Federal Circuit and Family Court of Australia
(DIVISION 2)

Baier & Pitter [2024] FedCFamC2F 586  
File number(s):	BRC 16352 of 2022	
		
Judgment of:	JUDGE COPE	
		
Date of judgment:	14 May 2024	
		
Catchwords:	FAMILY LAW – Parenting – Where father submits the court has no jurisdiction to determine child related proceedings – Where the father uses sovereign citizen terminology  – Where father previously absconded with the children and regards the children as his property – Where father failed to engage with family report – Where there are mental health issues - Mother have sole parental responsibility – Children to live with Mother – Father to spend supervised time with children – Father restrained from removing children from Mother’s care – Recovery order to issue and lie on file 	
		
Legislation:	Commonwealth Constitution Act 
Admiralty Act 1988
Bills of Exchange Act 1909
Corporations Act 2001 (Cth)
Family Law Act 1975 (Cth) Part VII, ss 60B, 60CA, 60CC, 60CG, 61DA, 65AA, 65DAA, 67U, 67V, 68B
Cestui Que Vie Act 1666
Convention on the Rights of the Child  	
		
Cases cited:	Deiter & Deiter [2011] FamCAFC 82 
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
N v S (1996) FLC 92-655
Napier & Hepburn (2006) FLC 93-303; [2006] FamCA 1316
Nikolakis & Nikolakis [2010] FamCAFC 52
R v Sweet [2021] QDC 216 
Re Magistrate M M Flynn; ex parte McJannett (2013) WASC 372  	
		
Division:	Division 2 Family Law	
		
Number of paragraphs:	180	
		
Date of last submission/s:	5 April 2024	
		
Date of hearing:	4 & 5 April 2024 	
		
Place:	Cairns	
		
Counsel for the Applicant:	Mrs Bassano	
		
Solicitor for the Applicant:	MK Family Law	
		
The Respondent:	Litigant in person	
		
Counsel for the Independent Children's Lawyer:	Ms Lawrence	
		
Solicitor for the Independent Children's Lawyer:	Legal Aid Queensland	

ORDERS
	BRC 16352 of 2022	
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)	
BETWEEN:	MS BAIER
Applicant
	
AND:	MR PITTER
Respondent
	
	INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE COPE	
DATE OF ORDER:	14 may 2024	

THE COURT ORDERS THAT:
1.	The mother will have sole parental responsibility for major long term parenting issues for X born in 2018 and Y both born in 2018 (“the children”) except for decisions regarding long term medical decisions where Order 2 applies.
2.	In the exercise of Order 1 above for the purposes of long-term medical decisions:
(a)	the mother will consult with the father, in writing, not less than seven (7) days prior to any decision being made and seek the father’s input into the decision regarding medical matters or changing the children’s surname. 
(b)	The father will respond once, in writing, to the mother’s proposed decision within seven (7) days of receiving such information.
(c)	The mother will consider the father’s response to any decision proposed; and
(d)	The mother will advise the father, in writing, not less than seven (7) days after any major, long-term decision has been made for the children.
3.	The mother will have sole responsibility for the day-to-day care welfare and development of the children.
4.	The children will live with the mother.
5.	The children will spend supervised time with the father as agreed in writing between the mother and father CONDITIONAL UPON:
(a)	Prior to the commencement of any time with the children, the father must have attended and completed the Post Orders Parenting program in person and must provide the mother with a certificate of completion within 48 hours of receiving such certificate;
(b)	Within thirty (30) days of the date of these Orders, the father must complete a hair follicle test and provide the results of such test to the mother; and
(c)	The father must not be under the influence of illicit substances or alcohol when the children are in his care.
6.	Supervised time in accordance with the above order is to occur as follows:
(a)	In the event the father lives in the City B area:
(i)	The children’s supervised time with the father will occur once per fortnight, subject to availability at the service.
(ii)	The supervised time will occur at the City B Contact Service.
(iii)	The father will be responsible for the entire cost of the supervision.
(b)	In the event the father lives outside the City B area time will occur on the following conditions:
(i)	The father must give the mother fourteen (14) days’ written notice of his intention to spend time with the children;
(ii)	The father will be responsible for the entire costs of the supervision;
(iii)	The father must hold a valid driver’s licence and must provide to the mother a copy of such valid driver’s licence at least forty-eight (48) days before such time is to commence;
(iv)	Supervised time will occur not more than four (4) hours per day; and
(v)	Supervised time will occur on weekends.
7.	The father may communicate with the children by videocall each Monday and Thursday between 5:00 pm and 5:30 pm (noting such time does not mean the entire 30 minutes to occur) or at such other times as advised by the mother, in writing, from time to time.
Recovery Order
8.	In the event that the children are removed from the Mother, a Recovery Order will issue for the return of the children. 
9.	The Recovery Order in accordance with paragraph 10 is to lie in the Registry to be uplifted upon the Mother filing an Affidavit deposing to any removal of the children from her care. 
10.	Pursuant to s 67U of the Family Law Act 1975 (Cth), a recovery order do issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)	to find and recover the children X (born in 2018) & Y (born in 2018) and to deliver the said children to the Mother, or to a place as the Mother and the person effecting such recovery agree to be appropriate; and
(b)	to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.
11.	The Father, his servants and/or agents are hereby restrained from removing or attempting to remove or causing the removal of the children from the Mother's care until further order of the Court.
12.	All Police Officers and agents referred to in this Order be at liberty to proceed on an email copy of this Order.
Restraints
13.	The father is restrained pursuant to section 68B and section 114 of the Family Law Act 1975 from:
(a)	Locating or attempting to locate the mother and the children’s residence;
(b)	Communicating or attempting to communicate with the children’s school or organiser of any extra-curricular activity;
(c)	Attending the children’s school or school event or school function organised by the children’s school/s; and
(d)	Removing or attempting to remove or procuring another person to remove the children from any school, institution or at any other place in which the children attend or are placed by the mother from time to time.
Non-Denigration
14.	That during the time the children are communicating with either parent, the parties will:
(a)	Not denigrate the other party or the other party’s family or associates in the presence or hearing of the children and shall remove the children from the presence of others who may be doing so.
(b)	Respect the privacy of the other parties and not question the children about the personal life of the other parties or family or associates of the other parties or allow a third party to do so.
(c)	Speak of the other parties respectfully and use their best endeavours to ensure third parties do so in the presence or hearing of the children and if the children are present and this is occurring, they are to remove the children.
(d)	Not ask the children who they want to spend time with or live with.
(e)	Not expose the children to any form of family violence or domestic violence.
(f)	Ensure that there is no corporal punishment or threat of corporal punishment to the children whilst in their respective care; and
(g)	Ensure that the children are not exposed to abuse, neglect, or family violence whilst in their care.
Procedural 
15.	Thirty (30) days from the date of this Order, the Independent Children’s lawyer be discharged.
16.	All extant applications be removed from the Pending Cases List. 
THE COURT NOTES THAT: 
A.	Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

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

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

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

REASONS FOR JUDGMENT
JUDGE COPE
INTRODUCTION
1	The court is asked to determine the parenting arrangements for the children, X and Y both born in 2018 and currently five years old. 
2	The applicant mother is Ms Baier who is currently 35 years old. The respondent father is Mr Pitter who is currently 36 years old.
3	The parties commenced living together in 2016. On the mother’s evidence, they separated in early 2021. On the father’s evidence, they separated in mid-2021 however he conceded under cross examination that they were living in separate states during that time.
4	The mother has re-partnered with Mr C who is the father of a 14-year-old child. The father had re-partnered with a lady named Ms D, but his evidence is that he is no longer in that relationship.
5	At the commencement of the hearing, the father, who was not legally represented, and was provided with the usual explanation as to how the process works at a trial. The father was also reminded of the limitations arising from a s 102NA banning order. Specifically, the father was reminded that he was unable to cross examine the mother directly but was otherwise able to engage fully in the proceedings.
6	The father made an oral application at the commencement of the hearing as to the jurisdiction of this court to hear children’s matters. He was advised that the court would hear submissions about those matters at the conclusion of the trial and deal with that in the written reasons. He was content with that process.
Outline of Procedural History
7	The matter first came before the court after the mother filed an urgent Initiating Application on 30 December 2022 seeking that the application be listed for an urgent hearing on an ex parte basis and that a recovery order and location order issue for the return of the children.
8	The matter was heard on an ex parte basis on the same date and interim orders were made that the children live with the mother, the father be restrained from removing the children from the mother’s care, any location that the mother places the children or approaching the mother and/or the children. The Senior Judicial Registrar also made an order to recover the children and deliver them to the mother forthwith. The children were recovered from the father on 30 December 2022.
9	The father filed Response material on 31 March 2023.
10	On 24 January 2023, an Order was made in chambers that the matter be allocated to the Evatt List and an Independent Children’s Lawyer was appointed.
11	The matter was then listed on 30 January 2023 where an order was made for a Child Impact Report to be prepared. The Child Impact Report was released to the parties on 4 April 2023. 
12	The Child Impact Report recommended that the children remain in the care of the mother. The Court Child Expert further recommended that the father submit to a mental health assessment and that information be obtained from E Hospital in relation to the father’s mental health admission. Further recommendations were made that both parties complete parenting courses, the father complete a men’s behaviour change program and the parties submit to hair follicle testing.
13	Interim Consent Orders were made on 6 April 2023 by a Registrar requiring the parties to complete various parenting courses, providing for the father to have telephone communication with the children each Tuesday and Friday and for a psychiatric assessment of both parties. Further orders were made by the Registrar on this date which included that the father submit to hair follicle testing and a s 62G Family Report be prepared.
14	The father filed an Application for Review on 27 April 2023. On 13 June 2023, the Application for Review was dismissed, and the mother’s costs were reserved. 
15	The Family Report of Dr F was released on 15 June 2023, noting that the father did not engage in the Family Report process. 
16	On 7 August 2023, Orders were made requiring the father to submit for hair follicle testing prior to 4 October 2023 and listing the matter for a compliance and readiness hearing. The father then filed a second Application for Review on 10 August 2023. 
17	On 11 October 2023, the father’s second Application for Review was dismissed and the cost of the Independent Children’s Lawyer was reserved to the Final Hearing.
18	The matter was listed for a Compliance and Readiness Hearing on 19 October 2023 where a s 102NA order was made and the matter was listed for trial. Trial directions were then made in chambers on 20 November 2023 and 19 December 2023. 
19	On 28 March 2024, the matter was listed for a Compliance Hearing, noting that the father did not appear.
Current Living Arrangements
20	The children are living with the mother and her partner in the City B area. Mr C’s teenage daughter also resides in the home. 
21	There are no Orders for, and the father is not currently spending, face to face time with the children. The Orders of 6 April 2023 provide for twice weekly communication.
RISK FACTORS
22	The Family Report is of assistance in identifying the risk factors, as is the affidavit material.
Family Violence
23	Each parent alleges risk arising from family violence. 
24	The mother alleges that the father has perpetrated physical, emotional and financial abuse and has given examples in her affidavit material. She alleges that the girls have witnessed events of domestic violence and on one occasion X had a car door slammed on her finger by the father when he was in a rage.
25	The father alleges risk arising from family violence perpetrated by the mother, her partner and the maternal grandfather. He alleges that the mother’s partner challenged him to a fight in late 2022 and that he had previously been assaulted by the maternal grandfather in late 2020. He alleges physical, emotional and financial abuse perpetrated by the mother. 
Mental Health
26	The Family Report writer notes that the mother alleges a risk arising from the father’s inability to cope with the children and that he becomes agitated and angry, placing them at risk. The mother’s evidence is that the father has left the children unattended when he becomes overwhelmed.
27	The Family Report writer notes that the father alleges that the mother is a risk due to emotional volatility and abusiveness. It was also noted that the father alleged that the mother posted naked pictures of the children online, that they developed a habit of peeing in public and exposing their private parts thus making them vulnerable. Those allegations were denied by the mother and the Family Report writer noted no such behavioural issues in the interview process.
28	During the Child Impact Report interviews, the mother advised that she had obtained counselling.
29	The Family Report writer noted that the subpoenaed records reflect that the father was referred to the mental health ward at E Hospital, although it was unclear to the Family Report writer whether he had been admitted for treatment at that time.
Drug and Alcohol Abuse
30	The mother advised the Family Report writer that drugs and alcohol were not a risk during the relationship, but that in mid-2021 the father advised her he had been on a journey of spiritual awakening involving the use of illicit substances.
31	The father alleges that the mother used illicit drugs in mid-2020 when she was breastfeeding and that she has uncontrollable anger when intoxicated.
32	The Family Report writer noted that the father acknowledged that he lost his driver’s license for driving under the influence in 2007 and 2012. 
33	The Family Report writer noted that despite not indicating drugs and alcohol as a factor in the Notice of Child Abuse, Family Violence or Risk document, the father sought that the mother undergo drug rehabilitation. 
Child Safety and Wellbeing
34	The mother alleged risk relating to child abuse arising from the father absconding with the children in December 2022 and their exposure to family violence. 
35	The father alleged risk to the children’s safety and well-being, that he was fearful for the children due to the actions of the mother and her family with associated physical, emotional and sexual harm and neglect. He further alleges that the children were scared of the mother’s partner and his large dog.
ISSUES FOR DETERMINATION
36	The issues for determination are the risk factors for these girls in both households.
37	Following on from those findings, the court must determine what orders regarding parental responsibility and living arrangements will be in the children’s best interests.
MATERIAL RELIED ON
The Mother 
38	The mother filed an Outline of Case on 2 April 2024 and relies on the following documents: 
(a)	Affidavit of the mother filed on 27 March 2024; and 
(b)	Notice of Child Abuse, Family Violence or Risk filed on 30 December 2024. 
39	The mother was granted leave to rely on the following documents:
(c)	Amended Amended Initiating Application filed by the mother on 3 April 2024;
(d)	Affidavit of Mr G filed by the mother on 27 March 2024; and
(e)	Affidavit of Ms H filed by the mother on 28 March 2024.
The Father 
40	The father filed an Outline of Case on 3 April 2024. 
41	The father was granted leave to rely on his Affidavit filed out of time on 28 February 2024. 
42	The father was granted leave to further rely on the Response to an Initiating Application filed on 31 March 2023.
43	The court enquired whether the father sought leave to rely on his previous affidavit given that his current affidavit provided no evidence to assist the court in considering the s 60CC factors. This was opposed by the mother and the father advised the court that he was content not to rely on that document.
Independent Children’s Lawyer
44	The Independent Children’s Lawyer filed an Outline of Case on 2 April 2024 and relied on the Family Report of Dr F filed on 14 June 2023.
Tendered material
45	The following documents were tendered during the proceedings:
Exhibit No	Description of Exhibit	Tendered by:	
M1 	Annexure B1 to Mother’s affidavit filed 27 March 2024 - Parenting Orders Program Certificate & Letter 	Mother	
M2	Annexure B2 to Mother’s affidavit filed 27 March 2024 - Hair Follicle Test Results	Mother	
M3	Annexure B3 to Mother’s affidavit filed 27 March 2024 – Text Messages requesting access to joint funds	Mother	
M4	Annexure B4 to Mother’s affidavit filed 27 March 2024 – Text Messages re leaving children unsupervised on 8 July 	Mother	
M5	Annexure B5 to Mother’s affidavit filed 27 March 2024 – Text messages re new partner	Mother	
M6	Annexure B6 to Mother’s affidavit filed 27 March 2024 – Text messages sent to Mr C dated late 2022	Mother	
M7	Annexure B7 to Mother’s affidavit filed 27 March 2024 – Text messages re return of children	Mother	
M8	Page 43 of Mother’s affidavit filed 27 March 2024 – Text messages re Father being blocked 	Mother	
M9	Page 44 of Mother’s affidavit filed 27 March 2024 – Text messages re Father being blocked	Mother	
F1	Notice Disputing a Fact or Document – pages 7-8 of Father’s affidavit filed 28 March 2024	Father	
F2	Response – Objecting to Jurisdiction dated 22 December 2023	Father	
M10	Letter from J Company to E Hospital dated mid-2022	Mother	
M11	QPS Solicitors Office Report dated mid-2009 	Mother	
M12	QPS Court Brief dated 1 June 2023	Mother	
M13	QPS Solicitors Office Report dated late 2015 	Mother	
M14	QPS Solicitors Office Report dated 24 August 2021	Mother	
M15	QPS Street Check Summary – late 2022	Mother	
M16	Suburb L Medical Letter to E Hospital – Emergency Department – Patient: Mr Pitter	Mother	
M17	QPS Solicitors Office Report – Traffic Infringement Notice – dated late 2022  	Mother	
M18	QPS Solicitors Office Report – DV – dated late 2022 	Mother	
M19	Solicitors Office Report – DV – dated 23 December 2022	Mother	
M20	Notice of Address for Service filed by the Father on 12 January 2023	Mother	
M21	Bundle of Material produced by E Hospital – Pages 1-17	Mother	
M22	Report from City E Community Mental Health (10 pages) – Mr Pitter– dated mid-2021	Mother	
46	In this judgment, it has not been necessary or appropriate to detail each piece of evidence tendered, given in chief or under cross examination. I have however reviewed and considered the entirety of the evidence before the court.
THE PROPOSALS
The Mother 
47	The mother’s proposal, as per the Amended Initiating Application filed 3 April 2024, is that she have sole parental responsibility for the children and that they live with her. While her application included a clause requiring consultation, under cross examination her position was that she did not want the father to know where she lived or where the children attended school for fear that he would again abscond with them. 
48	The mother’s proposal is that the children communicate with the father each Monday and Thursday. Her proposal allows for the children to spend supervised time with the father upon conditions being met. The conditions include the father having completed a parenting program, a clear hair follicle test and that he not be under the influence of any illicit substances or alcohol when the children are in his care. 
49	The mother’s proposal seeks restraints against the father removing the children from her care, approaching the mother’s residence or approaching the mother and/or children at any place.
The Father 
50	The father’s proposal, as per the Response to Initiating Application filed 31 March 2023, is that he have sole parental responsibility for the children and that they live with him. The father sought that the children spend time with the mother upon her undertaking a psychological assessment and an adequate drug rehabilitation program. 
51	In the father’s affidavit filed on 28 March 2024 the orders he sought are specified as follows:
1.	That I, [Mr Pitter]: of the Family [PITTER], Father of the Living [children] [X]: Of the Family [PITTER] with birthday [2018] and [Y]: Of the Family [PITTER] with birthday [2018] make claim on my property to be returned at the expense of [MS BAIER] evidenced and attached marked herein "Annexure A [P] -Living Document [X]" "Annexure B [P] -Living Document [Y]" and with reference to Notice To Admit referenced and attached as evidence marked herein "Attachment B - Notice To Admit". 
2.	I, [Mr Pitter] of the Family [PITTER], father of the [children], permit supervised visits for them with [Ms Baier], contingent on her successful completion of a psychological assessment at her expense. This assessment must be approved by me. Additionally, [Ms Baier] must undertake a drug rehabilitation program, also approved by me, and ensure that any individuals she exposes the [children] to have similarly completed approved rehabilitation programs, as by Part 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. 
3.	[Ms Baier], as Office Holder of [K Pty Ltd], breached her duties by misappropriating funds and failing to provide necessary receipts for transactions to [M Pty Ltd]. Evidence of her fraudulent activities is detailed in "[P]-Attachment C - [Ms Baier] fraud." Consequently, under the FAMILY LAW ACT 1975 No. 53, Sections 72/75 2 (a) (b), I, [Mr Pitter] of the Family [PITTER], as father of [children], am entitled to damages and spousal maintenance, specified in "Attachment A - [P] Schedule of Fees." 
4.	That a permanent injunction be placed on [MS BAIER] and any other member of her family claiming right to ownership of the [children] [X]: of The Family [PITTER] and [Y]: Of The Family [PITTER]. PART 1.31 Federal Circuit and Family Court of Australia {Family law) rules 2021 
5.	A forensic financial audit is requested for the financial records of [Ms Baier], [M Pty Ltd], and [Mr C], including any connected companies, trusts, entities, or associations. This audit, to be funded by [Ms Baier], should investigate allegations of proceeds of crime, theft, fraud, and misappropriation of property and funds from [K Pty Ltd] and [Mr Pitter], as detailed in "[P]-Attachment C - [Ms Baier] fraud" and under the provisions of the CORPORATIONS ACT 2001 64 (B), 104. 
6.	I, [Mr Pitter]: Of The Family [PITTER], Request a restraining order against [Ms Baier], [Mr C], and [Mr G], prohibiting them and their associates, including friends, family, partners, employers, and anyone connected through business, social media, or other means, from approaching us. This order is sought under the FAMILY LAW ACT 1975- SECT 4C and Part 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. 
7.	Fees for damage to property and performance in this case are awarded to the [Mr Pitter]: Of The Family [PITTER] subject to the attached schedule of fees payable upon invoice to the court. FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (FAMILY LAW) RULES 2021 (F2021 L0l 197) - RULE 12.13 PART 1.31 Federal Circuit and Family Court of Australia {Family law) rules 2021
(As per the original)
52	The orders sought by the father, in a large part, misconceive the purpose and jurisdiction of this court. They reflect his perception of ownership of the children and his entitlements arising from that perception.
Independent Children’s Lawyer
53	The Independent Children’s Lawyer supported the Orders sought by the mother for sole parental responsibility with a consultation clause in terms of the Amended Amended Initiating Application filed on 3 April 2024.
54	The Independent Children’s Lawyer reluctantly supported the mother’s position for the children to spend supervised time with the father but acknowledged the issue with orders for long term supervision.
55	The Independent Children’s Lawyer supported orders sought by the mother for video calls, and for restraints.
THE EVIDENCE AND WITNESSES 
The Mother 
56	The mother was quietly spoken in the witness box. She was consistent and believable in her responses throughout cross examination.
57	The Independent Children’s Lawyer assisted the court by putting the father’s allegations to the mother. The mother became distressed in that process and the matter was stood down. When the father raised his view that documents tendered by the mother had been doctored, the court enquired of the mother whether each tender had been altered, deleted, or added to in any way, which she denied. I accept her evidence about that.
58	I do not accept the father’s evidence that the Messenger records are clearly doctored. When reviewing some of them under cross examination, he accepted portions of those documents.
59	I am not critical of the mother for not wishing to disclose her home address or the children’s school. Given the father’s conduct in previously removing the children and taking them to Town N, together with his evidence under oath as to his view that the children are his property, and his lack of insight as to the impact on children of such conduct, her reluctance is perfectly understandable.
The Father 
60	The father, whilst difficult in terms of his applications, behaved appropriately through the court process. 
61	He had written submissions that he wished to make at the commencement of the trial and sought to surrender the birth certificates of himself and the children as being, on his submissions, the property of the crown. As noted at the time, however, someone has paid good money for those certificates so that they were, in reality, the property of the person who had paid for them. Those documents were however accepted for the purposes of identification.
62	When asked whether the father wanted the children to live with him, his answer was as follows:
It’s my case that I am rightfully returned the property that is mine… in relation to [X] and [Y], they are to be returned safely unharmed to me.
63	When asked if he considered the children to be his property his answer was “they are my young women are they not?” and “do I not have the right to my young women?” That was a troubling way of viewing children and completely at odds with the Convention on the Rights of the Child and the Family Law Act 1975 (Cth) (“the Act”).
64	When asked to consider that these proceedings were not about “his rights”, the father reminded Counsel that he challenged the jurisdiction of this court. At one stage the father advised the court that his case theory involved the multiple discrepancies in the material.
65	The father was confident, assured, calm and certain in his belief system. He managed cross examination of the mother’s witnesses and the Family Report writer calmly and courteously but was fixed in his world view. Nothing could shake his self-belief. 
66	The father was evasive about answering some questions, often answering by saying words to the effect “that’s an interesting question”. For example, when asked if he was in Town N his first answer was “I am here” and had to be asked again before he would give a sensible answer – which was that he did not live in Town N.
67	The father was deliberately obstructive at times, particularly in the process of tendering documents.  As regards a letter written by his lawyer regarding a Total Permanent Disability claim his evidence was as follows:
(a)	He refused to recognise his own signature on an authority annexed to the solicitor’s letter, stating that it was his “autograph”, that he included with his autograph words to the effect that he “reserved all his rights” (clarified to mean all his rights as a private man);
(b)	He refused to accept what he viewed as an attempt to associate him as a person or living being with that name on the authority;
(c)	He refused to accept that the letter was a letter from a lawyer because it was a copy and not the original; and
(d)	He refused to accept that the letter was sent on his instructions or that he instructed those lawyers to act for him in relation to other matters.
68	When asked to accept documents for the purposes of identification, he was repeatedly reluctant to do so. At times he said that he did not associate with the name on the documents, that the name on the paper was not him as the living man. At other times he said that he would “conditionally” accept that a document referenced him, with the conditions being that he waived all liability, and no harm would come to him because of it.
69	The father did not want to answer questions about where he lived, whether he had signed a lease, whether he was on Centrelink, whether he had claimed total permanent disability against his super and if so, on what grounds.
70	The father sought to challenge the Child Impact Report on the grounds that the year of the interviews was stated in the document as 2022 rather than 2023 and would not accept that this was simply a typographical error. He was assured by the court that the days of typographical errors automatically and completely invalidating documents or proceedings were long gone, if indeed they ever existed.
71	Most of the father’s police and hospital records as tendered by the mother were not properly accepted by him. When documents were put to him in cross examination, he would on most occasions concede words or “scribble” on the page, but in general that was as far as he would go. He would not concede that the documents, such as the psychiatric and police records tendered, were about him saying words to the effect “I am not words on the page, I am a living person”.
72	Ultimately, I am unsure whether the father struggles with mental health issues or was enjoying himself playing games with the court process. At the end of the day, it does not matter which it is, as he is very clearly not child focussed. I accept his evidence that he enjoyed the research and the work he did in preparing for this case. I am satisfied that in doing so, he completely lost sight of his children’s best interests as being central to the process.
Mr G – Maternal Grandfather
73	Mr G was a sensible witness. He answered questions succinctly and made concessions. For example, that he did not see the father try to climb through his 14-year-old daughter’s window – that she had told him about it.
74	Nothing turns on his evidence other than his support of the mother’s evidence. I am satisfied that he was an honest witness.
Ms H – Maternal Grandmother
75	This witness had positive things to say about the father’s capacity to be a good parent. 
76	Her evidence about the “drive from hell” when she alleges the father drove dangerously with herself, the mother, her other daughter and the children in the car was persuasive. 
77	The father put to her a different version of events to this witness as to the cause of the argument, however I am satisfied that she was honest in her evidence and in particular about what was said and how erratically and indeed dangerously the father drove. I am satisfied that the father drove erratically and dangerously with his children, the mother, her sister, and the maternal grandmother in the car.
78	She was fair minded and consistent in her evidence.  I accept her evidence.
Dr F - Family Report Writer
79	Dr F in her Family Report was somewhat constrained by the father’s failure to engage in the Family Report process and the report itself concedes that as a limitation. Her recommendations in that report are as follows:
(a)	The mother have sole parental responsibility for the care of the children and that the children live with her;
(b)	The father continue to have twice weekly phone contact with the children; and
(c)	Should the court order contact between the father and the children, that it be supervised.
80	Under cross examination, having reviewed the trial affidavits and subpoenaed material, the Family Report writer’s evidence was that her opinion had only strengthened.
81	While the father cross examined Dr F, he focused on issues other than the best interests of his children. He unsuccessfully attempted to challenge her expertise. Her evidence was that she did 30 hours of training each year for each of her three areas of expertise and another 30 hours each year in general psychology. I accept her evidence that she has not fallen behind and that she is indeed an expert in her field.
82	The father challenged Dr F on the basis that she had repeated in her report what the mother told her. In doing so he enquired if the mother’s opinion was sufficient on which to base the recommendations made. The father was troubled that the Family Report repeated what the mother had said and whether that information came from the mother’s affidavits or from the interviews. 
83	It is noted that the father had the opportunity to engage in the Family Report process and chose not to do so. Nonetheless, the Dr F had read his filed material and summarised his position based on that source and based on their brief phone call. 
84	The father challenged Dr F about the phone call, being the call where she arranged with him the date and time of the interview, however the purpose of that challenge was unclear. If she has transcribed the date incorrectly in her report, then I am not troubled about that – it is the content of what she reports him having said during that phone call that is relevant to my determination.
85	He challenged the Family Report on the basis that it was simply Dr F’s opinion. I confirmed with him, that a single expert report is indeed opinion. It is expert opinion, based on her review of the material and the interviews undertaken. It is however, only one part of the evidence the court considers in determining the best interests of the children.
86	The father challenged the Family Report on the basis that the Family Report writer relied on parts of the Child Impact Report. The Family Report writer confirmed that it was only one part of what she relied on in forming her opinion.
87	He argued the semantics of the Family Report. For example, the father argued that the Family Report writer referred to the Child Court Expert’s observations of separation anxiety “in” the Child Impact Report, and put it to her that the children were not “in” the Child Impact Report, that the Child Impact Report was just words on paper and the children are living beings. He also argued that the Family Report was undermined by the reliance on the Child Impact Report, which he viewed as biased. I accept the Family Report writer’s evidence, that the Child Impact Report was only one part of evidence that she reviewed and that she formed her own opinions based on all the evidence available to her.
88	Arguments that documents are flawed by what are clearly typographical errors or misuse or unusual use of language does not invalidate the report, or the opinions expressed by the report writer. The father did not persist with this line of questioning.
89	I accept the opinions of the Family Report writer.
JURISDICTIONAL ISSUE
90	The father’s affidavit filed on 28 March 2024 purports, in rather obscure language, to challenge the jurisdiction of the court, including a “Notice and schedule of fees” addressed to myself personally stating “below is a list of items you are being charged and the accepted of the amount” including charges for such things as trespass on person and kidnap at $1,000,000 per day per being or person. An invoice was filed on 2 April 2024 to “all addressed parties” etc in the sum of $105,020,210.
91	The father’s challenge to jurisdiction appeared to boil down to the fact that he had not signed the Initiating Application (filed by the mother) or any of the orders made by the court and therefore he had not consented to the jurisdiction of the court.
92	The application was complicated by his use of sovereign citizen terminology. Under cross examination, he conceded that he had heard the term but claimed that he did not know what it means. However, for example when taking the oath, he did so by saying:
I, the living man, [Mr Pitter] of the family [PITTER], by accommodation of [Mr Pitter]. 
93	When being asked if he accepted tendered subpoena documents as evidence, on one occasion his reply was “on condition”. When asked the condition he replied:
1.	As long as you can provide me with your authority and the court’s authority over a living man. 
2.	That authority over myself as [Mr Pitter] of the family [PITTER]. 
3.	You agree to offer consideration for my performance subject to the fee schedule that was attached to the objection. 
4.	You agree that any and all liability of mine is waived. 
5.	In doing so, it will cause no harm to myself, my property or my young women. 
6.	And you respond with the above mentioned to me within 21 days. 
94	As is common in such cases, the father also relied upon ancient and/or irrelevant legislation including the Admiralty Act 1988, Cestui Que Vie Act 1666, Corporations Act 2001, Bills of Exchange Act 1909, and the Commonwealth Constitution Act.
95	Ther are a number of cases regarding such efforts to challenge the jurisdiction of the court. In particular, in R v Sweet [2021] QDC 216 Cash QC DCJ gives a short sharp analysis of the law.  Counsel for the mother also referred me to Re Magistrate M M Flynn; ex parte McJannett (2013) WASC 372 at paragraph 15, which states:
[15]	Finally, judges administer justice according to law.  They are not required to expend judicial time, a scarce public resource, on applications that have no legal foundation and involve a deluded understanding of the law. 
96	I repeat and accept the law about challenges to jurisdiction based on ancient and irrelevant laws as enunciated in those cases.
97	I agree with the Independent Children’s Lawyer that the father’s focus on this “pseudo” law did him no favours. It obscured any substance to his case.
98	The father is content to engage in these proceedings when it suits him to do so. He was late in doing so but he filed response material, he has filed Notices of Address for Service, and he has twice filed Applications to review decisions of a Registrar. 
99	He did not, however, file material in accordance with the trial directions, and what material he did file and sought leave to rely upon, was of little assistance to the court in that it did not address the relevant issues or did so with no specificity. He had the option of being legally represented though a s 102NA order but chose to self-represent. 
100	I am satisfied that I hold jurisdiction under the Family Law Act 1975 to determine the child related proceedings before this court. To suggest otherwise, is a furphy. I am satisfied that the legislation quoted by and relied upon by the father is irrelevant to proceedings under the Family Law Act 1975.
101	I am satisfied that the majority of the orders sought by the father are irrelevant to the matters before the court, being a determination as to the care and living arrangements of the children with the children’s best interest being the paramount consideration.
THE LEGAL PRINCIPLES
102	This application is governed by the principles set out in Part VII of the Act as it stood at the time of the trial. I will be generally guided by s 60B of the Act which sets out the objects of Part VII and the principles underlying section.
103	In making parenting orders, s 60CA and s 65AA of the Act provide that the best interests of the child are the paramount consideration.
104	Section 60CC of the Act prescribes the various “best interests” considerations that the court is obliged to consider in arriving at its determination.
105	Section 60CC(2) sets out the two primary considerations, described by Justice Brown in Mazorski v Albright (2007) 37 Fam LR 518 as “twin pillars”. I am required to give greater weight to the second of the primary considerations.
106	The “additional considerations” are set out in s 60CC(3) of the Act, and I am required to consider all of those issues including parental capacity, the extent to which each parent has fulfilled their parental responsibilities notwithstanding cultural matters and family violence. 
107	No greater weight is placed on any particular additional consideration.
108	Any order this court makes must be consistent with any family violence order and must not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child’s best interest being treated as paramount (s 60CG of the Act). 
109	The relevant principles in assessing whether a child would be exposed to an unacceptable risk of psychological and/or physical harm were most recently considered by the Full Court in Isles & Nelissen (2022) FLC 94-092, who agreed with and adopted Austin J’s dissenting judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138.	The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.	Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142.	As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
(Emphasis in the original)
110	There is an obligation on a trial judge to evaluate not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N v S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303, Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96] and Deiter & Deiter [2011] FamCAFC 82 at [54].
111	The court is assisted by McClelland DCJ who summarised the following further principles:
39. 	…
(1) 	It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.
(2) 	Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148].
(3) 	The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(4) 	While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”.
APPLICATION OF THE LAW 
112	On 6 May 2024 the Family Law Amendment Act 2023 came into effect. As the trial of this matter was completed prior to that date, the amendments to the legislation are not relevant to this determination.
Consideration of the s 60CC(2) primary considerations 
113	The children have had in the past, a meaningful relationship with both parents. They have not however, seen their father since 30 December 2022 when the recovery order was executed.
114	They have however, had video call contact with him on a regular basis.
115	I accept the Family Report writer’s view that the mother and the children have a strong and positive bond. I have no independent evidence of the bond between the father and the children due to his failure to engage in the Family Report process. 
116	The real issue in this case are the risk factors.
117	The father alleges that the children are at risk of physical, emotional, and even sexual harm in the mother’s care. No evidence of such harm has been produced or is reflected in subpoenaed material. The father has in the main made bare statements of risk and provided little in the way of evidence. The Independent Children’s Lawyer put the father’s allegations to the mother to allow the evidence to be tested – noting that the allegations were vague and therefore those questions were necessarily vague. The mother became distraught in that process. I am satisfied that her distress was genuine. I am satisfied that she is a good and loving mother, that her parents are good and loving grandparents and that the children are not at risk of harm in the mother’s care. I accept the mother’s denials of the father’s allegations.
118	The father made allegations of drug use by the mother whilst she was breastfeeding. This is denied by the mother, and she has produced a clear hair follicle test in early 2023. I am satisfied that drugs are not a risk factor in the mother’s care.
119	I am satisfied that the father has not established that the mother perpetrated family violence. 
120	The father gave evidence of seeing a child with a black eye twice in video calls. The mother provided an explanation of playing in the rain when she and the child fell together. I accept her explanation. Further, she has complied with court orders and completed the parenting orders program as recommended.
121	The father has made a general allegation of risk of sexual abuse in the mother’s care. This is denied by the mother. There is nothing to this very serious allegation above a bare statement.
122	In the expert opinion of the Family Report writer, the children displayed no indications of abuse or troubling behaviour as would support the father’s allegations.
123	Having seen the mother and her parents in the witness box I am satisfied that they are loving and generous people, that the children are well loved and well cared for and that the father’s allegations are baseless and self-serving.
124	In relation to the allegations the father has perpetrated family violence, despite the father consenting to orders on 6 April 2023 that he do courses, including a men’s behaviour change program, a year later he had not undertaken any of those courses. His evidence around that was confusing and erratic. 
125	In relation to concerns about drug use, drugs may not have been an issue during the relationship, however, I accept the mother’s evidence that the father advised her in 2021 that he had been on a journey of enlightenment which included illicit substances use. I note that this is supported by the psychiatric records from 2021, however those records also reflect the father’s self-report at that time of only occasional drug use. 
126	On 7 August 2023 the father was ordered to undertake a hair follicle test and authorise a copy to be provided to the Independent Children’s Lawyer. That test has not been provided to the Independent Children’s Lawyer. His evidence under cross examination was that he had undertaken the test, but not provided it to the parties and that it had since been lost in storm damage. None of that is reassuring to the court. A copy of the hair follicle test could easily have been obtained from the service who undertook the testing. There is no evidence about the father’s current drug use, if any, and whether that has changed. Certainly, it appears that his world view has changed post separation. The court cannot be satisfied that drug use is not an issue for the father.
127	The mother alleges financial abuse perpetrated by the father. In particular, she alleges he removed access to joint funds at separation and provides text messages to support her requests that he allow her, and thus the children, access to funds. I accept that evidence.
128	I am satisfied that the risk of abduction is real. During cross examination, the father’s evidence about the day when he removed the children from the mother’s home, was to the effect that he arrived outside the home at about 6:00am, that he was outside for about 30 minutes and that he played an instrument and sang happy birthday to the children, who then came outside to him of their own free will. His evidence was that he had not intended to abscond with the children; the plan was to take them to sports, giving evidence that he told them to go inside and get their sports gear and to let everyone know where they were going. It appears that he then impulsively drove with them to Town N and retained them in his care until the recovery order was executed seven days later. He allowed no contact with the mother, their primary carer, for those seven days. The father showed no insight into the impact that may have had on the children and displayed no regret or remorse for that conduct. Indeed, his material is critical about the children being removed from his care at that time.
129	Another risk factor in the father’s care is that the mother would have no idea where the children were living or any other information about health and education, as the father declined to provide that information. The court does know, on his own evidence, that the father has at times lived in a van or a car, and in doing so has been moved out due to storm damage on two occasions where his evidence is that he lost everything. On the father’s own evidence, the night the recovery order was executed, the children were asleep in the back of a car. I formed the view, on the limited evidence before the court, the father lives a somewhat transient lifestyle. While that does not prevent a parent from having children in their care, his unwillingness to share information about his location and arrangements makes assessment as to whether it would be in the best interests of the children impossible.
130	As to the father’s mental health, as noted earlier, records from E Hospital were tendered. Those documents were arguably not conceded by the father to be his records, although at one stage he did accept a document when it was put to him “on conditions”. The name and date of birth in the records match the father. When questioned by the Independent Children’s Lawyer, his answers at times implied an acceptance that the hospital records referenced him. I am satisfied that those are the father’s medical records, based on that and also based on the fact that the father did not simply deny that they were his records. Instead, he sought to challenge them on the basis that he was not the name on the paper but a living person in the court room. 
131	Those records reflect that in mid-2021, the father attended at E Hospital, that he experienced auditory hallucinations, was seeing colours, was suspicious, sought full credentials from the treating medical staff, and expressed concerns about where his blood/DNA was to go. He also expressed concern that the mother and her family could read his thoughts and that people could control them. 
132	Also, in mid-2021 the discharge summary from E Hospital included a plan for the father to follow up with his GP and with medication to try. It appears that the father did at least for a time take medication as there was a short period where he continued to engage with the hospital. The court has no current evidence about the father’s mental health; however, his own evidence is that he is not medicated, noting that the tendered documents reflect that in 2021 he was resistant to medication and to a voluntary admission.  
133	The father has not made an application to spend time with the children since the recovery order was made and nor has he done anything to reassure the mother and this court that he would not again impulsively abscond with them. The father has instead under cross examination validated the mother’s concerns as to an ongoing risk that he would abscond with the children again, by referring to the children as his “property”, and as his “young women”, and said that he “created” them and that he “owned” them. 
134	It was also troubling that under cross examination he was of the view that if the children lived with him, the mother would need to be psychiatrically assessed and undertake drug rehabilitation, with the service providers to be chosen by him and the assessment and rehabilitation to be completed to his standards. Only then would he and he alone be responsible for deciding whether the mother would be able to spend supervised time with the children. In effect, he was setting himself up as judge, jury, and executioner.
135	This seems to discount that the mother has complied with court orders for drug testing, she has done the courses ordered and she engaged with the Family Report interview process, whilst he has done none of those things.
136	In deciding what level of harm, the father poses to the children the court must view the facts through the lens of the principles enunciated in Isles & Nelissen [2002] FedCFamC1A 97. The court must assess what is the likelihood of the harm occurring and what would be the degree of damage if it did occur.
137	The father poses a risk on a number of levels, including:
(a)	Risk arising from his impulsivity, his lack of insight and his views as to his ownership of the children. I am satisfied that he feels completely justified in removing the children from their mother on the previous occasion. He has expressed no regret for doing so and had no insight into the potential harms that may be suffered by such young children removed from the primary care giver. 
(b)	His mental health is possibly a risk, but it is unknown to what (if any) extent due to his failures to engage in this process. Certainly, the engagement with a GP and E Hospital in 2021 was voluntary, which is a reassuring sign. Unfortunately, he did not engage with the family report and there is no current mental health assessment;
(c)	the unknowns around his drug use;
(d)	the unknowns around his living arrangements; and
(e)	The language he used when talking about his five year old daughters as “young women” a term of reference commonly reserved for adults.
138	The father’s impulsivity was also reflected in his walking out on the children when they were in his care in mid-2022 because the mother did not respond to his text message – I prefer the mother’s evidence about those events. Leaving two children who were not yet four years old, unsupervised and waltzing off in tantrum is a risk factor.
139	I also accept the evidence of the mother and maternal grandmother as to the father’s road rage – driving dangerously with the mother, children, maternal grandmother and maternal teenage aunt in the car.
140	All of these are serious risk factors when viewed in the context of the unknowns. The consequences for the girls could be dire indeed – emotionally and physically – if the father absconds with them, if he is experiencing untreated mental health issues, and/or uses illegal drugs, and/or drives unregistered and unlicenced vehicles, and/or prevents contact with the mother as he has done in the past, and/or lives a transient lifestyle with them. On top of that I am satisfied that the father does not have any insight into the impact on the children of any or all of those issues.
141	I am satisfied that, given the opportunity, the father would again act impulsively to retrieve what he views as his property, the girls, and that in doing so they would be exposed to an unacceptable risk of harm.  In other words, I am of the view that the likelihood of the possible harm is high and the severity of harm, cumulatively and separately, is also high.
142	Having heard an oral application at the end of the trial, the court made a recovery order to lie on file, although the father assured the court it was not necessary, that it had been too long, and he would have to “suck that up”. However, he also made submissions that it was “not in his interests” to remove the children, claimed that he had not previously removed them, and that he had been protecting them from the mother when they were in his care. Those were confusing and inconsistent submissions that did little to reassure the court.
Consideration of the s 60CC(3) additional considerations 
143	These are young children, and their views carry little weight noting that there is no independent evidence of any views in any event.
144	The children are loved. I have no doubt that both parents and extended family love the children very much.
145	Unfortunately, the father has not engaged in the proceedings meaningfully and is not spending time with the children.
146	The father’s relationships with the children are coloured by his views as to ownership and his rights arising from his creation of them and his possession of the documents reflecting their birth.  It is interesting that he sought to surrender the birth certificate but retained those documents, which were completed by the hospital – being a Proof of Birth declaration for each of the children. I formed the view that he believes those documents are significant and establish his ownership of the children. I am uncertain what type of relationship would flow when the parent holds such views.
147	The mother has been solely responsible for all matters concerning the children since separation.
148	The father has not returned to City B to pursue his relationship with the children. After the children were recovered from his care in December 2022, he remained in Queensland. Under cross examination, he gave evidence that he had been in the City B region since then – having been moved due to storm damage when he was in Town O in 2023. However, there is no evidence that he advised the mother or the Independent Children’s Lawyer or sought to make arrangements to see the children. It is hard to understand why he did not do so.
149	The father’s evidence was that he had paid child support of $700 per week in the past, but that he was not currently paying any.
150	The mother is therefore solely responsible for all costs relating to the children.
151	If the children were to live with their father, they would be separated from their primary care giver with whom they are significantly bonded. They would live at an unknown location with their father. They may, in doing so, live with unknown third persons and attend unknown schools and have no contact with their mother until the father’s requirements of drug rehabilitation and psychiatric assessment had occurred.  The logic behind this when the mother has been the primary carer without incident for over a year is hard to understand.
152	For the children to live with their father would be an enormous change for two young girls who were reported by the report writer to have a strong positive bond with their mother. This is particularly so when we have no independent evidence of the relationship between the girls and the father.
153	The mother did not disclose her address or indeed the school the children attend as she expressed concern that the father may attempt to again remove the children. To the knowledge of the court however she remains in the City B area where her parents live. I do not know where the father lives.  He would not say, despite my advice to him that it may be relevant to my decision making to understand what living arrangement he could offer the children.
154	So, I do not know the distance between their homes, nor who would pay for any contact or travel.
155	The mother has a proven capacity to meet the children’s needs.  She has been doing so since separation, and with no input at all from the father since December 2022. I cannot say the same of the father. 
156	With the father referring to the five-year-old children as “young women” and his “property” I was troubled as to his capacity to meet their emotional and psychological needs. Perhaps even their physical and sexual safety.  It is not common to refer to or consider 5-year-old children as young women and it raised question marks for me as to why he would do so. Certainly, there is no evidence of harm of that sort arising or even considered, but the language is noteworthy.
157	There was a line of cross examination around the documented history of the father driving unlicenced and driving unregistered cars, but he declined to concede those matters. For example, when it was put to him that he was the driver, he answered “was I?” and “but I am sitting here in front of you”. There seemed to be almost a disassociation from his past self. Given the game playing reflected in those answers, for the same reason that I was satisfied the medical records relate to the father, I am also satisfied that the driving records relate to the father. Those records confirm what we already know, that the father can act impulsively and without consideration of consequences.
158	These are young female children. The report writer was advised by the mother that they attend kindy two days a week, both like outdoor activities, sports and social interaction with their peers. No developmental concerns were identified other than the observation of some separation anxiety during the interviews for the Child Impact Report. The Family Report writer described them as bright and happy.
159	I have already addressed the issue of family violence and do not intend to say anything further here.
160	It is always preferable to make final orders. Sometimes this is not possible with very young children but certainly children benefit from living in a safe, settled and happy routine.
DETERMINATION
Parental Responsibility
161	The presumption of equal shared parental responsibility does not apply in cases where there are circumstances such as family violence or child abuse. I am satisfied that an order for equal shared parental responsibility would not be in the children’s best interests in circumstances where:
(a)	the father is of the view that the children are his property;
(b)	where he has previously absconded with the children;
(c)	where I have made a finding that he is an unacceptable risk of harm; and
(d)	where I am satisfied that communication with him for the purpose of decision making would be well-nigh impossible given his conduct during the trial.
162	I propose to make orders for limited consultation between the parents in order to protect the mother’s location and that of the children. I am satisfied that there is indeed a risk that the father may again attempt to abscond with the children due to his belief as to his ownership of the children.
163	I also propose to order that the mother have sole parental responsibility for the day-to-day care, welfare and development of the children for the same reasons.
Living arrangements
164	The mother has been the children’s primary caregiver post separation. I accept her evidence that she was also the primary carer during the relationship.  
165	Since December 2022 the father has had no face-to-face with the children. He has not returned to City B to live and when he visited he did not make arrangements to see the children. The father has not, to the knowledge of the court, undertaken the courses recommended by Court Child Expert and ordered on 6 April 2023, being the men’s behaviour change program, the parenting orders program and the keeping kids in mind program. He also believes that the children are his property to do with as he chooses. I do not know if he has an underlying mental health condition or just a very skewed world view, but I am satisfied that he is not child focused.
166	I cannot even begin to consider the father as a primary carer or indeed for unsupervised time as I know nothing about his current living arrangements so cannot ascertain if they are appropriate for these children.  I do not know where he lives, how close or far away that is from the mother, let alone the facilities and the proximity to a school or medical services.
167	In those circumstances I am of the view that an order for the children to live with the mother is in their best interests.
168	I propose to make the orders sought by the mother that the father spend only supervised time with the children, with some minor amendments to ensure the clarity of the orders made.
169	I also propose to make the orders that the father’s time be conditional upon completion of the parenting orders program and a clean hair follicle test as well as the requirement not to be under the influence of illicit substances or alcohol. I was uncertain as to the need for these orders when supervision should be protection enough. However, I then considered the father’s own evidence that he had enrolled in a post orders parenting program and was on the waiting list and his evidence that he had already done a hair follicle test. So, it appears that these would not be burdensome orders for the father. 
170	It would also mean that the children would benefit from having time with a father who had hopefully gained some insight from the parenting orders program and the protection that a hair follicle test would provide. 
171	I propose to make orders sought by the mother for professional supervision. I also propose to make orders that supervision be at the father’s expense as he is not paying child support. 
Other orders
172	The father has been communicating with the children by video call twice a week and the mother proposes that this continues. There is no evidence that this is anything other than a positive experience for the children so I will make those orders.
173	The mother seeks restraints be made on a final basis. Section 68B of the Act empowers the court to grant injunctions that it considers “appropriate” for the welfare of the child. These may include injunctions to protect the child, the child’s parent or caregiver. The injunctions may require that a person stay away from a particular place where a child, parent or caregiver lives, works or attends school.
174	In exercising the court’s power to make restraints, the paramountcy principle does not apply unless the order to be made is a parenting order. The court holds a wide discretion, and the determination is dependent on the circumstances of each case and the nature of the restraint sought. I propose to make the restraints and injunction sought by the mother.
175	This is for the same reason that I have ordered sole parental responsibility to the mother, in particular the father’s belief that he owns the children, and the conflicting submissions he made around the application for recovery issue. I note the father had no objection to some of those restraints being made when taken through them under cross examination.
176	The remainder of the orders sought by the mother are relatively standard orders and the father had no objection to those when they were put to him during the course of the cross examination.
Recovery Order
177	The court is asked to make a recovery order. The power to do so is found at s 67U of the Act – tempered only by the requirement at s 67V to ensure that the making of a recovery order is in the best interests of the children.
178	The grounds for the making of the recovery order both on an interlocutory basis and on a final basis is to be found in my assessment of the primary and additional considerations and I do not intend to repeat that here, save to say I am satisfied that the father poses an unacceptable risk of harm to these young children, and that he will retrieve his “property” if given an opportunity.
179	 I am satisfied that the making of the recovery order together with the restraint is necessary and is in the best interests of the children.
IN CONCLUSION
180	I am satisfied that the orders I now make are in the best interests of the children, X and Y.

I certify that the preceding one hundred and eighty (180) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope.	

Associate: 

Dated:	14 May 2024