Britt & Britt (No 3)
[2025] FedCFamC2F 113
•3 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Britt & Britt (No 3) [2025] FedCFamC2F 113
File number(s): MLC 4773 of 2022 Judgment of: JUDGE A. HUMPHREYS Date of judgment: 3 February 2025 Catchwords: FAMILY LAW – PARENTING – dispute in relation to parenting responsibility and care arrangements for two children aged (9 and 13) – parties each allege the other has perpetrated family violence – father alleges mother has abused the children – competing allegations of risk – assessment of risk – finding children would be exposed to an unacceptable risk of psychological or emotional harm in the care of the father and not in the care of the mother – orders for mother to have sole parental responsibility and for children to live with her and spend limited time with the father, professionally supervised each calendar month – orders permitting the mother to travel internationally with the children – injunctions made (unopposed) pursuant to section 114(3) restraining the father from contacting the independent children’s lawyer, her counsel and family members, attending at her office or publishing material about the independent children’s lawyer and her family online Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 4AB, 43, 95, 60B, 60CA, 60CC, 60CG, 60I, 61DA, 65DAA, 65DAAA, 65DAC, 67ZBD, 68B, 69ZN, 69ZW, 114, 114AB
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 44, 140
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.05, 5.01, 7.01, 7.02, 7.08, 7.10, 7.11, 7.13, 7,18, 7.21
Cases cited: A v A (1998) FLC ¶92–800; [1998] FamCA 24
Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196
Bielen & Kozma (2022) FLC 94–123; [2022] FedCFamC1A 221
Hedlund & Hedlund (2021) FLC ¶94–065; [2021] FedCFamC1A 84
Hoyt & Hoyt (No 3) [2024] FedCFamC1F 384
Isles & Nelissen (2022) FLC ¶94–092; [2022] FedCFamC1A 97
Keating & Keating (2019) FLC 932-894; [2019] FamCAFC 46
Kuebler v Kuebler (1978) FLC 90-434
Lainhart & Ellinson (2023) FLC ¶94–166; [2023] FedCFamC1A 200
Line & Line (1997) FLC ¶92–729; [1996] FamCA 145
M v M (1988) 166 CLR 69; [1988] HCA 68
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
Mazorski & Albright (2007) Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) FLC 93–405; [2009] FamCAFC 92
Division: Division 2 Family Law Number of paragraphs: 388 Date of last submission/s: 28 November 2024 Date of hearing: 26-28 February 2024; 11-15 and 28 November 2024 Place: Melbourne Counsel for the applicant Mr Ellis (26-28 February 2024); Mr Gray (11-14 November 2024); self-represented 15 and 28 November 2024 Solicitor for the applicant Oikos Family Law (26-28 February 2024; 11-14 November 2024); self-represented 15 and 28 November 2024 Counsel for the respondent Ms Dwyer (26-28 February 2024); Mr Whitchurch (11-14 and 28 November 2024) Solicitor for the respondent MacGregor Barristers & Solicitors Counsel for the independent children’s lawyer Ms Sdraulig Independent children’s lawyer Trapski Family Law ORDERS
MLC 4773 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BRITT
Applicant
AND: MS BRITT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
3 FEBRUARY 2025
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
Parental responsibility
2.The respondent (“mother”) have sole parental responsibility and be solely responsible for making decisions about major long-term issues for X, born in 2012 and Y, born in 2015 (“the children”).
3.The mother inform the applicant (“father”) in writing of decisions she makes about major long-term issues for the children as soon as practicable after making such decisions.
Children’s care
4.The children live with the mother.
Children’s time with the father
5.The children spend time with the father as follows:
(a)Professionally supervised by one or more of the following services nominated by the father:
(i)B Contact Service;
(ii)C Contact Service;
(iii)D Contact Service;
(iv)E Contact Service,
or such other government-funded contact service (“children’s contact service”) or private professional supervisor (“private supervisor”) agreed by the parties in writing;
(b)For four hours on the first Sunday of each calendar month or on such other regular day each calendar month to be agreed by the parties in writing, at times advised by the children’s contact service or private supervisor after consulting with the parties; and
(c)If the time provided by order 5(b) cannot be accommodated by the children’s contact service(s) or private supervisor(s), then for such time of up to four hours on one Saturday or Sunday each calendar month as the children’s contact service(s) or private supervisor(s) advises they can accommodate.
6.The father's family members, including his partner (Ms F), their child (G), and any other children they may have (including children of the father's partner), are permitted to attend at the professionally supervised time the children spend with the father, in accordance with the protocols of the children’s contact service(s) or private supervisor.
7.Each of the father and the mother do all acts and things required to register with the children’s contact service(s) and/or private supervisor(s) nominated by the father or agreed by the parties in accordance with order 5 and to thereafter maintain that registration.
8.Subject to order 9, the father be responsible for all costs invoiced by the children’s contact service(s) or professional supervisor(s) in relation to the implementation of these orders.
9.Each of the parties may request a written report from the children’s contact service(s) or private supervisor(s) in relation to the children’s supervised time with the father at any time at their own expense, in which case the report is to be provided to both parties.
Gifts and cards
10.Within 21 days from the date of these orders, the mother inform the father in writing of a postal address the father may use for the purpose of order 11 and at all times keep him informed in writing of any change to that address.
11.The father may send gifts and/or cards to the children on their birthdays and at Christmas or as may otherwise be agreed by the parties in writing by posting them to the address nominated by the mother pursuant to order 10.
12.The mother ensure the children receive the gifts and/or cards sent to them by the father in accordance with order 11, subject to her first viewing them to ensure they are appropriate for the children.
Communication between the parties
13.Unless otherwise agreed in writing:
(a)Where the parties are required by these orders to communicate in writing, such communication be via the parenting app, AppClose; and
(b)The parties may communicate with one another by phone only if:
(i)Urgent communication is required in relation to the children, including in relation to supervised time; and
(ii)A message has first been sent via AppClose explaining the urgency and the other parent has not promptly responded to that message.
Information
14.The mother inform the father in writing of any serious illness or injury experienced by either of the children, as soon as practicable upon the illness or injury occurring.
15.The father be authorised to obtain from the children’s schools, information usually provided to parents (at his own expense), including but not limited to school reports, newsletters, photograph order forms and the like.
Provision of orders and reports
16.Each of the parties is authorised to provide:
(a)A copy of these orders to any:
(i)School;
(ii)Provider of extra-curricular or other activities; and
(iii)Medical or allied health professional or service, including counsellor or support worker (“health care provider”),
attended by the children;
(b)A copy of the updated family report dated 26 September 2024 to their own treating mental health professionals and to health care providers assisting the children; and
(c)A copy of these orders and the reasons accompanying the orders to their own treating psychiatrist or psychologist.
17.The independent children’s lawyer is requested to forthwith inform the children’s counsellor, Ms H, of the making of these orders and provide her with a copy of the orders and the reasons accompanying them, along with the family report dated 26 September 2024 if Ms H does not already have that report.
International travel and passports
18.The mother is permitted to take the children outside of the Commonwealth of Australia.
19.In the event of international travel with the children, the mother:
(a)Provide the father 60 days’ prior notice of the intended:
(i)Country(ies) of travel; and
(ii)Travel dates, except in the case of medical emergencies of family members in which case she is to provide as much notice as practicable; and
(b)Ensure that she and the children have comprehensive travel insurance for the entirety of any overseas travel; and
(c)Facilitate the children spending compensatory (make-up) time with the father in lieu of time they miss spending with him pursuant to order 5 whilst overseas, either shortly prior to their departure or as soon as practicable upon their return.
20.Pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth), the mother is authorised to apply for and receive an Australian passport for each of the children (and to thereafter renew the children’s passports as required), without first obtaining the written consent of the father.
21.For the purposes of order 20 the mother be permitted to provide a sealed copy of these orders to the Australian Passport Office, Department of Foreign Affairs and Trade.
22.The mother is permitted to provide a copy of these orders to any government department or agency in support of any application she may make for Country L passports for the children.
Injunctions
23.Each of the mother and the father be restrained, including by their servants and agents, from:
(a)Yelling at the children;
(b)Denigrating the other party or their family and friends to the children or in their presence or hearing; and
(c)Discussing these proceedings or financial matters arising from the proceedings with the children or in their presence or hearing,
and from permitting any other person to do so, save that the mother may inform the children of the outcome of this proceeding and of the effect of these orders, including with the assistance of the children’s counsellors.
24.Pursuant to section 114(3) of the Family Law Act 1975 (Cth) (“the Act”), the father be restrained, including by his servants and agents, from:
(a)Contacting the independent children’s lawyer, Alison Trapski of Trapski Family Law;
(b)Contacting counsel briefed for the independent children’s lawyer in this proceeding;
(c)Contacting any employee of Trapski Family Law, via work or personal contact methods;
(d)Attending at the offices of Trapski Family Law; and
(e)Publishing on the internet, by email or other electronic communication any material about the independent children’s lawyer and/or her family members.
Independent children’s lawyer
25.The appointment of the independent children’s lawyer is discharged upon compliance with the request in order 17.
Obligations, consequences of contravention and assistance with orders
26.Pursuant to sections 65DA(2) and 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
Procedural orders
27.All extant applications be dismissed.
AND THE COURT NOTES THAT:
A.The court will provide to the Department of Families, Fairness and Housing, via the Melbourne family law liaison team, a copy of these orders and the accompanying reasons for judgment.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE A. HUMPHREYS
INTRODUCTION
This proceeding concerns the children X (aged 13) and Y (aged 9) (“the children”). The applicant is the children's father. The respondent is the children's mother. An independent children's lawyer was appointed pursuant to orders made on 11 October 2022.
The proceeding has been on foot for more than 2.5 years, commenced by the father by way of an Initiating Application on 6 May 2022. A final hearing was conducted before me over three days, from 26 to 28 February 2024 (“February hearing”). Most matters resolved by agreement during the course of that hearing, leaving only a small number of issues for determination including:
(a)How parental responsibility for the children was to be allocated;
(b)Which parent should renew and retain the children’s passports; and
(c)If an order should be made as sought by the father requiring the parents to each allow the children to use their phones and debit cards provided by the other at all reasonable times the children are in their care.
The parties otherwise agreed the children would continue to live with the mother and spend alternate weekends with the father during school term periods (initially for two nights and then for three nights from term 3 in 2024), during school holidays and on special occasions. Orders were also agreed, providing (in summary and among other orders) for communication, consultation, the sharing of information, interstate travel and injunctions, including to safeguard the children from denigration and parental conflict. Interim orders were made to that effect by consent on 28 February 2024 (“February 2024 orders”) and the parties joined in seeking like orders on a final basis.
On 14 April 2024, while judgment was reserved in respect of the remaining issues in dispute, the father retained the children in his care after they spent time with him at the end of the school holidays. He asserted the children disclosed to him the mother screamed and yelled at them, threw things at them, put Y under scalding hot showers, and did not make them breakfast and other meals. He claimed this constituted abuse of the children, they were fearful of returning to the mother’s care and that X experienced what he described as a “severe anxiety attack” at the prospect of returning to the mother’s care. He withheld the children from school and their regular activities. Until that time, the children had always lived with the mother.
On 26 April 2024, the mother filed an Application in a Proceeding seeking a recovery order. An interim hearing was conducted on 6 May 2024 (“May hearing”). Each of the parties alleged the children were at risk of harm in the care of the other. On 8 May 2024, I made interim orders providing for the children to return to the mother’s care and to spend supervised time with the father on alternate weekends (“May 2024 orders”). I found the father had acted disproportionately in overholding the children and had acted contrary to their interests by failing to support their school attendance, activities and their relationship with the mother. I found the children would be exposed to an unacceptable risk of psychological harm if they were to spend unsupervised time with the father at that time, including by being exposed to his negative views about the mother and his belief of the risk she posed to them, and where correspondence sent by the father shortly prior to the hearing[1] raised concern about his mental health. I found the risk of harm to the children of being returned to the mother’s care was not unacceptable and, accordingly, that it was in their best interests to live with her and spend only supervised time with the father. Leave was granted to re-open the proceeding and orders made providing for further evidence to be adduced, including updating affidavits, single expert psychological assessments of both parties and an updated family report. These reasons should be read in conjunction with my reasons delivered on 8 May 2024 (“May 2024 reasons”).
[1] Sent to the independent children’s lawyer, copied to the mother’s lawyers and to my chambers (Exhibit ICL-5).
It is not in dispute that the children’s mental health deteriorated following these events. X engaged in self-harm, expressed suicidal ideation and may have attempted suicide. She reported distressing auditory and visual hallucinations. She attended at hospital emergency departments on several occasions and has been under the care of various health professionals, including J Hospital’s Child and Youth Mental Health Service (“CYMHS”) and her regular counsellor and school counsellor. Y displayed symptoms of an eating disorder and an aversion to the sound of others eating. She was taken to a hospital emergency department on one occasion and has been attending regularly upon her counsellor, being the same counsellor as X uses.
The children only began spending supervised time with the father in late October 2024. They had spent time with him on only two occasions prior to the final hearing resuming on 11 November 2024 (on 27 October and 10 November 2024), and with his family (including their young sister) only on the second of those occasions. It is not disputed the children miss and wish to see the father and his partner, Ms F. They particularly miss their now one year old sister, G (the daughter of the father and Ms F).
In summary, each of the parties now seek to have sole parental responsibility for the children and that the children live with them and spend limited, professionally supervised time with the other. They each assert the children are at risk of harm in the care of the other parent, including because the other parent lacks the required capacity to meet the children’s needs.
For the reasons that follow, I will make an order providing for the mother to have sole parental responsibility for the children and for then to live with her and spend professionally supervised time with the father on a monthly basis. In summary, I find the children would be exposed to an unacceptable risk of harm if they were to spend unsupervised time with the father and I am satisfied the mother has the required capacity to provide for the children’s needs and that they will not be exposed to an unacceptable risk of harm in her care.
THE FINAL HEARING
The final hearing resumed from 11 to 15 November 2024 and concluded with closing submissions on 28 November 2024 (“November hearing”).
The parties each had the same solicitors acting for them during the final hearing, in February and November, although they had different counsel. Between the February hearing and November hearing, the father was unrepresented for a period and briefly engaged alternate lawyers. He then re-engaged his previous lawyers ahead of the November hearing. Counsel for the independent children’s lawyer appeared throughout the final hearing and at the intervening interlocutory hearings.
The matter had been listed for three days in November but could not be contained within that timeframe. The parties were made aware throughout the November hearing that I was utilising all time available in my docket for the balance of the year, including time set aside for preparing my judgment, to accommodate and conclude the hearing. The final hearing was case-managed to provide for that, with particular regard to the principles in sections 69ZN and 95 of the Family Law Act 1975 (Cth) (“the Act”).
On the morning of 15 November 2024 (the eighth day of the final hearing), counsel for the father informed my chambers the father had terminated his services and the engagement of his instructing solicitor. At that point, only the single expert psychologist was to be cross-examined before closing submissions.[2] With the father’s agreement, I granted his counsel and solicitor leave to withdraw and encouraged the father to seek advice from a duty lawyer before proceeding with the balance of the final hearing with the father acting on a self-represented basis.
[2] Subject to either of the parties or the independent children’s lawyer seeking to recall the family report writer for further cross-examination after the single expert psychologist’s evidence.
The parties each attended at court throughout the hearing, in person, save for on 15 November 2024 where the father participated by video link upon terminating his legal representation. The mother was assisted by Country L interpreters. The father has literacy difficulties. He gave evidence he is literate but struggles with reading and that it usually takes him a long time to read. He was provided with assistance to accommodate those difficulties, including for documents to be read out to him in court. The parties were offered support by the Family Advocacy Support Service (FASS) throughout the hearing and the court extends its thanks to the staff of that valuable service.
By order made on 4 October 2024, I permitted the independent children’s lawyer to attend the balance of the final hearing by video, provided her counsel attended in person, and she did so.
The expert witnesses attended for cross-examination electronically, by Microsoft Teams, by agreement and without difficulty.
Documents relied on
The matter was initially listed for final hearing in September 2023 and the parties filed trial documents ahead of that date. On 12 September 2023, to save legal costs for the parties, I made trial directions permitting them to file updating affidavits ahead of the February hearing rather than a single consolidated affidavit. Because the matter was then re-opened after the February hearing for further evidence to be adduced, they have each now filed a number of affidavits.
The father relied on the following documents:
(a)His fifth Amended Initiating Application, filed on 31 October 2024;
(b)His affidavits filed on 20 August 2023, 7 September 2023, 28 January 2024 and 21 October 2024;
(c)Affidavits of his partner, Ms F, filed on 20 August 2023 and 21 October 2024;
(d)Affidavit of Mr K (“single expert psychologist”) filed on 2 October 2024, and the annexures to that affidavit, including the psychological assessment reports relating to both parties and annexed curriculum vitae;
(e)Child impact report prepared by court child expert and family consultant, Ms M, dated 6 October 2022 (“child impact report”);
(f)Reports of Ms N (“family report writer”), dated 8 March 2023 (“initial family report”) and 26 September 2024 (“updated family report”);
(g)Affidavit of Ms O (the father’s treating psychologist), filed on 21 October 2024 and annexed curriculum vitae and treatment report;[3] and
(h)His Outline of Case Document (“case outline”) filed on 6 November 2024.
[3] Exhibits MSO-1 and MSO-2. I refused the father’s oral application to rely on a second annexed report (MSO-3), critiquing the single expert psychological assessment reports. I provided oral reasons for that decision at the final hearing which I will elaborate on in these reasons.
The mother relied on the following documents:
(a)Her fourth Amended Response to Initiating Application, filed on 4 November 2024;
(b)Her affidavits filed on 1 September 2023 (from paragraphs [52] to [85])[4], 19 February 2024 and 4 November 2024;
(c)Affidavit and reports of the single expert psychologist;
(d)Initial family report and updated family report;
(e)Child impact report;
(f)DFFH report prepared pursuant to section 69ZW of the Act, dated 16 July 2022 (“section 69ZW report”);[5]
(g)Her notice of child abuse, family violence or risk (“notice of risk”) filed on 31 May 2022;
(h)Memorandum of court child expert Ms P dated 13 May 2024 (“court child expert memorandum”); and
(i)Her case outline filed on 4 November 2024.
[4] Without objection, where the mother filed a consolidated trial affidavit on 19 February 2024 rather than an updating affidavit as directed and omitted that part of her affidavit filed on 1 September 2023 responding to the father’s trial affidavit.
[5] The mother also identified a section 67ZW response of the same date in her case outline, which was not referenced in submissions and appears to be the same document.
The independent children’s lawyer relied on the following documents:
(a)Affidavit and reports of the single expert psychologist;
(b)Initial family report and updated family report;
(c)Child impact report;
(d)Section 69ZW report;
(e)Police response to request made pursuant to section 67ZBD of the Act, dated 10 May 2024 (“Police s 67ZBD response”);
(f)DFFH response to request made pursuant to section 67ZBD of the Act, dated 26 May 2024 (“DFFH s 67ZBD response”);
(g)Court child expert memorandum; and
(h)Case outline filed 4 November 2024.
Both parties and the independent children’s lawyer filed case outlines for the February hearing, which were not relied upon after filing of their updated case outlines prepared for the November hearing. Each of the parties and the independent children’s lawyer relied on tendered annexures from affidavits and other documents tendered during the hearing, including from subpoenaed records.
Parties’ positions
At the outset of the November hearing, counsel for the independent children’s lawyer tendered a consolidated minute setting out the orders proposed by each of the parties in a comparative format as directed by my chambers (“consolidated minute”).[6] An updated version of that document was tendered prior to closing submissions (“updated consolidated minute”).[7] I have considered the precise terms of the orders sought by each of the parties and recommended by the independent children’s lawyer as set out in those documents even though I have only summarised their positions in my reasons.
[6] I have now marked the consolidated minute (tendered by the independent children’s lawyer by email on 8 November 2024) for the court file, Exhibit ICL-1A.
[7] Exhibit ICL-7.
The father
The father’s position changed throughout the November hearing. Initially, he sought orders for sole parental responsibility for the children and for the children to live with him and to spend unsupervised time with the mother on alternate weekends, from Friday evening until Sunday evening, on Mother’s Day and during school holidays[8]. He sought an order the mother attend upon, and follow all reasonable directions of, a psychologist. He otherwise sought orders providing for the parties’ attendance at school events, for access to and the sharing of information in relation to the children, the parties’ communication and changeover.
[8] As reflected in his fifth Amended Initiating Application filed on 31 October 2024 and Exhibit ICL-1A.
On 14 November 2024, the father informed the court he had changed his position. He said hearing the mother’s oral evidence had “opened [his] eyes”, to the efforts undertaken by her to support the children and her parenting capacity. He said he could now see his shortcomings and that he had acted “atrociously”. After being provided with an opportunity to take legal advice, on 15 November 2024 the father confirmed he wished to revert to seek orders consistently with his position at the close of the February hearing.
By 28 November 2024, when the matter returned to court for closing submissions, the father had changed his position to seek orders for sole parental responsibility and (among other things) for the children to live with him and to spend only supervised time with the mother at a supervised contact service for two hours each fortnight. In the alternative, if the father’s primary application is unsuccessful, he seeks the parties have joint decision-making responsibility, the children live with the mother and they spend unsupervised time with him on alternate weekends, from Friday evening until Sunday evening, along with time during school holidays and for special occasions.[9]
[9] Exhibit ICL-7.
In the father’s words, he believes the mother has “stolen" the children from him and that she has “abused the children for four years.” He believes she is “unwell”, a “lunatic”, a “pathological liar”, an “abuser”, an “incompetent” parent and a “bitch”, and “there ain’t a better person on this planet to help [the children] deal with childhood trauma” than him. He submits the mother’s actions over time and her proposals demonstrate she seeks to remove him from the children’s lives. He contends the children will be unsafe in the mother’s care and she requires psychiatric help. He submits that because of the children’s loving and trusting relationship with him and his own experience of childhood trauma, he is best placed to care for the children and meet their needs and he would not allow the children to come to harm in his care. He emphasised the children’s desire to see him (and G) and their dislike of supervised time. He closed his case submitting:
We both know what the kids want, and we both know there’s no way I’m bloody going to act like that again, react in that way. Not a chance, because I’ve seen what they’ve done, and I hurt my kids, and I’ve got to live with that now.
The mother
By the conclusion of the final hearing, the orders sought by the mother aligned with those recommended by the independent children’s lawyer.[10]
[10] Exhibit ICL-7.
The mother seeks an order providing for her to have sole parental responsibility for the children and that she be solely responsible for making decisions about major long-term issues for the children. She submits the history of family violence perpetrated by the father, entrenched parental conflict, the parties’ inability to communicate, the father’s attitudes towards her, and his mental health and emotional and behavioural difficulties, mean that it would be both impracticable and contrary to the children’s best interests for the parties to share parental responsibility and to make joint decisions for the children.
Consistently with recommendations made in the updated family report, the mother seeks the children live with her and spend only professionally supervised time with the father, for three to four hours once a month. She submits the children would be exposed to an unacceptable risk of harm if they were to spend unsupervised time with the father, by his views about her, his anxiety, emotional instability, impulsive and poor decision-making and behaviour and difficulties in maintaining appropriate boundaries in his relationships with the children. She takes this position relying on the expert evidence of each of the single expert psychologist and family report writer, evidence of the father’s views and behaviour, including his evidence and conduct throughout the final hearing. She further contends the father lacks capacity to provide for the children’s needs, including to support their relationship with her and to support their psychological and emotional wellbeing, and that this too poses a risk of harm to the children.
The mother also seeks orders providing for the father to send gifts and/or cards to the children for their birthdays and at Christmas, for her to keep the father notified of illnesses and injuries experienced by the children, and authorising the father to communicate with the children’s treating professionals, to receive information from the children’s school and to attend parent-teacher interviews. She seeks an order authorising the parties to provide the family reports to treating medical and allied health professionals assisting the children.
The mother also seeks orders permitting her to travel overseas with the children, so she may travel to Country L where she and the children have family, and to obtain passports for the children without the consent of the father, anticipating difficulties securing his consent.
Independent children’s lawyer
The recommendations and submissions made by the independent children’s lawyer at the conclusion of the hearing were adopted by the mother as I have outlined.[11]
[11] Exhibit ICL-7.
During the course of closing submissions, the independent children’s lawyer also sought an injunction restraining the father from contacting the independent children’s lawyer, counsel engaged by her, or her staff and family, and from publishing information about them online and attending at their workplace.[12] She does so in circumstances where the father has expressed his opinion that she is a “pig”, “corrupt” and a “lying piece of shit” who “is just as bad as a paedophile priest”, has alleged she has colluded with the mother and is “not mentally fit” to hold her role, has sent intimidating and threatening emails to her, including with photographs of members of her family, and has threatened to “expose” her. The making of such an injunction is not opposed by the father.
[12] The terms of the injunction sought by the independent children’s lawyer were provided by email on 28 November 2024 and I have now marked that email Exhibit ICL-8.
ISSUES REQUIRING DETERMINATION
The issues requiring determination therefore include:
(a)How parental responsibility for the children is to be allocated. This requires particular consideration of:
(i)The allegations of family violence made by the parties;
(ii)The capacity of each of the parties to make sound decisions in the children’s interests;
(iii)The capacity of the parties to communicate effectively, to the extent required to consult with one another and make joint decisions; and
(iv)The impact of parental conflict and disputes about decision-making on the children.
(b)With which parent the children should live and the time they should spend with the other parent. This issue requires an assessment of the following matters in particular:
(i)Whether the children will be exposed to an unacceptable risk of harm in the care of either parent;
(ii)If so, what measures (if any) can be implemented to ameliorate those risks; and
(iii)The capacity of each parent to provide for the children’s needs, including their psychological needs, and to facilitate a meaningful relationship with the other parent.
(c)What other orders sought by the parties and the independent children’s lawyer are in the children’s best interests, including in relation to communication, access to and sharing of information, overseas travel and obtaining passports for the children?
(d)Are the injunctions sought by the father appropriate for the children’s welfare?
(e)Is it just and convenient to make the injunction sought by the independent children’s lawyer restraining the father from contacting her, her staff and her family and counsel engaged by her?
EVIDENCE
In determining these issues, I have reviewed and taken into account all evidence before me, although it has not been possible to include every aspect of the evidence in these reasons, which are already very lengthy. I have also had the benefit of observing the presentation of the parties in court. I have taken into account when listening to the mother’s evidence, that she was assisted by an interpreter. I have kept the father’s literacy difficulties in mind.
In assessing the evidence, I have applied the balance of probabilities as the standard of proof as required by section 140 of the Evidence Act 1995 (Cth). Statements of fact in these reasons constitute findings of fact. In making my findings I have taken into account the serious allegations made by each of the parties against the other, including of family violence and child abuse. I have remained mindful of the effect of the orders sought by the parties which would see parental responsibility removed from a parent and the children spending only limited supervised time with a parent.
BACKGROUND AND PROCEDURAL HISTORY
The parties met in 2009 and began living together approximately three months later. They were married in 2010, separated on a final basis on 25 December 2019, and are divorced.
The mother was the children’s primary carer during the parties’ relationship, as the father worked in full time employment.
The mother alleges the father perpetrated family violence towards her during their relationship and after separation, including engaging in coercive and controlling behaviour. For reasons that follow, I am satisfied he did.
The mother gave evidence that in December 2019, the father called her approximately six times. She turned off her phone and when she turned it back on, she saw he had called more than 100 times while she was attending a Christmas party at the home of a mother from the children’s school. When cross-examined about this incident at the February hearing, the father did not deny making the phone calls but gave the following evidence:
[…] like I said to the magistrate, “I know I called her several times. I didn’t realise it was that many.” I’m not sure because I fell asleep with my phone, whether it hit redial or whether I was just in such an insane state at the time that I was hitting redial, so I’m not sure. I know it’s there, and I’ve seen it. I’m not disputing it, but I can’t recall making that many phone calls. So I’m not sure whether it was me losing the plot doing that or whether it has somehow redialled, but I don’t know technology enough to know even if that’s possible — or it could have been spoofing, I’m not sure.
The mother returned home from the party at around 4.00 am. She admitted she was affected by alcohol. She said the father was immediately angry that she had not answered her phone and had come home late. She described that he applied two hands to her chest and pushed her down to the path and into a garden tree. She said she straightened up and he again pushed her with two hands to her chest. She said she had lightly grazed knees from falling. The father denied pushing the mother and alleges she tripped, but admitted grabbing her sleeve. I do not accept the father’s denial given his criminal conviction for unlawful assault in respect of this allegation, following a contested hearing. Following the mother’s report of the assault, a family safety notice was issued by police to protect the mother and children, naming the father as the respondent.
On 25 December 2019, the mother left the matrimonial home with the children. They stayed at the home of Mr Q, for approximately one month, before moving into a rental property. Mr Q was formerly a friend of both parties and remains a friend of the mother.
After separation, the children have continued to live with the mother, save for during the period from 14 April to 8 May 2024 when the father retained them in his care. The children have spent varying time with the father during these proceedings, with several interruptions. Initially, they spent time with him, by agreement between the parties, during the day on alternate weekends.
In early 2020, an interim family violence intervention order was made by consent without admissions, naming the mother and the children as protected persons and the father as the respondent. The order was initially confined in scope in respect of the children, to protect them only from family violence.
The mother alleged the father sent an excessive number of emails to her in the period after their separation, including in early 2020 after the intervention order was made. The father was charged with persistent breach of an intervention order relating to his communications after separation. When cross-examined at the February hearing, the father admitted that he called the mother “a prick” in one email and that he was “venting”. Nevertheless, the father’s case outline recorded, “He acknowledges the breaches, but asserts the communication was not otherwise in and of itself family violence conduct.” I find this and the father’s denial that he pushed the mother (notwithstanding his conviction for assault) are examples of the father failing to acknowledge and take responsibility for conduct towards the mother constituting family violence.
The father acknowledged his mental health deteriorated after separation in December 2019 and that he experienced poor mental health in 2020, including severe depression and suicidal ideation. He was assisted by Region R Crisis Assessment Treatment Team (CATT) in mid-2020.
In early 2020, the father attended at X’s school. He said he did so to give X a birthday present because the mother did not let him see or speak to X on her birthday. The father had informed the school principal, Ms S, he would attend. Upon learning of this, the mother kept X home from school and did not send Y to childcare. I accept her evidence about the reasons the children did not attend school and childcare that day, including that she was fearful the father may pick X up from school. The father deposed that upon learning X had not been sent to school, he asked Ms S where X’s new classroom was. He acknowledged that when Ms S said she would not tell him, he became upset. He phoned the police who attended at the school. Whilst the father denied on affidavit that he was aggressive towards Ms S, I find he was. He admitted he raised his voice at her, was “vocal” and slammed the door as he left. The police incident report tendered by the father reported that Ms S reported the father smelled of alcohol, became verbally aggressive and referred to the mother as a “fucking cunt”.[13] The father’s conduct resulted in the school being placed into lockdown by Ms S and the police applying for family violence safety notices to be issued. When cross-examined, the father acknowledged his behaviour was inappropriate, he was “going a bit off the rails, so to speak” and “wasn’t thinking clearly”. He denied drinking that day but admitted he attended with “a bit of alcohol from the night before.” When asked if he was angry and behaved in an aggressive the manner, the father answered non-responsively, stating “People were stealing my kids.” He agreed “absolutely” that his behaviour may have made Ms S feel threatened and concerned. The father acknowledged X was subsequently anxious about him attending at her school and that she asked him not to attend her graduation in 2023. For this, he blamed the mother. I find both parties contributed to X’s anxiety about the father attending at her school - the father, by his conduct in early 2020 and the mother, by informing X the father was responsible for the school being placed into lockdown. Notably, the mother acknowledged her contribution to X’s anxiety and that she should not have informed her of the father being the cause of the lockdown. The father did not show like insight.
[13] Exhibit F-2.
The same day, the father attended at Y’s childcare centre, asking for Y. The mother alleged that when he heard she was not there, he slammed the gate in anger, breaking it. The father denied he “broke the gate in anger” but after hearing his evidence under cross-examination, including that he immediately purchased and installed a new gate after being phoned by staff from the childcare centre following his attendance, I find it likely he did.
Notwithstanding the father’s conduct that day, the mother agreed (through the police), for the children to spend time with the father later that day.
In early 2020 the mother applied to extend the intervention order then in place. She deposed she told the Magistrate she had been informed by another parent a man had taken a power tool to the school. She deposed the Magistrate adjourned the case to the following day, seeking more information as to whether the father had entered the school with a power tool. When cross-examined, the mother admitted she had acted on a rumour circulating among the school community. She deposed that in early 2020, she returned to court and the police prosecutor informed the court there had been an investigation and no complaint the father had attended at school with a power tool. The intervention order was varied to restrain the father from attending within 200 metres of the children’s school.[14] I find it likely rumours were running after the school was placed into lockdown and find it more likely the mother acted on those rumours rather than fabricated an allegation the father attended at school with a power tool. This is a matter in respect of which the father continues to harbour significant anger towards the mother, raising it repeatedly in response to unrelated questions while being cross-examined.
[14] The order was also varied to prevent contact with the children but that variation was corrected at a hearing in early 2020 as an administrative error.
The father became aware at around this time, from police in the context of the intervention order proceedings, that the mother had arranged for the children to attend a psychologist. He spoke with the psychologist, obtained information about the children’s counselling and provided his consent to the counselling continuing.
The mother deposed she ceased making the children available to spend time with the father on 27 June 2020 after becoming aware the father had shown X a copy of a police report and that X said to her “if he wins the court matters in October, he will come to our house because he knows the address.” She applied to vary the intervention order then in place to prevent the father from discussing with the children (or exposing them to) information or material regarding the legal proceedings between the parties. I accept the mother’s account of what X told her given the father’s failure to respond to and deny it in his affidavit in reply, and where the mother’s actions in seeking to vary the intervention order were consistent with her evidence.
From around November 2020, the children began spending overnight time with the father, generally on alternate weekends.
In late 2020, the father received an email from T School notifying him of prep orientation. This came as a surprise to him as X had been attending U School and the parties had enrolled Y to attend there too. He learned the mother had enrolled both children to attend T School without consulting with him or informing him. Shortly thereafter, the mother asked for his agreement to transfer the children’s enrolment. He did not agree. In January 2021, the mother informed the father she had enrolled the children to attend V School. She did not dispute that she did so without consulting with the father or seeking his consent.
In mid-2021, a final intervention order was made against the father, naming the mother and the children as protected persons. The order was made by consent without admissions.
From around July 2021, the children began spending two nights with the father each fortnight by way of an agreement reached upon resolution of the intervention order proceeding.
In mid-2021, the father commenced living with Ms F and her sons, W and Z.
The mother ceased making the children available to spend overnight time with the father in September 2021. She deposed to various reasons for that decision, which were disputed by the father. He initiated family dispute resolution but the matter was assessed as unsuitable for mediation in October 2021.
The mother deposed that in late 2021, X disclosed to her that she wanted to self-harm. She said she arranged counselling for X.
In late 2021 the mother informed Child Protection that one of Ms F’s sons was engaging in sexualised behaviour towards the children. About this, the section 69ZW report recorded:
Child Protection interviewed [X] and [Y] at school. [X] disclosed concerns that her stepbrother make sexual sounds however was very clear nothing else occurs.
The investigation was closed with no findings of substantiated harm. I am not persuaded the mother acted unreasonably in making this report and limiting the children’s time spent with the father pending completion of an investigation, given X’s account to Child Protection.
In or around January 2022, the father learned from Child Protection that X was attending upon a different psychologist. Once court proceedings had been issued and an order made authorising it, X’s new psychologist spoke with the father regarding her approach and X’s treatment, and he agreed to X continuing to attend upon her.
In early 2022 the intervention order then in place was extended to late 2022 and varied to prohibit the father from communicating with the mother in relation to parenting arrangements more than once per day. From this, I infer the Magistrates’ Court found the volume of the father’s communications was again problematic.
In March 2022, the mother ceased making the children available to spend time with the father, informing him “the children still have stress [so she thinks] they need time”.
In early 2022, the father pleaded guilty to charges for persistently contravening an intervention order in place to protect the mother and driving offences. He was convicted and sentenced to a Community Corrections Order requiring (among other things) assessment and treatment for alcohol abuse or dependency, mental health assessment and treatment and an offending behaviour program. This was also the date on which the father was convicted of unlawful assault, for pushing the mother in December 2019.
Family law proceedings
On 6 May 2022, the father commenced this proceeding, filing an Initiating Application seeking interim and final parenting orders, providing (in summary and among other orders) for equal shared parental responsibility, for the children to live with the mother and to spend time with him on alternate weekends (from Friday to Sunday), during school holidays and for special occasions. On 31 May 2022, the mother filed a response to the father’s Initiating Application, seeking interim orders providing (in summary) for equal shared parental responsibility, for the children to live with her and to spend supervised time with the father on a fortnightly basis pending the father completing supervised alcohol testing, an alcohol counselling program and Tuning into Kids program, and the appointment of an independent children’s lawyer and preparation of a family report.
On 11 October 2022, interim orders (“October 2022 orders”) were made following the release of the child impact report and a contested hearing. Those orders provided for the parties to have equal shared parental responsibility and that the children live with the mother and spend time with the father, progressing to alternate weekends (from Friday evening until Saturday evening). An independent children’s lawyer was appointed, and a family report was ordered.
The father deposed that following the October 2022 orders, the mother began sharing information with him. She informed him of a psychologist she intended for Y to attend, he spoke with that psychologist and provided his consent for Y to attend upon the psychologist.
In late 2022, the mother applied to extend the final intervention order for a further period of ten years. That application was resolved in early 2024 by way of an undertaking provided by the father.
On 20 February 2023, the family was interviewed for a family report. Risk factors identified by the family report writer at that time included the mother’s allegations of family violence, allegations by both parties of denigration by the other, allegations in respect of the father’s alcohol use, the father’s mental health history, and X’s mental health. At that time, the mother reported X had received diagnoses of post-traumatic stress disorder (PTSD), depression and anxiety, although I note the PTSD diagnosis was a matter in dispute at the February hearing.
The family report writer made the following recommendations in the initial family report:
The distance in between the parties’ proposals is not monumental at this time and the children appear to enjoy their relationships with both of their parents. The parties are encouraged to approach their dispute with an attitude of compromise, to achieve a child focused resolution in a timely manner. Exposing the children to a protracted dispute during their formative years may have an undesirable and undermining impact on the children’s development and their relationships.
It is respectfully recommended and in the absence of any information to the contrary, the court considers the following:
a.Pending a determination by the Court regarding family violence, along with the entrenched parental conflict and rigid views of the parties, consideration to be given to [the mother] having sole parental responsibility for [the children].
b.[The children] to live with [the mother].
c.[The children] to spend time with [the father] on alternate weekends, from Friday until Sunday.
d.The parties to complete a Parenting Orders program.
e.[The father] to complete a Caring Dads program and continue to engage in ongoing therapeutic supports for his mental health.
f.The parties to communicate via a Parenting Application.
g.This report be made available to any professionals assisting the parties or [children].
On 3 March 2023, a compliance and readiness hearing was conducted and the matter listed for a final hearing commencing on 11 September 2023. On 11 September 2023, counsel advised the matter was close to resolution. A final agreement could not be reached and on 12 September 2023 the final hearing was adjourned to 26 February 2024.
In 2023, the father and Ms F welcomed the arrival of their daughter, G.
In October 2023, X began attending counselling with Ms H of AA Centre. The father deposed the mother informed him of the change in counsellor in September 2023 and provided him with a consent form to sign. Whilst the father expressed his preference for continuity in care for X, he ultimately consented to X attending upon Ms H. X remains under the care of Ms H and Y now attends upon her also.
The father acknowledged that on 18 October 2023, the mother provided him with information packs and consent forms for the high school he said X had chosen to attend, being BB School. He did not oppose X attending there.
Ahead of the February hearing, the father deposed X had told him the mother had been drinking heavily and had been constantly verbally abusing and screaming at X. The parties undertook hair follicle testing in early 2024. The test results dated early 2024 indicated “abstinence or low alcohol consumption” by the mother [15] and “the use of alcohol, but not to a chronic excessive level” by the father.
[15] Exhibit M-6.
The February hearing and subsequent events of April and May 2024 are outlined in in the introduction to these reasons and in the May 2024 reasons.
Father’s withholding of the children
In early 2024 the mother applied for a further intervention order against the father. She deposed the father had interfered with her parenting of Y, suggesting she stay with him for two weeks,[16] that he had sent unwelcome messages to her and that he had sent messages to a friend of Mr Q speaking abusively about her and Mr Q. That conduct was not denied by the father. An interim order was not made. The father gave oral evidence he was served with the mother’s intervention order application in early 2024. Whilst I am not persuaded on the balance of probabilities that the father’s subsequent actions were a retaliatory response to the mother’s application for a further intervention order, I do not rule out the possibility.
[16] Corroborated by a text message sent by the father to the mother on 23 March 2024: Exhibit MSB(3)-1.
In accordance with the February 2024 orders, the children were to spend time with the father from 12 to 14 April 2024. The father deposed that when he collected the children on Friday, 12 April 2024:
[X] appeared to be in a bad mood and said “can we go? I can’t stand that bitch.” I was shocked to hear [X] say that and asked “what happened?”. [X] told me she tried to bring her only phone that was connected to the chat groups with her friends, but her mum did not let her and was screaming at her when she found out that [X] tried to bring her phone.
When cross-examined, the father agreed it was not appropriate for X to refer to the mother as a bitch but that he did not correct her. He ultimately acknowledged that not correcting X in this way sends X a message that it is okay to speak about the mother like that. I find it also likely conveyed to X his own view about the mother.
The father deposed the children subsequently made various disclosures over the course of that weekend, in respect of the mother’s treatment of them, including:
(a)X told him in the car on 12 April 2024:
(i)The mother does not allow them to use the phones he gave them, taking the phones from them and going through them;
(ii)The mother keeps screaming at them all the time;
(iii)The mother has thrown items at them, including nail polish;
(iv)The mother does not give them breakfast. He said this was confirmed by Y;
(v)The mother screams at them if they ask for food, including if X asks for food after the mother goes out for dinner; and
(vi)The mother only gives X $5 per week for lunch at school;
(b)X said the mother told her what to say in order to influence family law proceedings, and when the mother didn’t get the orders she wanted, she screamed and blamed X for not saying the right thing; and
(c)Y told him the mother forces her to have scalding hot showers which are very painful and when she asks to turn down the temperature, the mother screams at her. X said the mother used to do that to her too, but she learnt to adjust it to be cooler.
Ms F deposed she spoke with the children alone and they made similar complaints to her.
The children were due to return to the mother's care at 7.00 pm on Sunday 14 April 2024, with changeover to take place at Suburb CC Police Station. The father deposed he and Ms F:
initially made the decision that despite the children’s disclosures, that we would return the children to their mother and pursue the matter through legal channels.
but that he changed his mind when X had what he described on affidavit as a “severe anxiety attack” and in his oral evidence as “a mental breakdown”. About this, he deposed:
[…] in the hours leading up to returning to their mum’s care on Sunday 14 April, [X] had a severe anxiety attack about returning home. She was shaking violently and kept repeating “I don’t want to go back, I don’t want to go back”. I called the police but they refused to come out and told me to call the ambulance. I then called the ambulance and they came. I then told [X] that it’s ok, you’re not going back, but she was still quite shaken for a while afterwards. When the paramedics arrived, [X] had calmed down a bit and spoke to them outside and I could hear her breaking down crying. The paramedics then called the police, who then called me and said that they were a bit busy, and if they can’t come tonight will come tomorrow to connect us with support services, however the police didn’t end up attending.
Accordingly, I will make the order proposed by the mother with some minor amendments to make her obligations clear in respect of information she is required to provide to the father.
I will make the order proposed by the mother and independent children’s lawyer to facilitate the mother obtaining Australian passports for the children in the absence of the father’s consent. This will support the orders I will make for her to have sole parental responsibility and to travel overseas with the children. I do so accepting the evidence given by the mother that the father has refused to sign applications to renew the children’s expired passports and finding he is unlikely to cooperate with such an application given his views about the mother and his opposition to the children travelling overseas.
I will not make an order authorising the mother to sign and execute documents necessary for the children to obtain a Country L passport, noting the absence of evidence as to the requirements for the children to obtain Country L passports and so as not to purport to bind authorities in another jurisdiction. I will however make an order permitting the mother to provide a copy of the orders I make to any government department or agency in support of any application she may make for Country L passports for the children. This will enable her to show that she has sole parental responsibility for the children under Australian law.
INTERSTATE TRAVEL
The father seeks an order requiring the parties to each provide notice and information in the event of interstate travel. I was not addressed in respect of this order and I am not persuaded it is required for the children’s best interests.
INJUNCTIONS
The father seeks injunctions restraining the parties from denigrating one another in the presence of the children or from discussing these proceedings with or in the presence of the children, or from allowing any other person to do so.
To make an injunction pursuant to section 68B of the Act in relation to the children, I am required to be satisfied that it is appropriate for their welfare. Section 68B is informed by the best interests of a child but not governed by the paramountcy principle.[65] The Full Court in Bielen & Kozma[66] observed there is no definition of the “welfare” of a child in the Act and expressed the view that consideration of matters impacting upon the welfare of a child “necessarily involves focusing upon the immediate, medium and long-term impact of proposed orders upon the child’s physical, emotional and psychological safety, security and well-being”.
[65] Hedlund & Hedlund [2021] FedCFamC1A 84 citing previous authorities with approval.
[66] Bielen & Kozma (2022) FLC 94–123 at [30].
I find an injunction in the terms proposed by the father is in the children’s best interests and appropriate for the children’s welfare. Such an order will assist to shield the children from the parents’ feelings towards one another and parental conflict. It will also enable professional supervisors to intervene in the event the injunction is breached. I will however include an exception to the injunction, to enable the mother to explain the final orders to the children. I asked the family report writer for her expert recommendation about supporting the children when they are informed of the outcome of these proceedings. She responded that it may be beneficial for some of that information to be conveyed via or with the support of X’s counsellor, upon whom I note both children now attend. I will not make an order requiring this given I do not know the attitude of Ms H towards that task, but I encourage the mother to seek her assistance before informing the children of the finalisation of the court proceedings and the effect of the orders I make. The orders I make will facilitate that occurring.
I will not extend that exception to the father as I do not have confidence he will explain the orders to the children in a balanced way given his attitudes and beliefs and where I find it unlikely he will agree with or readily accept the court’s determination.
INJUNCTION SOUGHT BY THE INDEPENDENT CHILDREN’S LAWYER
As noted earlier in my reasons, the independent children’s lawyer seeks an injunction against the father, restraining him from contacting her, her counsel, her family, her staff, from attending at her office and from publishing material about her or her family members electronically.[67] The application is not opposed by the father.
[67] The terms of the injunction sought by the independent children’s lawyer are set out in Exhibit ICL-8.
The injunction is sought pursuant to section 114(3) of the Act, which provides:
A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
In Hoyt & Hoyt (No 3),[68] Strum J made a like order, satisfied he had jurisdiction in the parenting proceedings between the parties and the independent children’s lawyer and that he had power to grant the relief sought pursuant to section 114(3).
[68] [2024] FedCFamC1F 384 (“Hoyt & Hoyt (No 3)”).
In this case, the court is exercising jurisdiction under the Act in a parenting proceeding between the parties and the independent children’s lawyer. They are proceedings other than to which section 114(1) applies. The father acknowledged he has behaved inappropriately towards the independent children’s lawyer and he does not oppose the making of the injunction. I am satisfied on the evidence before me of the father’s intimidating, harassing and threatening behaviour towards the independent children’s lawyer, that it is just and convenient to make orders imposing the injunctions sought by her, including extending to her counsel. I further am satisfied it is just and convenient to include in that injunction, an order restraining the father from contacting family members of the independent children’s lawyer in circumstances where he admitted searching for information about her family members online, obtaining their photographs and creating a fake news headline using those photographs. The order restraining the electronic publication of material about the independent children’s lawyer and her family is appropriate given the creation of that headline and the images accompanying it and his threat to “expose” the independent children’s lawyer to a large online audience on Father’s Day in 2025 or sooner.
In Hoyt & Hoyt (No 3) Strum J observed an order could similarly have been sought in and, in his view, granted, under section 44 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”). I note section 140 of the FCFCOA Act provides a like power to the Federal Circuit and Family Court of Australia (Division 2).
Counsel for the independent children’s lawyer confirmed the independent children’s lawyer or members of her family had not sought an intervention order for her personal protection, so there is no impediment arising from section 114AB of the Act, to the making of the proposed injunction.
I will therefore make the injunction sought by the independent children’s lawyer.
OTHER ORDERS
Discharge of previous orders
Rule 5.01 of the Rules provides that upon the making of final orders in a proceeding, any interlocutory order made in the proceeding pending further order is automatically discharged and ceases to have continuing effect. I will nevertheless make an order confirming this is the case, so it is clear for the parties and to any third party who may have been provided with copies of interim orders made in the proceeding.
Provision of orders and court documents
Each of the parties and independent children’s lawyer sought orders permitting them to provide copies of the final orders to any school the children attend. The mother and independent children’s lawyer also seek an order permitting the parties to provide a copy of the final orders to their treating mental health professionals and any medical and allied health professionals assisting the children. I will make orders in those terms, extending to the provider of extra-curricular and other activities.
The family report writer recommended the updated family report be made available to any professionals assisting the parties or children. I agree it is in the children’s best interests for that to occur and I will make that order as sought by the mother and the independent children’s lawyer.
I expect the father will find it difficult to accept the court’s determination, given his fixed and entrenched views and what I have found to be only transient insight. I hope my reasons will assist the father to understand my decision and allow him to focus on seeking the professional treatment required to support his mental health and address the risks I have identified, for the benefit of the children. I will make an order permitting the parties to provide a copy of the final orders and these reasons to their own treating psychiatrist or psychologist, for the purpose of seeking support and assistance, including in respect of compliance with the final orders, finding it is in the children’s best interest for their parents to have that support.
Consistently with the recommendation of the family report writer in her oral evidence, I will make an order requesting the independent children’s lawyer inform Ms H of the outcome of these proceedings and provide her with a copy of the final orders, these reasons and the updated family report if not already provided to her pursuant to the orders made on 4 October 2024.
My chambers will provide a copy of these orders and the reasons accompanying them to DFFH via the Melbourne family law liaison team, given Child Protection’s involvement with this family as recorded in the section 69ZW report.
CONCLUSION
For all of the above reasons, I am satisfied the orders set out at the commencement of these reasons are in the best interest of the children and make orders in those terms.
I certify that the preceding three hundred and eighty-eight (388) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A. Humphreys. Associate:
Dated: 3 February 2025
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