Davidson & Betts (No 2)
[2025] FedCFamC2F 930
•13 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Davidson & Betts (No 2) [2025] FedCFamC2F 930
File number(s): MLC 2601 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 13 May 2025 Catchwords: FAMILY LAW – Parenting – final orders – oral reasons delivered soon after the hearing – where the mother have sole parental responsibility – where the children live with the mother – where the time spent between the father and children be decided by the mother and on such conditions by her – where the mother be authorised to obtain passports for children – where the mother be authorised to travel with the children outside the Commonwealth of Australia – where the mother be permitted to change the last names of the children. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 114AB & 102NA
Evidence Act 1995 (Cth) ss 140
Cases cited: Fox v Percy (2003) 214 CLR 118 Division: Division 2 Family Law Number of paragraphs: 142 Date of last submission/s: 13 May 2025 Date of hearing: 5 – 8 May 2025 Place: Melbourne Counsel for the Applicant: Mr Allen Solicitor for the Applicant: Michelle Moloney Family Lawyers Counsel for the Respondent: Mr Kaufman Solicitor for the Respondent: Aboriginal Family Violence Prevention & Legal Service Counsel for the Independent Children's Lawyer: Ms Stavrakakis Solicitor for the Independent Children's Lawyer: Trapski Family Law ORDERS
MLC 2601 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DAVIDSON
Applicant
AND: MS BETTS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
13 MAY 2025
THE COURT ORDERS THAT:
Previous Orders
1.All previous parenting orders be and are discharged.
Decision-Making
2.Ms Betts (‘the Mother’) have sole parental responsibility and be solely responsible for making decisions about major long-term issues in relation to the children X (born in 2013), Y (born in 2016) and Z (born in 2021) (‘the children’).
3.In the event of any serious illness or injury to the children or any of them, within 28 days of that illness or injury, the Mother inform Ms D, the mother of Mr Davidson (‘the Father’), of that illness or injury and the children’s prognosis and/or recovery therefrom and request Ms D to inform the Father of those matters.
Live With/Spend Time With and Communication Arrangements
4.The children live with the Mother.
5.Any time and/or communication between the children and Mr Davidson (‘the Father’) be as decided by the Mother and on such conditions as decided by her.
6.There be no further orders for time and/or communication between the children and the Father.
Passport
7.Pursuant to section 11(1)(b) of the Australian Passports Act 2005, the Mother be and is authorised to sign and execute any documents necessary for any of the children to obtain an Australian passport or to extend any existing passport, without first obtaining the written consent of the Father, and the Mother be at liberty to provide a sealed copy of these orders to the Australian Passport Office.
Overseas Travel
8.Pursuant to section 65Y of the Family Law Act 1975, the Mother is authorised to remove any of the children from the Commonwealth of Australia for the purpose of travel at her discretion.
Name Change
9.The Mother be and is permitted to do all acts and things to cause the children’s names to be changed from Y DAVIDSON to Y BETTS-DAVIDSON and from Z DAVIDSON to Z BETTS-DAVIDSON.
General
10.The order appointing the Independent Children’s Lawyer be and is discharged.
11.All extant applications be and are otherwise dismissed.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
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).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
I heard the final hearing dispute regarding parenting orders in the matter of Davidson & Betts over four days, but in reality, three days, commencing on Monday 5 May 2025 and concluding late on Thursday 8 May 2025. Two different final hearing matters were listed before me on the Monday. Each expected to take three days, and the circumstances of both cases commanded an immediate hearing. I commenced this matter, that is Davidson & Betts, after a callover and discussion of both matters at 10.30 am on Monday, 5 May 2025. I then heard both matters over the next three days, by one matter proceeding largely during normal Court hours and the other being heard over the luncheon adjournment and on following days from 9 am to 10 am and then from 4.15 pm until about 5.30 pm. The other matter was able to proceed all of Tuesday 6 May uninterrupted because one parent in this matter had to attend an emergency medical appointment due to an accidental injury to one of the children that morning.
The parties travelled from another city to this one for the final hearing. The respondent mother, Ms Betts (‘the Mother’), was in what is known as the ‘safe room’ during addresses to me and the oral evidence of the applicant father, Mr Davidson (‘the Father’). The Father was in that same safe room during the Mother’s oral evidence.
Oral reasons were delivered two working days after the end of the hearing, that is, the following Tuesday afternoon. These are the settled reasons of that judgment delivered res tempore.[1] These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
[1] The settlement of these reasons are delayed due to a delay in receiving the transcript.
Further issues since the hearing
This morning, I have had my associates send an email to the parties seeking that they address me, if they wish to, on two issues. Firstly, the issue of notice to the father of one of the children, who is not a party to these proceedings, of the proceedings and intended orders. And, secondly, the issue of a restraint order on the Father from contacting or attending near the Mother or the children as pressed by the Independent Children’s Lawyer (‘ICL’) and how that would relate to section 114AB(1) of the Family Law Act 1975 (Cth) (‘the Act’) given the extant intervention order between the parties.
Subsequent to that email, I found an order of another Judge that had dealt with the issue of notice to the father not party to these proceedings and that had determined that that child’s father was not known. Hence, notice in accordance with the ordinary procedure and law of the Court could not be provided to him. Hence, that is not an issue.
I then heard a short submission from Mr Kaufman of counsel, who appears again this afternoon for the Mother. The Father, represented by his solicitor, Ms Moloney, did not wish to be heard on that issue. The ICL and her counsel, having been excused at the conclusion of the hearing, did not attend the judgment delivery hearing this day.
BACKGROUND
My reasons for making the final orders as made in this matter are as follows.
The Father was born in 1986 and is 38 years. The Mother was born in 1988 and is 37 years. The parents together have two children, Y, born in 2016 and now almost nine, and Z, born in 2021 and now almost four.
The Mother has two children from before she had a relationship with the Father. She has a child who is now 15 years, and the child, X, now almost 12. The parties’ cohabitation commenced some years ago, and the date of final separation is controversial. On one view, they separated in January 2020, or, on another view, finally separated after previous separations in July of 2022. The Father issued these proceedings on 15 March 2023.
It is common ground that since the issue of the proceedings, the Father has not seen the children, save for an occasion during the family report interview. And he saw the child, Z, on two or maybe three occasions during attempts at supervised time in late 2024 and early 2025, and on one of those occasions he also saw Y.
The subpoena decision
This is the second decision in the matter of Davidson & Betts. On 23 April 2025,[2] I heard objections by a hospital and an Aboriginal corporation (both supporting the Father with health services and other matters) to the release of documents subpoenaed by the Mother. For the reasons then stated, I dismissed the objections and ordered the release of the medical records of the Father from those two facilities. Many of those records played a significant part in the final hearing.
[2] Davidson & Betts [2025] FedCFamC2F 696
Representation
The Father was unrepresented for significant parts of the proceedings. On 28 June 2024, an order was made pursuant to section 102NA(1) of the Act. The effect of that order is that the Father is not permitted to personally cross-examine the Mother or she cross-examine him. It is apparent that there was an extant grant of assistance or aid pursuant to the section 102NA cross-examination scheme available, at least at times, to the Father during the proceedings.
Solicitors funded by section 102NA scheme commended
The Father’s current solicitors only came on record on 14 April 2025 (through no fault of the solicitors), and by 23 April 2025 they had prepared, sworn, filed and served the Father’s affidavit of evidence-in-chief. That task was made all the more difficult because of the Father’s functional illiteracy. I am satisfied that affidavit of evidence-in-chief accurately conveyed the substance of the Father’s case and his intended evidence. I commend those solicitors for the skill in pulling that together within very limited time, and the assistance they have rendered to their client and the Court in doing so. I also commend them for doing so in circumstances of being funded by the sometimes-criticised section 102NA cross-examination scheme.
Documents relied upon and exhibits tendered
Both parties relied on affidavits of evidence-in-chief and applications and responses. Appendix A to these reasons sets out the documents relied upon by each of the parties, and Appendix B sets out the exhibits tendered throughout the proceedings.
There is also material not taken into account. There is available a response to a section 69ZW order dated 31 May 2023.
The Father has real difficulty reading and writing and asserts he cannot read and write at all. The Court practice is that a litigant in person is not provided with documents or reports from the Department of Families, Fairness and Housing (hereinafter called ‘Child Protection’), and such documents are only provided to the lawyers of represented parties. The intention being that the litigants themselves should not get their hands on such documents. A practice has arisen whereby such documents are read out to the litigants. In this case, I am not satisfied that the Father was aware at the time of the trial of the contents of the section 69ZW report, and I did not permit its tender, and I have not relied upon it.
APPLICABLE LAW
Standard of proof
In this matter, statements of fact are findings of fact. Any findings are made on the balance of probabilities and made pursuant to section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) which states as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
I cannot make a finding of fact unless I have a comfortable satisfaction on the balance of probabilities that the event so found actually occurred or, where relevant, did not occur.
Reliability of the parties’ evidence
In Fox v Percy (2003) 214 CLR 118 (‘Fox v Percy’), at first instance, the rider of a horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with oncoming horses and riders who were coming around the bend. The issue was upon which side of the road the collision occurred. The Court of Appeal of the Supreme Court of New South Wales had to interfere with the first instance decision where it had been incorrectly determined, by reason of the apparent reliability of the witnesses, that the collision occurred on the Kombi Van’s wrong side of the road. The Court of Appeal found the first instance decision was wrong because of the position of the braking skid marks of the Kombi Van that were in evidence. The skid marks of the Kombi Van incontrovertibly demonstrated that the Kombi Van had been on its correct side of the road at all material times relevant to the point of collision. The High Court found that the Court of Appeal was justified in upholding the appeal and upheld that courts findings.
When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality of the High Court in Fox & Percy observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
(Citations omitted)
I have endeavoured to rely on objectively established facts and the apparent logic of events in this case as well as the evidence and demeanour in the witness box of the parties. I have been substantially assisted by contemporaneous records of complaints to police, statements to hospitals, practitioners, therapists and other communications. I am also assisted by the apparent logic of events.
The Father’s evidence
Despite his best intentions, I was not satisfied that the Father’s evidence was reliable. I found his evidence in affidavit and oral evidence to be unreliable. That does not mean that I am finding that he has lied, merely that his evidence is not reliable. And I find that so where his evidence is in conflict with the Mother’s evidence. There are aspects of his evidence that I do accept. However, I found his evidence on controversial matters to be unreliable for the following reasons.
His demeanour in the witness box when pressed on matters that he perceived to be unhelpful to him was decidedly unconvincing and troubling.
MR KAUFMANN: Okay. In the same family report, paragraph 67, it says:
[X] said that during his parents’ relationship, [Mr Davidson] did not engage them in any activities and he recalled [Mr Davidson] taking him for fishing on only one occasion.
MR KAUFMANN: Is that an accurate description?
[MR DAVIDSON]: No idea, mate.
MR KAUFMAN: Pardon?
[MR DAVIDSON]: I have no idea. It was a long time ago, October last year. I haven’t seen me kids for four years, mate, so I can’t recall what I have done and what I haven’t done.
…
MR KAUFMAN: “So at any time my heart could fail me is not really a general statement, is it? You didn’t say to her in 2020, my heart could fail me, your heart could fail me, it’s a terminal condition.” That’s ?
[MR DAVIDSON]: I don’t recall that mate, no.
MR KAUFMAN: No?
[MR DAVIDSON]: I don’t recall saying that. No.
…
MR KAUFMAN: Your mood is described as stoned in that medical note, and I put it to you that that’s an accurate description of how you presented on that day?
[MR DAVIDSON]: Presented to where?
MR KAUFMAN: To [C Medical Centre]?
[MR DAVIDSON]: What day?
MR KAUFMAN: 31 January 2024?
[MR DAVIDSON]: I don’t recall going to the – [C Medical Centre] on that date.
MR KAUFMAN: Another note which is concerning judgment and insight, and the note says:
Fair insight, impaired judgment due to THC use.
[MR DAVIDSON]: I wouldn’t have a clue, mate.
MR KAUFMAN: You deny ?
[MR DAVIDSON]: Deny it, mate, because I don’t recall going to the doctor then. Or [C Medical Centre].
…
MR KAUFMANN: So, you might have said that you’re getting cravings ?
[MR DAVIDSON]: Yes. Mate, this was all the way in January
MR KAUFMAN: to the point ?
[MR DAVIDSON]: what year? 2024, did you say?
MR KAUFMAN: No, May 2024?
[MR DAVIDSON]: Yes. I can’t remember, mate.
MR KAUFMAN: But you just said, I might have said I was getting cravings?
[MR DAVIDSON]: I might have said. Mate, it’s a long time ago.
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HIS HONOUR: You were asked – well, in fact, it’s put positively to you, weren’t you living with your current partner as at 18 June 2023? Which, to answer the question, I was living in [Town HH], avoids answering it, from my point of view?
[MR DAVIDSON]: Well, I’m not avoiding answering the question.
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HIS HONOUR: The question you were asked was, at that time, you were living with your current partner. That was the question?
[MR DAVIDSON]: Well, I can’t answer that because I don’t know.
He frequently asserted that he did not remember, or that the event complained about was a long time ago, and, hence, he could not remember, or that the questioner had the dates wrong, or other reasons including those recited above.
I also found his evidence to be unreliable because of the significant matters that were omitted from his affidavit of evidence-in-chief. I am satisfied that he has omitted reference to matters including his mental health treatment, his attempted suicide, his significant involvement in family violence and his involvement in therapy because he did not regard the detail of those matters as assisting him.
I do take into account the practical difficulty for the Father in dealing in the medium of written or affidavit evidence when he is, I am satisfied, functionally illiterate. The difficulty that the Father had in dealing with written documents (other parties’ evidence and his own) when he is functionally illiterate only has to be imagined to be grasped.
Nonetheless I am satisfied that, with great difficulty, he had the opportunity to be informed about the Mother’s affidavit evidence and to come to grips with that and his own. I am satisfied that the Father’s approach to matters in life, as well as in evidence before me, where he perceives the matter not to assist him, is simply to push on, disregarding the difficulty or the reality and failing to grasp the consequences of that situation.
The Mother’s evidence
I found the Mother to be a reliable witness in affidavit evidence and in oral evidence. I found her to be reliable because of her demeanour in the witness box and because the manner of her evidence had an apparent verisimilitude (or believability) about it. Her evidence was also substantially corroborated from contemporaneous records of complaints of events some years ago. I was also satisfied with the reliability of her evidence because she was not simply a partisan witness finding only fault with the Father. But she attempted, in her preparation of the case and in her evidence, to give a balanced account of the difficulties in her life that she has encountered with the Father, and the difficulties the Father has encountered in the circumstances of his history of childhood abuse, potentially later abuse as a teenager and into his 20s, and his difficulties with drugs and alcohol.
This is one of those cases, in my view, quite rare, where if there is a conflict between the Mother’s evidence and the Father’s evidence, I am able to and do accept the Mother’s evidence.
Family Law Act provisions
In deciding what particular parenting orders to make I must regard the best interests of the children as the paramount consideration as commanded by section 60CA of the Act. I must consider the matters described in section 60CC of the Act in making a determination as to what is in the children’s best interests. I apply and take into account the whole of Part VII of the Act. Relevant parts include the following:[3]
[3] As they were prior to the amendments coming into effect on 10 June 2025.
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
…
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
…
60CAChild’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
…
60CC How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (4), in determining what is in the child's best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs ;
(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(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.
Additional considerations--right to enjoy Aboriginal or Torres Strait Islander culture
(3)For the purposes of paragraph (1)(b), the court must consider the following matters:
(a)the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
(i)to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(iii) to develop a positive appreciation of that culture; and
(b)the likely impact any proposed parenting order under this Part will have on that right.
Consent orders
(4)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
…
FATHER’S CASE
The Father’s case is, or was, as set out in his affidavit. And I refer to and repeat, in particular, the following paragraphs:
5. The final orders that I seek are set out in the Amended Initiating Application filed contemporaneously and they can be summarised as follows:
a. The mother have sole parental decision making for the children and the Mother to inform the Father prior to making any decision;
b. The child [X] appends time with me in accordance with [X]’s wishes;
c. The children [Y] and [Z] and I communicate via FaceTime each week;
d. The children [Y] and [Z] spend one further occasion supervised time with me at the [E Contact Service];
e. The supervised visits are reportable to determine the suitability to progress to unsupervised time.
f. Subject to the [E Contact Service] report being favourable my time progress to unsupervised time and incrementally increase.
g. Failing the [E Contact Service] report recommending time progress to unsupervised time that the Mother, the children and I engage in family therapy at the [B Group] Aboriginal Service.
6. I am seeking orders as recommended in the Family Report prepared in this matter and dated 1 November 2024 . I love my children dearly and wish to be a part of their lives.
7. I appreciate that a considerable period of time has passed since I last spent any meaningful time with [X] and there have been only a few occasions the younger children have spent time with me at [E Contact Service]. I appreciate that it will take time for me to rebuild our relationship and gain the trust of others.
8. I seek orders that will enable the children to have a father and further orders that will enable me to bring to the children’s lives, love, understanding and education as to their father, their paternal family and their aboriginal heritage.
…
12. [Ms Betts] and I were in and on again off again relationship from 2013 until 2022.
…
19. [Ms Betts] and I had a happy relationship with little to no issues until 2020… In 2020 [Ms Betts] and I started having issues in our relationship, we were having disagreements regularly .
…
21.[Ms Betts] and I separated on a final basis in July 2022 after I received a surprising message from [Ms Betts] at 10:30 pm telling me that the relationship was over and I needed to vacate the home immediately.
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33. My relationship with [Ms Betts] was fraught. I would now describe our relationship as a toxic relationship. We loved each other but would argue and fight constantly. We both behaved poorly towards each other. We were both equaolly [sic] responsible for behaving badly towards each other.
…
36.Throughout the relationship, the bickering between [Ms Betts] and I would erupt into verbal denigration of each other and regrettably the children would often be witnessed [sic] to these outbursts.
37.I disapproved of the way [Ms Betts] would discipline the children. We had very different approaches to parenting and setting boundaries for the children. We both loved the children and at all times wanted what was best for the children, our different views as to how best to parent the children often erupted into arguments which again regrettably took place in the presence of the children.
…
47.I am under the care of my GP [Dr F] at the [B Group] Aboriginal health. I was seeing [Dr F] every two weeks to manage my complex health issues. As [Dr F] is now on maternity leave, I am currently seeing [Dr G].
…
49.I obtained a referral to a medical practitioner who now proscribes [sic] to me medicinal cannabis. I attend upon my doctor at [H Medical Centre] every three months and I am prescribed 60grams of medicinal cannabis. Now produced and shown to me and marked with the letters “[MRD]-01” is a true copy of the script for medicinal cannabis dated 16 April 2025.
…
51.I am diagnosed with Complex PTSD, Generalised Anxiety disorder and Depression. My heart cannot cope with medications usually prescribed for depression or anxiety and I was therefore referred to medicinal cannabis for treatment. In addition to this referral, I was referred to a psychologist for counselling.
52.My mental health challenges arise from my childhood and as a youth. I was sexually assaulted in my childhood. […]
53.Following the cessation of all drug use in late 2020 I commenced drinking. As ordered by the court I undertook a Hair Follicle test on 23 June 2023. […]
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55.I last consumed alcohol on the 24th of December 2023. I have not consumed alcohol since and do not intend to resume drinking.
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57. I do not believe it is in the best interest of the children to be exposed to illicit drug use and to be exposed to people who are or maybe affected by drugs and alcohol.
58. I am aware that the court take the issue of illicit drug use seriously and I would never want to expose the children to harm. I am confident that I can manage my medicinal cannabis use and not place the children at harm.
59. I resumed living with [Ms Betts] after my discharge from the [J Hospital] in 2020. I was vigilante [sic] in monitoring my health. I ceased using all substances both legal and illegal drugs. I lost weight. I tried to cease smoking. I finally stopped regular smoking in or around December 2020.
60. During Covid, [Ms Betts] ordered food online and was told there was a long wait time for the delivery. I decided to collect the food instead of wait. While collecting the food I had a few cigarettes. When I returned to [Ms Betts] with the food, she smelt the cigarette smoke on me and accused me of smoking. [Ms Betts] became furious with me and began shouting and yelling at me, demanding that I leave. It was following this incident that [Ms Betts] sought and obtained an intervention order against me effectively preventing me from returning to the home.
61. I am not an antisocial individual. I do not have a mental illness or a personality disorder. I did not have a significant criminal record or an offence history prior to the breach of the IVO obtained by [Ms Betts]. I have one previous attendance at court [in mid] 2006. I have not had another criminal court matter until the contravene application of [Ms Betts]’s IVO [in mid] 2023 in the […] Magistrates Court. On this occasion the matter was adjourned [early] 2025 at which time the application was dismissed. The circumstances surrounding the breach are regrettable and I have made every effort to ensure that there has been no repeat of this behaviour.
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63.I deny that I was violent towards [Ms Betts] or any of my previous partners. There were arguments and disagreements, name calling and many verbal disputes. We were both responsible for these disputes. I deny that that there were physical assaults. I was raised not to harm or hurt my partner. I regret the disputes continued for as long as they did. I take responsibility for my part in these disputes.
64. I have made a commitment to improve myself in order that the children can feel and be safe in my care. Being unable to spend time with the children has had a profound impact upon me.
65. Engaging in these proceedings, and the Magistrate court proceedings have all had a sobering effect upon me. It has made me address the concerns raised and I have reflected upon how I could do things better.
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72. Understanding that there are orders which require me to complete a Men's Behaviour Change Program I have made enquiries and have not been able to commence a course to date. […]
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75.Orders were made on 10 November 2023 that I engage with an Alcohol and Drug Counsellor. I commenced working with [Mr K] at the [B Group], my drug and alcohol counsellor. I have been working with [Mr K] since 2023 and I continue to attend, regular weekly telephone and fortnightly face to face appointments.
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79.The orders made on 28 June 2024 provided that I attend to a number of matters. I have addressed to the best of my abilities all the orders contained in these orders. I am illiterate and without a lawyer I struggled to fully understand what I was ordered to complete. Being unable to disclose court documents further impeded my ability to understand what was expected of me.
80.Since I determined that I would remain engaged in these proceedings, where possible, I have sought to comply with court ordered testing and counselling. The third and last Hair Follicle test results were as expected Nil for illicit substances and Nil for alcohol.
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82.I immediately completed the intake procedures at [E Contact Service] in order that my supervised time could commence. There was a waiting time and my time did not commence until the first visit on 23 November 2024. On this occasion and the following occasions, I attended and the children largely refused to spend time with me.
The thrust of the Father’s case was that he and the Mother had a turbulent personal intimate relationship whereby each of them had behaved badly in a verbally abusive manner, including in the presence of the children. He denied any items or incidents of physical abuse, and he denied any items of abuse or acting contrary to commonsense and decency as the Mother alleges occurred after separation.
The Father did admit breach of an intervention order and asserts that he regrets that. The Father asserts that it is he who is the victim of family violence, not the Mother. The Father’s assertions are not necessarily consistent between his affidavit evidence and his oral evidence, or even within his oral evidence. The Father accepts that the children have been reluctant to see him in the supervised setting that I will refer to later. The Father asserts that is because the children had been “coached” by the Mother.
MOTHER’S CASE
The Mother’s case was that there should not be any orders for specific spend time between the children and the Father at this time. She also opposed the suggestion of letters, cards and presents from the Father to the children, although not strongly. The Mother’s case and the events she relied upon were set out in her affidavit of evidence-in-chief and in the family report. I recite the following paragraphs of the Mother’s affidavit:
7.[L], [X], [Y] and [Z] all currently live with me. [X], [Y] and [Z] (collectively referred to as “the children”) are in my full-time care. [L]spends every second weekend with his father. The children identify as Aboriginal.
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9.My relationship with [Mr Davidson] was on-and-off again. We separated several times, following family violence incidents. In or around January 2020, I ended the relationship due to the family violence perpetrated by [Mr Davidson] and we finally separated. In or around late 2020, [Mr Davidson] and I were intimate on an isolated occasion, resulting in the conception of our daughter [Z].
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18.In or around June 2021, I experienced pregnancy complications and had to attend extra appointments at the hospital. The children were not permitted to come to those appointments. I had no one else who could care for the children, so [Mr Davidson] stayed at my home to care for them whilst I was attending the extra appointments. [Mr Davidson] stayed at my home for approximately 6 months after [Z]’s birth due to her heart condition.
19. In or around February 2022, I moved into a new property in [Suburb M] to try and get away from [Mr Davidson].
20. In or around March 2022, I was hospitalised due to extreme pain and difficulties moving and breathing. Doctors were unable to diagnose what the cause of these symptoms. I was in and out of hospital over a period of approximately 2 months. My family did not live nearby, and [Mr Davidson]’s mother had COVID-19 at the time. I was unable to care for the children whilst in hospital, so I felt I had no option but to ask [Mr Davidson] to temporarily move into my home so he could care for the children whilst I was in hospital. [Mr Davidson] agreed to temporarily stay in my home whilst I was in hospital and to care for them. After I was discharged from hospital I asked [Mr Davidson], multiple times, to leave my home. He refused and continued to sleep there. In or around late August 2022, [Mr Davidson] finally agreed to leave.
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22. [In early] 2021, Victoria Police applied for an Intervention Order for me and the children’s protection following [Mr Davidson] physically assaulting me and threatening to kill me whilst I was pregnant with [Z].
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30. [Mr Davidson] did care occasionally care for the children for example, when I was in hospital or recovering from surgery. He also occasionally helped with cleaning, bathing the children and putting them to bed. However, he often only attended to these tasks when I asked him. We usually did food shopping as a household and shared the cooking. The children, especially [Z], have a number of health needs which are outlined below. I usually take the children to their medical appointments.
31. After final separation in January 2020, apart from the periods when [Mr Davidson] temporarily lived at my home, the children spent sporadic time with [Mr Davidson]. When I offered for the children to spend time with him, he often told me he did not want to spend time with them. When the children did spend time with him, I was often also present.
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36.On 18 December 2022 between 11:30am and 4:30pm, [Y] spent time with [Mr Davidson] supervised by [Mr Davidson]’s mother, [Ms D]. Prior to the visit, [Y] cried and requested that “Nanna” be there at all times so that she was safe.
37. Between the end of December 2022 and early March 2023 I was receiving legal advice and considering what type of time was safe for the children given my concerns, outlined below in this Affidavit, about [Mr Davidson]’s use of family violence and illicit drugs and alcohol. During this time [Mr Davidson] repeatedly sent me text messages.
38. I instructed my lawyers to write to [Mr Davidson]’s lawyer to give them notice of [Mr Davidson]’s repeated and harassing text messages in breach of the Intervention Order and request further proposals be sent to my lawyers. They did so on 1 February 2023. However, [Mr Davidson] continued to send me repeated and harassing text messages. For example, between 24 January 2023 and 27 February 2023, [Mr Davidson] sent me 58 text messages.
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168.I was diagnosed as a child with ADHD by [Dr N]. [Dr N] prescribed me Ritalin. When I was in high school, I started seeing [Dr O] who prescribed Dexamphetamine until the high school. This is when he moved to Melbourne, and it was too difficult to continue to see him.
169.[Mr Davidson] sold ADHD medication. I know this as he told me he was selling it and I also drove in the car with him and saw him sell it to people. When I had difficulties concentrating, [Mr Davidson] offered to give me his tablets. His tablets were the same drug I had previously been prescribed by [Dr O], Dexamphetamine, and they were of a lower dose than I was prescribed. Between approximately August 2020 until December 2020 when I found out I was pregnant with [Z], I admit to taking Dexamphetamine tablets prescribed to [Mr Davidson] in order to help manage my ADHD symptoms.
170. I am not currently taking any prescribed or non-prescribed ADHD medication. I recognise that I should only take medication prescribed to me so that it works effectively to manage my specific symptoms and my body’s needs… On 12 April 2023, I commenced family violence counselling with [Ms P]. I attended regular family violence counselling with her and have recently finished this counselling. I discussed with [Ms P] the physical, emotional, psychological and sexual abuse I experienced from [Mr Davidson], as well as coercive control. I want to get my life back on track and heal from the violence [Mr Davidson] used against me…
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179. I want to also change [Y] and [Z]’s surnames to “[Betts-Davidson]” so that all of the children have my surname, “[Betts]”, as part of their surname. This would promote a connection to my side of the family and also promote a connection between the sibling group. I want all of my children to be connected and feel as one.
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186.As to paragraph 29 to 33, I deny using violence against the children. I say, as outlined above under the Family Violence heading, it was [Mr Davidson] who perpetrated family violence against me and the children. I say the description of violence in these paragraphs is similar to the violence that [Mr Davidson] told me he experienced in childhood…
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195.In light of the family violence perpetrated by [Mr Davidson], his lack of insight into his behaviour and continued harassing and abusive behaviour, even when Intervention Orders are in place, I consider that it is unsafe for the children to spend time with [Mr Davidson] until he has demonstrated insight into his use of family violence, excessive alcohol consumption and drug use. Further, that he has taken steps to adequately address these issues and other protective concerns.
The Mother’s case included evidence from a Family Violence Counsellor as follows:[4]
From the sessions that I have had with [Ms Betts], it is obvious that she has been greatly impacted by the different forms of abuse that were perpetrated by her ex-partner...
I have had approximately 12 counselling sessions with [Ms Betts] and it is noted that she has attempted very hard to move on with her life...
[4] At page 165 of Mother’s affidavit filed 21 April 2025. I did not accept the Counsellors opinion that the Father’s application to the Court, in accordance with the law of the land, was ‘further family violence against [the Mother]’
I accept those opinions of the therapist.
The Mother had proposed supervised time back on 9 March 2023, and, again, on 5 April 2023, provided the Father was able to provide to her clean drug and alcohol screens. I refer to paragraphs 67, 68 and 70 of her affidavit which are as follows:
67. Since May 2023, [Mr Davidson] drove his car past my home on multiple occasions. I believe [Mr Davidson] is using these drive-bys to intimidate and harass me and the children and make us fear for our safety.
68.I instructed my lawyer to write to [Mr Davidson]’s lawyer to request they counsel [Mr Davidson] in relation to his continued drive-bys. On 26 July 2023, they sent this letter. [Mr Davidson] continued to driveby my address after this date…
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70.On 31 May 2023, [Mr Davidson] drove past my home. This incident was captured on CCTV footage. My neighbour later told me he was taking out his bins and saw a car driving past. He told me he took down the registration plates of the car, […] and wrote it on his whiteboard…
The Mother told the report writer that she contemplated there being supervised time, provided the Father was abstinent from drugs and alcohol. It is clear that the Mother’s attitude to time with the Father has hardened as the litigation continued. Ultimately, and very sadly, I am satisfied for good reason.
It is important to note that in the Father’s case, there was no significant expression of remorse or regret in regard to the grief and trouble that his behaviour had caused the Mother and the children.
I accept the Mother’s evidence in this case.
ICL’S CASE
The case put by the Independent Children’s Lawyer (‘ICL’) was largely supportive of the Mother and opposed any time. The ICL further opposed the children’s names being changed as the Mother sought. The ICL also opposed the concept of letters, cards and presents from the Father to the children.
EXPERT EVIDENCE
The family report
This matter was assisted by a family report, and it is important that the date of the family report interviews on which it is based be noted. The family report interviews occurred on 19 October 2024. I recite the following paragraphs:
8. Both parents advised that the children identify as Aboriginal, and they do not identify with any religion. Both parents spoke about the importance of keeping the children connected to their culture. [Ms Betts] informed that she is currently receiving support from the [Q Agency] who links the children ([X] and [Y]) with cultural events. She advised that the children attend the Aboriginal therapeutic groups, and the children have possum skins which they like. [Ms Betts] advised that the children have Aboriginal paintings and Aboriginal printed tops. [Ms Betts] advised that [Z] does not attend Aboriginal events because they are too “dangerous” for her given that she requires a lot of supervision from adults.
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10. The report writer observed [X] and [Y] to be friendly, happy and lovely children. Both [Y] and [X] appeared to be meeting their developmental milestones expected for their age-groups. The report writer did not identify any signs and symptoms for [X] and [Y] which are consistent with ADHD diagnosis. Both [Y] and [X] were able to engage in conversations with the report writer and they answered questions with ease when asked. [Z] was observed to be a happy child who is hyperactive, she needs a lot of attention and supervision by adults around her. [Z] appeared to be meeting her developmental milestones expected for her age group. She was able to engage in conversations with her mother and siblings.
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12.Both parents informed that [Mr Davidson] is not currently spending time with or communicating with the children, and he is on the waiting list to commence spending supervised time with the children which will occur once a fortnight.
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14.[Ms Betts] reports that [Mr Davidson]’s ongoing family violence behaviour towards her led to their separation.
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16.Since parental separation, all three children have continued to live with [Ms Betts] and [Mr Davidson] has not had in person contact with [Z] and [X]. [Mr Davidson] only spent time with [Y] on two occasions in August 2022 and around Christmas time in 2022. [Mr Davidson]’s advised that he initiated Family Law Court proceedings due to [Ms Betts] continuing to withhold the children from him. As per interim Court Orders by consent dated 10 November 2023, [Z] and [Y] spend supervised time with [Mr Davidson] on such times and days as nominated by the Contact Centre with such time to be no more than two hours per fortnight.
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18.During his interview, [Mr Davidson] proposed that the children continue to live with [Ms Betts] and spend time with him each alternate week from Friday after school to Sunday at 6:00pm. He also proposed that the children live in equal shared parenting arrangement during school holidays.
19.In her Amended Response to Final Orders dated 18 April 2024, [Ms Betts] proposed that the children continue to live with her and spend no time and have no communication with [Mr Davidson]. [Ms Betts] also proposed to apply passports for the children without consent from [Mr Davidson] and she further proposed to change [Y] and [Z]’s surnames to [Betts-Davidson].
20. During her interview, [Ms Betts] proposed that all three children continue to live with her and initially spend supervised time with [Mr Davidson] once a fortnight until [Mr Davidson] addresses concerns around his substance use, unstable mental health, use of violence and physical abuse of the children. She proposed that once [Mr Davidson] has addressed these concerns, the children could spend time with him each alternate week from Friday after school until Sunday evening after dinner.
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25.[Ms Betts] expressed that although she wishes to support time between the children and [Mr Davidson], she fears that [Mr Davidson] may physically abuse the children when they spend time with him and that he may expose the children to his drug use.
26.[Ms Betts] advised that her proposal for the children to continue living with her and spend supervised time with [Mr Davidson] until he has addressed his substance use, unstable mental health, his physical abuse of the children, and use of violence is based on her desire to maintain stability for the children whilst ensuring their safety. She advised that [X] has been “emotionally damaged” by [Mr Davidson]. [Ms Betts] advised that [Mr Davidson] will need to work with professionals to address these concerns prior to her agreeing to unsupervised time between him and the children. She advised that the children will need to trust him before unsupervised time can occur. She advised that [X] is very angry and very scared of [Mr Davidson] and he does not want to see him, [Y] is very fearful of [Mr Davidson], but she loves her father, and [Z] does not know her father. [Ms Betts] advised that the Occupational Therapist who sees [Z] has advised that “[Z] cannot jump into these situations because of her melt downs and self-harm” and she stated that her time with [Mr Davidson] will need to initially be supervised. [Ms Betts] advised that she has kept a photo of [Mr Davidson] on [Z]’s tablet, and she always shows her and tells her that it is her father’s photo. She advised that [Z] refers to her father as “boy” and she does not know his name.
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30.[Mr Davidson] (aged 38) presented as a friendly, assertive and outspoken individual. Throughout the conversation with the writer, he maintained a consistently respectful attitude. [Mr Davidson] informed that he is Aboriginal from his mother’s side and he identifies with the [R] mob of South Australia. He advised that he is not yet fully aware of his culture, and he is still researching about it.
31. [Mr Davidson] presented with a mistrusting view about [Ms Betts] citing his reported experiences wherein he believed [Ms Betts] hindered his efforts to maintain significant relationships with his children following parental separation. [Mr Davidson] advised that [Ms Betts] prevented him from spending time with his children and he has not seen the children for nearly three years. He also informed that he believes that [Ms Betts] discusses with the children adult issues concerning their parents’ relationship. [Mr Davidson] also presented with a mistrusting view about [Ms Betts] based on his reported experiences of [Ms Betts]’s violent behaviour towards him during their relationship.
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33. [Mr Davidson] advised that his proposal for the children to live with [Ms Betts] and spend time with him fortnightly from Friday after school to Sunday at 6:00pm is based on his desire to maintain stability for his children whilst building a meaningful relationship with the children. He advised that he loves his children, and he cares for them. He stated that he wants to co- parent with [Ms Betts] in a peaceful way and he does not believe that him and [Ms Betts] should be seeking assistance from Court regarding agreeing on co-parenting arrangements. [Mr Davidson] informed that he likens the current situation where [Ms Betts] is withholding the children from him with the lost generation. He added that “just because mum and dad are not together it does not mean that dad should be out of your life.” [Mr Davidson] advised that he does not support the children’s names being changed and he does not want the children to get passports until they are older. He advised that he believes it is not safe for the children to travel around the world due to wars and natural disasters. He advised that if there are compelling circumstances for the children to go overseas, he will support them getting passports.
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39. [Mr Davidson] and [Ms Betts] made counter allegations of family violence against each other. However, both parents firmly denied perpetrating family violence towards each other during their relationship and post separation. [Mr Davidson] acknowledged breaching the Intervention Orders (IVOs) that [Ms Betts] had taken out against him in in the past. Subpoena material from Victoria Police confirms these IVO breaches by [Mr Davidson].
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41. [Ms Betts] claimed that during her relationship with [Mr Davidson], she endured significant emotional, physical, financial, sexual and verbal family violence including coercive controlling behaviours perpetrated by [Mr Davidson]. In interview, [Ms D] advised that she will not be able to go into full details about the forms of family violence she endured from [Mr Davidson] as she is trying to move on from the past experiences.
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43. [Ms Betts] advised that during the relationship, [Mr Davidson] verbally abused her and the children on multiple occasions, and he called her with names such as “a dog.” [Ms Betts] claimed that during the relationship, [Mr Davidson] physically abused the children, and she stated that [X] had cigarette burns that were caused by [Mr Davidson]. She advised that [Mr Davidson] would also squirt water down [X]’s throat. She advised that [Mr Davidson] threatened to burn the house with her in it, he threatened her with knife and guns and threatened to “skin” her alive. [Ms Betts] advised that [Mr Davidson] always has knives with him, and she advised that during the relationship, [Mr Davidson] used to carry guns in the boot of his car. She advised that [Mr Davidson]’s violent behaviours always escalated after he had been drinking alcohol.
44. [Ms Betts] advised that the family violence perpetrated by [Mr Davidson] towards her is still ongoing. She advised that [Mr Davidson] breached the current IVO by driving past the children’s school and he also drove past her house a couple of times in June 2024. [Ms Betts] advised that [Mr Davidson] is using the Court system to abuse her. She advised that on many occasions [Mr Davidson] has said he would destroy her for the rest of her life. She advised that she is currently receiving family violence counselling through [S Centre]. [Ms Betts] reports that the children are also receiving counselling from [T Centre].
45. [Mr Davidson] firmly denied perpetrating family violence towards [Ms Betts]. He advised that he has only breached the IVO against [Ms Betts]. [Mr Davidson] stated that “everything I have been accused of, it’s what she did to me.” Subpoena material from Victoria police confirms that [Mr Davidson] contravened previous IVOs through acts which included him sending text messages to [Ms Betts], sending an email to [Ms Betts], sending a voice recording to [Ms Betts]’s son and verbal abuse of [Ms Betts].
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48. [Mr Davidson] advised that [Ms Betts] has used the system to perpetrate family violence towards him. He advised that when communication about parenting arrangements for the children was allowed in the IVOs, [Ms Betts] has reported him to police for breaching the IVO when he tried to communicate with her about the children.
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57. [Ms Betts] advised that during the relationship, [Mr Davidson] used cannabis and cocaine and he drank alcohol excessively. She added that during the Covid-19 lockdown, [Mr Davidson] bought big bags of cannabis, and he smoked massive amounts of cannabis, and he excessively drank alcohol. She advised that she also used “a little bit of cannabis” and she did not drink a lot because she was pregnant with [Z]. [Ms Betts] informed that post the relationship with [Mr Davidson], she used a lot of cannabis to cope with separation. She advised that she stopped using cannabis more than two years ago. [Ms Betts] could not remember the exact date she stopped using cannabis. In May 2023, [Ms Betts] hair follicle test yielded negative results for drugs.
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60. [Ms Betts] advised that she is diagnosed with ADHD, Post-traumatic stress disorder (PTSD), depression and anxiety. She advised that she is currently taking prescribed medication to treat depression and anxiety, and she also takes prescribed medication to treat other health issues she suffers from. She advised that she is currently in a process of being referred to a psychologist. She advised that the family violence counselling which she is currently receiving through [S Centre] Community Health helps her manage her mental health. She advised that her mental health is currently being managed well and it does not impact on the care she provides to her children. [Ms Betts] advised that during the relationship, [Mr Davidson] was diagnosed with ADHD and PTSD, and he never took any prescribed medication to manage his mental health. [Ms Betts] advised that she believes if [Mr Davidson] was medicated many years ago, his mental health would have improved by now. She advised that she believes [Mr Davidson] still suffers unstable mental health and she thinks that the passing of his aunt impacted him a lot and he never received any support to get through the loss he suffered.
61. [Mr Davidson] advised that he is diagnosed with ADHD, PTSD and anxiety. He advised that he is also diagnosed with auditory psychosis, and he is currently attending therapy every fortnight through a psychologist at [B Group] Aboriginal Health. [Mr Davidson] informed that he also takes medication to treat his heart issues. He informed that he was advised that he will not be prescribed medication to treat his mental health because mental health medication will cause more damage to his heart. He advised that he is prescribed medicinal cannabis, and his mental health is currently being managed well. [Mr Davidson] informed that he is not aware of [Ms Betts]’s mental health history.
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66. [X] (aged eleven) presented as a friendly child and he seemed presented as happy when he was talking about his experiences of living with his mother. [X] spoke enthusiastically about his experiences living with [Ms Betts]. He advised that he shares a strong bond with his mother, that he has a good relationship with his siblings, [Y], [Z] and [L]. [X] described his mother as lovely, caring, loving and genuine. [X] advised that [Ms Betts] loves them all equally and she is always there for them. He advised that [Ms Betts] takes them to different parks, they go on holiday, and she gives them Christmas presents. [X] advised that he wishes to continue living with his mother and spend no time with [Mr Davidson].
67. [X] advised that he has not seen [Mr Davidson] for nearly three years. He informed that he does not miss spending time with [Mr Davidson]. [X] stated that “I have blocked him in my world.” [X] informed that he does not want to see [Mr Davidson] again in future. He advised that [Mr Davidson] used to hit him, and he forced him to swear. He stated that “dad is toxic, he is horrible, he is abusive with words, and he has drinking issues.” [X] said that during his parents’ relationship, [Mr Davidson] did not engage them in any activities, and he recalled [Mr Davidson] taking him for fishing on only one occasion.
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69. [Y] (aged eight) presented as happy when she was speaking about her experiences living with her mother. [Y] spoke eagerly about her experiences living with [Ms Betts] and the strong bond that she shares with her mother. She advised that she shares a good relationship with her mother and siblings. [Y] described her mother as kind, caring, loving, playful and fun. [Y] advised that her mother does a lot of activities with her which she enjoys such as going to the park, dancing and singing together. She informed that [Ms Betts] takes her to school and if she is unable to do so, her friends help with transporting her to school.
70. [Y] said that she cannot remember the exact time she last saw her father, and she stated that she has not seen her father in a long time. [Y] advised that she does not miss spending time with [Mr Davidson] because she is fearful of him. [Y] advised that she is aware that [Mr Davidson] has been “rude” to [Ms Betts]. When she was asked to describe [Mr Davidson] [Y] stated that “dad is mean.” [Y] advised that she wants to continue living with her mother and spend no time with [Mr Davidson]. She advised that she does not wish to spend time with [Mr Davidson] because she is scared that [Mr Davidson] will “kidnap” her like he did in the past. [Y] advised that if she is forced to spend time with [Mr Davidson], she will cry and run away from him. She said that “I don’t want to see dad at all in future.”
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74.During formal observation between [Ms Betts] and the children, the children exhibited a comfortable and confident demeanour around [Ms Betts], interacting with her effortlessly. [Ms Betts] demonstrated appropriate attentiveness and responsiveness towards the children.
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78.Regarding [Mr Davidson]’s observation with the children ([X] and [Y]), both children maintained a reasonable distance from [Mr Davidson] and [Ms U].[5] [Mr Davidson] greeted the children and both children did not respond and looked in different directions. Both children avoided eye contact with [Mr Davidson]. [Y] clung to the report writer and [X] stood behind the report writer whilst he was wearing his face mask. [Mr Davidson] expressed that he was happy to return home if the children did not want to continue with observation. [Ms Betts]’s friend who was present spoke to the children and reassured them that they will be okay and that the report writer will be there with them. The children agreed to go ahead with the observation.
[5] Mr Davidson’s partner.
79.Upon entering the observation room, [Y] and [X] chose to sit closer to the report writer. [Mr Davidson] gave the children the present he had brough them. [X] happily grabbed his present which was a Lego game, he opened it, and he started playing with it straight away. [Y] refused to open her present. [Mr Davidson] engaged the children by talking to them asking them questions about what was interesting them. [X] became relaxed and he happily engaged in conversations with [Mr Davidson]. After approximately twenty minutes, [Y] slowly became relaxed, and she joined in conversations with her father, [Ms U] and [X]. [Y] went on to initiate conversations with her father and she was observed to be smiling at him as they spoke. [Y] told her father that at school they had built a nature playground which is beautiful. [Y] opened the present that her father had brought her, and she seemed happy with it and advised her father that she liked her present. [Y] started playing with her squishy toys. The children also interacted positively with [Ms U]. At the end of observation, the children happily said their goodbyes to [Mr Davidson] and [Ms U].
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83.Both parents firmly deny perpetrating family violence towards each other. Nevertheless, they have both made counter-allegations of family violence against each other. Subpoena material from Victoria police corroborates [Ms Betts]’s narratives. There is no police information to confirm [Mr Davidson]’s narratives, however, his narratives cannot be discounted. There is a current full exclusionary Intervention Order between the parents’ which names [Mr Davidson] as the offender.
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85.Consistent with [Ms Betts]’s account and subpoenaed material from Victoria Police, it appears that the children witnessed family violence between the parents. Subsequently the writer is concerned that if in future family violence occurs between the parents or in new relationships of the parents, the children may feel unsafe and insecure, experience instability, anxiety, trust issues and fear. Amongst other things, this may affect their self-confidence, the strength of their relationships with their parents, their learning as well as their emotional and social developmental outcomes and potentially their future mental health. [Ms Betts] reports that the children are receiving counselling from [T Centre] given their previous exposure to family violence.
86.Both parents have acknowledged the difficulties that they have faced regarding communicating constructively with each other to co-parent the children post separation and mistrust towards each other regarding co-parenting. It does seem that there has been significant acrimony between [Ms Betts] and [Mr Davidson] since separating which has directly impacted the children’s spend time arrangements, because of [Ms Betts]’s reported/alleged choice to withhold them or inappropriately discuss adult issues with them. The children views in relation to their intent to not want to see their father which seemed to be inconsistent with them warming up towards their father towards the end of observation and the children’s lack of positive memories about their father raises concerns that the mother may have exposed them to a negative view of their father. On the other hand, the children’s negative views of their father could have been built upon their personal lived experiences of their father especially in light of concerns around [Mr Davidson] physically discipling [X] and exposure to family violence. If [Mr Davidson]’s account is accepted that [Ms Betts] has inappropriately discussed adult issues with the children, [Ms Betts] will benefit from receiving counselling or attending a course that highlights the harm that her actions have caused their children and teaches her ways to protect the children and share information with them safely. The parents may benefit from engaging in counselling or a course which can help them build effective communication skills to prevent the children being exposed to conflictual dynamics in the years to come.
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95.Both parents appeared to demonstrate the capacity to be child focused and insightful about the children’s needs in their proposals.
96. Both parents appeared insightful of the need to ensure stability for the children in their proposals that the children continue to live with their mother as this will avoid disruption in the children’s current routine and school arrangements.
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99.Further advantages to both parents’ proposals are that it will allow the children to maintain and further develop a meaningful relationship with both parents. It will also be beneficial for the children’s sense of identity, sense of belonging and connection to their parents and their extended maternal and paternal family members. Each parent would also be able to show the children a different view of the world and different role modelling than the other parent. By spending time with their father, the children will also be able to strengthen their connection with their Aboriginal culture.
100. The main disadvantage of both parents’ proposal is that it is against the children’s wishes.
101. In relation to the children’s views that they wish to continue living with their mother and not spend time with their father, the Court may determine what weight should be placed on their wishes with consideration of their ages and stages of development. The main benefit for the children if they were to continue living with their mother is that it will ensure their stability and continued stable relationships with their mother. If the children continue to not spend time with their father and if he does not pose a risk to the children, this is a real loss as they transition to teenage years and a loss in their connection to their Aboriginal culture. In light of the children’s views and perceptions about their father, and their refusal to spend time with their father, it seems they could benefit from engaging in therapy to address the underlying trauma that may be influencing their decisions with a long-term goal to include [Mr Davidson] in this therapy with a view to their reconciliation. Therapy could also focus on the impact of parental conflict on the children’s wellbeing.
102. Given the information available for this assessment, it appears that with the current live with and spend time arrangements, the children have settled well in [Ms Betts]’s care. However, they have not been able to maintain good and favourable relationships with [Mr Davidson]. It appears likely that commencing supervised spend time between [Mr Davidson] and the children may assist in rebuilding the children’s relationships with their father. The relationship between [Mr Davidson] and the children may potentially be further strengthened by incorporating overnight stays for the children. However, all three children, taking [Z]’s additional needs into account, having to adjust to the significant changes from their known parenting experience of their mother as their primary caregiver, combined with the soon to be changes to their routine and social life may be overwhelming for them. As such an incremental parenting plan will assist [X] and [Y] transitioning to spending overnight time with their father. Given the concerns raised about [Mr Davidson]’s alleged violence, as well as his drug and alcohol use, and mental health difficulties, there remains concerns that the children’s safety and wellbeing may be at risk if the children were to spend unsupervised time with him. As such, it is recommended that the children’s time with him be supervised until he has demonstrated that he has addressed these concerns.
103. It is recommended for [Z] and [Mr Davidson]’s time to be supervised. Given that at this point [Z] has not spent any time with her father since parental separation, their relationship is still in its infancy, and it is unclear how their relationship will develop overtime, it is difficult for the report writer to make any further recommendations beyond supervised visits. However, if after [Mr Davidson] has addressed the concerns, and positive reports have been received from the contact centre about the supervised visits between [Mr Davidson] and [Z], [Z]’s therapist could determine when [Z] will be ready to commence spending unsupervised time with [Mr Davidson] and the nature of the unsupervised time.
The contact centre report
It is significant in this matter that an order was made by consent back on 10 November 2023 for supervised time to occur at a facility known as E Contact Service. A report was provided by E Contact Service in regard to the facility’s involvement with the Mother, the Father and the children, and included a summary of serious allegations that the facility had been provided in information obtained from Child Protection and also from Region AA V Organisation:[6]
In accordance with the Family Violence Protection Amendment (Information Sharing) Regulations 2018, the service requested information from the [Region AA V Organisation] and Child Protection for risk assessment, management, and protection purposes.
The [Region AA V Organisation] provided four L17 narratives (refers to the descriptive information contained within a Victoria Police Risk Assessment and Management Report related to family violence incidents) from 2023. [Mr Davidson] was identified as the respondent and [Ms Betts] the Affected Family Member (AFM). The [Region AA V Organisation] advised [Ms Betts] was supported by [Region BB V Organisation] in 2023. The [V Organisation] identified the main risks of family violence to be physical assault, threats to kill, children exposed to family violence, previous access to weapons, threats to suicide, Alcohol and Other Drugs (AOD) and mental health. The [Region AA V Organisation] advised charges included, make threat to kill, unlawful assault and VO Breaches.
Child Protection provided a summary of historical information for four previous reports. The first report between […] May 2020 and […] August 2020 pertained to family violence and indicated [Mr Davidson] held several high-risk factors, including threats to kill the children, access to weapons, threats to kill and obsessive jealousy and coercive control of [Ms Betts]. The second report in March 2021 pertained to family violence due to [Mr Davidson] physically and verbally assaulting [Ms Betts] whilst pregnant and in the presence of [Y]. Child Protection files indicated that [Mr Davidson] continued to act in ways that were jealous and possessive of [Ms Betts]. The third report between […] August 2022 and […] September 2022 pertained to family violence, due to [Mr Davidson]’s breach of the Intervention Order and made a threat to kill [Ms Betts] to [Y]. The fourth report between […] March 2023 and […] July 2023 pertained to neglect. Child Protection interviewed [Mr Davidson] who denied using any form of family violence toward [Ms Betts] or in front of [X], [Y] and [Z]. Child Protection interviewed [X] who disclosed witnessing family violence perpetrated by [Mr Davidson] and his hesitation with having contact with [Mr Davidson]. Child Protection interviewed [Y] who confirmed feeling unsafe with [Mr Davidson] and concerned about being left with [Mr Davidson].
[6] At page 2-3 of the Report dated 24 April 2025 annexed to the affidavit of Ms W filed 30 April 2025.
That report concludes as follows:
Both [Ms Betts] and [Mr Davidson] presented as polite and respectful to the service. [Ms Betts] was encouraging of Children making their own decision in regard to attending contacts and encouraged them to speak with the Supervised Contact Workers. [X] consistently declined to attend supervised time with [Mr Davidson], [Y] attended on a single occasion and [Z] attended supervised time on three occasions. During supervised time [Mr Davidson] was calm and respectful with [Y] and [Z], engaging with play and attempting light conversations.
[Mr Davidson] communicated appropriately throughout the contacts, keeping a positive and calm tone and providing children with encouragement and praise. Occasionally [Z] asked [Mr Davidson] to leave her, [Mr Davidson] gave [Z] space for a few moments and then was able to rejoin her in play and engage in an activity.
The Contact Service can provide supervised contacts through the Family Engagement Service at a cost of $130 per hour on a Thursday or Friday or $155 per hour on a Saturday whilst both parties work towards a self-management plan. Alternatively, the service can provide facilitated changeovers at a cost of $2.50 per party, per changeover. The service suggests the children seek therapeutic services in relation to reconnection with [Mr Davidson], before the parties reach an agreement to utilise the service further.
The report also identified parts where the children were asked to see their Father and their response to that:
[Y] approached [Ms Betts]’s occasionally and whispered to her. [Y]’s comments could not be overheard, however [Ms Betts] replies could be heard as “that's okay”, “it's your decision up to you.”
…
Initially all children declined to attend the supervised contact with [Mr Davidson] and engaged in conversations about the school holidays, and looking forward to returning to school. During this time [Z] hid in the reception area and squealed response to [Ms Betts] and the Supervised Contact Worker attempting to interact with her. When discussing spending time with [Mr Davidson], [X] responded, “No, no thank you. I don't think I will ever come.” [Y] shook her head and said “no.”
…
The Supervised Contact Worker spoke with [Ms Betts], [X] and [Y] about the school holidays each shared an activity When asked if they were attending to see [Mr Davidson], both [X] and [Y] declined. [Z] was pretending to be a cat, the Supervised Contact Worker spoke with her again, asking if she was coming to play with [Mr Davidson]. [Z] responded she was going to the car and walked away. [Ms Betts] thanked the Supervised Contact Worker.
…
[Ms Betts] and the children arrived at the service for Contact 9 (15 March 2025), Contact 10 (29 March 2025) and Contact 11 (12 April 2025). Each one of these all the children declined to attend and see [Mr Davidson].
…
[Y] and [X] both shook their heads, when asked if they wanted to attend to see [Mr Davidson], neither elaborated or verbalized anything further and avoided eye contact with the Supervised Contact Worker.
…
The supervisor asked [Z] multiple times if she was coming to play with dad, [Z] declined and then requested to leave with [Ms Betts].
It is clear from the report, and the unchallenged report, of the E Contact Service that on several occasions there was no exercise of parental authority to have the children actually go through to the Father. Ultimately, Y did on one occasion and Z, though only a three year old, did on two or three occasions.
It is also important to recite the observation in the E Contact Service report of the Father’s admirable demeanour during those sessions.
The Supervised Contact Worker encouraged [Mr Davidson] to remain seated on the couch, when the children arrive and give them time and space to enter the room and interact with [Mr Davidson]. [Mr Davidson] accepted this suggestion and identified had been three years since having any contact with the children, and he was not sure how they will react or what will happen today.
…
The Supervised Contact Worker asked [Mr Davidson] if the children decline to attend are they able to take the children their gifts, [Mr Davidson] responded, “yeah of course and the snacks or drinks if they want them.”
…
…[Z] commented, “he's too cold" while setting out dolls and furniture. [Mr Davidson] asked, “oh, cold is he?” [Z] responded “mmm” and started making cat sounds. [Mr Davidson] asked, “are you a kitty cat?” [Z] stood and walked outside, saying “don't follow me”. [Mr Davidson] said “okay, that's okay.”
…
[Mr Davidson] was polite and calm each time [Z] left the room. When the Supervised Contact Worker returned to advise [Z] was not returning this time, [Mr Davidson] was positive about the time spent, adding he was happy to see [Z] for any amount of time. [Mr Davidson] asked about [X] and [Y], the Supervised Contact Worker advised they were present, however declined to attend.
…
[Y] had spent approximately one hour with [Mr Davidson] before asking to leave. When [Y] advised she was ready to leave [Mr Davidson] was accepting and calm, saying goodbye.
…
[Mr Davidson] thanked the Supervised Contact Worker for their time and exited with his mother, advising he will continue to attend the service fortnightly.
…
[Mr Davidson] communicated appropriately throughout the contacts, keeping a positive and calm tone and providing children with encouragement and praise.
The end result is that that attempt at supervised time cannot be described as successful, but it is not entirely unsuccessful either. It is significant that the first of those attempts at supervised time occurred only roughly a month after the observations in the family report where, with considerable skill and expertise, the family report writer was able to persuade the children to go through and see the Father.
As stated earlier, I accept the observations and expertise of the family report writer, in particular the observations of the family report writer of the children’s relationship with their mother and the manner in which they “warmed up” to the Father during the report observation process. It is also clear that the report writer did not place the burden of the decision of whether or not to see their father on the children but rather determined herself, with the authority of the report writer, that that should happen. It did.
A month later, at the contact service, the children going through to see their Father was significantly more problematic. And I am satisfied part of that dynamic was that the children had the responsibility of making the decision as to whether or not they would ultimately go through. That is not to say that they were not encouraged by the E Contact Service supervisors. They were encouraged by the Mother, but encouraged to make the decision themselves, and essentially, it was left up to the children, although in a supportive environment.
These reasons should not be seen as critical of the E Contact Service supervised service as, given the information that the service had about the Father, some circumspection about the benefit of time with him is perfectly human and reasonable. Further, I am not prepared to be critical of the supervision service without the service being able to respond to that. The enormous difficulties and difficulty of the work that such a service provides, and the immediate stress and difficulty for any supervisor working within that service or like service need only to be contemplated and imagined to be grasped.
Hence, I am not critical of the service, but it is a fact that when the decision was left to the children, they were very reluctant and by and large did not go through to see their father. But when effectively directed to do so in the safe environment of the family report writer, they did so. Nonetheless, the supervision service concludes in their report that from the service’s point of view they cannot observe further benefit to the children of utilising the service, and I place some weight on their opinion in that regard.
The long and the short of it is that I do not have any evidence of any particular service that would be available to again attempt supervised time were that in the children’s interest.
SOME SIGNIFICANT EVENTS & CONTROVERSIES
I now turn to other events alleged in the proceedings.
Family violence by the Father
The 2008 incident
It is alleged by the Mother and the ICL that back in August 2008, in Queensland, the Father violently assaulted his then intimate partner by gouging her eye and sustaining serious injury to her. The Father initially purported not to have a clear recollection of that event, but as he became aware that the cross-examination regarding that incident was based on a police report,[7] his recollection improved.
[7] Exhibit F9.
Ultimately, what I have is a police report where the name of the person complaining has been redacted (on privacy grounds no doubt) and the evidence I have is the summary of events in the Victoria Police LEAP summary. The events of August 2008 were complained of to the police in June 2022, that is some 14 years after the event.
The Father did not recall some aspects of what was alleged against him, but gave a not implausible account, eventually, of his fingers meeting the eye of his former intimate partner as an unintended accident arising from the conflict between them, which had, on his account, being largely initiated by the person injured. As I pointed out to counsel during the hearing, an unconvincing denial is not evidence of something that is simply asserted.
In the circumstances where I do not know the name of the person, that person is not a witness in this case, and the complaint is some 14 years later, but the allegations are strongly denied by the Father, I am not satisfied, notwithstanding the unreliability of his evidence generally, that I can have a comfortable satisfaction on the balance of probabilities, that what the Father has asserted about that incident did not happen, and rather, the events reported in the police summary did happen.
However, I do take into account that a prior intimate partner of the Father has complained of violence at his hands. I can take that into account in a very general way as being a matter that is consistent with risk to the safety of the Father’s intimate partners and children. However, ultimately, I place little weight on that allegation because of the uncertainty surrounding it.
The Father takes Y
The Mother alleges, and I accept, that back in 2017 (that is some roughly eight years ago) herself and Y were in a car at a coastal place when the Father pulled over into a side street, and he took Y from her car seat and walked away down the middle of the highway whilst screaming, swearing and abusing the Mother.
He also took the car key, so that the Mother was unable to leave and was stuck by the side of the road. The Mother became distraught and called the police. The Father broadly denied, or did not accept, that incident. But I accept, sadly, that it occurred.[8]
[8] As is set out at page 13 of the Mother’s affidavit.
The restaurant incident
After that event, and I accept in or around 2018, the Father became very intoxicated while out to dinner at a restaurant with the Mother, X and Y. The parents had been arguing, and then the Father walked out of the restaurant, and I infer in a most angry manner. I accept the Mother’s account that after leaving the restaurant, the Father threatened to smash the windows of the car and to burn the house down while the Mother and the children were inside. She returned to pick up her car later that evening and the father was still there, and told her that if she called the police, she was, in vulgar terms, in serious trouble.
The shove and threats to kill
In or around February2021, while the Mother was pregnant with Z, the Father pushed her against a wall, I infer at their home. I am satisfied that, as alleged by the Mother, he tried to pull Y from her arms and after the Mother called the police, the Father said to her “you're dead” on more than one occasion.
The incident at the Father’s friend’s house
In or around January 2022, the Father borrowed the Mother’s car to visit his friend, Mr CC. Later, that afternoon, the Mother joined them and brought with her the children, Z and Y. The child, X, had already gone with the Father. When the Mother arrived, the Father was still drinking alcohol and was so affected that he could not walk properly. The Mother took Z and Y and left the house but left X, who was playing with Mr CC’s child.
Later, the Father telephoned the Mother and she could overhear what was a violent argument between the Father and Mr CC. X was still there at this time. The Mother then returned to collect X and the Father abused her and banged on the windows of her car and again made threats to kill. He stood behind the car to prevent the Mother from leaving. The Mother reported that matter to police and unfortunately the Mother had to leave Mr CC’s house, leaving X in the care of the Father and Mr CC.
Later that evening, the Mother was informed that the Father had had a motor vehicle accident. It is clear from the annexure MSB-26 photographs of the damaged motor car that the Mother’s motor car was seriously damaged in a crash late that day. I am satisfied, and I infer, that the damage to the car arose from the Father’s control of the vehicle.
Later that night the police returned X to the Mother’s care. Arising from this incident, the Father was later found to have committed family violence and was placed on a good behaviour bond and, back in mid-2023 when sentenced for these events, ordered to engage in a Men’s Behavioural Change program.
Threats
The Mother asserts that from around March 2020 until August 2022,[9] the Father made threats to the Mother that he would kill a man who the Mother had a relationship with. Over a period of many months, the Father told the Mother that he would destroy her life and any partner.
[9] As asserted in paragraph [56(b)] of the Mother’s affidavit.
June/July 2022 physical abuse
On this occasion, the Father struck the Mother’s back with considerable force, and a few days later grabbed her violently by the arm. The Mother asserts, and I accept, that the children were present at those times. I accept the Mother’s evidence of these incidents.
Entering and damage to property
The Mother had to put up with other events originating from the Father, including the event described in paragraph 56(e) of her affidavit which occurred on 25 August 2022. On this occasion the Father arrived at the Mother’s home while the children were present and the Mother heard banging on the door. Y in particular was distressed and crying, and she told the Mother that she did not wish to see the Father because she was “too scared”. The following morning, the Mother observed significant damage to her car by the way of damage to the paint work, when the car had not been damaged prior to the Father’s visit.
I am satisfied that the Father damaged the car on the occasion that he visited, although unannounced, and whilst angry and distressed when he was not able to see the children when he wished to.
Online abuse
An interim family violence order was made in late 2022 protecting the Mother and the children. One of the conditions was that it prohibited the Father from publishing any material about the Mother or the children on the internet. The Mother alleges, and it was not disputed, that the Father, despite being illiterate, uses a Facebook account under a nickname. Despite the intervention order and despite the Mother being the mother of two of his children, in late 2022, the Father posted on social media a sexualized insult to the Mother. And I am satisfied that the nature of the sexualised insult, in its vulgar and appalling terms, was then intended by the Father to interfere or make life more difficult for the Mother in regard to any other intimate relationship she may have.
Incidents following issue of proceedings
It is important in this chronology of events to note that the Father issued proceedings in this Court on 15 March 2023, and the first return of that application was on 24 April 2023. However, in the meantime, and a few days after the issue of the proceedings, the Father was involved in an incident with his current partner, Ms U.
Ms U reported events to the police in early 2023, and I am satisfied there was substance to those allegations made at that time. Ms U reported to the police that the Father had been drinking heavily and became very sad and angry about the pending court proceedings which he had issued a few days earlier, where the Mother was the respondent. The Father’s anger was such that Ms U called the police. Later, Ms U called the police again and advised that everything had returned to normal. I am satisfied that the event happened more or less as reported to the police, in the circumstances where Ms U was not called as a witness in these proceedings. Further, the Father’s account of this event when cross-examined by counsel for the Mother was unconvincing.
Ms U is the Father’s current partner and I am satisfied very supportive of him. Ms U attended the Court with the Father and was present throughout this hearing.
On 23 March 2023, that is shortly after the event with Ms U, the Father attended the Mother’s home. I am satisfied and infer that, he did so from the Mother’s evidence at paragraph 64 of her affidavit. On that night she heard yelling outside the house and the following morning she found “double jack” cans on her lawn, which is one of the types of drinks favoured by the Father as she had observed. It is significant that this event occurred in between the issue of proceedings and the first return to court.
When the matter came to court on the first occasion, orders were made by the Court, including for the separate representation of the children and provision of a section 69ZW (of the Act) report from Child Protection. Further, the parties were ordered to undertake hair follicle testing and Victoria Legal Aid was requested to fund that hair follicle testing. No orders were made for the Father to spend time with the children at that time. Not long after, in July of 2023, the Mother attended the police station to report occasions when she had observed the Father drive past her premises.[10] The Father’s account to police was that it could not have been him because he had been recently released from hospital and was heavily medicated and could not drive. I am unable to determine whether or not the Father was actually driving the vehicle observed by the Mother, but I accept the Mother’s observations that at this time, that is, in the middle of 2023, the Father’s vehicle was being driven near to where she lived.
[10] Details of which are contained in exhibit F13 at pages 60 to 63.
Also in June of 2023, the Father provided a hair follicle test, or a hair follicle test was collected at public expense, funded by the legal aid commission. To the Father’s credit, the hair follicle test was negative for all substances, including cannabis, but had a high reading of excessive consumption of alcohol. The Father’s account is that he had, following final separation in July 2022, commenced to very severely abuse alcohol and to a much greater significant extent than previously. His account was that he abused alcohol significantly up until this test, which demonstrated to him the folly of alcohol consumption. The Father’s oral evidence included repeated statements from him regarding alcohol as “putrid” and a substance that “the government should ban”, such was its poisonous effect on him and others.
The chainsaw incident
In November 2023, there was a serious altercation between the Father and his partner, Ms U. In November 2023, the Father and Ms U had attended a supermarket to buy vapes. There was a discussion about Ms U’s declining mental health, and this apparently triggered a reaction by the Father to the circumstances of his life. The Father stated, “I am done with you, and I am done with life”. He purchased a large amount of alcohol and then returned home to consume it.
Whilst intoxicated and highly emotional, the Father punched holes in multiple walls, head-butted a wall and then went into the garage. Ms U’s children were present, or at least they were on that day at some point (it is unclear to me whether they were present for the following chainsaw incident). But when in the garage, the Father found a chainsaw, started it and was revving the engine, and I infer, engaged so that the chain was also engaged and turning. The Father attempted to cut a plastic chair in half and then turned the chainsaw off and returned to his bedroom.
Later that evening, he produced a kitchen knife and held it to his wrists. He threatened to blow the house up with everyone in it. The police were called and intervened. The Father was arrested by the police. When cross-examined about this incident and when presented with the police record and the complaint made by Ms U, the Father ultimately admitted that it had occurred but was dismissive of it as him merely being a bit “silly”. Ms U later made a statement of no complaint and was not supportive of any charges being laid against the Father.
Consent orders a week later
About a week later, in November 2023, by consent it was ordered that the children live with the Mother and that Y and Z spend professionally supervised time with the Father at E Contact Service. I am satisfied, and infer, that at the time those orders were consented to, the Mother was not aware of the events of a few days previously with the chainsaw in the garage of Ms U’s house.
In any event, that supervised time did not come to pass until a year later. But by order 15 of those November orders, the Father was ordered as follows:
15.The Father forthwith undertake and complete a Men’s Behaviour Change course and provide a certificate of completion to the ICL and the Mother’s solicitor.
Another Ms U incident?
Not long after those consent orders were made, on 24 December 2023 there was a confrontation involving Ms U, her mother and the Father. Family violence safety notices were issued, and I am satisfied that either Ms U or her mother alleged that the Father had asserted he was going to “smash her up”. The Father denied that event and I cannot be satisfied, or have a comfortable satisfaction on the balance of probabilities, that the event occurred as apparently reported to the police.
Father referred to mental health services
However, 24 December 2023 is a significant date in the Father’s affidavit. That is the day (referred to in paragraph 55 of the Father’s affidavit, recited above) that, as he then asserted, was the last day he consumed alcohol. Not long after that, on 10 January 2024, the general practitioner (‘GP’) for the Father made a referral for mental health services, and the GP’s notes set out the presentation and history given by the Father at that time as follows:
…
[Mr Davidson] has been struggling with severe depression since having legal issues which have resorted in him no longer seeing his biological children with his ex-partner. He had a wrist injury mud last year and being off work has only worsened his mental health. He describes a history of ETOH misuse, however this only worsened during his absence from employment, and led to heavy ETOH use in combination with misuse of opioid analgesia. He was hospitalised late last year due to a mental health crisis and suicidal ideation over the father’s day weekend due to being unable to see his children . He does report some intermittent suicidal ideation and self harm currently. Most recently he has self harmed with cigarette burns and some … He has recently also started some medicinal cannabis for pain, but concerning he tells the combination of this plus misuse of ETOH and opioids have led to periods of him “blacking out”, and his partner saying he is having psychosis. He is currently seeing [Mr K] an AOD worker through [B Group] and the […] program. He would however greatly benefit from your review and assistance in formulating an appropriate management plan for [Mr Davidson].
By this time, the Father had commenced using medicinal cannabis but was also complaining of blacking out. I am satisfied that the Father’s referral for assistance with his mental health was well-made and sensibly made. When cross-examined, the Father’s position was simply that he “did not recall” and/or that this was not his medical report, and the cross-examiner had made a mistake. The account in the medical record is clearly in regard to the Father and is contained in exhibit F2. I accept that the matters the Father was then complaining of were reasonably and accurately recorded by the GP.
Not long after, on 31 January 2024, the Father attended the C Medical Centre Community and Mental Health Service. When cross-examined about this event, as contained in exhibit F1, the Father’s position was to the effect that it was a long time ago, and that he could not recall any conversation.
Today [Mr Davidson] presented on time with his partner, [Ms Betts] who he requested be present for r/v. Introduced [City DD] CCS and purpose of intake assessment, discussed confidentiality and limits of this. [Mr Davidson] engaging however rolling his eyes at times and laughing. Currently living with [Ms Betts] and her 3 children, 10, 8 and 6 y/o. States CPS recently involved due to [Mr Davidson]'s 'outbursts' and property damage, reporting this happened when the children were at their fathers. States CPS recently closed.
[Mr Davidson] reports he has been through a lot in his life and dealt with this by drinking alcohol heavily since the age of 17 y/o. States he was drinking 2L of spirits daily. States he would wake in the middle of the night 'skull 6 cans' and go back to sleep. States he has an afterpay debt of 3k for alcohol. States last year he had a workplace accident- [labourer], this resulted in ligament damage in his wrist. States he was prescribed OxyContin and got 'hooked'. States he was drinking alcohol and taking OxyContin for over 12/12, ceased 2-3/52 ago. States he smashed up his house and could not remember it, states Police were involved and this motivated him to cease substances. States he has THC prescribed by on line doctor for pain, 15 grams every 8/7. During review, [Mr Davidson] reporting he was stoned. [Ms Betts] reports he went 'loopy' when he had a strain named […], has not had since. States yesterday he woke up and smoked THC all day, reporting he was laughing and having fun.
States he has AOD worker through [B Group] and he home visits him. States he has been diagnosed with ADHD however unable to take stimulant medication due to his heart conditions. States he has heart failure and is on medication, sees cardiologist [Ms EE]. Reports he was linked with psychotherapist [Mr FF] in 2020-22, states he felt [Mr Davidson] had ASD traits. [Mr Davidson] reports they 'chatted' unable to elaborate further, states he felt this was beneficial and open to re linking with psychologist, states he has current GP MHCP. States his sleep is poor and unable to sleep unless he uses THC. Reports he has had a difficult childhood and life, reporting his parents were physically abusive. States he has two younger brothers however nil contact with them, reports he asked his parents for help however they declined. States he is not currently taking any medication however would like to see a psychiatrist to explore this. Reports chronic SI, denied current plan or intent. Identifying his children and [Ms Betts]’ as strong protective factors, 'they don't deserve that, couldn't do it to them'. States when he feels suicidal he smokes THC to distract himself.
At this time, the Father asserts that he had ceased drinking some two to three weeks ago. The account given also refers to the Father being “loopy” when he consumed, I infer, a strain of medicinal cannabis called “[…]”. The account given on 31 January 2024 is consistent with a man struggling with his mental health but seeking support for it. Of significance is that the Father was described as “mood: stoned, reactive effect.” He reported hearing a sound or voice inside his head and was unable to hear what it is saying. To the Father’s credit he was regarded as having fair insight and seeking help. In cross-examination, the Father denied that he has ever heard voices but rather this is a memory of his abusers from during his childhood and later teenage years and twenties shouting at him as they abused him.
The account or history given at that time includes that the Father had been prescribed OxyContin for a workplace injury and on his own account had become “hooked”. It also refers to the Father as follows, “states when he feels suicidal he smokes THC to distract himself”. It also refers to the chainsaw and attempt to cut up a chair incident, and recited that at that time, in the reviewing medical officer’s opinion, “[the father] minimising this”.
About a month later, exhibit F16 demonstrates that the Father saw his current drug and alcohol counsellor, Mr K. The therapy was reported as being to assist him maintain abstinence from alcohol and clearly was regarded by the counsellor as demonstrating the Father’s commitment to his recovery journey. The therapy covered matters including the following:
Abstinence from Alcohol: [MRD] has maintained his abstinence from alcohol (ETOH), demonstrating commitment to his recovery journey.
Parental interaction: Discussions were held on the potential for future interaction with [MRD] ’s children, highlighted the rejection of negotiating with the mother and the harm this is doing to [MRD] as a trigger to drink.
Strategies for Emotional Regulation: Strategies were discussed on managing triggers and the importance of emotional regulation when dealing with external influences, emphasizing [MRD]’s commitment to prioritize his health and mental wellbeing.
Purpose and Passion: [MRD] expressed a desire to related purpose and passion in his life as a way to combat urges and desires to drink by redirecting that energy into something constructive.
Sleeo Hygiene: The writer encouraged the use of breathing and grounding techniques before bed to improve sleep quality and not be reliant on THC to get sleep, emphasizing the importance of sleep hygiene in [MRD]’s recovery journey.
It is also clear that not long after this, for X’s birthday in 2024, the Father organised the sending of a card in his handwriting to X. He explained in cross-examination, and I accept, he was able to do so because his mother had copied out for him what he was to write as he intended.
Father files notice of discontinuance
By April 2024, the Father had still not been able to see the children at the court-ordered supervised facility. On 15 April 2024, the Father filed a notice of discontinuance in regard to his initiating application filed back in March 2023. He then ceased to be represented by his then-lawyers who filed a notice of ceasing to act on 19 April 2024. Orders made on 19 April 2024 noted the Father’s discontinuance, but stated the filing of a notice of discontinuance by the Father does not discontinue the proceedings in their entirety and the Mother and the ICL were entitled to proceed on their respective applications – the Mother’s application at that time being to change the children’s name as well as to obtain passports for overseas travel. The orders also noted that the Father should be on notice of those matters.
Change of mind
Soon after, the Father changed his mind about discontinuing. He was unrepresented at this time and continued unrepresented until shortly before the trial before me in 2025. On 28 June 2024, orders were made by consent giving the Father leave to withdraw that notice of discontinuance and the proceedings progressed.
Father again consumes alcohol
Around about that time, that is Easter of 2024, a curious event occurred in regard to the Mother’s bank account. Back in 2020, the Mother had purchased a PlayStation for one of the children. The Father placed his personal details on the PlayStation account, however used the Mother’s bank details. Over Easter of 2024 (this being after the oft-repeated date of 24 December 2023), unknown purchases were made, that is purchases unknown to the Mother, for alcohol. Those purchases were made in the area where the Mother and the Father live and debited from the Mother’s bank account.
The funds were not that substantial, but they were troubling to the Mother and further indicated a continuing consumption of alcohol by the Father. I am satisfied, and infer, that it was the Father who purchased that alcohol, causing it to be debited from the Mother’s credit card.
On 5 June 2024, the Father again attended on his drug and alcohol counsellor, Mr K. I am satisfied that the Father has regularly and diligently attended upon Mr K. He attends personally in one fortnight, and in the alternate week attends by telephone. The Father reported to Mr K on the consultation of 5 June that he had consumed alcohol. In cross-examination evidence to me, he accounted how it was merely a sip or two or three and that he had immediately felt ill from the consumption of alcohol and ashamed. I am satisfied that the Father did consume alcohol shortly before consulting Mr K on or about the middle of 2024. It is very much to the credit of the Father that he reported that consumption of alcohol, and that is consistent with his determination to rid himself of the curse of alcohol addiction. However, it entirely contradicts the often-made statement by the Father that he had not consumed any alcohol whatsoever after 24 December 2023.
Mid 2024: increasing use of medicinal cannabis
Not long after, the Father, as described in exhibit F18, again attended Mr K. Unsurprisingly, the Father was unhappy about the progress of his matter in the family court and lack of progress at mediation. In that therapy, the Father and counsellor reflected on the Father’s current emotional state and behaviour, and unsurprisingly, the Father exhibited frustration and distress. However, a great bulk of the notes of the consultation refer to the increased use of medical cannabis and the clear advice of the therapist against this increased use of cannabis, even medicated or medicinal cannabis. Hence, in the middle of 2024, the Father’s increasing use of medicinal cannabis was an issue for him.
Father’s further involvement with mental health services & alcohol
On 11 September 2024, the Father was again referred by his GP for mental health services.
Reason for patient referral:
38 year old Aboriginal male with complex PTSD, major depression and substance use disorder Has previously been reviewed by [City DD] community MH team, and was referred back to [B Group] for psychology. [Mr Davidson] has experienced a significant worsening in his symptoms and distress level, with suicidal ideation. Please review to provide medication support to manage severity of symptoms. [Mr Davidson]'s physical health has been significantly impacted by his mental health and substance use, including the development of heart failure due to alcohol and stimulant use.
(emphasis added)
The Father asserts that he could not recall the matters contained therein and ultimately expressed to the cross-examiner that he thought that the cross-examiner had the dates mixed up.
The Father’s response to what is reported in those notes was a mixture of he could not recall, or he had no idea, or it was untrue, or the dates were mixed up.
The history taken on this account is significantly corroborative of the distress and tragedy of the Father’s significant childhood abuse and the impact upon him, including being unable to sleep and the consequent further distress that that causes. However, at this time, that is September of 2024, the history given continues to refer to thoughts of suicide. Ultimately, the Father asserted in cross-examination that he was feeling a bit down and a bit depressed.
That history in September of 2024 refers to the Father having seven drinks, three days a week. The Father denies that that is a history given by him at that time. In the circumstances where the Father’s case did not call any medical witness, including the referring GP on this occasion, I am unable to rebut the obvious inference from the written material in exhibit F5, that that was an account of the Father’s current state. I am alert to the possibility that the computer records for the Father’s health have picked up an old or ancient account, but on balance I am unable to find so, and I am satisfied that at that day that was the history given.
12 September 2024: notes denied
The following day, the Father consulted C Medical Centre Mental Health Drug and Alcohol Service and the notes are contained in F6. I am satisfied that the Father’s attendance at this time reflects well on his determination and diligence in dealing with his childhood abuse and his then current thoughts of self-harm and his problem with alcohol. However, the history given also refers to an increase in cutting, thoughts of suicide, disassociation, and possible commencement of “quetiapine” which, I am satisfied, is likely to be an antipsychotic medication. When cross-examined about this, the Father’s response was that the dates were years out and the events referred to therein had happened years before, “not now”. Further, in response to some of the matters reported in those notes, the Father bluntly stated that he had not made those statements to the medical providers. I am satisfied that exhibit F6 accurately records the Father’s account of his circumstances as stated by him.
September 2024: not relevant
Not long after, in September 2024, the Father attended the hospital emergency department, and I am satisfied, at 2:45 in the morning. There was an injury, self-inflicted by the Father with a needle. When cross-examined, the Father gave a coherent and plausible and entirely innocent explanation. In the end, I am not satisfied that the event of September 2024 is significantly relevant to the issues of the Father’s drug and alcohol abuse or his mental health.
15 October 2024: notes denied
Not long after that, on 15 October 2024, the Father attended upon a Ms GG for psychological support. I am satisfied that the medical notes in exhibit F4 accurately report the history given by the Father at that time. Again, the fact that the Father attended for psychological support at this time is very much to his credit. The difficulty for the Father’s case is that he entirely denies, or largely denies, the matters that are reported in those medical notes. The history given includes auditory hallucinations, being the derogatory voices of past abusers. The Father’s insistent evidence in cross-examination was that these were not hallucinations but rather memories of his past trauma and part of his post-traumatic stress disorder. The clear medical records described the Father as experiencing disassociation and what the consultant described as “hearing of voices”.
The account given in the medical notes show that these events were, unsurprisingly, of considerable trouble to the Father. Again, I repeat it is to his credit that he sought support and help at this difficult time.
I am satisfied that the attendance notes (exhibit F4) will have accurately, or accurately enough, reported what the Father was expressing at that time. It is unnecessary to recite the notes beyond the summary just given.
The Father’s consistent evidence in cross-examination was dismissive of the matters reported in that attendance. The dismissing comments ranged from, “I don't know”, “no idea”, “that's very interesting but I don't recall”, and also had significant shaking of his head in the witness box. The effect of the Father’s evidence when cross-examined was that he was entirely dismissive of the matters that had been recorded as being expressed by him on 25 October 24.
On 14 November 2024, the Father undertook a hair follicle test, and in regard to cannabis that was positive, but otherwise negative for drugs of abuse, and that test was negative for alcohol.
2025
Over then into the current year. It is clear from exhibit F19 that the Father had attended upon Ms GG again on 21 February 2025. I draw the inference that the Father was regularly attending Ms GG and, at times, was attending fortnightly. The Father, again, was quite frank and clear in his assertion of problems to Ms GG, and again, that is very much to his credit that he seeks assistance from professionals when needed, or at least he has at these times. The account described the Father as having racing thoughts of crazy things, auditory hallucinations and extreme thoughts, and that he had been overstimulated and manic. The Father was dismissive of the matters that were reported of him having reported to Ms GG on that occasion. It needs to be also noted that the distressing events for most people of the unsuccessful, or largely unsuccessful, attempts at supervised time over late 2024 and early 2025 were happening more or less at the same time.
The difficulty for the Father’s case is his dismissal of his own medical records as indicative of any events.
SECTION 60CC
I now turn to the application of those events to the law. In regard to section 60CC, there is no question that the matter should proceed on the best interests of the children. Were it merely a matter of the best interests of the Father, the outcome would be different. I am troubled about the impact on the Father of him being unsuccessful in this long-maintained application.
What arrangements would promote the safety of the child
I must consider the issue of the safety of the children and any person concerned with their welfare. In the circumstances of this case, where I do not have any medical report as to the Father’s mental health difficulties or prognosis, and I do not have any report about his progress in his drug and alcohol counselling journey, I have real concerns about the Father’s mental health and the impact of that upon his behaviour, were he to spend time with the children, and particularly, spend time with the children unsupervised.
I must consider what arrangements would promote the safety, including the safety from being subjected to family violence, abuse or neglect of harm of the children and the Mother. In this case, in the circumstances of a fragility as to the Father’s mental health and a lack of reliable evidence with a positive prognosis, there is a considerable risk to the safety of the children. I am unable on the evidence to discern what arrangements would promote the safety of the children in an unsupervised spend time setting.
That is informed by the Father’s lack of expressed remorse for the bulk of his behaviour and his circumstance where despite having been ordered twice in 2023 by different courts to undertake a Men’s Behavioural Change Program, that has not yet occurred. Having observed the Father in the witness box for some time, and having made findings about the extent of family violence, I am satisfied that the Father is a person who would very much benefit from undertaking such a course. It is a tragedy that he has not already done so. His attitude to family violence in his own history might be different were he to undertake such a course. In any event, such a course is not a magic cure or magic wand, but it would be a significant step on the Father’s journey.
Any views expressed by the children
I must take into account any views expressed by the children. I only place a little weight on the views expressed by the children in the circumstances where they would (other things being equal, or normal, or not too severe) like to have a relationship with the Father.
I am satisfied that the children have not been “coached” to express the views that they do not wish to see the Father. However, they are inevitably still affected by their own experiences within the home. They are inevitably affected by their Mother’s attitude and sensible caution in seeing their Father in an unsupervised setting.
Further, it emerged in cross-examination that the children and the Mother had been involved in sensible counselling over many months in regard to dealing with or processing the trauma of what they had all been exposed to. That counselling involved each of the children and the Mother all having a “safe word” and knowledge of each other’s “safe word.” That process[11] inevitably exposes the children to their Mother’s attitude to their safety when seeing the Father. That the children are influenced by that exposure is entirely ordinary and indeed inevitable, but it is not coaching.
[11] The evidence does not include any reference to the Father ever being informed of that process and I infer from that he learned of it from the Mothers cross examination during the trial.
In this case, I am not satisfied that significant weight should be placed on the views of the children because the extent of their safety and welfare is a matter too serious to be determined by the children’s wishes. That is a matter that should be determined by adult decisions, and in this case, I am satisfied[12] their Mother’s decisions and care for them will ensure the appropriate decision for the children.
[12] I am so satisfied because of the Mother’s cautions but not a dogmatic attitude to the children’s spending time with the Father displayed in the witness box and in the family report.
The developmental, psychological, emotional and cultural needs
I must consider the emotional, psychological, developmental and cultural needs of the children. The major developmental, psychological and emotional needs the children have is to live in a safe and peaceful environment without exposure to family violence. The cultural needs of the children include exposure to their Father’s Aboriginal heritage and culture. I will deal with that separately in regard to section 60CC(3). In any event, and very much to the credit of the Mother, she has involved the children in local Aboriginal community events, and thanks to the parenting of both of the parents, but significantly the Mother (who is not Aboriginal), after separation, the children are lucky enough to identify as Aboriginal.
Capacity to provide for developmental, psychological, emotional and cultural needs
I must consider the capacity of each parent who is proposed to have responsibility for the child to provide for their development, psychological, emotional, and cultural needs.
I expect, but I am unable to make a finding in the circumstances, that were the Father’s mental health to be in good order, adequately treated, and likely to continue to be adequately treated and that he were free of the problems of drug and or alcohol addiction, that he may well then have the capacity to care for the children. However, I am unable to make that finding in the circumstances of the significant evidence of family violence and the Father’s denial of it and the lack of solid evidence from treating medical health practitioners or drug and alcohol counsellors.
Benefit of a relationship with the children’s parents & other (significant) people (if) safe
I must consider the benefit to the children of having a relationship with their parents where it is safe to do so. I am satisfied it is in their interests to have a relationship with and be cared for by their Mother. In the circumstances that I have discussed above, I am not satisfied that at this time, on the stage of the journey that the Father is on, and in the circumstances of the evidence that I have and that I do not have, that it is in the children’s interests to have a relationship with the Father.
I am so satisfied, or not satisfied, that it is to their benefit, partly because I am not satisfied that it is safe to do so. In terms of the issue of safe from what? I take into account the events that I have recited above of the various matters the Father has been involved in with Ms U and the Mother, and the uncertainty of just what might happen next. I take into account the history of family violence that I have recorded above, and in this case, I place some weight on the family violence orders that have been made.
Right to enjoy Aboriginal or Torres Strait Islander culture
For the purposes of section 60CC(3), I must deal with the children’s right to enjoy their Aboriginal culture and to have the support, opportunity, and encouragement necessary to connect with and maintain their connection with members of their family, their community, culture, country and language.
The Father is on a journey of discovering and enhancing his own knowledge of his culture and, if I can use the term, Aboriginality. He asserts that his mother was, or is a member, of the stolen generation, having been removed from her parents. The circumstance of how difficult that would have been for his mother, and although I do not have any evidence of it, the likely impact upon her of that tragedy and the impact upon her parenting of the Father is something that I do not dismiss. I accept that, all other things being equal, it would be very much preferable for the children to maintain their connection, or increase their connection, to the Father’s Aboriginal culture. That is, were he able to be involved in their lives and it was safe to do so. I place some weight on the Mother’s efforts to keep the children connected to their culture. However, that is not a sufficient substitute for connection with their father and their father’s family.
However, in this tragic case, I am not satisfied in the children’s interest at this time to have a relationship with their father despite the importance of their Aboriginality and, significantly, because of the risk to their safety.
CONCLUSION
The Father behaved well and coped with the supervised time, limited as it was, in very difficult circumstances. There are many good things about the Father as a person. In particular, his demonstrated confidence, his resilience, and his charming personality demonstrated at times in person in cross-examination. Also, he has the support of a drug and alcohol counsellor and the support of his partner, Ms U. He has the clear and resolute determination to avoid alcohol.
I take into account the further hair follicle test that was provided to me this day, as I had indicated could be on the last day of hearing. That test, on 14 November 2024, demonstrated the Father being clear of illicit drugs and alcohol abuse.
In this case, it is not clear that there is a further facility available for supervised time.
I am satisfied that a result of his childhood abuse and likely, or possibly, abuse in his late teens or twenties, his serious drug abuse, and his heavy alcohol consumption in the past that the Father actually has significant mental health difficulties, and I find so despite his firm and consistent denials. The Father was ordered by this Court and the Magistrates’ Court to undertake a Men’s Behavioural Change Program and has not done so. The Father continues to blame the Mother and others for all of his problems.
I am unable in those circumstances to see a clear path to unsupervised time. Hence, I conclude in all of those circumstances, and with great sadness, that it is not in the children’s interests that there be any court-ordered time at this time. I had considered whether there should be letters, cards and presents and the Mother did not strongly oppose that, though this was opposed strongly by the ICL. There is no mechanism proposed that, consistent with the existing family violence intervention order, would facilitate that.
I accept the Mother’s evidence of her attempts to reach out to Father’s mother and to arrange some time between her and the children. Life would be very difficult for the Father’s mother in the circumstances where she is allowed to see the children, but her son is not. That may well be an entirely satisfactory reason for why she has refrained from exercising opportunities to see the children. But it is clear on the Mother’s evidence that she and the Father’s mother, the children’s paternal grandmother, are on reasonable communicative terms.
I am satisfied that the responsibility of communication about letters, cards and presents from the Father to the Mother is a matter that can be left to the Mother’s sensible decisions, and if appropriate, arranged as between her and the Father’s mother.
Section 114AB
This day, the Mother’s counsel submitted to me that the matter referred to in section 114AB referred to the matters that were an issue prior to the last intervention order application and that events occurring after that would not come within the definition of “matter” and, hence, the injunction as pressed pursuant to section 68B or section 114 would not be prohibited by that provision of the Act. The matters of relevance to the intervention order proceedings and the need for personal protection orders are in this case, in my view, completely intermingled and the issue of the children and the Mother needing protection from the Father is the same matter, notwithstanding that there are different events and aspects of it.
Hence, for those reasons, I am satisfied that section 114AB effectively prohibits the application and hence the making of an order pursuant to section 68B. One irony is, had the order under the Act been made first in time, there would be no problem with an intervention order being made over the top of, or alongside, such a Family Law Act order. This provision of section 114AB can be simply understood as the get in first” provision.
The Father sought the imposition on the Mother of an obligation to consult with him in regard to long-term decisions. I am not satisfied that should be made simply because of the nature of the poor relationship between the parents and there being no practical route to communication between them. However, I am satisfied that the Mother should keep the Father informed of serious illness or injury to the children and any developments relating there to. I otherwise do not accept the Father’s case that he should be consulted before such decisions are made.
In any event, I am not aware of what significant decisions will have to be made other than medical treatment, psychological counselling and, in due course, choice of secondary schools.
Slightly different orders than proposed
I have made slightly different orders in parts to those proposed by the Mother and the ICL, save that I have not made an order that there be no time. An order for no time prohibits the Mother from allowing any time between the Father and the children, even if in her judgment the Father’s mental health and drug therapy had progressed, and she was satisfied of a change in his attitude and safety, and she agreed with it. She would have to return to court to change an order. I am not satisfied that is in the children’s best interest. I am satisfied that the Mother is an entirely sensible person to have that responsibility and that she would exercise it appropriately.
Hence, for that reason, rather than the order for no time or an order that there be no time between the Father and the children as pressed by counsel for the Mother and the ICL, I am satisfied that any time in the future should be as determined by the Mother and on conditions as decided by her.
Otherwise, the orders in regard to the name change will be expressed to be in terms of in personam orders rather than declaring a state of affairs.
They are my reasons.
I certify that the preceding one hundred and forty-two (142) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 4 July 2025
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