Birk & Winther
[2025] FedCFamC1F 365
•2 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Birk & Winther [2025] FedCFamC1F 365
File number(s): MLC 6603 of 2022 Judgment of: JOHNS J Date of judgment: 2 June 2025 Catchwords: FAMILY LAW – CHILDREN – consent orders – live with – allocation of decision-making authority – where the mother alleged that the father and his new partner sought to undermine her relationship with the children – where the father alleged that the female child was at risk in the mother’s home – where there were unsubstantiated sexual abuse allegations made by the female child against the mother’s new partner – where the mother alleged that the father’s new partner had coached the child to make false sexual abuse allegations – where there was a history of family violence perpetrated by the father against the mother – orders that the children live with the mother and spend time with the father on a monthly basis – grant of sole decision-making authority to the mother – restraints on the father’s new partner spending time with the children – orders to ensure the safety of the children whilst in the mother’s care Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Part VII, ss 60B, 60CA, 60CC, 64B, 65C
Cases cited: Isles & Nelissen (2022) FLC 94-092
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 152 Date of hearing: 21 – 25 October 2024 Place: Melbourne Counsel for the Applicant: Ms Warnock Solicitor for the Applicant: Buscombe Family Law Counsel for the Respondent: Mr Strong Solicitor for the Respondent: Ballarat Lawyers Counsel for the Independent Children's Lawyer: Ms Swann Solicitor for the Independent Children's Lawyer: Southern Family Law ORDERS
MLC 6603 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BIRK
Applicant
AND: MR WINTHER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
25 OCTOBER 2024
BY CONSENT THE COURT ORDERS THAT:
Parental responsibility and decision making
1.The Mother have sole parental responsibility and sole decision-making authority for the children X born in 2013 (“X”), Y born in 2014 (“Y”) and Z born in 2017 (“Z”) (“the children”) subject to the following:
(a)Except in the case of emergency, the Mother shall provide the Father with at least 14 days’ notice, in writing, of any major long-term issues arising in relation to the children; and
(b)the Mother shall advise the Father in writing, as soon as practicable, of the decision made.
Residence
2.The children live with the Mother.
Spend Time Arrangements
3.The children spend time and communicate with the Father as follows:
(a)On the first Saturday of each calendar month, from 10:00am until 5:00pm;
(b)On special occasions as agreed between the parents in writing, but failing agreement as follows:
(i)On each of the children’s birthdays from 5:30pm until 7:00pm if falling on a school day and if a non-school day from 2:00pm until 7:00pm;
(ii)On Father’s Day should the Father not already be spending time with the children from 10:00am Father’s Day until 5:00pm Father’s Day;
(iii)On Christmas Day:
A.In even years, from 9:00am until 2:00pm; and
B.In odd years, from 2:00pm until 7:00pm
(iv)On Easter:
A.In even years: on Easter Sunday from 9:00am until 2:00pm;
B.In odd years: on Easter Sunday from 2:00pm until 7:00pm; and
(c)As otherwise agreed in writing between the parents, in writing via AppClose (or via any other communication method that the parties have agreed in writing to use).
4.The Father is restrained by injunction from bringing the children into contact with Ms B for 6 months and thereafter, unless the parents agree in writing that she may be present.
5.If the parents agree in writing that Ms B may be present during the time the children spend with the Father, then the Father is restrained by injunction from leaving the children in the sole care of Ms B.
6.For 12 months from the date of these Orders, during any time that the child, M is spending time with his father, Mr D, at the Mother’s residence, the Mother shall ensure that M and Y are supervised by an adult and at the expiry of that 12 month period, the Mother shall thereafter ensure that an adult is present at her residence during all times that M and Y are present.
7.Unless otherwise agreed between the parents in writing, the children’s time with the Father’s pursuant to these Orders shall be suspended on the following occasions should they not already be in the case of the Mother:
(a)On Mother’s Day each year from 9:00am Mother’s Day until 5:00pm Mother’s Day; and
(b)Such further or other times as may be agreed between the parents in writing.
Changeover
8.All changeovers shall occur at City C Police Station.
Communication
9.The Mother shall facilitate the children communicating with the Father by telephone in accordance with the children’s wishes at reasonable times.
10.The parties be and are hereby restrained from recording and allowing any other person to record their communications with the children during telephone time.
11.Unless otherwise agreed between the parents in writing, the parents shall communicate wholly via the parenting app “AppClose” and only about issues relating to the children, save that the parents are permitted to communicate via text message or telephone in the event of an emergency affecting spend time arrangements and/or any urgent serious illness or injury involving the children.
12.Each parent shall:
(a)Inform the other as soon as practicable of any serious illness or injury suffered by the children (or any of them), particulars of any treatment required or received by the children (or any of them) together with the name and address of the treatment provider and/or location at which the children (or any of them) are a patient and any medical or other health practitioner involved with the children (or any of them) and authorise such practitioner to discuss the treatment with the other party at their own cost, NOTING THAT this Order does not authorise the Father to make long term decisions about the children;
(b)authorise any educational institution, sporting or other club attended by the children (or any of them) to discuss their progress with the other parent and to obtain copies or all newsletters, notices, reports, school photographs and all other information and documents ordinarily distributed to parents at each parent’s own expense;
(c)be entitled to attend all events to which parents are usually invited for the children (or any of them) including but not limited to at any educational institution, sporting or other club, noting that this Order does not authorise Ms B to attend; and
(d)keep the other updated, as soon as practicable, of their email address and contact telephone number and notify any change to their email address and contact telephone number forthwith upon any change occurring.
Support Services
13.The Mother shall support the children to continue their engagement with their mental health supports and student wellbeing officers at their school for as long as recommended by the school.
14.The Mother shall provide a copy of these Orders and Reasons for Judgment to the children’s school.
15.The Mother is hereby authorised to provide a copy of these Orders and reasons for judgment to any treating medical or other professional mental health treatment providers engaged with the children and to the Department of Families, Fairness and Housing if requested by them.
16.The Father shall enrol in, attend and complete a “Tuning into Kids” course within the next 2 months and provide a copy of his Certificate of Completion to the Mother.
Authorities
17.These Orders hereby authorise the Father to communicate with the children’s school solely about their education, progress and development and to receive copies of any school reports, notices, newsletters or photo order forms (at the Father’s sole expense).
Restraints
18.The Father, his partner, servants and agents be restrained by injunction from the following:
(a)Taking the children or allowing any other person to take the children to the Motorcycle Club House or other such events held by the Motorcycle Club;
(b)From interrogating or questioning the children or either of them about the Mother’s household or the Mother’s partner; and
(c)From driving a motor vehicle with the children unless or until he has a valid driver licence.
19.The parents, their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other party;
(b)physically punishing the children;
(c)discussing these proceedings, to or in the presence or hearing of the children or any of them and from permitting any other person so to do; and
(d)photographing and otherwise recording the other parent and or keeping the other parent under surveillance and allowing any other person to do so.
20.For 24 hours immediately prior to the commencement of any time spent with the children, and during all such time spent, the Father be restrained by injunction from ingesting, consuming, using or otherwise being under the influence of any alcohol or any legal or illegal drug or substance, save and except for:
(a)any legal medication prescribed for the Father by a registered medical practitioner, and taken or used by the Father strictly in accordance with such prescription; and
(b)any over-the-counter medication or pharmaceutical substance ordinarily sold in major supermarkets (which does not contain codeine), and taken or used by the Father strictly in accordance with the directions appearing on such medication.
Procedural Orders
21.The Independent Children’s Lawyer shall meet with the children, via videocall, to explain the content and effect of these Orders.
22.After Order 21 is complied with, the Independent Children’s Lawyer be hereby discharged.
23.All extant applications are otherwise dismissed.
24.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A and these particulars are included in these Orders.
NOTATIONS:
A.As at the date of these Orders, there are no restraints that limit Mr D spending time with the children or his ability to reside in the family home with the Mother and children.
B.The Father does not agree that the restraints on Ms B are necessary to protect the children but has agreed to those restraints for the purposes of finalising these proceedings.
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 Birk & Winther has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
These are proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
The applicant mother, Ms Birk, and the respondent father, Mr Winther, have three children together, X, aged 11, Y, aged 10 and Z aged eight years (although aged seven at the time of trial). At trial, each parent contended that the children were at risk in the other’s care.
The mother alleged that she had suffered significant family violence at the hands of the father and that the children had also been exposed to that behaviour.
The mother also contended that the father and his partner, Ms B, undermined her relationship with the children and influenced the child Y to make false disclosures of sexual abuse against the mother’s partner, Mr D. Mr D vehemently denies that he has ever behaved in a sexually inappropriate manner towards Y.
Whilst the mother acknowledged that Y was touched in a sexually inappropriate manner by Mr D’s son, M, in her home, she maintained that she immediately took protective action to ensure Y’s safety. Accordingly, it was the mother’s position that there is no risk to Y or the other children in her household.
The mother also maintained that the father failed to support the children’s relationship with her and actively sought to undermine that relationship at times. The mother was also critical of the influence of the father’s partner, Ms B, on the children and particularly Y. The mother alleged that Ms B coached or influenced Y to make disclosures against the mother and her partner. Since 2022, Y has made disclosures of sexual abuse against M, Mr D, the father, and a teacher at her school. Save for the allegations raised with respect to M, none of the disclosures made by Y have been substantiated.
As a result of the conduct of the father and his partner, the mother submitted that the children are at risk of psychological harm in the father’s household. Accordingly, at the commencement of the hearing, the mother sought orders including that:-
·She have sole parental responsibility and decision-making authority for the children;
·The children live with her;
·The children spend time and communicate with the father each alternate weekend from 9am to 5pm Sunday and each Thursday from 5pm to 7pm;
·At the expiration of six months and upon the father completing a Tuning Into Kids program, the father’s time with the children increase to each alternate weekend from 9am Saturday to 5pm Sunday, and each Thursday from 5pm to 7pm. In addition, the mother proposed that the father spend time for specified periods during school holiday periods and on special occasions;
·The father’s time with the children be in the absence of his partner, Ms B, and there be a restraint on the father leaving the children in her sole care; and
·There be orders in relation to information sharing with respect to the children’s health and education.
In addition, the mother sought that the existing injunction, restraining her from bringing the children into contact with Mr D, be discharged.
The father maintained that Y is at risk of harm in the mother’s household as a result of the sexually inappropriate behaviour of M and the allegations against Mr D. Accordingly, at the commencement of the trial he sought orders including that:-
·The parties share decision-making responsibility;
·Y live with him and spend time with the mother each alternate weekend from after school Friday to the commencement of school on Monday;
·The children X and Z live with the mother and spend time with the father on alternate weekends from after school Friday to the commencement of school on Monday; and
·The parties share school holidays on a week-about basis and there be a sharing of time on special days.
The father also sought an order that the injunctions restraining the mother from bringing the children into contact with Mr D and his son continue.
The Independent Children’s Lawyer supported the orders sought by the mother.
The position of the parties shifted and changed as the trial progressed. The hearing proceeded over five days. During that time, I heard evidence from the mother, her partner, Mr D and the father.
On the fifth day of the hearing, the parties presented to the Court a Minute of Proposed Order which they asked the Court to make by consent. Having been satisfied that the proposed consent orders were in the children’s best interests, I made orders in the terms of that Minute which, in summary, provided that:-
·The mother have sole parental responsibility and sole decision-making authority for the children subject to notice conditions;
·The children live with the mother;
·The children spend time and communicate with the father on the first Saturday of each calendar month from 10am until 5pm;
·There be provision for the father to spend time with the children on special days;
·The father be restrained from bringing the children into contact with Ms B;
·In the event the mother’s partner’s child, M, is spending time with his father, the mother shall ensure that that child and Y are supervised by an adult, that order to continue for a period of 12 months and thereafter the mother to ensure that an adult is present at her residence during periods when Y and her partner’s child are present.
In circumstances where the trial proceeded over a period of five days and evidence was given by both the mother and the father as well as the mother’s partner, the parties sought that I provide Reasons for Judgment in relation to those Orders. These are those reasons for judgment.
THE PARTIES
The mother was born in 1993 and is aged 31 years. She is employed part-time as a community worker. She resides in City C and is the primary carer for the three children. The mother has re-partnered with Mr D, and they have one child together, E, aged five years.
Mr D has four children from a previous relationship, including M, with whom he spends time.
The father was born in 1990 and is aged 34 years. He is employed full-time as a tradesperson and part-time as a community worker. He lives in City C. He has re-partnered with Ms B, with whom he has one child, F, aged three years. Ms B has three children from a previous relationship, who are in her primary care.
The father has another child from a previous relationship, G, aged five years.
BACKGROUND
The parties commenced cohabitation in 2011 and separated in 2018. At the time of their separation X was aged five, Y was aged four, and Z was aged one and a half years.
The children lived with the mother and spent time with the father following the parties’ separation. Initially, the children spent time with the father one night per fortnight. In March 2021, the children’s time with the father increased to alternate weekends. That arrangement continued until April 2022.
In April 2022, the mother deposes that she walked into the bathroom at her home and found Mr D’s eldest son, M, then aged 10, holding Y against a wall and touching her in a sexually inappropriate manner. The mother deposes that she immediately separated the children and organised for Mr D’s children to be returned to their mother’s care. The mother further deposes that she subsequently attended upon the Sexual Offences and Child Abuse Investigation Team (“SOCIT”) with Y. It is her evidence that SOCIT advised her not to disclose the incident to anyone else.
On 16 April 2022, the children attended their usual time with the father. During that time, Y disclosed to the father the incident with M and also alleged that she had been sexually abused by Mr D. The father deposes that he reported Y’s disclosures to Victoria Police.
Y subsequently attended upon SOCIT to complete a Video and Audio Recording of Evidence (“VARE”) in early 2022. Following the completion of the VARE, Victoria Police obtained an Intervention Order against Mr D, on behalf of the three children. Y was medically examined by City C Health Services.
In the period following Y’s disclosure, the father refused to return the children to the mother’s care and enrolled them to attend a different school.
In June 2022, the mother filed an Initiating Application in which she sought final orders that the parties have equal shared parental responsibility and that the children live with her. That application also sought interim parenting orders, including a recovery order for the return of the children to her care.
On 3 August 2022, interim orders were made for the children to live with the father and spend supervised time with the mother. There was also an order that the mother be restrained from bringing Mr D into contact with the children. Orders were also made for the appointment of an Independent Children’s Lawyer, and the matter was otherwise adjourned for a further interim hearing.
On 19 August 2022, Y threatened to stab Ms B’s daughter with a knife at the father’s home. Following that incident, the father vacated the home with the children.
On 24 August 2022, notwithstanding the previous interim orders, the father returned the children to the mother’s care.
On 14 September 2022, interim orders were made by consent (“the September orders”) providing for the children to live with the mother and spend time with the father each Thursday evening for a meal, and each Sunday at alternating times.
The injunction restraining the mother from bringing the children into contact with her partner, Mr D, and his son, M remained in force. The mother’s evidence is that the imposition of that injunction has had a significant effect on her and on E, her child with Mr D, who has not been able to live in the home with her parents since August 2022.
The September orders also provided for the father to have overnight time with the children on alternate weekends from Saturday to Sunday, subject to him obtaining his own stable accommodation. At the time of final hearing, that overnight time had not occurred, save for a camping trip the children attended with the father and Ms B in January 2024.
The mother deposes that time with the father has not been occurring in accordance with the interim orders, and has often been sporadic, with the father cancelling his scheduled time at short notice. The father disputes that allegation.
On 20 September 2022, Y made a further disclosure that she had been sexually abused by the father. That matter was reported to Child Protection. An interim Family Violence Intervention Order was made against the father for the protection of the mother and the children as a result of that allegation.
In November 2022, SOCIT and Child Protection closed their investigations with respect to Y’s disclosure of abuse against the father and the father resumed spending time with the children.
In late 2022, the mother obtained a Final Intervention Order against the father, with herself and the children named as protected persons.
On 2 April 2023, the father again unilaterally overheld Y. The mother deposes that she attended changeover that day and that neither the father nor Ms B presented with the children. The mother attended changeover again on 3 April 2023. On that occasion, the father returned only X and Z to her care. This prompted further involvement by the Department of Families, Fairness and Housing (“DFFH”) and ultimately, the mother filed an Application in a Proceeding seeking a recovery order in relation to Y. An order was made on 6 April 2023 for Y to be returned to the mother’s care.
Since 2022, Y has made numerous allegations of sexual assault against various individuals in her sphere. This has resulted in Y completing three VARE tapes. The allegations made by her include:
·On 16 April 2022, Y made disclosures to DFFH that she had been sexually abused by Mr D. On 18 August 2022, SOCIT concluded their investigation against Mr D with no action on the basis of insufficient evidence and inconsistent disclosures by Y.
·On 20 September 2022, Y alleged that she had been sexually abused by the father, which prompted a report to be made to DFFH. Those allegations were investigated by SOCIT and DFFH and the investigation was closed in November 2022;
·On 25 May 2023, Child Protection received a further report of sexual abuse allegations made by Y against Mr D. Those allegations were investigated by SOCIT; the investigation was closed due to inconsistencies in Y’s report;
·On 21 November 2023, a further report was made to Child Protection that Y had spent overnight time with Mr D and was sexually abused by him. Y was interviewed at school by SOCIT workers. That complaint was not substantiated As a result of that disclosure a Protection Application was filed in the Children’s Court by DFFH. That application was withdrawn by DFFH in April 2024;
·On 2 May 2024 Ms B made a report to Child Protection expressing concern that the child X had been sexually abusing Y.
Outside of those allegations reported to DFFH, Y had also made past disclosures that she had been sexually assaulted by a teacher at her school, a complaint which had been investigated by the school and found to be unsubstantiated, and that she had been sexually abused by the maternal grandmother’s boyfriend. It is common ground that that allegation is fictitious, given the maternal grandmother did not have a partner at the time of the alleged assault.
In addition to the above, there have been further reports made to Child Protection by both households alleging physical abuse and attempts to influence the children. In particular, the father deposes that Y has made disclosures to him of physical abuse by Mr D. Further, during his oral evidence the father stated that he considered that both X and Z pose a risk to Y, as they have told him they want to “kill her”.
The father and Ms B have also expressed concern that Mr D has been in contact with the subject children, despite the injunctions restraining such contact. The mother denies that allegation.
Whilst the mother acknowledges there are safety concerns in both households, it is her position that Mr D, X, and Z do not pose a risk of physical harm to Y. She contends that the children are at risk of emotional harm in the father’s household, as he and Ms B have attempted to influence the children against her and have exposed them to information relating to these proceedings. Notwithstanding those concerns, the mother’s position was that the risk in both households can be mitigated.
It was against that backdrop that the matter came before the Court for final hearing.
MATERIAL RELIED UPON
The mother relied on the following material:
·Outline of Case document filed 16 October 2024;
·Amended Application for Final Orders filed 31 May 2024;
·Trial affidavit of the mother filed 31 May 2024;
·Affidavit of Mr D filed 4 June 2024;
·Notice of Child Abuse, Family Violence or Risk filed 20 June 2022
·Family Report prepared by Ms J dated 1 June 2023;
·Updated Family Report by Ms J dated 7 October 2024;
·Affidavit of Dr H annexing the Psychological Assessment Report for Y, filed 21 April 2023; and
·Exhibit M1, being a document tendered during the course of the proceedings.
The father relied on the following material:
·Outline of Case document filed 15 October 2024;
·Amended Response to Application for Final Orders filed 4 July 2024;
·Trial affidavit of the father filed 4 July 2024;
·Affidavit of Ms B filed 5 July 2024; and
·Exhibit F1, being a document tendered during the course of the proceedings.
The Independent Children’s Lawyer (“ICL”) relied on the following material:
·Outline of Case document filed 18 October 2024;
·DFFH section 67Z Response dated 26 July 2022;
·DFFH Magellan Report dated 9 September 2022;
·DFFH s 91B Response dated 23 November 2022;
·DFFH section 91B Response dated 10 July 2023;
·Family Report prepared by Ms J dated 1 June 2023;
·Updated Family Report by Ms J dated 7 October 2024;
·Affidavit of Dr H annexing the Psychological Assessment Report for Y, filed 21 April 2023;
·DFFH section 91B Response dated 25 August 2023;
·DFFH section 97Z Report dated 15 May 2024;
·DFFH section 67ZW Report dated 7 June 2024; and
·Exhibits ICL1 – ICL8, being documents tendered during the course of proceedings.
LEGAL PRINCIPLES
Section 60B identifies the objects of Part VII of the Act as follows::-
(a)to ensure that the best interests of children are met, including by ensuring their safety; and
(b)to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
The parties seek parenting orders as defined by s 64B of the Act. That is, they seek orders relating to with whom and where the children are to live and the time the children are to spend with the other parent.
Both the mother and the father have standing to apply for such orders as parents of the children (s 65C of the Act).
In deciding what parenting orders are appropriate in a particular case, the Court must regard the best interests of the child as the paramount consideration (s 60CA of the Act).
Section 60CC of the Act sets out how the Court determines what is in a child’s best interests by reference to general considerations (s 60CC(2)). The list of general considerations which I must consider in determining a child’s best interests include:-
·What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child;
·Any views expressed by the child;
·The developmental, psychological, emotional and cultural needs of the child;
·The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
·The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child where it is safe to do so; and
·Anything else that is relevant to the particular circumstances of the child.
In addition to those general considerations, s 60CC(3) of the Act mandates that the Court must take into account additional considerations related to the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary to connect with and maintain the connection with members of their family and with their community, culture, country and language and to explore the full extent of that culture consistent with the child’s age and developmental level and the child’s views and to develop a positive appreciation of that culture.
Section 60CC(2A) provides that in considering arrangements that would promote the safety of the children pursuant to s 60CC(2)(a), the Court must include consideration of any history of family violence, abuse or neglect involving the children or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
The central issue in this case was the safety of the children in their parents’ households. The mother asserted that the father posed a risk of harm to the children such that it was necessary for safeguards to be implemented, particularly to ensure that the children were not left unsupervised with the father’s partner, Ms B. Similarly, the father contended that the children were at risk of harm by Mr D in the mother’s household.
In order to determine those issues, it is necessary to conduct an assessment of risk which involves the making of findings about the existence of certain facts and circumstances and against those findings undertake a prospective evaluation as to the risk of harm (Isles & Nelissen (2022) FLC 94-092). A consideration of those matters will inform what arrangements best promote the safety of the children, as required pursuant to s 60CC(2)(a) and s 60CC(2A).
THE EVIDENCE
In determining the matter, the relevant standard of proof is the balance of probabilities. Section 140(2) of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:-
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding; and
(c)the gravity of the matters alleged.
I have read all documents upon which the parties have relied and the exhibits that were tendered during the hearing. The parties’ affidavits exhaustively set out their accounts of the history of their relationship and their position in relation to matters in dispute. I have read and considered that affidavit evidence and do not propose to repeat it at length in these reasons. It is not necessary for a Trial Judge to refer to every piece of evidence or argument presented during a trial. That this is so, was confirmed by the High Court in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], where Gleeson CJ, McHugh and Gummow JJ said:
… A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
In what follows, statements of fact constitute findings of fact. In determining the matter, I have had regard to the evidence before the Court. I have also had the benefit of observing the appearance and the demeanour of the mother, the father, and Mr D who were required for cross-examination. I have carefully considered the matter and in making findings to the requisite standard, I have had regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.
THE MOTHER’S EVIDENCE
The mother was cross-examined by Counsel for the father and the ICL. The mother was an impressive witness who I observed to be open and truthful.
The mother was steadfast as to her experiences of family violence at the hands of the father. Her account of those events was detailed and not seriously challenged during cross-examination. The mother’s account of those matters during her oral evidence was consistent with that contained in her trial affidavit. I accept the mother’s evidence of those events.
The mother readily made concessions in relation to her failure, at times, to communicate to the father issues in relation to the children’s educational progress and management of health issues. For example, the mother conceded she had not informed the father about the child X attending counselling organised by the school or that Y had been suspended from school or stolen her teacher’s watch.
During her oral evidence, the mother acknowledged the importance of providing information to the father regarding such matters and confirmed a willingness to do so in the future. I accept that evidence.
Throughout her evidence, the mother impressed as thoughtful and child-focussed; she displayed insight and awareness as to the children’s differing needs. Further, the mother readily conceded the importance of the children having the opportunity of an on-going relationship with the father.
THE FATHER’S EVIDENCE
The father’s cross-examination commenced on the fourth day of the hearing. The matter resolved before his evidence was complete. At times, I observed the father to be an evasive or non-responsive witness. Further, there were matters about which he was less than frank with the Court.
For example, when cross-examined as to the allegation that his former housemate, Mr L, had sexually abused Y when she was aged approximately four years and staying at the father’s home, the father responded that he had no idea about that allegation. That evidence was at odds with the father’s evidence in his trial affidavit where at [136(j)] he deposed as follows in relation to that allegation:-
(i)When [Y] was approximately three years of age, I had to take [Z] to the hospital. As [Ms Birk] was not around, I asked my then housemate, [Mr L], to look after the Children while I was gone;
(ii)[Ms Birk] informed me that [Y] disclosed to her that [Mr L] had touched her inappropriately;
(iii)I understand that [Ms Birk] took [Y] to the Police to report the incident; however, due to her young age, the police were not able to substantiate the allegations;
(iv)Upon learning about the allegations made, I kicked [Mr L] out of the home and ceased all communications with him. I affirm I have not spoken to [Mr L] since that time.
On any view the father’s oral evidence in relation to that matter was inconsistent with that contained in his trial affidavit. When challenged in relation to that evidence, the father was unresponsive. When it was put to him that he ceased contact with Mr L following Y’s disclosure, the father responded that he had “heard [the mother] say that”.
In light of the manner in which the father gave his evidence and his lack of candour with the Court in relation to those matters, I am satisfied that the father’s evidence ought be treated with caution.
SECTION 60CC CONSIDERATIONS
General considerations: s 60CC(2)
(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);
The mother’s evidence is that she and the children were subjected to significant family violence at the hands of the father during the relationship.
The mother deposes in her trial affidavit that she was choked by the father on several occasions and that he frequently hit her and pushed her.[1] In addition, the mother deposes that she was subjected to denigration, and belittling by the father and that such abuse occurred on an almost daily basis. The mother also deposes that the father would threaten and intimidate her, such threats including that he could take the children from her at any time.
[1] Mother’s Trial Affidavit, paragraph 170
The mother deposes that the children too were subjected to violence and abuse by the father. The mother deposes that on one occasion, when Y was very young, the father picked her up and threw her against a wall which knocked out a tooth.[2] The mother deposes that such was her fear of the father that she did not report those incidents of family violence to Victoria Police.
[2] Mother’s Trial Affidavit, paragraph 173
As a result of those experiences, the mother’s evidence is that she remains fearful of the father and that those fears are compounded by his involvement in a Motorcycle Club. The mother alleges that the father continues to be actively involved in that organisation and that he spends most Friday nights at that club.
The mother’s evidence is that the father has been subject to several criminal charges arising from his involvement with that Motorcycle Club. For example, in 2019 the father was charged with a range of offences including drive a motor vehicle whilst prescribed illicit drug present in his oral fluid, possess a controlled drug (amphetamine), possess a controlled drug (cocaine) and unlawfully possess dangerous article in a public place (knife). The father pleaded guilty to those charges and was convicted.
The mother’s evidence is that the father continued to engage in abusive behaviour of her following the parties’ separation. For example, she alleges that in September 2022, after the father’s return of the children to her care, an incident occurred at her local supermarket in Suburb K. On that occasion, the mother was attending the supermarket with the child E. She met Mr D at the shop and was walking to the checkout with him when the father appeared and approached her. The mother alleges that the father stood over her and shouted at her, “so you’re hanging out with this fucker”. The mother deposes that she was frightened by the father and that E was also upset. The mother deposed that she left the supermarket and asked Mr D to accompany her in her vehicle. The mother alleges that the father sped towards her through the car park in his vehicle and pulled up behind her, wound down his window and screamed abuse at her.
The mother reported the incident to police and an application was made for an intervention order against the father. An interim order was granted in September 2022. A final Family Violence Intervention Order was made against the father in late 2022. That order expired in late 2023. The final Family Violence Intervention Order included the children as protected persons.
The mother’s account of that incident was not shaken during cross-examination; her account of the event was detailed and plausible. I accept the mother’s evidence in relation to that incident.
The mother conceded during cross-examination that there have been no instances of aggressive or violent behaviour towards her by the father since that incident in 2022. Nonetheless, the mother confirmed during her oral evidence that she remains fearful of the father and conceded that there are certain issues she feels she cannot raise with him because of her fear of his response.
The mother was also cross-examined in relation to Y’s disclosures of sexual abuse. The mother observed that the disclosures made by Y with respect to Mr D are of the same ilk as those made by her against the father. The mother observed that given the number and nature of the disclosures made by Y, it was difficult to ascertain what had occurred. The mother conceded that she did not know whether Y’s allegations against the father were another story concocted by her.
The mother was steadfast in her view that Mr D had not sexually abused Y. She considered the allegations to be baseless given Mr D was not present in the home at the time of the alleged abuse. The mother confirmed that view was strengthened in light of the decisions of police and DFFH not to take any action in relation to the disclosures.
The mother also observed that Y had made allegations against a schoolteacher which had been investigated without any further action being taken.
Y undertook a VARE interview in early 2022 in relation to the alleged sexual abuse by M and Mr D. At the time of that interview, Y had been over-held by the father and had remained in his care for a period of approximately three days. During the course of that interview, Y disclosed that she was going to visit a “kitty” after the interview. In relation to the disclosures made by her as to Mr D’s behaviour, Y alleged that he had kissed her and that he had made her “drink his doodle”. When asked to describe what occurred, Y stated that she was made to drink Mr D’s wee, that is “red like blood”.
There were numerous inconsistencies in Y’s disclosures during the VARE interviews and some of the matters alleged by her were implausible. Dr H, who conducted an assessment of Y reported that her narrative of abuse was “inconsistent and incongruent” which made it difficult to draw any conclusions regarding the veracity of her account.[3] By the conclusion of the hearing, neither the mother nor the father sought findings with respect to the disclosures allegedly made by Y; that was a sensible position in light of the evidence before the Court with respect to those matters.
[3] Affidavit of Dr H, p.12
As to the concerns regarding the children’s safety in her home, the mother readily conceded that the children had been exposed to M’s sexualised behaviours and that she had not informed the father of those issues. The mother also acknowledged that Y had been sexually abused by M when in her care.
The mother was questioned as to what she would do differently if the children were to continue to live with her. The mother provided a thoughtful response, indicating that she had given careful consideration as to the workability of such an arrangement. The mother confirmed that there would be two adults present in the home, including Mr D, and further that there would not be overnight time involving M at her home whilst Y was present. In addition, the mother confirmed her intent to install motion detection cameras outside Y’s bedroom to ensure that she is able to monitor Y throughout the night.
The mother was realistic in acknowledging that there would always be some risk when M is in her home but was clear in her understanding as to the necessity for the children to be monitored there. The mother also confirmed her intention to call upon her own mother for assistance as required. The mother acknowledged that it would not be appropriate for Y and M to be in her home overnight together. The mother confirmed that arrangements would be implemented to ensure that M sleeps at his grandmother’s home and that arrangements could also be made for Y to stay at her maternal grandmother’s home if required.
I am satisfied that the mother is alert to the risks in her home and that she has carefully considered strategies to mitigate those risks to ensure the children’s (and particularly Y’s) safety in her care.
Y has made disclosures that she has been sexually abused by Mr D. Those disclosures have been investigated by Victoria Police and Child Protection and have been found not to be substantiated. Mr D has been adamant in his denial of those allegations throughout the proceedings. He was cross-examined in relation to the allegations and denied the allegations that he had sexually abused Y or that he had physically disciplined the children. He was also firm in his denial that he had contact with the children in breach of the injunction restraining him from being present in the mother’s home.
I found Mr D to be a forthright witness who made concessions where appropriate. When questioned in relation to the risks posed by his son, M, towards Y, Mr D conceded that he would always have concerns and that he would always be watching him.
Further, Mr D’s evidence as to the impact of the allegations upon him and his family was compelling. As a result of those allegations, and the harassment that followed at his workplace, he had to cease his employment and has since been living with his parents; he has been unable to live with his partner and daughter, E, for in excess of two years due to the allegations and consequential injunctions made against him. Mr D impressed as a sincere and truthful witness and I accept his evidence.
Although the father sought a continuation of the injunction against Mr D at the commencement of the proceedings, that matter was not pressed by conclusion of the trial. I am satisfied on the balance of probabilities that the children are not at risk of harm in the mother’s care, having regard to the evidence of the mother, Mr D and Court Child Expert Ms J, as well as the concession made by the father that the injunction be removed.
As to the risks in the father’s home, the Court Child Expert, Ms J identified significant concerns in her updated Family Report as to the children’s exposure to the parental dispute by the father and his partner, Ms B. Ms J also raised significant concerns as to the children’s exposure to influence and coaching in the father’s household.
At interview, the children described to Ms J being bribed and manipulated by the father and Ms B; that they were encouraged to say “bad stuff” about the mother and Mr D. That evidence, albeit untested, raises significant concerns as to the children’s experience of the parental conflict and involvement in it whilst in the father’s care. The impact of that behaviour was observed by Ms J to be significant. At [74] of the updated Family Report she observed as follows:-
If the children’s accounts are supported by the Court that [the father] is coaching them to allege that they have been physically abused by [the mother] and [Mr D], when they are not, could potentially be seen as another form of family violence where he is attempting to control not only the children but also [the mother] through systems abuse and trying to undermine her parenting capacity and to cause her ongoing emotional stress and fatigue with the constant false allegations being made against her.
Further, Ms J observed at [75] that another by-product of the high conflict parenting dynamic has been the ongoing involvement of police and child protection with the family. There have been numerous investigations and reports of the family which have involved the children.
The role of the father’s partner, Ms B, in the family is one of particular concern. The evidence of Ms B in her affidavit filed 5 July 2024 is highly critical of the mother and her care of the children. Ms B alleges that the children presented to the father in dirty, smelly clothes, with unkempt hair and often had marks and bruises on them. She alleges the children would disclose they had been locked in their bedrooms by the mother due to their bad behaviour.
Ms B also deposes as to the numerous disclosures allegedly made to her by Y in relation to Mr D. Ms B further alleges that X has behaved in a sexually inappropriate way towards Y. It is apparent from that affidavit that Ms B has been heavily involved in the dispute.
The father elected to resolve the proceedings before Ms B was cross-examined. The father consented to orders restraining him from bringing the children into contact with Ms B unless the parties agree in writing that she may be present, albeit that he agreed to that restraint without admission as to the necessity for the same. Notwithstanding that caveat, I am satisfied that the father’s agreement to that Order indicates his acceptance of the mother’s continuing concern that Ms B may pose a risk to the children from which they must be protected.
Having regard to the evidence of Ms J as to the children’s disclosures with respect to Ms B’s conduct, I am satisfied that she poses a risk of harm to the children’s emotional and psychological well-being. I am also satisfied that the orders consented to by the mother and the father, which ensure that the children do not come into contact with Ms B, will shield them from such risk.
(b)any views expressed by the child;
The children have been interviewed and assessed by Court Child Expert Ms J for the preparation of the Family Report dated 1 June 2023 and the updated Family Report dated 7 October 2024. As a result, Ms J has had the advantage of interviewing the children in May 2023 and again in August 2024. Accordingly, I am satisfied that Ms J is well-placed to give evidence of the children’s views and to assess the weight that ought be attached to them.
At [56] of the updated Family Report, Ms J observed that X continued to hold more resentment towards the father than the other children. She also noted that it was difficult to assess the genuineness of Y’s opinions with respect to either the mother or the father.
With respect to the mother, at [57] of that same report Ms J reported that the children identified multiple positive traits in relation to her care; they did not disclose any safety concerns in her care.
As to the father’s home, all of the children reported that the father yelled at them and hit them, that he was “only trying to get revenge against mum” and that he lied. Further, the children disclosed that the father’s partner, Ms B, told them to say “bad stuff” about the mother and to denigrate the maternal grandmother. In addition, the children reported to Ms J that they had been told to say they had seen Mr D in circumstances where they had not, and that the mother hit them, which she did not.
As to their future time with the father, at [65] of the updated Family Report, Ms J reports that X stated that he did not like going to the father’s home on Sundays, that he did not like going there unless he had to, as “it is the worst place in the universe”. Y was reported to state that she does not really want to see the father and that she wants to continue living with the mother. Z also confirmed that he wished to continue living with the mother but that he would like sleepovers at the father’s home.
Ms J observed at [96] of the updated Family Report that the children have provided consistent accounts of their time with the father and that it is frequently not a positive experience. She also observed that the children have provided accounts that the father and Ms B have actively degraded and denigrated the mother to the children, potentially undermining and destabilising her parenting of the children and having a negative impact on the children’s emotional well-being. She observed that if such behaviour were accepted to have occurred, this would support a reduction in the children’s time with the father into the future.
The Independent Children’s Lawyer also met with the children in May 2023. In relation to that interview, the ICL notes that all of the children reported being content in the mother’s care.[4] The ICL states that during the interview, X informed her that he would “run away” if he had to spend time with the father, Y expressed the view that she wished to have the ability to spend time with the mother and the father, and Z stated that he was content in the mother’s care and missed Mr D. At that time, Z was spending time with the father but was somewhat ambivalent about future arrangements.
[4] Outline of Case of the Independent Children’s Lawyer, page 7
I am satisfied, having regard to the ages of the children, the consistency of their views across the Family Report, the updated Family Report and at interview with the ICL, that significant weight should attach to their views. Those views have been accorded such weight in the Orders made, which provide for the children to continue to live with the mother and have the opportunity to spend regular time with the father on a monthly basis and on special occasions.
(c)the developmental, psychological, emotional and cultural needs of the child; and
(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;
The children have been in the mother’s primary care since September 2022.
The report from the children’s primary school is that the mother continues to be the primary parent involved in discussions regarding the children’s well-being and further that she appears to be proactive in following the advice and recommendations made by the school with respect to the children.[5]
[5] Updated Family Report, paragraph 14
Further, the Court Child Expert, Ms J, observed at [21] of the updated Family Report that the mother demonstrates a good level of insight into the children’s needs, their current challenges and the impact that the current proceedings are having on their well-being. Ms J also observed the mother to present as being open and willing to engage with services and receive feedback as to how she can best support the children.
During the mother’s oral evidence, she demonstrated a sound understanding of the children’s individual needs; I observed to her to be engaged and knowledgeable as to the children’s needs and committed to supporting their development.
As to Y, the mother’s evidence was that Y continues to attend upon art therapy on a weekly basis, that she has been assessed for ADHD and that she is to have further neuro-developmental assessments. It was evident from the mother’s oral evidence that she is committed to ensuring that Y has appropriate assessments, treatment and support.
With respect to X, the mother observed him to be generally happy albeit that he has good and bad days. The mother confirmed that X continues to attend upon a school counsellor on a fortnightly basis for support. Like Y, X is also attending art therapy.
In relation to Z, the mother’s oral evidence is that he is a happy and bubbly child who likes to push boundaries. The mother confirmed that Z has sleep apnoea, has been assessed by an Ear Nose and Throat specialist, and is on a waitlist for surgery to treat that condition.
Notwithstanding the issues with respect to the father’s history of family violence and care of the children, the mother confirmed during her oral evidence her support for the children’s relationship with him. The mother confirmed the importance of the children having regular visits with the father and the necessity for him to prioritise the children’s needs.
The father maintains that the children are of Indigenous heritage through their paternal family. The mother’s evidence is that she has engaged the children with the City C and District Aboriginal Co-Op. The mother confirmed during her oral evidence that the father has provided her with no information as to the steps he has taken to confirm the children’s Aboriginal heritage. Nonetheless, the mother confirmed a commitment to ensuring that the children are engaged with their Indigenous culture. I accept that evidence.
Ms J reported at [57] of the updated Family Report that the children identified many positive traits in the mother’s care of them. They included that the mother “loved them, fed them, played board games with them”. Ms J confirmed that the children did not disclose any safety concerns when in the mother’s care.
Further, at [92] of the updated Family Report Ms J observed that the mother demonstrated a child-focussed approach and significant insight as to the alleged risks in her household. She noted that the mother had outlined a clear safety plan for the children in her home. In addition, Ms J observed that the mother has demonstrated a detailed knowledge regarding the children’s ongoing needs and has been proactive in following up and addressing those needs.
The observations of Ms J accord with my impression of the mother when giving her oral evidence. The mother impressed as child-focussed with a strong insight as to the children’s needs; she was committed to ensuring that those needs are appropriately addressed. Having regard to those matters I am satisfied that the mother has the capacity to meet and support the children’s developmental, psychological, emotional, physical and cultural needs.
Over the course of the hearing, many concerns were raised with respect to the father’s parenting capacity.
The mother alleges that the father has been inconsistent and inattentive as to the children’s needs. For example, she alleges that the father routinely cancels arrangements for his time with the children. During her oral evidence, the mother noted that when the father cancels his time, it has an immediate impact upon the children; their behaviour becomes dysregulated, and there are more arguments within the sibling group. The mother conceded that the children do enjoy spending time with the father and they are disappointed when he fails to attend.
Notwithstanding the father’s alleged concerns as to Y’s exposure to sexual abuse in the mother’s household, it is common ground that Y was first exposed to sexually inappropriate behaviour whilst in the father’s care. Concerns were first raised by the mother in 2019 as a result of disclosures made by Y, who was then aged four years, that she had been touched inappropriately by the father’s housemate, Mr L.
At that time, the children were spending time with the father at his home. The mother reported that following time with the father, Y had nightmares, woke screaming for someone to stop touching her and disclosed that “naked tickles are fun” referencing the father’s friend, Mr L. During her oral evidence, the mother observed that Y’s behaviour changed at that time. The mother stated that Y had nightmares for months.
The father’s oral evidence in relation to that matter was unimpressive. He denied any knowledge about the allegations relating to his former housemate. It was put to him that he ceased all contact with Mr L upon the mother raising the issues. The father provided a non-responsive answer to that proposition stating that he had heard about that. That evidence was at odds with the evidence contained in his trial affidavit at paragraph 136(j). As a result, I hold significant reservations as to the father’s frankness with the Court with respect to those allegations.
During his oral evidence, the father demonstrated limited insight as to the children’s needs or the impact of these proceedings upon them. The father’s pursuit of his application was founded on his stated desire for the truth to come out. The father was prepared to pursue that truth at the expense of what he acknowledged to be the emotional impact of the proceedings on the children and the mother.
During cross-examination, the father conceded that his time with the children was irregular. He sought to attribute this irregularity to sickness. He denied that he cancelled arrangements at the last minute or that he prioritised his partner’s needs over those of the children. Nonetheless, the father conceded that he did not spend time with the children following his partner’s surgery and convalescence.
When questioned as to the impact of his cancellation of time on the children, the father was unable to articulate what that impact would be. Having regard to that evidence, I am satisfied that the father has little insight as to the children’s needs or the impact of his behaviour on the children.
The father was also cross-examined in relation to his work and income. The father conceded that he earns approximately $990 per week and that he pays money to his partner and to the mother of G for their support. The father also conceded that he had received an inheritance of approximately $180,000 two years ago. Notwithstanding his regular income and the receipt of that inheritance, the father has provided no financial support for the children the subject of these proceedings; that this is so reflects poorly upon the father.
The children have a wealth of medical and educational needs. The mother’s evidence is that Y is on a wait list for appointment with a paediatrician for assessment; the mother’s evidence is that she cannot afford to engage with private practitioners, or pay for the children to participate in extra-curricular activities. That evidence brings into sharp focus the direct impact of the father’s failure to provide financial support for his children and supports the mother’s contention that he has a limited parenting capacity.
The father’s evidence as to his awareness and understanding of the children’s needs was unimpressive. Much of the father’s evidence focussed on his own needs rather than on those of the children. The father was fixed and determined in his view to prove the truth of the allegations he raised against the mother’s partner, notwithstanding the fact that there had been no issues raised with respect to Mr D’s conduct or care of the children in the four years prior to the incident with M.
The allegations raised with respect to Mr D only emerged in the father’s household after the children had been overheld by him; the evidence of Ms J raised significant concern that the father and/or Ms B were the sources of those allegations.
Having regard to all of those matters, I am satisfied that the father has little understanding or awareness of the children’s needs, and consequently has a limited capacity to provide for the children’s developmental, psychological, emotional and cultural needs.
The parties’ capacity to communicate with each other has been an ongoing issue. The mother conceded during cross-examination that she would comply with an order to pass information regarding the children to the father. She considered that text messaging was an appropriate method for the parties to communicate information regarding the children. The mother also agreed that the utilisation of a parenting app would be appropriate.
The mother acknowledged that the parties are able to behave cordially towards each other at changeovers and to speak to each other on those occasions. The mother agreed that it was preferable that the father’s partner, Ms B, not attend at changeovers with the children.
Sensibly, the parties have agreed to orders that will enable them to communicate regarding issues affecting the children, using a parenting app. They have also agreed that in the event of an emergency it is appropriate for them to communicate by text message or telephone. That arrangement ensures that the parties are able to communicate in a timely and child-focussed manner. I am satisfied that those are arrangements are in the children’s best interests.
(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;
It is common ground between the parties that the children will benefit by having a relationship with both the mother and the father. They agree that the children should continue to live with the mother and that it is in the children’s best interests that they spend time with the father on a monthly basis.
Those arrangements accord with the children’s expressed views and also with the recommendations of the Court Child Expert.
(f)anything else that is relevant to the particular circumstances of the child.
Since 2022, the children have been the subject of on-going litigation both in this Court and more recently, in the Children’s Court. The evidence of the Court Child Expert indicates that the children have been exposed to and affected by the on-going parental conflict to their detriment.
The children have been interviewed by child protection workers, by the Court Child Expert, and in the case of Y, have been subjected to three VARE interviews.
Having regard to that history, I am satisfied that the children’s best interests will be served by final orders that bring an end to these proceedings.
Additional considerations – right to enjoy Aboriginal or Torres Strait Islander culture: s60CC(3)
(a)the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
(i)to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(iii)to develop a positive appreciation of that culture; and
(b)The likely impact any proposed parenting order under this Part will have on that right.
It is common ground between the parties that the children have Aboriginal heritage through the father’s family. The children have been engaged with their local Aboriginal Cooperative and it is agreed between the parties that the children should have the opportunity to engage and connect with their Aboriginal culture.
THE AGREEMENT REACHED
On the fifth and final day of the hearing, the parties presented to the Court a signed Minute, the effect of which was to finalise the parenting proceedings. I made orders in the terms of the Minute having been satisfied that those Orders are in the children’s best interest.
The Orders provide for the mother to have sole parental responsibility and sole decision-making authority for the children, subject to her providing the father with 14 days’ notice in writing of any major long-term issues arising in relation to the children and notifying the father in writing as to the decision made.
In circumstances where it is common ground that communication between the parties is poor, and I have found that the mother has experienced family violence at the hands of the father and remains fearful of him, I am satisfied that the children’s best interests will be served by the allocation of sole decision-making authority to the mother. Having regard to the fraught history between the mother and the father which has resulted in family violence intervention orders being made for the protection of the mother, I am satisfied that it is in the children’s best interests that the mother have sole decision-making authority. This will ensure that necessary decisions for the children are made in a timely manner by the parent who is their primary caregiver and who is best placed to assess their needs, given her day-to-day involvement in their care.
The orders also provide for the children to live with the mother. That arrangement has been in place since September 2022. I am satisfied that the evidence before the Court supports a continuation of that arrangement. I am well satisfied that the mother has appropriately and positively attended to the children’s physical, emotional and psychological needs. Having regard to the children’s expressed views and the evidence of Ms J as to the mother’s parenting capacity and insight, I am satisfied that the children’s best interests will be served by a continuation of that arrangement.
It is also agreed between the parties that the children should spend time and communicate with the father on one day per calendar month as well as for specified times on special occasions. Further, it is agreed that the father’s partner, Ms B, should not be brought into contact with the children absent an agreement between the parties in writing. In light of my earlier findings as to the risks posed by Ms B, coupled with my findings as to the father’s parenting capacity, I am satisfied that those arrangements are in the children’s best interests. Those arrangements will ensure the children have the opportunity of maintaining their relationship with the father on a regular basis and in a safe and secure setting.
The parties also agreed that there should be safeguards in place when Mr D’s son, M, is spending time with him at the mother’s home. The parties agree that the mother must ensure that M and Y are supervised by an adult when in her home for a period 12 months and thereafter the mother is to ensure that an adult is present at her residence at all times when M and Y are present. Given the concerns around M’s behaviour, I am satisfied that those arrangements are appropriate and in the children’s best interests.
The parties also agree that all changeovers should occur at City C Police Station. Given the history of family violence allegations, as well as the previous family violence intervention orders that have been made as between the mother and the father, I am satisfied that those arrangements are appropriate.
The parties have also agreed to arrangements for the children to communicate with the father by telephone. There is also agreement as to how the parents are to communicate with each other using a parenting app, save in the event of emergency when the parties are permitted to communicate by text message or telephone. Again, I am satisfied that those arrangements are child-focussed and will ensure the children’s best interests.
The parties have also agreed to orders for information sharing to ensure that each is notified as to any serious illness or injury affecting the children and that the parents are informed as to the children’s progress at school and in relation to any sporting or other club with which they are involved. Those arrangements will ensure that both parents have the opportunity to receive information regarding the children’s progress which will afford them the opportunity to be engaged in the children’s day-to-day lives. I am satisfied that those arrangements are in the children’s best interests.
The parties have also agreed to orders that will ensure that the mother continues to support the children’s engagement with their mental health supports. Further, the mother is permitted to provide a copy of the Orders and Reasons for Judgment to the children’s schools and any treating medical or mental health practitioners involved in the children’s care. In circumstances where the children have had significant challenges as a result of the parental conflict, I am satisfied that those arrangements are in the children’s best interests to ensure that the children’s health care and educational providers are appropriately informed as to the children’s histories.
There is also agreement that the father ought complete a Tuning into Kids course. That is a course recommended by Ms J and I consider that the father’s participation and completion of such course, which will enhance his parenting skills, is in the children’s best interests.
The father has also agreed to an order restraining him from taking the children to the Motorcycle clubhouse or to events involving that motorcycle club. He has also agreed to a restraint against him interrogating or questioning the children as to the mother’s household or her partner and from driving the children in a motor vehicle unless he has a valid driver’s licence. Those Orders will ensure the children’s on-going physical and emotional safety when in the father’s care. Accordingly, I am satisfied that they are in the children’s best interests.
The parties have also agreed to mutual restraints against them abusing, insulting, belittling, rebuking or otherwise denigrating the other party, from physically punishing the children or from discussing these proceedings in the presence or hearing of the children. Again, I am satisfied that those Orders are in the children’s best interests.
The father has also agreed to a restraint against him ingesting, consuming, using or otherwise being under the influence of any alcohol or drug, unless prescribed by a registered medical practitioner or it being an over-the-counter medication. In light of the allegations against the father and having regard to his criminal history, which includes convictions for driving under the influence of a prohibited substance, I am satisfied that such orders are in the children’s best interests.
It is to the credit of both parties that they have been able to compromise and agree to orders that I am satisfied are in the children’s best interests. It is to be hoped that the resolution of the matter by consent in the terms of the orders marks a turning point in the children’s lives, bringing to an end the long litigation history endured by the family.
I certify that the preceding one hundred and fifty-two (152) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 2 June 2025
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