Beckford & Beckford (No 2)
[2025] FedCFamC2F 455
•9 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Beckford & Beckford (No 2) [2025] FedCFamC2F 455
File number(s): MLC 2438 of 2023 Judgment of: JUDGE MANSINI Date of judgment: 9 April 2025 Catchwords: FAMILY LAW – PARENTING – 3 children of separated parents and some 8 years of family law proceedings – where the parents seek variations to final parenting orders made in 2021 and consent to reconsideration – where final parenting orders since suspended by operation of interim orders and therefore no longer in force – to the extent that the general prohibition applies, the final parenting orders may be reconsidered by consent pursuant to s.65DAAA(3).
FAMILY LAW – PARENTING – where the remaining issues in dispute relate to youngest child and where she should live, when she should spend time with each parent and which parent should have sole decision making responsibility for her – consideration of s.60CC factors – final parenting orders made.
FAMILY LAW – HARMFUL PROCEEDINGS – litany of litigation and protective interventions – consideration of resultant trauma and harmful impact – reasonable grounds to believe that the children would suffer further harm if either parent instituted further proceedings against the other – parents would suffer financial harm – harmful proceedings orders made against both parents, requiring leave of the Court to institute further proceedings – no suppression of notification.
Legislation: Family Law Act 1975 (Cth) ss. 60CA, 60CC, 60CG, 61B, 61D, 64B, 65DAAA, 67ZW, 95, 102NA, 102QAC, 102QAE, 102QAG.
Family Law Amendment Act 2023 (Cth)
Cases cited: Beckford v The Federal Circuit and Family Court of Australia and the Judges and Justices thereof & Ors [2024] HCASJ 33
Beckford & Beckford (No 2) [2021] FedCFamC2F 657
Beckford & Beckford (No.2) [2020] FCCA 2775
Beckford & Beckford [2020] FCCA 2639
Beckford & Beckford [2021] FedCFamC2F 181
Beckford & Beckford [2024] FedCFamC1A 57
Beckford & Beckford [2024] FedCFamC2F 633
In the Marriage of Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725
Radecki & Radecki [2024] FedCFamC1A 246
Division: Division 2 Family Law Number of paragraphs: 212 Date of hearing: 10 - 12 February 2025 Place: Melbourne Counsel for the Applicant: Mr Howe Solicitor for the Applicant: Danielle Webb Lawyer Counsel for the Respondent: Ms Damon Solicitor for the Respondent: Juno Family Law Counsel for the Independent Children's Lawyer: Mr Foo Solicitor for the Independent Children's Lawyer: V M Family Lawyers ORDERS
MLC 2438 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BECKFORD
Applicant
AND: MS BECKFORD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
9 APRIL 2025
THE COURT ORDERS THAT:
1.The final parenting orders of 15 October 2021 may be reconsidered by the Court.
2.All previous orders be discharged.
For Z
3.Z’s mother have sole parental responsibility for Z and must keep Z’s father informed of all decisions she makes in the exercise of parental responsibility no less than once each month, by email to the father’s nominated email address.
4.Z live with her mother.
5.Z spend time with her father:
(a)On each alternate weekend from 3.30pm or the conclusion of school Thursday until 9.00am or the commencement of school Tuesday.
(b)During the school holidays after terms 1, 2 and 3 as agreed between the parents in writing or if there is no written agreement between the parents:
(i)In 2025, with her father for 1 week commencing from 1.00pm on the first Saturday of the school holidays until 1.00pm on the second Saturday;
(ii)In 2026, with her father for 1 week from 1.00pm on the second Saturday of the school holidays until 1.00pm the following Saturday; and
(iii)Alternating in each year thereafter.
(c)During the long summer school holidays after term 4 as agreed between the parents in writing or if there is no written agreement between the parents:
(i)In 2025/2026, with her father for 3 weeks from 1.00pm on the fourth Saturday of the school holidays and concluding on a Saturday at 1.00pm; and
(ii)In 2026/2027, with her father for 3 weeks from 1.00pm on the first Saturday of the school holidays and concluding on a Saturday at 1.00pm; and
(iii)Alternating in each year thereafter.
(d)At other times that are agreed between the parents in writing.
6.Z communicate with her father:
(a)Each week, by telephone or video call on Wednesday between 6.00pm and 6.30pm with Z’s father to instigate the call and her mother to facilitate the call and to ensure that the device to be used is charged;
(b)On the following additional days (if the parent does not have Z in her care on these days): Z’s birthday; each siblings’ birthday; each parent’s birthday; Mother’s day; Father’s day; Good Friday; Easter Sunday; Christmas Eve; Christmas Day; Boxing Day; New Year’s Eve; New Year’s Day;
(c)If Z expresses a view to communicate with either parent whilst in the care of the other, the resident parent encourage and facilitate telephone communication occurring; and
(d)At other times that are agreed between the parents in writing.
For Y
7.Y’s father have sole parental responsibility for Y and must keep Y’s mother informed of all decisions he makes in the exercise of parental responsibility no less than once each month, by email to the mother’s nominated email address.
8.Y live with her father.
9.Y spend time and communicate with her mother in accordance with Y’s wishes.
For Z and Y
Communications between the parents
10.The parents communicate about parenting matters in writing by SMS and/or email and any communication between the parents is to be restricted to children’s matters only.
11.The parents keep each other informed of their contact telephone number and residential address and advise of any change within three (3) days of such change occurring.
Changeovers
12.During the school terms, changeover will occur by drop off at school and collection from school.
13.During the school holidays, changeover shall be effected by the father who shall deliver the child/ren to the mother's home at the commencement of time and collect the child/ren at the conclusion of time and remain in their vehicle during changeover.
Medical
14.Each parent is to advise the other parent by way of telephone or SMS as soon as practicable, in the event that either of the children become seriously ill, require emergency or major medical treatment or are involved in an accident whilst in the care and control of that parent.
15.Each parent is to advise the other parent of any medication the children are taking and ensure that any such medication is provided by the other parent.
16.Each parent is to keep the other informed in relation to the contact details, address and telephone numbers of any medical practitioners that the children attend upon and shall authorise any such medical practitioner to provide information to the other parent regarding the children, at the request of the other parent.
Education
17.The resident parent with sole parental responsibility is to authorise any school at which the children attend to provide to the other parent, in a timely manner, copies of all school reports and notices received from the school (including photograph order forms) together with details of all functions, parent/teacher nights and other extra-curricular activities to which parents are invited, whether they are related to the school or organised by other organisations.
18.The parents may attend all school functions including, but not limited to, parent/teacher appointments, school assemblies, open days and presentations, as well as sporting and other co-curricular and extra-curricular activities in which the children are involved.
19.The parents are to do all acts and sign all documents necessary to ensure that any educational institution at which the children attend is advised of both parents’ contact information.
Travel
20.In the event that either parent wishes to travel overseas or interstate with the children, the travelling parent shall provide to the non-travelling parent the following information:
(a)a minimum of 28 days’ written notice of their intention to travel:
(b)a copy of the return ticket;
(c)a copy of the itinerary;
(d)contact addresses and phone numbers of where the children will be staying and can be contacted on; and
(e)if travel is outside the Commonwealth of Australia, a copy of the children’s travel insurance.
21.If the travelling parent complies with order 20:
(a)the non-travelling parent is to provide their consent to the proposed travel in writing and such consent is not to be unreasonably withheld;
(b)if required, the parents are to sign any passport application and any other necessary documentation in respect of the children to allow the children to travel overseas; and
(c)the non-travelling parent is to provide the travelling parent with the travelling child/ren’s passport/s by no later than 2 weeks prior to the child/ren’s travel departure date.
22.Z’s passport is to remain in the mother’s possession.
23.Y’s passport is to remain in the father's possession.
Restraints
24.The father and his agents be and are hereby restrained by injunction from changing the child/ren’s primary residence outside the State of Victoria.
25.Both parents and their agents be and are hereby restrained by injunction from:
(a)attending at the child/ren’s schools, or permitting their agents to do so, except for:
(i)strictly in accordance with these orders for collection and delivery of the children when they are in or coming into that parent’s care;
(ii)at the request of the school;
(iii)to attend a school function in accordance with order 18 herein; or
(iv)with the prior written consent of the other parent,
(b)criticising, harassing, threatening, abusing or denigrating the other parent or members of the other parent's family or household in the presence or hearing of the child/ren or at the child/ren’s schools, or permitting the child/ren to remain in the presence or hearing of any third party engaging in such behaviour;
(c)discussing these proceedings with or in the presence of the child/ren;
(d)exposing the child/ren to family violence;
(e)exposing the child/ren to conflict between the parents and/or adult matters;
(f)recording the child/ren during any communication or changeover; and
(g)using the child/ren to communicate with the other parent.
Family dispute resolution
26.In the event of any dispute regarding the operation of these orders or the care and welfare of the children, the parents are to pursue and attend family dispute resolution, with a family relationship centre or person authorised under s.10G of the Family Law Act 1975 (Cth) (Act), as a first option to resolve any future disputes.
Intervention order
27.These are orders to which s.68Q of the Act applies and, to the extent that these orders are inconsistent with any intervention order, these orders shall prevail to the extent of the inconsistency.
Harmful proceedings
28.The father be prohibited from instituting parenting proceedings under Act against the mother without such leave of the Court as may be granted under s.102QAG of the Act.
29.The mother be prohibited from instituting parenting proceedings under the Act against the father without such leave of the Court as may be granted under s.102QAG of the Act.
AND THE COURT NOTES THAT:
A.In these orders:
“Z” means the child Z born in 2014.
“Y” means the child Y born in 2010.
“father” means the applicant father MR BECKFORD born in 1979.
“mother” means the respondent mother MS BECKFORD born in 1979.
B.The parents agreed that it be noted on these orders that the mother is willing to participate in family therapy with Ms J if the father is willing and able to:
·meet the cost of such therapy; and
·facilitate X and Y’s attendance.
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).
PART A: THE CASE BEFORE THE COURT
[4]
Key issues
[8]
Summary of evidence
[13]
PART B: PARENTING ORDERS
[103]
Statutory framework
[103]
The respective contentions
[113]
Threshold issue - reconsideration of final parenting orders
[124]
Best interests of Z
[128]
Best interests of Y
[159]
Parenting orders to be made
[164]
Resolution
[185]
PART C: HARMFUL PROCEEDINGS ORDERS
[186]
Statutory framework
[186]
The respective contentions
[190]
Are there reasonable grounds to believe either parent and/or the children would suffer harm if the father, or the mother, instituted further proceedings against the other?
[195]
Other relevant factors
[200]
Resolution
[209]
REASONS FOR JUDGMENT
Judge Mansini
This is an application for the Court to decide future parenting arrangements for Y and Z, now 15 and 11 years of age.
For some 8 years, the family has been involved in a series of child-related intervention and court proceedings. It has been a traumatic period for all of them, especially the children.
These reasons explain the Court’s decision about the orders made in the children’s best interests and why orders to prevent further proceedings without leave of the Court are necessary.
PART A: THE CASE BEFORE THE COURT
These proceedings were initiated on 9 March 2023 and finally heard over 3 days on 10, 11 and 12 February 2025.
The mother and father are parents to 3 children:
(a)X, 19 years of age at the time of these reasons;
(b)Y, 15 years of age at the time of these reasons; and
(c)Z, 11 years of age at the time of these reasons.
The family has been living with parenting arrangements made by interim order some 18 months ago, by which X and Y live with their father and choose to spend no time with their mother and Z lives with her mother and spends 5 nights per fortnight with her father and siblings. In each case, the resident parent has sole parental responsibility (the ongoing interim arrangements).
The materials relied on are summarised at Annexure A to these reasons.
Key issues
By the effluxion of time, X is no longer bound by the ongoing interim arrangements or subject of these proceedings.
On account of her age and strong views demonstrated by her actions over the past 2 years, the parents now agree that it is in Y’s best interests to continue living with her father and spending time with her mother as she wishes. They also agree that Y’s father continue to have sole responsibility for major decisions involving her.
In Z’s case, the mother and Independent Children’s Lawyer (ICL) seek but the father does not agree to a continuation of the ongoing interim arrangements. The Court is asked to determine the following key issues:
(a)Where Z should live, with her mother or father;
(b)When (not whether) Z should spend time with each parent; and
(c)Which parent should have sole decision-making responsibility for major decisions in relation to Z.
There are a range of ancillary parenting matters to be determined, some of which are agreed.
There is also a question about whether the father, and also the mother, be prevented from instituting proceedings under the Family Law Act 1975 (Cth) (Act) against the other parent without leave of the Court.
Summary of evidence
The matter has a substantial history and involves some strongly contested factual matters. It is not necessary to resolve all of those matters for the purposes of the present proceedings.
Findings of fact and orders made in 4 substantive prior decisions of this Court (of other Judges, not subject of any successful appeal) are not determinative of the questions presently before the Court, but along with other court decisions involving the family, have been considered to the extent that they provide relevant context.
The following is a summary of the relevant evidence that is before the Court in this matter. For completeness, any recitations of non-contentious evidence constitute findings I have made.
Chronology of key events
Having separated in September 2017, the mother and father were divorced in early 2019. Around the time of separation, both parents took family violence interim intervention orders out against the other and the mother was subsequently charged for contravention of the intervention order against her on 2 separate occasions in 2018.
On 12 August 2019, orders were made substantially by consent such that the children were to live with the father and the parents had equal shared responsibility (first parenting orders). Those orders were intended to be final and, it is uncontroversial, were substantially complied with until around March 2020.
In March 2020, following incidents involving alleged physical dragging of Y by her mother, an alleged physical altercation between the children’s mother and paternal grandparent and an admitted inappropriate display by the mother at changeover, X stopped communicating with her mother and the children did not spend any time with their mother for a period.
Around late June 2020, amid the global COVID-19 pandemic, the father relocated with the children from Melbourne, Victoria to City B, Queensland. He did so unilaterally and without notice to the children’s mother.
On 24 July 2020, having learned that X had been removed from her high school, the mother commenced proceedings in this Court seeking variation of the first parenting orders to a week about arrangement.
On 30 July 2020, the mother learned of the relocation to Queensland and sought intervention of this Court. Ultimately, on 21 August 2020, an order was made by another Judge of this Court for return of the children (in Beckford & Beckford [2020] FCCA 2639 per Judge Carter as she then was) (first return orders). On 16 and 18 September 2020, the father filed a notice of appeal and sought a stay of certain of the first return orders. On 8 October 2020, the father’s application for stay of the first return orders was refused (in Beckford & Beckford (No.2) [2020] FCCA 2775 per Judge Carter as she then was). On 4 November 2020, a Registrar made a recovery order (first recovery order) and the children were subsequently returned to their mother by the Australian Federal Police. On 13 November 2020, the 21 August 2020 orders requiring the return of the children were discharged.
In mid-2021, a family violence intervention order, applied for by a member of Victoria Police, was consented to by the mother (on a non-admission basis) and named the paternal grandmother as a protected person for a period of 12 months.
On 15 October 2021, final orders were made by another Judge of this Court which provided that the children were to live with their mother who was to have sole parental responsibility for them, X was to spend time with her father as she wished and Z and Y were to spend time with their father on alternate weekends and half of the school holidays (in Beckford & Beckford [2021] FedCFamC2F 181 per Judge Carter as she then was) (most recent final parenting orders).
In November 2021, Child Protection received a report raising concerns for the safety and wellbeing of Y who was in the primary care of her mother.
On 8 November 2021, the father withheld the children and, on 11 November 2021, their mother sought intervention of this Court. Ultimately, on 19 November 2021, an order was made by another Judge of this Court for return of the children to their mother and suspending time with their father for a period (in Beckford & Beckford (No 2) [2021] FedCFamC2F 657 per Judge Carter as she then was) (second return orders). The following day, a recovery order was issued (second recovery order) and the children were subsequently returned to their mother by the Australian Federal Police.
In December 2021, the children were placed into the care of the Department of Families, Fairness and Housing (DFFH) following a report by the paternal uncle of alleged physical violence by the mother against Y. According to the father’s evidence, it was on or about this day that X told him of an incident at the mother’s home which X knew of because Y had sent (to the son of her father’s partner) a photo of her swollen lip caused by her mother hitting her.
On 2 December 2021, an interim accommodation order was made which provided for Y and Z to live with the paternal uncle. The children’s spend time arrangements with their parents was suspended until:
(a)on 27 January 2022, the interim accommodation order was varied to permit Y and Z to spend time with their father; and
(b)on 14 February 2022, the interim accommodation order was varied again to provide for Y to be placed in the care of her father and Z to be placed in the care of her mother,
which arrangements were extended on 20 April 2022.
In early 2022, a family violence intervention order, applied for by the father, was consented to by the mother (on a non-admissions basis) and named the father and children as protected persons for a period of 12 months.
In mid-2022, the mother was charged with unlawful assault in respect of the incident with the paternal grandmother.
On 14 September 2022, a family preservation order was made and provided for Y to remain in the father’s care and Z to remain in the mother’s care until 13 March 2023. In that instance DFFH was the intervenor and their records indicate that Child Protection agreed to the order for 6 months to allow the parents to seek a variation of the most recent final parenting orders so that Y could continue to reside with her father without the involvement of DFFH.
On 9 March 2023, the subject proceedings were commenced by the paternal uncle seeking that the father have sole parental responsibility of the children, the children live with the father and the children’s time with the mother be suspended on an interim basis. The paternal uncle also sought urgent ex-parte orders.
On 10 March 2023, the paternal uncle was notified by way of email that a Registrar of the Court had rejected the Applicant’s proposal to have the matter listed urgently. That same day, Child Protection was notified of a report raising concerns in regard to the children’s exposure to a person charged with sexual offending and likelihood of abuse in their mother’s care.
On 13 March 2023, the family preservation order expired. Y continued to live with her father and did not return to her mother’s care at that time. The involvement of Child Protection ceased on that day, following a file review which identified that the concerns reported to Child Protection on 10 March 2023 were historical in nature and had been investigated.
On 29 March 2023, the paternal uncle’s application for review of the Registrar’s rejection of an urgent hearing was dismissed by another Judge of this Court.
In early 2023, 3 days before the family violence intervention order was due to expire, Child Protection received a further report raising concerns in relation to the children due to their exposure to their father’s perpetration of family violence toward their mother and concerns about his mental health. A file review was conducted by Child Protection and identified that the concerns subject of the report were historical in nature and had been investigated. Child Protection determined that their intervention was not warranted.
A day later, 2 days before the family violence intervention order was due to expire, an interim family violence intervention order was made on application by the father. The interim named the father and children as protected persons pending final order, variation, revocation or withdrawal. The interim order was opposed by the mother on that occasion.
On 20 April 2023, DFFH released a report pursuant to s.67ZW of the Act (DFFH report). The DFFH report summarised the prior child protection history of the family in terms that there had been 15 previous reports to Child Protection for X, Y and Z in the period 2013 to 2021. The DFFH report detailed the then current Child Protection Intervention by reference to the report of 4 November 2021 (regarding Y’s safety), the second return orders made by the Court, the report of 2 December 2021 by the paternal uncle (regarding alleged physical violence by the mother against Y), the interim accommodation orders and family preservation order and further reports based on what were found to be historical allegations raised in early 2023 (outlined above). Ultimately, the DFFH report concluded that DFFH did not intend to intervene in the proceedings and no further action would be taken on the matter. The following were also recorded in the DFFH report as at the time of its issue:
There is no new information to indicate an increased risk to the children that would warrant intervention by Child Protection.
It is assessed by Child Protection that the Federal Circuit Court of Australia is the most appropriate platform in making decisions regarding parenting disputes.
In mid-2023, the interim family violence intervention order was again extended on an interim basis pending final order, variation, revocation or withdrawal. The interim order was again opposed by the mother on that occasion.
On 27 July 2023, the paternal uncle filed an application in a proceeding which sought that the ICL be discharged, the matter be transferred to Division 1 of the Court and that previous orders of the Court be set aside on basis of alleged non-compliance on the part of the mother.
Later in mid-2023, the interim family violence intervention order was again extended on an interim basis pending final order, variation, revocation or withdrawal. The interim order was not opposed by the mother on that occasion.
On 21 August 2023, for purposes of interim proceedings before this Court, a Child Impact Report was prepared (Interim Child Impact Report). The report writer, a Ms L, is an appointed Child Court Expert who holds a tertiary qualification and has over 25 years’ experience in social work including 3 years as a Child Court Expert.
On 6 September 2023, interim parenting orders were made which the family has since lived by for some 18 months (by a Registrar of the Court, earlier defined as the ongoing interim arrangements). The ongoing interim arrangements were not accompanied by written reasons. Since those interim orders were in place and at the time of hearing, X and Y have lived with their father and they have chosen to spend no time with their mother. Z has lived with her mother and spent 5 nights each fortnight with her father and siblings and half of school holidays. The resident parent has had sole parental responsibility for the child in their care and obligations to communicate with the other parent about all decisions made by the other pursuant to the ongoing interim arrangements no less than once per month by email to a nominated email address.
On 18 October 2023, the paternal uncle discontinued his involvement in these proceedings, at which time the father became the applicant.
In late 2023, the interim family violence intervention order was again extended on an interim basis pending final order, variation, revocation or withdrawal. The interim order was not opposed by the mother on that occasion. This interim order was due to expire in late 2024 and is the most recently documented family violence intervention order in evidence before the Court.
On 23 January 2024, these proceedings were set down for final hearing before another Judge of this Court. The trial directions referred to sections of the Act that had been repealed. On 20 February 2024, the father sought to appeal the trial direction orders which appeal was incompetent and not accepted by the Registrar which decision the father then sought review of and was upheld on review by decision of 15 April 2024 (in Beckford & Beckford [2024] FedCFamC1A 57 per Justice Austin of Division 1 of this Court).
On 10 May 2024, the father filed an application for constitutional or other writ in the High Court of Australia by which he sought to challenge the trial directions of 23 January 2024 and the outcome of his attempted appeal. On 13 May 2024, these proceedings were adjourned pending the outcome in the High Court of Australia and another Judge of this Court declined the father’s recusal application (in Beckford & Beckford [2024] FedCFamC2F 633 per Judge Bender). On 29 July 2024, a single Justice of the High Court of Australia dismissed the father’s application (in Beckford v The Federal Circuit and Family Court of Australia and the Judges and Justices thereof & Ors [2024] HCASJ 33 per Justice Edelman) and, in doing so, reasoned (in summary) that the application was manifestly hopeless and an abuse of process: at [3].
In parallel to the progress of these proceedings and that in the High Court of Australia (as above), on 12 March 2024 the father filed a contravention application alleging that the mother had withheld Z between 22 and 27 February 2024 which came before a Registrar of the Court on 11 April 2024. Ultimately, on 15 August 2024, the father was granted leave to withdraw the contravention application and the contravention hearing for 16 August 2024 was vacated.
On 21 January 2025, the father filed an amended initiating application in these proceedings and, on 29 January 2025, the mother filed an amended response.
As at time of final hearing it was the evidence of the parents that the father had made a further application for extension of the family violence intervention order, which application was opposed by the mother and due to be heard in the Magistrates Court in early 2025. At hearing before the Court, the father confirmed that there was one family violence intervention order in place which had been subject of various extensions due to postponements of the hearing of the matter. The father also told the Court that he had reported the mother for alleged breaches of the family violence intervention order but she had been convicted of none of them.
About the mother, her parenting behaviours and mental health
The mother was born in Country N and speaks English and Language O. She has some family and friends in Australia and has been supported by charitable organisations over the years. She has been Z’s primary carer for the majority of her life. At the time of hearing, the mother was not employed and received financial support through social security payments and some child support payments at the rate of $65 per month since December 2024 (following adjustments due to more recent tax returns, which the father conceded would need to be adjusted up again since his recent employment). The mother said she had provided stable housing for Z which was not understood to be disputed.
In his trial affidavit the father deposed to a series of historical incidents of alleged family violence, sexual and physical assault in respect of X and Y when in their mother’s care or presence – some (if not all) of which have resulted in intervention of DFFH as outlined above. In cross-examination, the father regularly sought to answer questions by reference to these allegations and described the children’s past behaviours as including nightmares, anxiety, agitation, scared, trouble sleeping, refusal to return to their mother - which he believes was a result of their experiences. The father gave evidence of his fears about prospective harm to Z in her mother’s care being borne of his past experience of physical and mental harm of X and Y in their mother’s care and his belief that the mother has mental health issues which are unmanaged. In cross-examination, the father acknowledged that there have been no reports of such incidents involving Child Protection intervention in respect of Z or in the past 2 years.
Other historical concerns raised in the father’s trial affidavit were that the mother had lost her driver’s license on account of refusal to undertake a drug test, alleged alcohol abuse issues, alleged breach of an intervention order against a Mr P (a former friend of the mother’s) and that the mother has been convicted of assaulting the paternal grandparent. He also gave evidence that the mother had made suicidal threats in 2021.
The father gave evidence of some recent examples of allegedly exhibited poor parenting behaviours when Z has been in the mother’s care, such as:
(a)In mid-2024, an alleged conflict between the mother and a homeless person which was reported by Z to her father and which he sought to say was established by a photograph taken of graffiti;
(b)In September 2024, a father’s day breakfast at Z’s school which Z’s mother agreed that the father could attend but then also attended and stayed at the event, ending with Z allegedly telling her father that her mother had been cursing and abusing the family that day after school which Z found upsetting;
(c)In November 2024, Z gave her father a letter addressed to X from the dentist and Z explained she had to grab it before her mother destroyed it as her mother had been throwing out and burning anything to do with X and Y; and
(d)On or around 1 January 2025, Z allegedly told her father that her mother had been complaining since New Year’s Eve about him, his partner and her sisters.
The father also referred to unspecified occasions when Z has muted a phone call with her father to block out whatever her mother is saying in the background and has been frustrated when the mother plays loud music in the background of a phone call between him and Z requiring them to communicate by text instead of talking.
The father also described instances of the mother’s denigration of him in the presence of the children including a recent example, in January 2025, to the effect that Z has told him about her mother complaining about the father, his partner and that she has to pay child support. By way of another example, in May 2024, the father and his partner told of an instance where the family all came into contact at a medical clinic and the mother was visibly upset with the partner’s presence and allegedly threatening. He also deposed to concerns about the mother’s negativity towards the father’s partner and her son (who they referred to as the children’s step-brother). The father pointed to the Interim Child Court Expert Report which had included a reference to the elder children having reported their experiences of prior exposure to denigration of their father by the mother.
The father did not accept, when put to him, that his position in these proceedings (5 nights per fortnight with the mother) was inconsistent with both his purported fear of risk that Z will be exposed to physical and sexual assault and the absence of issues since the ongoing interim arrangements have been in place. Rather, the father sought to emphasise his position for the future is that they all seek support through family therapy.
It was also alleged by the father that Z has fallen behind at school as Y had done when she lived with the mother. He said she is below standard in maths and is learning in the English as an additional language stream. The father does not believe the mother is or can address Z’s educational needs. For his part, the father wants Z (and Y) changed from their current religious school to a public school. The father has had issues with the school because he believes they did not act when Y reported (or tried to report) incidents to them. However, he told the Court at hearing that he is more concerned about Z’s health than the high school she is to be enrolled in.
For her part, the mother strongly denied many of the allegations but also acknowledged that, in the past, there have been instances of inappropriate behaviour on her own part, there have been physical altercations between herself and Y (in particular, she had “pushed [Y] back” - subject of the 1 December 2021 report), and she has denigrated the father in the presence of the children. In respect of the more recent allegations, the mother maintained that the 12 March 2024 contravention application by the father arose from a genuine misunderstanding between them about the operation of the Court orders which affected 5 nights of the long summer holidays. Regarding the incident at the medical clinic, the mother explained her concern that she was being set up to contravene the family violence intervention order. The mother did not admit the January 2025 and November 2024 allegations.
Prior judgments of the predecessor to this Court have included findings about the mother’s shortcomings in terms of her past behaviours and past choices. There have been findings that the mother had denigrated the father and members of his household causing distress to the children and had engaged in an uncontained emotional display at the father’s home in July 2021. In the past, the mother has been found to have experienced difficulties managing Y’s behaviours and in getting the children to school.
In the present proceedings, the mother told the Court of her efforts to manage her mental health (medical help and medication) and to learn better parenting behaviours by attending M Services, in accordance with a family preservation order. In her trial affidavit, the mother acknowledged her diagnoses of major depression, post-traumatic stress disorder, and other mental health conditions and she deposed to taking medications for management of those conditions. She deposed to seeing a clinical psychologist every 3 to 4 weeks and produced evidence of her attendance to the Court. Prior psychiatric assessments of the mother filed in these proceedings were not updated in proximity to the final hearing and Dr C was not called to give evidence at final hearing nor were his prior reports directly relied upon in these proceedings. Dr C’s assessments were summarised in prior judgements of this Court and the outcomes are consistent with the mother’s admitted conditions in these proceedings.
The mother also deposed to Z’s academic progress being satisfactory according to her school and that no concerns had recently been identified. The mother said that she has demonstrated capacity to care for Z by complying with Court orders to ensure Z received psychological support and providing Z to her father for visits. When pressed about her weaknesses as a parent, the mother told the Court that she considered herself to be too soft and that her daughters do not take her seriously sometimes.
Further, the mother said that she is no longer associated with the third party (with whom the mother had a prior relationship) and who was involved in some of the allegations in respect of X. At hearing she confirmed that the children are no longer exposed to that person.
About the father, his parenting behaviours and mental health
The father was born in Country N, speaks English and Language O. He has a brother, parents and extended family in Australia whom the mother described as emotionally and psychologically abusive of her in the past and whose past involvement in these proceedings she disagreed with. The father has been the primary carer of X and Y for a substantial part of their lives. At the time of hearing, the father had been unemployed but just 2 weeks prior secured a casual job as a labourer and the father’s partner was working 2 hours per week but received financial support from social security payments and weekly WorkCover payments having been injured at work. They live together with the partner’s son, X and Y in a house owned by the father’s brother. They have a private agreement to pay rent but at the time of hearing were behind on those rental payments on account of their financial situation. The father told the Court that, although he was represented by a lawyer courtesy of Victoria Legal Aid at final hearing under the rule of s.102NA, he has spent some $600,000 on legal fees in the course of the various proceedings which would have been the children’s inheritance. He no longer has any superannuation and, according to his partner, has loaned the money for legal fees.
As outlined above, in 2020, the father removed the children from Victoria and took them to Queensland without the mother’s knowledge, resulting in the issue of a recovery order. In 2021, the father refused to return the children to the mother’s care, resulting in the issue of a further recovery order. In the course of the second return order proceedings, the father told the Court that he would not be returning to Victoria even if ordered and, in that instance, did not persuade the Court of any pressing or urgent requirement to have moved without notice. In each instance of the father withholding the children, the children were recovered by the Australian Federal Police. The mother gave non-specific evidence that, in the past, the father has not complied with the spend time conditions of the family preservation order in relation to Y and has not returned Y to the mother’s care since its lapse.
In her trial affidavit, the mother gave evidence of her ongoing concerns that the father may withhold Z and described a recent incident of withholding in the 2024/25 summer holidays. The mother said that she had emailed the father seeking clarification that he would collect Z on 4 January 2025 and return her on 25 January 2025. After collecting Z, the father informed the mother that he intended to keep her in his care until 1 February 2025. Following correspondence between the mother’s solicitor to the father’s solicitor and a request for Z to be returned by 18 January 2025, Z was returned on 22 January 2025.
The Child Court Expert had expressed concerns in the Interim Child Impact Report about the father’s communication with the children about the family dispute and his negative views of their mother. The mother also deposed to her perspective that the father continues to alienate the children and turn the children against her. She gave general examples of his past belittling and put downs in the presence of the children.
The mother also gave evidence about the father’s alleged role in contravening the earlier parenting orders by recording conversations between himself and X in or around 2021. In early 2023, the mother was interviewed by police in relation to those matters and was informed that the father had provided them with copies of text messages and recordings in support of his claim that the family violence intervention order had been breached. The father was taken to extracts of police records at hearing which showed that there had been recordings made by Y between her and her mother in 2021 and told the Court that he had not known that Y was making those recordings. The father sought to characterise Y’s recordings as justifiable in the context of nobody listening to her. The mother pointed to the evidence that, in early 2023, Child Protection ceased their involvement with the case at the lapse of the family preservation orders as they had no further concerns. At hearing, the father gave evidence that he has made a complaint to the Independent Broad-based Anti-corruption Commission (IBAC) alleging that Victoria Police had been biased and had not done their job properly and foreshadowed that he may yet make a complaint about DFFH’s conduct of the matter.
The mother also gave evidence of her concerns about the father’s capacity to provide for the children’s needs based on his attitudes and behaviours including alleged alienation, refusal to pay child support, lack of commitment to co-parenting and disregard for the children’s wellbeing by continual litigation.
The mother deposed to her own belief that the father’s actions in continually bringing court proceedings is contrary to the children’s wellbeing.
The mother accepted the benefit to Z in having her father meaningfully involved in her life but described her worry that increased involvement would risk damaging her existing relationship with Z and the existing stability in the Z’s life. At hearing the mother gave evidence that she feared that the father would withhold Z in the future. However, when pressed, the mother was unable to particularise why this fear would be diminished if the father was ordered spend time with Z of 5 nights instead of 7 nights each fortnight.
No particular concerns were raised in relation to the father’s mental health. He had also engaged a psychiatric/psychological assessment for purposes of prior proceedings which did not identify any concerns according to prior judgements of this Court which evidence was not directly relied on in these proceedings.
For his part, the father told the Court that he is no longer seeking to relocate to City B which was a move he had made in the past to protect the children and remove them from the familial conflict.
When questioned about his conduct in unilaterally removing the children from their mother in June 2020 and November 2021, and when asked to describe how he would typically respond if Z were to complain about her mother, the father did not give direct answers and repeatedly returned to the allegations of sexual and physical assault of X and Y. He also said that he feels the children blame him for not protecting them in those past instances. He presented as frustrated by the interventions of the justice system that have prevented him from managing the issue as he sees fit (eg. relocating to Queensland). When pressed about whether there was any explanation for his past non-observance of Court orders, the father gave a candid answer:
It’s a pretty hard [question] to answer, your Honour. Truthfully, it’s a pretty hard [question]. I do understand the order, but every time I keep coming back, I look like I’ve been let down. This is what makes me not accept the order because of my kids, what happened.
…
I do accept all these orders, but every time when things happen like that, it looks like I’ve been let down. And that’s why it’s hard for me to accept.
As to the more recent occasion in the 2025 summer holidays, the father claimed the orders were defective in this respect and in any event there was an agreement that Z join him for a family camping trip on a date that was one week earlier than the Court’s orders provided. In cross-examination, he said he had not understood that he was to have no longer than 2 weeks with Z notwithstanding the agreed earlier commencement date. He also said that he had been out of contact whilst camping therefore could not get clarity from his lawyers. The father also complained that he had difficulty in reinstating his time after the school holidays.
The father strongly denied any alienation of the mother or to have influenced the children with his negative views about their mother and denied recording or requesting recording contrary to court orders. The father told the Court that he is more likely than the mother to facilitate a relationship between her and the children than the other way around and Judge Carter was wrong about her decision to the contrary.
The father claimed to have completed a parent separation program, Tuning Into Kids, but did not present a certificate in support. He also claimed to have sought support of a psychologist to get Y to spend time with her mother but, when pressed, withdrew this evidence.
In cross-examination, the father was not able to articulate how he would handle Z’s issues with her mother. Whereas the father’s partner gave evidence on affidavit and orally in cross-examination about her approach to Z’s alleged negativity toward her mother which includes focussing on positive things and trying assist Z to put her thoughts into perspective.
The father told the Court of the impact of the Court proceedings on the children. His evidence was that Y has experienced psychological stress by being forced to choose between her mum and himself and both X and Y have been fairly distressed about not getting listened to. However, strident in his views about the mother’s part, he did not appear to accept any responsibility for his own part in their circumstance.
Co-parenting relationship
Both parents gave evidence of a non-existent co-parenting relationship. The Child Court Expert, in the Interim Child Impact Report, had identified a toxic family dynamic giving rise to concerns about the parents’ capacity to agree decisions in the children’s best interests. It was not understood to be disputed that theirs continues to be a strained relationship.
The parents both gave evidence of keeping the other updated in relation to the child/ren in their respective care. For her part, the mother complained the father does not cooperate and his communication is not sufficiently regular or open. There was an example of difficult and confused communication between them precipitating the contravention application in 2024. By way of example, in respect of the frequency of updates by the father (or lack thereof) in relation to Y, the mother said that she was not kept updated by email at least monthly as the ongoing interim arrangements required. In cross-examination, the father was taken to an email with the subject line “yearly update” that he had sent to the mother in the weeks prior to the final hearing. Initially, he told the Court that he did not know that he needed to update the mother by email on at least a monthly basis about all decisions made by him in relation to (X and) Y pursuant to the ongoing interim arrangements. After further questions, he came to tell the Court that he had just started giving medical updates about Y on a monthly basis.
For his part and for example, the father said that the parents can not even communicate about the doctor.
Beyond this, both parents consider their ability to communicate is significantly impaired by the breakdown of their relationship.
The mother also deposed to lapses in child support payments due by the father over the years which, according to the evidence of the father given in Court, is now in need of being recalculated since his recent employment. The father, for his part, emphasised that he has provided for all of the children in a range of ways (including medical) over the years without contribution of the mother.
There was no evidence of any particular differences in parenting approaches from a religious or cultural perspective.
There appeared to be a looming dispute about Z’s schooling. The father proposes to send Z to a public school as he claimed that he cannot afford to send her to a religious high school and has had issues with the school (outlined above). Whereas the mother maintained that it is her preference that Z (not yet commenced high school) remains at a religious school because they provide a quality education and further noted that Z is settled and progressing well at her current religious school.
In relation to medical decisions, regarding Z, the mother gave evidence of a recent occasion on 15 November 2024 when the father had informed her that he had taken Z to a GP and obtained a referral to a psychologist under a mental health plan. At the time of hearing, the father’s evidence was that he had been arranging and paying for Z to see a psychologist, and the psychologist had recommended a paediatrician. It was established in cross-examination of the father that the appointments and referral had occurred without the mother’s prior consent.
The father sought to respond to questions about the regularity of his communication updates with the mother (outlined below) by explaining that he has gone to lengths to support Y who came to him with a severe psychological trauma after what had happened to her, with anxiety and sensitive hearing. He confirmed that Y is not currently getting psychological help because she refuses to attend. When questioned further, he said that family therapy with her mother would be the best thing to stick with but did not accept the proposition that family therapy is a mere possibility and was not happening at the time of the hearing in order to substantiate the contention that Y is presently receiving psychological support as he had indicated.
In relation to changeovers, the ongoing interim arrangements provide for the father to effect the changeovers which is understood to complement the interim family violence intervention orders. The mother expressed her position that the father should conduct changeovers and not his family members. She alleged to have been threatened in the past by the father’s brother upon changeover and to have been alleged to have harassed the father’s partner and that Z has claimed the father’s partner does not want to pick her up from school. The father told the Court that most changeovers happen at school however, in the school holidays, he was always forced to do it and felt the need to bring a witness on each occasion because of something the mother might do (usually his partner, in the past his dad or his brother). Ordinarily he stays in the car for changeover, except for one time which resulted in a Court order for him to stay in the car.
The mother was able to speak positively about the father’s parenting saying he is protective of the children. She accepted some responsibility for the breakdown of their co-parenting relationship. The mother said that she would participate in family therapy if given the opportunity – in circumstances where she cannot afford to pay for at least half of the fee. She described her hope that X and Y would engage in family therapy so she could tell them how much she misses them and that she is so sorry for what has gone on.
The father did not articulate anything positive about the mother’s parenting or any responsibility for his role in the breakdown of their relationship but was also understood to say that he would welcome and participate in family therapy. He did not give direct evidence about the matter of payment but, through his representative, submitted that he would pay for family therapy.
Views of the child/ren
In their case outline filed 5 February 2025, the ICL summarised their instructions as follows:
The ICL notes that the two older children, [X] and [Y] have made their views clear, that they wish to reside with the Father
ICL met with [Z] on two occasions in 2024.
On both occasions, [Z] expressed a desire to spend more time with the Father, however, also indicated that she was happy living with the Mother.
During the second meeting, in August 2024, [Z] was clear to the Independent Children’s Lawyer that she wants the legal proceedings to end.
The most recent objective evidence of the children’s views was that of the Interim Child Impact Report, which assessment was based on attendance by the children and their parents on the family consultant in August 2023.
Back then, the Child Court Expert had recorded Z’s preference was to live with her father and spend time with her mother every day for one hour after school. At the time, Z was concerned about her mother’s distress if she went to live with her father and therefore felt it was important she remain in regular contact with her mother. Z had spoken about her mother’s cooking and believed her mother cared for her but was uncomfortable with alleged yelling. The Child Court Expert had ultimately recommended that Z’s time with her father gradually increase to 4 to 5 to 7 nights in each fortnight.
In cross-examination at hearing, the Child Court Expert elaborated on her recommendations in the Interim Child Expert Report by reference to her notes and best recollection. She told the Court that she had the sense that there was a love and care that Z had for her mum and that she really wanted to protect her mum and her mum to feel okay – Z did not want to upset her mother but also wanted to still have contact with her as well. The Child Court Expert was of the view that, at the time, Z was too young to appreciate the reasons for the different orders as between her and her siblings and this had been a source of some resentment for Z but also that she wanted to be able to have the experience of living with her siblings and her father.
Also at the time of the assessment, the Child Court Expert had assessed the 3 siblings as having a very close relationship which had been a constant source of stability in their lives. At the time of their interviews, the siblings had each described their close connection with one another. The Child Court Expert told the Court that, at a general level, keeping siblings together is an important factor. However she came to express the opinion that, in the present case, the sibling relationship may be a factor weighing both positively (given their bond) and negatively (given the elder siblings’ feelings toward their mother) in terms of the prospect of increasing Z’s time with the father.
The Child Court Expert said there were some other issues that had a bearing on her recommendation of an escalation of time in August 2023, namely the fact that the father had a slightly greater ability to provide for Z (whether from a materialistic or a day-to-day care level) where Z had conveyed feeling uncomfortable with things like being yelled at by her mother.
At the time of hearing, the Child Court Expert said it was hard for her to comment but considered it unlikely that a shared care arrangement would work for this family based on the high conflict and the absence of a co-parenting relationship. When asked to elaborate, the expert maintained that equal time would be difficult to sustain in the circumstances known to her. Ultimately, the Child Court Expert was reluctant to give an updated recommendation not having assessed Z again since the ongoing interim arrangements or in proximity to the hearing. When informed of the ICL’s instructions from Z, given on 2 occasions and most recently in August 2024, that Z desired to spend more time with her father but was happy living with her mother, the Child Court Expert initially accepted that:
(a)Z had changed her mind about only wanting to spend time with her father; and
(b)If Z had expressed that she wanted to spend a little more time with her dad then an inference can be drawn that the current parenting arrangement is going okay.
In cross examination by the father’s Counsel, the Child Court Expert also said:
FATHER’S COUNSEL: In fairness, what the child has said to the Independent Children’s Lawyer in August last year was that she wants to spend more time with her father and, from memory, is happy with her mother. That’s her view in August of this year. Now, that view was expressed on a video call, and it’s conceded that the mother was present in the house when that video call was made. Not necessarily in the room with her, but certainly present in the house. And I’m going to be putting to Her Honour that that may have had some effect on [Z]’s expressed view; does that seem reasonable to you?
CHILD COURT EXPERT: That it could have affected her view?
FATHER’S COUNSEL: Yes?
CHILD COURT EXPERT: Yes, it could, in general terms.
The Child Court Expert had observed in the Interim Child Impact Report that the children were overwhelmed and disheartened by court processes and that the re-telling of their narrative has affected their emotional and educational development.
When the Child Court Expert was asked at hearing whether she would be surprised if Z, when speaking to the ICL’s instructor, affirmed that she wanted the matter to be finished, the Child Court Expert told the Court:
No, it wouldn’t surprise me, but her experience has also been very different to her older siblings as well. And I think at that time, there was the issue around the relocation to […] Queensland, so she was dealing with additional factors back then that she’s obviously not dealing with now, but that was an additional factor that was playing on her mind at that time.
The father deposed in his trial affidavit that the siblings remain close and of his concern at their separation. In oral evidence he said that time with the mother was hurting Z. He deposed to conversations with Z in which she had told him of arguments with her mother including about wanting to live with her father and sisters. The father also described instances when Z has allegedly reported to have been unhappy and lonely in her mother’s care, such as New Year’s Eve 2024, and how Z wants a normal life like her siblings. The father’s partner gave evidence that Z constantly says she wants to stay longer with them and perceives Z feels resentful of the social family time her sisters have when Z is not at their home.
The mother emphasised that her proposal would give Z a stable environment and enable Z to continue to have a relationship with her siblings and extended paternal family. The mother recalled conversations with Z where she has complained about not having her own room at her father’s house. The father suggested this evidence was influenced by the mother and recalled accounts of Z complaining to the father that the mother was making her complain to him about the bedroom issue.
PART B: PARENTING ORDERS
Statutory framework
This case was heard after the enactment of the Family Law Amendment Act 2023 (Cth). The legislative changes therefore apply to this case and the consideration of best interests factors below reflect the relevant legislation as at the date of final hearing.
Part VII of the Act sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied.
When deciding whether to make parenting orders, the Court must regard the best interests of the child as the paramount consideration: s.60CA.
However, where a final parenting order is in force in relation to a child, a Court must not reconsider the final parenting order unless the Court has considered whether there has been a significant change of circumstances since the final parenting order was made and the Court is satisfied in all of the circumstances that it is in the best interests of the child for the final parenting order to be reconsidered: s.65DAAA(1), see also the matters at s.65DAAA(2). Despite this general prohibition, in its discretion the Court may reconsider a final parenting order with the agreement or consent of all parties to that order: s.65DAAA(3).
Section 60CC of the Act provides for how the Court is to determine what is in a child's best interests by reference to a series of general considerations. Section 60CC(2) provides that I must take into account:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
Section 60CC(2A) requires that, in considering what arrangements would promote the safety of the child and each person has care of the child, I also consider:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
There are additional considerations at s.60CC(3), none of which are presently applicable.
In considering what order to make, to the extent possible to do so consistent with the child’s best interests, the Court is also required to ensure that the order is consistent with any family violence order, does not expose a person to an unacceptable risk of family violence and enables the Court to include in the order any necessary safeguards: s.60CG of the Act.
The Court may make parenting orders which confer “parental responsibility” for a child on a person, meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to children: ss.61D(1) and 61B of the Act. Such orders may deal with allocation of joint or sole decision-making responsibility in relation to all or specified major long-term issues: ss.61D(3) and 64B. Except to the extent expressly provided in a parenting order or necessary to give effect to such order (if any), a parenting order does not take away or diminish any aspect of the parental responsibility of any person for the child: s.61D(2).
The Court may, but is not required to, have regard to any or all of the s.60CC(2) matters when considering whether to make an order with the consent of all parties to the proceedings: s.60CC(4).
The respective contentions
The parents’ competing proposals for live with, spend time and major decision-making in relation to Z are effectively a mirror image of the other. The key difference is that the father seeks to change the interim status quo whereas the mother, supported by the ICL, seeks to continue the ongoing interim arrangements and have them enshrined as final parenting orders.
The father’s case is that his proposal keeps Z together with her siblings and affords Z some respite from her mother’s continued denigration of him and exposure to harm that her siblings have suffered in their mother’s care including serious incidents of conflict, family violence, alcohol abuse and manic behaviours. Were the mother’s proposal adopted, the father contended that he is gravely concerned that Z will be at unacceptable risk of abuse in her mother’s care and Z will suffer from the same harm as her siblings. He accepted that these particular fears are borne of his prior experiences but asked the Court not to accept the mother’s evidence that she is now appropriately managing her psychiatric conditions and of capacity to safely care for Z absent an updated psychiatric assessment.
The father further contended that the mother has, including in more recent times, behaved obsessively toward his new partner and in a threatening manner toward Z. The mother is alleged to denigrate the partner’s son in Z’s presence and to have had several relationships which put the children at risk. The father also raised concerns about Z’s educational progress and overall development.
And the father asked the Court to appreciate that his prior decision to unilaterally relocate all of the children to Queensland whilst Court orders provided for them to live with their mother was out of exhaustion, protection and fear about the ongoing risk to the children in their mother’s care.
The mother’s case, which the ICL supported, is that her proposal offers stability through maintenance of the ongoing interim arrangements. With reference to the father’s history of abusive behaviours, attempted undermining and alienation of particularly the elder siblings, she contends that an increase in time spent between Z and her father will negatively impact Z’s well-being and emotional stability, exposing Z to obstructive and volatile behaviours. Whilst respecting the importance of the father’s role and promotion of a relationship between him and the children, the mother asked the Court to find that Z, being younger than her siblings, would benefit from continuing to live in her mother’s primary care and less frequent exposure to her father’s attitudes and behaviours.
Were the father’s proposal adopted, the mother is concerned about an ongoing risk of alienation and damage to the mother’s existing relationship with Z. The mother asked the Court to find that these considerations outweigh the allegations of family violence and abuse against her which are historical and a substantial part of the evidence about which has been comprehensively addressed and resolved in prior proceedings before this Court and the Children’s Court. She also seeks changeovers be conducted by the father not his family members or partner on account of her views that his family may not encourage a positive relationship between the mother and her children.
The ICL told the Court that the reason why they had to support the current status quo is that there is really no evidence about Z, in terms of how she would react in an equal time arrangement, whether she would act well in the reverse arrangement (a 9/5 with her father as primary carer) and the Court should infer that the status quo is working for Z and should not order a change.
The ICL also told the Court that the “tipping point” in terms of time with Z was not the home base of having one household but, rather, how far one parent would go to act on their (respective) fears. The height of the submission was this:
It’s very concerning, from my instructor and my point of view, because placing a child with a parent who has such a negative viewpoint of the entire world places very little faith that there will be compliance and there will be actually that attempt to maintain the relationship as per [s.60CC(2)(e)], because really [s.60CC(2)(b)], in terms of the views of the child – it’s difficult for your Honour to actually place any weight realistically on anything because [a child can say different things at different times]”
The parents are in agreement that they should not share parental responsibility, although they are opposed as to who ought be solely responsible for major decision making in relation to Z.
As earlier referenced, the mother is prepared to accept the father’s position in relation to Y in acknowledgement of Y’s age and views, whilst hoping to restore their relationship in the future.
I turn then to consider the application for further final parenting orders on the evidence before the Court.
Threshold issue - reconsideration of final parenting orders
All parties have asked the Court to reconsider the most recent “final” parenting orders made on 15 October 2021.
As the history of the matter were understood, at a preliminary stage of these proceedings the parents consented to the waiver of what was then the rule derived from the decision In the Marriage of Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725. That rule is now codified in the statute as a general prohibition on reconsideration of final parenting orders at s.65DAAA of the Act: see Radecki & Radecki [2024] FedCFamC1A 246.
The orders earlier defined as the ongoing interim arrangements were put in place on 6 September 2023 and expressly provided for the suspension of the most recent final parenting orders. Those ongoing interim arrangements continued in operation as at the time of final hearing and judgment in the matter - such that it is not now apt to describe the most recent parenting orders of 15 October 2021 as “in force” at the time of the final hearing or these reasons.
However, the most recent final parenting orders were not set aside. To the extent that s.65DAAA may be said to apply, and a formal ruling on the matter is now required by the statute, having regard to the circumstances of this case and in particular since the operation of the ongoing interim arrangements, I would be minded to reconsider the final parenting orders with the consent of all parties as permitted by s.65DAAA(3) and will so order.
Best interests of Z
Promotion of safety
Section 60CC(2)(a) requires that, for the purposes of determining Z’s best interests, the Court is to consider what arrangements would promote the safety of Z and each person who has care of Z (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm). And, in so considering, the Court is required to consider any history of family violence, abuse or neglect involving Z or a person caring for her in addition to any family violence order that applies or has applied to Z or a member of Z’s family: s.60CC(2A).
The long history of competing claims of family violence, harm and abuse made by each parent against the other is outlined above and has been subject of prior judicial consideration. Of the many and various allegations since 2013, which are to be taken into account with appropriate weight, most pertinent to these proceedings and in summary there is evidence of:
(a)The parents alleging family violence occasioned on them by the other, resulting in family violence intervention orders against each of them at and around the time of separation.
(b)In respect of the mother, allegations of sexual assault occasioned by a third party on the eldest child whilst in the mother’s care; and an admitted physical altercation between the mother and Y, in December 2021, which prompted the intervention of DFFH. In prior proceedings, the mother has been found to have engaged in other inappropriate parenting behaviours.
(c)In respect of the father, admissions of: unilaterally removing all of the children interstate and refusing to return them despite a Court order; separately, withholding all of the children and refusing to return them despite a Court order - requiring intervention of the Australian Federal Police on both occasions; and in instituting many and various proceedings (whether of his own motion or that of his brother as his agent, or otherwise necessitating them through removal and withholding) which has caused the children emotional and psychological harm (in his own words, significant distress and psychological trauma).
On the basis of the admitted or uncontentious incidents alone, the evidence justifies a finding that the children have historically been exposed to family violence, abuse, emotional and psychological harm in the care of both parents. The remainder of the alleged and strongly contested instances of family violence, which in all respects pre-date the ongoing interim arrangements, do not require resolution as a matter of fact but nonetheless are to be taken into account in informing the prospective risk assessment with respect to the safety of Y and Z.
The Court is also required to consider the fact of various family violence intervention orders the history of which was before the Court and is summarised in the chronology of key events above. Most recently there was the extant interim family violence intervention order, first made in early 2022 and since extended. On its face, the order operates to protect the father and all 3 children and names the mother as respondent. It was uncontentious that the order was made on the basis of allegations that pre-date the operation of the ongoing interim arrangements ordered by this Court which have operated in parallel since 6 September 2023. A final family violence intervention order was pending hearing at the time of the hearing of these proceedings.
Pursuant to the ongoing interim arrangements, the fact of Z having spent 5 nights per fortnight with her father and 9 nights with her mother for more than 17 months is a relevant contextual consideration. In this time, Z has lived with her mother and her mother has been solely responsible for major decision-making. In this time, there have been no new reports of physical or sexual abuse in the care of either parent and no interventions of DFFH in respect of the family.
By their oral evidence given to the Court, I assessed both parents as genuinely aggrieved by their historical experiences and perceptions of the past experiences of their children, respectively having convinced themselves that history may repeat itself in relation to Z.
However, by their respective positions in these proceedings, the parents may be taken to have implicitly accepted that Z’s safety (and their own safety, and that of the father’s partner – as her carers) is not at an unacceptable level of risk in the other parent’s care, whether that be over 5 nights (as they respectively sought) or 7 nights (as at least the father was prepared to accept). In any event, accepting that the children have historically been exposed to family violence and abuse in both parents’ care, on the evidence before the Court, there is no genuine basis to draw a distinction between 5, 7 or 9 nights’ time with either parent in assessing the promotion of the prospective safety of Z and her carers.
Views expressed by the child
The Act requires consideration be given to any views expressed by Z.
There was limited evidence of sufficient currency about the children and their views as to be of assistance to the Court.
The direct expert evidence of Z’s views pre-dated the ongoing interim arrangements since in place for more than 17 months at time of hearing. According to the Child Court Expert, the evidence of Z’s views gained through her interview in August 2023 is to be understood through the lens of her level of maturity (9 years of age at the time) and her desire to protect her parents and their feelings. The Child Court Expert simply did not know of the children’s views proximate to the hearing or in the 17 months since the ongoing interim arrangements had been in place.
The ICL asked the Court to assess the weight to be given to the views of Z as given to the ICL’s instructor through the evidence of her parents. There are a number of difficulties with this approach including because their impressions were opposite and naturally tainted by their own subjective views. Further, the Child Court Expert considered that Z is likely to be highly influential for example with regard to whose care she was in at the time of interviews.
Forensic decisions about the evidence were made at an earlier stage of case management before another Judge of the Court. The parties were understood to have accepted that the case had to proceed in this way as an essential measure to spare the children the trauma of further interviews and involvement in the family court proceedings.
For the above reasons, I am not able to place any significant weight on the evidence of Z’s views.
Developmental, psychological, emotional and cultural needs and the benefit to the child/ren of being able to have a relationship with the child/ren’s parents, and other people who are significant to the child, where it is safe to do so
There was some expert evidence of assistance to the Court in respect of these considerations and, as the case was argued, it is convenient to make findings about the evidence in this respect together.
At hearing, the representatives endeavoured to address the limitations on the expert evidence summarised above by questioning the Child Court Expert who had prepared the Interim Child Impact Report and interviewed the family members for that purpose in August 2023. Understandably the Child Court Expert was confined to mostly generic responses because they simply did not know how the children were coping or developing at the time of hearing. Their evidence is adopted with appropriate weight in light of the identified challenges.
The mother has been the primary carer for most of Z’s life which is an important consideration.
However, the benefit to Z of being able to have a relationship with both parents and other people who are significant to Z, where it is safe to do so, is also an important consideration.
Z’s ability to have a relationship with her 2 elder siblings took on particular significance in the present case because more or less time with Z’s older siblings was a distinguishing feature of the respective proposals. On her mother’s proposal, Z would continue to live separate from her siblings for 9 nights each fortnight and, on her father’s proposal, that separation would be reduced to 5 nights in a fortnight.
Tending against the continuation of a longer separation from her older siblings is the evidence of Z’s close relationship with them which was observed by the Child Court Expert as of August 2023 and, according to the father and his partner’s evidence, continued as at the time of hearing. Additionally, the incontrovertible fact that the sibling relationship has been a relative constant for Z throughout a lengthy period of familial turmoil.
However, Z has also been separated from her 2 elder siblings for 9 nights per fortnight for some 18 months now and has been in the primary care of her mother for most of her life to date. The elder siblings have not demonstrated any desire to spend time or communicate with their mother, where Z has in the past expressed her desire to ensure her mother is okay and to maintain a strong connection with her mother. The current strength of the sibling relationship is not known but there was no evidence before the Court to suggest that Z would be precluded from or not able to choose to spend more time with her elder siblings on either proposal.
Beyond these matters, the evidence did not demonstrate a particular benefit of 9 rather than 5 overnights per fortnight with her siblings in terms of their relationship.
The father gave evidence of concerns about Z’s educational performance and the mother said her performance is satisfactory. Neither position was probatively established but both are acknowledged as the parents’ respective views. The father’s concerns are also understood, based on his own evidence to the Court, as strongly connected with his overall dissatisfaction with the school and its handling of matters unrelated to Z’s academic performance.
There was otherwise limited evidence as to Z’s particular developmental, emotional, psychological and cultural needs.
Although there is no evidence of Z’s views or particular experience since 6 September 2023, the cessation of reports to Child Protection and intervention of DFFH over a period of some 18 months is supportive of a conclusion that there has been some stability for Z. At 11 years of age and having experienced significant turmoil in her family and living arrangements prior to the age of 9 years, the relative stability that Z has enjoyed since the ongoing interim arrangements is likely (albeit not absolutely known) to have positively contributed to her development and other needs.
Capacity of each person who has or is proposed to have parental responsibility for the child to provide for their development, psychological, emotional and cultural needs
The respective cases as to parental conflict were directed at their inability to communicate. The parents’ relationship has been of such high conflict that the Child Court Expert maintained that a shared care or equal time arrangement simply could not work and was not prepared to recommend it to the Court.
The mother admitted to some past history of family violence, physical and sexual assault occasioned on the older siblings by her and when in her care. The mother has some personal mental health challenges. It was not understood to be controversial that she has used alcohol and illicit substances in the past. I accept the mother’s evidence that she has since taken steps to change – having removed the risk of the third party from coming into contact with her children, sought psychological and professional help and demonstrated at least some insights to her own behaviour. It is accepted that the mother has experienced a great loss in the estrangement from her elder children and seeks to restore those relationships.
For her part, the mother could articulate positive features of the father as a parent to their children despite the history and indeed the current level of animosity between them.
The father denied any alienation of the children from their mother but could not elaborate on efforts taken to promote those relationships. His protestations were unsupported and, at times, implausible. For example, his initial evidence that he sought help via a psychologist to have Y spend time with her mother was withdrawn when pressed.
The overall impression of the father’s evidence was that he is so concerned to protect his children that he cannot truly appreciate the benefit of supporting a relationship between them and their mother. And, while he is able to appreciate (or at least express an appreciation of) the impact of the various legal proceedings and interventions on the children, he did not demonstrate a capacity to reflect on how his own conduct has contributed to the difficulties his children have endured.
For completeness, the allegations of the mother’s obsession with the father’s partner and denigration of the partner’s son were not made out but are acknowledged as consistent with past behaviours she has exhibited and indicative of the ongoing high conflict between the parents.
I also accept there is proper basis on the evidence to hold concern that Z’s father will not be proactive in promoting a positive relationship between Z and her mother. Beyond this, having considered the various allegations and evidence as to their parenting approaches, the evidence discloses various human flaws but I do not find the evidence of the respective capacities of Z’s mother and father to point in favour of either case.
Best interests of Y
The parents were in agreement that the ongoing interim arrangements ought continue in relation to Y.
The extant family violence order, history of family violence, abuse and other harm involving Y whilst in her mother’s care is outlined above and is taken into account in considering what arrangements would promote Y’s safety and that of her carers.
The mother has been observed to have previously sought to explain the incident characterised in these proceedings as physical assault as being responsive to delinquent behaviour. Whilst that prior position was vastly lacking in insight as to appropriate parenting, in more recent times the mother has demonstrated appropriate insight and care for Y in the position that she has taken. I accept the mother’s account that it is painful for her to accept her estrangement be formalised by orders of the Court but that she does so in the hope that - with appropriate time, support and family therapy - Y will look to rekindle a relationship with her mother in the future. There exists more than a glimmer of hope where the father similarly expressed a desire to participate in family therapy for the benefit of the whole family.
As earlier referenced, there was limited evidence of sufficient currency about the children and their views as to be of assistance to the Court. Y’s views at the time of hearing are best able to be understood by her choices and actions since the ongoing interim arrangements have been in place – that is, to spend no time and not communicate at all with her mother. At 15 years of age, that is a relevant consideration and one that Y’s mother has specifically countenanced.
The evidence of Y’s developmental, psychological and emotional needs, contextualised by her past experiences, further lends to a finding that Y continue to live with her father and be supported in spending time and communicating with her mother in accordance with her wishes.
Parenting orders to be made
In weighing all of the relevant factors and s.60CC considerations, the question of orders about with whom the children shall live and spend time and which parent ought have sole parental responsibility for them turns on a few fairly fine points of distinction. As earlier noted, the absence of any current evidence specific to Z presents a significant challenge for the Court in this case.
In respect of Z, I have carefully considered the respective proposals and the alternative concept of an equal time arrangement.
The parents’ respective fears were assessed as real to each of them. Nonetheless, neither case can be understood to genuinely challenge the safety of Z in either parent’s care (or that of her carers) because both seek there be a continuation of time spent with the other parent albeit to different (yet either way significant) proportions of overnight time.
In terms of her admitted failings in the past, Z’s mother has expressed insight and endeavoured to change and improve her parenting. There have been no reports or interventions in the past 18 months and I accept that Z’s mother is particularly motivated to ensure she does not repeat those mistakes which have led to estrangement from her 2 eldest children.
Having regard to the findings made above, and accepting there may be a benefit to Z in having more overnight time with her siblings, I consider this to be outweighed by Z’s emotional and developmental needs which include the importance of stability in her living arrangements and a secure relationship with her mother.
On what is known of Z’s developmental, emotional, psychological and cultural needs, it is in her best interests that there be a continuation of the ongoing interim arrangements as to live with, spend time and sole parenting responsibility which will enable her to spend time with her father and siblings whilst maintaining a stable home and living environment and a secure relationship with her mother. I will order accordingly in relation to Z.
In respect of Y, having regard to the above findings and the s.60CC factors, I am satisfied that the parents’ consent position appropriately provides for Y’s safety (and that of her carers), her developmental, psychological and emotional needs. It is also an appropriate reflection of her views as they are best able to be understood on what is before the Court. I am satisfied that it is in Y’s best interests that she continue to live with her father, spend time and communicate with her mother in accordance with Y’s wishes. I make these orders by consent.
I accept it is appropriate that updates be provided by the resident parent no less than once each month and the orders will so provide.
Changeovers
Changeovers are able to continue mostly at school.
There are limited few occasions remaining when the parents need to facilitate changeovers during school holidays. Beyond the mother’s perhaps understandable preference, there is insufficient evidence to support a change to the ongoing interim arrangements in this respect. Those arrangements are consistent with the interim family violence intervention order and require all persons to remain in the vehicle at changeover such that there ought be no interaction between them and the mother. I will order accordingly.
Passport and travel
By consent of all parties the Court was asked to make orders allowing for either parent to travel interstate or overseas with consent of the other provided certain conditions are met. Those conditions are a minimum 28 days’ notice of such intention, a copy of return ticket and itinerary, contact addresses and phone numbers where the child/ren will be staying and proof of travel insurance for overseas travel.
Consistent with their respective and opposing positions about parental responsibility, each parent sought that they be the custodian of the children’s passports.
In all of the circumstances, I consider:
(a)the proposed conditions provide appropriate safeguards as to facilitate and ensure the best interests of the children are met; and
(b)for the reasons earlier expressed in relation to sole parental responsibility and decision-making, the resident parent (with sole parental responsibility in each case) is most appropriate to hold the passport such that the father will retain Y’s passport in his possession and the mother will retain Z’s passport in her possession, where there is consent that the passport will be provided to the non-resident parent within 2 weeks of the date of departure provided the various conditions have been met.
Other agreed matters
To the extent that the parents and the ICL consented to other parenting arrangements, I am not required but may and have taken into account the matters at s.60CC(2) as relevant.
The proposed restraint on the father and his agents changing the children’s address outside the state of Victoria was agreed and consistent with the father’s evidence as to his future intentions. This is an important issue in this case having regard to his prior unilateral relocation of the children to Queensland and it is appropriate that there be such restraint by order of the Court.
The proposed restraints on both parents and their agents would apply to attendance at the children’s school(s); criticisms, harassment, threats, abuse and denigration; discussion of these proceedings; exposure of the children to family violence; exposure to parental conflict and adult matters; recording of the children during any communication or changeover; and using the children to communicate with the other parent are agreed and would be mutual. There is proposed to be separate clarification that the parents may attend school functions including but not limited to parent/teacher appointments, school assemblies, open days and presentations, sporting and other co-curricular and extra-curricular activities in which the children are involved. The evidence supports the necessity and appropriateness of such restraints, which are directed at preventing a further occurrence of historical abuse and other forms of harm. For completeness, I consider the term “agent” to cover any person acting on instruction or behalf of the parents including whether they are paid or are paying to do so and will omit antiquated reference to “servants”.
Other than as already provided by the above, the parents and the ICL agreed that communication between the parents ought only occur in writing by SMS and/or email. Further, that their communication be restricted to children’s matters only and they keep each other informed of contact telephone numbers and residential addresses and promptly advise of any changes (within 3 days of such change occurring). They also proposed to have recourse to family dispute resolution as a first option to resolve any future dispute about the operation of the parenting orders or the care and welfare of the children was also agreed. There was no question in this case that the parents are not able to effectively communicate or cooperate in relation to matters involving their children. The parents will not share responsibility for parental decision making in relation to any of the children which ought to minimise parental conflict yet, on the evidence, it is possible to foresee future disagreements such as Z’s schooling (where the mother will retain choice to decide and the father has foreshadowed an affordability issue). In the past there have also been instances where the parents have misunderstood or disagreed about the operation of the Court’s orders in relation to the duration of spend time arrangements. The children are unfortunately implicated in such issues. I am satisfied that it would be appropriate that the parents first attempt to resolve such matters by family dispute resolution (with a family relationship centre or person authorised under s.10G of the Act) going forward and that such order is in the best interests of Z and Y. I also consider such order to be consistent with the resolution of the application for harmful proceedings orders explained in the below.
Also agreed were orders about: the parents keeping each other appraised of serious illness, emergency, major medical treatment and medication; mutual access to medical information, school records and information. Those arrangements provide an important means of both parents staying appraised of significant developments with respect to the children, especially where parental responsibility is not jointly held.
The agreed order as to the application of s.68Q of the Act, which provides that an extant family violence order is invalid to the extent of any inconsistency with the orders of the Court, is self-explanatory but provides an important clarification which, with the parents’ express consent, is appropriate to include given the extant family violence intervention order and the history of family violence orders in the matter.
I am satisfied it is in the best interests of the children to make orders consistent with their parents’ consent position in respect of those matters.
There being no power to order family therapy, the parents’ agreement on the matter will be recorded in a notation to the orders to be made.
Resolution
For the above reasons, having considered all of the s.60CC factors and relevant matters, I am satisfied that it is in the children’s best interests that the Court make final parenting orders in the form of orders 1 to 27 herein.
PART C: HARMFUL PROCEEDINGS ORDERS
Statutory framework
Part XI of the Act relates to procedure and evidence. The overarching purpose and objectives of the family law practice and procedure provisions in relation to proceedings under the Act are: the just determination of all proceedings; the efficient use of available judicial and administrative resources; the efficient disposal of the overall caseload of Courts exercising jurisdiction; disposal of all proceedings in a timely manner; and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matter in dispute: s.95 of the Act.
Division 1B, which commenced operation on 6 May 2024, provides for the Court to make “harmful proceedings orders” on application by a party to the proceedings or its own initiative: s.102QAC(4).
Subsections 102QAC(1), (2) and (3) proscribe the manner in which the power is to be exercised in the following terms:
(1) A court exercising jurisdiction in proceedings under this Act may make an order (a harmful proceedings order) prohibiting a party (the first party) to the proceedings from instituting proceedings under this Act against another party to the proceedings without the leave of the court under section 102QAG, if the court is satisfied that there are reasonable grounds to believe that:
(a) the other party would suffer harm if the first party instituted further proceedings against the other party; or
(b) in the case of child-related proceedings (within the meaning of Part VII) – the child who is the subject of the proceedings would suffer harm if the first party instituted further proceedings against the other party.
Note: Proceedings includes cross-proceedings and incidental proceedings (see subsection 4(1)).
(2) For the purposes of subsection (1), harm may include, but is not limited to, the following:
(a) psychological harm or oppression;
(b) major mental distress;
(c) a detrimental effect on the other party’s capacity to care for a child;
(d) financial harm.
(3) In determining whether to make an order under subsection (1), the court may have regard to:
(a) the history of the proceedings under this Act between the first party and the other party; and
(b) whether the first party has frequently instituted or conducted proceedings against the other party in any Australian court or tribunal (including proceedings instituted (or attempted to be instituted) or conducted, and orders made, before the commencement of this section); and
(c) the cumulative effect, or any potential cumulative effect, of any harm resulting from the proceedings referred to in paragraphs (a) and (b).
Although a harmful proceedings order made under s.102QAC order is strictly final, a person subject of such order may still apply for leave of the Court to institute future proceedings under the Act that would otherwise be prohibited by the harmful proceedings order: s.102QAE. Such leave may be granted provided that the Court is satisfied that the proceedings are not frivolous, vexatious or an abuse of process and have reasonable prospects of success: s.102QAG(1).
The respective contentions
The father’s application for further final parenting orders was met with an application by the mother for a harmful proceedings order. At hearing the Court asked the representatives to address why such an order, if it were made, would not apply mutually in the circumstances of this case.
The mother’s primary contention was that the father habitually abuses court processes by filing numerous frivolous, vexatious and unmeritorious applications across jurisdictions including this Court (Divisions 1 and 2), the Magistrate’s Court and the High Court of Australia. She asked the Court to find that the father’s continual initiation of unnecessary proceedings causes significant distress for her and jeopardises the wellbeing of the children, requiring them to relive prior traumas. Further, as the mother has been funded by Victoria Legal Aid (unable to afford her own representation), and is required to respond to each application brought, the father is creating an unjust burden on public resources.
The ICL supported this position and added that the father has expended significant amounts of money on litigation rather than the needs of the family.
The mother and the ICL opposed a harmful proceedings order against her on the basis that the evidence does not support a finding that the mother has been the initiator of applications, contravention applications and appeals. Further, given the father’s past withholding and removal of the children from the state of Victoria, the mother anticipates a need to come back to the Court for an urgent recovery order or an urgent variation and a harmful proceedings order may be an impediment to her doing so. The ICL suggested that the Court could and ought make a harmful proceedings order that the father and his agents be prevented from instituting proceedings under the Act, in acknowledgment that it was the paternal uncle who had instituted these proceedings on behalf of the father.
The father did not oppose the harmful proceedings order provided that it was of mutual application to the mother and on the basis that would operate as a measure to protect the children from further litigation. In response to the concern about the potential necessity for future recovery order proceedings, the father’s counsel submitted that the question of leave under s.102QAE and the ex-parte application could be decided at one hearing and there would be no prejudice.
Are there reasonable grounds to believe either parent and/or the child/ren would suffer harm if the father, or the mother, instituted further proceedings against the other?
There is a long history involving a litany of litigation and protective interventions in relation to this family. The parents are diametrically opposed on many issues but one matter they both agree on is that their children have suffered significant trauma, emotional and psychological impacts on account of the ongoing court proceedings and legal processes.
Absent any prohibition of the kind contemplated by this provision, any future parenting application made by either parent or their agent would directly involve the children through participation in child impact reports and indirectly through the involvement of their parents and other family members. Whilst it is unnecessary to demonstrate that harm has been occasioned in the past, the evidence establishes that for both Z and Y much of their lives to date have been characterised by litigation of this kind and required their participation resulting in them being forced to relive their trauma and remain at the centre of their parents’ dispute. As of August 2023, the Interim Child Impact Report noted the elder children’s observations of their feelings of being overwhelmed and disheartened by court processes and that the re-telling of their narrative has affected their emotional and educational development.
Beyond her contention, there was no current probative medical evidence of the psychological impact on the mother of the ongoing proceedings or the likely impact of future proceedings as may have assisted the Court to make such finding.
It may be accepted that further proceedings instituted by either parent or their agent would require a response from the other parent and cause them to incur cost. The evidence is that neither parent has the financial means to sustain the cost of further litigation and, in this way, the other parent would be inflicted with financial harm.
In the particular circumstances of this case, I am satisfied that there are reasonable grounds to believe that the children would suffer psychological harm and/or major distress if either parent instituted child-related proceedings against the other. I am also satisfied that the mother would suffer financial harm if the father or his agents were to institute future proceedings against her under the Act and the father would suffer financial harm if the mother or her agents were to institute proceedings against him under the Act.
Other relevant factors
In deciding whether to make a harmful proceedings order against the father and also the mother, the Court may have regard to the factors at s.102QAC(3)(a) to (c) which is not an exhaustive list.
In this case, it is appropriate to have regard to the history of proceedings under this Act. The detail of the many and various proceedings is uncontentious and outlined in the chronology of key events above. In summary, over at least the past 7 years, proceedings before the Court or its predecessor have resulted in outcomes earlier defined as: the first parenting orders; the first return orders; the first recovery order; the second and most recent final parenting orders; the second return orders; the second recovery order; and, most recently, the ongoing interim parenting arrangements. In parallel to the proceedings which have resulted in those outcomes, 2 procedural decisions of the Court have been unsuccessfully appealed and on one occasion to the High Court of Australia. In the course of dismissing one such appeal, Justice Edelman of the High Court of Australia described the father’s application as manifestly hopeless and an abuse of process.
Relevant context also includes the series of reports to Child Protection and related interventions since 2013. Whilst an interim family violence intervention order continued to operate by extension at the time of hearing of these proceedings, DFFH had ceased its involvement with the family more than 17 months prior.
Whether the first party has frequently instituted or conducted proceedings against the other party in any Australian court or tribunal (including attempts to do so and prior to the commencement of s.102QAC) is also a relevant factor in this case. As will be apparent, most of the proceedings under the Act were initiated: by the father or the paternal uncle on his behalf; or, otherwise, by the mother in response to the father’s withholding and relocation of their children. An analysis of proceedings in other jurisdictions reveals that both parents have sought to reagitate historical allegations at times proximate to Court events or hearings in a manner that has unnecessarily prolonged the involvement of authorities. In respect of the consideration of whether to make a harmful proceedings order against the mother, that she has not presented as the most frequent initiator, at times has done so in order to recover the children and mostly has been required to respond to the many and various applications and interventions are matters to be taken into account yet not determinative in the present case.
Appropriate regard has also been had to the potential cumulative effect of the resultant harm. In doing so, regard is had to the past harm occasioned on Z and Y as reasoned above.
The ICL’s submission about the ongoing burden on the legal aid system and associated injustice is an apt and relevant consideration in this matter, where the interests of the administration of justice favour the making of harmful proceedings orders.
It is acknowledged that the father feels let down by the justice system and his frustrations with the justice system are underscored by the conviction of his belief as to the truth of the serious allegations of physical and sexual abuse of his elder children in the past. However, that the father has not succeeded in securing his desired outcomes does not justify his non-compliance or defiance of Court orders. The father’s frank evidence about his past difficulties with complying with Court orders, and the harm likely to be occasioned on his children if this were to continue, is a relevant matter to be taken into account.
It is accepted that the mother’s fear of future non-compliance with Court orders is founded in her past experience of the father having secretively removed the children from Victoria and refused to return them. Her fear is justified in light of the father’s past non-compliance and frank admissions in this respect. That said, a harmful proceedings order against the mother would not impede her ability to obtain recovery orders in the event it is necessary to do because the father has contravened the Court’s orders. The Court adopts a procedure whereby recovery proceedings are heard urgently, by a Judge, who would be in a position to grant leave and proceed to make recovery orders in an appropriate case.
However, in that event, it would be necessary for the other parent in each case to receive notification of future proceedings subject of an application for leave pursuant to s.102QAG. As considered above, there is insufficient evidence to support a finding that the mother would suffer emotional or psychological harm were she to receive such notification in the future and the father did not oppose being so notified.
Resolution
The Court’s power to make an order pursuant to s.102QAC is discretionary, to be exercised only if the Court is satisfied that there are reasonable grounds to believe that the other party would suffer harm if the first party instituted further proceedings against them, or if the child/ren subject of the proceedings would suffer harm if the first party instituted harm against the other party.
For the above reasons and in the particular circumstances of this case, I am satisfied that there are reasonable grounds to believe that the criteria at s.102QAC(1)(a) and (b) are met and will make harmful proceedings orders against the father and mother respectively.
The harmful proceedings orders are made in the knowledge that the parents will respectively be able to pursue meritorious applications in the future with leave of the Court as afforded by s.102QAE, subject to the requirements for the grant of such leave under s.102QAG.
There will be no order for suppression of notification that a future application has been made or dismissed.
I certify that the preceding two hundred and twelve (212) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 9 April 2025
ANNEXURE A
Materials before the Court
(1)The Applicant father’s documents on which he sought to rely were:
(a)Outline of case filed 7 February 2025;
(b)Amended Application for Final Orders filed 21 January 2025;
(c)Trial affidavit of Mr Beckford filed 22 January 2025;
(d)Trial affidavit in reply of Mr Beckford filed 6 February 2025;
(e)Affidavit of Ms Q filed 31 January 2025.
(2)The father filed then withdrew an affidavit of Y and Z’s eldest sibling, X (now 19 years of age, involved in this proceeding until recently).
(3)The Respondent mother’s documents on which she sought to rely were:
(a)Outline of case filed 3 February 2025;
(b)Affidavit of Ms Beckford filed 29 January 2025;
(c)Amended Response to Final Orders filed 29 January 2025;
(d)Affidavit of Ms Beckford filed 19 April 2024;
(e)Affidavit of Ms R filed 21 November 2023.
(4)The Independent Children’s Lawyer’s sought to rely on an outline of case filed on 5 February 2025 and material subpoenaed from S Clinic, H School, G School, the Department of Families, Fairness and Housing and Victoria Police.
(5)The parents respectively sought to rely on the child impact report prepared by Ms L, dated 21 August 2023 and 4 DFFH S.67Z Responses dated March 2023, April 2023, July 2023 and September 2023.
(6)Each of the witnesses were presented for cross-examination and gave oral evidence at hearing. The following additional documents were tendered and marked in the proceedings:
(a)Tender document #1 (electronic, LEAP record report made early 2023);
(b)Tender document #2 (hard copy, email chain ending 14 October 2024);
(c)Tender document #3 (hard copy, LEAP record report made early 2023);
(d)Tender document #4 (hard copy, Children’s Court orders late 2022);
(e)Tender document #5 (hard copy, LEAP record offence committed late 2021);
(f)Tender document #6 (hard copy, LEAP record report made early 2023);
(g)Tender document #7 (hard copy, LEAP record report made mid-2023);
(h)Tender document #8 (hard copy, email chain ending 21 January 2025);
(i)Tender document #9 (hard copy, LEAP record offence committed mid-2021);
(j)Tender document #10 (hard copy, LEAP record of court outcomes report).
(7)The following prior judgments were also referenced in questioning witnesses and it was accepted that the Court would take notice of those findings of Judge Carter (as she then was) at that time on the evidence that was before her:
(a)Beckford & Beckford [2020] FCCA 2639;
(b)Beckford & Beckford (No 2) [2020] FCCA 2775;
(c)Beckford & Beckford [2021] FedCFamC2F 181;
(d)Beckford & Beckford (No 2) [2021] FedCFamC2F 657.
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