Carson & Rosario
[2025] FedCFamC1F 416
•19 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carson & Rosario [2025] FedCFamC1F 416
File number(s): HBC 768 of 2023 Judgment of: JOHNS J Date of judgment: 19 May 2025 Catchwords: FAMILY LAW – CHILDREN – Ex Tempore Reasons – undefended hearing – best interests – decision-making authority – live with – passport– where the father initiated proceedings seeking final parenting orders – where the father withdrew his Initiating Application following the commencement of proceedings – where the matter proceeded in the absence of the father – where the father was the subject of ongoing criminal proceedings – sole decision-making authority to the mother – the children to live with the mother and spend no time with the father – passports to be issued for the children without the consent of the father Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Div 12A, PT VII, ss 60CA, 60CC, 62B, 65DA
Division: Division 1 First Instance Number of paragraphs: 78 Date of hearing: 19 May 2025 Place: Melbourne Counsel for the Applicant: No Appearance Counsel for the Respondent: Ms Juenja Solicitor for the Respondent: Victoria Legal Aid Counsel for the Independent Children's Lawyer: Ms Morkos Solicitor for the Independent Children's Lawyer: Clark Family Lawyers ORDERS
HBC 768 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CARSON
Applicant
AND: MS ROSARIO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
19 MAY 2025
THE COURT ORDERS THAT:
1.The Mother have sole decision-making responsibility for all major long-term issues, including decisions regarding the children’s education, both current and future, health and living arrangements, for the children:
(a)V born 2010,
(b)W born 2011,
(c)X born 2013,
(d)Y born 2016, and
(e)Z born 2021.
2.The children live with the Mother.
3.The children spend no time with the Father.
4.The children:
(a)V born 2010,
(b)W born 2011,
(c)X born 2013,
(d)Y born 2016, and
(e)Z born 2021.
5.The Mother have liberty to make application to the Department of Foreign Affairs and Trade Passports Office for issue of passports in the name of the children or any of them without the consent of the Father AND IT IS REQUESTED that the Passports Office give effect to this Order.
6.Any Australian passport for the children be held by the Mother.
7.The Independent Children’s Lawyer is hereby discharged.
8.All extant applications be otherwise dismissed.
9.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), 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 parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Carson & Rosario has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
These proceedings relate to future parenting arrangements for the parties’ five children. V, aged 14 years and currently in Year 9, W, aged 13 years and in Year 8, X, aged 11 years and in Grade 6, Y, aged eight years and in Grade 3, and Z, aged four years and attending kindergarten. The proceedings were commenced by the applicant father, Mr Carson, by his Initiating Application filed 6 September 2023. That application sought orders that the parties have equal shared parental responsibility for the children and that the children live with each parent on an equal shared care, week-about arrangement.
The mother, Ms Rosario, opposed that application. In her Amended Response to Initiating Application filed 6 March 2025, the mother sought orders including that she have sole decision-making responsibility for the children, that the children live with her and that they spend no time with the father. That application by the mother is supported by the Independent Children's Lawyer (“ICL”).
On 13 March 2025, at a Compliance and Readiness Hearing before Alstergren CJ, orders were made listing the parties' competing applications for final parenting orders for hearing before me, to commence this day. That day, his Honour made directions requiring the filing of trial material in anticipation of this hearing date.
Notwithstanding the orders made that day, the father, who is the applicant in these proceedings, filed no material in support of his application for final parenting orders. As a result of that matter, as well as the looming criminal proceedings against the father in the Magistrates’ Court of Tasmania and the Supreme Court of Tasmania arising from allegations that he has breached intervention orders made for the protection of the mother and the children and allegations that he has sexually assaulted the mother's child from a previous relationship, the Independent Children's Lawyer sought a mention hearing to ascertain whether the matter was able to proceed on the listed trial date.
In light of the issues raised, I listed the matter for mention before me on 13 May 2025. That day, I made orders for the release of the Family Report prepared by the Court Child Expert Ms B. That Family Report, dated 9 May 2025, was released to the parties prior to the commencement of the mention hearing before me. That day, the matter was stood down to enable the parties to consider the contents of the Family Report, and the recommendations contained in its conclusion.
Upon resumption of the mention hearing, the father's solicitor informed the Court that the father sought leave to withdraw his application for final parenting orders before the Court. There was no objection by the other parties to the making of orders to that effect. Accordingly, I made Orders that day granting the father leave to withdraw his Initiating Application filed 6 September 2023. Otherwise, the mother's outstanding application for final orders, being her Amended Response to Initiating Application filed 6 March 2025, remained listed for hearing this day.
Following that mention hearing on 14 May 2025, the father's solicitor filed a Notice of Discontinuance, the effect of which was to discontinue his Initiating Application filed 6 September 2023. In circumstances where the father has discontinued his application for final parenting orders, the mother seeks to proceed with her Amended Response on an undefended basis. That application is supported by the Independent Children’s Lawyer.
The father has had legal representation during these proceedings and was legally represented at the mention hearing before me on 13 May 2025. Accordingly, I am satisfied that he has had notice of the final orders sought by mother as contained in the Amended Response filed on her behalf, and I am also satisfied that he has had notice of the final hearing listed this day. In those circumstances, I am satisfied that the father has been afforded procedural fairness with respect to the mother's application.
Having regard to those matters, I am satisfied that it is appropriate that the mother's application for final parenting orders as contained in the Amended Response to Initiating Application filed on 6 March 2025, proceed on an undefended basis. It is clear from the submissions made on behalf of the father, and by his actions in discontinuing his application, and not appearing this day, that he does not wish to participate in these proceedings or to be heard in relation to these matters. Accordingly, I am satisfied that the mother's application should proceed on an undefended basis.
The material relied upon by the mother is set out in the Outline of Case filed on her behalf on 16 May 2025. The documents relied upon by her are identified at Part B of the Outline of Case, and include:-
(a)the mother’s Amended Response to Initiating Application filed 6 March 2025;
(b)the mother's trial affidavit filed 14 May 2025;
(c)the Child Impact Report dated 19 March 2024;
(d)the Family Report dated 9 May 2025;
(e)the Notice of Risk filed 10 October 2023;
(f)the Tasmania Police section 69ZW Response dated early 2024; and
(g)the Department of Families, Fairness and Housing section 69ZW Response dated early 2024.
In addition to those documents, annexures to the mother’s trial affidavit were tendered into evidence on her behalf during the hearing. These are identified as Exhibit R-1. Also tendered on behalf of the mother was the Minute of Proposed Orders sought by her, which is identified as Exhibit R-2.
The ICL supports the mother's position. In addition to the documents identified as relied upon by the mother, the ICL relied upon documents tendered in a bundle which has been marked as ICL-1.
The documents tendered on behalf of the ICL include documents produced under subpoena by Tasmania Police. In particular, the ICL relies upon the Statement of Facts for the Prosecutor prepared by Tasmania Police in relation to the alleged sexual assault by the father upon the mother's child from a previous relationship, C, who is now aged 17 years.
Also relied upon by the ICL is the Statement of Facts for the Prosecutor prepared by Tasmania Police in relation to the father's alleged breach of a family violence intervention order where it is alleged the father attempted to communicate with the parties' child, V, on 26 January 2025 via Snapchat in breach of the family violence intervention order in place at that time. The ICL also relies upon the father's criminal history record and the Statement of Facts for the Prosecutor prepared by Tasmania Police in relation to an alleged breach of the family violence intervention order by the father on 1 August 2024, wherein it is alleged that the father sent to the maternal grandmother images of him removing the electronic monitoring device which he is required to wear pursuant to that family violence intervention order.
BACKGROUND
By way of background, I note the following.
The mother is aged 39 years and is a full-time homemaker. She resides in Victoria with the children. The father is aged 42 years and resides in Tasmania. Currently, he is on bail and is subject to criminal charges in the Tasmanian courts arising from alleged breaches of the family violence intervention orders made against him for the protection of the mother and the children and also in relation to an alleged assault by him of the mother's child, C.
The parties commenced a relationship in late 2008, although they did not live together at that time. In 2014, the parties purchased a property together in Hobart. Thereafter, they lived together at that property.
The parties separated on a final basis in October 2022.
The mother deposes in her trial affidavit that she has been subject to significant family violence at the hands of the father. She also deposes that the father has used illicit drugs during the relationship, including cannabis daily, as well as “[…]” and “[…]”.
The father worked in paid employment until in or around 2015. The mother deposes that the father's increasing use of illicit substances affected his employment. The mother deposes that she worked throughout the relationship in order to meet the family's expenses and support the children. The mother was supported in the care of the children by her mother and her grandmother.
The mother deposes that the father gave illicit drugs to her daughter, C, and that this commenced in around 2014. The mother alleges that the father groomed C for a sexual relationship, but that this was not disclosed to her by C until after the parties' relationship had ceased. Those allegations are now the subject of criminal charges against the father which are to be heard in the Supreme Court of Tasmania.
As to the family violence allegedly perpetrated by the father, the mother deposes that this behaviour commenced early in the parties' relationship. She deposes as to an occasion when the father threw a fast-food meal, including a full cup of soft drink and ice, at her face whilst she was sitting in a chair in the lounge room of her home. She also deposes that the father harassed and abused her by SMS text messaging, demanding that she answer the phone and saying words to the effect of, “You’ve got two seconds before I get in the car and come and find you.”
The mother also deposes that the father, on occasion, “smashed up” the home. She deposes as to an occasion when the father punched the fridge, denting it, and put his feet through the heater. On that occasion, she deposes that he wrote the word “slut” on the wall in the lounge room.
Following V's birth in 2010, the mother deposes as to an occasion when the father became angry with her and picked her up by the throat and pushed her into the baby change table. The mother deposes that both V and C were present during that incident and that both children were crying.
The mother deposes that following W's birth, she purchased a new pram. She deposes that the father was having trouble folding the pram up, became frustrated and threw it down an embankment near the parties' house. Again, the father became angry with the mother, pushed her onto a couch, and held his elbow to her throat.
The mother deposes that on other occasions, the father punched her, causing bruising to her face. In 2018, the mother deposes that the father choked her in front of the children to the point that she nearly passed out.
The mother deposes that she was also subjected to verbal abuse by the father, who would call her names such as “slut” and “whore”, and would also call her a “mutt” or a “dirty rat”. The mother deposes that the father often abused her in front of the children.
The mother also deposes that the children have reported to her that they have been victims of physical assault at the hands of the father; W has informed her that the father held him against a wall and smashed him against the couch, and Y has also reported a similar incident to her.
The mother deposes that she was frightened to report the father's abuse to the police. However, she deposes that her workmates were aware of the father's violence and ultimately supported her to make reports to the police. In mid-2023, a final family violence order was made in the Magistrates’ Court of Hobart against the father, and the mother and the children are named as protected persons under that order. The operation of that order has been extended, and it will expire in mid-2025.
I am informed by counsel for the mother that a further application has been commenced on her behalf in the Magistrates’ Court of Tasmania to extend the operation of the current family violence intervention order. It is anticipated that that application will be granted by the Court.
At the time of the parties' separation in October 2022, a further altercation occurred between them. The parties argued regarding care arrangements for the child Z, who was then aged approximately 18 months. The mother deposes that on that occasion that she had requested C to care for Z whilst she attended work.
There was an argument between the mother and C. The mother ultimately attempted to take Z with her, but the father intervened and refused to permit the mother to take the child. The mother attended work. Following work, the mother attended upon the police and made a statement. The mother made arrangements for the maternal grandmother to collect the older children from school. Z remained in the father's care. The mother deposes that the father sent her a series of threatening messages via SMS text message, including messages such as, “I have left [Z] in the car. Come and get your kid.” The mother deposes that the father would not inform the mother as to where Z was located.
The abusive text messages sent by the father on that occasion are part of the mother's tender bundle. I have read those messages. On any view, that event must have been frightening and distressing for the mother and Z. Approximately one week passed before Z was returned to the mother's care.
Following that event, the father was arrested, and he remained in custody until early 2023. Upon the father's release from custody, the mother and the children relocated to a safe house in City D.
In August 2023, the mother was informed that the father had tracked her location in Tasmania. As a result, in late 2023, the mother and the children relocated to Victoria with the assistance of Child Services Tasmania. The mother and the children have lived in Victoria since that time.
Notwithstanding the current intervention orders in place for the protection of the mother and the children, the mother deposes that the father has persisted in his attempts to communicate with her and the children. For example, in March 2024, the child V informed the mother that the father had sent him a Snapchat message. The mother deposes that V was visibly upset, and cried in response to that communication. That matter was reported to Tasmania Police and is now the subject of a breach application against the father in the Magistrates Court of Tasmania.
On 16 and 17 March 2024, the father sent a series of SMS text messages to the maternal grandmother indicating his intent to “[beat]” the criminal charges against him and that he would attempt to have the mother charged with fraud. He also sent messages expressing his intention to have the children live with him and his new partner in Tasmania once he had overcome the criminal charges against him. That conduct by the father is also the subject of breach applications made in respect of the current family violence intervention order.
It is as a result of the ongoing family violence to which the mother and the children have been subjected by the father that the mother now seeks orders that the children spend no time with him.
LEGAL PRINCIPLES
In determining this 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 the nature of the cause of action or defence, the nature of the subject matter of the proceedings and the gravity of the matters alleged.
I have read all documents relied upon by the mother and the Independent Children’s Lawyer. In what follows, statement of fact constitute findings of fact. 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 as contained in her trial affidavit is unchallenged evidence. Accordingly, I accept that evidence in its entirety.
Division 12A of the Family Law Act 1975 (Cth) (“the Act”) sets out the principles for conducting child-related proceedings. Of those principles, I have particular regard to the following:-
(a)Principle 1, which sets out that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings;
(b)Principle 2, which provides that the Court should actively direct, control and manage the conduct of the proceedings; and
(c)Principle 5, which provides that the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible.
Section 60CA of the Act provides that the children's best interests are the paramount consideration in making parenting orders.
Pursuant to section 60CC(1) of the Act, in determining what is in the child's best interests, the Court must consider the matters set out in section 60CC(2). Those matters are outlined as follows:
(a)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 the care of the child, whether or not a person has parental responsibility for the child;
(b)Any views expressed by the child;
(c)The developmental, psychological, emotional and cultural needs of the child.
(d)The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;
(e)The benefit to the child of being able to have a relationship with the child's parents and other people who are significant to the child where it is safe to do so; and
(f)Anything else that is relevant to the particular circumstances of the child.
Section 60CC(2A) provides:-
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
DISCUSSION
The mother's evidence as to the history of the children's care is unchallenged. Accordingly, I accept that evidence. The parties did not commence cohabitation until 2014. Until that time, the children V, W and X lived with the mother and spent time with the father.
The children have spent no time with the father since the parties' separation in October 2022. That this is so, is due to the family violence perpetrated by the father against the mother and the children which resulted in his incarceration. The allegations in relation to the father's conduct remain before the Courts in Tasmania.
The children have met with Court Child Expert Ms B on two occasions, the first being for the purposes of the Child Impact Report dated 19 March 2024. Ms B interviewed V, W and X for the preparation of that report. Ms B observed at [14] of that report that the three older children presented as “Mature and articulate in voicing their lived experiences”.
Ms B noted that each child provided a credible and detailed account of their experiences that should be given weight by the Court. At [15] of the Child Impact Report, Ms B observed that:-
…when discussing their father, two of the three children were emotional as they relayed accounts of physical abuse directed towards them. This included being hit and picked up and pinned by the throat against the wall.
Ms B observed that one child cried, recalling struggling to breathe. The children reported to her that the father was “an angry person”, and that his anger was unpredictable. The children reported their father's rage and that he would punch and kick holes in the walls when angry.
At [16] of the Child Impact Report, the children noted the father's physical assaults of the mother as being “worse”. They reported witnessing the mother being punched repeatedly and with blood “gushing” from her nose. The children also reported their sense that the father never wanted to spend time with them and that they heard him say when he was angry on occasion that he did not even want children.
As to the mother, the children are reported at [17] of the Child Impact Report to present a generally positive view of her. They described her as “everything” and stated that she “does everything” for them. As to their relocation to Victoria, at [18], the children reported their enjoyment of living in another State, noting that they felt “safer being a longer distance away from the father.”
Ms B again interviewed the children for the purposes of the preparation of the Family Report on 9 April 2025. Ms B reports that the four older children, V, W, X and Y, were interviewed separately on that occasion. All four children reported that they did not wish to spend time with the father. V confirmed that he worries about the father, whom he observed “did not like losing”.
Similarly, W was reported to hold significant worry that there was a chance that he would have to live with the father and was firm in his statement that he “wanted nothing to do with him”.
At [43] of the Family Report, X was reported to state that he did not want to be near his dad and that he was scared that he would “win”. X was observed to become distressed and teary when reporting those matters.
All children were positive about their home life with the mother, who was described as loving, hard-working and always putting people before herself.
Ms B has had the advantage of observing the children across two interviews, held approximately 12 months apart. She has prepared a detailed and thorough Family Report setting out her observations, assessment and recommendations. In conclusion, at [68] of the Family Report, Ms B observed as follows:
The children require a period of stability and time to engage in school life and community life, along with managing their trauma responses. There does not appear to be any evidence of behavioural or attitudinal change with family violence or accountability regarding charges and IVO breaches. Given the children's developmental vulnerabilities and exposure to family violence, their primary need for safety will need to be prioritised. A reintroduction of spend time between the children and [the father] may compromise not only their physical safety but all their emotional safety and the protective efforts of [the mother].
As a result of that assessment, Ms B made the following recommendations:-
(a)That the children live with the mother;
(b)That the children spend no time with the father;
(c)That the mother be granted sole decision-making responsibility for the children; and
(d)That the children and the mother remain connected with family support agencies to assist the mother's parenting capacity and ability to meet the children's emotional and developmental needs.
There is no challenge to the evidence of Ms B. Ms B's assessment across both the Child Impact Report and the Family Report is detailed and considered. She provides a compelling account as to the children's views and responses to their circumstances. The children provided to Ms B a chilling account of their experience of family violence at the hands of the father. I accept the evidence of Ms B in its entirety.
I was informed by counsel for the ICL that the ICL spoke with the children on 26 February 2025. Counsel for the ICL confirmed that the older children remain adamant in their view that they wish to spend no time with the father. Y was noted as being non-committal as to his position. Z, because of his young age, has not provided any views as to the father. I note that in the context of the Family Report observations, Z's recorded recollection of his father is of a man who broke his trampoline. It would seem, based on that report, that Z too has been exposed to violent behaviour by the father. The ICL reports that the oldest child, V, is protective of W, who, it would seem, has suffered the brunt of much of the father's abusive behaviour towards the children.
It was submitted on behalf of the ICL that having regard to the expressed views of the older children, significant weight ought to attach to those views. It was also submitted by counsel for the ICL and counsel for the mother that the safety of the children is the primary and central issue of concern in this matter. Having regard to the history that I have detailed, I agree with that assessment and accept those submissions.
Having regard to the unchallenged evidence of the mother coupled with the disclosures of the children to the Family Report writer of their experiences of family violence at the hands of the father as well as the children's expressed ongoing fear for their safety if placed in the father's care, I am satisfied that the father has perpetrated family violence against the mother and the children. As a result of that finding, I am satisfied that the orders I make must safeguard the children from further exposure to the father's violent conduct.
Since the parties' separation and particularly since the mother's relocation to Victoria with the children in late 2023, the children have enjoyed a period of stability and security. That stability has enabled the children to engage in school life and with their broader community, to their benefit. The children, whilst having difficulties at times with school attendance, are progressing. They are engaged in activities they enjoy, such as team sports, and present as more settled and happier in their lives with the mother in Victoria. I am well satisfied that a continuation of those established arrangements is in the children's best interests.
The mother seeks orders that she have sole decision-making authority. Further, she seeks orders that the children live with her and spend no time with the father. Those applications are supported by the Independent Children’s Lawyer.
The Family Report writer, Ms B, amply supports the making of an order that the mother have sole decision-making authority in the Family Report. At [65] of that report, Ms B recorded the father's viewpoint as follows:
During the interview [the father] was not able to articulate how his actions had impacted the children or demonstrate any meaningful insight into choices to inflict violence. His proposal did not align with the children's needs for stability and the importance of [the mother's] parenting capacity being supported amongst criminal proceedings. Throughout the interview and in discussing the children, [the father] took opportunities to berate [the mother's] parenting and place blame on her for choices he made in relation to drug use. It appeared clear to the writer that any co-parenting dynamic would be untenable given the seriousness of the reported family violence and the father's stance on such.
I accept that evidence. Having regard to those matters, I am satisfied that the proposed orders of the mother are in the children's best interests. The orders will ensure a continuation of the settled lives that have been established for the children in Victoria. In circumstances where the father has been a perpetrator of violent physical attacks upon the mother and the children, and has also engaged in abusive communication, I am satisfied that the children must be protected from such conduct.
The mother has been the children's primary caregiver throughout their lives. I am satisfied that the mother has attended to all of the children's physical, emotional and intellectual needs. The mother has established a secure home for the children to enable them to have the best opportunity of achieving their full potential. The children feel safe in that environment. The mother has also ensured that the children's physical needs are attended to where necessary. The children have attended upon paediatricians, they have engaged with counselling services, and the mother has enlisted the services and support of a family support worker.
I am satisfied that the mother's role in the children's lives must be protected. Accordingly, it is in the children's best interests that she have sole decision-making authority. To order a sharing of that responsibility with the father would undermine her position in the children's lives and diminish her capacity to provide appropriate care for them. I am satisfied that any arrangement that required her to communicate with the father, who has inflicted significant physical and emotional harm upon her and the children, would be contrary to the children's best interests.
I am also satisfied that the children should live with the mother. She has provided primary care to them throughout their lives, and has been their sole caregiver since the parties’ separation in 2022. She has done so without any financial support from the father. The children are reported by the Family Report writer to be thriving in the mother's care. The three older children have expressed in the strongest terms their view that they wish to continue living with the mother and to spend no time with the father. Indeed, those children have expressed a fear at the prospect of having to resume a relationship with their father.
It is significant that Ms B, at [47] of the Family Report, reports her decision not to conduct observations between the children and the father, due to her assessment that there would be a potential risk of emotional harm to the children were there to be a re-introduction of time for the purposes of that assessment. I accept that evidence. Having regard to all of those matters, I am satisfied that there should be orders that the children should live with the mother.
I am also satisfied that there should be an order that the father spend no time with the children. The Family Report writer observes the children to be fearful of the father, and reports in detail the lived experience of the three older children's exposure to the father's violence towards them and the mother. The children's physical and emotional safety must be protected, and an order that the father spend no time with the children will ensure that that occurs. At this time, I am well satisfied that there can be no benefit to the children in spending time with the father, given their experience of violence and threats by the father.
I am satisfied that an order for time between the children and the father would likely expose the children to further trauma and compromise their emotional wellbeing.
The children have been deeply affected by the court processes. The older children have had to give evidence in the criminal proceedings in Tasmania. The children are aware of these ongoing family law proceedings and have expressed their concerns to the Family Report writer as to the potential outcomes of these proceedings.
In my view, the children's best interests require that these proceedings be brought to an end. They require a period of stability, security and calm that can only be afforded to them by the Orders that I will make this day which ensure that they will continue to live in the mother's care. She has demonstrated a strong capacity to meet all of the children's physical and emotional needs. There should be no opportunity for that care to be disrupted by the intervention or involvement of the father in the children's lives. Accordingly, I will make parenting orders as sought by the mother and as supported by the Independent Children’s Lawyer.
In addition to the orders regarding decision-making authority, live with and time, the mother seeks orders that will permit the children to travel overseas with her, and she seeks an order that will enable her to obtain a passport for the children without the father's consent. It is conceded by the mother that she currently has no plans for international travel with the children. Nonetheless, should the opportunity arise for the children to travel, the mother seeks orders so that there is no impediment to the children engaging in such travel. That application is supported by the Independent Children’s Lawyer.
It was submitted on behalf of the mother that she seeks such orders so as to avoid the necessity for further court proceedings. Given the history of these proceedings, as well as the criminal proceedings on foot in Tasmania, I well understand the desirability of making orders to avoid the necessity of further proceedings. In my view, it would be contrary to the children's best interests if further court proceedings were required so as to enable them to travel overseas.
In circumstances where I am satisfied that the children's best interests are met by the mother having sole decision-making authority, I am equally satisfied that their best interests will be served by ensuring that, should the opportunity arise, the children are able to travel outside the Commonwealth of Australia, and that the mother be able to obtain the necessary travel documentation, including passports, for the children without reference to the father. Accordingly, I will make the orders sought by the mother with respect to the children's ability to travel overseas and for the mother to obtain passports for them.
I note that paragraph 6 of the minute of Proposed Orders of the mother, which is Exhibit R-2, was not pressed by the mother, and I make no orders with respect to that application.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 20 May 2025
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