Kunkle & Suss [2025] FedCFamC1F 870 | Case summary

Family Law Act 1975Kunkle & Suss [2025] FedCFamC1F 870 | Case summary | Zoe

[34]

These are parenting proceedings relating to the child X who is seven years old.
X's parents are in dispute with respect to how much time X should spend with the father and whether or not there should be a three-month moratorium on him spending time with X at all.
At the commencement of the proceedings the dispute was much wider. The parents were in dispute with respect to where X should live, with each of them saying that X should primarily live with them and spend time (on a differing basis) with the other parent.
By way of brief chronology, the parents commenced cohabitation in January 2016 and separated on a final basis in June 2022, when they initially lived under the one roof with the mother moving out of the home on 12 July 2022, leaving X in the father's primary care.
On 19 August 2022 the mother commenced these proceedings seeking parenting orders. At that time, the father had withheld X from the mother for a period of four weeks, save that during that period the mother saw X on three occasions (not exceeding four hours), in the presence of the father.
Much later in these proceedings the mother filed an (Amended) Initiating Application seeking relief with respect to property. The financial aspects of the dispute finalised by consent following a conciliation conference on 7 May 2025.
When the matter came before the court for final hearing X was living with the father and spending time with his mother each alternate week from Thursday until the commencement of childcare and/or school on Monday as well as in the intervening week from 9.00am Wednesday until the commencement of childcare and/or school Thursday.
The matter was initially listed for a final hearing on 16 June 2025 but adjourned for reasons I shall set out later. At that time orders were made by consent for X to live with the father and spend time with his mother each alternate week from the conclusion of school on Thursday until the commencement of school on Wednesday, being a shared care regime where X was spending eight nights per fortnight with the father and six nights per fortnight with the mother.

[35]

I shall first turn to the proposals of the parties at the commencement of the hearing. Each of the parties provided a case outline of the final orders sought including a case outline by the Independent Children's Lawyer ('ICL') who has been invaluable in this case.
In terms of the parents, they each sought sole parental responsibility and sole decision-making authority with respect to all major long-term decisions for X. The mother sought an order that she inform the father of any of those decisions made by her.
Both parents sought that X live in their respective care, with the mother proposing that X spend time with the father four nights a fortnight (from the conclusion of school on Friday until the commencement of school on Monday and in the intervening week from the conclusion of school Wednesday until the commencement of school Thursday).
The father's proposal was that X live with him and spend time with the mother five nights a fortnight (from the conclusion of school on Thursday until the conclusion of school on Monday and in the intervening week from the conclusion of school Wednesday until the conclusion of school on Thursday).
At the conclusion of the proceedings the father agreed that X should live with the mother and spend four nights per fortnight with him. He sought that those arrangements commence immediately. On the other hand, the mother, largely adopting the position of the ICL, said that X should not spend time with the father for a period of two months and thereafter spend time with the father in each alternate week from the conclusion of school on Friday to the commencement of school on Monday. Accordingly in the final proposals the dispute had devolved into whether or not X should spend four nights a fortnight with the father or three nights a fortnight with the father and whether that should commence immediately or in two or three-months' time. The ICL proposed the Friday to Monday arrangement and the difference between the ICL proposal and the mother's proposal was that there should be a three-month moratorium rather than two months.
There was a minor difference between the mother and ICL whereby the mother sought a slower progression between X and the father until the Friday to Monday regime was reached.
The parties agreed that the mother should have sole parental responsibility and decision-making authority in respect of all decisions concerning major long-term issues for X. In closing submissions during discussions of the proposed minute of the ICL, the mothers lawyer confirmed that X's NDIS funding will not be transferred to the mother per se, but that a copy of the final orders will be provided to the NDIS service to ensure that they do not communicate with the father, but solely with the mother. Counsel raised the concern of the father communicating with medical practitioners and allied health professionals and sought an injunction restraining him from doing so which I agreed with. Regarding communicating any long-term decision making made by the mother to the father, it was agreed by her counsel, as proposed by the ICL, that the father would be advised in writing within 14 days of any such decisions.
Whilst the father agreed to the mother having such responsibility, he sought to be consulted about decisions with the mother having the final say if there was a dispute. For reasons that I shall come to, it is my view that any provision for consultation would provide fertile ground for conflict and is inappropriate in circumstances where I find that the mother has been the victim of long-term serious family violence perpetrated by the father in various shapes and guises and that she continues to suffer the impact of that family violence in terms of her capacity to deal with the father and her demeanour generally.
It was agreed between the parties that in both the long and short school holidays X's time with the father should continue in the established pattern and be extended until 9.00am Wednesday on the father's weekend which reflects X spending a period of five consecutive nights with the father during school holidays.
The ICL proposed orders with respect to telephone calls, special occasions, handovers, travel and other ancillary orders which were largely agreed upon.
The issues for the court to determine appear to be narrow in scope, however, the case presents with multi layered complexity particularly with respect to family violence perpetrated primarily by the father towards the mother and how that family violence presents.
The family violence which I find has occurred has the mother as victim and the father as perpetrator and it includes physical violence, emotional abuse, financial control, misleading conduct designed to undermine the mother's confidence, misleading conduct designed to achieve the father's desire for a reconciliation, verbal abuse, wheedling behaviour, manipulative behaviour , threats of self-harm and surveillance.
Although the mother concedes that from time to time her behaviour towards the father was also challenging and that their relationship was categorised by numerous arguments, it seems to me that the mother's behaviour was more reactive to what she experienced both in the relationship and out.
The nature of the family violence perpetrated against the mother spans most of the parents' relationship. The father largely denies the family violence allegations made by the mother and where he does admit certain incidents, which I shall come to, he minimises his role and aggression and externalises blame towards the mother for instigating scenarios which cause him to react.
In order to understand this case, it is necessary to identify key incidents of family violence which fall under numerous categories. What needs to be understood is that family violence occurs on a continuum, and therefore by examining certain events it should be understood that those events occur in a context, and my singular consideration of each event should not be seen in isolation to the other events which occur around it. It occurs to me that the family violence in this case, whilst acknowledging that every family is different, reads like an archetypal family violence narrative, including but not limited to, the conduct of this litigation.
The mother's position is based on her allegation that the father has historically perpetrated significant family violence against her, to which X was exposed. It is the mother's position that the father's attitude and behaviour towards her is not conducive to a co-parenting relationship, and that the father undermines her as a parent.
The gravamen of the father's case is that he has been the primary carer for X prior to separation and since the commencement of litigation in 2022. The father identifies X as a child with special needs, and he contends he has been responsible for X's medical needs. He initially said that the mother cannot provide the care for X but was unable to properly articulate the risk the mother poses to X, other than broadly she has mental health issues (however provided no evidence of such), and she is not available to meet X's needs.
The solicitor for the father was in a very difficult position. He had been instructed on close to the morning of the hearing and his instructions were to apply for an adjournment of the proceedings which occurred on the morning of the first day. It had been the modus operandi of the father throughout the proceedings, to obfuscate and delay, so much so, that her Honour Justice Kari made notations to orders on 30 May 2025: -

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Lack of preparedness at his end; and/or 2. If he were to become self-represented and/or change his legal re presentation prior to the commencement of trial.
Whilst I am not suggesting that I am bound by the notations made by of her Honour, I too had formed the view that the case required a hearing, not only to finalise the proceedings which had been in existence since 2022, but also to assess what is in X's best interests. This is in circumstances where the allegations against the father were serious and, on the papers, at least and having listened to numerous recordings which I shall come to shortly, appeared to suggest that X should be in the primary care of the mother (albeit on untested evidence at that stage).
The father's solicitor (who for the purpose of these reasons I shall refer to as counsel) had only limited experience in advocacy and pointed out to me that his experience had been largely in criminal matters and procedural matters in this court. His inexperience showed, and he required a good deal of assistance from counsel for the ICL to properly ventilate the issues in the case. In order to aid the flow of the proceedings I requested that counsel for the ICL cross examine the mother first when it became apparent that counsel for the father with very little time to prepare the matter (although I had given him the day prior to read what is a voluminous file with multifaceted allegations). There was a short period where, with his intrepid attitude, counsel for the father attempted to cross-examine the mother but with his limited experience it became apparent that by having the mother cross-examined by counsel first that the case could not proceed in an orderly fashion. When I asked counsel for the ICL to go first, he indicated he was well prepared to do so and all counsel agreed for the case to proceed accordingly (but of course, counsel for the father was given the opportunity to conduct his own cross-examination at the conclusion of cross-examination of the mother by the ICL).
Notwithstanding the way the matter proceeded, I am satisfied that with the assistance of the ICL, all issues were presented in a way that competently ventilated the key issues for the father under those difficult circumstances, and I am satisfied that counsel for the father presented his case in a way that further ventilated the key issues for the father in circumstances where the ICL was not necessarily there to run the father's case for him.
As these reasons progress it will become apparent that the father is quick to blame others for events including the outcome of these proceedings. I make the comment here that the father has been hoisted by his own petard of lies, manipulation and deceit, which have nothing to do with the way the case proceeded.
It is very rare in a case where I say that in every area where there is a dispute between the parents as to the facts that I simply prefer the evidence of one party. My usual practice is to examine each key event and make findings in relation to the same. However, the father has been untruthful in his affidavit material, untruthful as to his circumstances, and lingers in denial until faced with incontrovertible evidence that issues have occurred, such that, I cannot be satisfied that he is truthful with respect to controversies unless the mother agrees as to what happened.
I have also had the opportunity to observe the parents give evidence. The court generally avoids making adverse credit findings if a case can be otherwise decided (Adamson & Adamson [2014] FamCAFC 232; (2014) FLC 93-622, at [89]-[90]). Here, it is necessary to make credit findings. I cannot reconcile the parents' accounts of the pre-separation relationship merely as differences of perception. The mother makes allegations that the father largely denies, and the safety analysis at the centre of this case revolves around which (if either) account I accept. I discuss the parents' evidence in detail below, but in general I have found that the father's evidence was not credible, and the mother impressed as a witness of truth. In general terms, I prefer the mother's account of key events.

[38]

The matter was originally set down for final hearing to commence on 16 June 2025. On the first day of trial the mother sought to tender 12 audio recordings (and an additional recording in evidence). There were 24 audio recordings in total. During the second trial I pointed out to counsel for the father that his cross-examination was not restricted to the 12 audio recordings sought to be tendered by the mother, that cross-examination is at large and that he was welcome to cross-examine on other recordings as he saw fit.
Returning to the 16 June 2025 scheduled hearing those audio recordings were provided on the morning of the scheduled trial, the same day the mother's solicitor also filed an affidavit annexing a transcription of the 12 audio recordings (exhibit M-1).
The father objected to the mother adducing the recordings on the basis that he was not aware that the mother was recording conversations on her mobile telephone and that therefore constituted an offence under section 4 of the Surveillance Devices Act 2016 (SA) ('Surveillance Act'). His contention was that the recordings were illegally obtained and therefore should not be admitted into evidence. The father also objected to the audio recordings on the basis that the mother had filed an undertaking as to disclosure on 24 April 2025 certifying that she had complied with her duty of disclosure. I was and continue to be critical of the mother and her legal practitioners for providing the recordings to the father and the ICL on the morning of the first scheduled final hearing.
On 17 June the court ordered the mother file an affidavit dealing with the audio recordings upon which she sought to rely in the proceedings. The court noted: -
1. Each of the parties through their Counsel have consented for Her Honour Justice Stewart to listen to the recordings prior to the adjourned dated (including with the aid of transcripts), as the content of the recordings may impact on whether or not the Mother had a lawful interest in making the recording, and in the event that section 138 of the Evidence Act 1995 (Cth) is engaged, what the probative value of the recording may be.
Having secured the consent of all parties to listen to the recordings that were sought to be tendered, I listened to those recordings, which in total were approximately four hours long in order to ascertain whether the audio recordings fall with the exceptions of section 4(2)(a) of the Surveillance Act or alternatively whether the recordings were admissible pursuant to section 138 of Evidence Act 1995 (Cth).
Section 4(2)(a) of the Surveillance Act provides as follows:-

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There is no doubt that the father did not provide the mother express consent to being recorded. With respect to implied consent, throughout the course of the later recordings it appears the father may have known the mother was recording. It raises the question, if the father knew the mother was recording, did he impliedly consent? Given the nature of this case, it was not an implied consent (section 4(2)(a)(i)).
The real issue is whether the use of the device was reasonably necessary for the protection of the mother's lawful interests (section 4(2)(a)(ii)). It would be a strange circumstance if the protection of yourself from family violence, in whatever nature it occurs, was not deemed a lawful interest. Family violence is a scourge on our society which often occurs behind closed doors, and it is often difficult for one or either of the parties to establish family violence allegations in all its various guises. I am required to take the mother's case at its highest, in circumstances where she makes allegations, she has been a victim of family violence. Family violence occurs on a continuum and therefore all the recordings should be admitted.
First and foremost, I am satisfied that the transcription of the recordings is largely accurate and although I noticed a number of small errors as I was listening and reading the transcripts at the same time, none of those errors were significant. I also noted that the bland nature of reading a transcript of recordings belies my finding that the father exhibited numerous acts of family violence both during the recordings and made admissions with respect to prior family violence notwithstanding his denial of that family violence in his affidavit material and during the course of the proceedings. The nature of the recordings was shocking to hear and exhibited the real nature of what life was like for the mother in this home. The father's tone when dealing with the mother was at times aggressive. My observation is that in the vast majority of the recordings the mother is being talked at, rather than being communicated with. The father was dismissive of the mother's experiences most particularly in the recording of 11 June 2022, which I shall come to.
The father attempts to manipulate the mother. One of the recordings is demonstrative of one of the complaints of the mother and that is that the father would keep her sitting there for hours whilst talking at her in an endeavour to both berate her and convince her to do things his way.
In many respects the recordings, illustrate what we as lawyers always know, that is that affidavit material cannot necessarily accurately convey what goes on behind closed doors. These recordings represented a smoking gun for the mother in the presentation of her case.
That said, the court warns litigants of the potential double-edged sword of recording in litigation. Recordings are generally one-sided and can lack context. Courts must interpret them carefully and may not necessarily reach the conclusions advocated by the party submitting the recording. Whilst I am always conscious that people who record have the benefit of knowing that what they say might be closely examined by a listener these recordings are of such significance that they need to be examined in detail in the context of the allegations and concerns raised in the case.
In listening to the recordings the mother's verbal presentation at least, did not seem to be contrived. Accordingly, there will be some reference to those recordings throughout. Whilst I was critical of the mother for providing the recordings to father and ICL on the morning of trial I was satisfied that the recordings were admissible pursuant to the exceptions in section 4(2)(a) of the Surveillance Act and I accept that the 12 recordings were all reasonably necessary to protect the mother's lawful interests.
Pursuant to section 138 of the Evidence Act 1995 (Cth), I am satisfied that the desirability of admitting the recordings outweighs the undesirability of admitting the recordings that has been obtained in the way in which the evidence was obtained.
The objection was disallowed and that goes to the issue of costs rather than admissibility.
The recordings were marked into evidence as exhibit M-65 and marked A-L respectively. Whilst the transcriptions (exhibit M-1) have been used as an aide throughout the trial the evidence is the recordings.
In a moment, I shall turn to a narrative and issues in these proceedings. However, by way of introduction, I have reached the following findings and conclusions: -

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The father relied on his evidence and was cross-examined.
In stark contrast to the mother's evidence, the father was closed, somewhat wooden and avoidant.
The father stated that he suffered emotional and psychological abuse at the hands of the mother during their relationship and denies all allegations of family violence apart from two incidents, to which he said occurred not in the way described by the mother, but occurred out of his own frustration and were not intended to intimidate the mother. The father admitted to punching two holes in the wall and not multiple times as alleged by the mother.
The father either denied allegations put to him by counsel for the mother or asserted that such allegations were made up. As his cross-examination progressed and as it became apparent that his credit was seriously in issue the father retreated to the sanctuary of having a faulty memory, notwithstanding his assurance to me the previous day that his memory was fine and that he had a clear recollection of key events. When explaining his faulty memory and his inability to recall events he endeavoured to assert that he had been on a cocktail of medications which impacted on his capacity to function at or around the time of separation due to an injury on his hand that he had sustained during his employment. His hand injury becomes significant in terms of his presentation and his initial capacity to parent X both during the relationship (post the injury) and his failure to disclose that incapacity in the period both immediately subsequent to separation and also in the early interlocutory stages of these proceedings where he made no disclosures of an impaired capacity and again attempted to externalise the allegations directed towards the mother and her incapacity without acknowledging his own.
Compared to his presentation on the first day of cross-examination on the second day the father stated that he could not recall facts that occurred at a similar time that he seemed so certain about the day prior.
On the second day, after having a clear voice throughout the first day of his evidence the father was whispering and appeared to have visibly deteriorated overnight. However, when the father was on more solid ground in the questioning, he became louder and more robust.
Although the father did express that he was remorseful with respect to the incidents that he can recall, I had no sense that such expressions of remorse were genuine, and they arose at times when he was clearly challenged about the nature of his evidence. His expression of remorse was in my view, another mechanism by which he sought to minimise the significance of the family violence perpetrated on the mother in a court context.
His asserted contrition was reactive, disingenuous and struck as hollow.
I will examine the father's evidence in more detail throughout the course of these reasons.

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Mr F regards himself as X's stepfather. He has his own home with plenty of space for X and X has his own bedroom, with various toys and activities for use within the home, including a front and backyard with outdoor activities.
The mother and Mr F introduced Mr F in a gentle way, starting with him popping in and visiting and after a period of adjustment and friendship developing between X and he, the occasional sleepover at X and the mother's home and Mr F's home. He deposes to having a close relationship with X and provides support to the mother including with attendance at medical appointments. He has also developed knowledge of X's developmental needs by liaising with X's medical and allied health professionals to learn how to support mother and son. He is involved in X's care including school drop off and pick up where required, especially because he has some flexibility with his work commitments.
He deposes to some concerns he has with respect to the father, including a concern that the father was in Suburb HH on the first day that he met X. He said that he saw that the father had a phone in his hand and was filming the three and then directed a casual salute gesture at them. This incident was inserted into his affidavit as the mother makes an allegation that the father has her under surveillance. Although Mr F tried to assure the mother that the father's presence on that day was a coincidence (as the mother was shaken and scared by the encounter) it is obvious from the tenor of his evidence that he did not regard the encounter as being a coincidence at all. He speaks of aggressive behaviour and intimidating behaviour from the father at handovers.
The evidence of Mr F is corroborative of the mother's narrative. For instance, he referred to a note in X's backpack stating that the mother's car was parked at his parent's house in circumstances where no one was aware of their address (exhibit M-31). He refers to and corroborates the mother's concerns in respect to overly inclusive behaviour and concerns about the administration of medication to X when it was unnecessary. He also refers to the father being aware that the family was with X at the parent's beach house. He says as follows: -
1. [The father's] acts of surveillance leave [the mother] feeling scared and unsafe, and impact her ability to fully enjoy her time with [X], as she is constantly vigilant and concerned about anything [the father] will try and use as leverage against her.
He shares the mother's concerns in relation to a number of issues, which I shall deal with later in these reasons. He speaks about the ongoing stress on the mother having to deal with the father due to a number of issues. I accept Mr F's evidence and in particular I accept that he will provide and continue to provide a supportive and protective environment for both the mother and X. He struck as a decent and hard-working man.

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The father called his partner Ms G who also struck as a decent and genuine person.
Ms G is a health professional but is currently on maternity leave after the father and Ms G welcomed their first child together in January 2025, Miss C.
Ms G was clear and concise in her evidence. Her demeanour was calm, respectful and she appeared to answer questions honestly from what appears to be the very little knowledge she has of the parents' dispute. Ms G appeared to be largely in the dark in regard to the allegations of family violence alleged by the mother.
Ms G appeared willing to promote the relationship between X and his sister C and would support the children spending time together should the father be unable to do so.
I commend counsel for the mother and the ICL in the way they conducted their cross-examination of Ms G when faced with the knowledge that she was largely unaware of the allegations in the proceedings. They made the forensic decision not to address these issues with Ms G and maintain the current integrity of Ms G and the father's relationship.
I accept the evidence of Ms G, but it is of concern to me that the father has clearly shielded Ms G from a number of the allegations in the proceedings, and in circumstances where I will move to make positive findings with respect to most of those allegations I regard this as a continuation of the father's manipulative behaviour to support his own needs and demonstrative of a continuing lack of insight, notwithstanding his continuing counselling. This appears to be a continuing theme of the father to present to those who support him with either an untruthful narrative or a narrative that is false by omission of information.
To the extent that Ms G is in the father's life and with their daughter I regard her as an asset to the father. At some point she will need to be provided with the reasons for judgment in order to understand, firstly why the court has made the decision that it has in this outcome for X, secondly to support the father in what is no doubt a very distressing outcome for him, and third, to support X in what will be distressing and confusing situation for him in moving away from the father's primary and shared care. If she does not know the reasons for that it becomes very difficult for her to support X and the father.
There was no suggestion of overt family violence behaviour within the father and Ms G's relationship and when Ms G reads these reasons, I would hope that their relationship is sufficiently strong and stable to endure beyond this litigation and the outcome.

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Ms J agreed that although the father presents as being undiagnosed with any psychiatric or psychological condition, the father presents as having some deep-seated personality traits that will be difficult to overcome. Although I have dealt with the father's untruthfulness and manipulative behaviour a major concern is that he inveigles X in these processes. X was described as a child who is very much influenced at his current age and level of development. I am concerned that as X continues to develop that he will start to model his own personality style on the father's which is flawed. Ms J told me that such a personality style can impair psychological and relationship functioning. This presents as a long-term safety risk for X.
There are a number of issues surrounding the father's evidence. Ms J was asked directly whether she directed the father to indicate on her intake form that X suffered from ADHD and GDD she said that not only was that something she would not do but that the forms are completed in her absence prior to appointments. It defies imagination that a person with Ms J's experience and expertise would impose a diagnosis on a child she is assessing which does not exist. I do not accept the father's explanation as to how the form was completed and his untruthful statement had the capacity to taint the assessment process. Finally, there is a more concerning theme which subtly permeates the father's presentation. At a time when the father had primary care of X he presents himself as the primary carer of a disabled child and a victim of life's circumstance. Not only does this display a level of grandiosity but it is reminiscent of the father's tendency to exaggerate (and fabricate with respect to the alleged cancer diagnosis) his own health problems which he is now projecting on to X.
Ms J was asked about the father's evidence that in the process of preparing her reports completing the father filled out what would seem to be an intake form prior to the preparation of the Family Report where the father described X as suffering GDD, ADHD and ADD. X has not been diagnosed with any of those conditions. Although he does suffer with some developmental deficits they are not to that level. This issue arose out of the father's evidence when, with respect to how he filled out the forms when he said: -

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Having heard the nature of how the evidence fell during the hearing, Ms J was asked to evaluate her current view as to what the best way forward for X's living and family arrangements. From her point of view the issue was vexed and I agree. She ruminated on whether X's time with the father should be reduced to daytime only every three weeks or so. Given I had thought that this may well be a case where X may need to spend no time in the father's household, Ms J said that was squarely a matter for the court and I agree. Ms J was then asked to comment on the prospect of X spending every second weekend in the father's care while establishing the mother and her household as the primary carers and primary home. She thought that even alternate weekend time Friday to Monday was a lot of time for X to have with a parent with such concerning behaviours.
Surrounding my questions on a moratorium of X spending time with his father, Ms J responded that her understanding is that the evidence doesn't support any particular timeframe for same, but that the benefit of a moratorium would be for X to settle and be reassured in his mother's care. It was for that reason that I was moved to order a three-month moratorium with X in the mother's care at the conclusion of the hearing.
In terms of X's relationship with C, Ms J said that that relationship would likely to be somewhat superficial at this stage as she is an infant.
The downsides for X are real and significant and have capacity impact on his emotional and psychological functioning but she went on to say when asked about the mother and father sharing decision making for X, Ms J's evidence was that it would be problematic given conflict issues such as the difficulties surrounding arranging the surgery that X had and Ms J's workplace finding it confusing to deal with the father in general with respect to the payment plan arrangements. Her concern is that shared decision making would be an avenue for the father to continue to attempt to control and influence the mother. At this point she supports the mother having sole parental decision making. In my view it is untenable for the mother to have to liaise with the father regarding long term decision making, not only because of her experience of the father in terms of family violence but also because the father has a personality style that will attempt to make inroads into the mother's sense of confidence and security in making such decisions for X. Although proposed, I am also not convinced that the mother should be required to seek the father's opinion with respect to prospective decision making. It seems to me that process will provide fertile ground for ongoing conflict. The mother shall simply be required to advise the father about significant decisions she has made, and she may do so through a nominee at her election.
When considering all of X's surrounding circumstances Ms J agreed that there would be a reaction akin to a grief reaction for X with respect to the separation from an enforced separation from his father and his stepmother. Whilst also acknowledging that it is not ideal that he would also be separated from his sister C, she seemed less concerned about that due to C's infancy and a relationship between the siblings in the burgeoning stages. In discussing what the downsides might be for X in a drastic change of his circumstances she listed the possible effect on his emotional functioning, his sleep regulation, his appetite and his relationship with peers. These downsides for X are real and are not ideal. Of course it would be better for X to have a fulsome, meaningful and immersed relationship with each of his parents and significant others. Ms J agreed but pointed to the obvious that this matter needs to be weighed against X's exposure to safety risks. She agreed that the father meets a large number of X's needs in certain ways. She said that X enjoys his father there is an unhealthy component of the father's behaviour where he is compromised in his ability to meet X's emotional needs. That is a factor that needs to be balanced to protect X from potential psychological harm, whilst also supporting the relationship. I concur.
Ms J pointed out that the mother presented as skilled and empathetic. I observed that when the mother gave evidence she was not overly critical of the father and the concerns that she did raise with respect to the father were child focussed rather than a meaningless attack. She observed that this did bode well for a change of residence for X in terms of the mother's ability to support X in the move in an emotionally attuned fashion.
Ms J commented on the father's lack of acknowledgement or recognition in the recordings that his behaviour both past and present was problematic. She also suggested that the father seemed to engage in impression management, as his presentation changed from her first assessment to her second assessment, seemingly to advance his case with respect to primary care of X rather than having developed any real insight into how his care of X might be problematic and damaging to X's relationship with his mother. These comments accord with my observations of the father during the hearing. He desperately tailored his proposal when he developed a sense that the proverbial writing was on the wall. I remain unconvinced that the father's position was anything except tactical and I do not believe the father has any real insight as to what the risks are for X in his care. Notwithstanding his proposals it is likely that the father will continue to harbour the view that the court and the system has got it all wrong and the result is a travesty of justice.
Ms J's observations of X with each of his parents were observed to be positive. Ms J raised concerns that his relationship with the father was not all it seemed to be. She said that X's direct responses in interview (which she said were indicative of there being some influence by the father) demonstrated there was a disconnect between what X was saying and his emotional presentation. X gave responses such as mummy had been mean and was trying to take time away appeared to be referencing adult material derived from the father. X's observed body language had him appearing stressed, tense in his body and becoming quieter which caused Ms J concern.
Ms J indicated that both parents appeared to be child focussed but there were indicators that the presentation of the father in that respect appeared to be misleading and inconsistent with his other behaviours particularly referencing family violence as an almost textbook family violence narrative. She noted that there were threats, there was intimidation, and efforts to control the mother's perception and behaviour.
She said in her evidence that: -

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(a) 2016/2017 the restaurant incident (where the mother alleges that the father grabbed her by the throat by both hands, chocked her and slammed her head into a passenger car window repeatedly after they had been at a restaurant). Denied by the father.

(b) 2018 the top of the stair's incident (where the mother alleges that the father dragged her to the top of the stairs, held her by her collar and shouted, "Do you want to die?" while partially holding the mother over the top of the stairs). Denied by the father.

(c) 2018 the nappy changing incident (where the mother alleges she was changing X's nappy on the changing table when the father became enraged, dragged her out of the room by her arms down the hallway, straddled her on the ground with legs either side of her waist as he grabbed her arms. The mother was shouting for him to stop and calling out for X (who was still on the changetable). Denied by the father.

(d) December 2018 the slapping incident (where the mother alleges that whilst holding X the father backhanded her and hit her in the face, was verbally abusive and put her down). Denied by the father.

(e) December 2021 the mother alleges the father called her a "worthless slut" grabbed her by her throat and spat in her face. Denied by the father.

(f) January 2022 the mother alleges that the father lunged at her with hands towards her throat and then lunged at her again with his fist in front of her face. Denied by the father.

(g) In March 2022 the mother alleges the father and she were arguing and he came from the ensuite and attempted to flip over the mattress while she was on the bed, but it was too heavy. He then said that he was going to "[get] you out here" and then grabbed the mother tightly by the arm and tried to lift her in a bear hug resulting in bruising and pain. Largely denied by the father save that he agreed that he removed her from his path as he was trying to leave.

(h) 11 June 2022 the push incident (where the mother alleges the father physically assaulted her by pushing her in the abdominal region when X was present and she was telling the father to stop). The father makes partial admissions to this event.

(i) 12 and 13 June 2022 - in sequalae to separation, as is evidenced in the recordings, the father undertakes threatening, manipulative interactions with the mother in an attempt to variously have the parties reconcile or have the mother removed from the home (the long weekend recordings).

(j) The mother alleged that during the relationship the father punched numerous holes in the walls, threw a medicine ball at a wall causing a hole and headbutted the wall causing a hole. The father largely denies those allegations save that during his evidence he admitted that he punched two holes in the wall out of frustration.

[67]

I will deal with specific incidents, focusing on the key incidents referred to by the parties. Some are more serious than others but when looked at as a continuum of family violence the picture becomes quite concerning.
X was born in 2018. He is currently in year 1 at P School.
The mother hoped to take 12 months maternity leave, however after feeling pressure from the father to take only 6 months, she ended up taking 7 months before returning to work. The relationship is described by the mother as quite toxic and stressful at this time.
From early 2019, X commenced attending a childcare centre five days per week.
Shortly after X commencing childcare in early 2019, the father suffered the workplace incident. It is unclear exactly how that incident occurred with various versions revolving around the father having a piece of heavy equipment dropped on his hand / wrist or his hand being slammed in a car door by a gust of wind.
Although there was family violence prior to the workplace injury it seems as the injury precipitated a deterioration in the parents relationship.
Following the injury, the mother was responsible for all parenting and home duties. Due to flare ups in the father's pain, the mother deposed: -
1. The flares would leave him bedridden or on the ground experiencing excruciating pain. He was unable to prepare food, put on socks and shoes, drive for periods longer than 10 minutes (he did, and this would cause extreme pain). He was unable to push a shopping trolley due to the vibrations, he struggled to lift/ carry [X]. I was preparing and cooking all meals, helping [the father] to eat (cutting his food) and get dressed.
On 24 May 2021, Dr Q provided a report on the father's injury, it diagnosed the father with right arm complex regional pain syndrome ('CPRS'). The report opined that the "condition is stable acknowledging that it is unlikely to change significantly in the context of chronic pain and disability" (exhibit M-2). Under the heading 'Activities and Daily Living':-

[72]

The father said "I experienced minimal side effects" from the medications. From the father's oral evidence, this is untrue.
In the father's written evidence, he said he ceased using most of the prescribed medications in mid-2023 and currently does not use any medication for management of CPRS. The father's cessation of prescribed medication, came at an interesting time, as the mother's solicitor sought that the father provide information as to the medication he was prescribed and undertake an independent assessment regarding the impact of his medication on his functioning. Letters were sent to the father's solicitor at the time on 18 May, 5 June and 22 June 2023 (exhibit M-74).
Dr K's report (exhibit M-14) said that the father told to him on 3 June 2023 he had ceased all medications, and was taking CBD oil 100mg/ml, 5mls twice daily. Dr L confirmed the father was taking the CBD oil (exhibit M-16).
The father's patient health summary from S Health Services dated [...] August 2023 (exhibit M-15) included Lactulose and Movicol (over the counter medications for constipation) and CBD100 Oral solution (Cannabidiol) 5ml Twice a day.
It is difficult to reconcile the father's assertion that he has always been the primary carer for X in terms of the physical assistance that he required at that time by the mother and the impact of his injury as he was reporting to his doctor.
The parents experienced their first separation on 14 November 2019 at a time when the father was allegedly experiencing debilitating pain. On that date, the parents had an argument, and the father became very angry. The mother says she was worried the father would become physical if she tried to take X with her and she left the home and stayed with her mother.
The parties were separated for approximately three months, during which time the mother cared for X three or four nights per week collecting him to or from the father or childcare.
During this first separation the mother alleges the father engaged in parental gatekeeping in terms of the amount of time that he was prepared to "allow her to spend time with X."
The father's version of events in respect to that earlier separation is that the mother was unable to cope with his pain and suffering as a result of his workplace injury and therefore left. This is implausible.
In early 2020, the mother alleges, and I accept, that the father told her he had liver and pancreatic cancer, and that he had three to six months to live.
He told her that he was having chemotherapy and radiation treatment and could not allow the mother to attend hospital with him as the COVID-19 pandemic had hit. The father's statements to the mother were false and designed to induce the mother to return to the relationship.
The parties separated on 11 June 2022 and as will become relevant later in these reasons that was a long weekend.
The father as I said earlier curtailed the mother's time with X following separation as the mother left the family home and left X with the father.
Following the mother leaving the family home in early July and initiating proceedings the father allowed the mother to see X on three occasions: -

[122]

The recording evidences a position that is inconsistent with the father's trial affidavit (at [215]) where he said "I did not create or present the documents the mother refers to. I do not know where these documents came from, and I deny giving her anything titled "Financial Agreement" or a Will as she describes."
In cross-examination by counsel for the mother, the father denies that the documents he was talking about in the recording were the documents referred to in exhibit M-8. I asked the father why he presented the mother with two options, and his reply was "I wanted to gain her trust". Whilst the father did not have the benefit of the recordings prior to affirming his affidavit on 6 June 2025, his statements are in abject contrast to the truth.
The two draft financial agreements assumed some prominence during the hearing. On the first day of the father's evidence, he provided the court with a detailed narrative following a query from me about a solicitor preparing those documents on such short notice. He told me that he had attended the solicitor's office on the weekend. I asked him how much he had been charged for the preparation of the documents, and he told me it was approximately $700. Even that struck as odd as it seems an extraordinarily low charge for a solicitor working on a long weekend to prepare two draft financial agreements. The father was able to provide a detailed explanation about the advice he received and maintained the fiction of the production and preparation of those documents on the first day.
The difficultly with that evidence is that it became clear during cross-examination of the father that the mother put in issue that he had even seen a solicitor at all and identical precedent copies of the documents that had been produced were located on a website by the mother and/or her solicitors. The implication of that line of question was clearly that not only had the father been untruthful about seeing a solicitor (in the face of not only his evidence but the contents of the recordings) but also, he had produced the documents himself.
In order to address this controversy, which was particularly serious having regard to the truthfulness of the father's evidence and the attempts to manipulate the mother with false information, the court granted leave to the lawyers for the mother to issue a subpoena for the production of invoice documents with respect to any attendance by the solicitor of the father over that weekend. With due credit to the solicitor concerned the subpoena was returned on the second day of the husband's evidence. The only invoice rendered by AA Lawyers to the father was on 28 November 2019 totalling $770.00 for services re: de facto - parenting and property matters (exhibit F-40).
The contents of the returned subpoena information confirmed the father was untruthful in his comments to the mother in 2022 when he provided her the legal documents and again in cross examination. Counsel for the ICL advised the father that there is nothing in the subpoenaed file from AA Lawyers indicating that the documents were created by them and that the father "made them up". The father says, "I can see that yeah...I can see that yep" and then adds "I don't recall so if I say I made them up then I would be lying". I reminded the father that he had earlier told me that he paid $700 for the financial agreements, but there was nothing on the AA Lawyers file to support this. His response was that he was paying for work cover lawyers and that he probably should not have said an amount.
The ICL submitted that the father's manipulative behaviour is demonstrative of that he has little insight and all it says about him is that he has learnt nothing. Although I am not fond of this term I am of the view that the father was gaslighting the mother in the truest sense of the word. His behaviour in both presenting the agreements, the alleged legal advice and scenarios was designed to frighten the mother into acceding to his desires with false information and threats.
The website referred to above is a website called LawDepot.com and the mother tendered (exhibits M-67 and M-68) two documents. This occurred on the second day. At the commencement of evidence on the second day the father's demeanour had changed dramatically from the day before which struck as odd. Whereas the day before he had been quite strident and certain in the way he gave his evidence, on the second day he appeared quite meekly and was also whispering in the witness box. Notwithstanding his detailed narrative with respect to the two agreements when asked by counsel for the mother if he lied to the mother about the documents being prepared by a lawyer his response was that he could not remember because of the pain killers he was taking at the time and the different side effects that they caused. He went on to deny that he was using the cocktail of drugs effects as an excuse of giving untruthful evidence to the court.
Although this presents as a serious and somewhat bizarre factual conclusion to reach, I am well satisfied that: -

[150]

(a) During electronic communication between X and the father, the father asked where he was and if he was at Ms EE and Mr FF's beach house (being Mr F's parents). When X replied no, the father questioned him saying "are you telling fibs? Where are you?". During another of the father's telephone calls with X the father sent a lengthy text message to the mother questioning whether she was nearby taking notes during the conversation between the father and X.

(b) In the Easter 2024 holiday period, when X was in the care of the mother, again during a telephone conversation with the father, comments surrounding X's whereabouts were made "I know where you are, you're near the [...]". This made the mother fearful for their safety.

(c) When the mother introduced her partner Mr F to X on 20 October 2022 in Suburb HH the three had gone to get ice creams and walk the family dog together. As the group was about to cross the road, the mother noticed the father pull up in his car at the intersection directly in front of them, with his phone in his hand filming them. The mother picked up X and changed direction to walk away from where the father was, she believes that X did not see his father as he did not make a comment about it. Although the father agreed that he had been in the area where the mother was, his evidence was that it was simply a coincidence. In the circumstances of this case and at a time when it was the first time Mr F had met X it strikes as suspiciously non coincidental as to how the meeting occurred.

(d) The mother found a handwritten sticky note in X's bag that read "supposed car problems even though parked at [Mr F's] parents [X] most likely there". Prior to this she had advised the father she was having car troubles; she had not advised the father that she had parked her car at Mr F's parents' home. During evidence Mr F was perplexed as to how the father would know where his parents lived and he was intimidated by the fact that he did. Although the father denied writing this sticky note (exhibit M-31) and even if that is true (although the mother identified the father's handwriting) his statement misses the point completely. On what basis would the father have any grounds to record such an event?

(e) In September 2023, the mother took X to a doctor's appointment to obtain an EpiPen to keep in her home. When she arrived, the father was already at the clinic, blocking her entry to the doorway. From the mother's point of view the father should not have been aware that the mother or X would have been at the clinic. When challenged the father said that his arrival at the medical clinic was coincidental and that he did not know the mother would be at the clinic with X. This is difficult to accept because his appointment was for some time later although he tried to convince me that he arrives for his doctor's appointment 45 minutes early. I find that statement inherently unbelievable.

(f) Again, sometime around September 2023 the mother ran into old mutual friends of she and the father and subsequently caught up with them. When she caught up with them, they told her they had not seen the father for a very long time. The very next day one of those friends contacted the mother via text message advising her that the father had contacted them asking them for help to pick up a motor vehicle. The friend also advised that during the collection of the motor vehicle the father pointed out the mother's home stating "that's where my baby mummy lives". This came at a point in time where the mother thought that the father was unaware of her home address and there was an order in place preventing him from attending at or near her home (exhibit M-32). It does seem like a remarkable coincidence that the father contacted those old friends the very next day.

[160]

There are instances where it is apparent that the father has exaggerated and sought to mislead with respect to his health. The first and obvious instance of that is his false reporting of a terminal cancer diagnosis which I have discussed. But in addition to that it seems that the father has exaggerated his health concerns in order to achieve a more favourable personal injuries result. I am not suggesting that the father does not suffer an injury, but the mother gave evidence that she witnessed the father purposely doing acts to trigger flare ups of his injury before medical appointments. For instance, she said he would put his brace on tightly and heat up his arm on the heater, telling the mother that his lawyer told him to do this,
As I have set out the father's evidence with respect to his health in the immediate post separation period was not disclosed if it is correct that his cocktail of medication was such that he now has a problem with his memory. I note that if the father was actually impaired to that extent he did not disclose that in his initial material which is of concern. If it is true that is a significant omission as to his capacity to be the primary carer of X at a time when he was seeking to restrict the mother's time with X and alleging that the mother was a risk to X.
It is also curious that in or around June 2023, and at a time when the mother was seeking information about the father's use of prescribed medication that he seems to have had what could be termed as a miraculous recovery such that he was able to cease most prescribed medication in mid-2023.
With respect to the father's reported terminal cancer diagnosis, I am well satisfied at the information that he provided to the mother was false and designed to elicit sympathy and a reconciliation at that time. This is consistent with the father's tendency to portray himself as a victim in a manipulative fashion. In relation to his further health conditions the true picture cannot be ascertained given the father's tendency to tailor his reports of his health to his audience.

[161]

As I said I do accept that the father has an injury, it is unclear precisely how the injury occurred. The mother gave evidence that at one point the father reported a 200 kilogram piece of equipment being dropped onto the father's wrist during the course of his employment and another point she recorded his hand had been slammed in a car door. The mother's evidence that the father's explanation as to how the injury occurred changed, but ultimately she did believe that he had suffered an injury. This occurred during the relationship and if she challenged the father on how the injury occurred he would become agitated with her. It was suggested by the ICL to the mother that there may have been a possibility that the father's injury was self-inflicted, however that suggestion does not go beyond mere speculation and there is insufficient evidence to make that finding. In any event the mother replied not to my knowledge. Bearing in mind that the injury occurred during the parties' relationship and beyond a sympathy grab and portraying himself as a victim it seems that there would be little motivation for the father to seriously exaggerate his pain within the home.
The mother describes a circumstance where after the injury although the father was able to drive the mother to work and take X to childcare she had to assume primary care for X. She described the father struggling to life X due to his pain and at that point not only did the mother assume primary care for X but the father required much assistance in his own daily activities including "preparing and cutting his food into bite sized pieces, helping him wash his hair, put on shoes, lifting heavy items, cleaning and other daily living practices."
Although there was a suggestion that the father pursued his work cover claim because he had been terminated from his employment I note that he did successfully pursue a claim for unfair dismissal and I note he did successfully achieve a work cover payout (although he has not made full and frank disclosure as the extent of that payout to the mother).

[169]

In contemplating the foresaid matters, section 60CC(2A) outlines, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child together with any family violence order that current or has previously applied to a child, or a member of the child's family.
Section 60CG of the Act further requires a Court when considering what parenting order to make to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence and is consistent with any family violence order.
In considering what is in X's best interests the Act specifies a non-hierarchical criterion which is considered below.
There is no allegation that the father has directly physically harmed X or intentionally harmed X but there is much evidence as I have discussed that he has put X in harm's way in a physical sense when he has inflicted family violence on the mother. There is also much evidence that the father has exposed X to family violence, which is emotionally and psychologically harmful for him. Whilst the father appears to have adequately provided for X's day-to-day personal and financial needs, in that there is no report that he has not, his evidence during the trial concerns me. If his parenting capacity was as impaired as he now alleges due to medication there is a risk that at that time his care of X had a real potential to fall short.
In terms of the mother and notwithstanding the allegations of the father early in the proceedings in regard to her capacity to care I find that she has a better than adequate capacity to care for X. She loves him and her capacity to care for his emotional and psychological care is superior to the fathers. I find that capacity endures under the most difficult of circumstances where she has been the victim of long-term family violence perpetrated by the father against her and in circumstances where the after effects of that violence continues to impact upon her.
The father would seek to cast himself as a victim of family violence with the mother as perpetrator and the mother appropriately conceded that their relationship was toxic with arguments and fighting which went both ways. Nevertheless, in my view the mother's actions were reactive to the very significant family violence she endured. It is fatuous to suggest that when faced with the actions of the father as I have described that the mother should sit mute and not try to defend herself. What is also fatuous is a suggestion that because the mother did not take X when she left the relationship that is somehow a concession by her that the father was a conceded superior carer for him at that time. As I have said I observed the mother to be quite demure and placid and worn down by the fathers' actions in the relationship and what she has endured post separation in terms of this litigation where the father sought to curtail her relationship with X unnecessarily. It seems to me that even the father's conduct within this litigation has been designed to control and manipulate the mother's relationship with X and the mother herself which in my view constitutes the emergence of a different form of family violence. Once the father was rendered impotent to be able to inflict family violence on the mother as he had before, the father had to find a different way, and he has made good on his threat in recording G: -

[173]

The critical issue in this case is the safety of X. For the reasons I have already set out I am of the view that the father presents a psychological and emotional risk to X and that in the mother's care X was a witness to family violence. There is no evidence that there is family violence in the father's current relationship with his partner. I am not satisfied that the father has developed any real cogent insight into what X experienced in the relationship by exposure to that. I am satisfied that X continues to be exposed to family violence and that the father presents an ongoing risk of exposure to family violence to X. I am satisfied that the father surveils the mother and that his conduct continues to be manipulative.
As the mother is a victim survivor of family violence and will be the primary carer of X her welfare is central to X's welfare she needs to be protected and needs to be assured in her role as his primary carer. The mother's welfare is intrinsically linked up with X's welfare. She needs to be the best parent she can possibly be. If the father continues to intimidate the mother it will cause the mother fear and anxiety and as such family violence will continue to affect X.
In that sense I have considered what the best arrangements might be for X. I have decided that at this point it is not in X's best interest to cease all contact with his father. I am satisfied that X has a loving relationship with his father and if it is at all possible that relationship should continue. I am however, concerned that this is almost a leap of faith in terms of the father's capacity to refrain from the behaviours that he has indulged in in the past. In that sense, I propose that any future proceedings relating to X be brought before me. The father is on notice that this proceeding has almost resulted in an immediate suspension of his time with X however I am satisfied that it is not yet at that point for X's sake (and not for the father's). However, I am still concerned that the father is a risk of harm to X.
In assessing if the father is an unacceptable risk, I weigh what is no doubt an adjustment for X if the father is excised from his life and the psychological impact of that circumstance in the short, medium and long term.
It is imperative that X is installed in the mother's household with her as the primary carer.
I would also hope that the conclusion of these proceedings will assist a healing process with the mother which may make her stronger, more assertive and able to resist the father's machinations.
The findings that are made are validations of the mothers experience. I cannot discount that the father will be either able or willing to address the serious findings I have made. I hope he does for X's sake.
Nevertheless, at this point in time I do think X deserves an opportunity to have a relationship with his father and the paternal family but I do not discount that it may be necessary to reconsider this if the father's presentation does not improve.

[181]

The critical issue in this case is ensuring that X has a safe relationship with both his mother and his father.
In order to achieve that X needs to be well established in his mother's primary care and it is for that reasons that I have determined that for the best way for that to occur is by X spending each alternate fortnight with the father from Friday to Monday with a changeover with school if that is possible. In making these orders, I am conscious it is a significant reduction in time for X to spend with his father, stepmother and C but I concur with Ms J that it is necessary to do so for his emotional and psychological health. I am also concerned to protect the mother's relationship with X as his primary carer without interference by the father but in a way that will ameliorate the natural distress that X will feel being separated from the father and the paternal family.
The previously ordered moratorium will expire this week, and the father's time should commence on 5 December 2025. I do not propose to extend the father's time in the long summer holidays in 2025/2026 in order to establish X firmly in his mother's care and allow him to reconnect with the father having regard to the three-month moratorium previously imposed.
As and from first term holidays 2026, X's time with the father can be extended by an additional day attached to his weekend and as and from the long summer holidays 2026/2027 that can be extended for an additional 2 days.
Although the mother applied for a staging up of time, having regard to X's previous relationship with father I am not satisfied that that is required and it has the potential of tantalising X with the prospect of a more fulsome relationship with the father. At this point in my view, it is important for X to come to the realisation that his time with the father will be just as ordered so he can establish some sort of routine as he heads into his late primary school years.
I also propose to make an order restraining the parties from age-inappropriate video and online content. The mother has alleged that during the limited telephone calls she has had with X as discussed that she could see age-inappropriate material playing in the background. Although that was denied by the father on the basis that I am satisfied that the mother is a truthful witness I accept her evidence but more importantly I accept her concern about X being exposed to such material. X is a child who faces some developmental challenges and accordingly his capacity to understand and process such material may be limited. In any event for any child, it is important that they not be exposed to inappropriate electronic content.

Kunkle & Suss [2025] FedCFamC1F 870 (1 December 2025)

At a glance

Court

Decision date

Before

Source

Judgment (185 paragraphs)

Legislation Cited (4)