Vahur & Agnesa [2025] FedCFamC1F 740 (28 October 2025)

(a) The child ought to participate in reunification therapy with the mother and thereafter, spend supervised time with her; and

(b) The child's time with the mother ought to progress to unsupervised time.

1. There is no good outcome for the child arising out of this parental dispute. For reasons, which will be become clear, I am not persuaded that it is possible to make an order for unsupervised time between the child and his mother. I will, however, make an order for the child to spend supervised time with his mother on an indefinite basis.

1. The applicant mother was born in 1990 in China and is aged 35 years. She is not fluent in the English language, and her first language is Cantonese. On her own admission, the mother ceased her employment in the health industry in August 2023 due to depression.[7] She was thereafter employed for a short time but now describes herself as unemployed as a consequence of the criminal proceedings.[8] Indeed, the mother is the subject of a "banning order", which prevents the mother from working in her chosen filed in the health industry.[9] She expressed a desire to establish and operate a retail business on the resolution of the parties' financial dispute.
2. The mother describes her childhood as grim and lamented that she did not have a "real family environment".[10] She asserts that her father "was extremely strict and abusive"[11] and that from a young age, her father would hit her and sometimes kick her in the stomach when she failed to meet what she describes as his "very high expectations".[12] The mother otherwise spent most of her childhood at a boarding school having limited contact with her parents.[13] The mother's father passed away due to illness in 2015. The mother says that her father's death "deeply affected" her.[14]
3. In January 2012, the mother married a third party. A male child was born of that relationship. The mother has no contact with that child. The mother explains her absence from that child's life by saying that she "believed it was in the best interests of the child to remain with his father and paternal grandparents, as they were in a more stable position to care for him".[15]
4. The respondent father was born in 1986 and is aged 39 years. He speaks, reads and writes in Mandarin and English but required an interpreter for the purposes of giving his evidence.[16] At the age of eighteen years, the father travelled from China to Australia on a student visa to study at E University, Sydney.[17] At the time of the final defended hearing, the father was unemployed. Prior to this, he was an owner of a business.[18]
5. The parties met through an internet platform in August 2013.[19] Thereafter, the parties commenced a relationship in May 2014[20] and moved in together in August 2014.[21] The early days of the relationship were marred by the father's receipt of communications from a person not known to him alerting him to the existence of the mother's estranged husband and first born child. The father describes himself as being "speechless" on receipt of this information[22] and in my mind, it represents the first seed of distrust between the parties.
6. Despite the mother's deceit, the parties remained in a relationship and decided to return to China where they lived between mid-2015 and late 2016.[23] The male child the subject of these proceedings was born in China in 2016.[24]
7. The parties returned to Australia in late 2016.[25]
8. On the mother's version of events, the early years of the parties' relationship were marked by affection. However, the mother says that in December 2017, the father implemented "a set of strict household rules", which he expected the parties follow without question. The mother describes herself as "always walking on eggshells".[26] The father denied the mother's allegations, and they were not the subject of cross-examination at trial.
9. For his part, the father says that in March 2019 when the male child was three years of age, he "began noticing behaviours, habits and patterns regarding [the mother's] parenting of and conduct towards [the child] which worried and disturbed" him. Particularly, the father says that that the mother would "quickly lose her temper" if the male child misbehaved and describes the mother as slapping the male child "on the arms, legs, or back very hard, to the point that the slaps would sound loud".[27]
10. In early August 2021, the father says that the child made a disclosure that the mother hit him and further, says that the disclosure was consistent with marks he observed on the child's neck and back. The father says that on this occasion and previous occasions, he asked the mother to apologise to the child for her behaviour but that such requests would simply result in arguments between the parties.[28]
11. In August 2021, the father says that he was on the second level of a property at Suburb F in the State of New South Wales when he heard the child screaming. He says that after an argument with the mother about what had occurred, he reviewed footage from a Closed-Circuit Television (CCTV) recording, which was situated inside the parties' residence. The recording showed the mother hitting the child "several times across the back, arm and head" whilst the child was attending to his homework.[29] That recording was identified, tendered and marked as an exhibit in the proceedings.[30]
12. The father produced further recordings in respect of events, which occurred in November 2022. The father says as follows with respect to this incident:

On [...] November 2022, [the mother] pushed [the child] to the ground as soon as they entered the home and [the mother] then began to stomp on [the child]. [The child] begins to scream and cry in pain from [the mother's] actions.[31]

1. Once again, the recording was identified, tendered and marked as an exhibit in the proceedings.[32]
2. The father did not immediately do anything with the video recordings referred to above but did provide the recordings to New South Wales Police in March 2023.
3. The mother re-partnered in December 2022. The father says that from this point onwards, he primarily cared for the child.[33]
4. In January 2023, the mother relocated to her new partner's residence. At that time, she left the child in the care of the father.[34] The mother returned to the parties' residence in early February 2023, but the father says that the mother was largely absent save and except to sleep.[35] That arrangement ended in mid-February 2023 when the mother again moved out.[36]
5. In January 2023, the parties and the maternal grandmother were travelling towards the Suburb F property at which time the father says that the mother grabbed the steering wheel causing him to lose control.[37] Simultaneously, the mother allegedly screamed "Let's all die together" and later, repeated the phrase when the parties returned to the Suburb F property by asking for a knife. The mother was charged with one count of a passenger interfering with a driver's control of a vehicle.[38] The father says that he was advised by a relative to leave the family home that night due to concerns for the father's safety.[39]
6. The parties separated on a final basis on 25 March 2023. Since that date, the child has lived with his father. The father describes himself as having the sole care of the child since 31 March 2023.[40] There is no challenge to this evidence.
7. On 25 and 26 March 2023, the father says that he was warned by the maternal aunt and her husband that the mother and her new partner had planned to murder him.[41] Curiously, the murder plot was not the subject of cross-examination by father's counsel.
8. In March 2023, the father attended at the Suburb H Police Station and sought an Apprehended Domestic Violence Order to protect himself, the child, the mother's younger sister and the maternal grandmother. The father says that such a request was necessary in circumstances where he says the mother had been abusive to the child "since 2018".[42] The father also says that it was necessary for him to obtain such an order in circumstances where he was concerned for the safety of the maternal aunt and her husband and the maternal grandmother.
9. In March 2023, New South Police issued a Provisional Domestic Violence Order, which identified the father, the child, the maternal aunt and the maternal grandmother as protected persons. The mother was identified as the defendant.[43]
10. In mid-2023, the mother pleaded to one charge of assault occasioning actual bodily harm (domestic violence related) and one charge of common assault (domestic violence related). As discussed above, the assaults occurred in August 2021 and November 2022. The mother was convicted and placed under a Community Corrections Order. The mother later appealed her sentence and was found guilty without conviction and placed on a Conditional Release Order for a period of eighteen months pursuant to the terms of s 9(1)(b) of the Crimes (Sentencing Procedure) Act 1999.[44] At the time of the final hearing, the mother was under supervision by a Community Corrections Officer.
11. It is against this background that the mother commenced proceedings in Division 2 of this Court on 6 April 2023. Although the Initiating Application filed by the mother that day failed to identify the final orders sought by her, she has since 20 September 2024 promoted an outcome whereby the child remains living in the primary care of the father.[45]

1. The parties agree that the father will have sole decision-making authority in relation to the child and that the child will live with his father.[46]
2. The father does not promote any order for time between the child and his mother.[47]
3. On the final day of the hearing, the Independent Children's Lawyer ("ICL") tendered a proposed final order.[48] The mother consents to the terms of the proposed final order save and except as to the time, which the mother is to spend with the child. Particularly:

(a) The mother and the Independent Children's Lawyer each agreed to an order obliging the parties and the child to undertake reunification therapy for the purposes of reintroducing the mother to the child and so that the mother might deliver a statement or apology to the child in relation to her violent behaviour but particularly, her assaults of the child in August 2021 and November 2022; and

(b) On the conclusion of reunification therapy, each of the mother and the Independent Children's Lawyer promote an order that the child spend supervised time with the mother at a contact centre on the first Saturday of each month between 9.00am to 12.00pm.

1. On the expiry of the six-month period, the Independent Children's Lawyer promotes the continuation of supervised time albeit on each alternate Saturday for a period of three hours with such time to occur at a contact centre or otherwise supervised by the maternal grandmother. The mother agrees with that proposal.
2. However, the mother seeks an order that on the conclusion of the supervised periods of time referred to above, the child spend unsupervised time with the mother on each alternate Saturday and Sunday from 9.00 am to 5.00 pm on each day.[49] The Independent Children's Lawyer does not consent to such an outcome.

(a) An Amended Initiating Application filed 20 September 2024;

(b) An affidavit in the name of the mother filed 3 June 2025;

(c) An Outline of Case Document filed 26 June 2025; and

(d) Some tendered materials.[50]

(a) An Amended Response to Initiating Application filed 11 June 2025;

(b) Affidavits in the name of the father filed 20 May 2025 and 25 June 2025;

(c) An Affidavit in the name of the maternal aunt filed 19 May 2023;

(d) An Affidavit in the name of the paternal grandmother filed 20 May 2025;

(e) An affidavit of the name of the paternal aunt filed 20 May 2025;

(f) An affidavit in the name of a lawyer practising in China. That affidavit related only to financial issues;

(g) An Outline of Case Document filed 25 June 2025; and

(h) Tendered materials.[51]

(a) A report prepared by Dr J, clinical psychologist, dated 9 July 2024[53]; and

(b) Tendered materials.[54]

1. All witnesses were required for cross-examination except for the maternal aunt and the lawyer practising in China (supra).
2. The Court excluded all annexures to the affidavits having regard to r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

1. The issues, which I am obliged to determine in this case are:

(a) Whether the mother has engaged in family violence as defined in s 4AB of the Act;

(b) Whether the mother presents a risk of harm to the child on account of her mental health;

(c) If the answer to the first two questions is in the affirmative, whether the risk presented by the mother is of such magnitude that the Orders promoted by the Independent Children's Lawyer, or some variation thereof, is the only way to ensure the safety of the child;

(d) Whether the child's rejection of his mother is justified or unjustified;

(e) Whether the father presents a risk to the child on account of his influence of him and/or exposure to family violence;

(f) Whether it is possible to implement orders to ensure a reintroduction and thereafter, maintenance of a relationship between the child and his mother;

(g) If the answer to the above question is in the affirmative, whether it is in the child's best interests to progress to unsupervised time with the mother; and

(h) Whether the father be permitted to relocate the child's primary place of residence to the City of Perth in the State of Western Australia.

PARENTING PROCEEDINGS - LEGAL PRINCIPLES TO BE APPLIED AND PROCEDURE TO BE FOLLOWED

1. Given the gravity of the matters alleged by the father, it is useful to set out s 140 of the Evidence Act 1995:

(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. Section 140(2) is a codification of the oft-quoted remarks of Dixon J in the High Court decision of Briginshaw v Briginshaw (1938) 70 CLR 336. His Honour said this at p.362:

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which much effect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, in definite testimony, or indirect process.

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,[55] 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,[56] 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. When making parenting orders, the Court is mandated to regard the child's best interests as the paramount consideration (ss 60CA and 65AA of the Family Law Act 1975 (Cth) ("the Act")). The Act specifies the criteria which must be considered in arriving at a conclusion as to what is in the child's best interests (s 60CC). The six considerations referred to in s 60CC(2) are non-hierarchical. The Court is obliged to consider:

(a) arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child;

(b) any views expressed by the child;

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

(d) the capacity of each person who has or will have parental responsibility to provide for the child's needs;

(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; and

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

1. When considering the arrangements, which would promote the safety of the child and each person who has the care of the child, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child's family.
2. Section 60CG of 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.
3. Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful. Examples of such behaviour include assault, sexually abusive behaviour, stalking, repeated derogatory taunts, intentional damage or destruction of property, unreasonably withholding financial support needed to meet reasonable living expenses of the family member or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support, preventing the family member from making or keeping connection with his or her family or friends, or unlawfully depriving the family member from his or her liberty.
4. Section 4AB(3) and (4) of the Act makes it clear that children are to be regarded as exposed to family violence either through direct sensory perception of violent action or such perception of consequences of violent action.
5. As the facts referred to above make plain, this is a case about risk and the arrangements, which might promote the safety of the child.
6. Where ultimately the Court's focus is on formulating orders which attend to the child's best interests, the Court is required to make findings of fact. The standard of proof is one of "on the balance of probabilities" consistent with s 140 of the Evidence Act 1995 (supra).
7. A party making an assertion of fact has an onus to prove that fact on the balance of probabilities although the task for the Court ultimately remains as one of weighing and balancing the probity of evidence towards a determination of the child's best interests.
8. The father in this case invites me to make findings that the mother has abused the child and presents a risk of harm to him.
9. When considering the submissions of the parties, I am mindful that the test for determining unacceptable risk was laid down by the High Court in M & M (1998) 166 CLR 69 ("M & M"). Whilst the risk with which the Court was concerned in that case was the risk of sexual abuse, the principles are applicable - and have been applied - to the assessment of risk more generally.
10. If a finding is made that a child is at a risk of harm in the care of a parent, consideration must be given to the orders, if any, that may be made to mitigate or ameliorate those risks so as to enable the child to have a relationship with the parent (see B & B [1993] FamCA 143; (1993) FLC 92-357).
11. The Full Court's decision in Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 ("Isles"), summarised the authorities on unacceptable risk outlined in M v M. The Court in Isles also referred to the decision in N and S and the Separate Representative (1996) FLC 92-655 as follows:
    1. Fogarty J stated it is necessary for a trial judge to give real and substantial consideration to the facts of the case and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child and, furthermore, the qualitative analysis of the evidence must be directed not just to the existence of the risk of harm but also the magnitude of the possible harm...

1. In Isles, the Court at [35] went on to quote Tree J in Bant v Clayton [2015] FamCAFC 222; (2015) 53 Fam LR 621:
   1. Risk assessment involves determining firstly, the degree of the likelihood of the postulated event, and secondly, the prospect and magnitude of harm that may flow if the event occurs**.** The weighing of those two considerations - even accepting they may be imprecisely expressed within parameters - will inform whether the risk is adjudged to be acceptable or not. However that conclusion cannot be made in the abstract.
2. The Court agreed with and adopted Austin J's judgment in Fitzwater & Fitzwater [2019] FamCAFC 251; (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin's judgment includes the following:
   1. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter [2007] FamCA 350; (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
   2. 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.
3. In Hickson & Matthew [2022] FedCFamC1A 161, Deputy Chief Justice McClelland said this of Justice Austin's analysis at [39]:
   1. Additionally and relevantly for the purpose of this appeal, I would expand upon that insightful analysis by Austin J with the following guidance that emerges from authorities:

(1) It is now well established that "unacceptable risk" includes not merely physical harm but also includes an assessment of the risk of emotional harm.

(2) Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved.

(3) The components which lead to a conclusion that an unacceptable risk exists 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 only some of which are proved to that standard, endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, "Unacceptable Risk: A Return to Basics" (2006) 20 Australian Journal of Family Law 249.

(4) While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: "the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction".

(citations omitted)

1. I have read the material filed by the parties and listened to their submissions. I am not however required to address every fact or submission made.[57] Nor have I done so. However, every piece of evidence relied upon by the parties has been read and carefully considered by me.

Has the mother engaged in family violence as defined in s 4AB of the Act?

1. A positive finding of abuse or family violence should not be made unless the court is satisfied on the balance of probabilities as set out in s 140(2) of the Evidence Act 1995. Further, proof to the satisfaction of the court "should not be produced by inexact proofs, indefinite testimony, or indirect inferences".[58] I now turn to the allegations.
2. The father asserts that the mother poses an unacceptable risk of physical and emotional harm to the child. He says that says that the unacceptable risk arises from the mother's history of violence towards the child and her mental health issues.[59] In support of those contentions, the father says that the mother has engaged in serious acts of family violence towards the child and refers to the charges laid against the mother in March 2023. I will discuss those charges in further detail below.
3. The father makes additional allegations against the mother including that:

(a) In March 2019, he began noticing that the mother "would quickly lose her temper if [the child] ate too slowly or misbehaved, sometimes even when [the child] wouldn't do anything wrong, which would result in [the mother] slapping [the child]". Particularly, the father says that the mother would "slap [the child] on the arms, legs, or back very hard, to the point that the slaps would sound loud";[60] and

(b) In March 2023, the child made a disclosure that his "Mummy hits me when she is angry, but I don't know what I did wrong". At the same time, the child said that "his neck and shoulder area was hurting". The father says that the child's disclosures were consistent with a disclosure made by the paternal grandmother to the effect that the mother hit the child on becoming impatient as a consequence of the child's inability to find something.[61]

1. When giving consideration to the father's allegations, it is not necessary to "atomise"[62] or analyse every fact or circumstance and determine if it supports a conclusion that the child is at an unacceptable risk of harm in the mother's care. As was said by McEvoy J in Guerra & Guerra[63] at [94] and [95]:

It is critical in cases such as the present to have regard to the combined weight of all the relevant facts and circumstances. As Winneke P observed in Transport Industries Insurance Co. Ltd v Longmuir [1997] 1 VR 125 ("Longmuir") at 128:

In cases of circumstantial evidence each proven fact may gain support from the others and, although each, considered in isolation, might not provide a sound basis for inferring the ultimate fact to be proved, a combination of all facts might provide a compelling basis from which to draw that inference.

The evidence must be evaluated as a united whole in order to evaluate whether the party bearing the onus of proof (here, the father) has established what is ultimately sought to be proved (that the mother presents an unacceptable risk of harm to the child). As Tadgell JA emphasised in Longmuir (at 141):

A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details: cf. Hall (Inspector of Taxes) v. Lorrimer [1992] 1 W.L.R 939 at 944; Shepherd v. R. [1990] HCA 56; (1990) 170 C.L.R 573 at 579-80.

Events of [...] August 2021, November 2022 and charges against the mother

1. The two primary instances of violence perpetrated by the mother against her son relate to events, which occurred on [...] August 2021 and [...] November 2022. These events were recorded by CCTV, and the recordings were viewed in Court, tendered and marked as exhibits.[64] The father gave evidence that he installed CCTV cameras at the Suburb F property as an "anti-theft" measure and indeed, the footage the subject of interest was created by a camera pointed to the front door of the family home. Incidentally, the camera also captured an area where the child had been completing his homework on the evening of [...] August 2021.
2. The recording with respect to the events of [...] August 2021 was contained in five separate videos of varying length. The second video commenced at 7.01 pm and twelve seconds and concluded at 7.01 pm and twenty-eight seconds. The third video did not commence until 7.06 pm. With respect to the five intervening minutes, the father initially said that the CCTV did not capture it then he denied that he "cropped" the recording in any way. These two propositions are, of course, inconsistent. The topic was of some interest because the mother gave oral and written evidence that the recording would have revealed the father hitting the child with a coat hanger. Particularly, the mother says as follows:

He used a plastic hanger next to the study desk to smash on [the child's] leg a couple of times, yelling: "How dear [sic] you, crying and not studying". I had to stop him and ask him to leave the room. [The child] slept with my mother that night.[65]

1. On cross-examination by the mother's counsel, the father denied that he hit the child with a plastic hanger as alleged. He also gave evidence that almost immediately after the mother's assault of the child on [...] August 2021, he reviewed the recording and downloaded some of it. When doing so, he became aware that the mother was also reviewing the recording.[66] At a later unspecified time, the father says that he was unable to access the recording on the camera because it had been deleted.[67] There is insufficient evidence before the Court to permit me to make a finding that the father assaulted the child on [...] August 2021. Similarly, and given there is no objective evidence with respect to each party's assertion that the other of them deleted CCTV recording, I am unable to make a finding about whether the father assaulted the child with a plastic hanger on [...] August 2021.
2. I did, however, have recordings available to me with respect to the mother's actions on [...] August 2021. The mother's actions on that occasion were repugnant. Particularly:

(a) The first video depicts the mother sitting to the child's left whilst he is completing his homework. When unable to complete his homework to the mother's satisfaction, the mother struck the child three times to the back of his head causing him to scream and then cry. The footage shows the child holding the back of his head after he had been struck;

(b) The second video depicts the child initially sitting down and then standing up at his desk. On doing so, the mother struck him with force to his buttocks causing him to scream and cry;

(c) The third video depicts the mother striking the child twice to the left of his face with a closed fist. Again, the mother's actions appear to have been caused by her dissatisfaction with the manner in which the child was completing his homework. The acts referred to in the first, second and third videos were witnessed by the maternal grandmother who had been sitting in proximity to the area where the child was studying;

(d) The fourth video depicts the maternal grandmother shielding the child in an area next to where the child was completing his homework whilst the mother on two separate occasions made efforts to strike him. Again, the child is distressed and crying; and

(e) The fifth video depicts the mother striking the child with a slipper on no less than seven occasions whilst the maternal grandmother made ineffective efforts to prevent the mother from doing so.

1. I agree with the Single Expert's observation that despite the child's distress, the mother appeared to be "unmoved".[68] Indeed, my observation is that the mother acted in an uncontrolled and repugnant manner towards her own son who at that juncture was only five years of age.
2. The mother, by her affidavit, says that she regrets assaulting the child in the manner in which she did. Particularly, the mother says as follows:

I was strict about study [with the child] in 2021, because his teacher told me that he had to catch up after the one-year absence from school. Regrettably, I punished [the child] by hitting his arms and back while teaching him homework in August 2021.[69]

My mother said she was suffering from pain at her stomach. She then was resting on sofa, watching me teaching from a distance. At some point, [the child] refused to do the homework and say bad words to me which made me sad because he was struggling with his learning.

I the lost my temper and disciplined [the child] by hitting his head and his limbs when he was sitting there. Then my mother came over to us and stopped me from disciplining [the child]. I immediately felt regretful after that and blamed myself for my conduct.[70]

1. Whilst the mother expressed regret about the events of [...] August 2021, I consider that the mother has sought to minimise the gravity of her actions. For example, and when interviewed by the Single Expert in June 2024 (being almost three years after the incident), the mother said that she was "very tired during his [sic] period, which led her to lose control of her emotions. She was apparently working between 12 and 14 hours per day and feeling depressed".[71] Further, and when asked to comment on what she may have done differently, the mother said that if she continued to force the child to attend Chinese school on Saturdays in a "too harsh manner", he may "go the other way" and become disengaged.[72] She also said that she had investigated hobbies, which the child might be interested in and ultimately purchased a "[...] camera" for the child so that he might "pursue a career in online influencing".[73] That is, the mother's reflection was devoid of anything, which she may have done differently on [...] August 2021 or [...] November 2022. The Single Expert said as follows with respect to the mother's reflection on the events of [...] August 2021 and [...] November 2022:

Overall, [the mother] appeared to show some insight that her "harsh" approach to [the child's] achievements was ineffective, however her apparent goals (to have [the child] dedicate himself and his efforts to developing superior skills in a future career-relevant area, which appears developmentally inappropriate for a child in early primary school) appear unchanged.[74]

1. As discussed below, and on interview by the Single Expert, the mother continued to suggest that her actions constituted an effective disciplinary measure. I reject that proposition and the mother's characterisation of her behaviour in its entirety. The manner and the force with which the mother hit her son on [...] August 2021 goes far beyond chastisement. The videos were shocking, and I consider that most compassionate adults would consider the mother's actions to be abhorrent.
2. Further, and whilst the mother says that she "immediately felt regretful" (supra), it seems that her reflective capacity was impeded. This is because the mother again assaulted the child on [...] November 2022. The mother says as follows with respect to this incident:

The other discipline incident occurred on about [...] November 2022 when we lived at the [Suburb F] Property. That morning, I woke up at 5.50am, prepared breakfast and lunch while everyone was still asleep. I was in a rush because [the child] would be late for school starting at 9am and I was running late for work also started from 9-9am. I asked him to finish breakfast and told him that we were running late. Then I went to start the car and put stuff in the car. After we were in the car, [the child] started to say that he did not want to go to school. I had been in an intensive routine for a long time and under lots of pressure, so I was exhausted that morning, but no one helped me out. I was out of my character, and I disciplined and pushed [the child].[75]

1. The mother describes the incident as "out of my character". I reject that assessment in circumstances where there is also incontrovertible evidence that the mother assaulted the child in such a shocking way fifteen months prior. Further, the mother's description of her behaviour on [...] November 2022 obscures what in fact occurred. The recording[76] depicts the following:

(a) The child walking through the front door of the family home followed by his mother. The child is crying at that juncture;

(b) The mother holding the collar of the child's shirt and pushing him forcefully to the ground, which comprised of tiles; and

(c) The mother stomping on the child with her right foot in a forceful manner.

1. The child and the mother then disappear from the area captured by the camera. However, a viewer and listener of the recording is able to hear what seems to be further assaults on the child and the child screaming. Again, the mother's actions were abhorrent, and the footage would be distressing to any compassionate adult. As a consequence of the assaults, which occurred on [...] August 2021 and [...] November 2022, the mother was charged with the following offences:

(a) Assault occasioning actual bodily harm; and

(b) Common assault.[77]

1. As discussed above, the mother pleaded guilty to the charges.
2. My rejection of the mother's assertion that the assaults were "out of my character" is also supported the following opinion expressed by the Single Expert:

[The child] was harmed significantly by [the mother] during the relationship on at least two occasions (August 2021 and November 2022) per the CCTV footage forming the basis of criminal proceedings. Based on [Dr G's] assessment, and the current assessment of [the mother's] parenting, there is a strong indication that [the mother's] mistreatment of [the child] was chronic rather than being an exception to the norm. Specifically, given [the mother's] presenting problems - and critically her cognitive distortions around conflating violence and care - it seems likely that she took a generally harsh and authoritarian approach to parenting [the child], and was likely lacking empathy toward him including poor developmental knowledge.[78]

1. Further, and although the mother says that she regrets the incidents and "feels very sorry" for the manner in which she treated her son,[79] the mother also:

(a) Expressed a belief that "being subject to strict, harsh, physical discipline made the difference between her achievements in life and her sister's apparent failures";[80]

(b) Expressed concern about the child's future "if he received a more relaxed and tolerant form of parenting".[81] The expression of such a belief suggests to me that the mother still considers that her actions are justifiable;

(c) Expressed a belief that the child "will not be scared of her when they eventually meet" reasoning that the physical abuse happened a couple of years ago.[82] It is difficult to reconcile the mother's belief with the child's assertion to the Single Expert on 5 June 2024 that his mother hurt him "for no reason, even though I did what she said";[83]

(d) Advised the Single Expert that she rejected Dr G's assertion that she had been "cruel" to her son;[84] and

(e) On interview by the Single Expert, appeared to excuse her behaviour by referring to the sacrifices, which she had made for the child. Particularly, the Single Expert recorded the following:

[The mother] reflected further on the period where she hit [the child] in the video segments. She stated that she felt that, despite all the pressures and stressors she was dealing with during this period, she made personal sacrifices to support [the child's] study and wished to see some return on her investment in him. [The mother] used a Chinese idiom to express her feelings and attitudes about her approach to [the child] during this period, which was apparently difficult to translate into English. The literal translation is "you wish iron could turn into steel", such that something does not live up to one's expectations and can never do so. [The mother] provided the analogy of a group of people going camping with limited rations, and one person squandering them.[85]

(emphasis added).

1. My concern about whether the mother in fact regrets her actions and has meaningfully reflected upon the inappropriateness of the same are supported by Dr G, psychologist, who was engaged by the parties to assess the mother and provide a risk assessment. Particularly, and by his report dated 29 September 2023, Dr G said as follows:

I was concerned that [the mother] was unable to reflect on [the child's] internal experience of suffering, but rather focused on how [the child] was affected in his behaviour at school. Further it seemed [the mother] had difficulty in engaging directly with the question as to how [the child] felt because of her abuse of him, but rather positioned her primary concerns as exposing him to parental conflict and how this was reflected in complaints about his behaviour from third parties. This appears to suggest she struggles to connect emotionally to her child and is not attuned to his inner world or lacks empathy for him.[86]

(Emphasis added).

1. I am also concerned by the detached manner in which the mother presented when giving her evidence. Specifically, the mother appeared to be disinterested in the parenting proceedings and spent time scrolling her mobile phone and/or appeared to be asleep. Strikingly, she did not demonstrate any emotion when CCTV recording of the assaults on [...] August 2021 and [...] November 2022 was played in Court or when she cross-examined about those events and the impact of her actions on the child.
2. For these reasons, I am satisfied on the balance of probabilities that the mother physically assaulted her child on [...] August 2021 and [...] November 2022. As a corollary of this finding, I am also satisfied that the mother caused the child emotional harm.

1. As discussed above, the father also makes other allegations against the mother including that:

(a) In March 2019, he began noticing that the mother "would quickly lose her temper if [the child] ate too slowly or misbehaved, sometimes even when [the child] wouldn't do anything wrong, which would result in [the mother] slapping [the child]". Particularly, the father says that the mother would "slap [the child] on the arms, legs, or back very hard, to the point that the slaps would sound loud";[87] and

(b) In March 2023, the child made a disclosure that "Mummy hits me when she is angry, but I don't know what I did wrong". At the same time, the child said that "his neck and shoulder area was hurting". The father says that the child's disclosures were consistent with a disclosure made by the paternal grandmother to the effect that the mother hit the child on becoming impatient as a consequence of the child's inability to find something.[88]

1. The father's assertions in the affidavit, which he prepared for the final hearing are also consistent with assertions, which the father made to police in support of a Provisional Apprehended Domestic Violence Order in March 2023. Particularly, the father advised police that:

(a) From the time that the child was two years of age, the mother would slap the child "on the arms, legs or back very hard if she thought he was misbehaving or eating too slowly".[89] The final allegation bears similarity to a comment made by the child's paediatrician in December 2022 to the effect that the mother had been "force feeding" the child;[90] and

(b) During the period when the child was home-schooled as a consequence of the Covid-19 pandemic, the mother would "slap, punch, kick and push [the child] viciously when he would make mistakes on his homework or did not understand something straight away". The father also advised police that on at least one occasion, he noticed raised red marks on the child's body and when asked about the cause, the child said that his mother had hit him.[91]

1. The father's assertions to this Court and to police are also consistent with:

(a) The child's disclosure to a school counsellor in May 2023 that he does not see his mother because "she hits me";[92]

(b) Evidence given by the maternal aunt by affidavit filed on 22 May 2023 about her observations of the mother's parenting practices whilst living with the mother and the father between 2017 and April 2029. Particular, the maternal aunt says as follows:

(i) In early 2018, she "began to notice that my sister hitting [the child]. Around the time we moved in, I witnessed [the mother] shake [the child] uncontrollably and hit [the child's] head and face to release her anger, as [the child] did not eat as the way [the mother] wanted him to";[93]

(ii) On another occasion in 2018, the mother said to her "I just beat [the child] violently, so he dared not be disobedient";[94]

(iii) The maternal grandmother made a disclosure to her that the mother "used a clothes hanger to strike [the child]";[95] and

(iv) In 2018, she had a discussion with the mother at which time the mother asked her sister to shower the child and then get him to wear long clothes to cover his bruises;[96]

(c) A concession made by the maternal grandmother in July 2024 in the following terms:

Your Honour, [the mother] knows she is wrong and extremely sorry for hitting [the child] and quarrelling with [the husband]. But please do not think she is a bad mother or a bad person. [The mother] loves and cares for [the child] very much. I feel that when [the mother] hit [the child] she was very frustrated, she was mentally unwell, and she reverted to a very old fashion [sic] way of disciplining children that she experienced when she grew up in China.

That concession finds form in a letter from the maternal grandmother to the Suburb K Local Court dated [...] July 2024.[97]

1. In addition to the assaults, which occurred in August 2021 and November 2022, I have concluded that the mother was physically abusive towards the child on the additional occasions specified by the father. When reaching such a conclusion, I bring to account evidence in relation to events, which occurred on [...] June 2019. The father says that on that day, the mother had an argument with her sister and mother about finances, which resulted in the mother evicting her family members from the parties' property. The father says that:

(a) The mother grabbed a hair dryer and smashed an internal door of the property where the parties were residing causing the door damage.[98] The mother conceded on cross-examination that she threw the hair dryer but sought to justify her behaviour by saying that she had serious depression;

(b) The mother threw the maternal grandmother's belongings into the bin;[99] and

(c) The maternal grandmother called the father for assistance.[100]

1. The mother similarly said that she was seriously depressed when providing a justification for events, which occurred a few weeks prior to the events of [...] June 2019. Particularly, the mother conceded that on [...] June 2019 she arrived at the parties' residence in a distressed state and acted in an erratic manner by "banging her head against her bed frame".[101] Records from New South Wales police record that concerned about the mother's presentation, the father called the New South Ambulance Service. After conducting an assessment of the mother and determining that the mother did not require medical attention, emergency services left the property.[102]
2. The mother's behaviour across the period described above, causes me to conclude that the mother, at least as at June 2019, had significant issues associated with her emotional regulation. This being so, I consider it to be more likely than not that the mother assaulted the child on the other occasions referred to by the father and the maternal aunt. I also consider it to be more likely than not that the mother did so because of the following:

(a) The concerns expressed by Dr G and the Single Expert about the mother's "cognitive distortions that the infliction of pain and violence is normalised as a form of care for [the child]";[103]

(b) Dr G's assessment that "a range of relevant variables... [underpin the mother's] risk to [the child], the most salient of those being the presence of underlying attitudes rooted in childhood experiences that normalise aggression as care, reliance on maladaptive interpersonal and coping strategies, chronic mental health and personality difficulties";[104]

(c) Dr G's opinion that "[the mother] has developed a distorted view of violence as a form of care";[105] and

(d) The mother's disclosure to the Single Expert that she "saw no problem with hitting [the child] during the relationship because this is a traditional Chinese way of disciplining children".[106]

1. When forming a view that the mother was physically abusive towards the child on the additional occasions specified by the father, I also bring to account:

(a) The child's disclosure to a school counsellor in May 2023 that he does not see his mother because "she hits me";[107] and

(b) The child's disclosure to the Single Expert in similar terms.

1. When giving consideration to the father's allegations, it is not necessary to "atomise"[108] or analyse every fact or circumstance and determine if it supports a conclusion that the child is at an unacceptable risk of harm in the mother's care. On balance, the evidence, which I have summarised above does cause me to conclude that the mother physically abused the child during the parties' relationship. It necessarily follows that the mother has also caused the child emotional harm.

Does the mother present a risk of harm to the child on account of her mental health?

1. In June 2023, Mr L, clinical and forensic psychologist, prepared a psychological assessment report for the purposes of the criminal proceedings against the mother.[109] The report was tendered into evidence, but Mr L himself was not called by the parties or the Independent Children's Lawyer to give evidence. Accordingly, his report was not challenged by the parties or the Independent Children's Lawyer. By his report dated 6 June 2023, Mr L expressed opinions in the following terms, namely, that:

(a) The mother's "lack of control and voice in her family due to such strict authoritarian parenting style by her parents would have significantly reduced her self-esteem and predisposed her to significant anxiety later in life";[110]

(b) The mother's "longing for perfection had precipitated her obsessions over orderliness and cleanliness, which she neutralised by overcleaning, over-organising, and rigid routines";[111] and

(c) At the time of the assault of the child in August 2021 and November 2022, Mr L considered that the mother was suffering from an obsessive-compulsive disorder and a major depressive disorder within the meaning provided to those diagnoses by the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition, Text Revision.[112]

1. Mr L also identified that the mother's suicidal ideation scale was "markedly elevated".[113] Indeed, the mother advised Mr L that "she often self-harmed by cutting her wrist" with the last such occasion occurring in about May 2023.[114] The mother's self-harming behaviour was evidenced by way of a "short horizontal scar on [the mother's] left wrist".[115]
2. Against this background, Mr L recommended that the mother receive psychological intervention.
3. Subsequent to the preparation of the first report, the mother attended on Mr L on an additional twelve occasions. Those attendances are the subject of a report prepared by Mr L dated 4 April 2025.[116] The report identifies that:

(a) Across 2024, the mother demonstrated fluctuations in mood and self-harming behaviours as evidenced by "deep scars on [the mother's] left wrist".[117] The mother's mental health had so declined that she had a "brief intervention from Community Mental Health Services to stabilise her self-harm and suicidal risk".[118] It appears that Mr L had limited information about the success (or otherwise) of this intervention advising the Single Expert in June 2024 that he was "uncertain about [the mother's] ongoing engagement with this service"; and

(b) By October 2024, the frequency of the mother's suicidal ideations had reduced.[119]

1. I consider that I can only give little weight to Mr L's April 2025 report in circumstances where:

(a) At the time that Mr L prepared his report in April 2025, he had only attended on the mother on one occasion in 2025, namely, on 20 February 2025; and

(b) Mr L did not attend on the mother at all between October 2024 and February 2025 in circumstances where the mother returned to China.[120]

1. The Single Expert contacted Mr L on 19 June 2024 for the purposes of obtaining information so that she might prepare her Family Report. At that time, Mr L advised the Single Expert that:

(a) For reasons unknown to him, there were "large gaps between the first four treatment sessions (ranging between one and six months)". During this time, the information provided by the mother suggested that she was "severely depressed".[121] It was the opinion of the Single Expert that this symptomatology may have impacted the mother's "ability to function, including to meaningfully participate in psychotherapy";[122] and

(b) He still held concern about "obsessions and compulsions for [the mother], based on his behavioural observations". Mr L said that this was an ongoing area of assessment.

1. Having regard to her discussions with Mr L, the Single Expert formed the following opinion:

I formed an impression from [Mr L's] account that [the mother] was suffering with severe and chronic depressive symptoms in addition to the impacts of significant environmental stressors (e.g., the Family Law proceedings, the loss of her working with children check that has severely limited her employment prospects, the financial impact of the Family Law proceedings, and her separation from [the child].[123]

1. As discussed above, the mother was also the subject of an assessment by Dr G, psychologist.[124] He was not called to give evidence, however, his report dated 29 September 2023 was admitted into evidence with the consent of the parties and the Independent Children's Lawyer. Dr G undertook several tests and received the results of a Personality Assessment Inventory performed by Mr L.[125] I am concerned about the results of that testing and the implications with respect to the mother's application for unsupervised time with the child. Particularly, and on his review of the psychometric assessment, Dr G noted the following:

(a) Testing reflected "significant elevations across many pathological conditions". Particularly, test results identified that the mother was suffering from depression, post-traumatic stress, obsessional behaviours, hypervigilance, social detachment and unstable relationships. Taken as a whole, Dr G concluded that the Personality Assessment Inventory identified that the mother was suffering from "a severe level of personality dysfunction with multiple potential diagnoses";[126]

(b) Testing identified that the mother "is easily disheartened and lacks the ability to self-sooth or develop stress tolerance";[127] and

(c) The NEO Personality Inventory suggested that:

(i) The mother's profile was "dominated by very high elevations on neuroticism, implying significant psychological vulnerability and morbidity";[128] and

(ii) The mother's coping mechanisms are poor and "dominated by hostile reactions towards self and others".[129]

1. Dr G also utilised a "Family Strengths and Needs Assessment Tool". Although that tool "considers 13 salient risk factors", Dr G only reported on five risk factors because "the presence of five salient risk factors" rendered other risk factors redundant.[130] Dr G's summary of the risk factors was as follows:

It was Dr G's opinion that the mother reflected "significant psychosocial and mental health morbidity, with the problems likely being long term and effectively untreated for several years";[131]

It was Dr G's opinion that testing revealed the mother as having "destructive parenting skills". Particularly, the testing identified that the mother lacked "emotional warmth, congruence with her child" and "has been violent and abusive towards him, over likely a sustained period";[132]

Dr G opined that the mother demonstrated a "sustained pattern of relationship aggression and volatility for several years";[133]

The mother advised Dr G that she has little social support;[134] and

Dr G noted that the mother has an "abuse history" but in any event, the mother's plea of guilty with respect to her assault of the child in August 2021 and November 2021 resulted in this being a high-risk factor.

1. As a consequence of his assessments and testing, Dr G concluded that the mother does suffer from problems with "violent ideation or intent" as well as a lack of empathy, severe mood disturbance and nihilism.[135] He also considered that the mother's response to engagement with treatment was "too little too late" and he expressed concern about the mother's passivity, negativity and hopelessness.[136] The mother's irregular attendance on Mr L as described above highlights this concern.
2. On balance, Dr G concluded that the mother's "overall risk for future violence is moderate, but with a good response and active seeking of treatment, her risk is likely to diminish".[137]
3. The Single Expert's interpretation of Dr G's assessment and the Single Expert's findings at paragraph 177 of her report, were the subject of extensive cross-examination by the mother's counsel. Again, and addressing the five salient risk factors referred to above:

(a) The Single Expert conceded that the mother had engaged in psychological treatment of her mental health problems but expressed a view that this engagement was "fledgling in nature" and that this was "largely expected due to the severe longstanding, and entrenched nature of her personality-based problems as well as the apparent functional difficulties caused by her depressive symptoms".[138] The mother's counsel referred to Mr L's report and specifically, Mr L's comment that the mother had been "compliant with all my directions and had genuinely engaged in all treatment activities".[139] He also identified that the mother had been attending on her psychiatrist on a biannual basis and had not self-harmed since February 2024. That might be so, however, the Single Expert said that she was "looking for changes", which were not necessarily evident and, in any event, identified that the mother's treatment was still in its nascent period. I agree with the Single Expert's assessment. Indeed, the fact that the mother has only attended on Mr L on one occasion since October 2024 causes me concern because on discussion with the Single Expert, Mr L still expressed concern about the mother's "obsessions and compulsions" (supra) and suggested that this was an ongoing area of assessment. I also bring to account:

(i) The Single Expert's concern that the mother's symptomatology may have impacted on her ability to meaningfully participate in psychotherapy; and

(ii) Mr L's treatment focus as at June 2024 was still on "alleviating [the mother's] depressive symptoms in the first instance";[140]

(b) The mother's counsel suggested to the Single Expert that the fact of the mother now living with the maternal grandmother was evidence that the mother had repaired her relationship with her mother and this being so, I could discount Dr G's concern about a "sustained pattern of relationship aggression and volatility" with respect to the mother's relationship with family members. In response, the Single Expert noted the obvious, namely, that living with a relative does not rule out a "toxic relationship". Further, and although the mother and the maternal grandmother were "on the same page" with respect to financial issues, I had no other evidence, which may have enabled me to form a view as to the nature of the relationship between the mother and her family members. When forming this conclusion, I place no weight whatsoever on the fact that the maternal grandmother and the mother in effect ran the same case with respect to financial issues. The fact that the mother and the maternal grandmother were ad idem with respect to financial issues simply speaks to their self-interest as opposed to any evidence of a warm and affectionate relationship between them. I also bring to account the fact that in 2023, the mother's sister was prepared to file an affidavit, which was extraordinarily critical of her (supra); and

(c) The mother's counsel also suggested to the Single Expert that the mother had demonstrated a significant improvement in occupational functioning and that this was evidence of the mother's improved mental health. That proposition, however, was without foundation noting that at the time the mother prepared her trial affidavit, she was unemployed and had been so since May 2024.[141]

1. Despite his considerable efforts, I do not consider that the mother's counsel successfully undermined the Single Expert's conclusions in the following terms, namely, that:

(a) Whilst the mother had "expressed a verbal commitment not to physically harm" the child, she "lacks a repertoire of alternative appropriate parenting strategies".[142] I agree with that assessment. Indeed, and as discussed above, the mother still expressed an opinion as at June 2024 that "strict, harsh, physical discipline" (supra) may be the difference between her son's success or otherwise. This being so, I agree with the Single Expert's finding that the mother "lacks insight into her distorted belief system that normalises aggression as a function of care".[143] Despite her platitudes acknowledging the significant harm, which physical discipline causes children, I did not receive any evidence, which persuaded me that the mother in fact understood the gravity and inappropriateness of her actions;

(b) The mother lacks "practical and realistic plans to coparent". Particularly, the Single Expert expressed an opinion that when "faced with [an] unexpected (yet predictable) difficulty, [the mother] will be ill-equipped to problem solve, to protect [the child] from conflict, and to make any coparenting orders work".[144] I agree with that opinion. Certainly, the mother did not offer any written or oral evidence, which might cause me to form an alternative opinion; and

(c) The mother presents a high risk of abuse to the child in her care.[145]

1. It is important to stand back and look at the evidence put forward supporting allegations of abuse as a unified whole. That is because facts considered in isolation might not provide a basis to reach a finding or draw an inference, whereas a combination of some or all might provide a basis to do so.[146]
2. Having assessed the evidence before me, I am satisfied, on the balance of probabilities, that the mother has perpetrated family violence against the child in the form of physical and emotional abuse. She did so not only in August 2021 and November 2022 but on the additional occasions asserted by the father. For the reasons discussed above, I accept the Single Expert's opinion that the mother conflated violence and care and that the mother took a "generally harsh and authoritarian approach to parenting" (supra).
3. The mother's behaviour in August 2021 and November 2022 was repugnant. In my opinion, such abuse is intrinsically linked to the mother's ongoing but misguided belief that physical violence towards a child engenders academic success or behavioural outcomes, which are satisfactory to her. Undoubtably, the mother's belief is casually related to the abuse, which she suffered at the hands of her own father. However, I would be abrogating my role as a judicial officer if I make orders, which would result in the exposure of the child to further physical and emotional abuse.
4. For the reasons discussed above, I find that the child is at risk in the care of the mother and that the risk remains to an unacceptable level.

Is the child's rejection of his mother justified or unjustified and does the father present a risk to the child on account of his influence of him and/or exposure to family violence?

1. The child advised the Single Expert in a "clear and repeated manner" that he wanted nothing to do with his mother.[147] He also expressed a fear of his mother and an expectation that she will continue to harm him.[148] On cross-examination by the mother's counsel, the Single Expert conceded that she had no reason to consider that the child was not being "forthright" when he was expressing his negative views of the mother. She also accepted that the child was "scared" of his mother and advised me on cross-examination that the child was demonstrating some indicia of post-traumatic anxiety.
2. For these reasons, and in circumstances where I have found on the balance of probabilities that the mother has physically and emotionally abused her son, I consider that the child's rejection of his mother is justified. When forming this view, I also bring to account the following extract from the Family Report:

[The child] recalled that [the mother] had apologised for hitting him, however, "she hit me again". He stated that [the mother] had many "chances for her to stop hitting us". It seems [the child] feels betrayed by his mother and does not trust her.[149]

1. Having said this, the Single Expert conceded on cross-examination by the mother's counsel that:

(a) The child's use of the words "us" and "we" when describing abuse suffered at the hands of the mother suggests that the child had been heavily influenced by his father; and

(b) The child's inability to remember anything positive about his mother again suggests that the father has taken steps to undermine the relationship between the child and his mother. When expressing this opinion, the Single Expert identified that even children who have been abused by a parent have positive memories of them.[150]

1. The Single Expert's oral evidence was consistent with her written evidence in the following terms:

I am concerned that [the father] has behaved in ways that have undermined [the child's] potential future ability to connect with his mother. [The father] inaccurately and rigidly pathologizes [sic] [the mother] and has seemingly encouraged [the child] to do the same. [The father] is apparently supported by his relatives to pathologize [sic] [the mother, which solidifies the effect on [the child].

1. For these reasons, I find that the father does present a risk of harm to the child by reason of his "undue influence on" the child's expressed views[151] and/or the risks, which the child will face if he has no relationship with his mother whatsoever. In relation to the father's preparedness to facilitate a relationship between the child and his mother, the Single Expert said as follows:

[The father] has no willingness or ability to encourage a close and continuing relationship between [the child] and his mother. In fact, it seems he is committed to the opposite.[152]

1. Having regard to the Single Expert's written and oral evidence, I find that the father presents an emotional risk of harm to the child. Particularly, I agree with the Single Expert's assessment that:

(a) The child is too young to have any appreciation of the long-term implications of the severance of contact with his mother;[153] and

(b) It is important for the child to have a "disproving experience" and an ability to at least know his mother.

1. The Single Expert identified several risks to the child's emotional development, which may eventuate absent the involvement of the mother in his life. Those risks include issues associated with the child's employability once he enters adulthood, a difficulty forming and maintaining relationships, mental health issues (including suicidality) and substance abuse.
2. For these reasons, I have concluded that although the child's rejection of his mother is justified, I ought to make an effort to implement arrangements, which might maintain some relationship between the child and his mother. I also consider that I ought to make such an effort to ameliorate the worst aspects of the father's influence of the child. I discuss the options available to me below.
3. In addition to the emotional risks presented by the father to the child, I note that by her affidavit prepared for the final hearing and on cross-examination, the mother raised allegations to the effect that:

(a) The father was "controlling and abusive";[154]

(b) The father was verbally and physically abusive;[155] and

(c) The father would stalk the mother "from home to my workplace, my patients' houses and my mother's home".[156]

1. I do not consider that it is necessary to traverse the mother's allegations of family violence to make definitive findings as they would not authentically influence the determination of the dispute.[157] Particularly, and at [87] of the decision of the Full Court in Pickford & Pickford, Justice Austin and Williams said as follows:

Even if the parties did inadvisedly challenge one another about disputed allegations of historical family violence, either in cross-examination or by duelling submissions, given how the disputed allegations did not seem genuinely material to the outcome of the narrow parenting issue left to decide, one wonders why it was necessary for his Honour to appease the parties by engaging with their debate. It is apposite to observe how judges need not make findings to resolve contested facts unless the findings authentically influence the outcome. In fact, the High Court of Australia has expressly cautioned against unnecessary factual findings in the context of risk assessment (M v M (1988) 166 CLR 69 at 76-77) ("M v M"). So has this Court (Eastley & Eastley [2022] FedCFamC1A 101; (2022) FLC 94-094 at [18] and [31]) ("Eastley").

1. In this case, the mother has since September 2024 promoted an outcome whereby the child live with the father. This being so, I do not consider that the mother can contend that the child requires future protection from family violence perpetrated by the father. As Justices Austin and Williams identified in Pickford, it would be impossible to reconcile such a contention with her application.

Can the Court craft orders to ensure an ongoing relationship between the child and his mother?

1. I have concluded there is a risk that the mother will physically abuse the child. As Justice Austin said in Fitzwater (supra), "at some point on the continuum the risk of harm becomes so potent it cannot be tolerated".[158] The evidence summarised above causes me to conclude that the risks presented by the mother cannot be tolerated.
2. A conclusion of unacceptable risk necessarily requires a consideration of the means which might be adequate to sufficiently mitigate the risk to an acceptable level.[159] The task, which falls to me was identified by the Full Court in Blinko & Blinko as follows:

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.[160]

1. As discussed, the mother proposes to undertake reunification therapy for the purposes of facilitating a reintroduction of the child to the mother and so that the mother might deliver "a statement or explanation to the child" about her past behaviour.[161] The only written evidence, which the mother gives on this topic is as follows:

I am also willing to participate in reunification therapy, parenting courses, or any additional programs that may assist the process of re-establishing contact.[162]

1. The proposal made by the mother and the Independent Children's Lawyer is consistent with oral evidence given by the Single Expert who expressed the following views:

(a) It would be detrimental to the child if he did not have the benefit of "structured reconciliation with the mother". The Single Expert envisaged that the therapy would address the significant "gap in time" since the child last saw his mother, the abuse, which he suffered at the hands of his mother and provide the mother a forum within which to apologise to the child; and

(b) After six months of reunification therapy, it would be appropriate to move to supervised time between the child and the mother.

1. Although the proposal of the mother and the Independent Children's Lawyer addresses the Single Expert's concern about the child being given an opportunity to reconnect with his mother, the Single Expert expressed limited confidence that reunification therapy will be successful. Particularly, and during her oral evidence, the Single Expert said that:

(a) It will be difficult to reintroduce the child and the mother, and the father is unlikely to be unable to emotionally support the child to engage in a reintroduction process; and

(b) It is unlikely that family therapy will succeed. Further, and if reunification therapy proves ineffective, then the Single Expert expressed concern that it will deplete the mother's emotional resources. This is in circumstances where the Single Expert described the mother as "extremely vulnerable", having "many external and psychological needs" and "few supportive resources".[163]

1. The Single Expert also raised concerns about the child's resilience and his ability to participate in reunification therapy and thereafter spend time with his mother. In her written evidence, the Single Expert said as follows:

[The child] would be disturbed to be removed from [the father's] care. [The child] is fearful of his mother and has been chronically mistreated by [the mother] until no contact was initiated between them over 12 months ago. He would likely regress and become distressed in such a scenario. [The child] does not appear to be a particularly resilient child, as he is experiencing problems at school (with engagement and academic achievement) and seems to have an elevated sense of personal inadequacy. According to the school counsellor, [the child] is likely not to verbalise his problems or proactively seek help for them. These are all relevant to [the child's] ability to absorb and adjust to a significant change to his living arrangements.[164]

1. In her oral evidence, and under cross-examination by the father's counsel, the Single Expert expressed a view that her concern about the child regressing represents a contraindicator that family therapy will be successful.
2. On balance, however, I consider that it is in the child's best interests to engage in reunification therapy and thereafter, spend supervised time with his mother. I consider that any risk of harm (whether such harm be physical abuse or emotional harm) will be ameliorated by the fact that at least initially, the child will only spend time with his mother under the supervision of a therapist and thereafter, time will occur at a contact centre. Further, I am confident that time spending within a supervised environment will deter the mother causing physical harm to the child.
3. When arriving at a determination that it is appropriate to make an order for reunification therapy and supervised time, I have regard to the father's own affidavit wherein he says:

More recently, [the child] does not speak about his mother unless I raise the topic. When I ask whether he misses her, he usually responds "no". If I explain that he may need to see her, he without emotion says "okay", without further comment.[165]

1. On cross-examination, and having regard to the father's evidence, the Single Expert suggested that the child's ambivalent attitude about seeing his mother may be an indication that his views are "not as entrenched" as perhaps the expert considered them to be when she interviewed the child in June 2024. Further, and despite the position adopted by him at the time of closing submissions, the father had previously advised the Single Expert that he would not oppose he child spending time in his mother's care provided that such time is supervised.[166]
2. For these reasons, I will make orders for reunification therapy and supervised time in the terms promoted by the mother and the Independent Children's Lawyer. Particularly, I will make orders that:

(a) For a period of six months, the child spend supervised time with the mother at a contact centre on the first Saturday of each month between 9.00am and 12.00pm; and

(b) Thereafter, the child spend supervised time with the mother at a contact centre on each alternate Saturday between 9.00am and 12.00pm.

1. When making orders in these terms, I note that the undesirability and practical difficulties associated with long term supervision of a child's time with a parent is well-documented in the authorities and the Court's obligation when considering an order for indefinite supervision of time is clear. [167] The Full Court in Gorman & Huffman and Anor [2016] FamCAFC 174 said at [297]:

The guideline would appear to contain four components. First, while a failure to limit supervision is not itself an error, the failure to consider a limitation upon it may constitute an error in the exercise in discretion. Second is the necessity to give "cogent" reasons. Thirdly, and in practical effect alternatively, is the apparent necessity for the orders to "allow for some review of the situation in the future". Fourthly is the need to give reasons reflective of the consideration of those issues.[168]

1. However, in Helbig & Rowe [2016] FamCAFC 117, the Full Court explained at [214] (citing A v A [1998] FamCA 25; (1998) FLC 92-800), that where a case is conducted on the basis of it being contended that there is an unacceptable risk of harm to a child in the care of one parent, "[t]he first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk" (Emphasis added).[169]
2. Additionally, after referring to and applying that decision, the Full Court in Keane & Keane [2021] FamCAFC 1; (2021) 62 Fam LR 190 at [84] stated:

In undertaking the task of considering what steps are "proportionate to the degree of risk", the decision of Blinko makes it clear that the mere finding that a child may be at an unacceptable risk as a result of spending time in the care of another parent does not conclude the task before the primary judge. A necessary consequence of that finding, having regard to the totality of matters that the court is required to consider pursuant to s 60CC of the Act, is for the court to contemplate whether steps can be taken to ameliorate or mitigate against that risk such that the child can maintain a meaningful relationship with the other parent. (Emphasis added)

1. In Summerby & Cadogen [2011] FamCAFC 205 at [95], the Full Court also noted the potential adverse impact upon a child of permanent separation from his/her parent and, in the context of that case, agreed with and applied the analysis of the trial judge in those proceedings to conclude that "the termination of a child's relationship with one of her parents is a course of last resort."
2. Given the potential consequences for a child of such a separation, careful consideration is required on the part of a trial judge before reaching a conclusion of no time and no communication. Again, I refer to Blinko & Blinko [2015] FamCAFC 146 ("Blinko") where the Full Court said at [28]:

The authorities dealing with cases of unacceptable risk are replete with exhortations to trial judges to "consider deeply where the facts of the particular case fall, and to explain adequately their findings in this regard": see for example N and S and the Separate Representative (1996) FLC 92-655 at 82,714. That extends not merely to the identification and analysis of the risk itself, but also to the imposition of conditions or other safeguards in relation to the non-resident parent. [170]

1. I am satisfied the evidence demonstrates that the child has suffered physical and emotional harm in the care of the mother. I am also concerned, for the reasons discussed above, that the child is at risk of suffering additional harm in the event that I make an order for him to spend unsupervised time with his mother. This being so, the only outcome that can be achieved is an order for the child to spend time with his mother in a supervised environment. The need for an order for indefinite supervision of the child's time with the mother in these proceedings is clear having regard to my findings and to the expert's unshaken evidence that the mother is extremely vulnerable, has many external and psychological needs and few supportive resources. It was also the opinion of the Single Expert that it is necessary for the mother continue to receive counselling and psychiatric review for the problems, which have been identified by Dr G and Mr L.[171] In this regard I attach weight to the Single Expert's opinion.
2. In support of an application for unsupervised time, the mother's counsel submitted that the child's increasing age and maturity will itself provide protection to the child and prevent him from being exposed to any further acts of violence or excessive discipline at the hands of his mother.[172] Whilst there is some merit to that argument, the overarching problem I face with the submission made by counsel for the mother is that supervised time between the child his mother has not been tested. Additionally, and at no time since the commencement of these proceedings has the mother sought an order from the court for supervised time. Consequently, I have no forensic evidence before me to assess the effectiveness of such an order and the impact it will have on the child. It may be the case that reunification therapy will not work, rendering an order for supervised time impractical. I have referred above to the cautions expressed by the Single Expert with respect to the child's participation in reunification therapy.
3. Further, and for the reasons discussed above, I do not have any evidence about when it might be that the mother will satisfactorily develop the insight, which will mitigate the risk of the child being susceptible to harm in her care. As discussed above, Dr G and the Single Expert each identify the reasons why the mother presents a risk of harm to the child.
4. I am obligated to finalise the litigation on the available evidence. Building some form of self-executing mechanism into the final orders to dispense with supervision at some indeterminate point in the future is arbitrary and may lead me falling into error by trying to conjure orders which do not match the evidence.[173] I would simply be speculating as to the success or otherwise of reunification therapy or supervised time.

Supervision of the child's time with the mother by the maternal grandmother

1. The Independent Children's Lawyer promotes an outcome where after a period of six months, the child spend supervised time with his mother at a contact centre or alternatively, time supervised by the maternal grandmother.
2. I am not inclined to make an order, which permits the child's time with the mother to be supervised by the maternal grandmother. This is because the maternal grandmother was present on the occasion on which the child was assaulted by the mother in August 2021. As discussed above, the first video of the events of August 2021 depicts the mother sitting to the child's left whilst he is completing his homework. When unable to complete his homework to the mother's satisfaction, the mother struck the child three times to the back of his head causing him to scream and then cry. The second video depicts the mother striking the child with force to his buttocks causing him to scream and cry. The third video depicts the mother striking the child twice to the left of his face with a closed fist. The acts referred to in the first, second and third videos were witnessed by the maternal grandmother who had been sitting in proximity to the area where the child was studying. At no stage prior to the events depicted in the fourth video did the maternal grandmother make effort to shield the child and remove him from harm.
3. This being so, I do not consider that the maternal grandmother is a person who has an ability to act in a protective capacity and shield the child from harm. Further, the maternal grandmother was not cross-examined about her preparedness or ability to do so.

Section 60CC(2)(a) and 60CC(2A) - The arrangements that would promote the safety of the child and each person who has care of the child

1. These statutory provisions are concerned with the advancement of the child's best interests by keeping the child and each person who has care of the child safe from family violence, abuse and neglect. Abuse is defined in s 4 of the Act and family violence is defined in s 4AB of the Act.
2. Section s 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.

1. I have set out above my findings. I have concluded that:

(a) The mother has engaged in family violence;

(b) The child was exposed to family violence perpetrated by the mother; and

(c) There is a risk of harm to the child if he spends unsupervised time with the mother.

1. This being so, it is necessary for me to make an order that the child's time with the mother be supervised.

Section 60CC(2)(b) - any views expressed by the child

1. It is the father's position that the child is resistant to spending time with the mother and that the child's "expressed views stem from a fear of his mother and an expectation that she will continue to harm him".[174] Accordingly, counsel for the father submits that it would not be in the best interests of the child to make orders for him to spend time with the mother.
2. The father also says that the child has indicated to him on several occasions that he is fearful of his mother. Particularly, the father asserts that:

(a) In February or March 2023, the child said, "Mummy hits me when she is angry, but I don't know what I did wrong". On the same day, the father also asserts that the child said "I didn't do anything, mum just hit me";[175]

(b) On multiple occasions in 2023 and 2024 the child said that he wants "to live with Daddy because mummy always hits me";[176] and

(c) When he spoke to the child "early in these proceedings about seeing his mother again, [the child] would tell me that he does not wish to see her right now as he is fearful of her".[177]

1. As discussed above, the child made disclosures to the Single Expert in similar terms.
2. I am prepared to accept the child has said things as alleged. However, that only establishes the fact of the utterances. I adopt Harper J's careful analysis of this concept in Alam & Sayid [2021] FamCA 564 at [185]:

The truth of the facts asserted in the disclosures is a separate and further question. Severe parental conflict can cause some parents to mishear what children say to them, or even motivate them to exaggerate or contrive allegations against the other parent. Questions of plausibility of disclosures can become all the more difficult to assess for these reasons.[178]

1. Further, the child's expressed position must be viewed in light of the Single Expert's opinion about the father's conduct in assisting the child to formulate such a position. At [186] to [187] of her report, the Single Expert said as follows:

[The child] expressed a wish to live with his father and to have nothing to do with his mother in a clear and repeated manner.

[The child's] expressed views stem from a fear of his mother and an expectation that she will continue to harm him.

However, it was also evident that [the child] has changed his view from one of being more ambivalent (which is normal among children who have been abused, because they still love the abusive parent and almost always have some positive experience of them alongside the harmful ones) to one that is unambiguously rejecting of his mother and unwilling or unable to consider different scenarios of connecting with her that provide increased safety. This is interesting given that [the child] has had no contact with his mother since expressing his more ambivalent view. I expect that [the father] has had additional undue influence on [the child's] expressed views. [The child] is also only eight years old and did not demonstrate any appreciation of the long-term implications of his current views, which is expected for his age and developmental stage. In this sense, the court should weight [the child's] views according to these considerations.[179]

1. I also bring to account notes of the child's school counsellor, which record the following:

(a) In May 2024, the child advised his counsellor that he had not seen his mother and had "no current worries about mum"; and

(b) In June 2024, the child expressed concern to his school counsellor that his "mum might take him from school and might hurt him".[180]

1. I am somewhat perplexed about how the child formed a view in June 2024 that his mother might remove him from school in circumstances where at that juncture, he had no contact whatsoever with the mother for a period of about fourteen months. It is possible that the child held such a belief because of the influence, which the Single Expert says the father brings to bear on the child. Certainly, such influence might explain the change in the child's views between May and June 2024.
2. Given the conflict between the parties, I consider that the father's hearsay evidence about views expressed to him by child, while admissible, ought to be given limited probative weight. It is well accepted that the expressed views of children are liable to be influenced by the parent with whom they live.[181] Only the views expressed a child to third parties in the parent's absence, like the Single Expert, are prone to carry any probative weight.
3. On cross-examination, the father conceded that he would respect the child's wishes to see his mother if the child asked to do so. The father's written evidence (supra) was that the child said he would be "okay" if he had to spend time with his mother.
4. As discussed above, I am concerned about the consequences for the child in the event that he does not spend any time with his mother. He is not developmentally equipped to appreciate the consequences for him in the event that I was to accede to the father's application.
5. For these reasons, I maintain that notwithstanding the child's expressed views, it is appropriate to make an order for supervised time between the child and his mother.

Section 60CC(2)(c) - The developmental, psychological, emotional and cultural needs of the child

1. The evidence supports a finding that the child was exposed to family violence. Accordingly, I find myself compelled to make orders, which will protect the child from physical harm and further, protection of his psychological and emotional needs. For the reasons already discussed, I find that an order for supervised time will provide the child with the necessary protection.
2. As discussed, the child does not appear to be particularly resilient and the enquires of the Single Expert suggested that the child is "experiencing problems at school" with engagement and academic achievement.[182] I consider that the implementation of supervised time spending represents a cautious path forward and will avoid the significant disruption about which the Single Expert was concerned if I acceded to the mother's application for unsupervised time.
3. With respect to the cultural needs of the child, the mother and the father each have Chinese heritage. I was not addressed as to this consideration. However, the child will by reason of orders I make, maintain a connection with his mother and father and accordingly, his Chinese heritage.

Section 60CC(2)(d) - The capacity of each person who has or is proposed to have parental responsibility for the children to provide for the children's developmental, psychological, emotional and cultural needs

1. I accept submissions made by counsel for the Independent Children's Lawyer that both parents have weaknesses in his/her capacity to care for the child. For instance, the Single Expert identified the father's permissiveness with screen time[183] and the mother's tendency to view the child as a "friend" as weaknesses.[184]
2. However, and on the application of each party, the father will continue to be the unchallenged primary carer of the child. This is in circumstances where to his credit, the father has:

(a) Obtained counselling for the child as recommended by the Single Expert[185]; and

(b) Participated in sessions with the Uniting Anchor Program.[186]

1. In addition, the Single Expert has concluded that:

(a) The father possesses more insight into his parenting approach than the mother;[187]

(b) The father has created an age-appropriate daily routine for the child;[188]

(c) Whilst "[n]either parent seems particularly well equipped to meet [the child's] emotional needs", she has concerns that the child "would be disturbed to be removed from [his father's] care";[189] and

(d) The child is at a low risk of being exposed to psychological harm in his father's care.[190]

1. Whatever the scenario, the parties and the Independent Children's Lawyer have consented to the father being the beneficiary of an order to the effect that he have sole parental responsibility for the child. This being so, it is implicit that the mother and the Independent Children's Lawyer also consider that the father is a person who is able to provide for the child's developmental, psychological, emotional and cultural needs.

Section 60CC(2)(e) - The benefit to the child of being able to have a relationship with the children's parents, and other people who are significant to the child, where it is safe to do so

1. It is the father's position that the child's relationship with his mother ought to be severed. That is often called an option of last resort.[191] It is the opinion of the Single Expert that:

[The child] would benefit from having a meaningful relationship with both of his parents. Each parent has different perspectives, parenting styles, and interests which can potentially enrich his experiences and promote robust development. In [the child's] case, both of his parental relationships represent potentially meaningful influences in his life, particularly given the lack of stepparents and many extended family members residing overseas.[192]

1. The orders, which I will make will allow the child the benefit of maintaining a relationship with each parent. With respect to the mother, the orders will allow the child the benefit of a relationship in a safe and structured environment. I am also satisfied that supervised visits will be sufficient for the child to maintain a relationship with his mother until the mother is able to persuade the father or this Court that she is capable of spending time with the child without the need for such time to be independently supervised.

Section 60CC(1)(b) and s 60CC(3) - Right to enjoy Aboriginal or Torres Strait Islander culture

1. These sections do not fall for consideration given the factual background of these proceedings because the child is not an Aboriginal or Torres Strait Islander child.

Section 60CC(2)(f) - Anything else that is relevant to the particular circumstances of the Children

1. No other consideration was addressed by counsel for the mother, the father or the Independent Children's Lawyer.

THE FATHER'S PROPOSED RELOCATION TO THE CITY OF PERTH

1. A secondary issue in these proceedings is the father's desire to relocate with the child to Perth, Western Australia.[193]
2. In AMS v AIF [1999] FamCA 1002; (1999) FLC 92-858, Hayne J identified that the focus of the Court must be on how a child, or children would be affected either to their detriment or their benefit by the separate proposals of the parties:
   1. An important, probably essential, step in the inquiry into who should have custody of, and access to, the child is to identify where the custodial parent intends to live, for that will determine where the child lives and affect what contact the non-custodial parent can be expected to maintain with the child. But that is not to say that it is for the Court to decide where the custodial parent may live: that decision is to be made by the parent.

...

1. To translate the question into this form - has the mother shown a good, or good enough, reason for wanting to move - focuses attention upon the reasons and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child - to be in the custody of the father ... or to be in the custody of the mother ... . That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother's custody ... .[194]

1. The Full Court in Starr & Duggan [2009] FamCAFC 115, gave clear direction as to the co-existence principle that the best interests of the child are the paramount consideration and the legislative framework will, of necessity, involve some overlap of a consideration of similar factors pursuant to s 60CC of the Act. The approach is not meant to be rigid such that:
   1. ... it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
      • first make findings concerning the relevant s 60CC factors;
      • then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child's best interests; and
      • then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) - which may be done by referring back to the earlier s 60CC findings.[195]
2. The relocating party is not required to justify why he or she seeks to relocate. I am simply obliged to consider how the best interests of the child will be served against the setting of each of the parties' respective proposals.
3. However, in circumstances where I have concluded that it is in the child's best interests to spend time with his mother, the repercussions of the child's relocation to Western Australia would be detrimental. In addition:

(a) Any relocation to Western Australia would make any order made by me for reunification therapy and/or supervised time infeasible;

(b) The father has not satisfied me by reference to his written or oral evidence that he has the resources available to him to facilitate the child's return to Sydney on a monthly or fortnightly basis (as would be required by my orders); and

(c) Maternal and paternal family members are located in Sydney. I do not consider that the father has given any consideration to how these relationships might be maintained in the event that I granted his application.

1. For these reasons, I dismiss the father's application to relocate the child's primary place of residence to Western Australia.

(a) Has made positive findings of physical and psychological abuse by the mother;

(b) Has assessed that the mother poses an unacceptable risk of harm to the child;

(c) Has determined that the only viable option to mitigate any risk the mother poses to child is for her time with the child to be supervised on an indefinite basis with such supervision to occur at contact centre; and

(d) Finds that it is in the child's best interests to maintain a relationship with each of his parents.

1. I have formed the view that the child's best interests are served by being therapeutically supported to be re-introduced to the mother along with supervised time. I have formed this view because:

(a) The child can hopefully experience a new narrative about his mother and therefore himself;

(b) Therapeutic scaffolding, a period of reunification therapy and thereafter, supervised time, is about the only proportional option available to the court to try to ameliorate the unacceptable risk of harm posed by the mother to the child;

(c) Reunification therapy and supervised time is the only approach available to me to prevent a catastrophe, which would likely unfold if the child simply commenced spending time with his mother after such a long period; and

(d) Reunification therapy and supervised time represent the only options available to me to ensure that the child has a relationship with his mother in a safe environment.

1. The parties agree that the father will have sole decision-making authority in relation to the child. I consider this agreement to be appropriate in circumstances where:

(a) The parties have had no contact whatsoever with each other since March 2023;[196] and

(b) By dint of the orders I will make, the father will remain the child's primary carer. This being so, it will be the father who shall remain responsible for making relevant decisions for the child.

1. The evidence supports a finding that it is in the child's best interests for the father to hold parental responsibility.

1. Each of the mother and the Independent Children's Lawyer promote an order that the mother bear the costs of and incidental to the reunification therapy. I consider such an order to be appropriate in circumstances where the mother is unemployed and is not in a position to contribute to the cost of raising the child. In circumstances where the mother is unemployed and the financial burden of raising the child will fall on the father for the foreseeable future, I consider that it is appropriate to accede to the application made by the mother and the Independent Children's Lawyer.

1. The Independent Children's Lawyer promotes an order to the effect that "upon the conclusion of the reunification therapy", supervised time between the child and his mother commence.[197] For her part, the mother promotes an order to the effect that supervised time commence on the conclusion of at least one session between the therapist and the mother and one session between the therapist and the child.
2. Although I was not provided with any submission about the distinction between the two proposals, I consider that the child's best interests will be satisfactorily served by making orders in the terms sought by the mother. This is because supervised time will occur at the same time as the child and the mother are attending on the therapist thereby providing support to each of the child and the mother.

Costs associated with supervision of time between the child and the mother

1. Each of the mother and the Independent Children's Lawyer agree that it is appropriate for the mother to meet the expense associated with supervised time. Again, I consider such an order to be appropriate in circumstances where the mother is unemployed and is not in a position to contribute to the cost of raising the child.

1. The Independent Children's Lawyer and the mother seek an order that the mother "comply with all directions of her treating medical professionals including the frequency of appointments and the type of treatment/therapy recommended".
2. I do not consider that the orders promoted by the Independent Children's Lawyer are of any utility in circumstances where the orders do not specify the objective of the therapy or how those objectives will be measured or established. The Full Court in Lainhart & Ellinson [2023] FedCFamC1A 200 cautioned against making such orders. Accordingly, I decline to make the orders promoted by the Independent Children's Lawyer and the mother.

Provision of medical information to each parent

1. The Independent Children's Lawyer and the mother promote an order that each parent keep the other advised of the identity of any medical practitioner and/or allied health professional attended on by the child and that otherwise, each party be at liberty to consult any medical practitioner and/or allied health professional attended on by the child. I consider it is important that each parent have this ability and accordingly, I will make orders in the terms promoted by the Independent Children's Lawyer and the mother.
2. For the same reasons, I will also make an order requiring each parent to notify the other in the event that the child suffers from a significant injury or illness whilst in his/his care.

1. The promotes an order that the father do all things necessary to facilitate telephone communication between the child and the mother in the event that the child expresses a desire to communicate with her.[198]
2. I will make such an order given the Single Expert's opinion that it is necessary for the child to maintain a relationship with his mother. However, I accept that the utility of such an order made depend on the success (or otherwise) of reunification therapy and supervised time.

1. The mother promoted orders to the effect that the parties keep each other advised of his/he residential address and telephone number. The Independent Children's Lawyer promoted an order in similar terms.
2. It is likely that the parties may need to communicate in relation to the parenting arrangements prescribed by me and importantly, I consider it is in the child's best interests for his parents to know the location of the other parent. Accordingly, I will make the orders promoted by the mother. When doing so, I am cognisant of the injunctive orders to be made by me, and I consider such orders to be sufficient to protect the father and the child from any risk presented by the mother.

1. An injunction is not, by definition, a "parenting order".[199] The Act provides separate powers for making injunctions, parentings orders, or other orders in relation to the welfare of a child.[200] Whilst counsel did not address me on the issue, the only power afforded to me to make the injunctive orders sought by the parties is pursuant to s 68B of the Act. Section 68B is not subject to the paramountcy principle - the words of the section lack any express reference thereto. This issue has been addressed in many authorities and, as summarised in Attwood v Attwood [2022] FedCFamC1F 6, has to some extent been reconciled:
   1. ... Section 68B(1) of the Act states that the Court may make such order or grant such injunction as it considers appropriate for the welfare of the child. Section 68B(2) also states that the making of the order may occur in any case in which it appears to the Court to be just or convenient to do so.
   2. The Full Court in Bennett v Bennett (2001) FLC 93-088 determined that the power in s 68B was not subject to the express legislative requirement that the Court must regard the best interests of the child as the paramount consideration; and even if s 68B were subject to the "best interests" principle, it is doubtful that this would displace the established common law principles contained in the authorities such as In re Boaler [1915] 1 KB 21; Commonwealth Trading Bank v Inglis [1974] HCA 17; (1974) 131 CLR 311; Re Attorney-General (Cth); Ex parte Skyring [1996] HCA 4; (1996) 135 ALR 29 and Coco v R [1994] HCA 15; (1994) 179 CLR 427. However, the Full Court in Flanagan and Handcock (2001) FLC 93-074 considered this and referred to CDJ v VAJ (No 1) (1998) 197 CLR 172 which decided that orders that are not a parenting order do not directly invoke the application of the paramountcy principle. Nevertheless the Court agreed with the Full Court that the consideration of what is in the best interests of the child are "powerful matters to be weighed up against a competing principle such as finality". The Full Court therefore held that in respect of the issue of an injunction under s 68B, it is incorrect to state that the "paramountcy principle" applies. However, the best interests principle needs to be given careful consideration, especially where the orders sought to be made intimately concern the welfare of the children.

(Emphasis added)

1. Thus, whilst the best interests of the child is not stated explicitly as the governing principle when making an injunction under s 68B, for all practical purposes the concept provides a useful framework within which to explore whether ... the injunction is appropriate for the welfare of the child, and is otherwise just or convenient[201].

1. Having regard to Attwood and Bennett, I will consider the injunctive relief sought by giving careful consideration to the best interests of the children.
2. The Independent Children's Lawyer sought orders that the parties be restrained from:

(a) Speaking of or permitting any other person to speak to or about the other parent or his/her family in a negative, offensive, or unpleasant fashion in the presence or hearing or the child or allowing any other person to do so;

(b) Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the child or permitting any other person to do so;

(c) Abusing, insulting, belittling, or otherwise denigrating the other parent or any member of the other parent's household in the presence of the child or allowing any other person to do so;

(d) Physically disciplining the child or allowing any other person to do so;

(e) Relocating the child out of Sydney metropolitan area; and

(f) Attending at the other party's residence or place of work unless it is for the purpose of effecting changeover of the child and with the other party's prior consent.

1. The injunctive relief sought restraining each parent from denigrating the other parent to or in the presence of the child is, of course, in the best interests of the child. I will make orders in those terms.
2. For the reasons identified by this Judgment, I consider the balance of the orders promoted by the Independent Children's Lawyer to be appropriate.

1. For her part, the mother also seeks an order that the parties be restrained from removing the child from the Commonwealth of Australia. As discussed above, the child is a citizen of the People's Republic of China. Similarly, neither the mother nor the father has Australian Citizenship.[202]
2. I refer to the well-known decision of Line & Line [1996] FamCA 145; (1996) 21 Fam LR 259, which has been followed and applied on many occasions. In that decision, the Full Court set out the type of considerations to be considered when such a parenting order for overseas travel is made.
3. Given the animus between the parties, I am concerned that each party has a motive to remove the child from the Commonwealth of Australia. Further, and in circumstances where each party is at this juncture unemployed, I am not satisfied that either of them has sufficient reason to remain in Australia. When arriving at this conclusion I note, of course, that the parties lived in China for a period of time during their relationship. Further, neither party has produced any evidence with respect to when he or she might wish to travel. For these reasons, I will grant the injunctive relief promoted by the mother.

Application by the Independent Children's Lawyer for Costs

1. Section 114UB(1) of the Act abolishes for the purposes of family law proceedings, the general rule that, in civil proceedings, costs follow the event. It provides that each party should bear his or her own costs in such proceedings.
2. However, s 114UC(1) of the Act authorises the Court to make orders for the costs of an Independent Children's Lawyer:

(1) In proceedings in which an independent children's lawyer for a child has been appointed, the court may make a costs order, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in relation to the proceedings.

1. Pursuant to s 114UC(1) of the Act, the Independent Children's Lawyer made an application for costs. Those costs are in the order of $13,145.00 per party.
2. Each party agrees to share the cost of the Independent Children's Lawyer. I therefore make an order in the terms promoted by the Independent Children's Lawyer.

1. The orders set out at the commencement of these reasons are those that most capably meet the child's best interests.

I certify that the preceding two hundred and two (202) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.

[1] Mother's affidavit filed 3 June 2025, paragraph 15.

[2] Father's Outline of Case filed 25 June 2025, paragraph 2.

[3] Father's Outline of Case filed 25 June 2025, paragraph 2.

[4] Mother's affidavit filed 3 June 2025, paragraph 83.

[5] Father's Outline of Case filed 25 June 2025, paragraph 2; Exhibit ICL2.

[6] Mother's Case Outline filed 26 June 2025, paragraph 3.

[7] Mother's affidavit filed 3 June 2025, paragraph 20.

[8] Mother's affidavit filed 3 June 2025, paragraph 194.

[10] Mother's affidavit filed 3 June 2025, paragraph 4.

[11] Mother's affidavit filed 3 June 2025, paragraph 3.

[12] Mother's affidavit filed 3 June 2025, paragraph 3.

[13] Mother's affidavit filed 3 June 2025, paragraph 4.

[14] Mother's affidavit filed 3 June 2025, paragraph 5.

[15] Mother's affidavit filed 3 June 2025, paragraph 13.

[16] Father's affidavit filed 20 May 2025, paragraph 5.

[17] Fathers Affidavit, filed 20 May 2025, paragraphs 17 and 18.

[18] Father's affidavit filed 20 May 2025, paragraph 232.

[19] Father's affidavit filed 20 May 2025, paragraph 19.

[20] Father's affidavit filed 20 May 2025, paragraph 23.

[21] Mother's affidavit filed 3 June 2025, paragraph 8.

[22] Father's affidavit filed 20 May 2025, paragraph 25.

[23] Father's affidavit filed 20 May 2025, paragraph 41.

[24] Mother's affidavit filed 3 June 2025, paragraph 30.

[25] Father's affidavit filed 20 May 2025, paragraph 46.

[26] Mother's affidavit filed 3 June 2025, paragraph 9.

[27] Father's affidavit filed 3 June 2025, paragraph 82.

[28] Father's affidavit filed 20 May 2025, paragraph 114.

[29] Father's affidavit filed 20 May 2025, paragraph 116.

[31] Father's affidavit filed 20 May 2025, paragraph 128.

[33] Father's affidavit filed 20 May 2025, paragraph 131.

[34] Father's affidavit filed 20 May 2025, paragraph 137.

[35] Father's affidavit filed 20 May 2025, paragraph 137.

[36] Father's affidavit filed 20 May 2025, paragraph 144.

[37] Father's affidavit filed 20 May 2025, paragraph 140.

[39] Father's affidavit filed 20 May 2025, paragraph 141.

[40] Mother's affidavit filed 3 June 2025, paragraph 17; Father's affidavit filed 20 May 2025, paragraph 186.

[41] Father's affidavit filed 20 May 2025, paragraphs 153 and 154.

[42] Father's affidavit filed 20 May 2025, paragraph 159.

[43] Mother's affidavit filed 3 June 2025, paragraph 27.

[44] Mother's affidavit filed 3 June 2025, paragraph 86.

[45] Amended Initiating Application filed 20 September 2024.

[46] Mother's Case Outline filed 26 June 2025, paragraph 1.

[47] Father's Outline of Case filed 25 June 2025, paragraph 3; Amended Response to Initiating Application filed 11 June 2025.

[50] Exhibit W1 to W20 noting that some exhibits related to the parties' competing financial applications.

[51]52 Exhibit H1 to H20 noting that some exhibits related to the parties' competing financial applications.

[55] Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at [62] ("Whisprun").

[56] Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386.

[57] Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447.

[58] M & M (1988) 166 CLR 69 at [77].

[59] Father's Case Outline filed 25 June 2025, paragraph 15.

[60] Father's affidavit filed 22 May 2025, paragraph 82.

[61] Father's affidavit filed 22 May 2025, paragraph 12(a);

[62] Bant & Clayton [2019] FamCAFC 198 at [51].

[63] Guerra & Guerra [2021] FedCFamC1F 73 at [94].

[65] Mother's affidavit filed 3 June 2025, paragraph 72.

[66] Father's affidavit filed 20 May 2025, paragraph 115.

[67] Father's affidavit filed 20 May 2025, paragraph 115.

[69] Mother's affidavit filed 3 June 2025, paragraph 65.

[70] Mother's affidavit filed 3 June 2025, paragraphs 68 and 69.

[75] Mother's affidavit filed 3 June 2025, paragraph 74.

[78] Single Expert Report, dated 9 July 2024, paragraph 186.

[87] Father's affidavit filed 22 May 2025, paragraph 82.

[88] Father's affidavit filed 22 May 2025, paragraph 12(a).

[93] Affidavit of the maternal aunt filed 22 May 2023, paragraph 8.

[94] Affidavit of the maternal aunt filed 22 May 2023, paragraph 10.

[95] Affidavit of the maternal aunt filed 22 May 2023, paragraph 10.

[96] Affidavit of the maternal aunt filed 19 May 2023, paragraph 11.

[98] Father's affidavit filed 22 May 2025, paragraph 89.

[99] Father's affidavit filed 22 May 2025, paragraph 89.

[100] Father's affidavit filed 22 May 2025, paragraph 89.

[105] As summarised in the Family Report, paragraph 28.

[108] Bant & Clayton [2019] FamCAFC 198 at [51].

[141] Mother's affidavit filed 3 June 2025, paragraph 194.

[146] Wei & Xia [2024] FedCFamC1A 65; (2024) 69 Fam LR 37 at [97]- [98] citing with approval the primary judge's statement of principle on the point of totality and the reference therein to Transport Industries Insurance Co. Ltd v Longmuir [1997] 1 VR 125 ("Longmuir") per Winneke P at [128]. See also the references to Longmuir in Guerra at [94], [95] and [403].

[150] Family Report, paragraphs 136, 137 and 187.

[154] Mother's affidavit filed 3 June 2025, paragraph 9.

[155] Mother's affidavit filed 3 June 2025, paragraph 9.

[156] Mother's affidavit filed 3 June 2025, paragraph 18.

[157] Pickford & Pickford [2024] FedCFamC1A 249; (2024) FLC 94-230 at [41] and [87]-[88].

[158] Fitzwater & Fitzwater [2019] FamCAFC 251; (2019) 60 Fam LR 212, [39].

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

[160] Blinko & Blinko [2015] FamCAFC 146 at [27].

[162] Mother's affidavit filed 3 June 2025, paragraph 106.

[165] Father's affidavit filed 22 May 2025, paragraph 214.

[166] Single Expert Report, dated 9 July 2024, paragraph 84.

[167] See Moose & Moose [2008] FamCAFC 108 at [119]; Slater & Light [2013] FamCAFC 4 at [40] and Gorman & Huffman & Anor [2016] FamCAFC 174.

[168] Gorman & Huffman and Anor [2016] FamCAFC 174 at [297].

[169] Helbig & Rowe [2016] FamCAFC 117, at [214] (citing A v A [1998] FamCA 25; (1998) FLC 92-800).

[170] Blinko & Blinko [2015] FamCAFC 146 at [28].

[172] Father's Outline of Case, filed 25 June 2025, paragraph 16.

[173] Lainhart & Ellinson [2023] FedCFamC1A 200 at [36]-[49].

[175] Father's affidavit filed 20 May 2025, paragraph 12(a).

[176] Father's affidavit filed 20 May 2025, paragraph 12(c).

[177] Father's affidavit filed 20 May 2025, paragraph 213.

[178] Alam & Sayid [2021] FamCA 564 at [185].

[179] Family Report, paragraphs 186 to 187.

[181] Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662 at [34]-[41]; RCB v Forrest & Ors [2012] HCA 47; (2012) 247 CLR 304 at [52].

[185] Father's affidavit filed 20 May 2025, paragraph 237.

[186] Father's affidavit filed 20 May 2025, paragraph 238.

[191] Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768; (2004) FLC 93-192, at 79,217-8; Summerby & Cadogen [2011] FamCAFC 205 at [95].

[193] Father's affidavit filed 20 May 2025, paragraph 227.

[194] AMS v AIF [1999] HCA 26 at [216] and [218].

[195] Starr & Duggan [2009] FamCAFC 115 at [38].

[196] Father's affidavit filed 20 May 2025, paragraph 212.

[199] Hedlund v Hedlund [2021] FedCFamC1A 84 at [118].

[200] Family Law Act 1975 (Cth) s 65D(1) and s 67ZC.

[201] Attwood v Attwood [2022] FedCFamC2F 6, [31]-[33]. Emphasis added.

[202] Amended Initiating Application filed 20 September 2024, Part B; Amended Response to Initiating Application filed 11 June 2025, Part C.