Viella & Sherman [2025] FedCFamC1F 415 (20 June 2025)

1. The child shall live with the mother.
2. The father shall spend no time with the child.

1. There is no Court by the name "Federal Circuit and Family Court of Australia". This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
2. The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.

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

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

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

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

In addition to the use of pseudonyms for the parties, other changes have been made to the published judgment to protect the identity of a party or a witness. Such changes (other than when a letter is used instead of a name or an address) are apparent on the face of the judgment by the use of square brackets.

1. X was born on [redacted] 2018 and is the six year old child of Ms Sherman ("the mother") and Mr Viella ("the father"). The father has not spent time with the child since August 2023 other than at the Family Report interviews in July 2024 and supervised at the B Contact Service on one occasion in February 2025. The Service withdrew their services in March 2025.
2. When trial directions were made on 25 February 2025, it was apparent that the mother was alleging that the father posed an unacceptable risk of harm to the child by reason of his history of family violence against her and in the presence of the child and that the father posed a risk of sexual harm to the child in circumstances where the child was found to have sustained a two centimetre laceration to her labia minora during a medical examination on 8 August 2023.
3. For reasons unknown, the mother disengaged from the proceedings. Her lawyers filed a notice of ceasing to act on 9 April 2025. Attempts were made by the Court to contact the mother on 2 and 10 June 2025 and by the Independent Children's Lawyer (ICL) on various occasions (see Exhibit 2). The mother was represented at the time the trial directions were made on 25 February 2025 when the matter was listed for trial commencing 16 June 2025. The mother was made aware by the Court and the ICL that the trial would proceed in her absence if she did not attend on 16 June 2025. The mother is in default of the trial directions as she failed to file an affidavit of evidence in chief or a case outline.
4. Upon application by the father, supported by the ICL, the trial of the matter proceeded in the mother's absence. The evidence before the Court included the father's evidence in chief as the non-defaulting party and that of his witnesses, and without objection, the affidavit of the mother filed 1 February 2024 (Exhibit 3) and a tender bundle prepared by the ICL (Exhibit 7). The father and the ICL relied upon the Family Report dated 11 September 2024 (Exhibit 1). The father and his mother, Ms C, were cross-examined. The Family Report writer, Ms D, was not required for cross-examination.
5. For reasons to be explained, the child will continue to live with the mother and will not spend any time with the father.

1. The following issues were identified as issues requiring determination:

(1) Whether the father poses an unacceptable risk of harm to the child arising from the allegations he has sexually abused the child and/or the family violence he has perpetrated against the mother and her associates in the presence of the child?

(2) If the father does pose an unacceptable risk, then can the risk be ameliorated by time being supervised and if so:

(a) Is it in the best interests of the child for there to be long-term supervision at a contact centre;

(b) Is the paternal grandmother an appropriate supervisor?

(3) Whether the mother's parenting capacity will be detrimentally affected if the child spends unsupervised time with the father?

1. There were two additional issues identified when the matter was set down for trial but abandoned at trial, namely:

(4) Whether the father will comply with orders in the event he does not agree with the terms?

(5) Whether the mother should be solely responsible for making major long-term parenting decisions concerning the child (the father conceded that the mother should have sole parental responsibility)?

1. The father proposes the child continue to live with the mother, that the mother have sole parental responsibility and the child spend time with him from 5.00 pm Friday until 5.00 pm Sunday for three weeks in every four. The precise terms of the order sought by the father are set out in his Amended Initiating Application filed 12 May 2025, save that the father conceded that the mother should have sole parental responsibility. In the event he is found to pose an unacceptable risk of harm, the father proposed that either his mother supervise his time with the child, or that it occurs at a contact centre (although there is no evidence that a contact centre would supervise), or alternatively for a "short burst of time unsupervised in a public place".
2. It is common ground that the mother opposes the father spending any time with the child.
3. The ICL recommends that the child continue to live with the mother and that she have sole parental responsibility. The ICL did not support the paternal grandmother as an appropriate supervisor and recommended that the father spend time at a contact centre for two hours per fortnight, although it was conceded that there is no evidence that a contact centre would provide supervision let alone long-term supervision. The precise terms of the order recommended by the ICL (in the alternative) is set out in the Case Outline filed on 12 June 2025.

1. Before turning to the issues that will inform this decision, it will be helpful to set out some background.
2. The mother and father commenced living together in or about 2016 or 2017 and separated initially in December 2017. They reconciled in about June 2018 and separated on a final basis in September 2019.
3. The mother is 29 years old. She married Mr E in 2022. She and Mr E, who is employed as a delivery driver, live together with at least four children. The mother has an older child, F, aged 9, to a previous relationship, and two younger children, G aged nearly three, and H aged about 18 months, with Mr E. The mother previously informed the court, that she was expecting a fifth child due in [redacted] 2025. The mother lives at an undisclosed address.
4. The father is 29 years old and works in his own building business. He lives with Ms J in a granny flat at the rear of the house rented by his mother where he previously resided with the mother and the child. His mother and brother live in the house. The father has no other children.
5. The mother contends that during the relationship she was subjected to "relentless" family violence involving repeated derogatory remarks e.g. "useless cunt" and "bitch". After separation, the father's family violence escalated. A five-year protection order was granted on 12 March 2020 which was due to expire on 12 March 2025. On 8 February 2024, on the application of police, the protection order was varied and extended in operation until 7 February 2029.
6. The father was convicted on [redacted] 2022 of breaching the protection order between 24 September 2020 and 29 September 2020 and for committing another domestic violence offence namely, entering the mother's home without permission on 26 September 2020.
7. On 1 November 2019, the parents agreed on a parenting plan which resulted in the child spending overnight time with the father each Wednesday and Saturday. This time stopped soon after the child turned two, after an argument between the parents. The father's time with the children resumed in early 2021.
8. The father was convicted on [redacted] 2020 of wilful damage on 26 October 2019, common assault on 27 October 2019, and wilful damage on 12 January 2020.
9. On [redacted] 2021, the father was convicted of unlawful stalking, using/threatening violence between 31 October 2019 and 16 February 2020 involving two unrelated persons.
10. The mother alleges that after a visit with the father on 6 August 2023, the child disclosed that the father had scratched her near her vagina. This incident was reported to Queensland Police and the Department of Families, Seniors, Disability and Child Safety. The father was interviewed by police, but no further action was taken. As earlier noted, the father has not seen the child since August 2023 (other than on two supervised occasions).

1. Parenting proceedings are regulated by Pt VII of the Act. In addition, s 43 of the Act requires the Court to have regard to several matters including:

(a) The need to protect the rights of children and to promote their welfare; and

(b) The need to ensure protection from family violence.

1. Every parenting decision requires the application of the relevant parts of Pt VII of the Act which sets out the objects and matters that must be considered when determining what parenting order is proper.[1]
2. A 'parenting order' is defined in s 64B of the Act and may deal with matters including:

(a) The person or persons with whom a child is to live;

(b) The time a child is to spend with another person or other persons;

(c) The allocation of parental responsibility; and

(d) The communication a child is to have with another person or persons.

1. The objects of Pt VII of the Act are set out in s 60B and are to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the United Nations Convention on the Rights of the Child.
2. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA of the Act).
3. The best interests of the child are determined by reference to the matters set out in s 60CC of the Act and include: 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; any views expressed by the child; the developmental, psychological, emotional and cultural needs of the child; the capacity of each person who has or will have parental responsibility to provide for the child's needs; 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 in considering those matters, 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.
4. 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.
5. 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, etc.
6. Abuse in relation to a child is defined in s 4 of the Act and includes a sexual assault or involving the child in a sexual activity in which the child is used, directly or indirectly, as a sexual object, or causing the child to suffer serious psychological harm, including by subjecting or exposing a child to family violence.
7. In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities,[2] having regard to the "inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding"[3] and proof to the reasonable satisfaction of the Court, "should not be produced by inexact proofs, indefinite testimony, or indirect inferences".[4] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[5]
8. The High Court in M v M explained at p. 78, the nature of the risk (in that case involving a risk of sexual abuse) in the following terms:

Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. ... courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

1. When assessing the nature and magnitude of a risk posed by a parent or other person, all relevant evidence must be considered as part of the "matrix of evidence"[6] to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[7] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[8] Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.[9]
2. When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court "cannot be diverted by the supposed need to arrive at a definitive conclusion"[11] on each and every factual dispute.
3. Each parent has parental responsibility (i.e. all the powers, responsibilities, and authority which, by law, parents have in relation to a child) for a child subject to any order made by the Court (s 61C of the Act).
4. Section 61D of the Act provides that a parenting order can deal with the allocation of responsibility for decision making about major long-term issues, being joint or sole decision making in relation to all or specified major long-term issues. Major long-term issues mean issues about the care, welfare, and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
5. Where an order is made for joint decision making about major long-term issues, parents are required to consult each other in relation to each such decision and make a genuine effort to come to a joint decision (s 61DAA of the Act). Where a decision is not a major long-term one, there is no such requirement to consult with the other parent (s 61DAB).
6. Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.[12]

WHETHER THE FATHER POSES AN UNACCEPTABLE RISK OF HARM TO THE CHILD ARISING FROM THE ALLEGATIONS HE HAS SEXUALLY ABUSED THE CHILD AND/OR THE FAMILY VIOLENCE HE HAS PERPETRATED AGAINST THE MOTHER AND HER ASSOCIATES IN THE PRESENCE OF THE CHILD?

1. It is not suggested that the evidence is sufficient to make a positive finding that the father sexually abused the child. It is nevertheless conceded by the father that the allegations cannot be dismissed as groundless.
2. It is submitted by the ICL and the father that the evidence does not support a finding that the father poses an unacceptable risk of sexual harm to the child. I agree.
3. The mother's evidence relevant to this issue is found at paragraphs 52 to 59 of her affidavit which are reproduced below:
   1. On Friday 4 August 2023 [the child] told me that she did not want to spend time with her father because her father was denigrating me to her and she said, "I feel bad Mum when Dad is mean"" or words to that effect. However, [the father] harassed her until she gave in and agreed to the visit.
   2. [The child] told [the father] that she only wanted to stay one night but he told me that she wanted to stay another night after coaching her into agreeing_._
   3. Despite [the child's] request to her father not to have an overnight visit he on Saturday night he kept her and when she came home on Sunday 6 August 2023 she was very quiet, which was unusual because she normally wanted to talk about spending time with her cousins. She told me that she did not want to have dinner. While I was concerned about [the child] I did not pressure her to tell me why she was quiet, and I just let her go to bed. The next morning she told me that she had a sore vagina and I suggested that she have a shower. She refused my suggestion saying that "it would sting". Later that day, when our family was having dinner, [the child] was wriggling on her chair, and I asked her what was wrong. She then disclosed that she had a "big scratch" on her vagina and said, "Dad did it" and that he had "done it with a towel". She asked about a 'special cream' for scratches but then stated that her father had hurt her with his finger when he "rubbed it up and down" showing me the motion with her own hand.
   4. Immediately upon [the child] making the disclosure about her father, I telephoned Police Link and made a report. I was told to go to CPIU in [City K] the following day, Tuesday 8 August 2023, to make a report. I did this and a copy of the report is annexed hereto marked with the letters "[MRS]- 2". (I note that the report should state 8 August 2023 and not 8 March 2023). The police also recorded [the child's] statement. Immediately after I had attended at the Police Station I took [the child] to the [L] Hospital where she behaved in a 'baby like' manner. An examination was carried out and the Paediatrician informed me that she had a laceration on her vulva. While we were at the hospital a report was made to the SCAN Team and I was advised that [the father] would be contacted. The next day I received a number of abusive texts from him.
   5. On Tuesday 8 August 2023 [the father's] mother, [Ms C], came to my house and asked me what had happened to [the child] and stated that the police had contacted [the father]. (At that time she was unaware of what [the father] had done to [the child]).
   6. On 9 August 2023 I attended at the [M] Police Station and made a statement after [the father] had contacted me wanting to speak to [the child]. Annexed hereto and marked with the letters "MRS-3" is a copy of that statement.
   7. In approximately mid-August 2023, [F], [the child's] brother told me that she had been doing "gross things" and showing him her bottom.
   8. On 5 October 2023 [the child] told me that her father had taken photos and videos of her when she was naked. I told her that it was not okay to take photos of anyone naked but she said "oh, but my dad did", pointing to the area of her chest and her vagina.

1. It is common ground that on 8 August 2023, the child was medically examined and found to have a two-centimetre laceration on her labia minora and generalised redness of her external genitalia. The child gave inconsistent accounts of how she sustained the laceration. For example, she said that the father had scratched her with his finger; that he scratched her with a towel; and that she fell in the shower. The laceration was found to be consistent with trauma to the genitals and could have occurred from being scratched by a fingernail or harsh surface. The findings were not specific for sexual abuse.
2. The child participated in a recorded interview with police on 8 August 2023 during which no disclosures suggestive of sexual abuse were made. When asked about any scratches she had, the child referred only to scratches on her knees and nowhere else. When asked about something occurring in the shower, the child said she was in the shower by herself and fell over. When directly asked about the father touching her, the child said he did not touch her vagina in the shower. The father was interviewed by police.
3. The father contends that the only possible explanation he can offer for the child's injury is that she fell from her bicycle on Sunday, 6 August 2023 and grazed her knees. He contends that the child did not complain of any other injury.
4. The paternal grandmother recounts in her affidavit that the child had a fall from her bicycle earlier in the day on 6 August 2023 after which she cried for several minutes. The child gave no indication that she was in pain or discomfort other than a scrape on her knee. She contends that on the evening of 6 August 2023, the child had to be coaxed out of her "disco bath" as it was getting late and she had to be returned to the mother, which she was as soon as she was dressed. The paternal grandmother further contends that when the child historically spent time with the father, she would generally attend to the child at bath time and that the child rarely had a shower preferring to have a bath.
5. Ms J corroborates the bicycle incident and confirms that the child did not complain of any pain or discomfort to her genitals. She also corroborates the child had a bath the evening of her return to the mother and that (either she or the paternal grandmother) towel dried the child and dressed her in her pyjamas. Ms J contends that on any occasion that the child has had a shower at their place she is supervised but has her shower independently.
6. Both Ms J and the paternal grandmother contend that at the time of the allegations, the father regularly bit his nails down to the nail bed.
7. Given the evidence to which I have referred, I do not find that the father poses an unacceptable risk of sexual harm to the child.

1. As earlier noted, the mother alleges that she was subjected to "relentless" family violence during her relationship with the father and that the violence escalated after separation. The mother also alleges that the father regularly abused alcohol and illicit substances, often failing to return home until the early hours of the morning.
2. The mother provides few particulars of the alleged family violence during the relationship in her affidavit, other than alleging that the father yelled at her daily, berated her if she had not washed his work clothes and called her a "useless cunt" and a "bitch". The mother alleged that the father had "random outbursts of temper". The father does not deny these allegations. The mother alleged that the father informed her of a "huge fight" he had with his mother in August 2018 when he threw "bags of render at her". The father does not deny this allegation, but his mother contends there was never a fight with her son that "involved any legal of physical aggression by [the father]". I am not sure what this means.
3. The mother alleges that the father and F's father, Mr L, had a fight in front of F in January 2019. The mother described an unprovoked attack by the father on Mr L involving the father punching him in the face. The father does not deny this allegation.
4. The father does not deny abusing alcohol or using drugs during the relationship. Indeed, he admitted doing so to the Family Report writer stating, "I was drinking a lot, all night, binging and using cocaine". He said he did so because he was "hanging around the wrong crowd, experimenting and having fun". The father denied using illicit substances when interviewed by the Family Report writer but admitted to continued alcohol consumption every Friday when he shares a carton of beer (24 beers in a carton) with a friend. He also admitted to additional drinking if at a social or sporting event. When cross-examined, the father denied that he drank every Friday but did not otherwise dispute what is recorded in the Family Report. Assuming the carton was shared equally, 12 beers at one sitting seems to be excessive.
5. In her affidavit, the mother admits to having a "one night stand" with one of the father's friends, Mr M, in October 2019 shortly after she and the father had separated. The mother contends that her then friend, Ms J (who is now in a relationship with the father), told the father about the "one night stand" and the father reacted with violence by kicking and thereby damaging the mother's car. The father also sent the mother several abusive text messages in which the father told the mother she should kill herself.
6. Police records for 28 October 2019 include the following information:

... The [father] and the [mother] have been separated for about 2 months and have been living separately. On the 26th day of October 2019 the [father] has learned that the [mother] was receiving assistance in the form of money and emotional support from a mutual friend named [redacted]. The [father] has also been incorrectly informed that the [mother] and [redacted] were in an intimate and personal relationship. The [father] has become irrational and aggressive. On the evening of 26/10/19 the [father] has sent the [mother] a snapchat message with a video of property belonging to her and her son burning. Text accompanying the message stated things similar to - "you're dead ... where are you? ... I'm going to find you ... you've got alot of explaining to do ... You'd look good hanging from a ceiling fan". ... The following day ... the [father] arrived in his work utility ... and kicked the boot [of the mother's car] twice causing a large dent. ... The [father] then kept texting the [mother] saying "I'm going to find you ... you're fucked"... The [father] ... owns 3 registered firearms. ... Whilst speaking with police the [mother] has received notification from [redacted] that the [father] has phoned him and threatened "to kill everybody".

1. On 27 October 2019, the father attended the home of Mr M and his female partner at 7.30 pm. He asked the female partner where Mr M was, and when she refused to tell him, the father responded by saying to her - "Oh you are a dumb bitch" and spat in her face.
2. On [redacted] 2020, the father was dealt with for wilful damage on 26 October 2019 (damaging the mother's car), common assault on 27 October 2019 (spitting in Mr M's partner's face), and wilful damage on 21 January 2020 (it is not clear on the evidence what this charge related to although there is evidence of the father damaging a second vehicle). In relation to the first two charges, no conviction was recorded, the father was fined $200 and ordered to pay compensation of $1,000. On the third charge, no conviction was recorded, and the father was ordered to pay compensation of $520.
3. Between 30 October 2019 and 16 February 2020, the father repeatedly attended Mr M's home sounding his horn for extended periods of time as he drove past. The father repeatedly called Mr M and in one of the calls (which was recorded) the father threatened to "beat the fuck out of [Mr M]" and that he would "hunt [him] down". On 6 December 2019, the father followed Mr M's car as he left for work. On 31 December 2019, the father verbally abused Mr M outside his home while he was removing his young child from the back seat. On 1 February 2020, at 10.30 pm, the father drove passed Mr M's home sounding his horn for in excess of five seconds. On 7 February 2020, at 5.30 pm the father again parked outside Mr M's home and told him to "come down to my house for a chat". When Mr M declined, the father threw a can of Jack Daniels, narrowly missing him and his family. A short time later a friend of the father's was seen outside Mr M's home taking photographs and calling out "come outside you week [sic] dog". Police records note that the father was caught on CCTV footage on numerous occasions and was "actively avoiding police at this time".
4. The father was convicted on [redacted] 2021, on charges of unlawful stalking, using/threatening violence. The father was sentenced to 18 months imprisonment suspended for two years, and a restraining order was made in favour of Mr M and his family which expires on 14 December 2026.
5. A final protection order was made in favour of the mother, on the application of police, on 12 March 2020 and it included the following conditions:
   1. The [father] must be of good behaviour towards the [mother] and not commit domestic violence against the [mother].
   2. ...
   3. The [father] is prohibited from approaching to within 100 metres of the premises where the [mother], child lives.
   4. The [father] is prohibited from locating, attempting to locate or asking someone else to locate the [mother] and child except in compliance with an order of a Court.
   5. The [father] is prohibited from contacting or attempting to contact or asking someone else other than a lawyer to contact the [mother] and child. Except for the purpose of compliance with an order of a Court. Except when appearing personally before a court or tribunal. Except when attending an agreed conference, counselling or mediation session. Except when having contact with a child ...as set out in writing between the parties or in compliance with an order of a court. Except with the written consent of the [mother] including by text or email. Except when having contact with the [mother] by (i) text (ii) telephone (iii) email for the purpose of arranging contact with a child or having contact with a child by prior arrangement with the [mother] or in relation to matters pertaining to the child or in emergent circumstances.
   6. The [father] is prohibited from approaching to within 100 metres of the [mother] and child when at any place. Except for the purpose of compliance with an order of a Court. Except when appearing personally before a court or tribunal. Except when attending an agreed conference, counselling or mediation session. Except when having contact with a child ... as set out in writing between the parties or in compliance with an order of a court. Except with the written consent of the [mother] including by text or email. Except when having contact with the [mother] by (i) text (ii) telephone (iii) email for the purpose of arranging contact with a child or having contact with a child by prior arrangement with the [mother] or in relation to matters pertaining to the child or in emergent circumstances.
6. On 2 July 2020, the father called the mother via FaceTime at 4.54 am. She did not answer the call. The father phoned again at 5.07 am. The mother did not answer the call. The mother was awoken at just before 6.00 am by loud banging on her bedroom window and the father yelling "wake up, ... wake up". The mother immediately called the police emergency number. The father then shone a light through the bedroom window. He then went to the sliding door next to her window and tried to lift the door off its tracks. He then went to the back door and tried to pull the door open or off. He went through the other side gate and went to the kitchen window and started yelling, "Wake up, ... get out of bed, open the fucking door". The father then returned to the front sliding door and knocked loudly a few times coming back to the bedroom window and again shone the light into the bedroom. The mother had a girlfriend staying over and when the father saw her he yelled "Who the fuck is the cunt? Get out of bed. You better get your ass out here now". He then turned the power off and again tried to open the door. The father had left the property by the time the police arrived about a minute later.
7. On 25 September 2020, the father called the mother twice at 4.12 pm and again at 4.13 pm, she did not answer these calls. He called again at 4.22 pm and when the mother accidently answered the call, the father was screaming and yelling abuse at her. The mother immediately changed her telephone number.
8. On Saturday 26 September 2020, the mother was at home with her son, F at about 10.00 am. The mother heard knocking on the front door, which was open, but the security door was closed. F let the father in. The mother walked to the front of the house and saw the father lying on her bed. The mother told him to leave. He replied, "no one will know I am here". The father was intoxicated. The mother told the father she was going to call the police, and she did so but the police station was closed. The mother's girlfriend and her child and the child entered the home. The child spoke to the father, but he was incoherent. The father left the house and entered the back yard where he vomited. The mother locked all the doors. The father then walked to the front yard and lay on the grass. The mother again told him to leave. The father commenced to wander around the outside of the mother's home screaming out abuse for about two hours until the father's mother and brother, Mr N arrived. Mr N was angry at the father and asked him why he was at the mother's home. He yelled at him to get into the car which he did, and they left.
9. Prior to them leaving, the mother spoke to the father's mother who raised the child's upcoming birthday. The mother agreed to drop the child to the paternal grandmother's home later that day as long as the father was not present, and the paternal grandmother agreed. The paternal grandmother contends that she cannot recall if she was present when the father was collected from the mother's house.
10. The mother arrived at the paternal grandmother's home at 6.30 pm the same day. The paternal grandmother, father and a girlfriend of the father were all standing on the driveway. The child got out of the car. The mother looked at the paternal grandmother and shook her head. The paternal grandmother responded, "don't worry he won't do anything". The paternal grandmother does not deny saying this.
11. The father approached the mother while she sat in the car and accused her of being irresponsible for not providing the child with shoes. An argument ensued. The father became angry and spat in the mother's face and body and over her car. It seems that the father was holding the child. The child was calling out "mummy". The father refused to return the child to the mother. The paternal grandmother stood between the father and the mother. The mother left and went to the police station. The mother was told to either come back in four hours or go to her local police station on Monday morning.
12. The mother collected the child on Sunday morning. On Monday 28 September 2020 (the child's second birthday), the father called the mother and then sent a text message asking to speak to the child for her birthday. The mother attended the police station and reported the father. While at the police station the mother received messages from two friends advising that the father had been calling them. The mother contends she was fearful and did not return to her home.
13. On [redacted] 2022, the father was convicted of common assault (domestic violence offence) for the incident on 26 September 2020 (spitting at the mother and abusing her), for which he was sentenced to three months imprisonment suspended for 18 months; contravention of a domestic violence order between 24 September 2020 and 29 September 2020 (calling the mother) for which he was sentenced to three months imprisonment suspended for 18 months; contravention of a domestic violence order on 2 July 2020 (attending her home) for which he was sentenced to six months imprisonment suspended for 18 months; and trespass on 26 September 2020 (entering the mother's home) with no further punishment.
14. During cross-examination the father admitted most of the particulars of violence as alleged against him by the mother, and Mr M and his partner. In particular, the father admitted the following behaviour: repeatedly calling the mother a "whore", "slut", and "cunt"; sending the mother texts telling her to kill herself and that he would buy the rope; telling her to use the same rope used by her friend to kill herself; telling the mother to hang herself from the ceiling fan; sending her a video depicting her personal belongings and those of her son being burned; sending the mother's then friend, Ms J, a photograph of his gun collection with the caption "happy hunting" in the expectation that she would show the mother (which she did) and that the mother would be terrified; spitting in the mother's face on 26 September 2020; stalking and threating Mr M; and spitting in Mr M's partner's face.
15. The father's evidence in chief does not take issue with any of the allegations. In his affidavit of evidence in chief the father deposes as follows:
    1. When [the mother] and I separated, I did not take the separation well. I was told that [the mother's] relationship with her new partner had started prior to our separation. I started sending [the mother] text messages that were threatening, angry and abusive, focusing on what I saw as her betrayal of me with another man who had been my friend. My behaviour was inexcusable. [The mother] complained to the police who brought proceedings against me for Domestic Violence Orders and breaches. My behaviour was not limited to one incident and involved me coming to [the mother's] home unannounced without her permission and entering her home without her permission.
    2. Following separation, I was convicted of aggravated stalking of [Mr M], with whom I believed [the mother] was having a relationship at the time of our separation. The charge and conviction were based on incidents which occurred between 31 August 2019 and 7 February 2020 where I drove past [Mr M] home on several occasions sounding my car horn, where I parked outside his home and took photographs of the property and, once instance where I threw a drink can at him.
    3. I now realise that my behaviour in the period immediately after separation was immature and uncalled for and just plain wrong. Despite my actions, [the mother] and I were able to agree on a Parenting Plan in November 2019 which defined arrangements for [X]. Since that time, until August 2023, [the mother] and I have for the most part agreed about arrangements for [X] and we have parented harmoniously.
16. I regard the father's evidence in chief as an attempt to minimise the seriousness of his violent behaviour. While acknowledging that his behaviour was "inexcusable" he glosses over it and minimises it by suggesting that it occurred "in the period immediately after separation" when he was "immature". As detailed above, his violent behaviour spanned the period from at least October 2019 until at least the end of September 2020. His behaviour in July 2020 and September 2020 was particularly egregious and no doubt terrifying for the mother and the child.
17. In one brief paragraph of the father's affidavit, he purports to address his rehabilitation, by asserting that he had completed an anger management course on 24 February 2020, completed a three month Mindset Mentoring & Lifestyle Coaching with Mr O in December 2023, was undertaking a Triple P Parenting Course which he asserts he has "nearly completed online", attended Men's Behaviour Program and Counselling conducted by P Organisation, attended weekly counselling sessions with Ms Q from 10 March 2025, and deposed to an intention to continue with the counselling on a monthly basis.
18. There is no evidence corroborating any of the assertions made by the father about his rehabilitation nor does the father address what he learned from the courses or counselling he had or was in the process of completing. Indeed, the anger management course was completed in February 2020, prior to the father's continuing violent behaviour.
19. The father was to undertake a men's behaviour program pursuant to an order made (by consent) on 13 September 2024, yet he did not enrol in the course until March 2025. There is no evidence of what the "mentoring and lifestyle coaching" involved. Despite the parenting course being an online self-driven course, the father did not commence it until early this year and has still not completed it.
20. During a phone call with the coordinator (female) of the B Contact Service on 16 March 2025, the father was argumentative and at one point said, "so you haven't even spoke[n] to the child and mums being a cunt". The coordinator "advised that this was strong language to use and it was not appropriate to be using that language with her". The father responded that he was frustrated. When the coordinator declined to answer the father's question as to whether she had spoken to the child, the father responded, "its bullshit, why can't you tell me". The father expressed no regret for taking out his "frustration" with this woman.
21. The Family Report writer opined in her report that "family violence appears to be a serious risk in the family, which poses a risk of harm to [the child]. This appears to solely relate to the actions of [the father], and are not indicative of parental conflict or of mutual perpetration of violence". Further, the Family Report writer opined that the father's behaviour "has been quite concerning and demonstrates a deep disrespect towards [the mother] and her friends and associates" and "[h]is behaviour has been threatening and is likely to have caused those who have experienced it to become terrified". I accept her opinions.
22. I further accept the Family Report writer's opinions that as the father had access to guns and his threats to kill the mother, both directly and indirectly, "are likely to have caused her to be in fear of her life" and that "[t]hese emotions and fears appear to have had a long-lasting impact on [the mother]". I further accept her opinion that while the father "does not appear to have perpetrated significant physical violence towards [the mother], all his other behaviours are likely to leave [her] with the clear knowledge that he has the capacity to be significantly violent if he is wronged. His behaviour, particularly his frequent spitting, has a real degrading and humiliating aspect to it, and is highly disrespectful".
23. Lastly, I accept the unchallenged evidence of the Family Report writer that the father admitted that he was continuing to breach the protection order by contacting the mother in contravention of the protection order and last did so on the child's first day at school in 2024. When challenged about this by the Family Report writer the father said that he was not "dissuad[ed] from doing so by the mother's complaints to police. The father added that "[l]ike last time, I just kept ringing and ringing and eventually I got through to her".
24. I find that the father engaged in family violence of a serious nature over an extended period. The father's behaviour included the following:

(a) Repeated derogatory taunts;

(b) Threating behaviour including threats to kill with a means to carry out the threats;

(c) Spitting;

(d) Yelling abuse;

(e) Attempts to break into the mother's property;

(f) Trespass; and

(g) Wilful damage.

1. I find that the father engaged in violent behaviour and that his behaviour was at times coercive and controlling and caused the mother to fear for her life.
2. I am not satisfied that the father is remorseful nor is rehabilitated. I find that he remains a risk of harm of family violence and/or exposure to family violence to the mother and the child.

IF THE FATHER DOES POSE AN UNACCEPTABLE RISK, THEN CAN THE RISK BE AMELIORATED BY TIME BEING SUPERVISED, AND IF SO:

**• Is it in the best interests of the child for there to be long-term supervision at a contact centre?

• Is the paternal grandmother an appropriate supervisor?**

1. The father has only spent time with the child on two occasions since August 2023, being once at the Family Report interviews and once at the B Contact Service. On both occasions the interaction between the father and the child was positive.
2. The child told the Family Report writer on 23 July 2024 that she felt happy when spending time with the father but could not say why. She could remember the father "cuddling [her], reading stories and playing with [her]". When informed the father was present, "a big smile crept across her face, and she asked where he was". The child said she felt "okay" to play with the father and added, "can I please say hello after we play? I want to go outside (to where he is). I've never seen him before. He's done nothing... I want to see him - I haven't seen him for a while". Upon observing the father, the child "paused, lowering her head slightly, before looking up, smiling at him, and running and jumping into his arms". The child did not want to leave the father at the end of the observation session but settled quickly when returned to the mother.
3. In the Family Report writer's opinion, the observation session suggested that "a level of warmth and familiarity has continued despite the absence of contact" and that the father's approach with the child was "warm and child-friendly". In her view, the child responded well to his interactions. However, the Family Report writer noted the child's demeanour noticeably changed when questioned about "[Mr Viella] daddy" which suggests a "level of anxiety about the topic of her father". In her view, there were several possible explanations for this anxiety or apprehension: she is aware of the tension between the parents and the litigation; she may have experienced harm in the care of the father; and/or she may have experienced him as being abusive, either to her or to those she loves.
4. In my view, there can be little doubt that the child has been exposed to the father's abuse of the mother e.g. when he entered the mother's home while under the influence of alcohol on 26 September 2020 and when he spat in the mother's face later that day. While the child was very young on those particular occasions, the trauma of such events is likely to have had some continuing impact. The child would no doubt be aware of the mother's anxiety about the father given his history of abuse towards her. The Family Report writer also noted that the child had been exposed to "high levels of anger and aggression at handovers" which would have been frightening for the child.
5. The Family Report writer opined that if the child only had a limited connection with the father e.g. supervised, it "may not bode well for her developing sense of identity" and that "[i]t is possible as [the child] ages and becomes more curious about her father and the reasons why she does not spend frequent and regular time with him, she may seek such knowledge from her mother, and it is possible [the mother] may struggle to provide a balanced view of [the father]". The Family Report writer suggests that if an unacceptable risk of family violence finding is made then the child might still spend time with the father one day per month with changeovers at a contact centre. I do not accept this suggestion. If there is to be any contact, given my finding that the father poses an unacceptable risk of harm to the child, it would have to be supervised.
6. Long-term supervision comes with its own challenges particularly as the child grows older and becomes bored or resentful about the restrictions of supervision. Generally, an order for long-term supervision is made in the expectation that the time will at some point progress to unsupervised time. I have no evidence that such a transition is likely given my findings about the unacceptable risk posed by the father.
7. I was unable to locate in the evidence, the account of the father's supervised visit with the child at the B Contact Service, which was scheduled to occur on 16 February 2025 (not 16 January 2025 as stated by the father in his affidavit). The ICL's case outline purports to give an account of the visit which she suggests occurred on 15 February 2025. It is common ground that the visit was unremarkable. The child and father appeared to interact in a friendly manner. The child asked to watch television but continued to interact with the father. The child agreed to the father taking a photograph of her but refused his request for a photograph with him.
8. On 14 March 2025, the mother is reported to have called the contact centre to advise that for two weeks after the visit with the father the child started to wet the bed. The mother reported that the child did not want to see the father. The mother further reported that the child had been experiencing seizures and she was awaiting further advice from the child's paediatrician.
9. On 30 March 2025, the coordinator of the contact centre took it upon herself to conduct an interview with the child. She asked the child whether she wanted to come and see the father at the contact centre and the child said she did not and indicated, by choosing 'bear cards', that she would feel sad about doing so. The contact centre withdrew their services after the interview stating that the child was not ready to resume visits with the father.
10. Even if I could be satisfied that any benefits to the child in spending supervised visits with the father were not outweighed by the detriments of long-term supervision, which I am not, there is no evidence that there is a contact centre willing to offer long-term supervision. There would be no practical utility in making an order that the supervised visits occur at B Contact Service as their services have been withdrawn. This Court has no power to order the centre to provide their services.
11. The alternative to a contact centre is the paternal grandmother as supervisor. Understandably, in my view, the mother would have no confidence in the paternal grandmother as a supervisor, despite her agreeing to her as a supervisor in the past. Any trust the mother may have had is likely to have evaporated when the paternal grandmother failed to ensure the father was not present at 6.30 pm on 26 September 2020 contrary to her agreement. The paternal grandmother was surprisingly vague about this day. She could not remember if she was present to collect the father from the mother's home in the morning. The mother contends that she was, and that the father's brother was also present. One might have thought that if the paternal grandmother was not present, she might have asked her other son. I accept the mother's evidence, in the absence of a denial from the paternal grandmother that she was present and that she had agreed that the father would not be at her home later that day when the mother dropped off the child. The paternal grandmother was unable to prevent the father's appalling behaviour when he repeatedly spat at the mother.
12. I find that the paternal grandmother is not a suitable supervisor.

WHETHER THE MOTHER'S PARENTING CAPACITY WILL BE DETRIMENTALLY AFFECTED IF THE CHILD SPENDS UNSUPERVISED TIME WITH THE FATHER?

1. It was submitted on behalf of the ICL and adopted by the father that there is insufficient evidence to find that the mother's parenting capacity will be detrimentally affected if the child spends unsupervised time with the father.
2. Although the issue does not now arise given my earlier findings, in the event that I am wrong, I accept the unchallenged evidence of the Family Report writer that:

1. Concerns are held that [the mother] has been constantly having to manage [the father's] needs and his expectations, which takes away her ability to focus her time and attention on [the child] and her other children. This view is supported by the Police material, where in 2020 she requested to withdraw a Protection Order out of concern about how [the father] may react to the same. All these factors are consistent with [the father] perpetrating coercive control.
2. [The mother's] experiences of serious family violence, and the prolonged management of [the father's] expectations and demands is likely to have had a cumulative negative impact on her and her parenting of [the child]. It is likely to have undermined her sense of safety and left her hypervigilant and anxious. It is likely [the mother] was already attuned to, and concerned about, [the child's] safety, when the injury occurred in August 2023.

...

1. Even if [the father] is no longer perpetrating family violence, it does not necessarily mean the risk and impact the [the child] is substantially reduced. The parties have agreed [the child] will live primarily with her mother, and as the primary caregiver, consideration should be given to the long term impact on [the mother] and her mental health and parenting capacity of the family violence she has endured. It is likely to be quite challenging for [the mother] to continue to facilitate handovers and promote a relationship between [the child] and her father, in light of this history.

1. In my view, the mother's facilitation of the child's relationship with the father for a considerable period after separation should be seen in the context of a continuation of her attempts to manage and appease the father in the context of a violent relationship. Having regard to the persistent and serious nature of the father's violent and coercive and controlling behaviour, an order for unsupervised time would in all probability detrimentally impact on the mother's parenting capacity.

WHAT PARENTING ORDER IS IN THE CHILD'S BEST INTERESTS

1. There is no challenge to the child continuing to live with the mother and for the mother to have sole parental responsibility i.e. all the duties, powers, responsibilities and authority which, by law, a parent has in relation to a child.
2. I have found that the father poses an unacceptable risk of family violence to the child and to the mother that cannot be ameliorated by supervision at a contact centre and that the paternal grandmother is not an appropriate supervisor. The father will spend no time with the child.
3. I adopt that part of the order recommended by the ICL requiring the mother to provide the father with updates in relation to the child's health and education. The father has provided an email address to the Court with no indication that it should not be disclosed to the mother. Accordingly, it will be included in the order as the email address to which the mother's updates about the child should be sent.

I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.

[1] Family Law Act 1975 (Cth) s 65D.

[2] Evidence Act 1995 (Cth) s 140.

[3] M v M (1988) 166 CLR 69 at 77 ("M v M").

[5] Ibid; N and S and the Separate Representative (1996) FLC 92-655.

[6] Eastley & Eastley [2022] FedCFamC1A 101; (2022) FLC 94-094, [31] ("Eastley").

[7] Johnson & Page (2007) FLC 93-344 at 81,890-81,891, [68]-[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 ("Isles") but not on this point which was subsequently confirmed by Eastley.

[10] Baghti & Baghti [2015] FamCAFC 71.

[12] Banks & Banks (2015) FLC 93-637.