Wasley & Wasley (No 2) [2025] FedCFamC2F 997 | Case summary

Wasley & Wasley (No 2) [2025] FedCFamC2F 997 | Case summary | Zoe

[27]

These are the Reasons for Judgment in respect of competing parenting applications of the applicant mother, Ms Wasley ('mother'), and the respondent father, Mr Wasley ('father').
1. The parties were married in 2011. They separated in around mid-2021.
The parties have four children together, 12-year-old W ('W'), 11-year-old X ('X'), 8-year-old Y ('Y') and 7-year-old Z ('Z') (collectively 'the children').
The children live with the mother. At present, X, Y, and Z spend supervised time with the father each Sunday from 10am to 1pm and have done so for approximately three years. W has not spent any time with the father since May 2022,[1] albeit time is to be facilitated in accordance with her wishes.
Both parties are public servants. There are significant issues of trust between them. The parties each have their own vulnerabilities.
The father had been charged with criminal offences relating to two of the children, but such charges were all subsequently withdrawn. The children's relationships with the father have been disrupted for years. Family therapy has been ongoing for some time. There is still hope.
The proceedings have a lengthy procedural history, with parenting applications on foot since September 2022. The final hearing occurred over 5 days, from 2 to 6 December 2024, when the evidence concluded. Final written submissions were all filed by 21 February 2025, when judgment was reserved.
1. The mother's case, in essence, is that the father was a tyrant, not only towards her but also towards the children. She tells the Court that the father had and continues to have problems with his anger, which she calls 'explosive', and that apart from physical abuse which she says he dished out, he was also coercive and controlling. The mother does not seek any specific findings of family violence, but she does seek a finding that the father poses a risk to the children which requires that his time be supervised and of a very limited nature.
2. The mother moves the Court for orders that she have sole decision-making authority about the major long-term issues for the children, that the children live with her, and that X, Y, and Z spend supervised time with the father on the first Sunday of each third month for a period of up to 3 hours until they reach the age of 14 years, at which point time be in accordance with the children's wishes. The mother also sought orders that W spend time with the father in accordance with her wishes.
3. The father's case, in essence, is that he is not a risk to the children and that he does not have issues with his anger such that time between him and the children should in any way be restricted or supervised. The father denies that he was violent towards the mother and the children.
The father moves the Court for orders that the parties have joint decision-making authority about the major long-term issues for the children, the children live with the mother and spend time with the father from after school on Friday until before school on Monday in week one, and from after school on Tuesday until before school on Friday in week two.
The Independent Children's Lawyer ('ICL') moves the Court for orders that the parties have joint decision-making authority about the major long-term issues for the children, that the children live with the mother, and spend time with the father each alternate weekend commencing at the conclusion of school on Friday to before school on Monday.

[39]

Family violence is defined in s 4AB of the Act, to mean violent, threatening or other behaviour by a person that coerces or controls a family member of the person's family, or causes the family member to be fearful.
Examples s 4AB provides are: assault, sexual assault or other sexually abusive behaviour, stalking, repeated derogatory taunts, intentionally damaging or destroying property, intentionally causing death or injury to an animal, unreasonably denying the family member the financial autonomy that he or she would otherwise have had, unreasonably withholding financial support needed to meet the reasonable living expenses of the family member or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support, preventing the family member from making or keeping connections with his or her family, friends or culture, unlawfully depriving the family member, or any member of the family member's family, of his or her liberty. Furthermore, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
As recently reiterated by the Full Court,[10] it is not enough if one of the behaviours identified falls within the examples given in s 4AB(2) of the Act_,_ what is required is an analysis of how such behaviour coerces or controls a member of the person's family or causes the family member to be fearful and a subsequent finding of it doing so. Context is all important.[11]
The Act, in the definition of family violence, speaks to 'behaviour by a person that coerces or controls'. It has been noted that the two concepts of 'coerces or controls' are closely related, together forming an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command, in the context of conduct that was not inherently violent or threatening.[12]
The determination of what constitutes behaviour 'that coerces or controls' must be considered in the context in which the conduct occurred.[13]
In Pickford & Pickford[14] the Full Court considered, inter alia, the definition of family violence, and the role intent has to play in findings of coercion or control. While it was a bench of five, three separate judgments were delivered in which there is disagreement about the definition of family violence. Such disagreement is not relevant for the purposes of determining these proceedings, and in any event, there is a majority position in that regard.[15] It is clear however, that there was a common position in Pickford that intent on behalf of the perpetrator is not an essential element of a finding of family violence taking the form of coercion or control.[16] The Court notes respectfully, that this is not a new proposition and one which is consistent with earlier authority.[17]
It is apposite to be reminded of the wording of s 140 Evidence Act 1995 (Cth):[18]

[42]

In order to be satisfied as to proof of any act, the Court must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of the given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Court. [19]
Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of violence and abuse.[20] The party alleging the fact bears the burden of proving it and the standard of the burden is the balance of probabilities.[21]
In the majority of parenting cases objections to evidence are barely, if ever, made. The evidence, having been tendered and admitted without objection or limitation, is available for use for all purposes.[22] While the words 'not admissible' mean 'not admissible over objection',[23] the lack of objection does not necessarily make such evidence probative or relevant, nor does it give it any particular weight. Parenting proceedings remain adversarial, notwithstanding that they are conducted under Pt VII Div 12A of the Act.[24] Being adversarial, it still stands true that those who assert a fact must prove that fact.
An assertion that a parent poses an unacceptable risk of harm does not somehow mean that the parent against whom the assertion is made, must then show that he/she does not pose such a risk.[25] As noted earlier, a finding that there is an unacceptable risk of harm is either open on the evidence or it is not.
Where an inference can fairly be drawn from evidence against the interests of a party, if findings against that party's interests are not to be made, an evidential burden then arises. It is irrelevant whether that involves proving a positive or a negative.[26] Each of the parties is required to put before the Court all such evidence as each is willing and able to bring in support of the findings contended for and, in this Court, that is done by exchange of affidavits ahead of the trial.[27]
It is well recognised that where evidence is uncontradicted and is not otherwise inherently improbable or inherently incredible, and where the other party has not elicited in cross-examination or led in evidence some material to overcome it, either by proving the contrary or throwing the matter into doubt, it should be accepted.[28] However, this does not mean that it must be accepted.
The parties' evidence must be carefully considered by the Court.
When the allegations of violence relate to objectively serious incidents over an extended period and resolution of the dispute is central to a case advanced, the determination of the dispute becomes an essential element of disposition of the competing applications.[29]

[43]

The father was born in 1979. He is currently 45 years old. The father is a public servant. The father works on a full-time basis, generally consisting of a 9-day working fortnight from Monday to Friday. Additionally, the father works 'on call' for 1 week of every 6-week cycle, which requires him to work on weekends. The father was employed in this role throughout the parties' relationship and has been employed with the public service for 23 years.[30]
The mother was born in 1982. She is currently 42 years old. The mother is a public servant, and she has been with the public service since 2002. The mother works as a customer service officer, albeit she is presently on stress leave.
In 2006, the mother's twin daughters from a previous relationship, Ms J ('Ms J') and Ms M ('Ms M'), were born. Ms J and Ms M are each 19 years of age. They both have autism spectrum disorder, cognitive delays and intellectual disabilities. In addition, Ms J has an anxiety disorder and Ms M has attention-deficit/hyperactivity disorder ('ADHD').[31]
On or about March 2010, the parties commenced cohabitation.[32]
In 2011, the parties married.[33]
In 2012, W was born. She is currently 12 years of age. W had been diagnosed with ADHD and is prescribed 'Concerta' and 'Ritalin' medication.
In 2014, X was born. He is currently 11 years of age. X had been diagnosed with ADHD.
Both W and X were conceived through in vitro fertilisation.
Sometime in 2015, the mother appeared as a contestant on a television program.[34] The mother was away from home for extended periods during filming, including two six-week blocks.[35]
In 2016, Y was born. She is currently 8 years of age.
In 2018, Z was born. She is currently 6 years of age. Z had been diagnosed with ADHD, and is on a waitlist for autism spectrum disorder assessment. She has been prescribed 'Concerta' medication.
During the parties' relationship, the mother had a number of gynaecological and associated health issues, related to her pregnancies. She underwent surgery to remedy these issues, which then gave rise to complications and further surgery. The mother also had shoulder surgery, which was necessitated by an injury she sustained during an emergency procedure following complications from her surgery. The mother's health issues appear to have been very serious.
The mother took a period of extended parental leave from about the time W was born until after X's birth. She returned to part-time work after that, although she did take further periods of parental leave when Y and Z were born.
During the parties' relationship, both the mother and the father were involved with the care of the children. Given that the father has at all relevant times been employed in a full-time role, he did not have the capacity to attend to child-caring responsibilities in the same manner as the mother, who was either on leave or in part-time employment. This is not a criticism of either party.
The parties separated under the one roof in July/August 2021.
In late 2021, the mother commenced a relationship with Ms L ('Ms L'), a public servant at N Authority.[36] Initially, the relationship was one of friendship but then developed into more, albeit it did not develop into a sexual relationship. The relationship ended some time in 2022. On some occasions, Ms L and her son would stay with the mother and the children.
Physical separation between the parties occurred on or about June 2022, when the father vacated the former matrimonial home following the making of a provisional Apprehended Domestic Violence Order ('ADVO').
The father has at all relevant times continued to work full-time (albeit a 9-day fortnight). Post-separation and until mid-late 2022 the mother worked part-time,[37] namely each week on Tuesday, Wednesday, and Thursday.
Post-separation and until June 2022, during the working week, the parties continued to live under the one roof, each going about their weekly business as usual, including with the care of the children.
Between mid-September 2021 and mid-May 2022, the parties had in place a 'nesting' arrangement in respect of weekends, whereby the children spent each alternate weekend with the father, during which the mother, Ms J, and Ms M vacated the home and stayed either with friends or with the maternal family. The agreed time included, at times, from Thursday to Monday. On the weekends that the children spent with the mother, the father would vacate the home and stay in a hotel.
This must have been a very confusing time for the children, to have both of their parents in the home during the week but then one or the other move out over the weekend.
The father spent time with the children alone on the weekend of 14 May 2022 to 16 May 2022, and again over the weekend of 26 May 2022 to 31 May 2022.
The agreed parenting arrangement ceased after W made disclosures of abuse against the father.[38] The allegations by W have been detailed elsewhere in these reasons.
In around mid-to-late 2022, the mother commenced a period of stress leave from her employment with N Authority. The mother told Ms C that she has 7 years of leave approved.
In June 2022, the father was served with an application for an ADVO for the protection of W from him.[39]
On 7 July 2022, the father commenced seeing the psychologist, Mr D, on a fortnightly basis.[40]
In August 2022, the mother vacated the former matrimonial home with the children. She did so without notifying the father of her intention to relocate the children's residence, where the residence would be relocated to, or that she would be changing the children's schools. The mother complained to the Police after receiving a letter from the father's solicitor that same day, which indicated he had been notified that removal trucks had been at the home.
In mid-2022, the father was served with an ADVO application for the protection of the mother.
In late 2022, the father was charged with several counts of assault, referred to in more detail later in these reasons, with all allegations relating to two of the children.
On 19 October 2022, the parties resolved their property proceedings, and final property orders were made by consent.
On 28 October 2022, interim orders were made for the father to spend supervised time with the children. The time was supervised by O Contact Service, and it was usually for two hours each week at Suburb Q Library. W has refused to spend time with the father, while X has not always attended.
In or around October or November 2022, the children commenced attending on the trauma counsellor, Ms E, for weekly trauma counselling sessions.[41]
In late 2022, the father was served with an application for an ADVO for the protection of the mother, X, Y, and Z.
The Family Report was released to the parties on 17 July 2023.
On 21 September 2023, further interim orders were made by consent for the father to spend supervised time with X, Y, and Z each Sunday from 10am to 1pm, supervised by O Contact Service.
In early 2024, the criminal charges against the father were all withdrawn and the criminal proceedings were dismissed. The father consented to an ADVO, without admission, for the protection of the mother.
In early 2024, the mother made a complaint to the Police that the father had hacked into her Netflix account and changed a username and profile. The matter was investigated by the Police, which showed that the changes had been made from an IP address related to the mother's home. Y ultimately confessed to having made the changes.
In early 2024, the parties were divorced.[42]
In 2024, the parties commenced family therapy with Mr B of F Centre. The father attended therapy on: 12 April 2024; 2 May 2024; 31 May 2024 (with the children), 26 July 2024 (with X, Y, and Z); 5 August 2024; 6 September 2024 (with X); 19 September 2024 (with X); and 25 October 2024 (with Y). The mother attended therapy on: 19 April 2024; 17 May 2024; 20 June 2024 (with W); 1 August 2024 (with W); and 18 October 2024 (with Y).[43]
Since the making of interim orders for supervised time in October 2022, the children (sans W) have spent time with the father on over 80 occasions.
While the parties' accounts as to when differ, the parties agree that the mother lodged a complaint with the N Authority, relating to allegations of violence she made against the father. On 16 July 2024, the father said he received an email from the N Authority, advising that an investigation had taken place and been determined as 'not sustained', clearing the father.[44]

[49]

(a) During the relationship, the father pressured her into having sexual intercourse with him;

(b) The father verbally abused her daily throughout the relationship, at times in the presence of the children, with words to the effect, 'You are a pig of a woman', '[Ms Wasley] wants it her way. I have nothing to say to you', 'Men aren't your friends', 'It's [Ms Wasley]'s way or the highway', and 'You can't be told';[46]

(c) That the father was financially controlling during the marriage by not allowing her to see an accountant to complete her tax returns and that he refused to provide her with money when she requested it, instead saying to her to figure it out;

(d) That the father was controlling of the mother's friendships and that the father forbade her and the children from having visitors over and that as a result, the children never had playdates;

(e) On one occasion during the marriage, the father got angry whilst driving and said words to the effect, 'I will drive this car into a telegraph pole and take us both out'. Both Ms J and Ms M were in the car at the time, and 'maybe [W]'.[47]

(f) That the father would become aggressive when frustrated, and would punch walls, the kitchen bench and the floor;[48]

(g) When the children woke up throughout the night and came to the parties' room, the father screamed at them with words like, 'Go fucken to sleep. What the fuck are you doing here';[49]

(h) The father called X derogatory names like 'ponce' and 'poofta man', including calling him a 'ponce' whenever he cried;[50]

(i) The father struck the children with different objects like toys, towels, clothing or 'anything he could grab'. The father hit the children on the back of their heads and would hit X on the back of his knee, head and shoulders;[51] and

(j) When the children injured themselves, the father would become angry and say words to the effect, 'You're a fucking joke', 'This is fucking bullshit', 'I'm sick of this fucking shit', 'Fuck you all', 'Fuck this shit' and 'Kill me now'. The children would try and hide their injuries from the father.[52]

[52]

While the mother does not explain why she would be frightened by something which she knows and understands is a joke, in the context of all of the other behaviours which she describes, it is understandable that she might be frightened and consider this to be a veiled threat.
The mother claimed that the parties shared the marital bed post-separation, until around September 2021 when the mother stopped sharing the bed. The mother said that the night before, the father tried to cuddle her, the mother declined, the father said words to the effect 'I just want to give you a cuddle', to which the mother responded 'Get off me. Don't touch me. I don't want you touching me'. The mother stated that the father said 'Oh come on I just want to give you a cuddle, it'll be the last cuddle I'll ever give you', laughed in a high-pitched laugh, got up on his knees, raised his pillow 'in an exaggerated fashion' and pushed it down into the bed, his hands shaking as he pushed down. The mother deposed that the act by the father was what the father had previously called 'tontine treatment', meaning 'death by suffocation by use of pillow' according to the mother.[53]
The mother makes allegations of family violence by the father against W in May 2022, which are referred to in some detail later in these reasons. In this context, the mother said that post-separation, X said to her words to the effect, 'Dad has hurt me too, Mum. I just know he hurt [W] more than me, and I didn't want to take any attention away from her' and 'Dad has hit me with stuff on the back of my head, shoulders and behind my legs. It would make me cry'.[54] In September 2022, X said to the mother 'I know Dad can contact me on my iPad and has left a message, but I don't want to talk to him, it's not just [W] that he was rough with mum, he hurt me too'.[55]
The Court is obliged to read the entirety of the mother's affidavit, and take into consideration the whole of her evidence. The mother's affidavit does not appear to have been drafted with particular care. It is at times a collection of trivial and/or irrelevant evidence, the inclusion of which dilutes the strength of the mother's evidence overall.
An example of such trivial and/or irrelevant evidence, under the heading 'History of Family Violence' in the mother's affidavit contains the following:

[55]

The mother alleged that after separation in 2021, the children told her the father had aggressively kicked or decapitated some of her ornaments, including a garden statue, garden ornament, and the head of an ornament she kept on her dresser.[57] The father denies doing so.
Part of the mother's evidence are photographs said to be of 'four of the statues that had been beheaded'. Exhibit 26 in the proceedings comprises photographs of the statues/ornaments the mother alleged that the father broke. While there are four photographs, the photographs depict three statues/ornaments. The photographs were all taken on different dates, and the fourth photograph, which appears to be a photograph of the statues in the second and third photographs, where one of the statues was clearly in a different location previously, is dated about two months after the initial photograph of that statue was taken.
The father explained in respect of the first photograph, that it depicts a Christmas Ornament: which he accidentally dropped when he was packing up the Christmas display in 2021. He said that he kept it so that he could fix it or purchase a replacement. The father said that he explained it to the mother. The father further explained that the statue in the second photograph (which also appears in the fourth photograph) was situated in the rear yard to the side of the house. The father had been playing with Y, pushing her on a swing and when Y got off the swing, she knocked the statue over and the head broke off.
Cross-examination of the father in relation to the mother's allegation that he destroyed these statutes/ornaments as an act of family violence was abandoned after the Court noted the difficulties with the photographs vis-à-vis the mother's evidence.
The evidence does not establish that the father had intentionally beheaded and/or destroyed any statues or ornaments, or that the destruction of the statues or ornaments was in any way an act of family violence.
1. It is an example, in terms of the allegations she makes, of the mother throwing everything but the kitchen sink at the father, in the manner referred to at [107]-[111] above.

[64]

The mother claimed that following the incident, Y complained of a sore upper right arm where the father had grabbed her, and that she had red marks on her right jaw line and the back of her right elbow.[70] The mother said that she iced the red marks, which she believed to be carpet burn, and that Y said to her words to the effect, 'Mummy mummy I was just playing'.[71]
The mother places the incident shortly after separation and while the parties were still living under the one roof. She also deposes to the fact that she sent a friend of hers a text message about the incident on 28 May 2021. The difficulty with this evidence is that the text message was sent prior to the alleged incident having occurred.
While the alleged incident is described in the mother's trial affidavit, the first time that a complaint was made by Y about, what is inferred to be, this alleged event, was after she had started speaking to Ms E in October/November 2022.
By December 2022, Y relayed to Ms E that the father had 'grabbed her by the arms and threw [her] in the house' and 'once he threw [her] against the wall'. It is not clear whether Y is speaking to one or more alleged incident. At the time that she spoke to Ms E, Y had turned 6 years old. The incident alleged by the mother had occurred about a year and a half prior to Y telling Ms E about being thrown against a wall and/or into the house.
On 22 December 2022, Y disclosed the incident to the Police.[72] She disclosed that the father had grabbed her, with one hand on her arm and the other on her clothing near her lower back and had then thrown her across the room in a sweeping motion.
In February 2023, the mother provided a statement to the Police concerning the father throwing Y.[73]
During the family report interviews, Y spoke to Ms C about what is, again inferred, to be the same alleged incident. Y said to Ms C that the father once 'threw [her] around in the lounge room and [she] got carpet burn all over [her] legs. And [her] arms'. According to Ms C, Y was clear that this was not a fun game, and that she had told her father to stop.
While Ms C did raise a concern about the discussions that may have occurred at home prior to the family report interviews, Y impressed Ms C as a confident child. Ms C was also of the opinion that coaching of the children by the mother was not a likely explanation for the children's views about the father.[74]
If Y and the mother are talking about the same incident, it is difficult to reconcile their evidence:

[70]

The Court makes the following overall observations in respect of the video. W does not appear to be upset or frightened. While at the beginning of the video, W appears to be speaking in a slightly breathless voice, she is observed to be swinging in her chair while recounting the father's behaviour. Towards the end, she is looking straight at the camera and has a smile on her face. She appears to look pleased with what she has been able to relay to her mother who is filming the video. The Court is well aware that demeanour is not necessarily a good tool for assessing credibility. These observations are made in context.
There is no bruising visible on W's right forearm in the video taken on 16 May 2022, even though it is noted as having been taken at 4:10pm, before the mother took a photograph of W's right wrist. In the video, W does not appear to be favouring the right arm in any way. W makes no mention in the video, of the alleged bent hand and pressing of the thumb onto her wrist, causing a bruise. The mother was not cross-examined about these particular aspects of the video.
During cross-examination, the mother admitted to recording the video whilst the other children were present, saying 'they were each there in the room somewhere'. The mother also said that W started the conversation and started 'blurting it out'. The mother conceded that she should have removed the children from the room before W started speaking.
The video was not part of the evidence in the mother's case. It came to light during the mother's cross-examination. The video must have been taken after the conversation between W and the mother, where W allegedly complained about the injury she says she suffered. The Court does not accept the mother's evidence that W just started 'blurting out' the matters which are recorded in the video, in the sense that it was completely out of the blue or unexpected, given the content of their conversation shortly beforehand.
As noted earlier, at 4:47pm on 19 May 2022 (3 days after the disclosure) the mother says that she took a single photograph of W's right wrist, which she describes as showing 'the bruise has extended upwards along the inside of her arm'.[80] There is no explanation offered as to why the photograph was taken 3 days after the disclosure.
It is not clear on the evidence whether the two photographs which are Exhibit 21 are the 'photos' which the mother took on 16 May 2022, or a photo from 16 May 2022 and the photo she says she took on 19 May 2022.
There is no date stamp on either photograph in Exhibit 21.
Both photographs show W holding an iPad in her left hand while holding her right forearm up towards the camera. In the second photograph it is only the corner of the iPad which is visible. Her long sleeve on the right arm is pulled up. The sleeve on her right arm looks to be in identical positions in both photographs. She appears to be wearing the same socks. She appears to be standing on the same white tiles, near grey carpet, but in a slightly different position. It looks as if the two photos in Exhibit 21 were taken on the same day at or around the same time.
The first photograph in Exhibit 21 shows a slight discolouration on the inside of her right forearm, the second photograph shows what appear to be shadows over the child's right arm, and the same slight discolouration. Neither of the two photographs shows 'the bruise extended upwards along the inside of her arm' as described by the mother.
W is wearing different clothing in the video said to have been taken on 16 May 2022, to the clothing she is wearing in the photos in Exhibit 21, which may have been taken only on 16 May 2022, or on both 16 May 2022 and 19 May 2022.
The mother was not questioned about any of these matters.
W also reported a similar incident to the school counsellor on 31 May 2022,[81] when she made a number of other disclosures referred to later in these reasons. The notes record as follows:

[74]

The children spent time with the father from the evening of Thursday, 26 May 2022 to the commencement of school on Tuesday, 31 May 2022.[84]
On 28 May 2022, the father took the children to their sporting activities.[85] The father took the children to X's sports game, which they had to arrive at by 8am, and which was a 45-minute drive from home.[86] The father had to rush the children out of the house to ensure they made it on time and particularly because the father was the team manager. X, Z, and Y woke up at 6am but W continued to sleep.
It is the father's evidence that at about 6:30am, he entered W's room, turned the lights on and said, as he walked through the door, 'time to wake up [W]. The father then turned off W's nightlight, opened the blinds situated on the left of her bed, walked around to the right side of her bed where she lay and as he walked said '[W] you need to get up, we've got to go, you need to get ready' and 'You have to get up, [X] has [sports]..[87] The father then approached W who was laying on her stomach and facing him, placed both hands on her torso, which was under her doona, lent down and said 'Come on [W] you need to get up'.[88] The father then jumped over W's bed from the bottom right-hand corner, where her lower legs were under her doona. He did not land on W but rather, '[his] leg knocked hers gently'. The father then laid beside her on the bed, reached with a fully outstretched arm and placed the open palm of his hand on the mid-section of her torso and said 'Come on it's time to get up'.[89] He then got out of the bed from the side closest to the blinds, and exited W's room.[90]
Ultimately it seems W got up and they all went to X's football game.
Later in the afternoon on 28 May 2022, the father took the children to the local playground, where all the children played on the play equipment including W, who played on the monkey bars.[91] The father then took the children to T Hotel for dinner, got home between 6:30pm and 7pm, put Z and Y to bed, and then watched a movie with W and X.[92]
On 29 May 2022, the children attended a party at U Venue, a play centre, with the father, from around 12:30pm to 2:30pm.[93]
On the morning of Monday, 30 May 2022, it was agreed between the parties that the children would remain with the father an extra night and that the mother would not return to the family home until Tuesday.
At around 4pm on Monday, 30 May 2022, W messaged the mother three photographs of her legs with bruises on them.[94] The mother asked W what happened firstly immediately after getting W's message and then after about 40 minutes. W replied but only after the mother's second query 'Baby, how did this happen?', saying 'Some in the car this morning and when I was on the couch', 'I don't feel comfortable with him around me and when he gets mad' and 'It's making me feel like I'm going to get hurt'.[95]
At 4:42pm the mother called W via Facetime. During the call, W was crying and said, 'I'm scared, he's hurt me', 'I want you to come home' and 'He kicked me'. The mother said that she attempted to reassure W, told her that she would be home the following day and that during the call, W had locked herself in the bathroom.[96]
W then sent the mother another message at 5:17pm, which read:

[77]

met with [W]. [W] brought a notebook to her, in which she had written some things about her dad that she wanted to tell me. It began saying "my dad hurts me and it makes me sad". See attachment for further.

I asked [W] to give me an example of when this has happened:

"I was sitting on the couch and dad came next to me and slapped his hand on my leg" She showed a bruise on her left leg just below the knee. She stated "I told him to stop and he didn't stop. When I go to bed, he comes in and watches me sleep."

"When he gets made he starts stomping and yelling".

"Yesterday morning he jumped on me 5 times" (clarified that she was lying in bed and he did this in a lying down position). "Then he harshly rubbed my back with his knuckles. Then he jumped with his feet and landed on my ankle and I have a bruise from it." (Pale bruise noted on ankle. No visible marks on back).

"I have bruises on my shin from where he kicked me. We went to the park and [X] needed to go home and when we got home I bumped into dad and he said you'd better watch it then he kicked my legs." When I told him to stop he called me "baby" and this made me uncomfortable.

[W] reported that she had a sore stomach "I feel like I have bruises inside my stomach" which she attributed to when he jumped on her. She reported that this was the second time this has happened and another time "he got really mad and I think he was drunk as well and he grabbed my wrist and he stuck his thumb in and I got a big bruise."

[W] reported that she had headaches from him hitting her on the head with her sister's home reader. She reported that this was making it hard for her to concentrate. [W] agreed with me calling mum with her present. P/call to mum. Advised that [W] was reporting that her dad had hurt her and that she was describing stomach pain and headaches resulting from this. Advised mum that I am not qualified to assess for significant injury and encouraged her to seek medical review. Mum agreed to same and collected [W] to take her for medical review.[103]

([W]'s notebook was not in evidence)

[78]

Upon collecting W from school on 31 May 2022, the mother took W to the emergency department at AA Hospital.[104] The paediatric specialist that treated W was a mandatory reporter and whilst at the hospital, W was interviewed by DCJ.[105] The mother said that W was discharged but asked to return the following day.[106]
Exhibit 17 is a DCJ Helpline Assessment dated 31 May 2022. The caller of that report stated that W has disclosed physical harm by the father on 27 May 2022 to her school counsellor. The assessment includes the following:
- Caller states that [W] disclosed that her Father physically abused her on Friday 27/05/2022 and this is not the first time that he has been violence.
- [W] stated her father jumped on her back, hit her head with a book and also hit her on the head with his elbow and hands and also kicked her on her legs where she has sustained multiple bruises to the legs. There are multiple bruises on her legs ranging from bluish black to brownish in colour.
- She also reported that yesterday morning she was laying in bed and her Father jumped ontop [sic] of her which caused her abdominal pain.
- No other injuries have been sighted and the exam on the abdomen was fine.
- [W] said the father is "rubbing her back" and "touching her bum". She did not give any other context around this.
- Caller states that [Ms Wasley] did not know about [Mr Wasley] being violent and this is the first that she has heard of it.
- [W] stated that her Father is strict and disciplines them. She also said he drinks a lot of alcohol and when he is violent and aggressive to her he is always drunk. She that her Dad is also aggressive and violent towards her siblings.[107]
In June 2022, the mother again took W to AA Hospital.[108] The mother claimed that the hospital did a full examination of W, and admitted her that night as she needed a CT scan after vomiting bile and complaining about headaches. The mother said that the CT scan was clear and W was given Panadol during her hospital stay.[109]
Whilst at the hospital in May 2022 and June 2022, W was interviewed by the DCJ.[110] The mother was also interviewed by the DCJ.[111]
Also in June 2022, an interim ADVO was taken out against the father for the protection of W.[112] On that day, the mother ceased contact with the father and ceased contact between the father and the children.[113]
The following day, W was discharged from AA Hospital.[114] Before leaving the hospital the mother received a call from DCJ in Suburb CC requesting to interview W. The mother took W to DCJ Suburb CC where she was interviewed.[115] The mother stated during cross-examination that she was also interviewed on that day. Also on that day, the father said that he received a call from the DCJ to discuss the allegations made by W.[116] The father told the DCJ that he would abide by the terms of the ADVO as he did not want to cause W any stress.
The DCJ interview notes from June 2022, as noted earlier in these reasons, are Exhibit 22 in the proceedings. Apart from talking about the bruise on her wrist, W also said to the interviewer that the father 'gets mad attacks me', 'he do 1st kicking on leg' and 'a lot of touching'.
In June 2022, the mother said that she attended a police station, handed W's iPad to Officer BB ('Officer BB') and gave permission for it to be examined.[117] The mother also said that she provided Officer BB with screen shots of her text messages with W on 30 May 2022.[118]
The father denies the allegations that over the weekend of 26 to 31 May 2022, he hit, kicked or hurt W in the way alleged or at all.
Furthermore, the father's evidence is that:

[80]

During cross-examination, the father was asked as to whether he was annoyed W had not woken early with the other children, which he denied as he was 'excited for the day' and 'enjoys taking the children to their sports'.
The father denied the proposition put to him that he lost control of his temper when W was objectionable, that he 'completely lost control' of his anger by the manner in which he woke W up and that W suffered injury as a result of him jumping over the bed and hitting her leg.
The father further said in his oral evidence that no event occurred over that weekend to cause W to message the mother that she did not feel safe.
In relation to W's claim that he entered her room five times, the father said the children arrived home from school at around 4pm, that W went to her room and that at different intervals, he checked in on her. He also said he did not know if it was five times that he checked on her and that he did not see any injuries on her when he checked on her.
The father was asked during cross-examination whether the father could recall anything he might have done or said over that weekend to cause W to message the mother that her legs are hurting bad and causing her to use ice for her ankle. The father said that he took W and the children to sports activities, parks, U Venue, school on the Monday, and that they 'had a very active weekend'. The father said that he did not know why W made the complaint concerning her legs and said that he did not observe W with an ice pack over that weekend.
The father denied the allegations, denied doing or saying anything that would have caused W to make the allegations and that he did not know how W came to say the 'story'.
The father was asked about the bruising and whether that bruising occurred in his care. The father said 'I didn't cause that bruising, the bruising may have happened because we did a number of activities through the weekend'.
The mother was cross-examined on the photographs sent to her by W. When asked whether she considered that W's injuries were commonplace for children to suffer from time to time through the activities that she had done with the father that weekend, the mother initially said no, that she did not consider it as they did not look like 'normal' bruising. When asked again, the mother said that she did consider it.
Part of the difficulty with the evidence and the exhibits which all pertain to the same complaint, is that the records appear to be, at least in part, regurgitations of other records of the same event, albeit not always true to their original. The various versions contain conclusions and opinions, and it is difficult, if not impossible to sort through them. As noted earlier, the evidence in the mother's case is not necessarily reflective of the case which the police alleged against the father in the criminal proceedings, and the differences were not explained by the mother.
Very detailed submissions were made by the parties in relation to the events of the weekend of 26-31 May 2022, and how the Court should deal with the evidence. The Court has carefully considered all such submissions, and the Court has carefully reviewed the evidence.
The children's extended weekend with the father from 26 May to 31 May 2022 was at the mother's request and following the alleged disclosures by W on 16 May 2022. To put it in further context, the alleged incident on 30 May 2022 occurred while the parties were living separated under the one roof, and during the course of the weekend 'nesting' arrangement.
While it is possible that the father was at times rough and/or angry with W during the weekend and that W felt unsafe at those particular times, this is but a possibility.
On balance, the Court does not find that the father assaulted or physically abused W by kicking her, by jumping on her, or in any other manner suggested by W and/or inferred by the mother's evidence over the weekend of 26-31 May 2022. The Court is not satisfied that the evidence establishes that the bruises which were observed on W were caused by the father kicking her, or in any other way physically abusing her.

[82]

In July 2022, the mother commenced packing up the house to move with the children.[119]
1. In August 2022, the mother arranged for a moving truck to collect items for herself and the children from P Street, Town R, with the moving truck at the home between 10:15am and 11:30am.[120] The mother did not inform the father about the moving truck. The father was sent a text message by a neighbour, Mr DD, informing him that a removal truck was at the home.[121]
2. On the day, the father's solicitors sent a letter to the mother's solicitors that queried where the mother was going and whether the children would be remaining at their current school.[122] The father's solicitors received a response from the mother's solicitors, but that response did not answer his queries surrounding the children's school and the mother's move.[123]
3. After receipt of the letter from the father's solicitors, the mother claimed she felt the father was watching her or had someone watching her. She then contacted the police and provided a statement concerning her fears.[124]
4. During cross-examination, the father said he never asked anyone to watch the house, denied the proposition put to him that he had asked the neighbour to watch the house, and said that at that particular time he could still talk to the mother.
5. In mid-2022, a provisional ADVO was taken out against the father for the protection of the mother.[125] In early 2024, on the day the criminal charges against the father were dismissed, the father consented on a without admissions basis to a final ADVO against him for the protection of the mother. The father claimed that he consented to the ADVO on that day in order to avoid incurring further legal fees that would stem from a separate, future hearing of the ADVO application concerning the mother.[126]
6. The suggestion by the mother, that the father was watching her and/or acting in a controlling manner because he queried through his solicitors about the move, is an example of the mother failing to consider matters from an objective point of view, but rather viewing herself as a victim and the father as a perpetrator of family violence.
7. It was the mother's decision to relocate the children and not tell the father. The suggestion that the father was 'watching' her is fanciful. Indeed, there is no suggestion that she was trying to be 'covert' about her move, even though she had not informed the father about it. She had a moving truck at the parties' former home in broad daylight. The fact that the father found out about it from a neighbour is not sinister and the fact that he chose to make an enquiry through his solicitor about it is not controlling per se.
The father says that he was concerned about the mother changing the children's school, something he did not agree with. He was rightly concerned about this, as the mother did change the children's schools having made such decision unilaterally.

[86]

In May 2023, the parties participated in single expert interviews with Ms C. The mother said that 'approximately five months' prior to those interviews, she commenced a relationship with Mr EE ('Mr EE').[131] On the mother's timeline, that relationship would have commenced in around December 2022.
The mother said that she separated from Mr EE in November 2023, and that they remained 'casual friends' until February 2024.[132]
During cross-examination, the mother conceded that Mr EE had stalked her before, contacted her by way of four burner phones, made contact with X through a video game, caused her fear and had created 'Tik Tok' videos seen by the children. The mother denied that Mr EE caused the children fear, and when asked as to whether she was aware of a rumour concerning Mr EE's assault of a female police officer responded, 'It's a rumour'.
The mother also agreed during cross-examination that in 2024 when W injured her ankle, she left the children with him, adding that he was a 'safe person' for her to leave the children with.
During cross-examination, the mother said that she had spoken to her psychologist repeatedly about Mr EE. Exhibits 4, 5, 6, and 7 in the proceedings comprise file notes from Ms K ('Ms K'), the mother's treating psychologist, for her sessions with the mother. Those notes recorded the following:
- In November 2023, the mother reported that she was fighting daily with Mr EE and had trust issues with him.[133]
- In January 2024, the mother reported that she 'had [Mr EE] helping with the kids', that her and Mr EE had been amazing since 'the car accident' and that she had met two of his adult children. Ms K also made notes on a family wedding that took place, stating that W was the mother's plus one and '[Mr EE] stayed home with other kids'.[134]
- In early 2024, the mother reported that on day two of the hearing for the criminal charges concerning the father, she 'dropped 2 kids to [Mr EE]'s house'.[135] During cross-examination, the mother was asked about Mr EE caring for the children when she attended court in early 2024, to which she agreed.
- In June 2024, the mother reported that Mr EE's wife contacted her and told her 'alot [sic] of info', that she felt scared she was being followed and that he had been 'following around, passing by house'.[136] When asked during cross-examination about whether Mr EE following her had caused the mother fear, she responded 'yes'. It is worth noting that only moments earlier during the mother's cross-examination, she was asked whether she ever expressed to anyone that she feared Mr EE, to which she responded 'I was concerned for his welfare.. I didn't fear he was going to hurt me... I feared he had serious mental health issues'. The mother had also told Ms K that Mr EE 'freaked out [W] [sic]'.[137] During cross-examination, the mother explained the term 'freaked out' and said 'When I say freaked out, it's a common word we use in our house it means she reacted, she freaked out'. On that day, the mother also reported two incidents involving Mr EE at a pub.[138] During cross-examination, the mother clarified that on one occasion he had followed her to the pub and on the other occasion, she was not there, but he interacted with the maternal grandparents. In relation to the latter occasion, Ms K's notes state, 'He forced between mum + dad' and 'People ignored + he left'.[139]
The way that the mother deals with her relationships was a cause for concern for Ms C.
The evidence is that Mr EE became a part of the children's lives very soon after his relationship with the mother commenced. The mother placed the children in his sole care at times. Such actions by the mother speak to lack of insight and capacity to place the children's needs above her own.
Such lack of insight and capacity has the potential to place the children at risk, not only in terms of their emotional safety but also in terms of their physical safety.

[87]

On 29 August 2024, and at the request of the mother via her legal representatives, Ms E prepared a report concerning the children's therapeutic engagement with her, treatment, observations and opinion. Ms E addressed each of the children separately in her report.
In her report, Ms E sets out the nature of her referral to treat the children. She notes that the mother referred the children for trauma therapy to address the impacts of violence perpetrated towards them by the father. The mother had told Ms E that the children had experienced and witnessed violence by their father, were 'emotionally dysregulated' and unable to express their emotions appropriately.
Ms E's initial assessment of W was 'very emotionally dysregulated; lacking in self-confidence; hyper-vigilant; fearful; experiencing severe anxiety and suffering from chronic low mood.' She also noted that W reported the bullying she had experienced at her previous school and how she had no close friendships. W described the father as 'scary' and 'quick to anger', told Ms E of when he had physically hurt her and the other children, and of his emotional and verbal abuse. She also made it 'clear' to Ms E that she did not wish to see or have a relationship with the father, that she was angry the father would spend time with the other children but was relieved a supervisor would be present during those visits. Ms E stated that W underwent 'Trauma Focussed CBT' to focus on her negative thoughts and had been taught skills and techniques to cope with strong emotions. Ms E opined that W now has a stable and close friendship group, has improved in confidence and self-worth, can emotionally regulate herself, can articulate her emotions more and is less reactive. Ms E opined that medication, therapy and a stable environment facilitated W's overall improvement.
Ms E said that X initially presented as cheerful and eager to please, including a fear of upsetting anyone. When discussing his relationship with the father, X described it as 'one of fear' and spoke about his fear the father would find him and find out what he has said. X also identified instances where the father hurt him and the other children and expressed to Ms E that he could not protect himself or the others. Ms E stated that 'Trauma Focussed CBT' was also facilitated for X and that he was taught skills and techniques to understand and cope with strong emotions, primarily fear. Ms E opined that X can now clearly articulate his thoughts and emotions and has the skills to manage overwhelming situations. Ms E was also of the opinion that therapy and a stable environment facilitated X's overall improvement.
When discussing Y, Ms E noted that during her first session, Y expressed her emotions without prompting, including expressing a fear of the father and a close and loving bond with the mother. Y told Ms E about the incident where she alleges the father threw her across the room and how she was initially upset to see the father when spend time arrangements commenced. Over time, Ms E said that Y had expressed reluctance to attend visits with the father, spoke about his 'angry clown face' but has also repeatedly stated that she is overall happy to see him so long as a supervisor is present. 'Trauma Focussed CBT' was also facilitated for Y and she was provided with skills to understand and cope with strong emotions. Ms E further noted that art and play therapy have allowed Y to process her emotions by self-regulating and retaining a sense of control in her environment. Ms E opined that Y is learning to emotionally regulate herself, is less reactive, and that therapy and a stable environment has facilitated the overall improvement.
Ms E reported that Z engaged very well in therapy, had expressed a fear of the father and that she is happy to see him so long as there is a supervisor present. Ms E stated that art and play therapy had allowed Z to process her emotions, allowing her to regain a sense of control and assisting with emotion regulation. Ms E opined that Z is learning to emotionally regulate herself, is less reactive, and that therapy and a stable environment has facilitated the overall improvement.
During cross-examination, Ms E agreed when it was put to her that the Trauma Focussed CBT therapy undertaken by all of the children except Z, assumes that trauma has occurred, which in this matter was abuse.
Ms E was cross-examined on the purpose of the counselling sessions with the children. When asked whether the purpose of therapy was to deal with trauma they had suffered at the hands of the father, Ms E agreed but added that the outcome of trauma is the children's behaviour towards each other and their reactiveness. When asked whether all the sessions with the children are based on the assumption the father is a perpetrator of family violence towards the mother and the children both physically and emotionally, Ms E responded with 'the fact that there was an AVO, yes'. When asked what an AVO tells Ms E, she responded 'there was enough evidence for an AVO to be taken out'. When prompted again and asked what an AVO tells Ms E, she said 'There was violence in the home'. When asked whether that evidence was Ms E's understanding of an AVO, she agreed. Later in cross-examination, Ms E was asked whether she understands an AVO concerns a fear of violence and not that such violence actually took place, which she said she understands.
Ms E was aware that the charges against the father had been withdrawn and dismissed. Given that understanding, Ms E said that her current sessions with the children surround the children's need to heal their relationship with the father.
Ms E was cross-examined on the structure of her counselling sessions with the children and specifically, whether it has the danger of reinforcing the view that the children have been the subject of abuse, to which she responded, 'It can be viewed that way'. Ms E conceded that such counselling could reinforce a false belief if the abuse did not occur but added that 'the children's story has never changed'.
Ms E was queried on her note taking, giving evidence that she takes notes during sessions and immediately afterwards. Ms E conceded when asked, that her notes do not accurately reflect the entirety of her discussions with the children and are a summary.
Ms E conceded in cross-examination that she had never spoken to the father about her counselling or the children's concerns.
Ms E's counselling session with Y in January 2024 was raised in cross-examination, during which Y was unsettled and unwilling to communicate. That session took place after Ms E's telephone call with the mother in January 2024, when the mother informed Ms E of the Netflix incident and the children's response to that. When asked whether she had further discussions with the children concerning the Netflix account, Ms E said she could not recall and in relation to her session with Y thereafter, said she could not remember the session but that she would have discussed the Netflix incident. Ms E then agreed when asked whether she does not know if she did or did not explore the Netflix incident. Ms E then agreed when asked about whether Y may have been unsettled and unwilling to communicate in that session because she had done something dishonest. When asked whether Ms E explored that at all with Y, she said that that was when Y's behaviour became unsettled and she refused to cooperate. When asked whether Ms E had notes about that session she said she did not, and when asked about when the mother informed Ms E that it was in fact Y who had changed the Netflix account, Ms E said she could not recall. Ms E conceded that the notes of January 2024 are the only notes concerning Y and the Netflix account but when asked whether it reflects the fact it is the only time she spoke to Y about that, she said that was not necessarily true and that she may just not have made notes.
Ms E was cross-examined on her sessions with the children before the criminal hearing. Ms E was asked whether before the hearing, the mother spoke to her about the children having to potentially give evidence, to which she answered she could not recall. She then gave evidence however about discussing strategies to safeguard and for managing anxiety with Y. Ms E said she could not recall speaking to W about giving evidence and also, could not recall what Y had said to her about her anxieties. When asked what Y may have been anxious about, Ms E said that 'kids are always anxious having to talk to Police' and when asked whether she did not remember what Y was anxious about, admitted she did not. This is in contrast to the mother's evidence who said that the children were used to seeing police cars and would not be worried or anxious about having to speak to the Police.
During cross-examination, Ms E agreed with the question of whether, in her observation, the children are attuned to the mother's emotions. When asked the proposition that when the mother is sad the children would also be sad, Ms E replied 'not all the time'. The cross-examination then explored the children's attendance at Ms E's sessions. Ms E gave evidence that when waiting for her before sessions, Z is usually on the mother's lap and the other children are physically close to the mother. She also said that in terms of the counselling sessions, Y is usually on her own whilst X and Z are together, but 'it changes'.
During cross-examination, Ms E was queried on the children's special needs. Ms E said that her evidence from the children's paediatrician was that W suffered from ADHD and struggles to self-regulate, and that the other children's needs are very similar. When asked whether all four children had been diagnosed with ADHD, Ms E agreed and confirmed that she received such information from the mother.
Ms E was cross-examined about her session with Y on 12 March 2024, during which Y had discussed her allegation concerning the father's attendance at the school. Ms E said that prior to that session, the mother privately informed Ms E of Y's allegation, and agreed that such information framed her discussion with Y on that day. Exhibit 35 comprises the notes of that session. The notes commence with the mother's discussion with Ms E and in the section concerning her session with Y, starts with Y 'relayed above info to me'. When asked whether Y 'relayed above info' meant that Y relayed the information the mother had told Ms E, she said 'yes in her own words'. In Ms E's notes, she says that it did not appear that Y was lying in any way and genuinely believed what occurred, but that the story did not make sense. Ms E was cross-examined on that opinion and elaborated, saying that the fact that no one was around when Y allegedly saw the father at the gate, the fact that the children attended a small school, and the fact that Y did not tell anyone raised her suspicions as Y is typically 'very forthcoming'. Ms E agreed when asked that she suspected Y was not telling the truth. Ms E said that she discussed her concerns with the mother and that she had suggested to the mother that the Police investigate the incident first, rather than having Y interviewed.
Ms E's next session with Y, being 19 March 2024, was then explored in cross-examination. Before this session, Ms E said that the mother advised her the father was 'cleared' of Y's allegation, as he was at work on the day alleged by Y. Ms E agreed in cross-examination that Y attended that session in a good mood and herself raised the issue of the father at the school. When asked whether Ms E then explored the fact that Y's allegation was untrue, she said that she attempted to but that children typically change the subject if they do not want to talk about something. She agreed when asked however, that Y did tell her that the father had not been back and that she was happy about that.
Ms E was also cross-examined about her session with Y on 26 March 2024, being Exhibit 33, and where Y is in a good mood and raised the issue of the father attending the school. Ms E agreed when asked that at that stage, Y still believed the father had attended the school, and that Y herself had raised the issue during the session. When asked whether Y's initiation would suggest a willingness to speak about the issue, Ms E said 'not necessarily, children make statements and move on'. When asked whether during that session, Ms E had decided it was not appropriate to reassure Y or make her feel safe that the father was not at school, she responded with 'just cause it's not in my notes doesn't mean it didn't happen'.
Ms E was cross-examined briefly on her discussions with Ms C as part of the family report assessment. Ms E confirmed that Ms C informed her as to W's presentation during the observation session with the father. When asked about her view that W's behaviour during the observation session was 'odd', and as noted by Ms C in her report, Ms E said that the other children had told her W had been behaving oddly. When asked about the fact that Ms E did not mention the oddness of W's behaviour at the family report interviews in any of her session notes, Ms E said that the sessions go for 45 minutes and that it was not possible for her to write everything down. When asked about whether W's first time seeing the father would be significant, Ms E said 'Yeah, however if I didn't write it down I didn't write it down'. She then added that W had told her of her 'strange' behaviour during the observations and 'something along the lines of I don't know why I behaved like that'. In clarifying why W's behaviour was odd, Ms E said that W said she had been 'very dysregulated, angry with everyone in the room particularly mum' and that she was not participating the way she normally would. Ms E confirmed that W's account was related to her observation session with the mother, that W felt bad about not behaving in the session with the mother, which was the oddness. It was then confirmed during cross-examination that W's oddness was not in relation to her behaviour with the father.
During cross-examination, Ms E was asked about the children's discussions with her concerning their supervised time with the father. When asked whether from recent sessions, the children appeared to be enjoying their time with the father, Ms E said 'there's been no issues'. When asked whether she would agree that in recent times, the children have expressed positive experiences about the father, Ms E said 'it's neither positive nor negative'. Ms E was informed of the mother's earlier evidence that the children generally enjoy their time with the father, and agreed when asked, to accept that her report only identifies the negative elements each child had said about the father. When asked whether she accepts the children have made positive reports concerning their time with the father, she said that 'I can only write what the children tell me'. When asked again, specifically whether Ms E accepts that in her notes there are positive reports concerning the children's time with the father, she said that her notes are 'factual', the children simply tell her what they did and that as she does not have the supervised notes, she cannot comment on what actually occurs during visits.
Ms E was asked about the nature of trauma counselling with children and whether she ever challenges their narrative. Ms E said that she does challenge them in some instances but noted that counselling is different to police interviews, and that it is more about working with the children's experiences. When asked whether it is important to get to the truth, Ms E said that it is important to acknowledge people's experiences and added that it was not her job to invalidate that but rather, working around the experiences.
While Ms E was a witness in the mother's case, her partisan support and lack of objectivity, as a professional, was concerning. Given that the evidence does not establish, on the balance of probabilities, any of the allegations of family violence made by the mother, Ms E's treatment of the children and the reinforcement that they have suffered trauma at the hands of the father, in the context of the complex breakdown of these children's family relationships and all that this has entailed, are likely doing the children significantly more harm than good.

[89]

In his first report, Mr D briefly explores the allegations made against the father by the children to the Police and DCJ, and the charges laid. Mr D makes note that 'throughout the consultation' the father 'cried profusely' and vehemently denied all allegations.
In terms of the father's psychological and personality functioning, the father underwent a 'self-administered, multiscale, objective' personality test, the Personality Assessment Inventory ('PAI'). Mr D opined that the father's PAI clinical profile suggests that he portrays himself as relatively free of shortcomings to which most individuals will admit, is inwardly troubled by self-doubt and has misgivings about his adequacy. Mr D said that the father admitted he was self-conscious in social situations and when considered in conjunction with the PAI, opined that the father has a poor sense of identity that results in his preference to avoid conflict and instead subjugate difficult emotions that may 'culminate to resentment'. He added that the father's inability to stand up for himself assertively may have led to the occasional 'inappropriate expression of anger' and that the father had admitted how at times he lost his patience with the children, particularly when rushing and the children were not complying.
When asked during cross-examination as to whether the father's PAI raises concern that the father does not properly acknowledge the degree of anger he displays to the children, Mr D said that it is about the father's attachment style and how as a 'dismissive', the father inhibits his own emotions throughout life. Mr D elaborated with an example, saying that you will ask the father how he is feeling and that the father will respond positively even when you can tell his body is not. When asked how such thinking impacts the father's recognition or acknowledgment that his behaviour may not be appropriate for the children, Mr D said 'that was then, now I know that's not the case at all'.
In his report, Mr D explored the father's relationship with his own parents. The father described his mother as 'volatile and not at all motherly', and his father as 'predictable, less volatile and fun to be around'. The father also told Mr D that neither of his parents were emotional nor affectionate, and opined that such may be the reason the father minimises his own emotions at times 'apart from anger' and struggles to process the emotions of others, particularly the 'implicit emotions of his female children'.
In terms of treatments carried out by Mr D with the father, he reported having introduced the father to mindfulness strategies that train the mind to become more habitually aware. Moreover, Mr D opined that the father learnt to monitor his self-talk, or internal dialogue, and to pay attention to the quality of internal dialogue to discern whether he is anxious or depressed.
Mr D opined that in many respects, the father had provided the children with grounded functional support and care. To develop a closer emotional connection with the children however, Mr D recommended that the father find his 'comfortable relational place on the warmer end of the emotional spectrum'. Mr D added that the father's abundance of functional care may have operated to the detriment of the children's emotional bond to him. Mr D's final opinion of the father was that he is a 'customer for change' who 'very much' wants a closer emotional bond with all of the children.

[90]

In the updating report, Mr D explains how his involvement with the father has continued to provide 'much needed' emotional and psychological support during a period where from the father's perspective, his entire character has been 'unduly attacked resulting in him oscillating between feelings of anxiety and depression'.
Mr D noted that from the father's perspective, a combination of the children's allegations against him, the financial burden stemming from legal costs and the restricted, supervised visits with the children, had impacted the father's health and overall wellbeing. Further, the father seemed to believe that the allegations against him by the mother, that had been embroiled in both the family and criminal proceedings, had 'significantly thwarted' the father's ability to build a more positive legacy with the children.
Mr D said that since late April 2024, his goal with the father had been to deepen the father's understanding of the implicit and explicit ways his early experiences with his parents unconsciously influenced how he parented his own children. The father told Mr D that although his parents were not affectionate or emotionally comforting, he cuddled his own children and would verbally affirm his love to them.
In his report, Mr D discussed the father's belief that fair and reasonable discipline was essential to good parenting. The father reported to Mr D that throughout the marriage, the mother would phone the father so that he could discipline the children when she asked and that if he did not do so, she would get angry at him.
In his report, Mr D refers to the mother's allegations surrounding the father's punishment of the children as relayed to Ms C. Mr D said that the father admitted to occasionally smacking the children, but not the punishments as outlined by the mother to Ms C. Moreover, Mr D queried that where the mother's allegations are accurate, why did she not report the abuse to the DCJ and Police.
Mr D also refers to the mother's allegation to Ms C that the father disconnected her from her family and friends and noted that the inference therein was that throughout the marriage the father perpetrated violent and coercively controlling behaviour towards the mother and the children. In response to that allegation and inference, Mr D notes how in 2015 the father supported the mother's appearance on a television show. He opined that generally, coercive and controlling males would be significantly threatened by the thought of their partner being so publicly exposed.
During cross-examination, Mr D expanded on this point, adding that a 'coercive and controlling violent partner' would not accept that their former partner may want relationships with other people and 'allow that to happen'. Accordingly, during cross-examination, Mr D opined that the father was not a perpetrator of 'coercive and controlling violence' as the mother would be terrified to go out 'and do those things'. He opined that in his experience having worked with 'very violent men', it is highly unlikely someone violent or threatening would allow 'that level of freedom'. Specifically in relation to the mother's claim that the father disconnected her from her family, Mr D stated that the father was the one who chose to cut all ties with his mother and sister due to the 'acrimonious' relationship between the paternal grandmother and the mother.
When asked during cross-examination about the nature of coercive and controlling behaviour causing a woman to be terrified to leave the relationship, Mr D agreed but said that such a dynamic did not apply to the parties' relationship. He said that the mother decided to separate and was involved with another person, and that 'coercive controlling and violent males' would 'very rarely put up with that'.
During cross-examination and in relation to his assessment surrounding whether the father was a perpetrator of any violence or abuse, Mr D said that his account of the mother's 'side of the story' was based on his interviews with the father and Ms C's Family Report. Mr D conceded that he did not seek to directly engage with the mother but said that he offered his services for family therapy, which was declined.
In his updated report, Mr D discussed further treatments he has carried out with the father since the report of April 2024. Mr D said that he has encouraged the father to develop a more intimate understanding of how his conscious mind impacts his subjective mind and behaviour by paying attention to 'hetero-suggestions', being suggestions from persons in early childhood that formed his beliefs in adulthood. Mr D elaborated on this by adding that statements like 'children should', 'men should' and 'women should' become autosuggestions, the drivers of individual self-talk.
In terms of the father's progress, Mr D opined that in addition to acknowledging and regretting how he would lose his patience and occasionally smack the children, the father also accepts that he may have been more emotionally reactive and less patient with the children after being informed by the mother that she wanted to end the marriage and 'commence an intimate relationship with a woman'. The father disclosed to Mr D that he was devastated by the loss of his partner and the sudden fracturing of his family. Mr D opined that as the father's sense of belonging and identity diminished, the mother asked the father to meet her new partner and that when he refused, she berated him.
In his report, Mr D touches on the mother's intimate relationships after separating from the father. The father told Mr D that the mother's introduction of the children to her new partner disregarded the father's feelings and the emotional readiness of the children.
Mr D attempted to address the recommendations of Ms C but prefaced by stating that there is difficulty in doing so because the father denies most of the allegations alleged by the mother and the children. Mr D agreed with Ms C's questioning of the mother, specifically where the mother despite alleging the father's emotional instability and regular threats of suicide, negotiated an arrangement for both parents to spend time with the children. Mr D touched on some of Ms C's recommendations, including her recommendation that the father commence family therapy with the children to begin the healing process. In response to that recommendation, Mr D said that it took close to six months for his first session with the children to take place in May 2024. That in conjunction with the fact that the father had only managed to undergo three sessions with the children, caused him to believe the mother thwarts the healing process by delaying the rebooking of appointments.
In regard to the allegation that the father had made repeated threats to end his life, the father told Mr D that he may have said words to that effect when he was frustrated or overwhelmed but had never seriously contemplated the idea nor developed a plan to do so.
During cross-examination, Mr D opined that the father was not aware of the children's emotional 'ways of being'. Mr D said that he had spent months with the father, helping him to understand his body and his anger, to develop skills, and to understand his own attachment style against other attachment styles, to allow the father to develop a more emotionally connected relationship with the children. Mr D said that he has been working on helping the father understand himself more in order for him to develop a 'much more' emotional connection with the children.
During cross-examination, Mr D was asked about the father's mental health. In relation to anxiety and depression, Mr D said that the father felt his entire life had been turned upside down, that he no longer belongs to his family and that he does not feel like he belongs. Mr D said that the father told him there were times where he felt like ending his life but had also said he would never do that and would never do that to his children. Mr D added that 'People often may say something it doesn't mean they'll carry it out'.
Mr D makes recommendations at the conclusion of his report. Instead of a continuation of family therapy, underpinned by 'systemic circular questioning that focuses on relationships between individuals within a group', Mr D suggests couple therapy involving one child and one adult with the focus exclusively on the child's thoughts and feelings. In terms of the healing process, Mr D opined that the healing should commence with W and the father, followed by X and the father and then perhaps a joint session comprising Y, Z, and the father. Mr D also opined that as the AVO's concerning the father and the children had all been withdrawn or dismissed, supervised visits with the children are no longer necessary. Mr D clarified his view during cross-examination, stating that he considered the fact that there did not appear to be any 'evidence or major evidence' of the violence alleged against the father. Mr D conceded during cross-examination that he had applied his general experience in assessing coercive or controlling violence, and his general experience in relation to whether supervised access was no longer necessary. Mr D disagreed when asked, as to whether such an approach rendered his report flawed. Finally, Mr D recommended that the mother and father attend post-separation counselling, to allow the parties the opportunity to improve their communication and focus on the children's needs. Mr D clarified during cross-examination that such counselling is different to couples' therapy.
When asked during cross-examination about whether the father was better equipped now to deal with the 'everyday frustrations of life', an example being the children's tardiness, Mr D opined that he 'certainly is now'. When asked whether he was confident the father could manage the everyday stress of raising children, Mr D responded with 'absolutely', reiterating his opinion that the father is a 'customer of change' and adding that he has every faith in the father, who is an individual that wants to 'learn and become a better human being'.
There is little to no evidence that Mr D has any specialised training, knowledge or experience with family violence, and his evidence of how violent men behave is at odds with the Court's learning and understanding of the nuances of family violence.[140]
Except as regards to specific matters which relate to the treatment of the father, the Court places no weight on the many opinions proffered by Mr D in respect of family violence in general, and in respect of whether the father was a perpetrator of family violence in circumstances where the factual bases for such opinions has not been set out nor established.

[91]

A Family Report was prepared by Ms C, dated 3 July 2023.
In the report Ms C stated that she interviewed both parties, the children, Ms J and Ms M, and observed the mother with the children, Ms J and Ms M, and the father with the children. Ms C also stated that she had phone calls with the following individuals as part of her assessment:
- Mr D, the father's psychologist;
- Ms FF, W's teacher;
- Ms GG, Y's teacher;
- Ms HH, X's teacher;
- Ms E, the children's trauma counsellor;
- Ms JJ, Z's teacher;
- The mother; and
- The father.[141]
At the time of the report, Ms C noted that since June 2022, an ADVO had been in place protecting W from the father and that he had not seen or spoken to W since that date. Ms C also noted the parenting arrangements in place at the time, namely that the children lived with the mother, Ms J and Ms M, and spent supervised time with the father at Suburb Q Library for two hours every Sunday.
Ms C had regard to supervised contact reports from O Contact Service pertaining to the father's time with X, Y and Z.[142] Upon review of those reports, Ms C opined that the children seemed to enjoy their time with their father, that the father appeared well-prepared for each visit and demonstrated an ability to shift his attention between the three children. Ms C also noted that the three children sought physical and emotional connections with their father throughout the visits.[143] During her oral evidence, Ms C advised that she was provided with recent supervised contact reports. Ms C agreed with the proposition put to her that the reports are supportive of the children having positive time with the father during supervised time.
During the interviews, the mother provided an account of the weekend in May 2022, when W alleged the father assaulted her, and W's subsequent disclosures to the school counsellor.[144] Ms C discussed the allegations with the father, who denied them and said that he was both 'horrified and mortified at the allegations' and 'worried sick for [W], for all the kids'. The father also told Ms C that he had 'trouble making sense' of W's allegations because post-separation the parties co-parented and communicated well, and the mother did not voice concerns about leaving the children with him. The father said to Ms C that he was even invited to the maternal grandparents' house on Australia Day in 2022, and that he had the maternal grandparents over for Z's birthday in 2022. The father told Ms C that he believed the mother was focused on financial settlement and that when this did not occur how she wanted, 'it escalated and escalated and escalated'. Ms C opined her impression that the father was suggesting that the mother fabricated the allegations to exclude him from the family.[145]
In the mother's interview, Ms C noted that the mother maintained appropriate eye contact, engaged easily but seemed to choose her words carefully, with her speech initially stilted and formal before relaxing. Ms C observed that throughout the interview, the mother displayed heightened emotion and often swore to emphasise her point. When discussing the family law proceedings, the mother told Ms C that the father 'needs to get well' before he can have unsupervised contact and 'became heightened, teary and distressed at this point, and shouting that she was:

[93]

The mother also told Ms C that she would consider unsupervised time if the father addressed his mental health and that she would love for the father to be psychologically well so she could have every second weekend to herself.
In the report, Ms C set out details of the mother's personal history, including that she was currently on stress leave from work due to bullying and harassment, with seven years of leave approved. The mother detailed her past health complications which involved emergency surgery at times, and expressed to Ms C her frustration with the father who she claimed did not miss any work during the period, that when members of the school community dropped food at the door he would not allow them in the home, and he cancelled support through the KK Organisation. The father denied the mother's account to Ms C, stating that some of the individuals who dropped off food came into the house and some did not. The father also said that they 'needed all the help [they] could get' and that if the KK Organisation offered help he would have received it.[146]
The mother informed Ms C that she was currently taking prescribed medications, being Lexapro, Endep and Melatonin, to manage her mood, anxiety and sleep.[147]
During her interview, the mother discussed her relationship with Ms J and Ms M's father. She told Ms C that the relationship lasted 10 years (including two months of marriage) and ended when her ex-partner allegedly brought drugs into the home. The mother also said that her ex-partner was violent and assaulted her on one occasion outside Ms J and Ms M's school. After the incident at the school, the mother told Ms C that she immediately attended the police station and sought an AVO, and then sought a further AVO after he 'cut the children's hair during his time with them'. In her report, Ms C referred to NSW Police records concerning the incident alleged by the mother. Ms C stated that the mother's ex-partner and the school principal provided a different account of the school incident. Ms C opined that 'similarly, the twins' father provided a plausible, differing account in relation to the hair-cutting incident'.[148]
The mother discussed her post-separation relationships with Ms C, namely the relationship with Ms L that the mother was 'unsure how to define' but was 'emotionally intimate', and her relationship at the time of the report, being with an unnamed male that had recently separated from his wife. The mother denied to Ms C that her current partner had controlling or abusive behaviours, said that he stays at the home 'often' and that the children are 'very fond of him'. During cross-examination, Ms C admitted her concern with the speed in which the mother had introduced the children to Mr EE. After being advised of the mother's evidence concerning Mr EE, namely that he was a 'safe person' and that the children were not fearful of him, Ms C said she was concerned about the mother's judgement.
Ms C opined that the mother's romantic relationships post-separation raises questions about her need to be in a relationship, and her insight into the children's potential experience of this. Ms C viewed the mother's relationship history as suggestive of a pattern of her seeking a partner possibly as a way of avoiding emotional distress or seeking validation.[149] During cross-examination, Ms C vocalised concern surrounding how the mother conceptualises the ending of relationships in her life. Ms C identified a pattern wherein the mother makes 'really poor choices' in relationships, but also a pattern in which the mother holds no responsibility for difficulties within a relationship and their breakdown.
In her report, Ms C conducted a psychological assessment of the mother. The mother told Ms C that she was diagnosed with 'delayed postnatal depression' in 2008 or 2009, was hospitalised for a night in a mental health unit after taking three or four anti-anxiety tablets instead of one, denying it as a suicide attempt and rather that she was exhausted and 'wanted time out... to zone out, like a Valium, just needed peace'.[150] The mother stated that the workplace bullying she experienced caused her a post-traumatic stress disorder diagnosis by her general practitioner, psychologist and psychiatrist, and that since consuming Lexapro, her mood had gone from 'very overwhelmed, emotional, crying a lot' to 'stable'.[151]
In her report, Ms C stated that the mother 'struggled to identify' any characteristics of the father that make him a good parent, and that he portrays a false image of himself in supervised visits, as he was not an involved parent when the parties lived together.[152]
In the father's interview, Ms C said he engaged easily, maintained appropriate eye contact, had focused responses and like the mother, initially had formal speech but then relaxed. Ms C also stated that the father arrived promptly to his appointment, and told her that he was mindful of not attending early to avoid seeing the mother.[153]
The father discussed his relationship with W, acknowledging that it would take time to rebuild, and would require counselling and reintegration of W into supervised visits with the other children.[154]
In the report, Ms C set out details of the father's personal background, who described a positive upbringing, separation of his parents at the age of 12, around when his father attended rehabilitation for alcohol abuse. Ms C also discussed the mother's allegations of the father's alcohol abuse, which the father denied, adding that at the time of the interviews, he had last drank alcohol in October 2022 and had decided to stop drinking from that point. The father also informed Ms C of his diagnosis of a medical condition and how he cannot drink much alcohol as a result. Ms C considered the father's CDT test results dated March 2022 and June 2023 and opined that they did not indicate problematic alcohol use.[155]
In her report, Ms C conducted a psychological assessment of the father. The father said that he had never been diagnosed with a psychological condition and has always been 'open' in the annual employee 'well-check' assessments as he 'would want to know if he was not coping psychologically'. The father then acknowledged to Ms C that his work had affected him psychologically but denied any significant impact. When prompted to expand on the psychological impact of his work, the father could not say how his work affected him. The father also told Ms C that he worries 'about everything' but that he does not become overwhelmed, and Ms C opined that the father's account suggested worry about his children to a normative extent.[156] Ms C's overall impression of the father's psychological functioning was that he has limited insight into his psychological experiences and that although he reports functioning well, she questions whether such is a true representation of his psychological functioning or rather, avoidance of emotions.[157]
During his interview, the father discussed each of the children and his relationship with them. The father raised concern that the mother interfered with X's interest in sporting activities to disrupt his relationship with him. The father said that X eventually did not want to play sports and that the mother's 'attention then moved onto [W]'. The father explained to Ms C that he used to have a good relationship with W and that she would disclose home matters to him, like the mother's partner attending the house. The father said that W then started being bullied at school and she 'shut down' towards the father.[158]
Ms C asked the father about his parenting strengths who described himself as 'understanding, loving, tolerant, caring', and his primary parenting weakness being that he gets frustrated and angry, especially when hurrying the children to go somewhere. In terms of discipline, the father said that he primarily spoke to the children but also removed iPads for X and W.[159] The father also discussed the mother with Ms C, describing her mothering positively and noting that she is important to the children and a 'very lovely person'.[160]

[95]

W was next to be interviewed. Ms C opined that W engaged easily but closed down when questions became too difficult, impressed as thoughtful, often paused before responding, and avoided eye contact at times.[162]
W described the mother as fun and energetic and that the best thing about her is she is kind and helpful. Ms C opined that when asked the worst thing about the mother, W initially deflected and then when prompted, said that she gets frustrated or annoyed with the mother when she yells, which can be loud and scary and at times, causes W to go to her room to avoid it.[163]
When asked about the father, Ms C noted that W paused for a long period, looked down, and said the father 'gets a bit cranky sometimes'. W also said that the best thing about the father was that he used to take her on walks, to the park and to buy milkshakes. When asked about the worst thing about the father, W identified his anger and elaborated by saying he sometimes slammed cupboard doors, yelled and ground his teeth.[164]
Ms C attempted to discuss the informal parenting arrangement that ceased after W's allegations. When asked what happened to make the arrangements change, Ms C noted that W paused for a long time, did not answer, cried and then said she did not want to talk about it.[165] Ms C asked W about how she felt not seeing her father and she said that she did not know how to answer the question. Ms C opined however that W was 'clear' she wanted to see her father at the assessment, was not worried about seeing him and wanted to see him for the entire session. When discussing the other children's supervised time with the father, W told Ms C that she believed they should have a supervisor and that she did not know what might happen if the supervisor was not present.[166]
Ms C said that she ended the interview due to W's distress. She opined that W was conflicted about her relationship with her father, has both positive and negative memories of him and her inability to remember information concerning the mother raised questions for Ms C about discussions the mother may have had with the children before the interviews.[167]

[96]

During Y's interview, she told Ms C that she was worried the father would see what she tells her because 'he can be cranky'. Ms C opined that Y appeared aware of the purposes of the assessment, which again raised queries for her as to discussions that may have taken place at home.[168]
When discussing the father, Y told Ms C that he sometimes shouted at her when she got up to go to the toilet at night, that he yelled at her in the mornings and forced her to eat breakfast. Y recounted to Ms C her allegation that the father threw her, said that she told the father to stop but he did not, and that it was not a fun game. Ms C noted that Y elaborated her account to describe the father tricking the children into coming near them, but then stopped, looked to the side, and said 'I don't know... he just swang [sic] me around and kept doing it when I said stop'.[169]
When asked about the family living together, Y said that the father would yell whilst the mother 'was actually talking'. She also said that the mother told the father to stop shouting but that he laughed. Y also told Ms C that she did not know why the parties separated and said 'He just decided to do it. To have visits'.[170]
Y said that the best thing about her father is that he gives them sausages and changes the type if she asks for something different, and the worst thing about him, is that he yells.[171] Y described the mother as 'really nice' and that she always cooks good food and responds to requests for different meals. Y stated that the best thing about the mother was that 'She doesn't yell at us that much. She doesn't smack us that hard. And she doesn't swing us around', and the worst thing was when she has the vacuum cleaner on and sings loudly as she is not a good singer.
In her report, Ms C stated that Y also mentioned the mother smacks the children if she is really angry or sometimes laughs when the children are naughty and smacks them. Ms C opined the latter description to be a playful smack. When discussing the mother's angry smack, Y showed it as an open hand smack, said that sometimes it hurts and she feels scared. Y also said that the mother smacks everyone except Ms J and Ms M.[172] Y said the father also smacked and that his smacks were 'really harder than mum's and [had] more strength to them', pinched them sometimes and grabbed her when 'really angry'.[173]
Y said that seeing the father at the library can be good but sometimes she does not feel comfortable seeing him and gets a 'really bad pain in [her] belly'. She told Ms C that the father sometimes gets angry with red eyes at the library and 'doesn't smack or yell because when the supervisors are there he tries to hold it in'. Y further said that the father sometimes tries to smack them discretely and was unsure whether she would want to see the father without a supervisor present.[174]
When asked about fun memories with the father, Y told Ms C 'Yeah. Wait, no' and said that they went for bike rides. Ms C opined that Y made the bike ride experience out to be something the father forced her to do. Y said she could not recall any fun times when the parties lived together and that she does 'more fun stuff' with the mother.[175]

[102]

Ms C said that her discussion with Ms E focused on W as her notes for the other three children had been provided with little change since their date of production.
However, Ms E did briefly update Ms C on Y, namely that she had seen Y on 13 June 2023, Y said she felt scared of the father's behaviour at the prior visit, 'bouncing her around' and that Y said she told the supervisor the father looked angry that day and did not want to see him again. Ms C noted that 'this aspect of [Ms E]'s understanding is not supported by the documents' and that Ms E does not have access to the supervised reports to assess Y's account. In relation to X, Ms C said that her view of X being highly conflicted regarding his relationship with the father was confirmed by Ms E.
In relation to W, Ms E told Ms C that W is 'very scared' of her father. Ms E also said that when she attempts to explore positive memories of the father, W tends to portray the negative aspects of those memories. Ms E said that W was 'very anxious' about meeting the father during the family report assessment and that after talking with the family, Ms E believed W's behaviour in the family report observation sessions to be 'quite odd'. Ms C said that she provided Ms E with limited information on her observations of W, but told her W was keen to see the father, enjoyed her time with him during the observations and went to lengths to outline positive aspects of her relationship with the father to Ms C. In response, Ms E said that she could see W being jealous of the other children's time with the father and that she is likely curious about the father as she grows older.
Ms E described the mother as a protective mother anxious about the children seeing the father. Ms C told Ms E of the mother's description of W as 'psychologically damaged', which Ms E disagreed with.
Ms C asked Ms E about the possibility the allegations are fabricated or exaggerated, to which Ms E noted the children had independently reported their fear of the father and their language has not changed. Ms E added that she had not ever wondered about coaching.

[104]

In considering the nature of the relationship of the children with each party, Ms C opined a close and loving relationship between the children and the mother and amongst each other. Ms C characterised the children's relationship with the father as 'complicated', opining that the children each wish to have an ongoing relationship with the father but are conflicted due to their past experiences of emotional and physical harm by him. Ms C reported that the children should be an offered an opportunity to have an ongoing meaningful relationship with the father.[187]
Ms C considered the likely effect of any change in circumstances on the children, including separation from either parent. She opined that the children would be highly distressed if separated from the mother. Further and as each of the children had expressed a wish for ongoing supervision with the father, she opined that a transition away from this without appropriate therapeutic support, would likely cause them significant distress and create 'ruptures' in the children's relationships with either party. Ms C also opined that the current arrangement, wherein W does not spend time with the father, would eventually become problematic for the siblings' relationship.[188] During cross-examination, Ms C also said that X's occasionally opting out of such time would impact the siblings' relationships. When asked whether X's reluctance to attend visits could be because he had seen W not go, Ms C responded 'could be' and thereafter agreed with the proposition put to her that X's reluctance may also be due to the special treatment being received by W, being one on one time with the mother when the other children are with the father.
In respect of the capacity of the parties to provide for the children's needs, Ms C opined that although the mother presents a broad capacity, she holds concerns that the mother's capacity to prioritise the children's emotional needs becomes compromised when faced with her own emotional needs. Ms C cited the mother's decision-making in relationships as an example of this. The mother's ability to meet the children's needs is also compromised by the number of children who each have varying needs, coupled with limited support.[189] Ms C opined that the father likely has capacity to meet the children's needs, but that such is undermined by the children's experience of him as aggressive, angry and threatening, those experiences of which he lacks insight. Resultingly, Ms C concluded that the father has not been able to identify the children's needs and meet them. Moreover, Ms C stated that if the father's conduct does amount to physical and emotional abuse, then such would demonstrate he does not have capacity to prioritise or meet the children's physical and emotional needs.[190]
Ms C assessed any risk of physical or psychological abuse and any ill treatment or family violence or other abusive behaviour directed towards the children or a member of the family and the likely impact on the children. At the time of the report, the charges against the father concerning W's allegations of physical abuse were still alive and Ms C opined that she must place some weight on the prosecution's assessment that there was strong enough evidence to lay charges. Ms C considered that the children had reported the father as aggressive and threatening and that their overall accounts was that the father's conduct was different from the mother's. Ms C opined that the children have experienced the father as at the very least threatening and at the worst as having perpetrated physical abuse. She also opined that the hypothesis concerning the mother's coaching of the children to form the view about the father was possible but not a likely explanation because the children's accounts have been consistent across a range of settings, the children's accounts contain consistencies but not uniformities, such as through identical language, and the children have all demonstrated a high degree of confusion and emotional distress about the relationship with the father. Ms C opined that if the children had been coached, they would be more likely to adopt a more fixed negative position concerning the father.[191]
In respect of the mother's allegations of domestic violence perpetrated by the father, Ms C opined difficulty in offering a conclusive comment, as the mother has capacity to exaggerate issues or portrays things in a light more favourable to her. She also opined that when relationships become difficult for the mother, she struggles managing them and finds it easier to sever ties completely. The impact of such behaviour would cause difficulties for her in modelling healthy conflict resolution for the children.[192]
In relation to the mental health of the parties, Ms C raised concern that the mother minimised her psychological difficulties during the assessment. She opined however that the mother's report on her mental health, in conjunction with no concerns being raised by the father, does not make it appear as if her parenting is significantly impacted by any psychological symptomatology. With regard to the father, Ms C opined that he lacks insight into his psychological experiences and that such would negatively impact his capacity to attune to and meet the children's emotional needs. Ms C also referenced the father's psychometric test results when assessing the father, noting that the results suggested the father as experiencing some trauma symptomology, no identifiable concerns surrounding potential for aggression or violence, and moreover that there is weight to be given to the mother's concerns surrounding self-harm.[193]

[107]

In respect of progressing time, Ms C opined that if the family can undergo the therapeutic process suggested by her, that the parties could hopefully mediate and develop a plan for time arrangements. Where the parties cannot reach agreement through therapy or mediation, she noted that the parties may require an updated assessment.
In relation to the father's current time with the children, Ms C opined that where the father cannot develop appropriate insight to repair his relationship with the children, she does not see how he can shift from supervised time. In moving the children's time with the father to unsupervised time, Ms C reiterated her recommendation of family therapy during her cross-examination, noting that it allowed the father to offer repair to the children for their experiences of him within the relationship. Such would also allow the father to demonstrate he has gained further insight into his own psychological functioning. Ms C also offered that consideration could be giving to having a family member supervise time rather than a paid supervision service. However, she later opined during her cross-examination that she did not believe the children presently had meaningful relationships with members of the father's family and so, there would need to be a 'reintroduction process' should the parties transition to family supervision.
During cross-examination, Ms C was asked about how any change to supervised time should look in the future. She opined that time would ideally occur at the father's house, which he can establish as a naturalistic home environment wherein the children can have both down time, go out with the father and engage in activities. Ms C noted that through that, it would not be a constant 'go go go', the father can be more comfortable in his home environment and can set boundaries for the children as the environment is consistent. Such would create a more realistic relationship between the father and the children according to Ms C. Ms C also opined during cross-examination that professional supervision can convey to the children that they are unsafe without a supervisor.
During cross-examination, Ms C agreed that the father had something good to offer the children if he can meet their needs. She also agreed that it would be beneficial for the parties to not engage in face-to-face changeovers if there is still distrust between them. To that end, she agreed that it would be beneficial to the father for changeover to occur at school, adding that it minimises the risk of the children being exposed to direct conflict between the parties and allows him to be involved in an important aspect of their daily lives.
Ms C was asked about safeguards that should be implemented during her cross-examination. She agreed that the ongoing assistance of Mr B would be support that Ms C had a 'great deal of confidence' in. Moreover, Ms C agreed that restraints on alcohol abuse and use of physical discipline would be appropriate. She also agreed that the father having knowledge of the children's medical needs would be a safeguard, as would continued engagement with individual therapy for each parent. Ms C then volunteered her own additional safeguards. In progressing time towards a more naturalistic time, Ms C opined that a process of ongoing supervision to ease the transition would safeguard against allegations that could arise due to the reporting element. In addition, she identified that the children should take their prescribed medication consistently when in both parties' care, and that medication holidays should occur during the school holidays.

[109]

In respect of the mother's allegation that the children become unsettled before and after their time with the father, Ms C said that it was difficult to know what the drivers are given that there is a 'lot going on', such as the timing around drop offs changing, what the children may have been told, the commencement of family therapy, amongst other factors. Accordingly, she opined that it was difficult to know what the drivers are of the children being unsettled, and agreed with the proposition put to her that the children's behaviour may not even have anything to do with spending time with the father.
When asked about what else could be done to help W rebuild her relationship with the father, Ms C reiterated her recommendation of family therapy. She outlined that the family therapy process would offer the father a sort of repair in terms of his relationship with the children, especially W. She referenced the fact that W was 'adamant' to see the father during the family report interviews and that because of that, Ms C believed there is 'scope for work there' that should occur within a family therapy context. Ms C also opined that should the Court decide for the children to have an ongoing relationship with the father, then the 'invitation' for family therapy should instead become a 'this is what's happening' dynamic.
Ms C was queried on the effect on the children if the Court found that the mother does not positively support the children's time with the father. Ms C said that the lack of support from the mother would create a 'bind' for the children, whereby they may feel they cannot speak positively about the father and may feel the need to align with the mother if she is overtly or covertly sending messages to them that their time with the father is unsafe or not to be enjoyed. In that scenario, Ms C opined the children would become further dysregulated and distressed by being placed in the centre of the conflict. She added that this would also create confusion for the children if they were experiencing positive time with the father that is not being reinforced or supported by the mother.
During cross-examination, Ms C agreed that a supervised environment was 'unnatural' for children to have a relationship with their parents. When asked about the effect of ongoing supervision on the children's relationship with the father, Ms C said the relationship would be 'artificial' and that due to the nature of the visits, the venues of which change every week, there is not a lot of opportunity for the children to have down time they need on weekends. Accordingly, Ms C opined that time with the father becomes chaotic and busy, and is a high intensity, artificial environment. Ms C identified a further deficiency in the supervised arrangements, being that it denies the father the opportunity to strengthen individual relationships with the children and meet their different needs. Moreover, she stated during cross-examination that the supervised environment limits the father's capacity to create and enforce clear boundaries with the children because everything he does is reported on and likely to be reviewed through the 'most negative lens possible'. She was also of the opinion that the terms of the supervision should change so that time is more naturalistic, to allow for development of a meaningful relationship between the father and children.
Ms C was asked for her opinion on the orders sought by the mother at final hearing. She opined that it was her impression the children want a relationship with the father wherein they will feel emotionally safe. Accordingly, Ms C was of the opinion that the orders as sought by the mother were not consistent with what the children would want in a relationship with him. Specifically, Ms C opined that supervised contact four times a year as proposed by the mother would result in a limited relationship between the father and the children.
Ms C opined that she was concerned about the father's anger management, which she said she would not conceptualise as 'anger management' but rather 'an outburst of sorts'. She added that the father does not need anger management counselling but should instead gain insight into his psychological experiences to understand how others experience him. Such would allow him to attune to the children's needs. Ms C agreed with the proposition put to her that the father may have angry outbursts due to his inability to properly recognise his emotional experiences.
Ms C was asked about the evidence given by the father that he occasionally yelled and smacked the children. Ms C said that the children had spoken to her about that fear and that the father should address that behavioural problem prior to commencing unsupervised time with the children. When asked whether the father should attend a men's behavioural change course, Ms C replied 'maybe' but that greater benefit would be found in continuing therapy as he needs to address his psychological needs to create change. She opined that she did not think a men's behavioural change program would help.
Ms C was queried on the video taken by the mother of W on 16 May 2022. Ms C opined on W's demeanour and appearance in the video, namely that she was not 'particularly distressed' at the time. She also agreed with the proposition put to her that W looked to be smiling towards the end of the video and twirling in her chair. Ms C held concern that if the other children saw the mother filming W, they would be brought within the conflict of the parties and become aware of the allegations raised.
Ms C agreed during cross-examination that the mother has difficulty accepting the children developing a relationship with the father. Should the mother continue her attitude, Ms C opined that it would place the children in the middle of the conflict and make it difficult for them to pursue that relationship whilst feeling safe. She further added that such may also lead to negative impacts in their relationship with the mother and may rupture that relationship as her view of the father will not fit their own experience.
Ms C was also asked about the photographs sent by W to the mother over text message on the weekend of 26 May 2022 to 31 May 2022. Ms C opined that the bruising in the photographs would be concerning if they were caused by the father and that if they were not caused by him but W said they were, such would also be concerning.
Ms C was queried on the mother's alcohol consumption. Ms C admitted that she was not aware of the mother's comments to her psychologist concerning her alcohol consumption in 2023. Ms C referred to her notes from her session with the mother and said that the mother advised her that she was a 'weekend drinker' and that her alcohol consumption had never been a problem. Ms C opined that dysregulation and disinhibition are typically seen in somebody drinking to the extent reported by the mother to her psychologist, and was concerned about the mother's ability to emotionally self-regulate, her heightened emotions that may result, and capacity for supervision of the children and driving a motor vehicle. Ms C admitted the mother's level of drinking as problematic and agreed when asked whether the consumption could influence the mother's parenting choices.
Ms C was informed of the mother's behaviour during the hearing, namely that she cried every day and would breathe quickly, and asked whether such behaviour is indicative of someone that would not support the children's relationship with the father. Ms C agreed with the question and when asked for an explanation, said that dysregulation was also present in the mother, who has difficulties regulating herself.
Ms C was also informed of the father's behaviour during the hearing, namely that was measured and behaved in the witness box. Ms C was then queried on whether the father, who may have been an experienced witness due to the nature of his work, was able to hide his 'nastiness' as alleged by the mother. Ms C stated that if the father was hiding such behaviour, there would have been some sort of slippage in the process. Ms C then said that she did not pick up on any moments of slippage, but did pick up on the father's superficial recounts of his relationship with the children and his lack of insight.
When asked as to whether the mother lacked insight concerning the children's needs, Ms C was not concerned about 'insight' but rather how the mother views things negatively. For example, Ms C noted how the mother described W as 'permanently damaged', an account that did not match that of the school or Ms E.

[121]

The father had previously been charged with criminal offences relating to the children. All such charges were withdrawn. The criminal proceedings were dismissed. The father has been the subject of an internal investigation, and was not found to have engaged in any wrongdoing.
Each of the parties is a public servant. Due to their training and professional experience, they are each presumed to know and understand criminal behaviour, and what the law prohibits. The mother has demonstrated a very strong capacity to engage with the supports which are available, not only for herself but also for the children. This is a strong protective factor.
While there have been applications for ADVOs for the protection of the children, a final ADVO has never been made for their protection. The father has consented to a final ADVO naming the mother as the protected person, such an order having been made after the criminal proceedings against the father were dismissed. This is a protective factor for the mother.
The children all attend school and have access to their teachers and the school counsellor, all of whom are mandatory reporters. W's school is aware of the allegations which have been made. These are protective factors for the children.
An order prohibiting each of the parties from consuming alcohol to excess is an appropriate order to be made, such that it will put in place safety measures which will tackle head on the concerns raised in the evidence about the parties' alcohol consumption.
Continuing psychological engagement for each of the parties through their treaters will ensure that they each have some scaffolding to support them in dealing with challenges arising from the implementation of orders for the children to spend time with the father. The Court notes that both parties' evidence is such that they will continue to attend.
Injunctive orders preventing any physical chastisement of the children will ensure the children's safety and addresses, at least in part, the concerns raised by the mother's evidence about the father's lack of control and his admissions about smacking the children in the past.
Non-denigration orders and orders preventing the discussion of these proceedings with the children will ameliorate the risks which have been identified in the mother's home, and which may arise in the future in both parties' homes. Likewise, an order preventing the children's continued engagement with Ms E except on the recommendation of a medical practitioner and with the parties' express written agreement, will address any potential ills which may be visited upon the children as a consequence of the reinforcement of the idea that the father has been violent and that they have suffered trauma as a result. This will also reduce the risk of any false narratives of the father to the children being perpetrated.

[122]

At the time of the family report interviews, all four children had reported that the father was 'aggressive and threatening' towards them.
There is no evidence that the children have expressed views other than those which are recorded in the family report, and which have been noted elsewhere in these reasons.
The ICL met with the children prior to the commencement of the final hearing. X, Y, and Z indicated to the ICL that they were happy to spend time with the father but did not express a wish for such time to progress to unsupervised time. Neither X, Y, nor Z could provide the ICL with a reason for why time with the father should not become unsupervised.
W's presentation at the family report interviews was in contrast to the mother's description of her and indeed to Ms E's description of her. To Ms C she strongly expressed the view that she wanted to see the father, which she did.
The totality of the evidence, and in particular that of Ms C, based on the family report interviews and observations, raises significant concerns as to the children not having the emotional support and freedom from the mother to have a relationship with the father.
The children currently have a complicated relationship with the father, wherein they each wish to have an ongoing relationship with him but are conflicted due to their said previous negative experiences of him.
The children's views of the father are confused. They have in turn been fed by what may be described as a false and constructed narrative about the father, which has been reinforced through therapy with Ms E, as well as discussions which the children and the mother may be having such as the video recording of W in the presence of the other children. Such narratives have also been reinforced by the Police involvement with the family, and the interviews of the children by the Police.
The mother's attitude towards the father and the children's relationships with him, is a further contributing factor to the children's reluctance to spending time with the father. It also has the effect of placing the children in the middle of the parties' conflict.
1. As noted earlier, neither Ms E nor the mother spoke to Y about the truth of what she alleged in respect of the father attending her school, or the fact that it simply did not happen. In this regard, Y was and is permitted to continue in her false narrative that the father was acting in a sinister and threatening manner. Such a narrative is likely to affect Y's overall attitude towards her father. It has possibly also affected all of the children's perceptions and attitudes towards the father.
2. Furthermore, in respect of the allegations made by the mother that the father hacked into her Netflix account, notwithstanding that the father had no involvement whatsoever, the children believed or were led to believe that the father was acting in a sinister and threatening manner and were subsequently frightened. There is no evidence that the mother ever disabused the children of these notions.
The mother's attitude is reflective in her account of W's refusal to spend time with the father, namely that she travels to the supervised visits with the other children and becomes anxious and refuses to engage. This account contrasts with Ms C's observation of W during the family report sessions, where she was noted to be keen to engage with the father. This distinction raises concern that W does not feel she has the mother's support to have a relationship with the father.
The children have been spending supervised time with the father for close to three years. There is no doubt that the idea the father is a risk would breed reluctance on the children's part in spending time with him. Furthermore, there is inconsistency in how the children currently spend supervised time with the father.
W does not attend visits and X occasionally opts out of visits. There is a possibility that X's reluctance to spend time with the father stems from his observation of W not spending time, or even, W receiving special treatment by way of one-on-one time with the mother during that time. There is a likelihood that the children are impacted by each other's varied engagement with the father.
Continuing supervision of the children's time with the father, while on the one hand offering the children some relief, will also entrench a view that the father is a person whom they need protection from and who will, unless he is being watched, hurt them.
The evidence does not establish that the children spending time with the father which is not supervised, would unreasonably and negatively impact their safety and indeed, as noted earlier, the evidence does not establish that the father poses an unacceptable risk of harm to the children.

[130]

The father does not pose a risk of unacceptable harm to the children. The evidence does not support an order for ongoing supervision of the children's time with the father, and the orders sought by the mother.
The evidence does support an order for the children to spend meaningful time with the father.
The ICL proposes at most alternate weekends and half school holidays. The father proposes alternate weekends and time in the 'off' week. Neither of these two proposals are in the children's best interests.
It is now 7 months since the close of evidence, and five months since submissions were made. The children are older and no doubt more mature than at the time of the Family Report interviews.
It is presumed that the children have continued to spend time with the father in accordance with interim orders and that family therapy has continued while judgment has been reserved.
There remains significant distrust between the parties, and this carries with it the risk that the children would be placed in the midst of the conflict. It is primarily for this reason that less changeovers and more consistent time in each of the two households will benefit the children, with a short and graduated lead in period. The children will spend about 8 weeks of regular weekly daytime with the father, which will assist them in being comfortable with the father and spending time with him, before progressive to overnight time. In the Court's assessment, it is appropriate for the children to commence sending alternate weekends with the father from the start of term 4 of school this year. By then, there would have been a lead-up time of about 3 months.
In all of the circumstances, the Court finds that the children ultimately spending 4 nights per fortnight with the father during school term, and half school holiday, is in their best interest. This will allow them time to settle into the father's home, while still spending the majority of their time in the mother's home. It will provide stability and safety for the children, in allowing them to have a relationship with both of their parents while retaining their primary residence in the mother's home.
In respect of special days, such as religious celebrations, birthdays and Father's/Mother's Day, the children will spend time with their parents as those special days fall during the time which is occurring in accordance with the final orders. The parents always have the option of coming to an agreement about those special days and indeed, about other days as may be suitable.
The Court appreciates that this will mean that in even numbered years, the children will be spending Christmas with the father and in odd numbered years with the mother. For these particular children, and given the parental attitudes as have been found, this will be a safer and more stable arrangement.

Wasley & Wasley (No 2) [2025] FedCFamC2F 997 (21 July 2025)

At a glance

Court

Decision date

Source

Judgment (306 paragraphs)

Legislation Cited (2)

Cases Cited (3)