Vung & Burnes [2025] FedCFamC1F 905 (12 December 2025)

1. The father was born in Australia, and the mother was born in Country B. They commenced a relationship in June 2016, cohabited from late 2016 and married in 2018. There is one child of the relationship X who was born in Australia. They separated in November 2021 when the mother and child left the family home.
2. Whilst the early stages of the parties' relationship appeared to be relatively harmonious, the first incident of serious conflict occurred during a trip to Country B in March 2018. The mother flew to Country in early 2018 following the sudden and unexpected death of her brother in a car accident, with the father joining her there in March 2018. The mother's expectations of the trip were to grieve the death of her brother and to support her family members, whereas the father's expectations were to enjoy a holiday. A serious dispute arose about the mother's choice of a restaurant in a food court, because the father expected to dine in a more salubrious restaurant.
3. The relationship further deteriorated just before and significantly after the birth of the child. The mother contends during this time the father's conduct escalated and he engaged in coercive and controlling conduct.
4. The father asserts the mother's behaviour after the birth of the child was peculiar, her behaviour was excessively protective, she would not allow the father to hold the child and she denied the paternal family the opportunity to spend time with the baby.
5. In mid-2019, the father contends the mother's mental health declined following the birth of the child and as a result, he contacted both C Organisation and the mother's health professionals, without her knowledge or consent. The mother contends the father's conduct was coercive and controlling and was an attempt to gaslight her. I refer further to this below.
6. According to the mother, as a result in the father's escalation of abusive behaviour, she and the child left the family home to reside in a domestic violence shelter on 27 or 28 November 2021 and the parties separated on a final basis the same day. Shortly thereafter the mother and child relocated to other crisis accommodation due to concerns the father was tracking them via the mother's online accounts.
7. In late 2021, child protection received a report in relation to the child, which raised concerns for the child's exposure to family violence perpetrated by the father against the mother, the father's use of inappropriate discipline, and concerns that the father was feeding the child alcohol.[1]
8. On 9 December 2021, the father filed an Initiating Application in Division 2 of the Federal Circuit and Family Court of Australia seeking a recovery order, which commenced these proceedings.
9. Victoria Police applied for and obtained an interim Intervention Order in late 2021 against the father, listing the mother and child as protected persons. In early 2022, a final intervention order was made for two years, by consent without admission.
10. Orders were made on 3 February 2024 for the parties to enrol in a supervised contact centre, and for a Family Report to be prepared. The first Family Report was prepared by Dr C on 28 March 2022 in which she recommended the mother have sole parental responsibility (as it then was) and for the child to spend time with the father on a supervised basis. On 4 April 2022 orders were made by consent in accordance with the recommendation.
11. On 24 August 2022, the matter was listed for an Interim Defended Hearing, and orders were made increasing the time the child spent with the father to one overnight occasion once a fortnight. Time again increased after a further Interim Defended Hearing on 23 November 2022, to four nights per fortnight. Upon commencing overnight time with the father, the mother contends she observed a deterioration in the child's behaviour.
12. On 16 November 2022, the father filed an Amended Application for Final Orders seeking that the child live with him, amongst other things.
13. The father filed an Intervention Order application against the mother on 3 January 2023, naming the child and him as protected persons. This application was based on allegations that the mother had taken items from his car, placed her hand on his shoulder during changeover and raised historical concerns that the mother had hit the child.
14. The mother deposes that, as of March 2023, her concerns about the child's behaviour continued to deteriorate.
15. A second Family Report was prepared by Dr C on 5 June 2023 and filed on 28 June 2023.
16. The mother filed an Application in a Proceeding on 21 June 2023 seeking the matter be listed on an urgent basis, and for previous orders for time between the child and father to be discharged, with the child to spend time with the father on a supervised basis twice weekly. This Application was heard before a Senior Judicial Registrar on 8 August 2023, and orders were made for the child to spend unsupervised overnight time with the father for a night "every two out of three weeks "each Tuesday for two hours and for two hours on the father's birthday, if the child was not already in his care. Orders were also made for the child to attend upon a paediatrician.
17. In early 2024, an Interim Intervention Order was made by the Magistrates Court at Melbourne, suspending interim parenting orders pursuant to s 68R of the Family Law Act 1975 (Cth) ("the Act"). As at the date of trial, the father deposes to not spending time with the child since this order was made.
18. The trial was listed on 8 July 2024 for a five-day trial. At the request of counsel for the parties, it was stood down for two days to enable negotiations. Unfortunately, negotiations broke down and the trial commenced on 10 July 2024. It continued on 11 July and 22 August 2024 and was due to recommence on 13 November 2024. In November 2024, counsel for the mother and father were both unwell, and the trial could not proceed as scheduled. There were no available dates which suited all counsel and the parties until 31 March 2025, partly due to the mother's plans to travel to Country B with the child during the long summer holidays. Transcripts of the hearing dates in 2024 were requested by counsel and provided by the court to assist all parties. The trial continued on 31 March 2025 until 2 April 2025, on 4 April 2025 and 13 June 2025. Final written submissions were filed by the parties on 23 June 2025, 3 July 2025, 17 July 2025 and 5 August 2025.

(a) Is the child at unacceptable risk of harm if he spends time with the father, arising from family violence, including coercive and controlling conduct, emotional and psychological harm;

(b) If yes to the above, can the risk of harm be ameliorated;

(c) If so, what orders are in the child's 's best interests;

(d) Should the parents have joint decision-making authority for all "major long term issues "as defined by s 4(1) of the Act, or should the mother have sole decision making authority;

(e) If orders are made for the mother to have sole decision-making authority, should she be required to consult with the father and make a genuine effort to reach agreement with him, prior to making a long-term decision about the child;

(f) Should the mother be permitted to travel overseas with the child; and

(g) is it appropriate to make harmful proceedings order pursuant to s 102QAC or a vexatious proceedings order pursuant to s 102QB(2) of the Act.

1. The father's counsel provided a Minute of Proposed Orders which is Annexure A to these reasons. In his final written submissions, the father's counsel proposed an alternate regime that had not been proposed during the trial, which was the child spend weekly day visits with the father, professionally supervised at his expense, with changeovers to be co-ordinated by the supervisor, to prevent contact between the parents.
2. Counsel for the mother provided an Amended Minute of Proposed Orders dated 29 May 2025 which is Annexure B to these reasons.
3. Counsel for the Independent Children's Lawyer broadly adopted the mother's proposal but sought the court to consider whether identity time should be more frequent than four occasions per annum and minor amendments to the proposed travel and passport orders.

(a) Affidavit of Mr Vung filed 1 July 2024;

(b) Affidavit of Ms E filed 25 June 2024;

(c) Affidavit of Mr Vung filed 17 June 2024;

(d) Further Amended Initiating Application filed 17 June 2024;

(e) Affidavit of Dr F filed 14 June 2024;

(f) Affidavit of Dr D (second Family Report) filed 28 June 2023;

(g) Affidavit of Ms H (supervision report) filed 15 August 2022;

(h) Affidavit of Dr D (first Family Report) filed 6 July 2022;

(i) Outline of Case filed 4 July 2024; and

(j) Written Submissions filed 17 July 2025.

1. The mother relied upon the following documents:

(a) Section 67Z Department of Health and Human Services ("DHHS") report filed 3 March 2022;

(b) Affidavit of Dr D (first Family Report) filed 6 July 2022;

(c) Affidavit of Dr D (second Family Report) filed 28 June 2023;

(d) Affidavit of Ms Burnes filed 25 June 2024;

(e) Further Amended Response filed 24 June 2024;

(f) Outline of Case filed 4 July 2024;

(g) Written Submissions filed 3 July 2025; and

(h) Written Submissions in Reply filed 5 August 2025

1. The Independent Children's Lawyer relied upon the following documents:

(a) Section 67Z DHHS report filed 3 March 2022;

(b) Affidavit of Dr D (first Family Report) filed 6 July 2022;

(c) Affidavit of Dr D (second Family Report) filed 28 June 2023;

(d) Affidavit of Ms H (supervision report) filed 15 August 2022;

(e) Outline of Case filed 5 July 2024; and

(f) Written Submissions filed 23 June 2025.

1. The following documents were tendered during the course of the trial by Counsel for the father:

Recording of conversation between father and X 25 January 2025 - Audio file.

Letter for AFL Kordos Lawyers 13 January 2025, enclosing text message from mother to father and Application form for Country B citizenship.

Letter from mother's solicitor (Hartley's) to father's solicitors on 15 January 2025.

Civil registration of birth - December 2024 / January 2025.

Audio recording of 1 February 2025 - between mother and father and child.

Letter sent AFL Kordos Lawyer to mother solicitors on 24 January 2025.

Letter from mother's solicitor to father's solicitor 10 February 2025.

Note of Ms G, child care worker, dated 14 March 2024.

Initial Consultation Assessment 19 April 2024 Ms J.

O Children's Service enrolment form - 8 Nov 2024.

Text message exchange between mother and father, dated 28 October 2020.

Text messages exchanged between the mother and father dated 9 May 2021.

Text messages exchanged between the mother and father dated 25 February 2021.

1. The following was tendered by counsel for the mother:

Paragraph 24 and 25 of the father's affidavit filed 9 December 2021.

Recording of 17 November 2021 (Annexure Burnes-2 to mother's trial affidavit) titled 'don't be a dickhead'.

Recording of 20 June 2021 (Annexure Burnes-3 to mother's trial affidavit) titled 'I said I was gonna punch you in the head'.

Recording of 31 December 2019 (Annexure Burnes-6 to mother's trial affidavit) titled 'kicking out of the house threat'.

Text messages of 8 April 2019 (Annexure Burnes-5 to mother's trial affidavit).

Annexure Burnes-37, text messages on 31 July 2022.

Annexure Burnes-39 video of father recording child at kindergarten taken 8.57am 18 March 2024.

Annexure Burnes-40 pages 236-243. Letter dated 28 March and text messages between parents.

Annexure Burnes-33 of mother's trial affidavit, pages 206-208.

Letter and text messages, Burnes-30 of mother's trial affidavit, pages 195-199.

Letter from mother's solicitor to father's solicitor dated 13 May 2024 annexure Burnes-41 mother's affidavit.

1. The following was tendered by counsel for the Independent Children's Lawyer.

L Clinic Dr C notes 15 May 2023 phone call between Ms K and Dr C (3 pages).

M Children's Service phone call with mother, 16 May page 89 of subpoena material.

34 pages of documents (produced by C Organisation (pursuant to subpoena).

N Counselling Service records of father (produced pursuant to subpoena).

Page 60 of O Children's Service documents produced pursuant to subpoena dated 20 March 2023.

Case notes of Ms Q from February 2020 - 27 March 2020.

Notes of Ms Q commencing 28 January 2020 - 8 February 2022.

Series of text messages between mother and father of 25 May 2020.

X's counselling notes from P Counselling Service in accordance with email of 4 April 2025.

1. The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth) ("Evidence Act")).
2. Section 140 of the Evidence Act 1995 (Cth) provides:

(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. The father and mother relied upon their respective affidavits. The affidavits exhaustively recounted the history of the parties' relationship. I have read all the evidence relied upon by the parties including affidavits and documents tendered, examined that evidence and do not propose to repeat all of the details in these reasons or consider each and every factual dispute.
2. As the High Court sets out in Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at [62], per Gleeson CJ, McHugh and Gummow JJ :

...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. During the trial which, proceeded over many days and tranches, I listened carefully to the oral evidence and observed the parties and witnesses give their evidence.

1. The father gave evidence and was cross-examined by counsel for both the mother and Independent Children's Lawyer. He was eager to present himself as a victim, to justify his behaviour and to downplay the harm his behaviours may have caused. He was at times evasive, and disingenuous in his answers to questions during cross examination.
2. His emphasis on semantics to avoid blame was particularly notable, such as when he was asked whether he had called the mother any names other than "dickhead", he said "I said don't be a dickhead. I didn't call her a dickhead".[2] Throughout his evidence, he frequently attempted to shift blame to others, such as the mother, the Family Report writer, and childcare staff, whom he believes are all unreasonably prejudiced against him. His evidence was given through the prism of his rigid and myopic views, and it was clear he has limited self-reflection skills and lacked empathy towards others. This was further reinforced to me when the father brought in an entourage of supporters, who were seated in the public gallery, during the mother's cross-examination.
3. Exhibit M-7 is an affidavit of the father filed on 17 March 2022, the primary objective of which was for the father to object to a recording sent to the Family Report writer and to assert he was a victim of domestic violence perpetrated by the mother. Annexures to that affidavit are photographs of injuries he contends were inflicted by the mother. Paragraph 4 of that affidavit refers to an incident on 8 March 2020, when the father alleges the mother hit him several times in the face leaving a red mark on his left cheek. At paragraph 5 of that affidavit, the father deposes to being unable to recall what led up to this incident, although he recalled reporting it to C Organisation.
4. During cross examination of the mother, the father's counsel put to the mother specific details of what transpired that night, including that the father was asleep in bed prior to the mother going to bed. Counsel for the mother objected to the cross examination, because the propositions about specific events were contrary to the father's own evidence[3] that he could not recall the events prior to the incident.
5. When asked, the father's counsel was unable to explain how the father now was able to remember specific details, five years after the incident and instruct his counsel accordingly, when he had earlier deposed two years after the incident, he was unable to recall what led up to the incident. This episode demonstrates some of the father's evidence and conduct as inconsistent, contradictory, self-serving, unreliable and possibly of recent invention.
6. For these reasons, I find that the father's oral and affidavit evidence must be approached with caution and generally where the evidence of the mother and father differs, I prefer the mother's evidence.
7. Dr F is the father's treating psychologist. He gave evidence and was cross-examined by counsel for both the mother and Independent Children's Lawyer. The father initially engaged with Dr F as a result of orders requiring him to do so, and attended seven sessions between July 2023 and May 2024, however at the time of cross-examination in August 2024, he had not seen the father in almost three months. Dr F maintained an overly forgiving and generous view towards the motivations of the father, such as when asked whether he was told about the father presenting the mother with a beyond blue checklist weeks after she had given birth to the child, he stated that everyone does what they think is right at the time, even murders and sexual abusers.[4] I have no confidence Dr F was able to robustly challenge the father's perception of the mother and the parental dynamic. That much was obvious from the father's attitude throughout his cross examination and the instructions he provided to his counsel for cross examination of the mother, which are referred to below. Although I do not doubt the sincerity of Dr F's view, I place little weight on his evidence about the father having learned anything positive at all from the sessions. I am also cognisant that Dr F had not seen the father since May 2024 and would therefore not be in a position to comment currently about the father. In the father's Outline of Case document, he submits Dr F's report does not identify any risk factors for the child whist in the father's care. I reject that premise because I do not consider Dr F to be objective nor has he much idea about the allegations and dynamic in the parental relationship.
8. The father also relied upon the reports of the contact supervisor, Ms H, but she was not required for cross examination.

1. The mother gave evidence and was cross examined by counsel for both the father and the Independent Children's Lawyer. There was some language difficulty so for the majority of her evidence an interpreter was utilised in some instances, to both explain the question to the mother and sometimes to comprehensively translate her answers. On the few occasions when an interpreter was not available, the mother acquitted herself well when speaking English. The mother was a most impressive witness who was thoughtful, considered and responsive in her answers to at times difficult questions. She was able to recall events with impressive detail and was quite candid about her inability to recall other events. That is not surprising because many questions in cross examination were about past disturbing events. The mother made appropriate concessions against her interest and provided logical and coherent explanations. Such an example was her version of the events which took place on 8 March 2020, when she readily conceded she had scratched the father in self-defence. Contrary to the father's two versions of that event, the first that he was unable to recall the precipitating circumstances, and that then he was able to provide detailed instructions to his counsel to cross examine the mother on, she provided a logical and coherent account of the incident, including what had triggered the dispute. The mother impressed me as serious and possessing a solemn respect for the legal proceedings and her oath to tell the truth. I consider her a witness of integrity and truth and where her evidence differs from the father, I prefer and accept her version of events and evidence generally.

1. Dr D prepared two family reports, the first in March 2022 and the second in June 2023. She was cross examined by all three counsel. Counsel for the father attempted to discredit her opinion and attempted to paint a picture of a biased and unprofessional witness, who had prejudged the father and was effectively in the mother's camp. I unequivocally reject that characterisation of her evidence because she was a highly impressive and thorough professional witness and her observations of the parties and her evaluation of the family dynamic were consistent with my observations. Just because she did not accept the father's own narrative about his parental capacity and her recommendations were contrary to his proposals does not mean she had prejudged the father. Similarly, her decision not to observe the father and child in the first assessment was not indicative of a bias against the father but was based on identified safety concerns and risk factors.[5]
2. The criticism in the father's written submissions levelled at her qualifications as a social worker, as opposed to a psychologist, are also unwarranted. The parties jointly selected Dr D to prepare the family reports and would have been cognisant of her qualifications and just prior to her cross examination I asked all counsel whether there was any challenge to her qualifications, which there was not.[6]
3. Dr D's Family Report and oral evidence were considered, insightful, and logical. I accept her opinion and attach significant weight to her evidence. Her evidence is discussed in detail throughout these reasons.

1. This case was heard after the enactment of the Federal Circuit and Family Court of Australia (Family Law) Amendment (2024 Measures No.1) Rules 2024 (Cth). The legislative changes therefore apply to this case and the consideration of best interest factors below reflects the relevant legislation as at the date of final hearing.
2. Section 60CC of the Act sets out how the court is to determine what is in a child's best interest by reference to general considerations (s 60CC(2)). Section 60CC(2) sets out a non-hierarchical list of considerations which I must take into account, being:

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i) the child; and

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child).

(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 is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural 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;

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

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.

Abuse in relation to a child is defined in s 4 of the Act and means:

(a) an assault, including a sexual assault, of the child; or

(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

1. 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 for causes the family member to be fearful. The definition of family violence was recently considered by the Full Court in Pickford and Pickford [2024] FedCFamC1A 249; (2024) FLC 94-230.

The legal principles applicable to parenting disputes

1. Part VII of the Act sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders.
2. In considering what order to make, s 60CG of the Act requires the Court, to the extent possible, to ensure the order does not expose a person to an unacceptable risk of family violence and enables the Court to include in the order any necessary safeguards.

How the Court approaches allegations of unacceptable risk

1. The primary issue that informs what time, if any, the child should spend with his father, and if so, whether the time should be supervised, is the issue of the risk arising from the father's family violence and coercive and controlling behaviour.
2. According to the mother, the father's behaviour poses an unacceptable risk of harm to the child.
3. Conversely, the father contends as his primary position, that he does not pose an unacceptable risk to child and his time with the child should be reinstated. Alternatively, he proposes he should spend weekly supervised time with the child. The father's alternate proposal surfaced for the first time in the written submissions of his counsel, which were filed in late July 2025.
4. In Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 ("Isles & Nelissen"), the Full Court of this Court (Alstergren CJ, McClelland DCJ, Aldridge, Austin, and Tree JJ) reconsidered the issue of unacceptable risk. In the course of their reasons, their Honours observed that future unacceptable risk is not to be established on the balance of probabilities.
5. The Full Court identified in Isles & Nelissen (quoting Austin J in Fitzwater & Fitzwater [2019] FamCAFC 251; (2019) 60 Fam LR 212 ("Fitzwater") at [138]) the consideration 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. That analysis adopts and is consistent with the reasoning of the High Court in respect to risk, set out in M v M (1988) 166 CLR 69.
6. Simply put, the Court is required to make factual findings about past relevant disputed events underpinning the allegations, to the requisite standard of proof and then on the basis of those findings and other relevant considerations, predict the level of future risk to a child. In carrying out the risk assessment, the Court assesses both the prediction of future harm and the severity of the impact, if such harm were to eventuate. The possibility of future harm and severity of harm may be determined as unacceptable.
7. As the Full Court in Isles & Nelissen observed at [47]:

.... The civil standard of proof is not the measure by which an unacceptable risk of harm is to be assessed. The civil standard of proof is reserved for the proof of facts, the positive or negative findings in relation to which could well feed into any alternative finding about the existence of an unacceptable risk of harm.

1. Their Honours at [50], agreed with and adopted the commentary of Austin J in Fitzwater at [132]-[142].
2. In Eastley & Eastley [2022] FedCFamC1A 101; (2022) FLC 94-094 ("Eastley"), the Full Court observed a trial judge must consider the cumulative effect of the whole of the evidence to assess the level of risk posed to a child, rather than dealing with individual events in isolation at [33]:

The first point to be made is that the law did not require the primary judge to assess the potency of the risk of harm posed to the children by reference to the evidence concerning individual events in isolation from the remainder of the evidence. On the contrary, the primary judge was required to assess the level of risk posed to the children on the whole of the evidence, since the strength of the evidence lies in its cumulative effect, much like how the strength of rope derives from the combination of its individually weaker strands (Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 127-130 and 141; Savage v Lunn [1998] NSWCA 203; J.D Heydon, Cross on Evidence (LexisNexis Australia, 13th edition, 2021) at [1110] and [9040]).

1. If the court determines there is an unacceptable risk of harm, the court is required to consider whether the risk to the child's safety may be sufficiently managed or ameliorated (Blinko & Blinko [2015] FamCAFC 146 at [83]).

1. Prior to considering the substantive dispute and the statutory considerations, I will deal with admissibility of the mother's evidence of various recorded conversations between the parents.
2. On the first morning of the trial, I was informed discussions occurred between counsel about whether the father was prepared to concede a list of family violence allegations in order to present a list of concessions for the court's consideration. During the course of my discussions with counsel about the proposed course of action, the following exchange occurred between counsel for the father and myself:

HER HONOUR: Okay. What do you say about that, Mr Mort? It affects your client more, I would think.

MR MORT: Look, it does, your Honour. My learned friend, Ms Swart, and I have had some brief discussions how that might be framed in terms of the umbrella of the definition of family violence under the Family Law Act provisions. Of course, I would have to have some further discussions, but there's explanations. Look, the major evidence, to cut to the chase, your Honour, is going to be the recordings, which I will ask your Honour to make a formal ruling on, whether they're admissible or not, but if they were - yes, I saw your Honour raise your eyebrows, but I understand the case law, and I understand what you're likely to do - well, but in any event, they really form the basis for solid corroboration in this case.

HER HONOUR: Well, that was my initial thought.

MR MORT: Yes.

HER HONOUR: It's going - depending on whether they go in or not, it's going to be difficult. I would have thought, in the - I don't know what they say, obviously.

MR MORT: No, of course, your Honour.

HER HONOUR: But it would be difficult for somebody in your client's position to deny it, I suppose.

MR MORT: Well, that's right, and your Honour's - I know your Honour is well on top of the case law, Huffman & Gorman's case, and cases like that where family violence allegations are made, and recordings of illegally obtained evidence are put before the court to determine whether a judge rules them in or out, and I understand what the likely outcome might be after submissions are made preceding your Honour's ruling. So, in saying all that, my client has an explanation. I feel like - I will withdraw that. He has an explanation for those comments that are made in the recordings. However, the recordings are the recordings, and there are options open to my client, and in any event, they speak for themselves. Can I say that?

1. During his opening, counsel for the father said the following about the recordings:

The father, in his material, denies any physical abuse, your Honour, and the recordings, if your Honour hears them, I've already mooted that with your Honour, but it will be certainly been put to my client, no doubt, during these proceedings, that his conduct was inappropriate in those recordings. And in fact, I think he admits at least one of those episodes of misbehaviour or lack of insight to [Dr D] in her report.

Importantly, what he says, your Honour, it's only a cherry-picking by the mother to choose tapes that placed the father in a very poor light. He says in his material that the mother provoked him, that she knew when she was making recordings, and she did so in the presence of the child. Your Honour will have to make your own assessment of all that evidence, and no doubt, my client will be cross-examined about it. He admitted threatening the mother. He admitted that he would punch her in the head. And he also admitted to [Dr D] that he later apologised.

He believed that the mother had manufactured situations to record his behaviours. She was told to record his behaviours by [R Family Service], and there was a psychologist she was referred to after family counselling. And on the other side of the coin, the mother claims that he threatened her to seek custody of the child if she took [X] and left. It was probably the high point of this level of dysfunction which had not only impacted the party's relationship severely, but indeed the child, who was between his two loving parents fighting, and the impact that that's had on the child, which is evident now in these proceedings, unfortunately.[7]

1. Shortly after the lunch adjournment on the first day of trial, during cross examination of the father, counsel for the mother sought to tender an electronic recording of a telephone conversation between the parents. The following exchange occurred:

MS SWART: Your Honour, I seek to tender the recording. It's [Burnes-]2. There has been an electronic copy provided to your associate.

HER HONOUR: Okay. I think Mr Mort is going to object.

MR MORT: Yes, I will, your Honour. I make a formal objection. I've canvassed this with your Honour previously. I can understand from that canvassing, though, your Honour hasn't predetermined any matter or made a decision, but I formally do make that, and I make it under - on the basis of illegally obtained evidence.

HER HONOUR: Section 138?

MR MORT: Section 6 of the Surveillance Devices - - -

HER HONOUR: But under the Evidence Act, you're seeking that as - - -

MR MORT: 135 and 138, your Honour.

HER HONOUR: Okay. Well, do you want to make any submissions about that? We may as well have that argument now.

MS SWART: Well, your Honour, I say quite simply that this is a children's matter, and it is overwhelmingly important to find out the truth between these two parents about the allegations, that are very serious allegations that have been raised, and it's very much in [X]'s interest for your Honour to have the raw material to be able to make the findings.

HER HONOUR: Okay.

MR MORT: What I would say in relation to a hundred and - section 135, your Honour, on the basis that it is illegally-obtained evidence, is that - - -

HER HONOUR: Well, is it? Does anybody agree with that or - - -

MR MORT: Well, it is - under the Surveillance Act, is it, your Honour. But then the Commonwealth - - -

HER HONOUR: Okay. Which section?

MR MORT: So the Surveillance Devices Act, your Honour.

HER HONOUR: Yes. Which section do you say - - -

MR MORT: Section 6 - - - 15

HER HONOUR: Yes. The Victorian regulation, yes.

MR MORT: - - - says:

Subject to subsection (2) -

you:

...must not knowingly record

without the other person's express or implied consent. And then subsection (2), it doesn't apply. It doesn't seem - it falls within any of those subsections there. However, your Honour well knows section 135 is the first order of call under the Commonwealth Evidence Act, and what I would be relying upon is that it is unduly prejudicial to my client - - -

HER HONOUR: I thought you had to go through the process in 138.

MR MORT: Then you go through 138, your Honour. 138. So 135 says that, then - - -

HER HONOUR: Well, just let me read 135.

MR MORT: Yes, certainly. Sorry, your Honour.

HER HONOUR: So that's for evidence in general, not just illegally-obtained evidence.

MR MORT: That's right, yes. That - - -

HER HONOUR: But 138 applies specifically to illegally-obtained evidence if, in fact, you establish it's illegally obtained. That's a prerequisite first, and the onus is on you, and then the onus is then on Ms Swart to say it should be admitted notwithstanding that.

MR MORT: Yes. So I will have to turn to my client's affidavit to say that he didn't know he was being recorded, and that, therefore, that negates any consent he would have given to the recording. I will have to - sorry, your Honour. I will just turn that.

HER HONOUR: Well, firstly, before we get into this argument, what about the point raised by Ms Swart, the rules of evidence don't apply in parenting proceedings?

MR MORT: Yes. Look, I accept that. No, I said it to your Honour at the start of the submission. I've gone through the case law, and certainly, the case law mentions that. The case of Huffman & Gorman [2014] talks about admitting evidence in these types...[8]

...

HER HONOUR: Well, it is a discretion.

MR MORT: Yes.

HER HONOUR: There's a very good case of Harper J, a Sydney judge, Nagel and Clay [2020] FamCA 326 - - -

MR MORT: Yes.

HER HONOUR: - - - which sets out the process to be followed by a judge when applying 138 - - -

MR MORT: Yes.

HER HONOUR: - - - of the Evidence Act and the discretion that has to be exercised.

MR MORT: Yes. Thank you. So I can't take anything more than that. Your Honour can glean from my submissions, but I do - I am pressed to make the formal application.

HER HONOUR: Yes. No. No, that's absolutely fine. Is there anything else - - -

MS SWART: Your Honour, I just need to take it back a step because there's different classes of recordings.

HER HONOUR: I know. Well - - -

MS SWART: And - - -

HER HONOUR: Well, the problem - I mean, if Mr Mort - I understand Mr Mort's objection, but the process to be followed is that, firstly, he has to establish that the recording was illegally-obtained evidence under the Surveillance Act and whether there's any exceptions under that Act which apply. And then, if it is, that's - the onus is on him to establish that. Then it is your onus to establish, under 138, why it should be admitted notwithstanding that it's illegally obtained evidence, if that's the ruling. Now, that is all subject to the overriding principles in the Act with child-related proceedings.

MS SWART: Yes. When it comes to this particular recording, where my client is recording a private conversation of which she is a party, that doesn't contravene the Surveillance Act. And she's not doing it over a phone line, so it doesn't contravene 45 the Telecommunications Act. I don't think - - -

HER HONOUR: Well, that's up to Mr Mort, if he wants to pursue - - -

MS SWART: I don't think anything has been established that says it's actually illegal.

HER HONOUR: No, no, that's what I'm saying. That is the first step under the surveillance - Victorian legislation, to establish it's illegal or not. And then the second step is under 138. And the onus differs depending on who's establishing what. And at the end, I have a discretion, even if I do find it is illegal, to admit it or not, because - -

MS SWART: Exactly.

HER HONOUR: - - - it's in the - effectively, in the best interests - - -

MS SWART: Of the child. So - - -

HER HONOUR: - - - of getting to the bottom of the case. Getting to the truth of the matter.

MS SWART: So I was starting at the end, but going back to the beginning - - -

HER HONOUR: Yes. Yes, I know. So - - -

MS SWART: If you go right to the beginning of section 6, it's not illegal to record - - -

HER HONOUR: Okay. Well, you don't have to establish that. Mr - the onus is on Mr Mort to do it. Now, if Mr Mort just wants to have his objection noted, that's fine. But if he wants to pursue it any further than that, he will need to go through the actual process of - - -

MS SWART: Thank you, your Honour.

HER HONOUR: - - - of section 6. So it's up to you, Mr Mort, whether you want to do that or you just want it noted that you make that objection but you don't want to pursue that process.

MR MORT: No, your Honour. I think your Honour is on the same track I'm travelling. I just wish to make that formal objection.

HER HONOUR: Yes. Okay.

MR MORT: Thank you, your Honour.

HER HONOUR: All right. Thank you. Okay. Well, on that basis, Ms Swart, what I'm going to do is I'm going to admit it, and if anybody wants reasons, happy to incorporate that in final reasons.

MR MORT: Thank you, your Honour.

MS SWART: Thank you, your Honour.

HER HONOUR: Sorry. I forgot to ask Mr Myles. Is there anything you want to say?

MR MYLES: No objection, your Honour.

HER HONOUR: No. Okay. All right. Thank you. And presumably, that argument or that - that issue pertains to each of the recordings.

MR MORT: Yes, please, to save time.

HER HONOUR: We don't need to go through that one by - yes. Okay. Good.

MR MORT: Thank you, your Honour.

HER HONOUR: Thank you. I'm very grateful for that concession.

MR MORT: No, not at all, your Honour.[9]

1. The conclusion from the foregoing is that counsel for the father did not seek to press his formal objection to the admission of the recordings made by the mother on the basis of either s 138 or s 135 of the Evidence Act. Neither did counsel for the father seek to raise any application to exclude the evidence under s 102NN(2)(g) and (h) of the Act.
2. I observe that if proper objection had been pressed and submissions made, which they weren't, and I was satisfied the recordings were illegally obtained, which I was not, I would have exercised my discretion under s 135 or s 138 of the Evidence Act and allowed the recordings into evidence because they were highly relevant to the issues in dispute, taking into account the best interests and needs of the child, the impact of the recordings on the proceedings and because the high probative value of the recordings outweighed any prejudice to the father.
3. The recordings were admitted into evidence with counsel for the father declining the opportunity to make further submissions. I observe that in his opening submissions, the father's counsel referred to the mother "cherry picking" the recordings and the father's written submissions refer to the selective and edited nature of the recordings produced by the mother, the circumstances of the mother's provocation of the father and the mother's asserted preparedness to provoke a situation with the child present. I reject the propositions the recordings were edited on the basis that no evidence was presented that would demonstrate this having occurred. Moreover, notwithstanding submissions of cherry picking, the recordings still carry probative value that go to the heart of some of the issues in dispute.
4. Turning now to the s 60CC (2) considerations.

What arrangements would promote the safety of the child and each person who has care of the child

1. Under this consideration, I will deal with the risk factors asserted by the mother and whether these factors substantiate the father poses an unacceptable risk to the child.
2. The mother contended the father poses an unacceptable risk of harm to the child. The father claimed he was a victim of family violence perpetrated by the mother and she had deliberately sought to limit and undermine his relationship with the child. Notwithstanding his allegations levelled at the mother, the father proposed the child remain in the primary care of his mother. That proposal is contrary to any allegations the mother poses a risk to the child, however characterised.
3. The main issues identified in these proceedings relevant to this consideration are:

(a) Incidents of family violence, including physical violence asserted by both parents against the other;

(b) the mother's allegation the father has engaged in a deliberate pattern of coercive controlling behaviour during and after the relationship;

(c) both parents allegations the other parent had used inappropriate discipline on the child;

(d) the father's allegation the mother has assaulted the child; and

(e) The emotional and psychological harm to the child due to the ongoing parental conflict and mistrust.

Mother's allegations of family violence against the father

1. The mother contends the father has perpetrated family violence and engaged in a deliberate pattern of coercive controlling behaviour during the relationship including verbal abuse, physical assault, threats of violence, threats of expulsion from the matrimonial home and Australia generally, coercive and controlling conduct, financial control and tracking. She asserts that family violence has continued post separation.
2. In his trial affidavit the father sought to attribute family violence during the relationship to the mother, portraying her as an aggressor without provocation and styling himself as a victim of her physical assaults and the child likewise suffering from her uncontained behaviour. In his reply affidavit the father denied the mother's assertion in her trial affidavit that during the course of the relationship the father has become controlling and violent, particularly after the birth of X. Curiously, he denied the mother's allegations in paragraph 8 of her trial affidavit that his behaviour towards the mother included financial control, coercive control, verbal abuse, psychological abuse, social isolation, threats to harm or kill and violence including pinning the mother down, choking her and smacking X.
3. During cross-examination, the father generally denied perpetrating family violence against the mother and the child, except when there were direct recordings of him doing so. In circumstances when there was no alternative other than to do so, the father admitted his conduct in the recordings, which were Exhibits M-2, M-3 and M-5. He also admitted to the family report writer, Dr D, that he had threatened to punch the mother in the head[10] and admitted during cross examination that some of his conduct toward to the mother would be regarded as family violence, which he realised only after reading documents filed by the mother.[11]
4. Despite those admissions of family violence, and the manner in which the father's counsel initially proposed to conduct the trial on the basis the father would admit some family violence, during cross examination the father found it difficult to accept and admit he had been a perpetrator of family violence, as claimed by the mother, and in some instances sought to portray himself as a victim of physical abuse perpetrated and sometimes instigated by the mother.
5. Further, during cross examination of the mother, counsel for the father put to her she had deliberately provoked the father prior to pressing record in order to obtain evidence against him, despite no such allegation appearing in the father's trial material. Counsel for the father confirmed his client's instructions were to that affect, even if the father did not say so in his evidence. The mother's response was that there were numerous recordings, some where nothing happens, some where she complains and some where the father was being aggressive.
6. Counsel for the father also put to the mother, on instructions from his client, there was some contribution made by her to marital disagreements and the father never physically assaulted the mother. The mother's response was:

... sometimes when he attacked me, I tried to defend myself. Once when he tried to choke me with his elbow, I tried to get him off me and I did that probably because of self-defence but I would have never hit him, I would never attacked him, or I would have never disrespected him.[12]

1. I understand the incident referred to in the excerpt above to be the one which occurred on 8 March 2020 and which is referred to at paragraph 4 of Exhibit M-7, where the father portrayed himself as a victim at the hands of the mother and which is discussed below.
2. The mother then continued and pointed out the father's prior denials of family violence which were not true. She said:

I understand but I want to remind you that in the beginning he said that he never hit [X]. In the beginning he said that he never committed family violence and he also said that I never told childcare about access for him and that I never informed him about the [Country B] passport. And I showed evidence to show that I did all of that.[13]

1. The father's counsel, also on instructions, put to the mother that she had made up evidence about making threats to the mother in the child's presence and via the child as well as behaving aggressively towards the child.
2. The mother's response was:

... he used to pick at the times to be aggressive when [X] was there or through [X]. He used to say to [X], "I will hit your mum until she doesn't move. I will put a box in your mom's mouth until she stops breathing". Many times he used to push me in front of [X]. And he - at one point, he threw me against the wall - he pushed me against the wall and I said, "don't do it in front of [X]".[14]

1. Turning now to the recordings and text messages which were tendered in the proceeding. Exhibit M-2 is a recording of an incident which occurred on 17 November 2020. The recording is of the father berating the mother and calling her a dickhead. The incident is referred to in detail at paragraph 57 of the mother's trial affidavit. The recording was played in open court and I am satisfied the comments in the mother's trial affidavit accurately reflect the recording.
2. During cross examination of the father, he denied he called the mother a dickhead and said he had told her to stop acting like a dickhead. He seemed to think there was a discernible difference and that the latter comment was less offensive, which I utterly reject.
3. Exhibit Vung-3 is a recording of 20 June 2021. The incident is referred to in detail at paragraph 59 of the mother's trial affidavit as follows:

When I confronted [Mr Vung] on one occasion about his threats to kill me he admitted that he told me he would punch me in the head. I recorded this occasion, and the recording includes the following comments:

(a) 'You said you 're going to kill me'

(b) 'I said I was gonna punch you in the head because all you do is fucking talk shit'

(c) 'You 're just being a bitch dude '

(d) 'stop it, stop being a bitch or you 're going to be in trouble'

(e) 'I didn't say I was gonna kill ya, I said I was gonna punch you in the head'

(f) 'dude, don't ever fucking do it again I'm telling you now'

(g) 'you start violence and you 're going to get violence back'

(h) 'you're being told, don't do it again'

(i) 'the way you 're fucking behaving you deserve it'

(j) 'you reap what you fuckin sow, alright?'

Annexed hereto and marked [Burnes-]3 is a copy of the recording dated 20 June 2021.

1. The recording was played in open court and I am satisfied the comments in the mother's trial affidavit accurately reflect the recording.
2. At paragraph 6 of the father's affidavit of 17 March 2022, Exhibit M-7, the father refers to this incident in the context of him being a victim of the mother's physical violence, and at Annexure 3 of the affidavit, annexes photographs of his asserted injuries.
3. Exhibit M-4 is an exchange of text messages between the parties dated 25 September which states:

[Father] No I said im.gonna put this cardboard down your mouth then u wont be saying anything .... bc u were continuing to n ignore me (sic)

[Mother] Were u expected me to talk as normal after that threat? Come on!

[Mother] I won't be talking with someone who doesn't recognise his mistakes

[Father] I made a mistake and I'm owning it Sorry (sic)

1. Counsel for the Independent Children's Lawyer cross examined the mother about the incident referred to in M-4 and enquired about whether her recollection was exaggerated. The mother responded to feeling a genuine sense of fear and the specificity of using a cardboard box being "a popular [threat]" used by the father.
2. In his final submissions, the father accused the mother of failing to disclose the full thread of the text messages and that her selective disclosure of the above message was an attempt to gaslight the father. In her reply submissions, the mother's counsel said, and I accept, that the full series of messages were produced but not tendered, and corroborated the mother's account the messages were threatening. If the messages corroborated the father's version, that the mother was attempting to gaslight him, I have no doubt the relevant messages would have been tendered on his behalf. I view with extreme concern, the father's apparent failure to recognise, via his submissions, the threat to the mother to put cardboard down her mouth until she stopped speaking, is outrageous and can only be categorised as family violence.
3. The mother contends the father has made threats to her to force her to leave the family home. She refers to the threats in paragraph 71 of her affidavit as follows:

On 31 December 2019 [Mr Vung] and I were in an argument and [Mr Vung] confirmed he would see a lawyer and force me from the home, including the following comments made in front of [X]:

(a) [Ms Burnes] - 'Stop saying you 're going to take me out of the house'

(b) [Mr Vung] - 'No, I'm dead serious mate I'm not joking anymore'

(c) [Mr Vung] - 'You want to make a bet? I'll go see a lawyer and I'll get this all sorted'

(d) [Mr Vung] - 'coz I'm sick of you and your bullshit'

(e) [Ms Burnes] - 'you don't have to say that to me '

(f) [Mr Vung] - 'you don't think I mean it? Coz I'm dead serious mate, I'm sick of you'

Annexed hereto and marked [Burnes-]6 is a copy of the recording dated 31 December 2019 of [Mr Vung] and I

1. The recording was played in open court and I am satisfied the comments in the mother's trial affidavit accurately reflect the recording.
2. During cross examination of the father by the mother's counsel and prior to the recording of Exhibit Vung-5 was played, the father attempted to deny he had threatened to evict the mother from the home and rather categorised his comments as "we could leave and sort it out with lawyers"[15]. I reject the denials by the father and his attempt to characterise his treats. The recording speaks for itself.
3. Exhibit M-6 is a text message sent by the mother to the father, which is referred to in paragraph 61 of the mother's trial affidavit, which lists behaviours the mother wanted the father to stop.
4. The recordings and text messages, collectively, unequivocally demonstrate the father engaged in offensive and threatening behaviour towards the mother, which self-evidently falls within the definition of family violence and I so find.
5. Contrary to what is obvious and apparent from the recordings, the father's attitude, his continuing to blame the mother and his instructions provided to his counsel, I am compelled to treat with serious caution any denial of family violence in his evidence and protestations that he was insightful and remorseful about his actions towards the mother.
6. In her trial affidavit the mother referred to various additional incidents of family violence. Counsel for the father did not cross examine her about the specific incidents, except for the 8 March 2020 incident and the 20 June 2021 incident, although counsel for the Independent Children's Lawyer did.
7. The first incident the mother referred to occurred in February 2018 when she and the father were visiting Country B after the death of her brother and the father was outraged about the choice of restaurant being in a food court. The mother refers to that incident at paragraph 67 of her trial affidavit.
8. During cross examination the father agreed the couple had an argument on one occasion in Country B and agreed he took issue that he wasn't being taken to an appropriate place for dinner. I accept the mother's evidence in this regard.
9. The second incident, which occurred in 2019, when the mother was around seven months pregnant with X, occurred outside the home of the paternal grandparents. The mother's evidence was she and the father were arguing, and the father threw the keys at her, which hit her pregnant belly. Exhibit Vung-6 is the text message the mother sent to the father after that incident.
10. The father was cross examined about the incident and agreed with the proposition he had delicately placed the keys on the mother's pregnant lap when she was six months pregnant. He was unable to cogently explain why the mother sent the text messages to him on in 2019 (Exhibit M-6) or why he did not respond in his reply affidavit to the mother's version of events. I prefer the mother's account of the incident to the father's because the father's version is inherently implausible and an attempt to deflect responsibility from himself, similar to his evidence about the 8 March 2020 incident, referred to below. I find the events of that day occurred in accordance with the mother's evidence.
11. The incident on 8 March 2020 is referred to in Exhibit M-7, which is referred to in the father's affidavit filed 17 March 2022. According to him, the mother hit him several times in the face leaving him with a red mark on his left check. Annexure 2 to his affidavit are photographs of his cheek after the incident. Notably at paragraph 5 of the affidavit, the father states I do not recall what led up to this incident, however I recall reporting this incident to C Organisation on 13 March 2022. Exhibit ICL-4 are the documents produced by C Organisation in response to a subpoena. There are no C Organisation records of 13 March 2022 which refer to the incident of 8 March 2020.
12. During cross examination of the father by counsel for the mother, the father did not provide a plausible explanation why he chose to report to C Organisation scratches on his cheek, which he said occurred two years prior. I am able to infer he did so to bolster his case that he was a victim of physical violence at the hands of the mother. I also observe the affidavit was filed a few days prior to the interviews with Dr D for the first family report assessments.
13. The father was also cross examined by counsel for the mother about the allegations in paragraph 62 of the mother's trial affidavit, about him flying into a rage about a basket of washing and throwing it onto the floor near where X was crawling. He did not address the allegation in his otherwise comprehensive reply affidavit and said he recalled the washing basket on the bench and moving it but did not go into a rage and denied X was crawling at the time. I reject the father's evidence, because of his propensity to deny events adverse to his case and my assessment of the truthful nature of the mother's evidence.
14. Despite the father having sworn to being unable to recall the precursor to the 8 March 2020 incident, during cross examination of the mother, the father's counsel, on instructions provided to him by the father during cross examination, put to the mother specific details about that night. When questioned how it was possible for his client to swear an affidavit two years after the event, when he could not recall the circumstances and then, five years later provide detailed instructions about what had transpired, counsel was unable to reconcile the two conflicting versions of events.
15. The following exchange occurred between the father's counsel and the mother as to whether she had caused the red mark on the father's cheek:

MR MORT: All right. All right. [Ms Burnes], I want to just put this to you. On 8 March 2020, my client gives evidence that you hit him several times, leaving a red mark on his cheek, as exhibited in that photograph. Did you or did you not hit my client to cause that injury?

THE INTERPRETER: I agree partially. I could have hit him when he was choking me. I tried to get him off me. And as I said before, it was probably in self-defence. I can explain more of what happened that day.

...

MR MORT: Yes. And what I'm suggesting to you is that you weren't fending him off or protecting yourself, you were actually the instigator and fighting him. Do you agree or disagree with that proposition?

THE INTERPRETER: I disagree. And I will explain what happened that day.

...

THE INTERPRETER: I will go in parts. What happened that day is I needed a document in order to extend my visa to - to be able to stay in Australia.

THE WITNESS: I was scared because I thought he was going to kill me. Then I have to get him off me. When I was doing the

...

INTERPRETER: That happened when my ex-husband was - was watching a - a football match. A European soccer match from the League. We were both in bed. And I asked him to please - to tell his sister to sign some documents that - because she was going to be a witness in the application to - because she had to authenticate our - that she knew about our relationship. And I had a deadline. And when the sister was going to give back the documents, that would have been over that deadline. So - deadline. So I asked him. And when I asked him, he got infuriated. He was infuriated. And he went on top of me. And he started to choke me with his - with his elbow, and attack me. And I was scared that he was going to kill me.

...

THE INTERPRETER: I've got copy of the [forms]. I've got some evidence.

THE WITNESS: I can provide the evidence for what you are asking.

MR MORT: Yes. All right. Can you just wait, please. Just - - -

HER HONOUR: Sorry, you've got a copy of the forms that his sister was supposed to sign?

THE INTERPRETER: Yes, your Honour. It's the date that the incident happened, and the forms - because I have to do the digital file of the - of the forms for the visa application. I got them somewhere. I - I can get them - I can go to my email and find the forms. And I can prove that what I'm telling you is what happened on that day.

...

MR MORT: Thank you, your Honour. Can you put - if I can put this. First, there were no forms provided to my client on 8 March 2020. Do you agree or disagree?

HER HONOUR: She didn't say that, I don't think. She said the - she - - -

MR MORT: She didn't specify the date, your Honour.

HER HONOUR: She didn't say she provided the forms on that date. She said they were both in bed and "we" - "I had asked his sister to sign documents because she was going to be a witness."

MR MORT: Sorry, your Honour.

HER HONOUR: "She needed to authenticate our relationship. We had a deadline. He was infuriated." And then etcetera.

MR MORT: Yes. All right.

HER HONOUR: So she did not say that she handed forms to him on 8 March.

MR MORT: Yes, your Honour is 100 per cent right. If I can put it this way. On 8 March 2020, there was no request made by you, of my client, in relation to signing any forms. Do you agree or disagree?

THE INTERPRETER: The forms were given to my ex-partner's father and - and his sister. And they had to return it signed. My ex-father-in-law, he returned it on time. But the sister hadn't. And I needed them to do my application for my Australian visa.

MR MORT: All right. Your Honour, did the witness give evidence that it was football or soccer? I just need to clarify.

HER HONOUR: Soccer. A European tournament, I think she said.

MR MORT: Thank you.

HER HONOUR: European soccer match. And then she said "the League".

MR MORT: Thank you, your Honour. Can I put this, too, that you know very well that my client does not watch soccer. European soccer.

THE INTERPRETER: Well - let me tell you. We were both watching the football - soccer match. And he - he loves footy.[16]

1. I accept the evidence of the mother about the events of that day, because she was clear, forthright, specific, plausible and was able to point to independent evidence about what happened on the relevant date. The father was in no position to contradict her evidence. I find the incident occurred in the manner described by her, she was the victim of the father's physical violence and any injuries of the father were inflicted by her in self-defence.
2. The mother was also cross examined about the incident which occurred on 20 June 2021, which is referred to at paragraph 6 of the father's affidavit of 17 March 2022. In that affidavit, the father alleges the mother inflicted pinch injuries on his arm and back and at Annexure Vung-3 he annexes photographs of the injuries. He also alleges that the mother grabbed a tall drinking glass from the kitchen, put it up against his head and threatened to hit him over the head with it.
3. The following exchange occurred between the mother and counsel for the father:

MR MORT: All right. We're just focusing on that incident, [Ms Burnes]. And what is your response to my client's evidence in relation to that incident? And that incident only, please.

THE INTERPRETER: I say that what he says there, it's - is false. That day, there was an incident where he pushed me - - -

HER HONOUR: Sorry. There was an incident?

THE INTERPRETER: There was an incident where he pushed me against a wall. And [X] was really upset. And he was on the - on the floor. And he was crying. And that's when he said to me, "I will leave you with no movement, no breath." And I tried to fend him off. And that's when, probably, I - I injured him, probably with - with my hands.

MR MORT: All right. Did you pinch him on the arm?

THE INTERPRETER: I can't remember where exactly I injured him. But I put force to fend him off, to get him off me.

MR MORT: And did you grab a drinking glass and put it against his head and threaten him with it?

THE INTERPRETER: No. No, sir.

MR MORT: Thank you. And if I can put to you this. That on my instructions, my client denies your evidence in terms of pushing you against the wall and, effectively, assaulting you. But you disagree with that, don't you.

THE INTERPRETER: Yes, I disagree.

MR MORT: Could the witness be shown, on that affidavit, your Honour, exhibit 3, which is referred to in paragraph 6 of the 2022 affidavit.

HER HONOUR: Photos of the pinch injuries?

MR MORT: Yes, it is, your Honour. Yes, it is. They're not that easy to see, but - do you see on that photograph, to the left-hand side of the screen, is my client's left shoulder down to his elbow? And I accept it's a little hard to see on the screen. But do you see there's marks on that particular arm? They look like almost scratch marks. Do you see that? And what my client says is that you caused those marks to his arm, unprovoked. Do you agree or disagree with that?

THE INTERPRETER: I disagree. That was in self-defence.

MR MORT: Thank you.

THE INTERPRETER: I wasn't going to attack him. It was self-defence.[17]

1. I prefer and accept the evidence of the mother in preference to that of the father, who clearly omitted to tell the whole truth about both above incidents, and clearly provided fabricated instructions to his counsel during the mother's cross examination, which were contrary to his affidavit sworn three years ago. The mother made appropriate concessions against interest, namely that she had injured the father, but in self-defence. The father's version of both events was selective and edited to suit his narrative. I also observe the father's asserted injuries arising from both incidents were minor, could have occurred from a myriad of other ways and were difficult to discern in the photos annexed to his affidavit.
2. I find the incident of 20 June 2021 also occurred in the manner described by the mother, she was the victim of the father's physical violence, and any injuries of the father were inflicted in self-defence.
3. In her trial affidavit the mother deposed to an incident which occurred on 25 September 2021, when she asserts the father threatened to hit her. Exhibit Vung-4 is a text message the father sent the mother.
4. Exhibit ICL-8 is the notes of the mother's psychologist, Ms Q from 28 January 2020 until 8 February 2022. The notes demonstrate that the mother attended on Ms Q for six sessions until COVID lockdowns in March 2020. She recommenced sessions on 10 December 2021 and attended a further three sessions. The mother recounted to Ms Q in specific detail her experience of family violence at the hands of the father and her observations of the father punishing X. Ms Q was not required for cross examination.
5. The mother's psychologist Ms E swore an affidavit which was filed on 25 June 2024 and details the mother's ten attendances on her between 14 February 2023 and 14 August 2023 and refers treatment of the mother's psychological symptoms indicative of trauma following reported domestic violence by the father. It also refers to the mother's concerns for her son's safety.
6. In his final submissions, counsel for the father contends he did not cross examine Ms E for various reasons including that the report relies heavily on self-reported information from the mother which are uncorroborated, does not include external evidence to substantiate the mother's concerns about safety. Other criticisms pertain to a failure to provide an assessment of the mother's parenting capacity or address the broader family dynamic or the father's perspective.
7. I reject those submissions, because it is not the role of treating psychologist to conduct a quasi-family report or parenting capacity assessment. The probative value of the report is that it records the mother's concerns about herself and X and her experience of the relationship with the father. It also corroborates, to some extent, the mother's account of the relationship with the father. I accept the evidence of Ms E as unchallenged.
8. I accept and find that the father has perpetrated family violence against the mother, that is physical and verbal abuse, noting the father admitted threatening her with physical harm, including threatening to punch her in the head and putting cardboard down her mouth, being verbally abusive and engaging in domineering and aggressive behaviour. Those admissions were in stark contrast to the statement in his first affidavit sworn 8 December 2021 at paragraph 24, where he states: I have never committed family violence towards the respondent.[18]
9. Further, I do not accept the father's evidence during cross examination by the mother's counsel that he did not consider his actions to be family violence until he read the mother's affidavit and that he was unclear at the time what constituted family violence. I note he subsequently admitted that statement was a lie.

Mother's allegations of coercive and controlling conduct by the father

1. The mother makes allegations the father has engaged in significant coercing and controlling conduct.
2. During the relationship she contends the father:
   • took her passport and kept it in a location unknown to her and she had to beg for the return of the passport to attend to her visa issues;
   • In 2018 the father refused to reschedule the planned wedding in S State in early 2018, which meant some members of the maternal family were unable to attend because they were, at that time, still grieving the sudden death of the mother's brother in a car accident;
   • Constantly threatened to force her to leave the house, to take the child away from her and cancel her visa in Australia so she would have to return to Country B, as per Exhibit Vung-5 which is a recording of an argument between the parents on 31 December 2019;
   • After the death of the maternal grandfather in 2021, refused to allow the child to obtain a passport to enable him to travel to Country B with his mother, so the mother could not attend her father's funeral;
   • Required the mother to seek his permission to access cash kept in the house;
   • Controlled the funds deposited into the joint account, which she understood was strictly for emergency use;
   • Accessed and downloaded the mother's emails, Facebook messages and Facebook without her knowledge or consent, as per paragraph 25 of the father's affidavit filed 9 December 2021;[19]
   • Accessed her bank accounts;
   • Used Google translate to translate Country B Language text into English;
   • Provided the translated text to his lawyer, who incorporated the information into an affidavit in these proceedings, in support of his application filed 9 December 2021 for the child to live with him and for a recovery order;
   • Refused to return the mother's clothes, shoes and bags and some children's clothes because the mother refused to return a hard drive, which she maintained she did not possess;
   • Did not comply with the agreed changeover time on multiple occasions
   • Deliberately returned the child late to the mother on 31 July 2022, because he thought the child's fun was more important than complying with court orders, as per his text message to the mother on 31 July 2022;[20]
   • Contacted C Organisation and Beyond Blue to discuss the mother, without her knowledge and consent;
   • Contacted the mother's GP and psychologist to obtain information about her, absent her knowledge or consent;
   • Accessed her emails after separation, without her consent, and used the information he obtained in an affidavit in support of his recovery order application; which information included her emails with T Counselling Service.
3. During cross examination by counsel for the mother, the father reluctantly conceded he had called C Organisation to see what evidence he could gather for the case which he had started, he had looked at laptops in his possession including all data in the mother's material that he thought was relevant to why she was able to leave with X, had accessed the mother's email account because she was logged in, read her correspondence about contacting T Counselling Services and translated with Google Translate, her documents from Country B Language to English.
4. Further, the father also conceded he had contacted the maternal health nurse, without consulting the mother, to ostensibly discuss what was happening in the family home, his allegations of the mother's erratic conduct and perpetrating family violence. He also agreed he had not consented to X at age two months, travelling to Country B with his mother, so she could attend her father's funeral and said the mother could have gone to Country B by herself and left two-month-old X with him. This is despite the fact he was working fulltime, including doing paperwork on Saturday mornings. His comments the mother could have left a two-month-old baby to travel to Country B, demonstrate a breathtaking lack of insight on the father's part.
5. As to the threats to evict the mother from the home, I refer to my comments about Exhibit M-5 above.
6. The father also agreed with counsel for the mother he had not returned personal items and clothes belonging to the mother and X, as had been agreed, because the mother had not returned a hard drive to him. He thought she had enough things and confirmed the mother's personal possessions were sitting in his commercial property in storage some three years (in July 2024) after the mother left the family home.
7. Further the father agreed he had breached court orders by returning the child two hours late after he attended a relative's birthday party and that a three-year old's fun was more important than compliance with court orders. Exhibit Vung-8 are the relevant text messages between the parents.
8. Counsel for the Independent Children's Lawyer cross examined the father extensively about his conduct, and in particular about the contents of the C Organisation records, which were Exhibit ICL-4. The C Organisation records reflect very poorly on the father and his conduct.
9. In mid-2019, when the child was around 8 weeks old, the father contacted C Organisation ostensibly to report the marital relationship had deteriorated since the third trimester of pregnancy, the mother's over reliance on the maternal grandmother and his concerns about the mother's mental health. The diary note records the father told C Organisation he was concerned about the mother's mental health due to her not getting anything done during the day stating that all she has to do is look after a baby and what is she doing all day?[21] The records note the father stated he is disappointed when he gets home and there is no dinner cooked, stating the least two women home all day could do is cook dinner.[22]
10. Counsel for the Independent Children's Lawyer put to the father, that his actions in contacting C Organisation without the mother's knowledge and behind her back and presenting her with a Beyond Blue questionnaire, are indicative of controlling and coercive conduct on his part. The father initially sought to say the mother knew he had contacted C Organisation but then modified his evidence to agree that he had contacted C Organisation on two or three occasions before the mother became aware and that he had done so behind her back. He also said a C Organisation worker had suggested he present the Beyond Blue questionnaire to the mother as a good way to open up discussion but agreed there was no reference to that in the C Organisation notes. The father ultimately agreed it was open to the court to find what he was doing was part of a pattern of controlling and coercive behaviour.
11. The father also agreed he had contacted the maternal childcare nurse about his alleged concerns about the mother, and the mother would not have known that at the time. When asked by counsel for the Independent Children's Lawyer that he had done so to raise concerns about the mother's mental health, he said he did not raise anything but just told the nurse what was happening in the family home. I consider that evidence to be disingenuous, because it is obvious and apparent the father was attempting to gather evidence to discredit and gaslight the mother.
12. The father's access to and use of the mother's emails in his first affidavit could not be denied by him.
13. After considering the father's conduct, much of which was either conceded to have had occurred or demonstrated by objective evidence, I find the father engaged in coercive and controlling conduct as alleged by the mother.

Mother's allegations of the father's inappropriate use of discipline on the child

1. The mother contended the father used inappropriate disciplinary methods on the child, including physical discipline and locking the child in a dark room. The father denied the allegations.
2. Counsel for the father cross examined the mother about her assertions the father locked X in his darkened room for punishment. He suggested to her there was nothing unusual about putting a child in a dark room at sleep time. The mother was strident in her evidence the child avoided going to his room at night because he thought of it as punishment and gave plausible options about how to alleviate the child's distress at going to his room. I accept her evidence in this regard because of the truthful and solemn manner in which she gave her evidence and the father's obvious attempts to minimise any culpability on his part and to manipulate the facts to his advantage, to the detriment of the mother. A prime example of his duplicitous evidence is his account of the incident on 8 March 2020, when he portrayed himself as a victim, when in fact, he was the instigator of the altercation.
3. During cross-examination, the father gave evidence that at around 18 months old he started disciplining the child using two methods: sitting the child on the floor or putting him in his cot and leaving him for a few minutes. The father sought to paint a picture of controlled and calm discipline.
4. Counsel for the mother played a recording of an incident which occurred on 14 November 2021, 13 days before she left the family home. The recording was simply shocking and distressing to hear. The incident is described in paragraph 88 of the mother's trial affidavit, where she says:

On 14 November 2021 [Mr Vung] smacked [X] and locked him in a dark room. [X] was distraught in the dark room by himself and was crying and screaming loudly. When I tried to get past [Mr Vung] to get [X] out of the room [Mr Vung] reacted violently and smacked me with his hand. I recorded this incident on my phone, with comments made on that recording including as follows:

(a) [Ms Burnes] - 'what are you doing?'

(b) [Mr Vung] - 'don 't interfere '

(c) [Ms Burnes] - 'you don 't have to smack him '

(d) [Mr Vung] - 'yeah well, you cant keep doing that, I can do what the fuck I like'

(e) The sound of a smack is heard from [Mr Vung] smacking me with his hand

(f) [Mr Vung] - 'so what? I am his dad'

(g) [Mr Vung] - 'I can do what the fuck I like, close the door and get out of my face'

(h) [Mr Vung]- 'get out ofmy fucking face NOW!

(i) [Mr Vung] - 'sick of your fucking shit'

(j) [Mr Vung] - 'get out of my face now'

(k) [Ms Burnes] - 'you hit him'

(l) [Mr Vung] - 'so what? I am his dad!'

(m) [Mr Vung] - 'don't get in my face and contradict me in front of him, stop doing that'

(n) [Mr Vung] - 'I am disciplining him, now let me discipline him my way'

(o) [Mr Vung] - 'I've spoken once and I'm not going to speak again'

(p) I go to comfort [X] and remove him from the room, and [X] can be heard in limited baby-talk making comments about wanting to 'push daddy', to which I respond 'we don't do that'

(q) [X] can be heard crying and screaming intermittently throughout the recording.

Annexed hereto and marked [Burnes-]7 is a copy of the audio recording of [Mr Vung]'s abuse of [X] and I on 14 November 2021.

1. During cross examination the father described his conduct on the recording as inexcusable, but still maintained, in the middle of the incident the mother had clapped her hands to fake a smack, although he agreed he had said on the recording that he was the dad and he was allowed to hit the child. I do not accept the mother set the father up during the incident and that she clapped her hands as alleged, because the recording demonstrates, and the father agreed, that he had a plan (to slap the child) and did not want anyone to get in the way or stop him. I find on this occasion, the father physically hit the child and yelled at him and the mother in circumstances which can only be described as outrageously aggressive and the antithesis of controlled and calm discipline.
2. I reject the father's characterisation of his disciplinary methods and in light of the recording, find that the father disciplined the child as characterised by the mother.

The mother's allegations of emotional and psychological harm to the child

1. The mother asserted the father had exposed the child to both demeaning comments about her and her parenting capacity and had exposed the child to family violence. The father denied both allegations.
2. As to the demeaning comments, it was boldly evident throughout the father's evidence he held the mother in complete disdain and had little empathy for her or her situation. He twisted evidence to suit his narrative and readily leapt to accept statements from a then 3-and-a-half-year-old X that his mother had physically attacked him, including taking him to a police station to be interviewed about the alleged assault. He was evasive in many answers about his own conduct and showed little restraint in his criticisms of the mother. Bizarrely, he sought to blame the maternal grandmother, who speaks little English and lives in Country B, for the child swearing and saying obscenities in English, with little regard as to how the maternal grandmother was in a position to influence the child. I have no confidence the father would be able to refrain from criticism and making demeaning comments about the mother, in the child's presence.
3. The child has obviously been exposed to high levels of parental conflict, as demonstrated by the events at changeover and the recordings when the child was present. X has also been exposed to family violence, including verbal abuse of the mother and him, as revealed in the recording of the 14 November 2021 incident.
4. Following protective intervention by Child Protection in late 2021, Child Protection substantiated harm to the child and it was assessed that he would be at risk of emotional and physical harm if left in the unsupervised care of the father.[23] I concur with that finding, which is equally applicable today.
5. During the assessment process for the second family report, Dr D telephoned Ms K, the manager of O Children's Service. The notes of this phone call are exhibit ICL-2. The notes record the mother is willing to follow guidance about appropriate measures to address X's behaviour and describe her as very easy to approach and willing to follow guidance.
6. As for the father, the notes record his focus is against the mum, he wants things put in writing, has threatened involving lawyers, was quite unpleasant, does not appear to be child focused and does not focus on guidance on how to help X, rather asking that any marks on the child be captured and reported. Ms K observed "very different parenting styles - the child is very confused" and wished the parents could work together for the poor child.[24] It was noted the father doesn't ask for strategies, he doesn't seem interested and his response to issues is that his concerns are due to the child being with the mother, he doesn't want to help X and has a different agenda for himself.
7. I accept the observations of Ms K, the childcare manager, as recorded in Exhibit ICL-2 that the father has lacked motivation to prioritise the child's needs and has been fixated on undermining the mother to the child. In that context and taking into account the father's evidence and focus in its entirety, I am persuaded it would be nigh on impossible for the father to disguise his contempt for the mother in the child's presence or to refrain from demeaning comments about her, however subtly they may be phrased. Axiomatically, continuing to undermine the mother to the child would cause emotional and psychological harm to the child.

1. I will deal with the allegations referred to at paragraph 78(a), (c), (d) and (e).
2. The father alleged he was a victim of family violence perpetrated by the mother and claimed he had sustained injuries in two incidents, one on 8 March 2020 and the other on 20 June 2021. I have made findings about both incidents above.
3. In early 2023, the father applied for an intervention order against the mother naming himself and the child as protected persons. The incident arose from an altercation when the father alleges the mother took items from his car and placed her hand on his shoulder. The mother filed a response to the father's Further and Better Particulars on 27 July 2023. At the time of swearing her trial affidavit, the matter was ongoing in the Magistrates Court.
4. The father alleges during the relationship the mother physically disciplined the child, which was a source of conflict because he preferred other methods, such as placing the child in his cot or telling the child to sit in the corner. That evidence of the father's dislike of physical discipline is utterly undermined and contradicted by the father's conduct during the recording of 14 November 2021 and I refer to my findings above as to the father's discipline of the child.
5. Post separation the father has accused the mother, both directly and indirectly of inflicting harm on the child. According to the mother, in October 2022, the child came home from childcare with minor scratches, which X told her were inflicted by another child, but childcare staff told her the child had walked through some bushes.
6. On 18 October 2022, the father, via correspondence from his lawyers, alleged the child had scratches and some bruising and the mother had cut the child's face with scissors whilst cutting X's hair. The father took photographs of the alleged injuries. The mother's evidence was the child had fallen over at the pool and had scratched his forehead. Apparently, the child told his father about this incident, but the father did not believe him.
7. In early 2023, the father's solicitors forwarded a letter to the mother advising the father had made reports to the Department of Families, Fairness and Housing (DFFH), Victoria Police and X's doctor in the context of suggesting minor marks on the child were caused by the mother's physical violence against the child.
8. At paragraph 26 of the second family report, Dr D notes that the father told her about his notification to various authorities after the child had supposedly disclosed his mother had hit him with a toy.
9. In his trial affidavit the father deposes to injuries on the child which he attributes to the mother's violence and the dates of six separate notification to authorities between 27 January 2023 and 9 May 2023.[25] The child was examined by a doctor on 27 January 2023 and interviewed by police on in early 2023. None of the notifications resulted in any action by either Child Protection or the police.
10. Counsel for the Independent Children's Lawyer cross examined the father about these notifications.[26] The father described the marks on the child's hand, said he had photographed the marks and sent photos to the DHHS, who declined to take any action because the marks were not substantial injuries.
11. The father also took the child to the police station, where he was interviewed about his mother hitting him and recorded. It is likely that experience would have caused X, even at such a young age, to understand his father had a negative view of his mother. A report was also made to child protection. The father thought this occurred in early 2023, but did not precisely remember the month, even though he agreed it was a very serious allegation to make. He initially denied he had made the allegation and rather said the child had said so, before agreeing he pursued the allegation with the police. He said he had taken photographs of supposed handprints on the child's back, which were submitted to DFFH and not the police.
12. The father was further cross examined by counsel for the Independent Children's Lawyer about subsequent visits to the police station arising from X allegedly disclosing that his mother had hit him with a toy hammer in the middle of the night resulting in imprints on his wrists.[27]
13. The father denied the proposition that X, a young child, was likely telling him things that he thought the father would be interested in hearing and believed the mother had hit him with a toy hammer.
14. The father agreed neither the police or child protection further investigated the matter, other than interviewing X, who was aged three and a half. When asked why he was unable to provide specific dates for matters of seemingly such importance, particularly when he had managed to previously assemble and collate information for his pie chart, which is referred to below, the father said he couldn't remember everything.
15. Counsel for the Independent Children's Lawyer put to the father the reason he was unable to be specific and recall dates was because he was making it up and he was making a series of spurious reports to have a deleterious effect on the mother.[28]
16. I find that the mother did not engage in the conduct as alleged by the father because it is inconceivable the father was unable to recall the dates he had made the notifications, some of the notifications were made relying on what the child had told him in circumstances when the child would have been acutely aware of the parental conflict and the father's propensity to believe malfeasance on the part of the mother and no action was taken by either child protection or the police. I find the father's allegations were rather a deliberate attempt to undermine the mother's parenting capacity and to obtain a perceived advantage in the litigation. The father seemed unable to recognise the harm he had inflicted on the child by subjecting him to police interviews at such a young age and by the child obviously being aware his father believed his mother had injured him.
17. During cross examination, Dr D agreed the father taking regular photos of injuries on the child, with the suggestion the mother was responsible (when I have found she was not) would have been very, very confusing for the child, would cause divided loyalties, start to impact on his connection with his mother and likely cause the child significant distress, of a kind which it is highly likely would express itself in the kind of dysregulated behaviours that have been recorded by both childcare and X's counsellor.[29] The mother would also have experienced significant distress about the allegations levelled at her. I accept Dr D's opinion about the adverse effect on the child from being subjected to police questioning and the aftermath, because it is self-evident that exposing a three year-old child to police interviews in those circumstances would be entirely detrimental to his wellbeing.
18. Counsel for the father cross examined the mother about an incident in early 2020 when X was about one year old. Counsel put to the mother that on that occasion the child was throwing food around and she poured a glass of cold water over the child's head. The mother denied the accusation. I accept her denials for the reasons previously stated about the mother as a witness and the father's propensity to denigrate the mother and twist the facts to suit his own narrative and the conclusion of the s 67Z report to the effect the mother is a protective parent who has sought to ensure the child is not exposed to family violence.[30]
19. In his written submission, counsel for the father was critical of the mother's counsel's failure to cross examine the father about his allegations of family violence by the mother. I accept the submissions of the mother. That submission ignores the reality the mother's primary care of X was not an issue during the proceedings, even supposing the father's primary proposal is accepted.

Does the father pose an unacceptable risk of harm to the child?

1. Turning now to consider whether the father poses an unacceptable risk of harm to the child.
2. As observed above, the test for finding an unacceptable risk of harm is a predictive exercise, having regard to findings and asserted risk factors, even if it is not possible to make a definitive finding, to determine whether an unacceptable risk of possible future harm exists.
3. The nature and extent of the risk must be appreciated. Tree J in Bant & Clayton [2015] FamCAFC 222; (2015) 53 Fam LR 621 observed at [171]:

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.

1. The possible consequences to the child of the father continuing to perpetrate family violence or to continue to engage in coercive and controlling behaviour are obvious and grave and will undoubtedly undermine the relationship between the child and his mother, who is his primary carer and will likely exacerbate or rekindle the child's highly dysregulated and unacceptable conduct.
2. In the second family report, Dr D identified further risks to the child in the event the court accepted the accounts of the mother and the childcare manager, that the father has exposed the child to negative views about his mother and has demeaned her in the child's presence.[31] Dr D identified that further concerns were raised about the father exposing X to negative views about the mother during the assessment for the second family report. I have found the father has exposed the child to his demeaning comments and attitude towards the mother. Such an example is the father's acceptance of the child's recounting of the mother harming him and then taking the child to the police station to be interviewed about the alleged assault by his mother. Even a child of X's age would have some basic understanding of his father's disdain for his mother and the father's readiness to accept any comment from the child which is derogatory of the mother. Such conduct is indicative of the ardent animosity towards the mother and, axiomatically, his lack of child-centric focus.
3. I have also found above that the father has made multiple unfounded allegations the mother was physically abusive to X. There was no evidence before me to persuade me the father has developed insight about his past conduct and has learned from his past errors of judgement. To the contrary, the evidence in its totality persuades me the father has no insight and appears to have learned absolutely nothing from Dr F or his various courses, which in turn persuades me he is likely to continue down the path of criticism, demeaning and hostile conduct towards the mother, including in the child's presence if he were to spend time with him.
4. According to Dr D, and I accept, such conduct will likely create tensions between the child and the mother, sabotaging the child's attachment to his primary carer and might also cause the child to feel torn alliances between his parents, favouring one over the other.[32] If not addressed, the current harm may lead to long term consequences such as low self-confidence, poor social and learning outcomes and potential mental health issues.
5. After considering, evaluating and weighing the relevant cumulative evidence I conclude and find the father poses an unacceptable risk to the child arising from his perpetrating family violence, including physical violence, his coercive and controlling conduct, his undermining of the mother, and the child's attachment to his primary carer and his emotional and psychologically abusive conduct towards the child. In reaching that conclusion I have had regard to the factors referred to above and the following list of non-exhaustive factors:
   • My findings as to the father's family violence perpetrated against the mother and the child.
   • The father's initial denials of perpetrating family violence towards the mother and the child, which he was forced to redact and withdraw once he became aware of the recordings of his conduct towards the mother and his violent and inexcusable behaviour towards the child, particularly as demonstrated by the recording of 14 November 2021;
   • The father's demonstrated lack of empathy towards the mother as demonstrated by his evidence during the trial and his conduct towards the mother, including having multiple supporters in court when the mother was about to be cross examined by his counsel;
   • The tenor of the final written submissions, no doubt prepared in accordance with his instructions, which attempt to blame and denigrate the mother;
   • The father's unwillingness to recognise his coercive conduct in accessing the mother's personal emails and information, which he subsequently used in court documents in this first application to the court;
   • His inability to recognise serious parental capacity failings and capacity to accept advice and instruction from experts, as demonstrated by his conduct at the childcare centre[33] and the notes of Dr D's conversation with Ms K at O Children's Service on 15 May 2023;
   • His obvious lack of insight and consequential failure to have learned anything from his sessions with Dr F, or the U Program completed in July 2022 and the online V Program completed in March 2023;
   • His disregard for and apparent scorn for the observations of Dr D in her two family reports and his abrasive and bombastic conduct at the interviews for the second family report;
   • My findings that the father has made multiple unfounded allegations that the mother was physically abusive to X and made reports to police, child protection and doctors, including the child being interviewed about the allegations;
   • Complete lack of evidence that the father would likely refrain from his past conduct including his fixation on undermining the mother to the child;
   • The harm identified by Dr D in her second family report that if the child continues to be exposed to emotionally harmful experiences, if not addressed, may lead to long term consequences such as low self-confidence, poor social and learning outcomes and potential mental health issues;
   • The father's lack of adequate steps to address this parenting deficiencies, as identified by Dr D, which would assist the child's security and wellbeing when in the father's care or to assist the father to cooperatively engage in child focused and flexible parenting with the mother;

1. X is now 6 years old and is not of an age or stage of development where he would be able to articulate with any sense of maturity, his views about his future parenting arrangements. Dr D did not seek to elucidate any views from him.

Developmental, psychological, emotional, and cultural needs of the child

1. Both parents described X affectionately to Dr D. They noted that he is a bright, inquisitive child, who is confident and sociable and enjoys spending time with his extended family. The father told Dr D at the time of the second family report in June 2023, that X had changed from an insular and withdrawn child to a more confident one. The daycare manager, Ms K, described the child as sweet, intelligent, caring, curious and he loves learning.
2. At paragraph 7 of the second family report, Dr D observed:

The writer observed [X] to be a friendly and talkative child. He appeared to be meeting the developmental milestones expected for his age. For example, [X] was bilingual, spoke clearly, and had a long concentration span. He was curious and enjoyed learning. [X] did not separate easily from his father but did separate with ease from his mother.

1. The mother's evidence refers to the child's significant behavioural problems and dysregulation, which she contends escalated with the child's time with the father increasing, and which have improved since the time between the father and child ceased in May 2024. The father attributes the child's escalation in problematic behaviour to his wish to spend more time with his father, not responding well to the mother's parenting and inability to settle due to inconsistencies between the two parental households.
2. According to the mother, after X began spending overnight time with his father in October 2022, and again after that time was increased in December 2022, she noticed changes in the child's behaviour at home which she describes as:

After [X] began spending overnight time with the father in October 2022, and again after the overnight time increased from around December 2022, I noticed changes in [X]'s behaviour, including:

(a) Sleeping poorly and having more nightmares at night;

(b) Reverted to needing to use a nappy again when having a nap;

(c) Having more frequent 'outbursts' or 'meltdowns';

(d) On occasion hitting me when he was upset with me, and telling me that this is what he does with his father;

(e) Throwing things around the house, or threatening to break items such as the TV;

(f) Grinding his teeth at night-time, and appearing to be biting hard on objects such as his water bottle;

(g) His mood was often notably more agitated, aggressive, and rude after returning to my care, requiring some time to calm down and return to his usual behaviours;

(h) [X] began telling me he does not sleep well at his fathers because he misses me at night;

(i) [X] began making comments to me whilst in my care such as 'you are a bad girl' or 'you are a bad woman';

(j) [X] would make comments whilst upset such as 'I'm going to kill you!' or 'my father is going to kill you!';

(k) On one occasion I recall giving [X] a bath and [X] spontaneously said words to the effect of 'mummy you are not a bad woman', and when I asked why he would tell me that, he told me that his father / his father's family have told him that I am a bad woman.[34]

1. The mother also gave evidence about the child's escalating behavioural dysregulation at kindergarten at the end of 2022 when the childcare staff advised the mother of X's violent and aggressive behaviour towards staff and other children. The mother's evidence was that the father did not like that childcare centre and wanted the child to attend another centre of his choosing.
2. The following incidents occurred at kindergarten:[35]
   • X hit another child on the face on 29 March 2023;
   • In April 2023, X hit another child and a teacher in the face, resulting in damage to the teacher's eye, necessitating a week off work;
   • X hit another child on the face resulting in significant and visible bruising to the child's face on 19 May 2023.
3. Additional and specific episodes of X's behaviour in early 2024 are detailed in the mother's affidavit at paragraph 117 and are as follows:
   • On 8 March 2024 X became violent with another child and according to the kindergarten records '[X] appeared heightened and agitated and spent the next 20 minutes yelling "go away' 'I hate you' 'I don't care about you' to any child or staff member who that came within approximately 3 to 4 metres of the table he was seated at;
   • On 13 March 2024, X reacted to having the lights dimmed and curtains drawn for quiet time and the staff reported

"[X] began by swearing at staff, using phrases such as 'You fukin' and 'You fukin woman'. Escalated to throwing objects indiscriminately around the room and then targeting other children and staff. This dysregulated behaviour lasted approximately 25 minutes, two staff members sustained injuries, and all children had to be relocated to the outdoor area.

• On 19 April 2024, X was violent and swearing at other children and the kindergarten teachers. The kindergarten teacher recorded that twice X used the phrase 'I am going to hurt you' before throwing hard objects at my face; and
• On 8 May 2024 X became agitated, but staff noted, that once his mother returned to kinder he began to progressively de - escalate his behaviour,

1. Because of the child's behaviour, the mother arranged for the child to attend play therapy at P Counselling Service, Exhibit ICL-11. The notes of X's sessions were obtained via subpoena and refer to his attendances between 25 April 2024 and 28 May 2024.
2. At the first session on 25 April 2024, the notes of Ms J refer to X appearing visibly distressed, unable to engage with the toys and expressing a fear of making a mistake. X also shared that if he makes wrong choices, he gets into trouble and is left alone in a dark room. The last occasion that occurred was at his dad's home. X stared crying and He appeared visibly distressed.
3. On 30 April 2024, during the second session X insisted on taking a toy into the session. When told he would not be permitted to do so, he became upset and screamed, started running around and shouting I will kill you, I hate you, I will kill you. The notes further state:

[X]'s reaction escalated quickly. He started running around, shouting, "I will kill you, I hate you, I will kill you". I asked the staff to block the exit door for safety concerns, fearing he might run out of the building.

His mother, [Ms Burnes], tried to intervene, but I asked her to remain calm. I addressed [X], saying, "I know you are very angry and upset, but we don't hurt people. We can't kill people. [X], you are safe here."

[X] ran into a playroom, barricading the door with a table and throwing items at the wells, screaming, "I kill you, I hate you."

...

[Ms Burnes] and I managed to open the door. [X] started throwing toys at us, hitting his mother in the head. He selected heavy and wooden toys for throwing.

I reminded him of the limits in the playroom, but he didn't listen. He attempted to run out of the building, injuring a staff member in the process by punching and kicking.

[X] then ran into another room. I asked [Ms Burnes] to return to the waiting area where staff provided her with an ice pack for her head injury. She was very stressed and crying.

...

I followed [X] and tried to calm him, stating, "[X], we cannot hurt people here, indeed nowhere. You are safe here, and we will make sure no one hurts you."

[X] responded, "no, I made bad choices" and refused anyone to come close, sitting on the floor at a distance and repeating, "I want to go, I don't want to be here, I hate you, I will kill you."

[X]'s behaviour during the session indicates a severe level of distress and trauma. His inability to calm down and his aggressive actions suggest a critical need for safety and therapeutic intervention.

The disclosure of potential abuse and punitive measures at his father's home is deeply concerning and highlights the urgency of addressing [X]'s trauma in a safe environment.

...

[X]'s second session was marked by significant emotional distress and aggressive behaviour. His reaction to not being able to bring the toy into the playroom and his subsequent violent outbursts highlight his deep-seated trauma and fear. The session was focused on managing a crisis and ensuring the safety of [X], his mother and staff. Given the serious concerns raised by his mother and [X]'s behaviour, reporting the incident to child protection authorities is necessary to ensure his safety and wellbeing.

1. X attended three further sessions of play therapy, concluding on 28 May 2024. The notes of the final session indicate significant improvement in the child's behaviour. I note the child's time with his father was suspended via an intervention order obtained in early 2024.
2. According to the mother, since time between the child and his father ceased, X has stopped crying at drop off, his behaviour has improved so that he has largely stopped hitting children, the outbursts are occurring with less severity and frequency, although she concedes he does at times, still throw things and say inappropriate words, particularly if another child snatches a toy from him.
3. According to the father, he has not observed any of the behaviours detailed by the mother in her home, the child sleeps well at his home and he has not heard X making offensive comments and denies any inference the comments were learned from him. He deposes the first he heard of X's behaviour at childcare was on 9 October 2023 during kinder drop off when one of the educators informed him.
4. As to the behaviours at kindergarten, the father responded in his reply affidavit that he did not receive any notification from childcare about the child's behaviour. He deposes the first he heard of X's behaviour at childcare was on 9 October 2023 during kinder drop off when one of the educators informed him.
5. The father refers in his affidavit to an incident at swimming on 10 October 2023 when X took off his goggles and hit the teacher. He deposes to having a conversation with the child that it was not acceptable to hit people and him observing the child's behaviour deteriorate in subsequent months, including the child swearing and attributing that he learned those words from the maternal grandmother. I note the language of the maternal grandmother is Country B Language and that she lives in Country B and not Australia.
6. The father also refers to the incident on 13 May 2024 at the kindergarten, which is referred to in greater detail in my consideration of the father's parenting capacity.
7. I explicitly reject the notion promulgated by the father the child's behaviour is indicative of him wanting to spend more time with his father for the following reasons.
8. I accept the mother's evidence of the problems the child has experienced in her home, and his highly dysregulated behaviour. The mother's evidence about the child's severely dysfunctional behaviour is corroborated by both the kindergarten and the play therapist. Of particular relevance is the reference in the notes of the play therapist to the father's punitive conduct and practice of placing the child in a dark room and his valid concerns about the trauma the child has experienced, being so acute as to warrant a notification to appropriate authorities.
9. The father's denial of his punitive conduct towards the child, mirrors his initial denials of family violence, which he was forced to retract when confronted with the mother's recordings of his conduct towards the mother and indeed the child. It may readily be inferred from the father's total lack of respect and empathy for the mother and her parenting, the father would happily and frequently make pejorative comments about the mother in the child's presence and seek to undermine her in the child's eyes and promote to the child that the father's household is to be preferred to that of the mother's, all of which would cause immeasurable trauma and confusion for the child. The tenor of his written submissions in which he continues to place significant blame on the mother and minimise responsibility for his own actions, does not lead to any confidence that he would refrain from his coercive and unacceptable conduct, nor prioritise the child's well being and safety over his own needs.
10. The child is bi-lingual and is engaged in his Country B heritage. His extended maternal family live in Country B. Orders were made by consent on 9 July 2024 providing for the mother and child to travel to Country B for six weeks between December 2024 to January 2025, which occurred, although there was a slight delay in returning to Australia.
11. The mother seeks orders the child should be permitted to travel to Country B to spend time with her extended family and to experience his Country B heritage. In his minute of final proposed parenting orders the father proposed that the child's name be placed on the watchlist and that both parents be restrained from removing the child from Australia. In his final submissions the father sought orders in similar terms. Self-evidently, an order restraining the parties from removing the child from Australia would deny the child the opportunity to connect with the maternal family in their country of origin. I further refer to this in my consideration of the competing travel proposals for the child.

The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs

1. The mother has demonstrated her capacity and commitment to the needs of the child, as articulated by all professionals engaged with the parties, including the Family Report writer and childcare staff and X's counsellor at P Counselling Service. Dr D described the mother as child focused with a deep insight into the child's developmental needs.[36]
2. The father has made allegations about the mother's treatment of the child including subjecting him to family violence, including hitting him and throwing a glass of water over the child. I have above rejected the father's allegations about the mother.
3. As submitted by counsel for the Independent Children's Lawyer, the lack of concerns raised by any of the foregoing professionals, child protection or anyone else since early 2024, when the child's time with the father ceased, supports a conclusion the child is safe and developing well in his mother's care. I agree and accept that submission and so find. I also accept the father does not now seek orders for the child to live with him and is content for X to remain in the primary care of his mother, which is demonstrative of confidence in and acceptance of the mother's parental capacity.
4. As to the mother's capacity to cooperatively engage with the father as a co-parent, Dr D said in cross examination, and I accept, the mother was prepared to work with the father, but given his behaviours, she found it very difficult and for her own self-protection had to withdraw from active communication as a means of self-care. That opinion is supported by the mother's initial willingness to progress X's time with the father during the litigation, to propose continued supervised time between the child and the father after the May 2024 childcare incident, which counsel for the father said was total fabrication. I prefer the submissions of counsel for the mother, to the effect the offer made was not accepted and was then withdrawn.
5. As to the father's parenting capacity, he described himself as a very attentive and capable parent. That self-description is at odds with the mother's perception of the father and her concerns about his conduct towards the child, including locking him in a dark room, using the child's cot as a time out strategy, threatening to send the child to bed without dinner and smacking him before he was two years old. I refer to my findings above in this regard. The mother has expressed concerns about the father's authoritarian parenting style and exposing the child to family violence. I have found the father has indeed exposed the child to family violence, as demonstrated by the recordings of Exhibit Vung-2, of the incident on 17 November 2021, when the child is heard crying in the background.
6. In the first family report, Dr D identified risk factors about the father's parenting capacity including his externalisation of responsibility for family violence and his inability to address any risk factors. She described his presentation as characterised by self-promotion whilst downplaying the mother's capabilities, which accords with my own observations. [37]
7. Dr D referred to the father's psychological vulnerabilities and that he would benefit from specialist counselling to address his vulnerabilities. These included his inflated sense of self, externalisation of responsibility for his behaviours and lack of empathy, all of which were identified barriers for accepting responsibility for change.
8. Dr D also identified the father's proposal at the date of the first family report, February 2022, that the child live with him, would be highly detrimental to [X]'s emotional well-being due to the harm caused by the disruption in his attachment to his primary caregiver. [38] The fact the father would even contemplate removal of the child from the care of his mother, is demonstrative of his lack of insight and consequential sub-optimal parenting capacity.
9. As a result of the identification of the psychological vulnerabilities identified in the first family report, orders were made by consent on 8 June 2023 for the father to attend on Dr F, psychologist.
10. The second family report with Dr D took place in June 2023. At the time of the assessment X was spending four nights a fortnight with the father, in accordance with court orders and he had not commenced counselling with Dr F, despite the issue having been raised in June 2022. He commenced counselling with Dr F on 10 July 2023. The father had, however, completed a U Program, on 11 July 2022 and also participated in V Program completing 8 sessions in March 2023 and attended an online parenting forum.
11. Dr D described the father's presentation at the interview for the second family report as assertive and forthright and he was focused on criticism of the previous family report. She concluded his behaviours indicated a domineering and controlling approach to engaging with others and the pattern of ongoing control and avoidance of responsibility for past abuse indicates inconsistencies with the father's persona as the capable and child focussed parent.
12. Rather than focusing on the child, Dr D identified the father was directive in his comments and focused on criticism of the mother. He told Dr D about the pie chart he had created which quantified his account of the mother's concerning behaviours. Areas included her failure to respond to his questions, gaslighting and untruths, late attendance to a changeover and changing [X]'s routine and crossing boundaries.[39]
13. The pie chart was further explored during cross examination of the father by counsel for the Independent Children's Lawyer. The father agreed the pie chart was prepared for the purpose of gathering evidence in the proceeding and all the information incorporated into the pie chart had been extracted from the parenting app.
14. The fact the father went to such outrageous and unorthodox lengths to document the mother's conduct, and failed to appreciate the appalling nature of so doing, demonstrates to me he lacks empathy, is self-righteous, has little child focus and would be utterly incapable of refraining from criticism of the mother and her parenting, and would thereby highly likely undermine the child's relationship with his primary carer. He would have been better off engaging in self-reflection and engaging in therapy in a committed manner, rather than focusing on gathering evidence, which he incorrectly assumed would discredit the mother.
15. The mother contends the deterioration in the child's behaviour was discernible after X spent increased unsupervised time with his father and the child's comments were suggestive of his exposure to demeaning comments by the father and the conflictual interactions during changeover. I accept the mother's contention and so find. The kindergarten reports are also suggestive of the child's florid behaviour when spending time with the father and in particular the incident in May 2024 at childcare.
16. Dr D's second family report identified concerns about the father's reflective capacity as a parent and noted his description of X's dysregulated behaviours as "aggressive", as more punitive.[40]
17. Dr D, during the course of her assessment contacted the manager of the childcare centre who was reported as being particularly concerned about the father's lack of responsiveness to support the child with his aggressive behaviours. Dr D said:

... Contrary to her advice, the father used behaviour management methods such as time out in the comer or in his bedroom. He had not engaged and was more focused on the details of incidents. He appeared preoccupied with his agenda, blaming the mother for the aggressive behaviours. He was demanding, wanted everything in writing and sought that his name be added as an emergency contact. He repeatedly contacted the centre, sometimes through the concierge service, demanding that his requests be met. The manager felt uncomfortable in some of her interactions with him, particularly when he threatened with legal action or reporting to child protection. When normalising [X]'s behaviours, the father twisted her words, stating that she had said it was acceptable for [X] to hurt another child. From the manager's experience, it is ve1y rare for a parent to ask for information in writing.

The manager was also concerned about the father's contribution to [X]'s behaviours. In the last week, the mother had visible scratches on her forehead caused by [X]. The mother told the manager that [X] had told his mother that if he hurt her, he would get TV. The manager believed [X] was very confused due to the different parenting styles. She had not observed these behaviours until [X] commenced unsupervised time with his father.

1. Exhibit ICL-2 is the notes of a phone call between Dr D and Ms K, the manager of the childcare centre. The notes demonstrate in greater detail the concerns of Dr D. The notes are as follows:

[X] - quite intelligent with communication of his needs

Willing to learn new things

Language is very advanced - able to express himself

Quite sweet

However, he's been having some behavioural incidents

Been putting some strategies - can be really upset - throws toys or hurts someone else

Needs help working through these emotions

Been going on since March/ April

Mo and dad were having communications about drop offs

Mo was advising the centre after dad started drop offs

Gets more frustrated when dad drops him off - he's angry and throws things

Some strategies they have put in place - most of the comments have been I don't like anybody or I want to see my mummy

Parental responses to responding the behaviours

[Ms Burnes] has bee very open for help - very easy to approach - she is willing to follow guidance - she gives feedback to the centre - she speaks to psychologist to assist

She feels sad with what has happened

She is very easy to approach and updates them regularly

Mum is willing to work with us to help [X]

When [X] joined them there was no contact with father

Then father came into the picture

With dad - he wants to discuss the details - but his focus is against mum

More focussed on what has happened - he asks for things in writing - [Ms K] feels uncomfortable

Feedback to the father - re hurting a child and [X] accidentally cutting a child's hair

He is pushy

He wants things in writing

He wants to add his name as an emergency contact - but centre cant because the account is in mum's name

The father doesn't hear and tries to insist on his name being added - [Ms K] has encouraged father to work with them

Father has threatened [Ms K] to tell them that he will hear from his lawyer and child protection

He has said he doesn't get enough feedback from the centre and tries to go up the ranks

He is looking for everything he can get

One conversation was very interesting where he didn't focus on the child - he described the child as aggressive in hearing about [X]'s behaviour - [Ms K] tried to normalise these behaviours

He twisted the words saying that she was saying it is acceptable for the child to hurt a child or cut their hair

[Ms K] encouraged him to work with the centre together

[Ms K] had asked if he had concerns about behaviours- he said that he puts him in a corner on a chair or his room for time out

[Ms K]'s advice was not to give the child time out - someone is with the child to feel secure and stay with the child

Father was not as responsive and said that the behaviours weren't acceptable - he still wanted documents - she needed time to get teacher to write things

Father kept asking for the documents - he kept calling another team - he wasn't impressed

At the end - the conversation was quite unpleasant - he said that she could talk to his lawyer

Father does not appear to be child focussed - he wants everything in writing - Don't know what is his purpose for everything in writing

With other parents - they focus on the strategies - having things in writing is not helping [X]

Father asks in the future I want everything in writing - he doesn't seem interested in strategies and any updates with what is and isn't working

Every time he just wants things in writing

[X] with the father - some of the times [Ms K] not in the room - the last few times father has staying in the room for about half an hour

[Ms K] under the impression that he should be dropping off and leaving - some days he is ok when dad leaves and other days he might throw toys

[X] with the mother - most of the time he is OK - when he gets upset mum reassures him and leaves him for the centre staff to manage him

[Ms Burnes] presented with cuts on her head - she said [X] had hurt her - [X] had told mum that if he hurt mother he would get TV

[Ms K] said she would work with the mother to try and help [X]

[X] hasn't mentioned time out -

[Ms K]'s observations - [Ms Burnes] is sad and will try and work with the staff and check with her about how he is going at home

Father is focussed on other things - he has his own agenda - asking for something in writing - very very rare for a parent to ask for information in writing

[Ms K]'s observations about co-parenting - when father started drop offs things started to get messy - [Ms Burnes] is more upset and father is chasing things up in writing and why he cant have documents - for the last four weeks it has been intense supporting mum and father constantly asking for things in writing

Father contacts concierge to escalate but doesn't focussed on guidance on how to help [X] - he asked that any marks on [X] to be captured and reported.

Any marks on [X] - not really - [X] said that he had jumped on the couch and got hurt

He is sweet on some days

[Ms K] encourages father

What is [X] like after he has hurt a child - it's a sudden change - a push or smack - not a frequent event - put in strategies and focus on the positive side

Try and see what is the trigger

When he is in a happy mood and he is capable to have a conversation

Sees very different parenting styles - the child is very confused - this poor child - wishes that the parents could work together

Didn't see these behaviours when he was just with mum - he is sweet and chatty

He joined the centre last year - his speech was amazing even though he was one of the youngest - the mother's language hasn't stopped him learning

Can tell that mum has put a lot of effort into him -

One day he had a big tantrum - mum came in earlier to let his energy out

[Ms K] trying to find the source of these behaviours such as hunger - mum responds with strategies to help him - mum never asks for everything in writing

Mum tries to have discussions with [X] and follows behavioural strategies from the centre

Dad doesn't ask for strategies - he doesn't seem interested -

Father's response to issues - he raises his concerns and thinks its due to him being with the mother

Father asked what is happening at home - all he wants is putting things in writing - he doesn't want to help [X]

Different agenda for himself.

1. The central question now is whether the father demonstrated development of insight through the U Program, parenting programs and psychological intervention, so that I am able to make positive findings about his parenting capacity.
2. Between 10 July 2023 and 6 May 2024, the father had seven appointments with Dr F. According to Dr F the sessions focused on supporting the father to identify, take responsibility for and resolve aspects of his behaviour that are harmful to the women and children in his life by learning ways to support and nurture healthy relationships generally.[41]
3. During cross examination, Dr F accepted there was no real evidence in his report that he had challenged the father's account in any way, he acknowledged it was absolutely possible the father was only telling him what the father thought he wanted to hear, after seven sessions of therapy he could only speak in a general sense that the father was more able to respectfully and appropriately co-regulate his emotions with the mother and X and understand more about their hurt and the difficulties for X adjusting to two different parenting styles. He also said it was quite likely the father may have simply expressed his desire to adapt and change his ways of managing difficult emotions and circumstances, without making any change at all.[42]
4. During her cross examination, Dr D said the engagement with Dr F was not the type of therapy she had envisaged, when she recommended it in her first family report. She said that given the entrenched nature of the father's behaviours, she had recommended clinicians with more forensic experience and that often when psychologists conduct those type of assessments, they recommend treatment for one to two years.[43]
5. In his final written submissions, counsel for the Independent Children's lawyer submitted that little weight should be accorded to Dr F's evidence about the father's engagement and psychological therapy with him, for the following reasons:
   • There were only seven such sessions;
   • There was no evidence Dr F had challenged the fathers account in anyway;
   • Dr F acknowledged it was absolutely possible the father was only telling him what he thought he wanted to hear; and
   • the father did not continue to engage with Dr F beyond what was required of him for the purposes of the proceedings.
6. I agree with and accept that submission taking into account the concessions made by Dr F in cross examination and the evidence of the father's conduct, after he concluded the sessions in May 2024, particularly the incident at childcare on 13 May 2024, referred to below.
7. Further, as referred to above, Dr F assessment of the father must be considered in the context of his unusual personal belief that everybody does what they think is right at the time and my assessment of his general inability to robustly challenge the father, rather than accepting his narrative at face value.
8. The most recent illustrative example of the father's parental capacity is to be found in a video recording made by the father on 13 May 2024, which was played in court. I observe the incident took place a few days after the final session between the father and Dr F.
9. As submitted by counsel for the Independent Children's Lawyer, and I accept, the video is a clear example of the father's parenting approach and the extent of its inconsistency with the mother's parenting approach and the advice of the childcare educators. The video produced from the father's phone shows him filming and questioning X at a time when the child was distressed and dysregulated. Despite attempts by the childcare educators to get the father to leave the centre so they could implement their practice and procedure to attempt to deescalate and soothe the child, the father repeatedly refused to leave the centre. He was oblivious to the effect of X's ongoing distress on X himself and other children at the centre. The video was distressing to observe, and I remain bewildered why the father thought it was good parenting practice, acceptable conduct and in the child's best interests to remain at the centre and continue to film the child, and why he thought it would advance his interests in the proceeding. I am also perplexed why it was presented during the court, presumably as evidence to demonstrate the father's good parenting capacity and skills, when ironically it demonstrates the exact opposite. The father's explanation during cross examination by counsel for the Independent Children's Lawyer was he did so "just in case I needed to show it, everyone keeps attacking me".[44] As submitted by counsel for the Independent Children's Lawyer and I agree, the video clearly demonstrates the father was prepared to use the child's distress to further his own interests in the proceeding against the mother.
10. Further, the video also highlights and demonstrates the father has learned absolutely nothing about development of insight or empathy for others from either Dr F or his U Program, and I observe the video was taken a week after the father's last session with Dr F.
11. Dr D was asked about the father's conduct on that occasion, by counsel for the Independent Children's Lawyer and to comment on the difference between the manner in which the mother handled the incident at the library when X did not want to leave his father, and the manner in which the father handled the incident at childcare when X did not want to remain there. Her evidence was that there are significant limitations in the father's parenting of the child. She said the mother was able to connect with X, acknowledge his feelings and settle him very quickly, whereas the father just sat there and videoed the child during a very protracted situation of the child being very distressed and the father not engaging with staff to help settle the child.[45]
12. Further, the father's failure to avail himself of supervised time with the child, after time was suspended in May 2024, demonstrates the father was unable to place the child's needs and best interest ahead of his own, and that he is incapable of working cooperatively with the mother to address X_'_s behavioural issues.
13. Further, the father's admission during cross examination, in August 2024, that he does not trust the mother, does not bode well for the family dynamic and the father's capacity to engage in a cooperative co-parenting relationship. Dr D identified that one of the prime considerations for an effective co-parenting relationship is being able to establish trust in the other parent, to be able to communicate collaboratively and with a child focused mindset. The father has not demonstrated any of those desirable qualities thus far.
14. In conclusion I find the father's inability to identify and amend his own behaviours which may hinder or harm the child in a developmental, psychological or emotional manner, and his inability to engage respectfully and cooperatively with the mother, are indicative of a severe lack of parental capacity.

The benefit to the child of having a meaningful relationship with both of the child's parents

1. In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 ("McCall & Clark") at [109], the Full Court said:

The Act does not contain a definition of "meaningful", nor does it provide any specific criteria to assess how parents either have, or should have, a "meaningful involvement" in a child's life. It does not give guidance to the interpretation of the phrase "meaningful relationship".

1. In Mazorski v Albright [2007] FamCA 520; (2007) 37 FamLR 518, Brown J at paragraph [26], described a meaningful relationship as one "which is important, significant and valuable to the child" and the word meaningful is "a qualitative adjective, not strictly a quantitative one".
2. As submitted by both counsel for the mother and counsel for the Independent Children's Lawyer, it is clear from the evidence of the mother, Dr D, the reports from the childcare centre and the child's therapist that X is safe and stable in the mother's care. She has been his primary caregiver since separation in November 2021 and his sole caregiver since the intervention order in mid-2024 suspended the child's time with the father. The father does not challenge the mother's primary care of the child, and I am able to thus infer, despite unsuccessful attempts during the litigation to present the mother as having physically assaulted both the child and the father, the mother is an appropriate primary carer for the child. That the mother is a suitable and attentive parent and more than capable carer for X, accords with my view of the evidence. Axiomatically, it is beneficial for the child to have a meaningful relationship with his mother.
3. During cross examination, counsel for the Independent Children's Lawyer asked Dr D to comment on the father's belief, as stated during his cross examination, the child had experienced two different parenting styles between his parents and he becomes dysregulated leaving his father potentially due to an ambivalent attachment. Although the father did not say the ambivalent attachment was to the mother, counsel for the Independent Children's Lawyer presumed the father meant the mother.
4. Dr D's evidence was that she did not observe the child having an ambivalent attachment to either parent. She observed a very secure attachment between mother and child and a close relationship with the father.[46] When asked to comment on the father's belief the mother had a hostile and permissive parenting style, Dr D said it was not an observation she noted with the mother.
5. In this case the mother submitted, and I accept, that she supported the relationship between the child and his father until the stark reality of the father's unwavering attitude towards her became apparent from his conduct during the trial. Implicit in that position is the mother previously thought it was beneficial for the child to have a meaningful relationship with the father.
6. I accept the child, and the father had a good relationship, as evidence by the observations of the supervisor in her reports. According to the father's counsel in his opening address, supervised time occurred between 15 May 2022 and 7 June 2022 and again between 14 June 2022 and 12 July 2022. The reports refer to the father interacting playfully and, in a child, focused manner and communicating effortlessly and positively with the child. The supervisor also noted the strong bond between father and child at that time, despite there having been no time between them for a six-month period. The father's parenting in supervised arrangements was commendable, but there was no evidence to support that standard of parenting was equally applicable in an unsupervised context.
7. Dr D in her second family report noted:

[X] spoke positively about spending time with his father and fondly described activities such as cooking, making pancakes and porridge. He liked sleeping at his father's house and said he would soon sleep alone. In exploring different routines, [X] said when he did something wrong, his father, "puts me in jail because I hit someone. It's dark and I cry". He added that his father tells him he is clever. [X] has discussed crying at the library during his assessment with the father, "I felt sad. I wanted to be with Daddy".[47]

1. Dr D also made positive observations about the interaction between the father and X, but noted the father made a comment within earshot of [X] that he had given [X] three albums and they had gone missing.[48] She also recorded:

The father mentioned, again in [X]'s presence, that he was disappointed that the mother had refused his request to collect [X] half an hour earlier to enable him to take him to [sport].[49]

1. In her second family report, Dr D identified the core issue in the parenting dispute is to implement arrangements which promote the safety of X and his caregivers. She identified significant risk factors in the father's behaviour that were barriers to him engaging in a safe and child focused parenting arrangement, which included his inflated sense of self, externalisation of responsibility for his behaviours and lack of empathy.[50]
2. As stated above, there was no evidence to support a finding the father has subsequently developed any insight into these risk factors or his own conduct, such as to enable confidence he would have capacity to provide a safe environment for the child if he were to have unsupervised time with him.
3. To the contrary, during the observation session for the second family report, the father demonstrated his inability to contain his conduct and to refrain from making derogatory remarks about the mother, in the child's presence. It would generally be expected that parties to litigation would attempt to present themselves in a favourable manner to a family report writer, but even in that controlled environment the father twice took the opportunity to criticise the mother in the child's presence. That was despite the clear and candid comments about him in the first family report, which he attempted, unsuccessfully, to categorise as bias on the part of the author of the report.
4. During the litigation process the father has also continued to engage in coercive and controlling behaviour and threats against the mother and exposing the child to demeaning comments about his mother. He has also engaged in controlling, threatening and intimidating behaviours towards those he perceived as aligned with the mother, specifically the childcare staff. Examples of his conduct are referred to in Exhibit ICL-2 and his behaviour in May 2024 when he refused to repeatedly comply with directions from childcare staff to leave the premises, when X was exhibiting significantly dysregulated behaviour, and moreover, inexplicably filming part of the event as recorded in Exhibit ICL-1.
5. The description of the events of 13 May 2024 are referred to in detail in Exhibit Vung-13. The letter was read into the transcript by counsel for the mother during her cross examination of Dr D and is as follows:

We instructed that [X] has had a significant episode today whilst in the 30 father's care as follows. The father dropped off [X] to kindergarten, as required, after spending time with him over the weekend. [X] was unsettled when dropped off, and the father did not leave the kindergarten, as required. He stayed for another approximately 2.5 hours at the kindergarten, despite the staff recommending and asking the father to leave, so that [X] might be calmed down by the staff. [X] engaged in significant violent behaviour with the kindergarten staff describing him as destroying the kindergarten. Whilst [X] was doing this in the father's presence, the father remained at the venue, but watched this occur without attempting to intervene, and the kindergarten staff have described to the mother that he appeared delighted to see how [X] was behaving. The kindergarten staff were very concerned by [X] and the father's behaviour, and they called the mother to inform her. The mother intended to calm [X] down. He calmed down shortly after the mother's arrival, and the father left after the mother arrived and asked the father to leave.

1. The father's aggressive, confrontational and threatening attitude extended towards Dr D when attending the interview for the second family report and was comprehensively dealt with in the second report, including his desire to make written notes during the session. Dr D opined, and I accept, his behaviours and comments to her indicated a domineering approach to engaging with others.[51]
2. Since the inception of the litigation the father has had ample opportunity to modify his attitude towards the mother and her parenting, which he has not and to work on a cooperative parenting relationship, rather than focus his energies on the perceived parental deficiencies of the mother. As referred to above, I do not accept there has been any discernible change or improvement in his conduct, even after attending the sessions with Dr F, completing the U Program and the V Program, all of which were meant to assist him to develop insight, modify his conduct and attempt to parent respectfully and cooperatively with the mother.
3. According to the mother's submissions, and I accept, the safety of the mother and the child must be prioritised over the child's relationship with the father, whilst he is a vulnerable child and that orders for the child to spend unsupervised time with the father would not protect either the child or his mother from physical or psychological harm.
4. In her second family report, Dr D identified the core issue in the parenting dispute is to implement arrangements which promote the safety of X and his caregivers. She identified significant risk factors in the father's behaviour that were barriers to him engaging in a safe and child focused parenting arrangement, which included his inflated sense of, externalisation of responsibility for his behaviours and lack of empathy.
5. During cross examination, when asked about whether she had a discussion with the father about what he might have gleaned from the parenting order program and an online parenting forum, Dr D said:

I can't remember if I had asked him, but just from his behaviours, it would suggest that he hadn't been able to - the behaviours were suggestive that he hadn't gained a lot from those courses, given his ongoing demeaning attitude towards the mum and his combative manner and some of those other dynamics, and not being able to focus on [X]'s needs as much because of this focus - prioritising the focus on the mother over the child.[52]

1. Further, Dr D said during the observation session for the second report, the father demonstrated a level of understanding of X's needs, but he was also unable to regulate his behaviours and views about the mother in the child's presence and was unable to understand that doing so would have an impact on the child. She also said she did not observe X being distressed about the father's comments, but with such a young child, distress may be internalised and then shown in other ways.
2. As stated above, there was no evidence to support a finding the father has subsequently developed any insight into these risk factors or his own conduct, such as to enable confidence he would have capacity to provide a safe environment for the child if he were to have unsupervised time with him.
3. Dr D's evidence in cross examination was that if the father were to have unsupervised time with X, there is a likelihood of long-term harm to X arising from two matters. First, the father's inability to address limitations in his parenting capacity and to demonstrate he is able to address them. Secondly, from the father's attitude to the mother because that has a flow on effect to the child, because X would know his father has negative feelings about his mum.[53] I accept Dr D's evidence because she impressed me as insightful and acutely aware of the family dynamic and because counsel for the father could not displace that evidence under further cross examination.
4. I therefore conclude there is no benefit to the child in having a meaningful unsupervised relationship with his father, as the risks to the child and the mother, in terms of her potential mental health and parenting capacity posed by the father, outweigh the benefit of unsupervised time. Whether or not supervised time is appropriate, is discussed below.

Anything else that is relevant to the particular circumstances of the child

1. There were no submissions or evidence about any other matter relevant to the particular circumstances of the child.

The history of family violence, abuse or neglect, and any family violence order that applies or has applied

1. This consideration has been discussed above under the heading "Allegations of Family Violence", except for reference to family violence orders. I set out below the relevant family violence orders.
2. In late 2021, shortly after separation, the police applied for an interim intervention order on behalf of the mother. An interim order was made in late 2021 to protect the mother and X.
3. In early 2022, the mother was granted a two-year Intervention Order against the father, naming both her and the child as protected persons. The mother noted breaches of the order, including allegations the father had accessed material on her phone, however, she did not report these breaches to the police to avoid escalating the conflict.
4. In early 2023, the father applied for an Intervention Order against the mother, naming him and the child as protected persons. This was sought on the basis the mother had taken items from his car and placed her hand on his shoulder during a changeover. He also raised historical concerns alleging the mother had hit the child. The mother considers this application to be baseless and retributive. By Notation A to the orders made by consent on 9 July 2024 (Exhibit B), the father agreed to withdraw his intervention order application against the mother.
5. In late 2023, the mother filed an application to extend the intervention order.
6. According to the mother, in early 2024, an interim intervention order against the father protecting the mother and child was again made before the expiry of the previously made final order. According to the father, the mother applied for an intervention order in early 2024, some 21 days after the previous final order had lapsed. The differences in date are of no consequence.
7. In mid-2024 a further interim intervention order was made which also suspended the family court orders, pursuant to s 68R of the Act, which extended to 20 May 2024.
8. In mid-2024 the Magistrates Court at Melbourne made interim Intervention Orders including a s 68R order suspending all time between the father and son, pending further order the expiration of the intervention order.
9. In early 2025 the mother's application for the extension of the intervention order was dismissed and her application for adjournment was refused whilst she was unable to return from Country B with X in December 2024. There was no hearing on the merits.

WHAT ORDERS ARE IN THE BEST INTERESTS OF THE CHILDREN AND CAN THE IDENTIFIED RISKS FARM BE AMELIORATED

1. Having found the father poses an unacceptable risk of harm to the child, I now turn to the issue of amelioration of the harm and what orders for his living arrangements are in the child's best interests.
2. As to the orders in the child's best interests, I first turn to responsibility for long term decision making.
3. Section 61C (1) of the Act provides each parent has parental responsibility, regardless of whether they lived together or are separated (s 61(C)(2)), subject to any contrary order of the court (s 61C(3) and s 61D).
4. Orders made allocating parental responsibility for a child in relation to "major long-term issues" to more than one person, may provide for joint or sole decision-making in relation to all or specified major long-term issues (s 61D (3)). The Act defines major long-term issues as the child's education, religion, culture, health, name, and change living arrangements (s 4(1)). Section 61DAA defines the requirements of joint decision-making, which are to consult each other in relation to each such decisions and to make a genuine effort to come to a joint decision. A person who has parental responsibility for a child is not required to be consulted by another person, in respect of minor decisions for the child which are outside "major long-term issues" (s 61DAB).
5. The father sought orders for the parents to have joint decision-making responsibility for long term issues and the mother and Independent Children's Lawyer sought orders for sole decision-making responsibility for the child to be vested in the mother.
6. None of the evidence suggested it would be in the child's best interests for there to be an order for joint long-term decision-making responsibility. It was generally accepted by both parties and the family consultant, and I accept, the parents have a poor co-parenting relationship which consists of conflict, mistrust and a lack of effective communication. The father's written submissions were quite properly and accurately, replete with references to each parent's gross mistrust of the other, little cooperation between them, a restrained capacity to communicate effectively as to the child's best interests and acknowledged difficulties in co-parenting, including disagreements over the child's routine, discipline methods and communication with childcare providers. Given those accurate submissions, the father's pursuit of joint decision-making responsibility for major long-term issues, is demonstrative of significant lack of insight on his part.
7. In the context of the ongoing acrimonious parental relationship and the findings I have made, it is untenable to expect any cooperative decision making to be undertaken or even reached in the future. I therefore intend to make an order the mother shall have sole decision-making responsibility for long term issues for the child because the child will live with the mother. Because I have found the mother to have been a victim of family violence perpetrated by the father, including physical violence, and I accept she is demonstrably fearful of the father and genuine in her concern for the child, I do not intend to impose any obligation on the mother to consult with the father or indeed notify him of any such decisions.
8. Having found the father poses an unacceptable risk of harm to the children, I now turn to the issue of amelioration of the harm and what orders for their living arrangements are in the child's best interests.
9. The father does not now seek orders for X to live in his primary care, as he did in his Initiating Application filed in 2021. He now seeks orders, as his primary position, X spend five nights a fortnight in his care, and as a fall-back position, the child spend supervised time with him on a weekly basis indefinitely. The fallback position of supervised time recognises the reality of the father's predicament and the gaping deficiencies in his evidence. It is however, still extremely concerning after hearing all of the evidence and robust cross examination of all parties and witnesses, the father still formally seeks unsupervised time to the extent he proposes. Either the father is totally oblivious to the realities of the situation he confronts or else he lacks any insight at all about the best interests of the child.
10. Because of my findings the father poses an unacceptable risk to the child, if he were to spend unsupervised time with him, I do not propose to make orders for unsupervised time as sought by the father in his primary proposal.
11. The question remaining is therefore whether supervision of the father's time with the child will sufficiently mitigate the level of risk to the child and if so, is long term supervision in the children's best interests.
12. Supervised time has occurred between the father and the child for two-hour visits between 2022 and May 2024. According to the report of the supervisor, Ms H, and I accept there have not been any allegations about the child being in harm's way during supervision, the visits progressed well, and X was well settled. However, whether orders should be made for long term future supervision, as opposed to no time, requires consideration. I also observe a parent's ability to behave appropriately during a supervised visit during litigation with the other parent and whilst under the intense scrutiny of the court, is an entirely different matter to the ability to beave appropriately in an unsupervised context.
13. The imposition of a long-term or indefinite supervision arrangement is generally not appropriate as a long-term measure, although such orders have never been prohibited when the only unpalatable alternative is the complete elimination of a parent from a child's life (Lainhart and Ellinson [2023] FedCFamC1A 200; (2023) FLC 94-166 per Austin J at [35]). The risks are that supervision is an artificial environment and there is an obvious possibility of the children at some future time questioning the requirement for supervision, the potential for them to question their own safety, to challenge or resent their mother about the necessity for supervision, thus detrimentally affecting their relationship with their mother, their primary carer, the costs of supervision and whether such a situation is capable of supporting a meaningful relationship between children and a parent.
14. On the other hand, some authorities (Gorman & Huffman and Anor [2016] FamCAFC 174 and Keighly & Keighly [2023] FedCFamC1A 146) support the proposition an order for indefinite supervision, although generally undesirable, may be appropriate in some circumstances, where a court is confident the time will be in the best interests of the children. Every case must be decided on its own facts (Bielen & Kozma [2022] FedCFamC1A 221; (2022) FLC 94-123 at [67]).
15. Because the second family report was prepared in June 2023, counsel for the Independent Children's Lawyer, with the consent of other counsel, updated Dr D about relevant events which had transpired and the proposals of all three parties.
16. During cross examination by counsel for the Independent Children's Lawyer, Dr D was asked about the dilemma of the child having either no contact with the father, or some contact to have some form of identity with his father. She said, balancing that with the - this notion of idealising this parent, I think that - I think, still for his identity, it's best that there is some form of contact.[54]
17. Dr D agreed with the father's counsel the child possibly having a sense of abandonment if he had no time with his father, would be a concern and that her recommendation for supervision long term would assist to ameliorate abandonment issues.
18. During cross examination by counsel for the mother, Dr D was steadfast that limited long term supervised relationship between the father and X was more beneficial to the child than no time at all. She said limited time would provide X with a sense of connection to his father and it is important for his development for some supervised time, which would be better than no contact between them.
19. In terms of frequency of time, Dr D's evidence was that it may be preferable for time to occur a bit more regularly than four times a year because of his young age, but she could not point to the research to justify the frequency with identity time.[55] She did however, agree with counsel for the Independent Children's Lawyer the impact on the mother would have to be taken into account.
20. I do observe, however that the father's current proposal of weekly supervised time indefinitely did not surface during the trial and the concept was not put to the mother or to Dr D, and of course the Independent Children's Lawyer was unable to properly consider the proposal. Neither counsel for the mother nor counsel for the Independent Children's Lawyer was afforded the opportunity to cross examine the father about the belated proposal. The proposal seemed to be an afterthought with no consideration of the impact on the mother of her having to face arranging for the child to spend time with the father each week, the impact on the child's routine, particularly during school terms and the consequential inability of the mother and child to ever travel or enjoy holidays together. The proposal was not well thought out.
21. Whether the child spends limited supervised time with the father or no time requires balancing of relevant considerations. After considering both the advantages and disadvantages of long-term supervision, I determine the benefit to the child from limited supervised time with the father outweighs the risks with long term supervision as articulated above.
22. I am acutely aware of the consequences in this particular case of the severe limitation of the child's future relationship with his father and the possible impact on the child. However, the father must accept responsibility for the inevitable decision to do so. As referred to above, at no stage did the father express particular regret or remorse for his unacceptable coercive and controlling conduct and perpetration of family violence but rather sought to justify it on the basis of the mother being the aggressor, which I specifically reject. Neither did he demonstrate one iota of insight or appear to have reflected upon his perpetration of family violence, including physical violence and emotional coercion and control or the effect of his conduct on the child and his mother. I am also highly cognisant of the impact on the mother of having to facilitate time between the child and the father.
23. I therefore intend to make orders the child spend professionally supervised time with the father on four occasions each year, at times to be nominated by the mother, to take place at a contact centre and in default, at a venue nominated by the mother, with the costs to be met by the father. That order balances the child's relationship with the father and the mother's distress and experiences of the fathers violent, coercive and controlling behaviour.
24. I am cognisant that Dr D's evidence was the time between the father and X could exceed 4 visits per annum, particularly because the child is young, and I have taken that recommendation into account when reaching my decision. Ultimately however, the determination of time is a matter for the court, and a court is not bound to accept a family report as it is but one piece of evidence to be considered by a judge (see: Kennedy v Kennedy [2010] FamCAFC 195 at [77]).
25. There were no submissions by any of the parties, if long term supervision were ordered and the father's primary position is rejected, as it has been, about whether supervision should be indefinite or for a specific timeframe. The father's secondary position contemplates weekly supervised time indefinitely. There was no evidentiary premise upon which I could logically make the supervision for a period finite (see :Chong & Kerimowa [2025] FedCFam C1A 158 at [91]).
26. I will further order the time is to take place with one such visit in each three-month period of a year. Because of the father's coercive and controlling behaviour, the mother should not be subject to him directing the arrangements for time. I will also order that the parties communicate the proposed supervised time through a family law app, with the father to pay the costs of each party downloading the app. I make that order so that there will be a transparent communication trail, with the father, hopefully communicating in a respectful manner.
27. I will also provide for the father to meet the costs of supervision and the communication app because he enjoys a far superior financial position to the mother, as obvious from the concurrent financial proceedings which were settled early on in this proceeding, with final orders made by consent on 9 July 2024, and the mother is primarily responsible for the costs of supporting the child, although the father does pay child support. I accept the mother's unchallenged evidence the father has repeatedly sought to reduce his child support payments and her financial situation after payment of legal fees is modest.
28. I will also make orders in accordance with the mother's proposed order 5, which enables the father to provide letters, gifts and cards to the child upon certain conditions, order 6 which enables the mother to initiate further time upon conditions specified by her and order 7, which enables the mother to respond to any items provided by the father, in the event the child expresses a wish to do so.
29. In his written submissions, at 1.3, the father objected to these orders as proposed by the mother, although there were no specific submissions about the father's objection. In the context of the orders I propose to make, I do not understand why the father would have any objection to orders which, at the mother's discretion, might extend his time with the child and enables him to forward cards, gifts and letters. I perceive those orders as advantageous to him.
30. In his written submissions, but not in his proposed orders, inclusive in his ancillary position, the father seeks an order the child be at liberty to contact him, in accordance with his wishes. I do not intend to make any such order, which is once again indicative of the father's lack of insight. It is highly inappropriate to empower a six year old child, particularly one who has had such disturbing, serious and dysregulated behavioural issues, with the idea of contacting the father whenever he so desires. The child would have absolutely no concept of what would be in his best interests. Furthermore, the mother should not be placed in a position whereby the stability of her household could be disturbed and her parental authority challenged by the child, in the event the child became aware of such an order. Because of the father's past conduct and inability to refrain from denigrating the mother, I have no doubt he would somehow make it known to the child, during supervised time, of the existence of such an order. The father may also consider he would be entitled to launch enforcement proceedings against the mother, if he perceived the order had not been complied with. The order would create an untenable position for the mother.

1. In addition to proposed orders pertaining to the child's future living arrangements and the time he is to spend with the other parent, some of the orders proposed by the parents pertain to overseas travel, removal or retention of the child's name on the watchlist, the mother obtaining future passports for the child, restraints and injunctions, notification to the father of the mother's address and contact details and a harmful proceedings order or in the alternative a vexatious litigant order
2. In his written submissions at paragraph 1.3 the father pressed for orders to be made in terms of paragraphs 2, 5, 21, 22, 23 and 28 of his Further Amended Initiating Application filed 17 June 2024. I therefore infer he does not seek orders as contended in the balance of that document and I do not propose to address why no such orders have been made, except the orders for unsupervised special occasion time will obviously not be made because of my determination that time between the father and the child will only take place professionally supervised on 4 occasions each year. I observe the father opposes orders 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16 and 17 of the mother's proposed minute. Orders 5, 6 and 7 pertain to the child's time with the father and are addressed above. Orders 8, 9 and 10 pertain to travel and renewal of the child's passport, order 12 pertains to a personal protection order, order 13 pertains to the provision of orders to third parties and orders 14,15 and 16 pertain to a harmful proceedings and vexatious litigant order, all of which are dealt with below. Order 17 pertains to costs, which I do not propose to deal with. Rather, I will make an order that any costs applications be filed and served within 28 days of delivery of these reasons.
3. I will address each other proposed order in turn.

Overseas travel by the child and the child's passport

1. The mother seeks orders for the passport and travel orders made on 9 July 2024 and orders 28 - 32 inclusive to be discharged. In lieu thereof, she seeks an order removing the child from the watchlist, an order enabling her to apply for a passport for the child without the father's consent, permission for the child to travel interstate and internationally without the father's consent and to be able to provide a copy of the orders to the Department of Foreign Affairs and Trade (DFAT) or any other relevant organisation to enable international travel for the child.
2. In his final proposed minute, the father seeks orders the parties provide each other with one week's notice and details of accommodation, in the event they seek to travel outside the state with the child. Obviously, the child will not be travelling interstate with the father, and I do not consider it appropriate for the mother, who is a victim of family violence and coercive and controlling conduct at the hands of the father, the residential parent and the parent with sole decision making responsibility, should be required to report her interstate travel with the child to the perpetrator of domestic violence, who has limited time with the child. To do so, would be further subjecting the mother to ongoing coercive and controlling requirements.
3. The father seeks orders to be at liberty to apply in relation to his application for an airport watchlist order, in accordance with Notation B to Exhibit B of the 9 July 2024 orders. I understand from his written submissions the father considers the child should be placed on the watchlist because of his concerns the mother may seek to relocate to Country B with the child.
4. The father's concerns arise from the delayed return of the child when the mother and child travelled to Country B, in accordance with the orders of 9 July 2024. The relevant order permitted the mother to travel to Country B between December 2024 and January 2025. Because the mother was stopped by Country B authorities when she was attempting to board a return flight to Australia mid-January 2025, the child's return to Australia was delayed until February 2025.
5. Under this rubric, in his final submissions the father contends the mother plans to relocate to Country B with the child, and that her obtaining Country B citizenship and a Country B passport for the child is indicative of these plans.
6. The father is critical of the mother obtaining Country B citizenship for the child because there were no court orders specifically enabling her to do so and he asserts that once she obtained citizenship there was no need for her to return. That submission is curious, because there were no orders preventing her from applying for Country B citizenship for the child, in circumstances where the child was entitled to it as a birthright and the mother did return to Australia with the child on 8 February 2025. The mother's return with the child to Australia is consistent with her evidence she wants to stay in Australia and the child has a right to grow up in Australia.
7. In cross examination, the mother agreed she had registered the child as a Country B citizen in late December 2024, and she had made an appointment at the relevant organisation to do so and had not told the father. The failure to inform the father was in the context of minimal communication between the parties since the making of the intervention order in early 2024 and the suspension of the father's time with the child. In those circumstances, I do not consider the mother's conduct to be subversive or indicative of a plot to remain in Country B. The child was always entitled to Country B citizenship by descent through his mother and the actions of the mother were consistent with that entitlement and a recognition of that right to citizenship.
8. For reasons I am unable to understand, the mother was also criticised for obtaining a Country B passport for the child, when it was required to enable the child to exit Country B. Her evidence was she had previously forwarded a text to the father in 2024, in the context of his failure to sign documents to enable the child to obtain an Australian passport, that she might need to get [Country B] recognition for the child. When put to the mother that was an absolute lie, the mother produced two text messages:

MR MORT: These two messages, your Honour, are on 4 October 2024:

Hi [Mr Vung]. You have still not complied with the Family Court orders from July 9, '24. You are required to provide either an original of your valid passport or the original of your birth certificate. The post office in [Suburb W] will make a certified copy and will include it in [X]'s passport application.

A minute later - that's at 11.25 pm - a minute later at 11.26 pm, record as follows:

Please be aware that the application will expire next Tuesday. Failure to comply with this requirement will result in us raising a contravention at the Family Court hearing. If [X] does not have the necessary documentation, he will have to travel with a [Country B] passport and will not be allowed to re-enter Australia as per the Immigration Department.[56]

1. Counsel for the father put to the mother the text messages did not refer to having discussed the child being registered as a Country B citizen. The mother's response was that she was asking the father to comply with the court order and that if he didn't, she would apply for a Country B passport and that is implied that you can't apply for a passport from a country unless you are a citizen.
2. According to the mother, and I accept she did not know that securing the child's Country B citizenship would provoke the events at the airport when she was attempting to return to Australia. I accept that evidence, because first, it does not make sense the mother would attempt to board a plane and be refused, if she knew in advance that was likely to happen and secondly, because of the complicated steps she took to enable the child's return to Australia.
3. Specifically, Exhibit F-1 is a screen shot of a text message from the mother to the father, advising that she urgently needed his collaboration to get the child out of Country B and that he would need to sign a form, authenticate and apostille it and as soon as she had the form the authorities will allow the child to leave Country B.
4. Exhibit F-2 is a letter from the father's solicitors to the mother's solicitors dated 13 January 2025, which was sent subsequent to the mother's text message, which is critical of the mother's conduct.
5. Exhibit F-3 is a letter dated 15 January 2025 from the mother's lawyers to the father's lawyers enclosing the requisite forms and what to do with them. The letter also explained the mother had booked a return ticket for herself and the child and were scheduled to return in the morning in mid-January 2025 and that she and the child were denied boarding her flight at the airport.
6. Exhibit F-6 is a letter from the father's solicitors to the mother's solicitors dated 24 January 2025, expressing outrage at the mother's conduct and referring to the timing of the payments to the mother.
7. When the trial resumed after the mother and child's return to Australia, counsel for the father was afforded the opportunity to cross examine the mother about the delay in returning the child to Australia.
8. She was cross examined about her ties to Australia, and counsel put to her the main reason for her remaining in the country was so that X could have a relationship with the father. The mother's evidence was that was the case at the start, but that she would shortly become an Australian citizen, she now had friends here who were like family to her and that she intended to make a life for herself here. I accept that evidence, which is supported by the very fact that the mother did return to Australia.
9. Counsel for the father was critical of the mother failing to provide an itinerary to the father prior to departure for Country B. I do not accept that as valid criticism when there was no requirement for her to do so in the July 2024 orders which permitted the child to travel and when the father was in breach of his obligations under paragraph 28 of the orders, which required him to do all acts and things necessary to obtain a passport for the child. It transpired during cross examination the father, as late as November 2024, some four months later, had not complied with that obligation.
10. During cross examination the mother also said she had in fact provided a copy of her return tickets to the father's barrister at the intervention order proceedings, so that the barrister knew she was returning with the child. The mother was also criticised for allegedly failing to facilitate electronic time between the father and the child, whilst in Country B. The mother's response, which I accept as reasonable and appropriate, was the intervention order in late 2024 precluded time between the child and the father and once that expired in December 2024, she had facilitated 4 occasions out of 5 possible calls to the father. The only exception was when they had been in transit.
11. The mother was also criticised for allegedly taking a photocopy of the father's passport before she left the home in November 2021, and which, by implication, would enable her to surreptitiously put in place the relocation plan. The mother's response was cogent and believable, that is, she had a copy of the passport in a digital file from 2019 when they visited the USA as a couple.
12. I also accept that the financial orders made in July 2024 did not provide for the second tranche of the father's payment to the mother was conditional upon her return from Country B. In her reply submissions, Counsel for the mother provided an explanation for the split of the payment in the property orders, which was to enable the mother to fund the trip to Country B.
13. I also accept the submission it was the mother who consented to the deferral of the second tranche until after her return to Australia to provide the father with reassurance she would return the child, when there was no compulsion for her to do so. If the mother had really intended to covertly relocate to Country B, the events of January 2025 would have been the perfect opportunity for her to do so, and she clearly did not, notwithstanding that she is not a citizen of Australia, but a permanent resident.
14. I do not propose to place the child on the airport watchlist because I do not consider the mother to be a flight risk, particularly because I accept the veracity of the mother's evidence about wanting to make a life for herself in Australia and her impending application for Australian citizenship, which is entirely consistent with the fact that she voluntarily returned the child to Australia in February 2025 in trying circumstances for her. Had she wished to remain in Country B, that would have afforded her the perfect opportunity.
15. The father proposed, in his written submissions, that if the mother wished the child in the future to travel internationally, she could make a discrete application to the court. I have no doubt any such application would be strenuously resisted by the father, because of the tenor of his submissions and the parties would then be embroiled in distressing and expensive litigation and further conflict. I also have regard to the aggressive and at times punitive manner in which the proceedings have been conducted by the father, that the mother is vested with sole long term decision making responsibility and she is effectively the child's sole carer with input from the father limited to four supervised occasions per annum of two hours duration.
16. I also observe that Counsel for the Independent Children's Lawyer, in his written submissions supported this aspect of the mother's proposed orders.
17. I also propose to make orders providing for the mother to obtain an Australian passport for the child without the father's consent, because I have assessed her as not posing a flight risk and the child will live with her and she will have sole long-term decision-making authority. Entirely consistent with those orders is to vest her with the sole responsibility to apply or not apply for an Australian passport and to make decisions about the child's international travel. She should not be placed in a position of being subject to potentially coercive and controlling behaviours by the father, as again I consider it unlikely the father would respectfully and promptly engage with the mother about this issue. I have formed that view because of the father's past conduct towards the mother, including his conduct throughout the litigation.
18. I therefore intend to discharge the prior orders as sought by the mother and do not intend to place the child on the watchlist.
19. In this proposed minute of orders, the father also sought an order to refrain the mother from obtaining a Country B passport for the child. Apart from sharp criticism of the mother and the accusation she covertly obtained a Country B passport for the child by sending Country B Language forms to the father to sign, realistically after the mother was stopped from leaving Country B, unless X travelled on a Country B passport, the child could not leave the country and return to Australia. The father has not addressed why the mother should be injuncted from obtaining a Country B passport for the child, when she already has one or why a Country B passport would enable the mother to more freely travel internationally, when I propose to make orders the mother can obtain an Australian passport without the consent of the father.
20. I therefore do not propose to make the order sought.

1. Both parents seek orders for them to be restrained from engaging in various undesirable conduct. Although the specifics of the restraints vary slightly, both achieve a similar purpose. Counsel for the Independent Children's Lawyer concurred it would be appropriate to make the restraints. I will make the restraints in accordance with the mother's proposed orders because she is the sole carer of the child.

PROVISION OF ORDERS TO THE CHILD'S SCHOOL AND CAREGIVER

1. Both parties agree a copy of these orders should be provided to the school and the father further seeks a copy should be provided to the child's medical practitioners. There is no reason why the orders should not also be provided to medical practitioners and I will make the order, but the order will provide for the mother to do so.

Notification of the mother's contact details and provision of information to the father

1. The father seeks orders the mother provide him with contact details and provide him with her address. I do not intend to make any such order because there is no need for the father to know the mother's address, in the context of such limited time between the child and the father and because I intend to make orders for any communication between the parties via a parenting app. There will be no changeover orders at the address of either parent and indeed the father seeks that the contact supervisor effect changeover. I accept the mother is fearful of the father and does not want her personal details conveyed to him, when there is no necessity to do so and I will make orders for the supervisor to effect changeover.
2. The father also seeks orders for each party to advise the other of serious illness or injury suffered by the child, keep each other advised of medical practitioner details and authorise the school to provide to each parent copies of school reports and notices. Because I have found the father to pose an unacceptable risk of harm to the child and because of my findings the father has perpetrated family violence on both the mother and the child, and because of the highly limited nature of the father's time with the child, I do not intend to make orders requiring the mother to divulge her neighbourhood or the school the child attends to the father, when to make orders as sought by the father would likely enable him to identify both.
3. The orders sought by the father to attend school, activities and other such events for specific changeover would, self-evidently, only apply if orders were made for supervised time, which they are not.

1. The mother seeks a raft of personal protection orders under s 68B of the Act, which are particularised at orders 12 and 13 of her proposed minute of orders. She does so because the previous intervention order has now expired and rather than returning to the Magistrates Court, she asks this court to make the orders, which are supported by the evidence and findings about the family violence perpetrated by the father.
2. The father opposes the making of the orders because alleviating the mother from the inconvenience of returning to the Magistrates Court is not the correct test, there have been no recorded breaches or convictions of the father for the duration of the proceedings, there is no evidence of recent contact except for some phone calls between the father and the child. Further the father has had some counselling, and the risk of any further family violence is low.
3. I do not accept that the father has gained any insight from counselling or courses, as referred to above, indeed quite the contrary. However, there are no detailed submissions on behalf of the mother to persuade me it is just and convenient to make such an order. I am also mindful of the potential problems associated with enforcement of personal protection orders made under the Act and consider that an Intervention Order from the Magistrate's Court, under the relevant state legislation may be of more assistance to the mother, although it is highly undesirable for the parties to be embroiled in further intervention order litigation.
4. I am cautiously optimistic, because of the adverse findings against him in these reasons and the severely limited nature of his time with X, the father may pause to reflect on his past conduct and attitude and refrain from future aggressive and coercive family violence directed towards the mother and X. He must accept ultimate responsibility for the consequences of his conduct and the restriction on the relationship with his son.

1. The mother also seeks a harmful proceedings order under s 102QAC of the Act or in the alternative a vexatious litigant order under s 102QB(2)(b) of the Act.
2. In her written submissions the mother contends the proceedings have been drawn out by the father's approach to litigation and by his failure to make concessions in a timely manner. She also refers to the father having engaged with both child protection and the police and having commenced intervention order proceedings against her, which I observe were subsequently withdrawn by him.
3. The mother also submits the father's amendment of his application to the court on five occasions ought effectively be considered applications in the proceedings.
4. The father opposes the orders sought and contends the mother has inadequately pleaded her application and the father should not be denied an opportunity to respond, once properly pleaded.
5. I accept the submission of the father's counsel the application has not addressed the relevant statutory considerations, and I do not intend to make either such order. I also observe that prior to being permitted to reagitate the parenting orders made by me, the father would need to satisfy the factors set out in s 65DAAA (1) of the Act, which in the family violence context of this proceeding and the extremely limited time between the father and X, would present a significant impediment.
6. For the foregoing reasons, I made the orders as are set out at the commencement of these reasons.

I certify that the preceding three hundred and forty-one (341) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.

MINUTE OF FATHER'S PROPOSED FINAL PARENTING ORDERS

1. Parental responsibility for making decisions about major long-term issues in relation to X, born in 2019 (the child) be allocated to the parties jointly and for that purpose:

(a) The parties communicate with each other about all major long-term decisions by text message; and

(b) Make a genuine effort to come to a joint decision;

(c) Make a joint decision which is evidenced in writing prior to acting or taking steps to implement any joint decision made pursuant to this order.

Spend time

1. The child live with the mother.
2. The child spend time and communicate with the father during the school term as follows:

(a) In week one, from 3:30pm on Friday (or otherwise from the conclusion of school) until 9:00am on Monday (or otherwise from the commencement of school).

(b) In week two, from 3:30pm on Wednesday (or otherwise the conclusion of school) until 9:00am on Friday (or otherwise the commencement of school on Friday).

1. Commencing from the date of these, the child spend time with the parents during the Victorian Gazetted school holiday periods as follows:

(a) With the Father for one half of all school holiday periods, being the first half in odd numbered years and in alternate years thereafter and the second half in even numbered years and in alternate years thereafter; and that any provision for time in this order that is inconsistent with school holiday time be suspended during school holiday periods.

(b) With the Mother for one half of all school holiday periods, being the second half in odd numbered years and in alternate years thereafter and the first half in even numbered years and in alternate years thereafter; and that any provision for time in this order that is inconsistent with school holiday time be suspended during school holiday periods.

Changeover

1. All changeovers unless otherwise provided herein are to occur at the child's school, childcare or kindergarten on any days on which the child is attending school, childcare or kindergarten, with the parent who is spending time with the child collecting the child from his school, childcare or kindergarten and then delivering him back to school, childcare or kindergarten at the end of time spending.
2. All changeovers on non-school days (or days that the child is not attending childcare or kindergarten), are to occur at the residence of the parent with whom the child is currently spending time.

Special occasions

7. Notwithstanding any other Order herein, the child shall spend time with the parties on special occasions unless otherwise agreed, as follows:

(a) For Fathers' Day in each year, the child shall spend time with the Father from 4:30pm on the day preceding Father's Day until 6:00pm on Fathers' Day;

(b) For Mothers' Day in each year, the child shall spend time with the Mother from 4:30pm on the day preceding Mother's Day until 6:00pm on Mothers' Day;

(c) For Easter in each year, the child shall spend time as follows:

(i) Commencing in 2026 and each alternating year thereafter:

1. With the Mother from 12:00 noon on Good Friday until 4:00pm 12:00 noon on Easter Saturday
2. With the Father from 4:00pm 12:00 on Easter Saturday until 4:00pm on Easter Monday.

(ii) Commencing in 2027 2023 and each alternating year thereafter:

1. With the Father from 12:00 noon on Good Friday until 4:00pm 12:00 noon on Easter Saturday
2. With the Mother from 4:00pm on Easter Saturday until 4:00pm on Easter Monday.

(d) For Christmas in each year, the child shall spend time as follows:

(i) With the Mother from 3:00pm on Christmas Eve until 9:00am on Christmas Day

(ii) With the Father from 9:00am on Christmas Day until 5:00pm on Boxing Day.

(e) For the Father's birthday each year, the child shall spend time with the Father from 4:30pm on the day preceding the Father's Birthday until 7:00pm on the Father's Birthday;

(f) For the Mother's birthday each year, the child shall spend time with the Mother from 4:30pm on the day preceding the Mother's Birthday until 7:00pm on the Mother's Birthday;

(g) On the child's birthday during the period from 3:00pm to 7:30pm during which time, the child shall spend time with the party with whom he is not spending time.

Travel within Australia

1. That the parties provide written notice along with copy flight itineraries to the other at least one (1) week prior to their intention to travel out of the State of Victoria with the child and contact details of hotels and like accommodation where they will be staying

1. The parties, their servants and/or agents be and are hereby restrained by injunction and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975 from removing or attempting to remove or causing or permitting the removal of the child from the Commonwealth of Australia.
2. AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the child on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist until his 14th birthday on 2 June 2033.

(a) Denigrating the other parent or their family members or partner, if any, in the presence or hearing of the children or either of them;

(b) Discussing these proceedings with or in the presence or hearing of the children or either of them;

(c) Harassing, threatening or intimidating the other parent or family members or the children;

(d) Discussing adult issues with or in the presence or hearing of the children or either of them; or

(e) Permitting, encouraging or allowing any other person to do what they are prohibited from doing under this order.

1. In the event that the child is attending upon a child psychologist, counsellor, or other mental health professional:

(a) The parties do all such acts and things as may be required to ensure that they each receive the same feedback about the child from the mental health professional; and

(b) Both parties are at liberty to make appointments with the mental health professional for the child or for themselves, and this Order authorises the mental health professional to provide information about the child to both parties.

(c) The parties be at liberty to provide a copy of this Order to the mental health professional.

Miscellaneous

1. That each party shall inform the other as soon as practicable by text of any serious illness or serious injury suffered by the children or either of them whilst in their respective care and provide details of any medical practitioners or hospitals attended any medication/treatment prescribed and shall authorise the other parent to speak to any treating medical professionals.
2. That both parties be permitted to attend all school activities, functions and events that parents are normally invited to attend including sporting events, concerts and other extra-curricular activities.
3. That both parties authorise each other to obtain from any school the children attend at the party's own expense (if any) copies of school reports, newsletters, notices, photo order forms and any other communications that parents usually receive.
4. That the parties keep each other informed of their current residential address and telephone numbers and email addresses and inform the other of any changes within 7 days of such change occurring.
5. The parties keep the other notified at the earliest opportunity in relation to the full name and contact details of any medical practitioner or other health professional that the child attends whilst in their care and the health professional shall be authorised to communicate with and provide information to the other party.
6. Each party will be at liberty to provide a copy of these Orders to the school, after school care which the child attends, or any medical practitioner treating the child.
7. That the appointment of the Independent Children's Lawyer be and is hereby discharged.
8. Pursuant to ss. 65DA(2) and 62B of the Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties to adjust to and comply with an Order are set out in the Fact Sheet and these particulars are included in these Orders.

Annexure B

MOTHERS MINUTE OF PROPOSED FINAL PARENTING ORDERS

1. That all previous parenting orders be and are hereby discharged.
2. The mother have sole decision making responsibility for the child, X born in 2019 ('the child' / '[X]').
3. X live with the mother.
4. That there be no orders for the father to have time or communicate with the child other than as set out in these orders.
5. That the father be at liberty to provide letters, cards and gifts to the child on the following conditions:

(a) any such items be sent to the mother's nominated address or PO Box, to be provided by her within 14 days;

(b) the mother to be at liberty to vet any items received from the father and provide only such items to the child as she deems appropriate;

(c) any correspondence not raise any aspect or subject matter of parenting arrangements or these or any other proceedings;

(d) any provision of item/s occur no more frequently than once per calendar month.

1. That any further time, or communication, between the child and the Father, occur provided that:

(a) the Mother initiates the same; and

(b) it occurs on any condition/s and frequency as determined by the mother.

1. In the event that the child expresses a wish to respond to any items provided pursuant to order 5, the mother be at liberty to provide any such response/s in a form and frequency as determined by her.

1. That the final Passport and Travel orders made on 9 July 2024 at orders 28 through 32 inclusive be and are hereby discharged.

1. If required, the Australian Federal Police, their servants and agents, remove X born in 2019 from the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
2. Pursuant to section ss7 and 11 of the Australian Passports Act 2005 and upon the court being satisfied that it is not practicable to obtain the consent of the father to enable the child to obtain an Australian Passport to travel internationally, the court makes the following orders:

(a) the Mother be permitted to apply for and/or renew an Australian Passport or any other document to enable the child to travel internationally without the Father's consent.

(b) the child be permitted to travel outside the Commonwealth of Australia and interstate without the permission of the Father.

(c) for the purpose of Orders 10a or 10b hereof, liberty be granted to the mother to provide a copy of these Orders to the Department of Foreign Affairs and Trade or any other relevant person, organisation, statutory authority or body.

Restraints and Injunctions

1. The mother and father, their servants and/or agents, be and are hereby restrained by injunction from:

(a) abusing, insulting, belittling, rebuking, intimidating, harassing or otherwise denigrating the other parent to or in the presence or hearing of the child or permitting any other person to so;

(b) passing messages through the child to the other parent;

(c) discussing parenting disputes and/or issues with or in the presence of the child or permitting any other person to do so;

(d) exposing the child to any conflict between the parties or permitting any other person to do so;

(e) discussing any Court proceedings including any ancillary proceedings with or in the presence or hearing of the child or permitting any other person to do so; and

(f) Using or engaging in physical discipline towards the child or allowing others to do so.

1. That pursuant to Section 68B of the Family Law Act 1975, save as provided for with the mother's express written consent and/or in accordance with these orders, the father and/or his servants or agents be and are hereby prohibited from:-

(a) Contacting the mother;

(b) Contacting the child, X born in 2019;

(c) Approaching at or within 200 metres of the mother's residence;

(d) Approaching at or within 200 metres of any child-care, kindergarten, or school at which the child attends;

(e) Attending at or approaching within 100 metres of any venue at which the child's school or any other extra-curricular activity in which the child is involved and/or participates in, including but not limited to any functions or participatory activity; and

This order is made for the personal protection of the mother and the child and has attached to it a power of arrest pursuant to Section 68C of the Family Law Act 1975 so that if a police officer believes, on reasonable grounds, that the father or any other person on his behalf has breached the injunction by:-

1. causing or threatening to cause bodily harm to a protected person; or
2. harassing, molesting or stalking that person;

the police officer may arrest that person without warrant.

1. That the mother be at liberty to provide a copy of these orders to any relevant school, care-giver for the child, or any other relevant person who may need to be aware of the injunctions made.

1. The father be prohibited from instituting further parenting proceedings under the Family Law Act 1975 (Cth) (the Act) against the Mother without such leave of the Court as may be granted under s.102QAG of the Act.

Or in the alternative - Vexatious Litigant Order

1. That, pursuant to s 102QB(2)(b) of the Family Law Act 1975, the Father, Mr Vung, be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 in relation to the child, X born in 2019.
2. That, pursuant to s 102QB(2) of the Family Law Act 1975, the Father, Mr Vung, be and hereby is prohibited from instituting proceedings under the Family Law Act 1975 in relation to the Mother, Ms Burnes.

1. That the father pay the mother's costs of and incidental to these proceedings within 30 days of the date of this order by way of transfer to HL Family Lawyers Pty Ltd Solicitors Trust Account.
2. That the appointment of the Independent Children's Lawyer be and is hereby discharged.
3. All extant applications be otherwise dismissed.

[1] S 67Z Response dated 3 March 2022

[2] Transcript dated 10 July 2024, p-38, line 12

[4] Transcript 22 August 2024, p-94, line 25 and line 36

[5] Affidavit of Dr D filed 6 July 2022, page 8

[6] Transcript 13 June 2025, p-10, line 2

[7] Transcript dated 10 July 2024, p-9, line 24 - 46

[8] Transcript dated 10 July 2024, p. 55, line 12 - p. 57, line 12

[9] Transcript dated 10 July 2024, p-55, line 12 - p-57, line 12

[10] Affidavit of Dr D filed 6 July 2022, paragraph 11

[11] Transcript dated 10 July 2024, p-35, lines 2 - 5

[12] Transcript dated 2 April 2025, p-10, line 46 - p-11, line 2

[13] Transcript dated 2 April 2025, p-11, line 6

[14] Transcript dated 2 April 2025, p-13, line 4

[15] Transcript dated 10 July 2024, p-86 line 46

[16] Transcript dated 2 April 2025, p-22 line 45 to p-25 line 36

[17] Transcript dated 2 April 2025, p-28, line 11 - p-29, line 11

[23] Section 67Z Response dated 3 March 2022, page 3

[25] Affidavit of the father filed 17 June 2024, paragraphs 189 - 198

[26] Transcript dated 22 August 2024, pp-45 - 47

[27] Transcript dated 22 Augsut 2024, p-45, line 2

[28] Transcript dated 22 August 2024, p-49, line 7

[29] Transcript dated 13 June 2025, p-20, line 35

[30] Section 67Z report dated 3 March 2022

[31] Affidavit of Dr D filed 28 June 2023

[32] Affidavit of Dr D filed 28 June 2023, pages 19 - 20

[34] Affidavit of the mother filed 24 June 2024, paragraph 103

[35] Affidavit of the mother filed 24 June 2024, paragraph 115

[36] Affidavit of Dr D filed 6 July 2022, paragraph 43

[37] Affidavit of Dr D filed 6 July 2022, paragraph 32

[38] Affidavit of Dr D filed 6 July 2022, paragraph 63

[39] Affidavit of Dr D filed 28 June 2023, paragraph 19

[40] Affidavit of Dr D filed 28 June 2023, paragraph 38

[41] Affidavit of Dr F filed 14 June 2024, paragraph 7

[42] Transcript dated 22 August 2024, p-96, line 29

[43] Transcript dated 13 June 2025, p-19, lines 10 - 21

[44] Transcript dated 11 July 2024, p-101, line 39

[45] Transcript dated 13 June 2025, p-31 line 36 to p-32, line 8

[46] Transcript dated 13 June 2025, p-28, line 45 to p-29, line 4

[47] Affidavit of Dr D filed 28 June 2023, paragraph 47

[48] Affidavit of Dr D filed 28 June 2023, paragraph 49

[49] Affidavit of Dr D filed 28 June 2023, paragraph 49

[50] Affidavit of Dr D filed 28 June 2023, paragraph 52

[51] Affidavit of Dr D filed 28 June 2023, paragraph 18

[52] Transcript dated 13 June 2025, p-16, line 29 - 34

[53] Transcript dated 13 June 2025, p-32 and p-33

[54] Transcript dated 13 June 2025, p-34 line 23

[55] Transcript dated 13 June 2025, p-74 line 47 to p-75 line 6

[56] Transcript dated 31 March 2025, p-48, line 6 - 19