternal grandparents seek an order that after two supervised visits pursuant to the terms of my April 2025 orders:

(a) The children's time with them increased to a period of four hours each week such time to be supervised; and

(b) After a period of eight weeks, the Court dispense with the requirement for supervision save that time occur in the presence of a NAATI accredited interpreter.

1. The paternal grandparents abandoned the balance of their application. Further, and by the conclusion of the interim defended hearing, the solicitor for the paternal grandparents advised me that the paternal grandparents would accept "any additional time with the children" even if such time was to be supervised. Further, I was advised that the paternal grandparents would meet the costs associated with supervision.
2. When considering the paternal grandparent's application, I am mindful that:

(a) The elder child lived with the paternal family in Country G from the time of his birth until early 2019 when the paternal grandparents migrated to Australia.[43] The paternal grandmother deposes to a significant involvement in that child's life.[44] Although her evidence has not been tested, the paternal grandmother's detailed explanations about the role, which she played in the elder child's life is compelling. Similarly, the paternal grandfather gives detailed descriptions about the life of the mother, the father, and the paternal grandparents in Country G and the role, which the paternal grandparents played in the elder child's life.[45] For example, the paternal grandfather says as follows:

Some doctors thought that [the elder child] was my son, as I cared for him so much. [The elder child] always went to bed with me and when he fell asleep, I then moved him into his bed.[46]

(b) The younger child lived with the paternal grandparents between his arrival in Australia in 2022 until January 2023.[47] By reason of their living quarters in Australia, it followed that the paternal grandparents had significant involvement in the children's lives. Indeed, the paternal grandmother by her affidavit expressed happiness "that all of us were now together in Australia".[48] The paternal grandfather seems to have been similarly delighted;[49]

(c) When the mother obtained employment in October 2022, the paternal grandmother says that it fell to her or the father to care for the children;[50]

(d) The report prepared by the single expert identified that:

(i) The elder child reciprocated affectionate greetings from his grandparents and spontaneously engaged in conversation with his grandparents. The single expert identified that the elder child was animated, and his behaviour reflected "emotional memory and familiarity with the paternal family";[51]

(ii) The younger showed "no signs of fear or withdrawal" and he "smiled spontaneously". In a manner similar to his brother, the younger child "displayed comfort with physical closeness and ease of relational engagement";[52]

(e) The report of observations of supervised contact dated 1 June 2025 identified that the children were comfortable with the affection shown to each of them during the first supervised visit and the "visit was positive overall".[53]

1. In the face of positive interaction between the children and the paternal grandparents, the mother by her counsel:

(a) Challenged that time between the children and their grandparents had been positive;

(b) Argued that the elder child was reluctant to attend the first visit with his grandparents;[54]

(c) In a general sense, argued that the paternal grandparents had ignored family violence perpetrated by their son and, this being so, cannot be trusted to ensure the safety of the children; and

(d) Argued that there was no evidence of "new facts" or "changed circumstances"[55], which would justify the Court revisiting the interlocutory orders made on 30 April 2025.

1. For her part, the Independent Children's Lawyer had no objection to increased time between the children and their grandparents provided that such time be supervised.
2. I agree with the submission made by counsel for the mother that there are no "new facts" or "changed circumstances", which justify an order that the children's time with their paternal grandparents proceed on an unsupervised basis. Indeed, supervised time has only recently commenced, and I consider that it is important for the children's relationship with their paternal grandparents to be reestablished within a supervised environment. Whilst such an outcome will be disappointing for the paternal grandparents, the benefits of such an arrangement are two-fold. Firstly, and assuming that the positive interaction between the children and their grandparents on 1 June 2025 is a harbinger of positive interactions to come, the paternal grandparents will be armed at trial with a significant body of material, which may persuade me that it is appropriate for the children to spend substantial periods of time with them. Secondly, and pending a testing of the evidence, the mother will be assured of the children's safety.
3. I agree with the submission made by the mother's counsel that it is inappropriate for an interpreter to supervise the children's time with the paternal grandparents. There is no evidence in these proceedings that:

(a) The interpreter is aware of her obligations as a supervisor; or

(b) She is aware of the precise and detailed allegations, which the mother makes against the father and the paternal grandparents.

1. The interpreter has not filed an affidavit, which might enable me to determine her suitability as a supervisor.
2. I do not consider, however, that the children's safety will be compromised by making an order that their time with the paternal grandparents increase to four hours each week. Such an order will be subject to:

(a) The availability of the supervision service referred to in my Orders made on 30 April 2025 to facilitate the same; and

(b) The ability of the paternal grandparents to meet the fees associated with the provision of the supervision service.

1. Although it was not the subject of the Application in a Proceeding filed on 22 May 2025, the applicant father by his Outline of Case Document sought orders that the following documents be released for use in criminal proceedings against him:

(a) The mother's affidavits filed on 4 August 2023 and 6 June 2025; and

(b) The supplementary report of the single expert dated 26 March 2025.

1. Each of the mother and the Independent Children's Lawyer agreed to orders in the terms sought by the father and accordingly, I will make orders in the terms requested.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.

[1] Father's affidavit filed 14 May 2025, paragraph 1.

[2] Father's affidavit filed 14 May 2025, paragraph 4.

[3] Father's affidavit filed 14 May 2025, paragraph 8.

[4] Father's affidavit filed 14 May 2025, paragraph 9.

[5] Father's affidavit filed 14 May 2025, paragraph 5.

[6] Father's affidavit filed 14 May 2025, paragraph 38.

[7] Father's affidavit filed 14 May 2025, paragraph 27; Paternal Grandmother's affidavit filed 14 May 2025, paragraph 12.

[8] Father's affidavit filed 14 May 2025, paragraph 30.

[9] Father's affidavit filed 14 May 2025, paragraph 9.

[10] Father's affidavit filed 14 May 2025, paragraph 9; Paternal Grandmother's affidavit filed 14 May 2025, paragraph 43.

[11] Paternal Grandmother's affidavit filed 14 May 2025, paragraph 5.

[12] Father's affidavit filed 14 May 2025, paragraph 11.

[13] Orders made on 24 October 2023, paragraph 13.

[14] Father's affidavit filed 14 May 2025, paragraph 17.

[15] Paternal Grandmother's affidavit filed 14 May 2025, paragraphs 1 and 3.

[16] Mother's affidavit filed 6 June 2025, paragraph 130.

[19] Application in a Proceeding filed 12 May 2025, paragraphs 5 and 6.

[20] Response to an Application in a Proceeding filed 6 June 2025.

[21] For example, refer to the decision of Crew J in Jakubik & Jakubik [2023] FedCFamC1F 415 at [56].

[22] Order 12 of the Orders made on 24 October 2023.

[23] Mother's affidavit filed 6 June 2025, paragraphs 52, 55, 60 and 67.

[24] Mother's affidavit filed 6 June 2025, paragraph 53.

[25] Mother's affidavit filed 6 June 2025, paragraph 63.

[26] Mother's affidavit filed 6 June 2025, paragraph 66.

[27] Mother's affidavit filed 6 June 2025, paragraph 78.

[28] Mother's affidavit filed 6 June 2025, paragraph 79.

[29] Mother's affidavit filed 6 June 2025, paragraph 56.

[30] Mother's affidavit filed 6 June 2025, paragraph 12.

[31] Mother's affidavit filed 6 June 2025, paragraph 86.

[32] Father's affidavit filed 14 May 2025, paragraph 50.

[33] Father's affidavit filed 14 May 2025, paragraph 53.

[34] Mother's affidavit filed 14 May 2025, paragraph 58.

[38] Report of the single expert dated 26 March 2025, paragraph 33.

[39] Report of the single expert dated 26 March 2025, paragraphs 49 and 50.

[40] See Andrew & Delaine [2009] FamCAFC 182 at [72]; Ophoven & Berzina [2024] FedCFamC1F 97 at [78].

[43] Paternal Grandmother's affidavit filed 14 May 2025, paragraph 11.

[44] Paternal Grandmother's affidavit filed 14 May 2025, paragraphs 48 and 49.

[45] Paternal Grandfather's affidavit filed 14 May 2025, paragraph 17 and onwards.

[46] Paternal Grandfather's affidavit filed 14 May 2025, paragraph 19.

[47] Paternal Grandmother's affidavit filed 14 May 2025, paragraph 13.

[48] Paternal Grandmother's affidavit filed 14 May 2025, paragraph 15.

[49] Paternal Grandfather's affidavit filed 14 May 2025, paragraph 25.

[50] Paternal Grandmother's affidavit filed 14 May 2025, paragraph 17.

[51] Report of the single expert dated 26 March 2025, paragraph 40.2.

[52] Report of the single expert dated 26 March 2025, paragraph 48.

[54] Mother's affidavit filed 6 June 2025, paragraph 133.

[55] For example, refer to the decision of Carew J in Jakubik & Jakubik [2023] FedCFamC1F 415 at [56].