Mathis & Mathis [2025] FedCFamC1F 308 (13 May 2025)

1. The applicant father relied on the following documents:
   • Further Amended Initiating application filed 11 March 2025;
   • Affidavit of Mr Mathis filed 11 February 2025;
   • Affidavit of Ms C filed 11 February 2025;
   • Affidavit of Ms J filed 11 February 2025;
   • Affidavit of Ms K filed 11 February 2025; and
   • Written submissions handed up 28 April 2025.
2. Ms K spoke about her Intensive Reunification Therapy, but in cross-examination she confirmed, as did the Report Writer, Ms D, that that Therapy was for refuse/resist matters (formerly known as Parental Alienation); that is, where a child unreasonably refuses or resists another parent for no logical reason. This is not one of those matters - X misses his father and wants to see him. Ultimately, the father did not seek orders for this kind of therapy and I need say no more about Ms K.
3. Ms J is the father's therapist and he obviously gets support from her. It will be a matter for the father if he continues seeing her. No one made any submissions about Ms J. All I need observe is the father has rapport with a therapist and will order he may provide a copy of these Reasons to her if he wishes, given he will likely be upset about the outcome.
4. The respondent mother relied on the following documents:
   • Affidavit of Ms Mathis filed 12 February 2025;
   • Affidavit of Ms G filed 11 February 2025;
   • Amended Response to Initiating Applicant filed 10 March 2025;
   • Notice of Risk filed 28 March 2024; and
   • Affidavit of Ms Mathis affirmed 28 April 2025 as part of her application to re-open which was not opposed.
5. Ms G shares the house with the mother, X and the foster children. With the father consenting to an order that X live with the mother, any criticism of Ms G falls away. Suffice to say, I conclude she is a considerable support to the mother with a busy household of four children but understands she does not stand in the shoes of a parent.
6. The Independent Children's Lawyer relied on the following Family Reports:
   • Affidavit of Ms D filed 21 October 2022; and
   • Affidavit of Ms D filed 20 September 2024.
7. The parties, their witnesses and the Family Report Writer were all cross-examined.
8. As required by r 8.15(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"), various annexures to the parties' and experts' affidavits became Exhibits. In all, the parties tendered 33 Exhibits.

1. Given the gravity of the matters alleged by the mother, it is useful to set out s 140 of the Evidence Act 1995 (Cth) ("the Evidence Act"):

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged.

1. It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon,[14] Gleeson CJ, McHugh and Gummow JJ said this:

...A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.

1. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd,[15] Mahoney JA said this:

It is not the duty of the judge to decide every matter which is raised in argument.

...

Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard ... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear...

1. Section 60CG of the Family Law Act 1975 (Cth) ("the Act") imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
2. Section 65D(1) of the Act provides that this Court may make such parenting orders as it thinks proper (subject to s 65DAB of the Act, which is irrelevant in this matter). A "parenting order" is defined in s 64B of the Act.
3. Section 60B of the Act sets out the objects of Part VII of the Act, and that is:

The objects of this Part are:

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

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

1. Section 60CA of the Act provides that the child's best interests are a paramount consideration in making a parenting order. Section 60CC of the Act addresses those best interests and provides:

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

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

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

1. The provisions in s 60CC(4) do not apply here. As for s 60CC(1)(b) and (3), X is not an Aboriginal or Torres Strait Islander child.

1. The parties provided a draft trial plan on 17 March 2024, but revised that with reduced issues on 28 April 2024. The father abandoned the issues which had asked if the mother was an unacceptable risk to the child and agreed the issue relating to whom the child would live with was redundant, given the consent final order X live with the mother. The Issues became:[16]
   1. Is the child at unacceptable risk of suffering significant physical and/or emotional and/or psychological harm in the father's care as a result of the risk of sexual abuse?
   2. Is the child at unacceptable risk of suffering significant emotional and/or psychological harm in the father's care as a result of emotional abuse or neglect?

3. What is each parent's capacity to meet the child's needs?

1. What capacity does each parent have to support/facilitate the relationship between the child and the other parent?

5. What time should the children [sic] spend with the non-resident parent?

6. Which parent, or both, should make the long-term decisions for the child?

1. I will deal with Issues 1 and 2 under the s 60CC(2)(a) heading although acknowledge matters considered within this context can flow over to other s 60CC factors such as capacity to parent. I will consider Issue 3 under s 60CC(2)(c) and (d), and Issue 4 under s 60CC(2)(e).
2. Issues 5 and 6 will be considered under the disposition section of these reasons, as the answers to those questions are not just informed by my conclusions about risk and magnitude, but ought be informed by all relevant s 60CC considerations. As was said in M & M [17] at [19] and [21] (albeit applying to sexual abuse but relevant to all forms of alleged abuse of a child[18]):

The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

...

the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child.

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child).

1. Abuse is defined in s 4 of the Act and family violence in s 4AB of the Act.
2. Section 60CC(2)(a) is informed by subsection (2A) which provides:

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

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

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

_Issue 1: Is the child at unacceptable risk of suffering significant physical and/or emotional and/or psychological harm in the father's care as a result of the risk of sexual abuse?

Issue 2: Is the child at unacceptable risk of suffering significant emotional and/or psychological harm in the father's care as a result of emotional abuse or neglect?_

1. I will deal with Issues 1 and 2 together, because there is a commonality of evidence across both.
2. Turning to Exhibit 31, the mother says of Issue 1:

That the Father poses an unacceptable risk of physical harm from sexual abuse - that is, physical abuse of the child that is motivated by a desire to obtain sexual gratification, or is otherwise sexual in nature; and/or

That the Father poses an unacceptable risk of psychological or emotional harm from sexual abuse, or physical abuse which is not sexual in nature.

That the Father poses a risk, but not an unacceptable risk, of psychological or emotional harm from sexual abuse (as a result of exposing the child to sexually inappropriate content - the Kancho video)

That the Father poses an unacceptable risk of psychological or emotional harm from neglect (in the form of failing to protect the child from exposure to inappropriate behaviour / inappropriate material).

1. The father seeks positive findings that he has not sexually abused the child, the child has not sexually abused him (not that anyone submitted that) and he is not any kind of unacceptable risk to the child.[19]
2. A positive finding of abuse or family violence should not be made unless the court is satisfied on the balance of probabilities,[20] including but not limited to the matters set out in s 140(2). Further, proof to the satisfaction of the court "should not be produced by inexact proofs, indefinite testimony, or indirect inferences".[21]
3. Any factual findings inform the task of the risk assessment predicting the safety of the child or the parent from family violence and/or abuse. That is a separate, future looking, predictive consideration, not governed by findings on the balance of probabilities. If risk is found, that then requires an assessment of the magnitude of the risk. Or as was neatly said in Isles & Nelissen:[22]
   1. Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children's sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
4. Then, a finding of unacceptable risk necessarily requires a consideration of the means which might be adequate to sufficiently mitigate the risk to an acceptable level.[23] Or, as was said by the Full Court in Blinko & Blinko:[24]

A consideration of risk, and factors which impact upon or ameliorate the risk, will in most cases be inextricably linked. That is because "[t]he object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of 'benefit to the child'".

1. On or about 27 August 2023,[25] the father and X watched several completely puerile TikTok videos, which the father called "prank" videos. X had just turned 8 years old. Each video involved adults sitting in a supposed library and picking cards from a stack. The person who selected a specific card was then deemed "the unlucky player", to use the father's phrase in his affidavit. That "unlucky player" was then subjected to demeaning and humiliating acts, all of which was filmed and disseminated.
2. In his affidavit, the father downplayed the videos and called them "fairly harmless", and that X thought they were hysterical.[26]
3. The father had not disclosed the videos to the mother or ICL even though he gave them to his solicitor "about 12 months" ago. During his cross-examination, a call was made for the videos, and they were produced during the trial and played. The legal representatives prepared an agreed transcript of the English sub-titles.[27]
4. The father and X watched a video called "Electric Shock Chair"[28] which showed the loser being electrocuted in a metal chair. The video subtitles include the following translations: "is this the thing they use for the death penalty"; "this is an execution"; "this is how they execute people in some countries"; "Please don't do it'; "stick him".[29] It is not clear whether the child read the translated English subtitles, but the father described the child's written comprehension as "pretty good". Even if X did not read the subtitles, the visuals in the video are plainly inappropriate. X watched the whole video with the father and the father did not think to stop playing the video at any stage or that X might try to copy this potentially tragic conduct. In cross-examination he agreed he had plenty of time when watching the video to work out it was inappropriate.
5. They watched a video called "Smelly Mask",[30] which depicted a disposable face mask being pulled tightly against the "unlucky player's" face with an unknown object in the lining of the mask. During the video the player makes loud sounds and physically struggles against the mask, which was being forced over his face. The other players laugh whilst watching the "unlucky player" struggle as the mask is being pulled taunt over his face. There are no English subtitles on this video. It is common ground X has respiratory difficulties. Any attempt to emulate this could lead to tragedy.
6. The father and X also watched a video called "Sweat old man",[31] where the "unlucky player" (per the father's description) has a clear cylinder placed over his head and apparently sweaty, smelly clothing is placed in the cylinder through a lid (like a small trap door), which is then closed. The smell is described as "it stinks" and will "make you puke". The victim then had a balloon put in his mouth and it was pumped up. Again, the father did not think to stop the video at any time they watched it, and did not think X would try to copycat this. It is again highlighted that X has significant respiratory issues. In cross-examination the father accepted the video was scary and confronting.
7. The last video they watched was called "Kancho" and "Kid Enema"[32] - the name "Kid Enema" comes from the translated English subtitles on the relevant Exhibit 9 video.
8. The father said the "Kid Enema" sub-title did not ring any alarm bells for him at the time. IN the video, the "unlucky" adult was on all fours with the child brought into the scene by other adults and placed behind the adult on all fours; that should have been a flag to the father to stop the video, but he did not. The adults and child were clothed. At one point, the adult stood up but was told to get back down on all fours. Alarm bells should have again been ringing for the father, but they were not. The "unlucky" adult said in sub-titles, "I have anal fistula you know", but the father did not remember reading that. The child on screen was coerced[33] to hold his hands like a gun, with two fingers sticking out and then stick his fingers in the adult's clothed anus area. The translation says, "my god that hurts ... he got my balls". The father agreed in cross-examination that he had time to stop the video but did not.
9. Prior to the videos being produced and played in court, the father described the "Kid Enema" video and said it involved approximately six people of his age and a "younger person" - which sounded like younger, relative to him.
10. In cross-examination, the father was asked to give an approximate age and said, "early teens". After the video was played, the father conceded the child was about X's age. He accepted the child was "coerced" into poking the adult's anus area.
11. In other words, this was exploitation of a child, and one who had no capacity whatsoever to consent to the conduct compelled of him by adults nor to consent to the public dissemination of his image and coerced conduct. The father allowed X to watch this gross power imbalance, and exploitation of a child about X's age. This is not behaviour a child should learn is OK or even "hilarious". It also says to X that adults can make children do inappropriate things involving "sensitive private body parts" - which, ironically, was the father's admonition of X when X poked the father in the bottom cheek[34] after watching exactly that in the "Kid Enema" video.
12. The father said he did not think X would copycat the videos, because they apparently talked about them being inappropriate and the father said X understood that. I do not accept that - on the father's own evidence, the child copycatted the "Kid enema" video by poking his father in the bottom cheek several times and tried to do so a further time.
13. Upon the videos being produced and played, the father was pressed by both the mother's Counsel and the ICL's to accept that they were inappropriate. However, the father tried to justify the "Kid Enema" video by saying it looked harmless from a child's perspective, there was no physical harm to the child, the adults watching the child were laughing, and there was no long term physical harm to the child. He agreed that he did not, in fact, know any of that. Eventually he agreed they were inappropriate.
14. Having previously described the videos as "fairly harmless", I find that he only accepted they were inappropriate for X because the videos were played in court.
15. That said, by the time of submissions, he submitted the videos were "objectively speaking, silly prank videos that are plainly intended to be comedic and tomfoolery in nature". It was also said they were publicly available, and had no rating attached. In other words, the father reverted to minimising their inappropriate nature.
16. I do not accept the father's description of the videos as "silly", "comedic" and "tomfoolery". Rather, they were puerile and inappropriate for X, especially the "Kid Enema" video which showed adults exploiting a child who had no capacity to consent to the action coerced of him, or the dissemination of his image poking an adult in "sensitive private body parts".[35] I also do not accept the submission about being publicly available makes it all alright - pornography is publicly available on the internet, but that does not mean it is acceptable for children to watch.
17. He had also portrayed that he had no opportunity to stop the videos and did not read the translation in sub-titles, but upon the videos being played, he eventually conceded he could have stopped the videos at various times when watching them with X.
18. Accordingly, I find:

(a) Overall, the videos are puerile and inappropriate for X;

(b) They were not "silly", "comedic" and "tomfoolery";

(c) Regardless of whether the child read the subtitles, they were inappropriate;

(d) The electrocution video and the ones potentially compromising respiratory function could have tragic consequences if X tried to copy any of them;

(e) The father had plenty of time to stop each of the videos but did not do so;

(f) The father's apparent discussion with X about them being inappropriate was ineffectual as the child did perform the "Kid Enema" conduct with the father several times;

(g) The "Kid Enema" video, where a child about X's age was coerced by adults into poking an adult in the anus area with his fingers was grossly inappropriate and constituted exploitation of the child on the video by adults, being a child who had no capacity whatsoever to consent to the conduct compelled of him by adults nor to consent to the public dissemination of his image and coerced conduct;

(h) The father allowed X to watch this gross power imbalance, and exploitation of a child about X's age;

(i) This gross power imbalance and exploitation of a child about X's age are not behaviours a child should learn is OK or even "hilarious" to use the father's phrase;

(j) The "Kid Enema" video also sends a message to X that adults can make children do inappropriate things involving "sensitive private body parts";[36]

(k) Allowing X to watch the "Kid Enema" video and not stopping it when there were clear red flags (e.g. the adult on all fours, e.g. a child being brought into the scene and positioned behind the adult, e.g. the adult got up but told to get back down again) was a dereliction of the father's duties as X's parent;

(l) The father failed to protect X from observing the grossly inappropriate "Kid Enema" video of a child being coerced and exploited by adults;

(m) The father failed to disclose the videos because he did not want the mother, others (including the Family Report Writer, the ICL, the Department and the court) to see them;

(n) The father's description of the videos and calling the child in the "Kid Enema" video a "younger person" relative to him, an adult, was minimising and downplaying the fact, that he later admitted the child was "about [X]'s age";

(o) The father's description of the child as an "early teen" when asked their approximate age was another attempt at minimisation by the father, and was only conceded after the videos were played;

(p) The father only accepted the videos were inappropriate when pressed to do so and after the videos were played in court;

(q) The father only accepted after the video was played, that even if he had not seen the subtitles he had time to see they were inappropriate and there were multiple red flags which should have warned him of this, whereupon he should have stopped playing them;

(r) The videos' availability on the internet does not make them any less inappropriate for a child.

1. The findings just set out culminate in a further finding of emotional or psychological harm of X by the father from neglect, being his failure to protect the child from exposure to child exploitation, and inappropriate and grossly inappropriate videos.
2. Not unsurprisingly, the mother's position about the father presenting an unacceptable risk to the child only hardened further after she watched the videos, having previously read in the father's affidavit that he said they were "fairly harmless".

1. On 18 September 2023, X told Ms F, in the absence of the mother:

[X] reported that his father [Mr Mathis] has shown him TikTok videos where people put their fingers into other people's anuses. [X] disclosed that his father has done that several times to him, inserting two fingers into [X's] anus. [X] said his father called it a game. The first time it happened was, according to [X], about four weeks ago, and several time since. [X] said it did not hurt but it made him very uncomfortable.[37]

1. In interviews with the Department on 21 September 2023, this is recorded from X:[38]
   • Bad things

Putting his finger up my bum - found it on tik tok and then he did it to me. Said it was a game

• Didn't like that - didn't tell him

• Hurt, uncomfortable

• Asked me to do it on him but I didn't want to

• Uses fingers up my bum - clothes on, on the surface

• Don't like it

• Safe at dad? I don't know

• Uncomfortable with dad

• Started happening 2-3 weeks ago. Happened a few times

• Want to see dad this weekend? - I don't really know. Don't really know if want to see Dad this weekend

• Mum said good thing telling someone what happened

• Scared about Dad getting mad at me - He yells at me

• 5 safe adults

• ...
  • Magic wand:
• Wish dad would stop poking his fingers up my bum
• Be a billionaire
• Thousands of lego
  • Dad said come on, it's just a game
  • Said don't tell anyone
  • He said that he might try the front part. He said if I do it don't tell anyone

1. X listed nine people when asked to list 5 safe adults - none were the father.
2. The father submitted X said what he said to the Department to "save face" because his mother knew what he had told Ms F, and when the mother told the child he had done a "good thing" saying what had happened, that "may have fettered with the free and voluntary nature of the child's account". I do not accept that - the mother's words were simply supportive of her son telling strangers intimate details of what he said happened to him after the child spoke of finger/s "up my bum".
3. In the interviews for the updated Family Report on 16 July 2024, X said:

I asked [X] if he could tell me why he wasn't seeing [Mr Mathis] and [X] said that [Mr Mathis] had done something to him. When asked if he could tell me more about what [Mr Mathis] had done, [X] said, "He put his fingers up my bum". [X] said that he had clothes on at the time and [Mr Mathis] doing this made him feel uncomfortable. [X] said that he doesn't know why [Mr Mathis] did this.[39]

1. I have already observed that the father's apparent discussion with X about the "Kid Enema" conduct being inappropriate for them to copy fell on deaf ears - despite this claimed discussion, the child then poked the father in the bottom cheek a number of times, even after being told to stop, and tried a further time after that. Both father and child were clothed.
2. The father denied he inserted finger/s into, as in digitally penetrated, X's anus and denies putting his fingers near his anus. But he does admit that after X poked him in the bottom cheek, he, the father, poked him back "once on the hip, to show him the pressure was not nice".[40] In cross-examination the father referred to poking X in the bottom cheek. He ultimately agreed in cross examination that the evidence he gave between his affidavit and his cross-examination were inconsistent on the location of his poke. The father did say "on the hip" and bottom cheek area were the same area when sitting down but conceded that the bottom cheek is anatomically lower than the hip.
3. The father said X was lying about the allegations. He said "morally, medically that area [anus area] is sensitive. Dirty." It is a curiosity then why he watched and allowed X to watch the "Kid Enema" video. The father is a health professional; he confirmed he knows what an enema involves.
4. The father did not mention any of the poking activity to the Report Writer in his interview[41] as confirmed in cross-examination by the mother's counsel:

He also left you with the impression, did he, that [X] had not poked him in the bottom?‑‑‑That's - that's my understanding. And I've checked those notes, and there was - there was - there's no mention of - and that clearly would have been something that I would have taken note of if [Mr Mathis] had said, you know, this was a game that [X] started. It certainly would have been something that I would have taken note of.

So you were left, from your discussion with [Mr Mathis] about this TikTok video, you were left with the impression that [Mr Mathis] was explaining to you that the two of them had watched a video together, and he acknowledged that that wasn't appropriate?‑‑‑Correct.

He had apologised to [X] for letting it happen?‑‑‑Correct.

And that he and [X] had agreed they wouldn't watch those sorts of videos again?‑‑‑Correct.

And you weren't left with any impression at all that [Mr Mathis] was saying that there had been any intent to engage in that game, or emulate that game by either him or [X]?‑‑‑Correct.

1. The father also did not tell the Department about the poking, or him touching X in any way.
2. It is acknowledged that the Department substantiated harm by the father against X in the form of emotional harm as a result of sexual abuse perpetrated by the father.[42] However, the assessment and outcome document from the Department (Exhibit 13) does not clearly set out how they reached the conclusion that the father had sexually abused the child. With many redactions, it says:

Harm:

There is sufficient evidence to suggest that [X] has suffered harm during this investigation and assessment, as defined by being any detrimental effect of a significant nature of the child's physical, psychological or emotional well-being as defined by the Child Protection Act 1999. It has been assessed that [X] has experienced emotional harm as a result of sexual abuse, with [Mr Mathis] being assessed as the person responsible [redacted] [Mr Mathis] has shown him [redacted] videos whereby people put their fingers into each other's anuses, [redacted] done this [redacted] several times. [redacted] The long-term psychological impacts of experiencing sexual abuse may not be observable at this time but could manifest in the future.

It is noted that [X] has suffered some level of physical harm as a result of the sexual abuse, however, this was not deemed to a detrimental level at this time, as there was no evidence of physical trauma or ongoing health concerns at this time.

1. Obviously, this court is not bound by the Department's determination, the basis for which is unclear.
2. In cross-examination, the father stressed that X could not have been digitally penetrated because X was clothed. A problem with this though is there is no evidence before me to establish whether X was referring to digital penetration or, fingers being put in or around his anus area. For example, if a person says, 'I was punched in the arm' or 'it hit me in the chest', they are not saying their arm or chest was physically penetrated.
3. Appropriately, Ms F did not further explore what X said to her about "inserting two fingers in his anus" because she did not want to jeopardise any police investigations and did not want to cause X further distress. She did not think X's use of the word "anus" was peculiar, noting his mother, a health professional, talks in sophisticated language with him and children with autism often have developed language.
4. In the meantime, X has been overall clear and consistent in his reporting to his psychologist, Child Safety and the Report Writer about the father "poking", "inserting", "puts" and "uses" his finger/s "up" and "into" "my bum" and "anus".
5. Counsel for the father leapt on some inconsistencies in the child's account, for example, he is mainly reported as saying "fingers" plural, but one record said "finger" singular. Yet, at the same time the father's submissions sought to explain away the father's inconsistencies in his poking evidence, saying, in part he was doing his best to respond to unparticularised allegations put to him by the Department in September 2023. I do not accept that. Whilst the father may not have had particulars in at least his first conversation with the Department in 2023, he certainly did by the time of his Evidence-in-Chief and cross-examination in 2025. Further, the inconsistencies in the father's evidence drawn on by the ICL and mother came from the father's own descriptions of his own poking of X.
6. True, on one report the child refers to his father's "finger" singular, but reports fingers plural on all other occasions. For all I know, the mention of finger singular is a typo. Standing back though, there is a cohesion to X's accounts.
7. Of this, the Family Report Writer said:

An important factor to consider as a practitioner dealing with children's abuses is to consider the consistency of the disclosures by the child. This is why child protection practitioners will often conduct more than one interview of a child before determining the outcome of their investigation.

(Second Family Report, 9.3)

1. I do not find the father digitally penetrated the child's anus because the evidence does not permit a positive finding. X himself says at one point it was on the surface. X's use of the word 'in' is entirely consistent with the examples given before about being hit in the chest or struck in the arm; they do not mean penetration.
2. I am also not satisfied the father's admitted poke of the child (albeit "on the hip" or on his bottom cheek) constitutes sexual abuse or that the father did this for his own sexual gratification. I am also not satisfied the father's poke back to the child constitutes physical abuse. The mother has failed to persuade me of this. However, it was inappropriate conduct by the father after the father and child watched the child exploitation and power imbalance in the "Kid Enema" video.
3. I therefore do not find the father's act of poking the child in the bottom cheek or hip constituted physical harm from sexual abuse, or, psychological or emotional harm from sexual abuse, or physical abuse not of a sexual nature.[43]
4. However, for the following reasons, I find on the balance of probabilities, guided by s 140(2) of the Evidence Act, that: (i) the father poked X in the bottom cheek area; (ii) it made X uncomfortable and scared of the father; and (iii) it made X feel unsafe with the father, all in the wider context of having watched the grossly inappropriate "Kid Enema" video. I find these matters because:

(a) X's clarity and consistency of information using the words anus and bum, (never hip) in reporting to three people external to his mother;

(b) X has been clear the conduct made him feel "uncomfortable" and "very uncomfortable";

(c) X has been clear "he used to feel safe with [the father] 'until we started playing the game'" and the game made him "scared";[44]

(d) The father admitted he did poke the child to show him the "pressure wasn't nice";[45]

(e) The father's failure to disclose the poking information to the Department or Report Writer constituted him hiding poor conduct;

(f) Exposing the child to the grossly inappropriate "Kid Enema" video in the first place;

(g) The conduct alleged by X is consistent with the father's inappropriate boundaries as set out below in my findings under the headings, 'Fallen down pants and watching X drying himself' (the father watching the child dry himself aspect), 'The teenage female foster child', and 'Other inappropriate conduct / lack of insight / boundaries / child focus deficits'; and

(h) The father poked X to try and get the child to stop poking him (the father) which is a childish, circular approach which must have been confusing to X - do as I say, not as I do.

1. That leads me to find that the father poking the child in the bottom cheek, in the wider context of the grossly inappropriate "Kid Enema" video ,was inappropriate, lacked child-focus, lacked appropriate boundaries and caused X to be uncomfortable, scared and not feel safe with the father, and, his poking conduct is consistent with a wider pattern of inappropriate conduct as referred to in (g) just above.

1. What the child said to the therapist in September 2023 (i.e., the father inserted fingers into his anus) then gave the mother concern for some things X had said earlier in the year to Ms F:

Case note from 6 March 2023

... [X] then showed psychologist a picture he has drawn, showing himself, his father and the penis of his father pointing to [X]. [X] disclosed that he slept in his father's bed because his bed (mother mentioned he sleeps on a mattress on the floor) was too uncomfortable. He said he had a cuddle with his dad at night. When he woke up in the morning, his father's pants had fallen down and were hanging around his ankles. [X] said this made him very uncomfortable. The mother was informed about session content and information disclosed by [X].[46]

...

• Case note from 05/06/2023:
• He showed psychologist his newest journal entry from his weekend with his dad. It read that he felt uncomfortable when his father watched him drying himself after having a shower.[47]

1. The evidence about the father's fallen down pants and X's drawing[48] do not allow for a positive finding that this constituted any form of sexual abuse of X, as opposed to something innocuous.
2. However, the father accepted he watched X dry himself after showering and said in cross-examination that he had spoken to other parents who do the same. I am not interested in 'other parents', but X and his parents. The father said X was not uncomfortable, but I conclude it is perfectly understandable that a child X's age may well be uncomfortable with an adult watching them dry themselves, which means the child must be naked. X was unable to voice his discomfort to his father, but told his psychologist as set out in the case note extracted above.
3. Whilst I do not find the father's actions watching X dry himself amount to harm and abuse per se, I do find the father does not understand or appreciate X's boundaries, privacy and what X considers to be within his comfort zone or not. I also find this is another example of the father's conduct making X feel uncomfortable and X being unable to voice that to his father. I find this reinforces X's feelings of being uncomfortable and unsafe in the father's care as X does not feel he is able to set boundaries which the father will respect.

1. The father accepted that in September 2023, he had to be told not to pat a foster child's chest area - the foster child was a 14/15 year old young woman with an intellectual impairment. He deposed he had done so since the children were little to help them calm when elevated. He reported the young woman foster child told him he is not allowed to anymore, adding "because I am a teenager now, and that's also not appropriate".[49] In cross-examination the father said she "said she didn't like me touching her on the chest as she had boobs". He was later told by a Child Safety Officer not to do that anymore.
2. On the father's concession, I find the father touched the young woman in the chest area. I further find that was inappropriate and that it was completely unacceptable for a child to have to tell an adult not to do so. It beggars belief that the father could not work that out for himself. But again, like watching X dry himself or playing an inappropriate 'game' with the child and allowing him to watch a grossly inappropriate video, it goes to the father's lack of insight, child focus and child-appropriate boundaries.

Other inappropriate conduct / lack of insight / boundaries / child focus deficits

1. In February 2022, X and the foster children were to spend time with the father on a Saturday, but the mother asked that not occur due to predicted flooding. She proposed a video call occur instead as being safer for all. Following the mother's request, the father videoed with the children, which itself is perfectly acceptable, but he did it sitting outside the mother's home. One of the foster children observed the father there and told the mother.
2. I find the father's conduct showed no respect for the mother's boundaries and privacy (and derivatively, the children). As such, I accept the mother's evidence that it made her feel anxious and intimidated and demonstrated the father's lack of ability to respect boundaries and privacy.
3. Next, the father has posted and re-posted intemperate and offensive content on Facebook that would not have engendered trust in the mother or helped alleviate her anxiety about him. For example, in January 2023, a relative of one of the foster children in the care of the mother called her a "putrid foster carer" and "a nut job, narcissistic, lying piece of sh*t foster carer!" on social media that was then supplied to the mother. The father chose to support this relative in her guardianship dispute over the foster child in the care of the mother. His decision to support the foster child's relative over the mother was ill-advised and likely caused the mother to feel anxious.
4. Separately, in November 2022, the father liked a post where some other person commented on a post about parental alienation with that person commenting, "Particularly if the other partner is a hunt with the dyke brigade behind them". The father accepted that was a reference to the mother, whom he (the father) is convinced is in a same sex relationship with Ms G. The father agreed he gave this offensive post a smiley face. He said he posted privately "to vent", yet his posts wound up in the mother's hands and attached to her affidavit. It could hardly have helped the mother's view of the father and her anxiety about him.
5. The father has also involved the child in repeating TikTok games, one of which overlooked X's need for thickened water to avoid the risk of aspiration. For example, on 8 October 2022, the mother said X and the father were playing a game where the child would put unthickened water in his mouth and play rock-paper-scissors with the father. Then, the losing party had to slap the other person on the face and they were not to laugh.[50] Using unthickened water is a risk to X. The father described it as the "Tortilla challenge" which he and X did together, whereby after X put fluids in his mouth, and they played rock-paper-scissors, the loser would be "hit across the face with a tortilla". Hitting or slapping someone in the face is not a game; it is inappropriate for normalising assault.
6. The father has also engaged in childish, unhelpful responses to the mother. For example, in a text exchange in October 2021, the mother relevantly messaged, "Due to the current treatment for her [a foster child's] teeth she is unable to eat any of those types of food and therefore cannot participate in red food day". The father asked if the foster child could come and say "hi" and asked, "What is she having done that is stopping her from having anything to eat?" The mother did not say that; she referred to no red foods. After some other texts, the mother said, "It's up to [foster child] if she wants to say hi. It's also up to her if she wants to discuss her treatment plan". The mother's approach is entirely consistent with how the Department determined if the foster children would see the father, or not. The father's retort was childish and not child focused, "Then it is up to her to decide whether to eat something or not on Red Food Day".[51]
7. Similarly, in December 2021, the mother asked the father if he had given a different foster child some money. The father replied, "Given you are right next to him you can ask him yourself". That was not child focused either.[52]
8. In a further example of childish conduct on the part of the father, the mother asked the father to call the children on an App they were using. The father said, "No you call me". The mother explained her App was set for children so did not allow outgoing calls. The father replied, "You both have decided this you organise it. Face Time then this is on you and [Ms G] now. You are now using up my time with the kids. Sort it out". The father could have just placed the call.
9. The father also engaged the child's paediatrician asking whether X spending time with him would increase X's chance of getting covid, saying "I do appreciate this email sounds trivial and I do not wish Dr -- getting involved in Family Law matters, I do however need some clarity around this issue as I have been restricted by [Ms Mathis] and [Ms G] in seeing [X] for this reason". And that is precisely what he did - involved the doctor in family law matters. The doctors' rooms aptly replied: [53]

[X] has chronic lung disease [...] which means he is at a higher risk of getting sick if he was to get infected. While there are no certainties, the best management is to minimise the risk. This is done by minimising exposure and ensuring all caregivers and himself are vaccinated, especially having boosters when available.

How you as parents and caregivers minimise his risk is a personal decision based on your situation and the benefits and risks.

...

1. Next, the evidence was re-opened on the morning submissions ought have been given. The mother's application was not opposed. In her affidavit she spoke of two instances where the father attended sport when he knew she and X would be there.
2. On 30 March 2025 the father drove into one of the sportsground car parks, near a corridor or strip that runs between fields to drop his partner, Ms C, at her game - she has a car and can drive. I find it was foolhardy of the father to do this given his partner has access to a car and can drive, when he said he knew the mother, X and a foster child would be there.
3. The mother said she saw the father drive another loop around the car park and then stopped near where X was. X did not see him. The father said he did not do an extra loop around but exited the car park and went for a drive. I do not need to find if he acted as the mother or the father said. Just being there in the first place, and what he did when he came back to the sportsground reveals his lack of insight.
4. The father then returned to the sportsground and parked on the road opposite field 1, admitting he knew full well that one of the foster children and mother would be there at the end of the game. The father said he parked there so he "could see them actively leaving the field/ [sports] grounds". The father accepted that he was visible and had parked where he did so the mother would know where he was. The mother and children then drove past the father and he then went back into the sportsground.
5. The father admitted there were other places he could have parked but did not think about that at the time. It also did not dawn on him that it would likely have been confusing for X if he saw his father sitting there in the car as they drove by. When squarely put on the spot about it in cross-examination, he agreed it could confuse X to see the father there.
6. After that, on 2 April 2025, the mother's solicitors wrote to the father's solicitors about her [the mother's] concerns with the father attending the sportsground when she was there. Nevertheless, four days later he attended again. This is also after the father had accepted in cross-examination in the main part of the trial (i.e. prior to the re-opening) that his presence there made the mother anxious.
7. On 6 April 2025 the father again dropped his partner (who has a car and can drive) to the field and left. The father was aware that one of the foster children would be playing that day, and the approximate times at which the mother and children would be at the field. The father said that he did not see the child or the mother prior to him leaving. Later that day the father sent a message to the mother via their parenting App saying "please don't breach me" because he was concerned that when he returned to pick up his partner he knew the mother and child would still be there.
8. It is not necessary for me to find, and I was not asked to do so, whether his conduct on either or both dates the subject of re-opening amounted to contraventions of the DVO. The mother has gone to the police about these matters, and it will be a matter for them what, if anything, they do about this. However, it became clear in the re-opened cross-examination of the father that he prioritised his "allegiance to family and friends" and link to the club over minimising the prospect of coming into contact with the mother or X, or either or both seeing him. The father writes to X about his own sports games (run at different times) but accepted he did not need to be at the field when X and the mother were there to do that.
9. He also insisted he did nothing wrong by the DVO. But that misses the point - given the father has been found to have contravened the TPO six times at the sportsground, and given the eye of the court was on him in this period between the initial close of evidence and submissions, it was reckless of the father to attend the sportsground, knowing X and the mother would be there. And that is in circumstances where he had no actual need to be there. Suffice to say, I do not accept the father's submission that his attendances at the sportsground that lead to the re-opening was "naïve". Instead, he placed his wants above any consequences of that - including the mother's anxieties and confusion or perhaps upset for X if he physically saw his father.
10. This also makes it hard to accept the father's evidence in the main part of the trial that he understood, in hindsight, how his presence at places such as the sportsground made the mother anxious. Notwithstanding that apparent epiphany, he went to the sportsground again, not once, but twice and the second being after the mother's concerns at his presence had been raised. On the re-opening the father was asked if his attendances were a good idea and replied, "looking back, probably not". And this is an exemplar of the problem presented by the father - as submitted by the ICL, "he doesn't know when to stop" and per the mother, "he is incapable of moderating his responses and is incapable of understanding the impact of his actions on the mother and the child".
11. None of the findings under this subheading of "Other inappropriate conduct / boundary / child focus deficits" would give rise to findings of abuse or harm on their own, but they add to a picture of a father, who I find lacks insight, prioritises his wants over a child focused approach and lacks appropriate boundaries.

1. Section 60CC(2)(a) directs attention to family violence. A TPO and a final DVO were made in favour of the mother with the father as respondent, without admissions, through to 2028.
2. The father was found to have contravened the TPO and a bail condition seven times by coming within 50 m of the mother - six times at the child's sportsground and the seventh at the Children's Court when he was supporting a foster child's relative in dispute with X's mother. At one point the father was removed from the sportsground by the police; X was there and exposed to the sequala of the father's conduct.
3. The father had no need to be at the Children's Court, given hearings are closed to all but the parties. He was not a party and was not a witness. I do not accept his answer to questions that he did not know the mother would there - the father accepted the mother was seeking long term guardianship of the relevant foster child, but that was disputed by the foster child's relative who had called the mother, inter alia, "putrid".
4. The father's case was the breaches were "technical" and did not involve violence or "malicious conduct". I do not accept that. A breach is a breach. If the father came within the 50 m radius of the mother (as per the TPO), then he contravened the Order. Orders of any court are not options, recommendations or guidelines. They impose solemn obligations on the subject of the orders.
5. I also do not accept that the lack of violence or "malicious conduct" lessened his conduct as the father said in his affidavit. The definition of family violence in s 4AB of the Act speaks to "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family ... or causes the family member to be fearful". In cross-examination, the father accepted that "in hindsight" his conduct would have made the mother anxious. He qualified that though by saying that was not his intention because he just wanted to participate in the children's lives. But I find that is about what he wanted, with scant regard for the impact of his conduct on the mother and with non-compliance with court orders designed for the mother's safety.
6. It is not for this Court to go behind the contravention outcomes.[54] Relevantly, s 91, in Part 3.5, of the Evidence Act does not apply to these child related proceedings; s 69ZT(1)(c) of the Act. In turn, s 69ZX(3)(b) of the Act allows this Court to adopt decisions or judgments of any court, and I do so. A judicial officer has been satisfied the elements of the contraventions of the TPO and bail conditions were made out on the requisite standard. Further, the father entered pleas of guilt. To that end, on each plea of guilt a Magistrate must have been satisfied his pleas were genuine and unequivocal.[55]
7. Thus, I conclude (and the father admits) the father has breached the TPO seven times by coming within the stipulated 50 m of the mother. That 50 m mark was to give the mother some comfort by placing distance between her and the father. The father failed to comply with that seven times, thereby denying the mother, and derivatively X (and foster children), the benefit of that protection. I have already concluded he lacks boundaries and has preferred his own wants over others, and in this case, the impact on the mother and compliance with court orders. This is another example.

Is the child at unacceptable risk of suffering significant physical and/or emotional and/or psychological harm in the father's care as a result of the risk of sexual abuse?

Is the child at unacceptable risk of suffering significant emotional and/or psychological harm in the father's care as a result of emotional abuse or neglect?_

(a) The father has caused emotional or psychological harm to X from neglect, being his failure to protect the child from exposure to child exploitation, and inappropriate and grossly inappropriate videos.

(b) The father poking the child in the bottom cheek, in the wider context of the grossly inappropriate "Kid Enema" video, was inappropriate, lacked child-focus, lacked appropriate boundaries and caused X to be uncomfortable, scared and not feel safe with the father, and, his poking conduct is consistent with a wider pattern of inappropriate conduct;

(c) The father does not understand or appreciate X's boundaries and what X considers to be within his comfort zone or not and this is in the context of the father watching X dry himself after a shower whereby he must be naked. The father's conduct made X uncomfortable and X was unable to voice that to his father, which reinforces X's feelings of being uncomfortable and unsafe in the father's care as he does not feel he is able to set boundaries which the father will respect;

(d) The father touched the young woman foster child in the chest area, that was inappropriate and it was completely unacceptable for a child to have to tell the father, an adult, not to do so.

(e) Face Timing the children from the front of the mother's home showed no respect for the mother's boundaries and privacy and derivatively, the children;

(f) The father lacks insight, prioritises his wants over a child focused approach and lacks appropriate boundaries; and

(g) The father has breached the TPO seven times by coming within the stipulated 50m of the mother at sport and the children's court thereby denying the mother, and derivatively X, the benefit of that protection. And, this is another example of the father preferring his own wants over the impact on the mother and compliance with court orders.

1. Cumulatively, those factors constitute emotional and psychological harm to X by the father.
2. The next question is to assess the magnitude of risk going forward.
3. The assessment of risk is an evidence-based conclusion and is not discretionary. The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not.[56] But it ought not be forgotten that unacceptable risk falls within a wider issue of what is in X's bests interests.
4. Looking to the future and the "foresight of possible harm",[57] the findings I have made about past facts on the balance of probabilities, "could well feed into any alternate finding about the existence of an unacceptable risk of harm".[58] And they do here.
5. Further, as said in Isles:

But the components which go to make up that conclusion [of unacceptable risk] need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard. [59]

1. There are an "accumulation of factors" here.
2. The father's lack of insight, lack of boundaries, prioritisation of self, and lack of child focus means I have little confidence that the father has the capacity to understand and/or contain his harmful and/or inappropriate conduct, which I have summarised at [144] above. Further, these are not characteristics that bode well for a future prediction of the magnitude of harm to X from the father's emotional and psychological abuse accompanied by other inappropriate conduct.
3. Looking forward, the father's lack of insight, capacity, boundaries and prioritisation of self over others means it is well possible that the father will continue in the future as he has in the past. The future risk to X of emotional and psychological abuse accompanied by other inappropriate conduct, which makes X feel uncomfortable and unsafe, is thus too high to tolerate. In other words, it is unacceptable.
4. I will consider the concept of mitigation of unacceptable risk when I answer the parties' Issue 5, being 'What time should the children [sic] spend with the non-resident parent?'.

1. X loves his parents, misses his father and wants to spend time with him; the mother accepts this to be so. However, he also told the Family Report Writer he used to feel safe with the father "until we started playing the game."
2. The Family Report Writer said this in cross-examination:

And at 9.8 of your second family report, you note that [X] was an anxious boy, and likely felt a level of guilt for telling people about his true feelings?‑‑‑Yes. Look, my assessment of [X] is that he's a little boy that is very, very aware of the animosity and the conflict between the parents. I think he's a people pleaser, and that he is likely feeling a level of guilt for telling people about how he feels. That's a real concern for me when a child - if the allegations are deemed to be accurate, or if there is an unacceptable risk to [X] from the concerns before the court, children shouldn't feel that level of guilt to be telling people about their true feelings. But I certainly think, as I outlined at 9.8, that his feelings, I think, are exacerbated because of the poor relationship and communication between his parents.[60]

1. X should not feel guilty for telling people about his feelings. Compounding the Report Writer's concerns just set out, is evidence from the mother that X says, essentially, he would not speak up if something adverse happened to him again if he was seeing the father. I accept the mother's evidence in this regard because it is consistent with X not expressing other concerns to his father such as the father watching X dry himself after a shower.
2. It is imperative X continue with support from his psychologist. He also needs to have specific protective behaviours counselling and needs to know and understand the lack of relationship with the father was not and is not his fault. He also needs to be empowered to express his own agency.
3. X's views need to be heard, but X also needs to be safe. To that end, I accept the Report Writer's evidence:

[X] is in year 3 at school. He's eight or nine years of age. His views and wishes should be considered, but they're not, in my view, what the court need to base decisions on when we're talking about unacceptable risk or potential police investigations. ... I get really worried when sometimes children come into family reports, and they're told that if they speak up, and say that they want to see a particular parent that that's what the court is going to do. That's a part of what the court consider. But he's a young boy who's already very anxious, and he shouldn't have the burden of a decision to choose between his parents on his shoulders.[61]

1. It is well settled that a child's views cannot control a best interest decision.[62] I accept the Report Writer's evidence that X's protective needs "need to be paramount", but that is within the wider context of determining X's best interests.
2. The Report Writer also said this, which I accept, and sheds light on making orders contrary to X's views:

he seems to be quite an anxious boy - that that anxiety is going to be present probably for a good while until there's (a), some resolution in the court outcome, and then some - there's some awareness of what's going to happen for him in the future. I think he's the type of child that would do well once he's spoken to, and he knows what's occurring. I think that would lessen his anxiety, and his counsellor is probably doing a good job of that so far.[63]

**_(c) the developmental, psychological, emotional and cultural needs of the child

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs_**

Issue 3: What is each parent's capacity to meet the child's needs?

1. X, like any child, has a need to be physically, psychologically and emotionally safe. He has many developmental and medical needs. X needs parents who have the capacity to facilitate X growing into the best person he can be.

1. Under the s 60CC(2)(a) heading and parties' relevant issues, I made findings about various aspects of the father's conduct that lead to a conclusion that he poses an unacceptable risk of harm to the child and that he conducts himself in other inappropriate ways. Those findings do not speak well to a positive or beneficial capacity to parent on the part of the father, and I so find.
2. In addition to the findings already made, X's neurodiversity sees him having a need for consistency and he does not take well to surprises. Nevertheless, the father took it upon himself to turn up at school at random, unannounced and various times a week to do tuckshop, but with X unprepared for seeing him. Eventually, the TPO was varied to only allow the father at tuckshop on a Friday.
3. I conclude the father placed a priority on his desire to see X when he (the father) wanted, instead of being attentive to X's need for preparation, planning and routine. Indeed, it took a variation to the TPO for the father to circumscribe his attendances at tuckshop.
4. It is also clear, and I find, that X has been unable to voice his discomfort or feelings to the father, especially where they may be at odds with or critical of the father. For example, X needed his psychologist's support after he told his father he needed food at the father's house.[64] He could not tell his father that he was uncomfortable with the father watching him dry himself after a shower. Although he reported to the psychologist that his father's pants had fallen down (I have not positively found this), whatever went on, X could not express discomfort to the father, but to his psychologist instead. He told his psychologist not the father, that he (X) felt alone when the father went out leaving him with some elderly friends. He told his psychologist but not his father that he did not like being with the father housesitting someone else's house.
5. The father also accepted X was worried the father would be angry because of what X has said about "the game". The father proposed to work with X to alleviate his fears and to work with the child's psychologist to manage these issues. But after he gave that evidence (and also acknowledged his presence at sport causes the mother anxiety), he imprudently turned up at sport twice, knowing the mother and X would be there, when there was no real need to do so.
6. The findings under the sub-heading "The father" (importing my findings of unacceptable risk and other inappropriate conduct too) lead to a conclusion that the father has failings in his capacity: to meet X's needs for emotional and psychological safety; to provide consistency and routine for this neurodiverse child (e.g. until restrained about tuckshop attendances by TPO); and, to prioritise X's needs over the father's own wants.

1. The father said several times that the mother was a good mother and ultimately entered into final consent orders that X live with her. Notwithstanding, his written submissions devoted paragraphs to criticising the mother's capacity to parent - but the live-with consent order means the father cannot impugn her capacity to parent and ability to meet X's needs and I find accordingly.
2. However, that is not the end of an assessment of the mother's capacity to parent. As the Report Writer made clear, and I accept as a matter of commonsense, if there is a finding of unacceptable risk with respect to the father and X, there is also the flow on effect to the mother's capacity to parent. Indeed, the Report Writer opined that even if a finding of sexual abuse was not made, given the mother believes X has been sexually abused by the father, she would still have difficulties in her capacity to parent X.
3. I do not conclude the mother's capacity to parent X would be compromised in the sense of her not being able to provide for the child's day-in-day-out needs. I am satisfied she will do that. But it is hard to see how she could positively facilitate X's time with the person she genuinely believes has abused him.
4. In the meantime, by the end of trial, the mother stands as X's unchallenged residential parent.

(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;

Issue 4: What capacity does each parent have to support/facilitate the relationship between the child and the other parent?

1. It is common ground that X loves his father and misses him. That has occurred, in part, because the mother has enabled X to have those feelings. She facilitates the letter writing and X has written to the father asking if he, the father, liked the present. Any present X sent the father is something the mother must have facilitated.
2. Ideally, X would have a relationship with both parents and others of significance to him. But that ideal is controlled by the final phrase in this subsection: "if it is safe to do so". I will consider mitigating the unacceptable risk posed by the father to X under Issue 5.
3. The mother said she would comply with whatever the court's orders were, but as the Report Writer said, "There's a difference between facilitating and encouraging a relationship, and complying with orders". I accept that because it is one thing to comply with orders, but it defies logic to see how a parent could positively facilitate a child's relationship with the other parent, genuinely believing that other parent has abused the child. There was no suggestion from any party that the mother's belief was unreasonable or not genuine. To the contrary, the father said a number of times that he understood how she reacted, and "anyone" would have done the same.
4. The father's written submissions are critical of the child's use of a diary, saying it does not mention day to day things, but only contains "father-focused accusations". I reject that submission. Instead, I accept as commonsense the evidence from Ms F that she suggested X use a journal so he could write things down, and then, if he wanted to, he could show Ms F and it would be like a conversation starter. This essentially allowed X to direct a conversation without having to vocalise that upfront in his sessions with her. I also accept her evidence because it was based on Ms F's professional skills in finding a way for X to open up about his fears and concerns. It was not intended to be a running commentary about the day in the more traditional sense of a diary/journal.

(f) anything else that is relevant to the particular circumstances of the child.

Issue 5: What time should the child spend with the non-resident parent?

1. Having identified the existence of an unacceptable risk, it is then necessary to assess whether that risk "is able to be sufficiently managed or ameliorated".[65]
2. Given my findings not only of unacceptable risk but to the father's inappropriate conduct, lack of boundaries, prioritisation of self, and lack of child focus, if the father was an unconstrained free agent to see X without fetter, I have no confidence he would curb his ways of his own volition. I have no confidence he would prioritise X and his needs over his adult wants if his time was not constrained in some way. I have no confidence he would stop a video of inappropriate content if left to him. I have no confidence he would pick up on any disquiet X might feel, as has occurred in the past. I have limited confidence X would be able to voice his views to the father as X has struggled to do in the past. And of considerable concern, if the father did something inappropriate or emotionally or psychologically abusive in the future, X may not reveal that, as he has indicated to his mother (and not challenged by the father).
3. Accordingly, unsupervised time does not mitigate his risks, and no one presses for that in any event on the unacceptable risk findings I have made.
4. The ICL and mother proposed:[66]

Because of the aforementioned risks, the child should not spend time with the father.

Even supervised time (which, it is acknowledged, could substantially address the risks), would be inappropriate because the child is at unacceptable risk of emotional and psychological harm if the time with the Father recommences and then ceases as a result of the ongoing QPS investigations.

1. They propose the letter exchanges continue. They have other orders not concerning time, which I will consider later.
2. The father had supervision alternatives[67] - one if it was found that "the child is at unacceptable risk of harm in the father's care and the court is satisfied that such risk can be appropriately mitigated", and, a second if it was found "the child is at unacceptable risk of harm in the father's care, which is unable to be mitigated at this time or in the foreseeable future".
3. In the former case (supervision to mitigate unacceptable risk) and in terms of time, the father proposed X spend supervised time with the father at a contact centre for 12 visits and his partner be permitted to attend. His partner has not met X. After the 12 visits at the contact centre, he proposed his partner or other agreed person supervise X's time with the father graduating from short visits to 9am-5pm alternate Sundays, and other supervised time arrangements on special days, school and extra-curricular activities. His proposed orders contained various other specific issue orders.
4. In the latter case (supervision does not mitigate unacceptable risk) and in terms of time and communications, he proposed time as agreed and failing that, no time, monthly phone calls and to send letters. He also set out various other specific issue orders.
5. X did spend supervised time at B Contract Centre in 2022. Thus, that centre is known to him.
6. However, the father's proposal then morphs into Ms C, the father's partner, as supervisor, or other person as agreed. Ms C does not accept the allegations and has not met X.
7. Counsel for the father submitted that even though the father's new partner did not believe the allegations levelled against the father, she would still be a good supervisor because she was a mandatory notifier due to being a health professional. It is not clear to me whether those professional notification obligations run to a person in their private, family life. A draft, unsigned, incomplete undertaking was attached to the father's submissions and a Notation proposed about it being completed by any supervisors, but that was as far as it went. The incomplete document attached to the Case Outline is not evidence, nor for that matter does an Outline constitute evidence. Apparently, an undertaking has since been filed with the court but the mere filing of a document does not itself make it evidence. An undertaking really means nothing in terms of enforcement unless it is received and accepted by the court. [68] At the end of the day, there is no undertaking that has been offered to and accepted by the court.
8. It is also not clear whether an undertaking signed by a non-party has much force or effect, if at all. Further, the father proposed a Notation that some other agreed supervisor in the future be requested to provide an undertaking to the court in certain terms. How that could be offered to the court let alone accepted by the court when its jurisdiction ends is a mystery. Separately, the Notation proposed by the father is a hope, intention, or a plan, but Notations cannot take the place of or be seen to be orders.[69]
9. In the circumstance of this matter, I find Ms C is not an appropriate supervisor because:

(a) X has never met Ms C and they have no relationship - although I accept on the father's case that she would be introduced to the child at the contact centre;

(b) It is unlikely X would share any feelings, concerns or worries about the father with Ms C, a stranger - and even if she ceased to be a stranger, X will obviously perceive her as aligned to the father; she is the father's partner after all;

(c) I accept the Report Writer's evidence that X would need a supervisor he can trust and that is not Ms C right now, if ever given her status as the father's partner;

(d) X's primary carer, the mother, does not trust she will place X's protective needs over her allegiance to the father and her belief that he could not have abused the child in any way shape or form (as Ms C said in cross-examination); and

(e) The Family Report Writer had no opportunity to engage with her, and thus assess her suitability as a potential supervisor.

1. That means, on the father's case of mitigating the risk via supervision, I am left with either someone agreed between the parties, or the contact centre. I think it most unlikely the parties would agree on a different person and no alternate names were even mentioned. I also think it likely that the father would badger the mother with various names over the years, which is an added stress she does not need as the unchallenged residential parent.
2. So, on the father's case as set out in Exhibit 33, I am left with his option of long term and fortnightly visits at a contact centre, or no time. But I am not bound by the parties' proposals.[70]
3. Putting aside the ICL's and mother's concerns about the open police investigation into the father for the moment, I am otherwise satisfied that professional supervision would mitigate the unacceptable risk the father presents to X and would be a fetter for his other inappropriate conduct and lack of boundaries. But long term and frequent supervision, as the father seeks, is not a realistic option. Even on his supplementary submissions he said the length of time using the contact centre could be extended and the pace of time a little slower, but he still sought for X to have regular time with him. He eschewed time "every three months" saying that was disjointed and time should be regular enough to allow for planning for the next visit and continuity of discussions across visits. He mentioned monthly time.
4. I find long term and frequent supervision is not a realistic option because it has ongoing costs, and more so, as the Report Writer said, "there is a level of a child outgrowing a contact centre, so it not really being a normal setting". In other words, it is hard to see how fortnightly or other frequent time at a contact centre would be appropriate for X when he is, say, 16 years of age. Alternate weekends at a contact centre are also likely to become dull and boring for the child, particularly as he matures and starts to individuate from his parents. To that end, I accept what the father highlighted in written submissions, "the mother concedes he previously enjoyed spending time with his father but became restless with the strict confine of the [contact centre]".
5. Supervision is usually a short term proposition leading then to unsupervised time where a parent has to get some runs on the board, say several months of clean drug tests and then a move to unsupervised time. But that is not the case here. Any 'improvement' in the father's lack of appropriate boundaries, lack of insight and the like are not matters that can be empirically tested.
6. For her process of reasoning, I accept the Report Writer's assessment of long term supervision for X:

the idea of [X] having ongoing contact with [Mr Mathis] that will never, potentially, ever move to unsupervised, in my view, would have a more detrimental impact on him. And I say that because if that's the case, [X] would be living with [Ms Mathis], and he would, potentially, be exposed to both parents still having heightened emotions from the findings of the court. So he's also - he's already a little boy that's quite anxious, quite aware of - that his mum and dad don't like each other, that they don't get along.[71]

1. That opinion sits within a long line of authority which speaks against long term supervision with Boland J in Moose v Moose[72] commenting on the general undesirability of long term supervised contact:

The undesirability of, and the practical difficulties associated with long term supervision in a children's contact centre are referred to in the Guideline for Family Law Courts and Children's Contact Services January 2007, Part C 4.1.1 and 4.1.2 (published by the Attorney-General's Department, the Family Court of Australia and the Federal Magistrates Court of Australia). In Fitzpatrick & Fitzpatrick [2005] FamCA 394; (2005) FLC 93-227, May J, having found that the evidence in the case "objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised ... ", then referred to the difficulty associated with long term supervised contact and said "the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children's best interests". Her Honour then explained "[w]hilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored". (See also W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892; (2005) FLC 93-235, (2005) 34 Fam LR 129 at paragraph 114).

1. In Exhibit 31, both the mother and ICL accept supervision "could substantially address the risks" but highlight that as recently as 18 March 2025 the police declined to send material to the court relating to "an ongoing investigation" because that "may prejudice the outcome of the investigation". There is no suggestion from anyone that that was not a reference to what the child said about his father and his anus and bum.
2. I accept the child's allegations were made about 18 months ago, and the police have not yet concluded their investigation one way or the other. The father has not been formally interviewed, and the apparent s 93A interview with X by the police has not been returned by the police for the reasons set out in the preceding paragraph.
3. The ICL and mother submitted that the open investigation could mean if time started and then was stopped because charges were preferred against the father, then that start-stop of time would not be good for the child. The Report Writer's assessment was that, "to then be exposed to starting contact, and then contact stopping for some reason, I think would be absolutely detrimental to him". That answer was in the context of the father's proposal for frequent time.
4. In supplementary submissions, the ICL remained against the idea of infrequent supervised time between X and the father, and spoke of the guilt X may feel if time is started and then stopped if the father is charged over anything to do with X. The evidence is that X already has some guilt over his time with the father stopping given what X told his therapist and others. It will be imperative that the mother secure whatever therapeutic support thought necessary for X to understand none of this is his fault and he has a right to be and feel safe.
5. It was also said by the ICL that X may not let anyone know if his father did something inappropriate again. I struggle with the logic of that because the discussion was in the context of time being supervised by professional supervisors who themselves will step in if the father says or does something inappropriate.
6. If the father is charged with offences over something to do with X (e.g. watching the child exploitation video with X, or poking in the anus or bum (to use X's words) and bail conditions prevent any contact between X and the father, then X will know about that anyway - he will likely be a witness. But, all there is before me is that the police have an open investigation.
7. I have no doubt the mother will commence facilitating appropriate therapeutic support for X as soon as she can - it is something she has wanted for some time. Hence, if the police do charge the father over something to do with X at some unknown time in the future, X will have had the benefit of counselling support to help him understand none of this is his fault, there is nothing to feel guilty about, it is important he speak up and it is his father who is the one responsible for the consequences of the father's own action, be that from charges being brought to a trial, or however it unfolds, if it unfolds.
8. None of the parties have any idea when or if the police will take any action, be that to close their file or to prefer charges. I accept there is a possibility that if I order time, then X might start time, but it be ceased if the father was charged with offences where X may be a witness in the criminal trial. That is a factor to consider but not the weightiest one. Instead, what I have found is that long term and frequent supervised time at a contact centre is not in X's best interests.
9. Noting X wants to see his father but needs to feel safe and not scared, I do not consider it in X's best interests to not allow any kind of time because one day, maybe, the police might charge the father with something that involves X. I accept the father's submission that I must work with what I have now, not something that may or may not occur at some unknown future time.
10. On all accounts, the exchange of letters is going well, and the mother says X looks forward to receiving them. But he also misses his father and wants to see him but needs to feel and be safe.
11. I consider X should see his father in a supervised setting, but not as frequently as the father seeks for the reason given when addressing long term and frequent supervised time. The frequency he seeks (even on his supplementary submissions) is too much and his partner is not an appropriate supervisor for the reasons given. Instead, I conclude that there should be some supervised time at B Contact Centre spaced out across the year because:

(a) Spaced out time reduces the chance of the contact centre becoming dull and boring (as it likely would on alternate weekends or other forms of more regular time);

(b) It gives heed to X's desire to see his father, but to also feel safe and comfortable;

(c) B Contact Centre is known to him and the parties;

(d) At the start of trial and supplementary submissions, the mother proposed X's time be supervised at B Contact Centre if I was against her on no time. She had thus contemplated this and could only have proposed it if she felt she could support it;

(e) In Exhibit 31, both the ICL and mother said supervision "could substantially address the risks";

(f) Time at a contact centre must give some comfort to the now unchallenged residential parent that X will be safe, and the father's inappropriate conduct constrained by professional supervisors;

(g) Spaced out time is not such an imposition on the mother and her capacity to parent than a regime of frequent supervised time with X;

(h) If time stopped because charges were preferred against the father at some unknown time in the future, then the cessation of spaced out time would not be such an imposition or loss for X, compared with having and then ceasing frequent time on alternate weekends, holidays and extra-curricular activities as the father seeks in Exhibit 33 or even on a slightly slower version spoke of in his supplementary submissions;

(i) I accept the father's written submissions that not allowing any form of time because of the open police investigation would "render the child living in limbo for an indeterminate period of time, potentially the remainder of his childhood";

(j) Spacing out time by reference to special events gives X the consistency and stability that is good for him. For example his mother or father will be able to say, "you will see dad for your birthday" and the like;

(k) Spaced out time still allows X and the father to plan the next visit and to have some continuity of time and conversations and this was be in addition to the letter exchanges.

1. Accordingly, I will order X spend two hours supervised time at B Contact Centre at a time the contact centre can provide:

(a) As close to Easter Friday or Easter Monday as the contact centre can arrange;

(b) As close to X's birthday as the contact centre can arrange;

(c) As close to Father's Day as the contact centre can arrange; and

(d) In the lead up to Christmas Day as the contact centre can arrange.

1. These events were sensible suggestions by the mother in supplementary submissions if I was against her on her no time position.
2. I have picked two hours because that is the usual time contact centres offer, and it is a duration of time no one took issue with in supplementary submissions. As supervision is ultimately for X's safety, the parties can equally share any costs.
3. I am content for Ms C to attend those visits, although it would be wise of the father to re-establish his relationship with X, before introducing her to X.
4. I will make an order suggested by the mother in supplementary submissions (if I was against her on no time) that the father be restrained from using electronic devices when he is with the child. I will make that order because the father's lack of insight means I am not confident he would do so of his own volition. Or, as the ICL submitted, "he doesn't know when to stop". And similarly from the mother, "the father is incapable of moderating his responses and is incapable of understanding the impact of his actions on the mother and on the child". The enjoinder means there can be no chance of X and the father watching anymore inappropriate videos as they have in the past. This is a safeguard to which s 60CG speaks. It will also allow the father and child to have more meaningful time without distraction from external sources.
5. I am also satisfied that if X's time is stopped if the father is charged, X's time with his father will have been minimal and I consider X having and then ceasing to have four two-hour visits a year will have far less an impact than stopping regular and frequent time as proposed by the father. In reaching that conclusion, I am confident the mother will secure X relevant therapeutic supports as she has long sought. That will assist X to understand that if his father is charged, that is a consequence of the father's own alleged actions and there is no blame that can lie at X's feet anyway whatsoever.
6. I am not satisfied the father's regular communication orders are in X's interests because (a) the mother will have to place the call due to the DVO which has several more years to run, and (b) that imposes regular obligations on her not only to make the calls but to essentially supervise them in case the father says something inappropriate.

Issue 6: Which parent, or both, should make the long-term decisions for the child?

1. On the findings I have made, the father proposed the mother have sole decision making for major long term decisions. I agree. The mother is the residential parent and will solely have parental responsibility for X's major long terms decisions.
2. This means the mother will be able to enlist whatever therapeutic supports are best for X, including protective behaviour training and anything else she deems best for X.
3. On some of his parenting orders[73] the father sought orders that prior to the mother making any major long term decisions, the mother invite written comments from him and "genuinely consider" his input and then let him know her decision.
4. The mother and ICL sought orders that the mother advise the father of any decision after she makes it. I prefer the mother's and ICL's orders because (a) the father will know the decisions, but (b) the idea of these two parents engaging on decisions concerning X is not one that can be seriously entertained, (c) the father does not impugn the mother's past decision making, and (d) the concept of "genuine consideration" is open to interpretation and dispute.

1. I have already given reasons for many of the orders I will make and not make, particularly with respect to time, communications and decision making.
2. I am content to make the App communication orders proposed by the parties, along with the usual medical and educational authorities and s 114Q orders; they are uncontroversial. It is proper to make orders whereby the mother keeps the father informed about X's medical complexities and each can secure medical information about the child. The same is said of information to each parent about educational issues. It is also proper to make orders that the orders can be released to entities such as X's school, doctors and the like so X can get whatever support or care or education he needs.
3. In supplementary submissions no one cavilled with the mother's position that should the father be charged with an offence where X may be a witness in a criminal trial, then the father should provide a copy of the Charge Sheet (however so named) and bail conditions to the mother. I will make an order to that effect. I will also make a Notation reflecting the common position of the parties in supplementary submissions that if that father was charged with such offences, his bail conditions may mean all time and communications with X ceases.
4. I now turn to other orders sought.

Exhibit 32 - mother's and ICL's proposed orders

1. Some orders proposed by the mother and ICL are machinery and do not need reasons, for example, to keep postal addresses and contact details up to date to facilitate the sending of letters between the father and child.
2. I will make the order about X continuing with his therapist. As I have allocated parental responsibility to the mother, it is not strictly necessary, but I make it, essentially, for the psychologist's clarity and comfort; Ms F impressed me with her evidence and has rapport with X. That relationship should not be jeopardised. It may be useful for her to have the orders and Reasons, and I will make that order.
3. The mother and ICL seek s 68B restraints in the following terms:

Restraints

1. Pursuant to Section 68B of the Family Law Act 1975, the father is restrained from:

   1. approaching, entering, or being within 100 metres of the premises where [X] attends school, unless otherwise provided for in these Orders; and

   2. attending [E Sportsground] at such times that the Mother and/or [X] are present, provided the Mother notifies the Father no less than 48 hours prior to any attendance for training and or games for [X] or any other child in the Mother's care.

   3. Pursuant to Section 68B of the Family Law Act 1975, the parties are restrained from making comments about any party and/or posting photographs, comments or any other posts about or in relation to the other party on any social media platform.

1. Order 18 is unfortunately necessary given then father's liking of inappropriate posts. I will make Order 17 - the evidence on the re-opening alone justifies that they are required. It really is quite unbelievable that between the close of evidence and submissions that the father took himself twice to the sportsground when he did not actually need to go, knowing full well the mother and X would be there. To be clear, "attending" includes being there to drop someone off, or pick someone up when the mother and children are there.
2. On the re-opening, it became crystal clear that the father had not contemplated the confusion he might cause X if X saw him parked just down from the field on the opposite side of the road, and sat there waiting for the mother (with a foster child and X) to drive by so he could go back in. It is also the case that six of the father's seven contraventions of the TPO occurred at the sportsground. In X's presence, he has also been removed from the sportsground by the police. It is a place he ought avoid when X and the mother are there. However, the father's evidence is that he will keep going to sport "if allowed". He will not be allowed there when X, any foster children and the mother are there.
3. Given a TPO variation was required to stop the father randomly turning up at the child's school, I will also make the school restraint. I also do so because school should be a sanctuary for any child, and to make it clear to the father and school that school is a place of safety and learning for X, not some back-hand way for the father to see X.
4. I am content to make the overseas travel orders proposed by the ICL and mother - overseas travel is a wonderful and enriching experience for children. No submission were made that the mother is a flight risk.[74] I will however remove the word "reasonable" from the clause "The father will, at the reasonable request of the mother, sign an Application for a Passport for [X]". A reasonable request by one party may be entirely unreasonable to another. I also do not see that X gets any benefit if the parties then engage in a to-and-from about whether the request is reasonable, or not.
5. I will make the ADR orders proposed by the mother and ICL. They are really matters covered by the Act, but once the parties separate from their lawyers, the ADR orders are a useful reminder to the parties.
6. Finally, I will make the Order for the parents to engage Ms D to explain the orders to X and meet any costs of doing so. It is important X knows the outcome in an age-appropriate and neutral way. Ms D is to have a copy of these Reasons and orders.

1. I will not make the father's proposed Order 27 which is to the effect that the parents authorise X's psychologist to engage with both parents. That essentially binds the child's psychologist to conduct her therapy in a certain way; she is not a party to these proceedings and X's therapeutic relationship with Ms F must be the priority. I have no doubt that if Ms F feels the therapeutic need for either or both parents to attend upon her (in separate sessions given the DVO), then she will ask them to do so. She will have a copy of the orders and Reasons.
2. I will not make his proposed Order 28 which restrained the parties from denigrating the other when with the psychologist and X. It will be a matter for Ms F how she conducts her sessions. I also do not accept the father's submissions, that the mother was denigrating the father to Ms F in the presence of X by simply repeating what X had said to her (the mother) about his worries, prior to the sessions.
3. I prefer the ICL's and mother's proposal that the father write to X at all times the father chooses, as opposed to the father's more restrictive proposal of correspondence from him to X once per month plus on some special occasions. But I will make an order that the mother facilitate X's letter writing to the father. The mother said she would do so but I make the order to make that clear.
4. I will make the father's proposed non-denigration orders at his Order 44 (and repeated at 71), as the child will see the father at the contact centre. Ironically, whilst the father seeks the non-denigration orders, the evidence before the court is that it is the father who called a foster child a shithead[75] and has said bad things about the mother which made X sad.[76]
5. By virtue of the orders I am making, various of the orders sought by the father are now redundant e.g.: Order 65 about healthcare; Order 70 about extra-curricular activities; and, overseas travel applying to both parents at his Orders 76-79.

I certify that the preceding two hundred and thirty-seven (237) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch.

[2] Father's affidavit filed 11 February 2025 at paragraph 42.

[3] A description accepted by the father in cross-examination.

[4] Father's affidavit filed 11 February 2025 at paragraph 44.

[5] Father's affidavit filed 11 February 2025 at paragraph 45.

[6] Father's affidavit filed 11 February 2025 at paragraph 45.

[9] Mother affidavit filed 12 February 2025, paragraphs 69-70.

[12] Mother's affidavit filed 12 February 2025, p.11-12, paragraph 28.

[14] [2003] HCA 48; (2003) 200 ALR 447 at [62].

[15] [1983] 3 NSWLR 378 at 385-386.

[16] Exhibit 31, with which the father did not join, but his Counsel confirmed these issues were live in submissions.

[17] (1988) 166 CLR 69 ("M & M").

[18] Stott v Holgar [2017] FamCAFC 152.

[19] Father's submissions handed up 29 April 2025, paragraph 3.

[20] Evidence Act, s 140.

[22] [2022] FedCFamC1A 97; (2022) FLC 94-092 at [51] ("Isles"), adopting what Austin J said in Fitzwater & Fitzwater [2019] FamCAFC 251; (2019) 60 Fam LR 212 at [139].

[23] Bielen & Kozma [2022] FedCFamC1A 221; (2022) 66 Fam LR 59 at [51]-[55].

[24] [2015] FamCAFC 146 at [27] ("Blinko").

[25] Father's affidavit filed 11 February 2025 at paragraph 42.

[26] Father's affidavit filed 11 February 2025 at paragraphs 41 and 42.

[33] The father accepted this word in cross-examination.

[34] Father's affidavit filed 11 February 2025 at paragraph 45.

[35] Father's affidavit filed 11 February 2025 at paragraph 45.

[36] Which, ironically, was the father's admonition of X when X poked the father in the bottom cheek again, Father's affidavit filed 11 February 2025 at paragraph 45.

[40] Father's affidavit filed 11 February 2025 at paragraph 44.

[41] But he did mention this in an old affidavit that was before the Report Writer.

[43] Per Exhibit 31, the mother's (1)(a) and (b)

[45] Father's affidavit filed 11 February 2025 at paragraph 44.

[49] Father's affidavit filed 11 February 2025 at paragraph 96.

[55] Maxwell v The Queen (1996) 184 CLR 501 at [511].

[60] Transcript 21 March 2025, p.5 lines 9-18.

[61] Transcript 21 March 2025, p.10 lines 15-27.

[62] Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662.

[63] Transcript 21 March 2025, p.11 lines 2-7.

[68] Bain & Bain (Deceased) [2017] FamCAFC 80, albeit with respect to a contempt application.

[69] Oberlin & Infeld [2021] FamCAFC 66; (2021) FLC 94-017 at [44]).

[70] U v U [2002] HCA 36; (2002) 211 CLR 238 at [80].

[71] Transcript 21 March 2025, p.6 lines 41-47.

[74] Line & Line [1996] FamCA 145; (1997) FLC 92-729.