Ditlevsen & Senghor - [2023] FedCFamC1F 1114

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ditlevsen & Senghor [2023] FedCFamC1F 1114

File number(s): ADC 3682 of 2021

Judgment of: KARI J

Date of judgment: 21 December 2023

Catchwords:
FAMILY LAW - CHILDREN – With whom a child spends time – Where the child currently lives with the mother and spends no time with the father – Where there is no relationship between the father and the child due to the father’s incarceration – Where the mother has provided the primary care for the majority of the child’s life – Where both parents seek that the child remain living with the mother - Where the mother asserts the father poses an unacceptable risk to the child – Where there are allegations of family violence – Where there are serious allegations of sexual abuse by the father involving vulnerable persons – Where the father did not meaningfully respond to the allegations raised – Where the evidence supports a finding that certain allegations are made out on the balance of probabilities – Where court is satisfied the father presents an unacceptable risk of harm - Where it is not in the child’s best interest to spend any time with the father - Orders for the child to live with the mother and spend no time with the father

FAMILY LAW – CHILDREN – Parental Responsibility – Where the mother has been the sole decision maker for the child – Where there are allegations of family violence and inappropriate sexual behaviour – The presumption of equal shared parental responsibility is rebutted – Orders for the mother to have sole parental responsibility for the child

FAMILY LAW – CHILDREN – Injunctions – Where the mother seeks injunctions restraining the father from coming into contact with herself, the child or the mother’s adult children – Where it is appropriate to make the injunctions sought by the mother – Orders for injunctions made as sought by the mother

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 61DA, 69ZT, 102NA

Jury Act 1977 (NSW) s 73A

Cases cited:
Browne & Dunn [1894] 173 ER 181

Deiter & Deiter [2011] FamCAFC 82

Isles & Nelissen (2022) FLC 94-042

Mulvaney & Lane (2009) FLC 93-404

Jones v Dunkel (1959) 101 CLR 298

Logan & Logan (2013) FLC 93-555

M v M (1988) 166 CLR 69

Zaccardi v Caunt [2008] NSWCA 202

Division: Division 1 First Instance

Number of paragraphs: 166

Date of hearing: 15 May 2023 – 23 May 2023

Place: Adelaide

Counsel for the Applicant: Mr Roberts

Solicitor for the Applicant: Doyle Kingston & Swift

Counsel for the Respondent: Mr Tredrea

Solicitor for the Respondent: Kate Chisholm Family Lawyer

Counsel for the Independent Children's Lawyer: Ms Tabbernor

Solicitor for the Independent Children's Lawyer: Osborne Legal
ORDERS

ADC 3682 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR DITLEVSEN

Applicant

AND:
MS SENGHOR

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

KARI J

DATE OF ORDER:

21 DECEMBER 2023

THE COURT ORDERS:
1.That the mother do have sole parental responsibility for the child X born 2016 (“the child”).
2.That the child live with the mother.
3.That the child spend no time with the father.
4.That the father be restrained and an injunction is granted restraining the father from:
(a)Approaching, contacting and/or communicating with (either directly or indirectly) with the mother, the child, Ms C and/or Mr B; and
(b)Approaching contacting and/or communicating with the child’s school and/or the mother’s place of work.

5.That save and except as to any appeal, the appointment of the Independent Children’s Lawyer be discharged.
6.That the proceedings otherwise be dismissed as finalised.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Ditlevsen & Senghor has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J
INTRODUCTION

These are parenting proceedings in relation to the child X born 2016, who at the time of trial was 7 years of age.
The dispute between the parents is polarised. The mother’s position is that she have sole parental responsibility for X and that there be no time spending or communication between X and the father. Whereas the father promotes that he both share parental responsibility with the mother and that there be time spending between the father and X for two weekend periods during each school term, for one week in each of the short school holidays and for two weeks in the longer Christmas school holidays.
An Independent Children’s Lawyer (“ICL”) has been appointed to represent X’s interests. The ICL supports and promotes the orders agitated by the mother.
It is an agreed fact between the parents that, for all intents and purposes, X does not have any relationship with his father. This has come about as a consequence of the father being incarcerated from 2016 until 2019. The last time X spent any time with the father was in approximately the middle of 2017 and the last time he communicated with the father was in approximately the middle of 2019. X was less than one year old when the father was incarcerated, he was one year old when he last saw the father and he was three years old when he last communicated with the father.
The reason for the father’s incarceration is understood. In 2016 the father was convicted of a charge of sexual offence involving a vulnerable persons. As a result of that conviction, the father’s bail was withdrawn and he was remanded in custody until he was sentenced to a period of incarceration with a non-parole period in 2019.[1] The father served the entire non-parole period of that sentence and was released on bail in 2019.
[1] See ‘Exhibit F3’.
It is also understood that the father was successful in appealing that conviction in 2019 and that he was ultimately acquitted at a fresh trial in relation to that offence in 2020.[2]
[2] See ‘Exhibit F4’.
Across the same period, it is also understood that the father additionally faced separate charges of a historic sexual abuse nature in relation to family members. The father was acquitted in relation to the charges relating to each family member.
These facts together with additional matters discussed throughout these reasons, lead the mother and the ICL to advance the case that the father presents an unacceptable risk of harm to X.
Conversely, the father denies all of the offences for which he was charged. The father asserts that in those circumstances he presents no risk to X whatsoever. He rests this assertion upon a foundation of having been acquitted of all charges which he has faced.
For the reasons that follow, the court is satisfied that it would not be in X’s best interests for there to be any time spending between the father and X.
BACKGROUND
The mother at the time of trial was 43 years of age, having been born in 1979.
The father at the time of trial was 42 years of age, having been born in 1980.
The parties lived together in a de facto relationship between 2013 and the father’s incarceration in 2016. The parties however remained in a relationship until approximately mid-2017 on the mother’s case and late 2017 on the father’s case.
The parties’ child, X, was born in 2016.
The mother has been married previously and she has two children from that relationship, Mr B born 2001 (aged 21 at the time of trial) and Ms C born 2003 (aged 19 at the time of trial). Both of the mother’s adult children resided with the parties during their de facto relationship.
For the duration of their cohabitation the parties resided in Town D. After the father’s incarceration the mother remained living in Town D with X and her two older children until relocating with X to Town E in South Australia with the imprimatur of the court in late 2021.
Some six months into the parties’ de facto relationship, and in 2014 the father was charged with a series of offences as follows:
(a)Sexual offences involving a vulnerable person; The victim of these charges was a man by the name of Mr F.[3]
(b)A sexual offence in relation to his underage family member, Ms G.
(c)Sexual offences in relation to his underage family member, Mr H.
(d)A sexual offence in relation to his underage family member, Mr J.
[3] ‘Exhibit F3’, p. 1.
In relation to the charges relating to each of the father’s family members, not guilty verdicts were entered as follows:
(a)The charges in relation to Ms G were finalised in 2016, however a 12 month ADVO was also made protecting Ms G from the father;
(b)The charges in relation to each Mr H and Mr J were heard together and finalised in 2017.[4]
[4] See ‘Exhibit F1’.
In relation to the charges relating to Mr F, from a perusal of the reasons in the various proceedings,[5] it is understood:
[5] See ‘Exhibit F2’, ‘Exhibit F3’, ‘Exhibit F4’.
(a)The trial proceeded before a jury with a jury returning a guilty verdict in 2016 in relation to an alternate charge.
(b)On the return of the guilty verdict, the father’s bail was revoked, and he was immediately incarcerated pending sentencing.
(c)In 2017 the father was sentenced to a period in prison with a non-parole period backdated to commence in 2016 and concluding in 2019.
(d)The father lodged a Notice of Intention to Appeal against conviction in 2017.
(e)In 2018 a Notice of Motion was brought before the trial judge seeking orders pursuant to s 73A of the Jury Act 1977 (NSW) (“the Jury Act”), “that the District Court request the Sheriff of NSW to investigate certain aspects of the jury verdict delivered in the trial”.[6] That application was refused and referred to the Supreme Court of New South Wales - Court of Criminal Appeal (“NSW Court of Criminal Appeal”).
(f)In 2019 the father filed a Notice of Motion in the NSW Court of Criminal Appeal, in which he sought a similar order for an investigation under the Jury Act as to whether “the jury’s verdict in the… trial… may have been affected due to the improper conduct of any member(s) of the jury”.[7]
(g)In 2019 the NSW Court of Criminal Appeal ordered an investigation. The father made two separate complaints. The first complaint had two aspects; firstly that one of the jurors was related through marriage to a person who had been the complainant in relation to a sexual offence charge dismissed in mid-2016 (presumably Ms G). Additionally, that this same juror had published a Facebook post the night before the guilty verdict was handed down that included the words “When a dog attacks a child it is put down. Shouldn’t we do the same with sex predators?”.[8] Those words were accompanied by a picture. The second complaint was that another juror was a regular acquaintance of one of the Crown witnesses. Significantly this witness was central to the Crown’s case as they had been the only witness to provide identification evidence of the father.
(h)The father served his entire non-parole period and was released on bail in 2019, to live with his parents in Town D.
(i)While the father was released on bail, his appeal against conviction was heard. This appeal was successful, with the court granting the appeal in 2019 and ordering a retrial. The success of the appeal was directly referrable to the juror irregularities raised by the father which led to a conclusion that the trial had miscarried.
(j)The father was re-tried in 2020 by Judge alone.
(k)In mid-2020 the father was acquitted in relation to all charges relating to Mr F.[9]
[6] ‘Exhibit F4’, paragraph 6.
[7] ‘Exhibit F4’, paragraph 11.
[8] ‘Exhibit F4’, paragraph 13.
[9] See ‘Exhibit F2’.
It is the mother’s case that she was the victim of family violence perpetrated by the father, in the form of coercive and controlling behaviour, the isolation of her from her family and friends, sexually abusive behaviour, derogatory taunts and financial pressure.
In addition, the mother asserts that after the father was incarcerated her child Mr B informed her that the father had been verbally and physically abusive towards him.
Against this background the mother additionally alleges that the father was not open and forthcoming with her in relation to the criminal charges that he was facing. While the mother acknowledges initially supporting the father in his defence of the various allegations (in particular those pertaining to Mr F), she asserts that she ultimately “formed the belief” that the father was “guilty of the crimes that he had been accused and convicted of”.[10] The mother asserts that as a consequence of forming this view about the father, she informed the father on numerous occasions between mid and late 2017 that she regarded the relationship as “over”.[11]
[10] Mother’s affidavit filed 1 May 2023, paragraph 31.
[11] Mother’s affidavit filed 1 May 2023, paragraph 32.
After the father’s incarceration the following facts appear to be agreed:
(a)The mother continued to visit the father in prison, taking X with her on occasions until approximately the middle of 2017. This is the last time that the X saw and/or spent any time with the father.
(b)Despite the parents’ separation, between at least the middle of 2017 and the middle of 2019 the mother continued to facilitate visits between X and the paternal grandparents. These visits in turn resulted in the paternal grandparents facilitating telephone communication between X and the father. There has been no time spending between X and the paternal grandparents since the middle of 2019 when those visits came to an end. As a consequence, X has not communicated with the father whatsoever since that time.
The mother commenced a relationship with Mr K in early 2019, with the couple commencing cohabitation together in mid-2019, and becoming engaged in 2020.
THESE PROCEEDINGS
These proceedings were commenced by the father in the Federal Circuit Court of Australia (as it then was) when he filed his Initiating Application on 10 August 2020.
At the first hearing in the matter on 2 November 2020 a range of information gathering orders were made, and significantly an order was made appointing an ICL.
On 17 March 2021 an order was made for the preparation of a family report by a Court Child Expert. That report was ultimately completed and is dated 30 June 2021. The recommendations of the expert were for:
•[X] [to] live with the mother under her sole parental responsibility.
•The mother be able to relocate with [X].
•[X] be informed of his relationship with [the father].
•[The father] travel to [X’s] local area during school holidays to spend up to one day with [X], supervised by step-father [Mr K].
•Time spending to be as per [X’s] wishes once he reaches the age of 12 years.[12]
[12] Family Report dated 30 June 2021, p. 24.
On 13 July 2021 a Federal Circuit Court judge heard argument in relation to the interim orders set out in the mother’s Response filed 21 December 2020 in which she sought the court’s permission to relocate with X from Town D, in New South Wales, to the Town E area in South Australia. Judgment was delivered on 16 August 2021 (unreported) with parenting orders made in the following terms:
1.The child [X] born […] 2016 live with the mother.
2.The mother have liberty to move with the child to the township of [Town E] during the third term school holidays such that the child will commence school at [Town E] in the fourth term.
3.There be liberty to the father to relist this matter for directions and listing for argument in respect of the father’s time.
4.The mother within fourteen (14) days of moving to [Town E] provide the father by email to his nominated email address, details of her current address, and contact email address.
5.The mother shall provide to the father by his nominated email address copies of all school reports and any relevant medical reports within seven (7) days of receiving the same.
6.The proceedings otherwise be adjourned to 10 November 2021 at 9.30am for directions in [Town D].
It was a matter of some controversy during the trial whether or not the father had pursued any time spending with X at that hearing. While I do not have the benefit of the transcript of that hearing, from my perspective any plain reading of Order 3 would suggest that did not occur. Moreover, should that be in doubt, the reasons of the primary judge put that dispute beyond doubt as the following is recorded:
21The father, shortly prior to the hearing abandoned his claim to shared care. His submissions in relation to the July hearing were directed solely to the issue of the mother’s application to move with the child to [Town E]. It did not press the issue of time with the child.
22Counsel for the mother submitted that this was the father abandoning the claim for time on an interim basis. The point was made by the father’s counsel that the matter was not listed for hearing on that issue. He may seek to argue that point at a later stage. The issue of greatest concern to him was the proposed move of the mother to another town.
23I accept the issue for determination at the hearing was the mother’s application to move with the child to [Town E].
24The father opposes the application.
Later in the reasons the primary judge also recorded:
71The father submits that the mother’s application to move with the child has everything to do with the lifestyle choice by her as opposed to anything to do with the welfare of the child. I do not accept for the reasons set out above that this is substantiated on the evidence currently before me. The father notes that the mother’s submissions are that no time should be awarded to the father until the evidence is tested in a final hearing.
72The father agreed to this on the basis that all issues remain for final hearing. It is on that basis that he had not pressed for time at this hearing in respect of the mother’s application to relocate with the child.
…
75I also accept the father may wish to pursue an order for time and I do not think his failure to do so at this hearing is fatal to that application.
The court record indicates that following this hearing, the father did not take up Order 3 made 16 August 2021, as he did not invite the court to hear any interlocutory application for time spending between himself and X between that date and the trial in May 2023.
On 27 August 2021 the proceedings were transferred to the Family Court of Australia (as it then was).
On 12 October 2021 the proceedings were referred to the pool of matters awaiting trial.
On 26 May 2022 the proceedings were listed for trial to commence on 6 March 2023. Additionally, an order was made stipulating that the provisions of s 102NA(2) of the Family Law Act 1975 (Cth) (“the Act”) would apply to the proceedings. Those provisions prevent the parties from personally cross examining the other of them at trial and require any such cross examination to be conducted by a legal practitioner.

On 22 November 2022 the proceedings were given a new trial date of 11 September 2023, with the possibility of an earlier trial listing to commence on 15 May 2023. Trial directions were otherwise made to ensure the trial could be heard in May 2023.
The matter came into my docket in February 2023 due to the ill health of the judge initially tasked with hearing the trial. Between February 2023 and the commencement of the trial on 15 May 2023, the proceedings came before me several times for case management and further directions to ensure that the trial was able to proceed. Significantly from my perspective, at no time during those hearings, nor any of the earlier hearings at which trial directions were made, was there any application made (particularly on the part of the father) pursuant to s 69ZT(3) of the Act that those provisions in the Evidence Act 1995 excluded by the operation of s 69ZT(1), should apply to these proceedings.
As recently discussed in Isles & Nelissen (2022) FLC 94-042 (“Isles & Nelissen”):
88.In parenting proceedings conducted under Pt VII of the Act, ordinarily, large tranches of the Evidence Act do not apply (s 69ZT(1)). In such circumstances, all evidence is admissible, provided it is relevant and has some probative value.
89.But a court exercising jurisdiction under Pt VII of the Act always has the option of ordering that one or more of the excluded provisions of the Evidence Act should apply if certain conditions are met (s 69ZT(3)). The court may do so pursuant to an application made by a party or of its own volition (s 69ZP).
90.In exercising the power under s 69ZT(3) of the Act, the court is permitted to apply one, some, or all of the excluded parts of the Evidence Act to one, some, or all of the issues in the proceedings (Maluka & Maluka (2011) FLC 93-464 at [121]–[123]).
91.It would be quite uncommon to make an order in such broad terms that all excluded parts of the Evidence Act apply to all issues in the proceedings. More commonly, a court would apply the provisions of Pts 3.2 to 3.8 of the Evidence Act, which deal with the admissibility of evidence, to one specific factual controversy which is likely to be pivotal – such as an allegation of child sexual abuse. The Full Court has pronounced that s 69ZT(3) will likely be invoked when one party seeks a positive finding of criminal conduct (Amador v Amador (2010) 43 Fam LR 268 at [93]), which was the case at hand, since the mother and the child welfare agency both advocated for a positive finding that the father had sexually abused the eldest child.
92.The primary judge therefore determined well in advance of trial to invoke s 69ZT(3) and apply the rules of evidence in the parenting proceedings. As an aside, such an order is best made ahead of trial so the parties are able to prepare their trial affidavits in accordance with the applicable parts of the Evidence Act (Maluka & Maluka at [113]–[117]).
The father’s failure to make such an application in advance of the trial commencing, or at all, is a matter of some significance to which I shall return later in these reasons, given the way in which the father ultimately agitated his case at trial. This is because it resulted in various records and documents coming before the court which might not have otherwise been received.
THE LEGAL FRAMEWORK
Part VII of the Act is where the legislative provisions concerning parenting cases can be found. The purpose of the legislation is to provide a pathway for the court when making parenting orders. The central focus underpinning the legislation is to make parenting orders which are at all times in a child’s best interests.
A parenting order can encompass and deal with all aspects of a child’s care, welfare and development, or any aspect relating to the parental responsibility for a child.
The aims and principles underpinning the legislation
In making any parenting order the court must have regard to the aims of the legislation set out in s 60B(1), which provides as follows:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(Emphasis added)
The principles underpinning the aims of the legislation are contained in s 60B(2) which provides:
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(Emphasis added)
Best interest considerations
In determining what is in a child’s best interest, the court is to have regard to a long list of considerations set out in s 60CC of the Act. Those considerations are separated into primary considerations and secondary considerations.
The primary considerations to which the court is to give greater weight are:
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(Note omitted)
The additional considerations are:
(3)      Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)        each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)       either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)        each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)       the nature of the order;
(ii)       the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
That said however, as identified by the majority of the Full Court (May and Thackray JJ) in Mulvaney & Lane (2009) FLC 93-404:
76.It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
(Emphasis in original)
Parental responsibility
The Act provides a presumption that parents should have equal shared parental responsibility for their children. However, the presumption of equal shared parental responsibility is specifically rebutted if there are reasonable grounds to believe that a parent (or a person who lives with a parent) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence. [13]
[13] Family Law Act 1975 (Cth), s 61DA(2).
If the presumption of equal shared parental responsibility is to be applied, then the court is required to consider whether the child should spend equal time with each of their parents, provided that any such equal time arrangements are in the child’s best interest and are reasonably practicable.
If the presumption as to equal shared parental responsibility is rebutted, then the court is required to make orders that are in the child’s best interests with reference to those factors set out in s 60CC.
Family Violence
Family Violence is defined in s 4AB of the Act as follows:
(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.
(Emphasis in original)
The assessment of risk and unacceptable risk
As earlier identified, the mother’s case is that the father presents an “unacceptable risk of harm” towards X.
As identified by the Full Court in Deiter & Deiter [2011] FamCAFC 82 at [61] (‘Deiter’):
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
The topic of “unacceptable risk” has recently been carefully considered by the full bench of the Full Court in Isles & Nelissen. There the full court said:
83.Though both are evidence-based, the primary judge correctly approached the two separate questions without conflation: on the one hand, whether or not allegations of abuse are proven on the balance of probabilities; and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the frank allegations of abuse.
84.In this instance, the primary judge inferred the existence of an unacceptable risk of harm to the children from a combination of facts and circumstances, including: the elder child’s plausible but unproven allegations of sexual abuse by the father; the evidence of the father’s sexual interest in other adolescents; and evidence of the father’s interest in child exploitation material.
85.The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment (Edwards v Noble (1971) 125 CLR 296 at 304), though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result (Norbis v Norbis (1986) 161 CLR 513 at 518). The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.
86.We have already acknowledged how risks of harm are not susceptible of empirical proof, but a mathematical hypothetical will nevertheless illustrate how findings of “unacceptable risk” cannot be measured by the civil standard of proof. Imagine a child will be minded by one of three randomly allocated carers. Assume one of the carers would sexually abuse the child, but the other two would not, meaning the child stands a 33.33 per cent chance of being sexually abused if left in care. No sensible adult would take the risk of leaving the child in care because, even though the prospect of sexual abuse is only possible but not probable, the risk is still too high to tolerate. In other words, it is unacceptable. If parents (and courts) were to instead only react to risks which are probabilities then, in that example, the child would still be left in care unless shown he or she was susceptible to sexual abuse by two of the three carers and the risk was then rated at 66.66 per cent.
It is therefore clear that there are two stages involved in assessing unacceptable risk:
(a)Firstly, the fact-finding exercise relating to the allegations that have been made; and
(b)The assessment of the evidence and circumstances, including but not limited to any findings/lack of findings/inability to make findings.
However so far as the fact-finding aspect is concerned, as the High Court identified in M v M (1988) 166 CLR 69 (at 76-78):
But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence.
…
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw.
…
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A.), “an element of risk” or “an appreciable risk” (Marriage of M.), “a real possibility” (B. v. B. (Access)), a “real risk” (Leveque v. Leveque), and an “unacceptable risk”: In re G. (A minor)). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
(Citations omitted)
Standard of Proof

For the purposes of assessing the parties’ evidence, the burden of proof in civil proceedings such as these, is that found in s 140 of the Evidence Act 1995 (Cth); namely “the balance of probabilities”. That section provides:
(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.
THE APPROACH
The legislative pathway requires the court to determine the question of parental responsibility as a precursor to determining those orders that are in a child’s best interests.
The mother has asked the court to make an order that provides her with sole parental responsibility for X, whereas the father proposes that the parties share parental responsibility.
I accordingly propose to approach the matter with reference to the relevant legislative provisions and the evidence of the parties in the following manner:
(a)Firstly, to determine the question of parental responsibility. In particular giving consideration to whether there is a basis to depart from the presumption that the parties share parental responsibility for X.
(b)Secondly, with regard to the s 60CC considerations to determine those orders that are in X’s best interests.
THE EVIDENCE
Whilst the father was the applicant in the proceedings, at a hearing on 20 April 2023 the court reversed the order of the presentation of each party’s case, such that the mother became dux litus in the proceedings. This order was made largely because the father had not complied with the orders to file his trial material, but also to accommodate witnesses the mother wished to call and the fact that all of the allegations would be aired by the mother and her witnesses before the father gave his evidence; thus affording the father procedural fairness and the opportunity to put evidence before the court to meet the case against him and to respond to the allegations made against him.
Documents relied upon for the Final Hearing
The material filed and relied upon by the mother was as follows:
(a)Amended Response filed 16 November 2022;
(b)Mother’s Trial affidavit filed 1 May 2023;
(c)Affidavit of the mother’s fiancé Mr K filed 1 May 2023;
(d)Affidavit of the mother’s child Mr B filed 1 May 2023;
(e)Affidavit of the mother’s child Ms C filed 1 May 2023; and
(f)Affidavit of the father’s relative Mr H filed 3 May 2023.
The material filed and relied upon by the father was as follows:
(a)Amended Initiating Application filed 3 March 2023;
(b)Father’s Trial Affidavit filed 8 May 2023;
(c)Father’s affidavit filed 10 August 2020.
The court also had the benefit of the expert report prepared by Ms L dated 30 June 2021.
All of the witnesses gave oral evidence during the trial and were cross examined.
Presentation of the father’s case
From the outset some comment must be made about the manner in which the father presented his case. Of note, in his opening submissions the father’s counsel stressed that his client sought a finding that the father did not abuse any of the four alleged victims; Mr F, Ms G, Mr H and Mr J.
Curiously however, in his trial affidavit the father deposed very little about the allegations relating to the series of charges that he faced. The father’s evidence dealing with the various charges, was blunt and it was clear from the way his affidavit filed 8 May 2023 was crafted that the father did not wish to have any discourse about these allegations. To that end, other than to recount the procedural history of the charges, the father’s evidence was limited to the following:
59I will not comment on the matters raised between me and my solicitor, other than to say that I denied the criminal accusations at the time and that I have continued to deny them ever since.
Thereafter, and in relation to the one alleged victim who did give evidence in these proceedings, the father’s evidence was equally limited to responding to Mr H’s affidavit detailing the allegations of abuse in the following terms:
[MR H]
117I am unable to respond to the matters raised in this Affidavit.
118I denied the charges before [the] Judge […] in the District Court in 2017. I was found Not Guilty then. I deny the charges and accusations now and I can’t add anything more.
This was a somewhat surprising approach taken by the father, particularly in light of the comments made by Judge Cole when he delivered reasons on 16 August 2021 in the following terms:
44Counsel for the mother acknowledges that the father was found not guilty in respect of the various charges laid against him. Nevertheless, the point is strongly made that this jurisdiction when assessing the risk to the child will require the court to make a finding on the balance of probabilities. This is very different, it is submitted to establishing a matter beyond reasonable doubt as was required of the Crown in the charges faced by the father.
45It was made quite clear that the father would be extensively cross examined in respect of each circumstance that led to each criminal proceeding. The recommendations of the report writer were noted but by no means agreed with by the mother.
46The benefit of the child having a meaningful relationship in many ways is enmeshed in the consideration of the risk to the child of physical or psychological abuse or being exposed thereto.
47The Independent Children’s Lawyer refers me to the matter of Blinko & Blinko [2015] FamCAFC 146 where the Full Court notes when consideration is being given to an unacceptable risk of harm that is said to be present it needs to be evaluated against the prospect of it actually occurring, as against the protective measures that might be in place to ameliorate or minimise that risk to an acceptable level.
48       The mother’s argument is that there is an unacceptable risk of harm to [X].
49       The father, over the course of [X’s] life has been charged with:
(a)       [Sexual offence relating to an underage person];
(b)       [Sexual offence relating to a vulnerable person];
(c)[Sexual offences relating to an underage person]; and
(d)       [Sexual offence relating to an underage person].
50The father acknowledges the charges. He asserts however, that three separate local court Magistrates and one District Court Judge have acquitted him of the charges.
51Whilst the father’s strong submission that he has been found not guilty in respect of these matters must be acknowledged, the mother’s submission that the father’s evidence provides very little information about the criminal allegations, the court proceedings that have occurred, and the nature of the complaints made against him must be considered.
52The Independent Children’s Lawyer and the mother’s counsel say that there are a number of issues for [X] when considering this topic.
53       They include but are not limited to:
(a)The risk to the child of physical or psychological abuse considering the father’s history and the concerns in respect to his behaviour that warranted him having to face those charges;
(b)The effect on the primary carer, namely the mother, and having to remain with the child in a town where the father has been found not guilty in respect to criminal proceedings concerning four people all of whom were under the age of eighteen and three of whom were members of his extended family; and
(c)The effect on the child and his ability to interact with his peers when the father’s history is known [in the community].
54The issues that arise from the charges that were laid against the father are significant. They would, at best, support a highly conservative approach being taken in respect of any orders for the father to spend time with the child. Overlaying the considerations in respect of this is the fact that the father has not seen or spoken to the child since he was [one year old].
His Honour’s comments made then are equally applicable now. The difference however is that a trial, unlike an interlocutory hearing, is the opportunity for each of the parties’ cases and the evidence of their respective witnesses to be ventilated and tested. Or put differently, a trial is the opportunity for the court to assess the evidence and, where possible, make findings in order to assist in ultimately making orders that are in the child’s best interests.
As discussed later in these reasons, the mother’s position is that the court is in a position to make findings and that certain findings should be made. That aside, the mother also posits that the allegations made against the father are ones which regardless of whether findings are able to be made, must lead the court to conclude that the father presents an unacceptable risk of harm to X.
At the time of filing his trial affidavit, the father had all of the material the mother sought to rely on, and his trial affidavit filed 8 May 2023 was responsive to each of those affidavits. This is why it was all the more jarring that the father did not seek to engage whatsoever in the detailed allegations made against him that resulted in the charges for which he was tried; particularly those relating to Mr H, as he was on oath and a witness in these proceedings.
I am mindful of the rule in Browne & Dunn [1894] 173 ER 181 and the comments made by the Full Court in Logan & Logan (2013) FLC 93-555 (at [53]),[14] where the Full Court said:
…the rule in Browne & Dunn, that it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, does not apply where “the witness is on notice that the witness’s version of events is in contest”. Further … “[t]hat notice may come from the pleadings or the other side’s evidence or the other side’s opening; it may even come from the general manner in which the case is conducted”.
(Citations omitted)
[14] Citing LC v TC (1998) FLC 92-803 at [38] (Baker J).
Accordingly, here I am satisfied that the father was on notice of the case he was required to meet and that he had every opportunity to adduce whatever evidence he wished to adduce. I am satisfied that this is the case in circumstances where:
(a)Proceedings in this jurisdiction proceed by way of affidavit for all evidence in chief; and
(b)The mother filed her evidence well in advance of the father (indeed the timeframes for the father to file responding material were extended to facilitate responses to that material), and the mother’s case was presented first at trial.
I am additionally mindful of the comments made in Zaccardi v Caunt [2008] NSWCA 202 (at [27]), when discussing the principle in Jones v Dunkel (1959) 101 CLR 298:
…In my view this is a situation where the variant of the principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 that was discussed by Handley JA in Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419 is applicable. In accordance with that principle, when a party who called a witness who could have given direct evidence on some particular topic refrains from asking questions that would have elicited evidence on that topic that can in some circumstances be a legitimate reason for not drawing inferences in favour of that party. Just as Jones v Dunkel licenses but does not require certain inferences to be drawn when a witness is not called, this principle does not prohibit the drawing of inferences favourable to such a party, but merely provides one reason against doing so. The same principle applies when an affidavit is read, that says nothing about a relevant topic concerning which the deponent could have given evidence.
(Bold emphasis added).
These matters are of some significance in the present proceedings given the father was on notice of the case he was being asked to meet and the centrality of the allegations made against him to the mother’s case that he presents an unacceptable risk of harm to the child. Yet for some inexplicable reason the father chose not to engage in the allegations made against him and put his version of events before the court.
While it might be asked, what more could the father have said in his trial affidavit beyond a blanket denial if that is his evidence? I do not consider that a blanket denial is sufficient given the nature of the evidence before the court, in particular the detailed allegations put against him by Mr H who personally gave evidence in these proceedings.
This view was also confirmed by the manner in which the trial proceeded because during the course of the trial, the mother’s counsel probed the father’s blanket denial. What was interesting about that process is that certain admissions were made by the father in relation to not only the context of the allegations made by Mr H but those involving Mr F, Ms G and Mr J. As a result, what became obvious was that the father did have his own version of events, but he had simply chosen not to put that version of events to the court.
The father’s unambiguous evidence was that he considered that the not guilty verdicts entered in the criminal proceedings were “the end of it”, and he appeared surprised to understand only “recently” that those allegations would form part of the concerns in these proceedings. I however reject that evidence of the father. I am satisfied that this is so for a range of reasons including the fact that the father has been legally represented throughout these proceedings and importantly because of the reasons delivered by Judge Cole on 16 August 2021 which could have left the father with no doubt whatsoever that those allegations were very much the focus of the mother’s case and that they formed the basis of her claims of the risk posed by the father towards X.
With this in mind, throughout the father’s evidence, the impression formed was that at the very minimum the father was highly defensive and evasive in the way he answered questions, but more likely highly strategic in the way in which he ran his case in this court. Having reflected on my contemporaneous notes from the trial (which includes notes about the father’s demeanour during his evidence and the impressions garnered), it is apparent that the father gave an almost rehearsed identical answer to almost each and every question put to him by the mother’s counsel about the specific allegations of sexual abuse made by Mr H and those made by Mr J and Ms G; that being, “no that did not happen” and “no did not happen”. The father also gave the same seemingly rehearsed answer when the allegations of physical abuse alleged to have been perpetrated by the father towards Mr B were put to him, together with a myriad of other allegations he presumably considered to be damaging to his case.
Moreover, throughout the father’s evidence he appeared to take the position that unless there was documentary evidence to prove that an allegation was made out, there was no connection between him and the allegation. Two examples of this during the father’s evidence were:
(a)The father denied that he had seen Ms C at an event at a Town D venue in early 2023 and that he had stared at her for over an hour until someone asked him to leave. When the father was challenged about this having occurred, the tenor of the father’s evidence was that if Ms C had been there and had been distressed by his presence and conduct, then she would have taken a photograph to prove it. Therefore inferring that because no such photograph existed, it could not have occurred.
(b)The father’s evidence about a hard drive that he owned and which had been at the mother’s home at the time of his arrest. This topic arose as a result of an allegation made by Mr B that he had found the hard drive and discovered that it contained an extensive pornography collection. When these matters were put to the father, he was evasive in answering the allegation, with counsel having to draw out concessions from him about the mere existence of the hard drive, but ultimately seemingly inferring that because the hard drive had not been produced, there was no proof that it contained any pornography.
These observations about the father’s presentation, appear to be consistent with those of the expert Ms L, who commented in a similar vein in her report in relation to the father’s response to her about the allegations of physical abuse made by Mr B, where he “questioned the reliability of disclosures…, pointing out that [Mr B] informed the mother of his experiences in 2017 yet the disclosures were not reported until featuring in affidavit material in 2020 during the current dispute (“a good parent would have reported it (at the time)”).[15]
[15] Family report dated 30 June 2021, paragraph 31.
Additionally, there was one particular tranche of the father’s evidence which heightened my conclusion as to the father’s strategic approach. The evidence arose during cross examination of the father. The father was asked about having faced allegations of sexual abuse by both male and female children. The father gave an unresponsive answer which ultimately exposed that he had “researched” the best approach to defending those charges and that in effect he “went with” the approach that his research indicated was least likely to result in a conviction.
As these reasons bear out, all of these matters have been taken into account when assessing the evidence, and leave me with grave concerns about the father’s candour and the veracity of his denials. Additionally, it causes me to have overarching concerns that whilst in some instances I have been unable to make findings, I remain equally unable to rule out the possibility that the father engaged in certain acts; particularly so far as the allegations made by Mr F, Ms G and Mr J are concerned.
However, so far as the allegations made by Mr H are concerned, as discussed later in these reasons, the approach taken by the father combined with the compelling evidence given by Mr H, has lead me to be satisfied on the balance of probabilities that the allegations made by Mr H are made out.
The expert report
An expert assessment and report was obtained from Psychologist, Ms L and is dated 30 June 2021.
The assessment involved Ms L meeting with the father, the mother, the mother’s partner Mr K, X, together with observed interactions between X, the mother and Mr K. In addition Ms L interviewed each Ms C and Mr B by telephone.
Ms L did not undertake any observed interactions between X and the father, as she properly acknowledged that one of the issues in dispute was X’s “re-introduction” to the father.
In terms of the timing of the report, it is important to understand that it was completed at an earlier stage in the proceedings, and in part had at its focus not only the principle dispute between the parties as to what time (if any) should be spent between the father and X, but also the question of any relocation of X with the mother from Town D to Town E to take up residence with Mr K.
It is clear from the report that Ms L understood the risk concerns the mother was agitating stemming from the father’s criminal proceedings, but also the allegations made by the mother and each of her children Ms C and Mr B (all of those allegations are identified later in these reasons).
From her interviews with the father, Ms L observed:
26.[Mr Ditlevsen] remained regulated during his interview, even when challenged; this was encouraging. His narratives tended to suggest he was rather inflexible in relation to integrating other perspectives. He also tended to provide superficial information initially, with richer details emerging only after repeated invitations to further reflect.

For the reasons discussed throughout these reasons, this is an opinion which having heard the evidence of the father I accept and agree with.
I equally accept and agree (for reasons discussed throughout these reasons) with Ms L’s opinions as to:
(a)The father’s lack of empathy for Ms C and Mr B’s “reported experiences in being targeted following him being charged with sexual offending”.[16]
(b)The father’s difficulty in imagining “[X’s] emotional perspective in relation to establishing a relationship with [Mr Ditlevsen]”.[17]
[16] Family Report dated 30 June 2021, paragraph 40.
[17] Family Report dated 30 June 2021, paragraph 42.
I also accept Ms L’s record of comments made to her by the father as recorded in her report (which were not the subject of challenge). In particular I accept:
(a)The father’s evidence that at the minimum he “butted heads” and argued with Mr B, and that there was a tussle between him and Mr B over a mobile phone; [18] which in and of themselves are admissions of family violence of a physical nature.
(b)The father’s evidence that he called the children “spoiled shits”,[19] which again is an admission of family violence in the form of derogatory taunts.
[18] Family Report dated 30 June 2021, paragraphs 28, 30.
[19] Family Report dated 30 June 2021, paragraph 29.
Ms L otherwise appears to have been troubled by the allegations made against Mr Ditlevsen, and the purpose of any time spending between X and the father. In particular Ms L observed:
104.The Consultant therefore questioned what the purpose of time spending was. Firstly, [X] has the right to knowledge of his biological father; encouragingly, [Ms Senghor] agrees with this. As it stands, notionally [X] does not have a relationship with [Mr Ditlevsen]. If [Mr Ditlevsen] was not to have a care role with [X], then the purpose of time spending would firstly be to establish a relationship, and then to provide [X] with connection with his paternal family. Time spending would need to be supervised in the long term, and not so frequently so as to de-stabilise [X’s] current secure and positive relationships within his primary care environment. With this in mind, it was suggested [X] spend the day with [Mr Ditlevsen] once per school holidays, supervised by step-father [Mr K] (or another family member nominated by the mother), and that this occur in [X’s] local area. Once [X] was aged 12 years old, time spending can occur as per his wishes, but will need to remain supervised (or at least with another adult substantially present) until he is an older adolescent.
…
106.Furthermore, given the information gathered during this assessment relating to [Mr Ditlevsen’s] capacity to observe appropriate boundaries with vulnerable others, caution is urged when considering the role [Mr Ditlevsen] might have in [X’s] life, and therefore a limited and supervised time spending arrangement is suggested. This can still be achieved if [X] does not live in [Town D]. Given [X] has just started school, relocating sooner rather than later will have less impact on his capacity to feel settled at school and within peer friendships.
As identified earlier, Ms L thereafter made recommendations as follows:
•[X] live with the mother under her sole parental responsibility
•The mother be able to relocate with [X].
•[X] be informed of his relationship with [Mr Ditlevsen].
•[Mr Ditlevsen] travel to [X’s] local area during school holidays to spend up to one day with [X], supervised by step-father [Mr K].
•Time spending be as per [X’s] wishes once he reaches the age of 12 years.[20]
[20] Family Report dated 30 June 2021, p. 24.
It must however be identified, that Ms L’s recommendations as to time spending between X and the father must be balanced against the mother’s position that a finding of unacceptable risk should be made, and that if such a finding is made that there be no time spending.
THE ALLEGATIONS
The allegations which the mother asks the court to bring to account fall into four separate categories:
(a)Those relating to the criminal charges for which there is no direct evidence from the alleged victims in these proceedings, namely the allegations made by Mr F, Ms G and Mr J;
(b)Those relating to the criminal charges for which there is direct evidence from the alleged victim in these proceedings, namely Mr H;
(c)Those relating to the mother; and
(d)Those relating to the mother’s children Mr B and Ms C.
I propose to give separate consideration to each of the categories of allegations that have been made.
There are however additional allegations that have been made by the mother (one for example relating to an incident involving her relative), which I do not consider I need to determine and/or about which I am not in a position to determine. To the extent that any of those additional allegations have weighed in my overall assessment of the matter, they shall be identified throughout these reasons. Where they have not been identified, I have formed the view that I do not need to make any findings about the additional allegations, and those allegations have not weighed in my overall assessment of the matter.
The allegations relating to the criminal charges involving Mr F, Ms G and Mr J
The allegations involving the father’s sexual conduct towards each Mr F, Ms G and Mr J are before the court in the form of various records as follows:
(a)The judgment dated 2017 concerning the charges involving Mr J and Mr H; [21]
(b)The judgment dated 2020 concerning the charges involving Mr F; [22]
(c)The sentencing remarks dated 2017 concerning the charges involving Mr F; [23]
(d)The judgments from the NSW Court of Criminal Appeal dated 2019 concerning the charges involving Mr F; [24]
(e)A police statement given by Ms M (the father’s relative and the mother of Mr H and Mr J) dated 2016 concerning the charges involving her sons; [25]
(f)A further police statement given by Ms M dated 2017 concerning the charges involving Mr H; [26]
(g)The police statement given by Ms N (the father’s relative) dated 2014 concerning the charges involving Mr H; [27]
(h)The witness statement given by Ms G dated 2014;[28]
(i)The witness statement given by Mr J dated 2014 and 2015;[29] and
(j)The witness statement of Mr F dated 2006.[30]
[21] ‘Exhibit F1’.
[22] ‘Exhibit F2’.
[23] ‘Exhibit F3’.
[24] ‘Exhibit F4’.
[25] ‘Exhibit ICL4’.
[26] ‘Exhibit ICL2’.
[27] ‘Exhibit ICL3’.
[28] ‘Exhibit M2’.
[29] ‘Exhibit M3’.
[30] See ‘Exhibit M4’.
The allegations that have been made regarding Mr F are best encapsulated by the statement given by Mr F to police in 2006:
Q:       [Mr F] could you tell me what it is you came to talk to me about today?
A:About a man I didn’t like, because he came out to my place on last Thursday late afternoon, I didn’t even know he turned up. I said to him who the heck is it. He was calling me by my name I went out. I said to him how the heck do you know where I bloody live. He said, just a lucky guess. Last Thursday he wants me to give him a blow job […]. After that I told him I got [relatives] who are watching me. If one comes down to the [room] I am done for. I told him to bloody go. Last Sunday he come back. He wants to take me over to his place to give him another blow job. I said, No I told him to piss off and told him I would slam the door. The Sunday before that he rings up to ask me to meet him over at the park. After that I told him to fucken piss off and I would take the phone off. After that he came back and asked me to jerk him off in front of my place. Then he touched me on the penis. I didn’t like it, so I went inside. That’s it.
…
Q:       What happened in the [room]?
A:He asked me to give him a blow job, he said to me to keep going and I couldn’t go any further. He asked me after that if I had a shower. I told him I did, but I don’t reckon he did.
Q:       Could you tell me what you did?
A:He asked me to give him a blow job, he asked me to keep going because it made him so horny, there was a terrible smell about him. He asked me if I had a shower and I told him I bloody did. There was a terrible smell about him.
Q:       Did you place his penis in your mouth?
A:       No he asked me to give him a blow job.
Q:       Could you tell to me what a blow job is?
A:       Where you suck on a penis.
Q:       Did you suck on this male’s penis.
A:      Only once. [31]
(As per the original)
[31] See ‘Exhibit M4’, p. 2-3.
The allegations regarding Ms G are encapsulated in the statement she gave to police in 2014:
4.When I was growing up I use to go to my Grandparents house at … every Wednesday. I remember on one occasion, I was about five years old I was asleep in [Ms T and Mr S’s] rooms. I was half asleep but I could see out under my eye lashes. I felt someone pull down my knickers and place their fingers on my vagina and then saw them licking their fingers. I remember it was [Mr Ditlevsen]. I must have went back to sleep because I don’t remember anything else.
(As per the original)
The allegations regarding Mr J are encapsulated in two separate statements that he gave to police. In the first, made in 2014, Mr Jdeposed:
4.I remember when I was about eleven or twelve years old, I was at my Grand Mother and Pas house at … I often stayed there as a child because my parents were working and also I would ask to stay there because [Mr Ditlevsen] was a big kid and always had lots of video games to play.
5.On this one occasion I remember being in backroom of my Grandparents house, it was where [Mr Ditlevsen] had the video games set up. I was playing a video game […]. [Mr Ditlevsen] came into the room and invited me to eacth porn with him. I went to his bedroom and he put on a video.
6. I was sitting on his bed and he sat beside me.
He said “Will you play with me and I will play with you.
I said “No” and started crying
He said “Why are you crying”
I said “I don’t know”
7. [Mr Ditlevsen] then left the room he returned a short time later
He said “You’re not going to tell anyone. Why would you”
(As per the original)
In the second statement dated 2015, Mr J deposed further information as an addition to the earlier statement he had given. Of significance he deposed:
10.I remember that one afternoon, it would have been before five o’clock, I was in the backroom at my grandparents house playing [a video game] on the computer. I was alone at the time. [Mr Ditlevsen] was also home. No one else was at the house at this time. [Mr Ditlevsen] walked into the room whilst I was playing the game.
[Mr Ditlevsen] said, “Do you want to come and watch a porn movie.”
I knew that a porn movie was a movie with people having sex in it. I thought that he was joking.
I said, “Okay then.”
We walked through the house and into [Mr Ditlevsen’s] room. As I walked in the room [he] closed the door behind us and I saw him lock it. The lock was an older style lock with a key. Inside his room [Mr Ditlevsen] had a TV and a VCR set up. I sat down on the end of the bed on the left hand side. [Mr Ditlevsen] grabbed a VCR cassette from a cupboard and put it in the VCR and pressed play. He then lay down on the right hand side of the bed and the movie started playing. [Mr Ditlevsen] asked me to lie down beside him on the bed. So I did.
11.The movie started playing. I could see that the porn movie [showed people] having sex and doing sexual acts to each other. I had never seen anything like this before. It made me feel really weird and uncomfortable. I wanted to leave but I knew the door was locked and I was scared. [Mr Ditlevsen] had a remote control and kept fast forwarding and rewinding through the movie. Whilst he did this he kept asking me questions like: “Are you horny?” “Are you hard?” “Do you need help jerking off?” “I’ll jerk you off and you can jerk me off.” [Mr Ditlevsen] said, “I’ll show you.” He put his arm out and went to reach for me. I immediately jumped back to stop him from touching me. I was really scared and upset. I could feel a lump in my throat and I couldn’t really reply to his questions because I was so upset and scared. I started crying. [Mr Ditlevsen] said, “Do you want to be alone to jerk off?” He took some tissues out of a box and threw them at me. He left the room and locked the door behind him. The movie kept playing. I kept crying and wiping tears away from my face with the tissues. I kept staring at the ground. I would say this whole thing happened over about ten minutes.
In circumstances where I do not have the benefit of direct evidence from the alleged victims I consider it impossible for me to come to my own assessment of those allegations and make any findings, and I decline to do so; despite it being open to me to draw inferences against the father as a result of his lack of candour around these allegations.
The father was questioned about these allegations by the mother’s counsel and counsel for the ICL. Some of the evidence given by the father was concerning. It is necessary to record that the most troubling aspect of the father’s evidence related to his sexual interests and proclivities. Whilst I accept that the father’s sexual interests and proclivities are not automatically matters of concern, for example they would not be of concern if there was no risk to the child, here however there are concerns which go directly to the assessment of risk.
Those concerns in particular arise from the father’s evidence about his interactions with Mr F. In that regard, I am satisfied that at the very minimum, the father had discussions with Mr F about pornography and that he exchanged pornography with Mr F. This is a concern in circumstances where there was no issue taken with the fact that Mr F was a vulnerable person. In those circumstances I struggle to see how it could ever have been appropriate for the father to have been having such discussions and exchanges with Mr F.
Moreover, when this information is coupled with the father’s evidence about Ms P discussed later in these reasons, I am satisfied (in accordance with Ms L’s apprehension), that the father has no boundaries around his sexual interests and proclivities, particularly with those that are vulnerable whether because of their age or intellectual capacity. As identified later in these reasons, these are concerns which continue to the present day.
While I have declined to make findings in relation to Mr F, Ms G and Mr J, I am conscious of the information contained in certain exhibits received during the trial. That information includes:
(a)The NSW Department of Corrective Services Case Note Report dated 2018,[32] which sets out the following:
[32] See ‘Exhibit ICL7’.
ICD with Forensic Psychologist [Ms Q] from [R Correctional Centre] to advise tthat [sic] the offenders STABLE and SOSA was complete. [Ms Q] advised that the Dynamic risk factors were as follows:
He scored one on the following items:
Significant Social Influences
Capacity for relationship stability
Hostility towards women
General social rejection / loneliness
Lack of concern for others
Impulsivity
Poor Cognitive Problem Solving
Sex as coping
Deviant Sexual Interests
Cooperation with supervision
He scored two on Negative Emotionality/Hostility and Sex Drive/Preoccupation
(b)The information set out in the father’s Working with Children Clearance notes between 2021 – 2023 which among other things record:
(i)That the father was unsuccessful in obtaining a Working with Children Clearance; [33]
[33] See ‘Exhibit ICL7’ and ‘Exhibit ICL8’.
(ii)An entry dated early 2021 sets out that the initial risk assessment made was:
PAM outcome as follows:
Impact = Significant based on total criminal history
Recurrence = Plausible based on total criminal history/over 10 years since behaviour
Overall risk based on available information = Medium-High[34]
[34] ‘Exhibit ICL7’, p.8.
(iii)The reasons for decision of the Children’s Guardian dated early 2022 including the following:
[Mr Ditlevsen] was found not guilty in respect to the charges which proceeded to trial as it could not be established beyond reasonable doubt that the conduct occurred. The Children’s Guardian assesses the allegations on this civil standard of proof, and may, or may not, make a finding that on the balance of probabilities, the conduct has occurred. Taking into account all of the information before her, the Children’s Guardian finds on the balance of probabilities that the abuse towards the vulnerable adult occurred as alleged.
With respect to the child-related allegations, the Children’s Guardian acknowledges the absence of conviction but cannot dismiss these allegations as groundless as she is not affirmatively satisfied that all the allegations did not occur. The children’s Guardian considers the cumulative effect of the similar allegations increases the likelihood that the conduct occurred. The absence of conviction is outweighed by the cumulative effect of the allegations, being from multiple complainants, of different ages and no existing relationship, over a period of years and in different locations, as relevant to the assessment of risk and material on which the Children’s Guardian is entitled to rely on that conduct occurred as alleged.
The matter was discussed […] and determined that the applicant poses a real and appreciable risk to the safety of children should he engage in child-related employment.[35]
(iv)The father appealed the decision to deny him a Working With Children Clearance, which was heard by NCAT and dismissed in 2023.[36]
[35] ‘Exhibit ICL8’, p. 4.
[36] ‘Exhibit ICL7’, p. 2.
It is with all of these matters in mind that I have come the view that I am not able to make findings about the allegations made by each Mr F, Ms G and Mr J. It is however also the reason as to why I cannot rule out the possibility that the allegations made by each of these vulnerable persons were events that actually occurred.
The allegations relating to the criminal charges involving Mr H
The allegations relating to Mr H are before the court in the form of Mr H’s Affidavit filed 3 May 2023, and he also gave oral evidence during the trial.
The court additionally had the benefit of those documents referred to at 100 (a), (e), (f) and (g) above.
I do not propose to repeat all of the allegations made by Mr H. Instead, I set out the more salient aspects of the allegations that have been made:
20. [Mr Ditlevsen] was about 17 years old when he started to sexually abuse me.
21.My earliest memory of [Mr Ditlevsen’s] sexual abuse was when I was 8 years old. I was at [U Shop] on …. [U Shop] was owned and operated by my grandfather, [Mr S] (my grandfather) and my grandmother, [Ms T] (my grandmother) (my grandparents).
22. On this day I remember that I had left school early because I was not feeling well. My mother put me to bed in the back room of [U Shop], where she worked. There was a single bed in the back room and my mother put a heavy brown woollen blanket over me.
23.I recall being woke up by the sensation of [Mr Ditlevsen’s] mouth around my penis and the feeling of saliva on my skin. When I looked down I saw [Mr Ditlevsen’s] face at my groin. [Mr Ditlevsen] had my penis in his mouth. I was shocked and scared and had an awful feeling in my stomach. I remember that I was wearing my school uniform […]. My pants and my underpants were pulled down. I was lying on my back and I remember not understanding what [Mr Ditlevsen] was doing to me or why he would put my penis in his mouth. I was confused. The blanket had been pushed off me and was between me and the wall.
24.I do not think my penis was erect. I do not know how long [Mr Ditlevsen] had my penis in his mouth. I do not know what made him stop. I remember that his hands were flat on the bed either side of me. When [Mr Ditlevsen] stopped he stood up and walked out of the back room. I stayed on the bed, scared and confused.
…
26.[Mr Ditlevsen] lived with my grandparents […] when this sexual abuse occurred.
27.I cannot remember the exact times and dates of the abuse, but I do recall that there were at least 30 to 50 occasions when these sexual acts were committed.
…
33.The sexual abuse followed a similar pattern each time. I would usually eat some food when I first arrived at my grandparent’s house. [Mr Ditlevsen] would at some point take me into his bedroom or the computer room to play video games.
…
38.We would play video game for a while and then [Mr Ditlevsen] would put on a pornographic video, either on the television in his bedroom or on the computer in the computer room.
39.[Mr Ditlevsen] would play the pornographic video and after a while he would start rubbing my crotch area and then he would take my penis out of my pants and he would also take his penis out of his pants. He would put my penis in his mouth for a few minutes and then he would put my hands on his penis and make me masturbate him. He would also talk me in to placing his penis in my mouth.
…
46.I recall an occasion when the whole family was on holiday in Adelaide. I was left alone with [Mr Ditlevsen]. He performed oral sex on me and then made me do it to him. I was about 9 or 10 years old when this happened.
…
48.As I got older [Mr Ditlevsen] gave me alcohol to drink. I remember he had spirits […] in his room. He would encourage me to drink alcohol.
…
50.I recall an occasion when I was about 11 or 12 years old. I was at my grandparents’ house and [Mr Ditlevsen] was at work […]. [Mr Ditlevsen] had [alcohol] in his room, and my grandfather had […] beer in the fridge. [Mr Ditlevsen] had told me to have some drinks and that he would play video games with me when he came home from work. I drank [a large volume of alcohol] really fast. I recall [Mr Ditlevsen] waking me up while I was asleep in his bed. I have a hazy recollection of being in the hallway before blacking out. I then remember waking up in the shower naked. [Mr Ditlevsen] was on his knees in front of me and he had my penis in his mouth.
51.[Mr Ditlevsen] told me later that I had had sexual intercourse with him and that I kept passing out. I had no memory of that happening. I knew what sex between 2 men involved and it made me feel disgusted. I remember [Mr Ditlevsen] laughing about how drunk I was.[37]
[37] Affidavit of Mr H filed 3 May 2023.

As identified earlier in these reasons, the father chose to say nothing of substance in relation to the allegations made by Mr H; this is despite understanding that Mr H was to be a witness in these proceedings.
When the father was cross examined by the mother’s counsel he made certain admissions around the periphery of the allegations made by Mr H, including:
(a)There was a bed in the back room of the U Shop business;
(b)There was a computer room with a computer and TV at the rear of the father’s home at the time (being the home of the paternal grandparents) in which Mr H would play computer games with the father, often sitting on the edge of the bed;
(c)Mr H and Mr J would attend their grandparents’ home and play video games at least once a week between about 1997 and 2011, including at times that the father was not at the home including when he was at work;
(d)That from as early of 1998, the father kept alcohol in his bedroom at the home of the paternal grandparents, including some spirits, but not others;
(e)The paternal grandfather kept beer in the fridge;
(f)There was likely an occurrence when Mr H was 11-12 and was asleep in the father’s bed causing the father to wake him when he got home from work.
These admissions by the father in my view support a conclusion that there were circumstances that existed and occasions that arose creating the opportunity for the events alleged by Mr H to have taken place.
I am otherwise satisfied that Mr H presented as an honest witness and there was nothing about his presentation that causes me any reason to doubt the veracity of his allegations. Moreover, I do not accept the father’s allegations that Mr H has an axe to grind against the father as a result of an alleged family feud, and that this is the reason that Mr H has chosen to give evidence in these proceedings. Even if such a feud existed, the same on the father’s own admission is historic in nature and not ongoing in circumstances where the father is estranged from various family members as a result of the allegations previously made by Mr H, Mr J and Ms G. Rather I am satisfied that Mr H’s participation in these proceedings, reluctant and distressing for him as it was,[38] was driven by his desire to act protectively towards X, a child he seemingly has no relationship with.
[38] In the lead up to the final hearing it became apparent that Mr H was not prepared to attend the final hearing to give evidence. In addition, during his evidence, whilst stoic in his presentation, Mr H was observed to be uncomfortable whilst giving his oral evidence, including but not limited to speaking carefully and deliberately, making little eye contact and having his hands in his pockets.
When I combine all of these matters, as indicated earlier, I am satisfied that on the balance of probabilities the allegations made by Mr H are made out.
The allegations made by the mother
In addition to the allegations made by persons separately identified in these reasons, the mother made a range of allegations about the father, the state of their relationship and his treatment of her.
It is the mother’s case that she was the victim of family violence perpetrated by the father within the meaning prescribed to it in s 4AB of the Act, including but not limited to coercive and controlling behaviours, sexual abuse and mistreatment, derogatory taunts and isolating the mother from her family and friends. The allegations include:
(a)The father refusing to allow the mother’s sister Ms V and other family members to the house for dinner or at all. In addition, the father refusing to attend, or making the mother feel guilty for socialising with Ms V, telling the mother “she’s two-faced”, “she’s horrible” and “if you mean anything to her at all, she would accept us as a couple”.[39]
(b)The father isolating the mother from her friends and work colleagues by criticising them by repeatedly telling her they “weren’t real friends”, “they’re all using you” and “they’re manipulating you”, causing the mother to stop inviting them to her home.[40]
(c)The father regularly touching the mother’s breasts and buttocks in the presence of Ms C and Mr B and suggestively telling her “time for us to have an early night”, causing the mother embarrassment.[41]
(d)The father having an unbridled sexual appetite which included watching pornography on a daily basis, owning a masturbation tool and regularly asking the mother to try new sexual acts he had seen in his pornography viewing.[42]
(e)The mother feeling pressured by the father to satisfy the father sexually, with the father isolating her if she rejected him and did not accede to his advances.[43]
(f)The father pressuring the mother to pay his legal fees for the criminal proceedings.[44]
[39] Mother’s affidavit filed 1 May 2023, paragraph 43.
[40] Mother’s affidavit filed 1 May 2023, paragraph 44.
[41] Mother’s affidavit filed 1 May 2023, paragraph 49.
[42] Mother’s affidavit filed 1 May 2023, paragraphs 50-51.
[43] Mother’s affidavit filed 1 May 2023, paragraphs 52-53.
[44] Mother’s affidavit filed 1 May 2023, paragraph 100.
Having assessed the evidence of the parties, and given the matters I have commented upon throughout these reasons about the father’s evidence (above and below), I am satisfied that where the evidence of the mother and the father differs, I prefer that of the mother. Accordingly, I am satisfied that those allegations made by the mother as set out at [120] of these reasons are made out on the balance of probabilities.
In addition to the allegations made directly by the mother, the mother also raised concerns about information conveyed to her by others. While ordinarily this would not be the most reliable evidence, there is one topic about which comment shall be made. That topic relates to an alleged relationship between the father and an underage girl called “Ms P”.
The mother’s allegation about “Ms P” is that in about 2013 the mother answered the father’s mobile phone. She says that an irate man was on the other end of the call yelling and swearing and saying “if I find out you have touched my daughter I will kill you”. The mother says that when she told the father about this call, the father told her that it was about a girl he had been “helping” by picking her up to visit her boyfriend, and that her father was “overprotective because she’s slow”.[45]
[45] Mother’s affidavit filed 1 May 2023, paragraph 153.
During the final hearing the father was cross examined about Ms P and his relationship to her. The father’s admissions about his involvement with Ms P were concerning, not only because he had denied “in any way [being] involved with [Ms P]”,[46] (both in his trial affidavit and initially in his discussions with the expert as recorded at paragraph 49 of her report), but also because of the nature of the father’s evidence on this topic generally. When considering all of the evidence (that sworn by the father in his affidavit, that attributed to the father in Ms L’s report, which I accept as an accurate record, and that given orally by the father during the trial), I am satisfied that the father knowingly facilitated a covert sexual relationship between Ms P who was underage at the time (the father told Ms L that she was underage and had an intellectual disability) and the father’s adult friend “Mr W”, who “has [an intellectual disability]”. I equally consider that I am not able to rule out the possibility that the father himself had also engaged in a sexual relationship with Ms P. It is these matters which have factored into my conclusion set out earlier in these reasons that the father at the very least has no sexual boundaries with vulnerable persons.
[46] Father’s affidavit filed 8 May 2023, paragraph 74.
The allegations made by the mother’s children Mr B and Ms C
Each of the mother’s children swore an affidavit in these proceedings and gave oral evidence.
Each of the mother’s children made allegations about the father. Those allegations include:
(a)Allegations by Mr B that the father made inappropriate and derogatory comments, including calling Ms C “dumb” and “stupid” and calling Mr B a “rotunda”, “pleasantly plump” or “fat”.[47]
[47] Affidavit of Mr B filed 1 May 2023, paragraph 18.
(b)Allegations by Ms C that the father would tease her and call her names including “chubby”, “fat”, and “dumb”.[48]
[48] Affidavit of Ms C filed 1 May 2023, paragraph 24.
(c)Allegations by Mr B that the father made sexually inappropriate comments in front of other people including a comment made to family members when Mr B had broken his arm “Yeah, his sex life is ruined. He can’t even wank now”.[49]
(d)An allegation from Mr B that the father had thrown a basketball at his head as he was frustrated with Mr B bouncing the basketball in the backyard.[50]
(e)An allegation from Mr B that he found the father’s hard drive which was “full of pornography”.[51]
(f)Allegations by Mr B that the father would start arguments and become jealous if the mother paid more attention to the children.[52]
(g)Allegation by Ms C that the father would yell and shout and swear at her.[53]
(h)Allegations by Mr B of physical violence perpetrated by the father towards him, including but not limited to separate occasions in which it is alleged:
(i)“[Mr Ditlevsen] grabbed me by my ears on either side of my head, squeezed them, pulled me up by them so that I was on my feet and then dragged me from the lounge room to my bedroom, which was a distance of about 10 metres… My ears were red and hurting after the incident and I cried. I was scared…”.[54] This allegation was corroborated by Ms C.[55]
(ii)“I remember running away from [Mr Ditlevsen] when he was angry and yelling at me. I was scared he was going to hit me… I ran into the bathroom and shut the door. [Mr Ditlevsen] was pushing the bathroom door, trying to force it open, and I was trying with all of my strength to push it closed and lock it. I feared that [Mr Ditlevsen] would physically harm me if he was able to open the door to get me. [Mr Ditlevsen] was yelling at me as he forced the bathroom door. [Mr Ditlevsen] placed his foot against the opposite wall to try to gain leverage to push open the door. [Mr Ditlevsen] was pushing so hard, his foot pushed through the wall and made a big hole in the gyprock…”[56] This allegation was corroborated by Ms C.[57]
(iii)“… following an argument with my mother about cleaning my room, My mother said she would take my mobile phone off me if I did not clean my room. I did not give my mother my mobile phone and instead I went and laid down on my bed. I was being defiant. All of a sudden [Mr Ditlevsen] came into my bedroom yelling. He physically lifted me off the bed and threw me to the ground. I was hurt, shocked and upset. I left the house crying and I ran away down the street…”.[58]
[49] Affidavit of Mr B filed 1 May 2023, paragraph 20.
[50] Affidavit of Mr B filed 1 May 2023, paragraph 23.
[51] Affidavit of Mr B filed 1 May 2023, paragraph 25.
[52] Affidavit of Mr B filed 1 May 2023, paragraph 27.
[53] Affidavit of Ms C filed 1 May 2023, paragraphs 23, 30.
[54] Affidavit of Mr B filed 1 May 2023, paragraph 39.
[55] Affidavit of Ms C filed 1 May 2023, paragraph 31.
[56] Affidavit of Mr B filed 1 May 2023, paragraph 40.
[57] Affidavit of Ms C filed 1 May 2023, paragraph 32.
[58] Affidavit of Mr B filed 1 May 2023, paragraph 41.
There is nothing that arises from the evidence of each of Mr B and Ms C, and the challenges made of them in cross examination to make me think that they were anything other than considered witnesses that gave open and honest evidence to the best of their abilities.
As earlier identified, the father’s responses to allegations made by each Ms C and Mr B appeared to be rehearsed. Moreover, at times the father appeared to want to put his own narrative and commentary around questions being asked of him, to avoid answering the questions that were being asked, resulting in the mother’s counsel having to ask questions again and/or to re-direct the father. This presentation of the father left me with the impression that the father was willing to make concessions about anything alleged by each Ms C and Mr B that he considered favourable to his case, but that where there was anything he considered to be unfavourable and/or disparaging of him, he either flatly denied the same, or he chose to make unnecessary and disparaging comments about Mr B and Ms C. An example of this was seen when the father was questioned about Mr B’s use of his computer, and instead of the father simply admitting that this had occurred (as he ultimately did), the father gave unnecessary answers to the various questions asked to illicit the uncontroversial answer, including claiming that Mr B was not tech savvy, and also alleging that Mr B had Ms C and the mother attend to his homework for him on the computer.
I accordingly accept the allegations that were made by each Mr B and Ms Cand I prefer their evidence wherever it differs from that given by the father.
IS THE PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY REBUTTED?
Section 61DA of the Act provides:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
As is readily understood, the presumption of shared parental responsibility will not apply in circumstances of abuse and/or family violence, or additionally if it is not in the child’s best interests for the presumption to apply.
In light of the matters that I have already discussed in these reasons and the findings that I have made, coupled with those that follow, it is my considered view that the presumption of equal shared parental responsibility should not apply and that it is comfortably rebutted in all of the circumstances of this case.
I accordingly propose to make an order that the mother have sole parental responsibility in relation to X.
BEST INTEREST CONSIDERATIONS
I have already considered several of the considerations set out in s 60CC of the Act earlier in these reasons. I accordingly do not propose to repeat those matters in the discussion that follows. Nor do I propose to discuss those considerations that are irrelevant and or do not impact upon my considerations.
The Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents; and
the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
While I accept that the interests of X are best served if he were to have both of his parents in his life, given all of the matters I have discussed throughout these reasons (including those that follow), I am satisfied that there is an unacceptable level of risk if X were to have a relationship with his father.
That risk at the very minimum is a risk of emotional and/or psychological harm, but at its extreme also includes a risk of sexual and/or physical abuse.
I am equally satisfied that the level of risk posed by the father is not one that can be ameliorated by any protective measures, including but not limited to supervised time spending; noting in any event that supervised time spending was not an arrangement promoted by the father, and as a result there was no evidence before the court from the father in that regard, despite Ms L having recommended supervised time spending.
The Additional Considerations
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views - s60CC(3)(a)
X was aged five years at the time he was interviewed by Ms L. In those circumstances I accept that he was unable to provide any meaningful views about his parenting arrangements.
The nature of the relationship of the child with each of the child’s parents, and other persons (including any grandparent or other relative of the child) - s60CC(3)(b)
There is no dispute between the parties that the mother has been the primary carer for X, and I am satisfied that this is the case. Certainly since the father’s incarceration the mother has been X’s sole carer.
There is also no dispute that X does not have any relationship whatsoever with the father or any members of the paternal family.
As a result, undoubtedly, X’s primary attachment and security is to the mother.
I accept Ms L’s opinion that X also has very close attachments to each his step-father Mr K (whom he refers to as his “Dad”) and his siblings Ms C and Mr B.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long‑term issues in relation to the child, and to spend time with the child, and to communicate with the child - s60CC(3)(c)
I have commented earlier in these reasons that I am satisfied that the father did not pursue any application for time spending with X following the release of Ms L’s report.
I also accept that the mother was willing to facilitate the father and X spending supervised time together following the release of Ms L’s report (in Town E for six hours every three months), however that offer was declined by the father as he did not consider it was a sufficient level of time spending.
Therefore, combining these two factors, the present state of affairs which sees the father and X having no relationship whatsoever is in large part a consequence not only of the father’s incarceration, but also because of the choices the father made once this litigation commenced.
I additionally accept the mother’s evidence that she has not involved the father in any decision making in relation to X despite being prepared to do so. I am satisfied that the mother appropriately did not do so in circumstances where the father firstly did not make any approaches to the mother (of his own volition or through his legal representatives) for information about X and his progress and secondly because the father failed to provide any contact details for this to occur in accordance with Orders 4 and 5 made 16 August 2021. Those orders provided:
4. The mother within fourteen (14) days of moving to [Town E] provide the father by email to his nominated email address, details of her current address, and contact email address.
5. The mother shall provide to the father by his nominated email address copies of all school reports and any relevant medical reports within seven (7) days of receiving the same.
In light of the same, I am again satisfied that the father’s own choices have left him in the dark about X, and has resulted in the father having no understanding whatsoever of X’s development and his needs.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child – s60CC(3)(ca)

In her report, Ms L records the following from her interview with the father:
37.[Mr Ditlevsen] confirmed he was not paying child support as “until recently, ([Ms Senghor]) said I wasn’t the father”; it was unclear what [Mr Ditlevsen] was relating to at this point in the discussion.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; - s60CC(3)(d)
The obvious change for X if the court was to accede to the father’s application would be that he would commence spending time with the father. Understandably, on the mother’s case the present arrangements would prevail.
The father disclosed during the final hearing for the first time (in answer to the mother’s counsel) that he had a partner by the name of Ms Y. The evidence the father then gave about his hopes for that relationship and the way that it may impact the arrangements for any time spending between the father and X were significant. In particular the father identified that Ms Y lives in City Z and that if the relationship with her was to continue, he planned to move to City Z. On any view a move by the father from Town D to City Z would impact time spending arrangements between the father and X if they were to be ordered, including but not limited to Ms Y becoming involved in X’s life with the court having no information about her whatsoever, the time spending occurring in a location that is entirely foreign to X and the time spending occurring in a location isolated from Ms C and Mr B who are both presently residing in Town D.
All of these matters are concerning. Not only because of the impact that any relocation of the father upon his proposals for time spending, but importantly also because the father did not see fit to disclose this significant relationship any time earlier. The father’s complete lack of insight into the significance of this evidence and any impact upon X and/or the mother’s ability to support a relationship between the father and X was unimpressive.
I am also satisfied that in circumstances where X has only known the mother as his primary source of attachment and security, there is no certainty or evidence as to how X might mange a relationship with his father. While I accept that this is not a reason in and of itself to exclude any relationship between X and the father, I am satisfied that in all of the circumstances of this case, this is a factor that would speak against the introduction of any relationship.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis – s60CC(3)(e)
The travel distance between Town E and Town D is over 300 kilometres.
Neither of the parties suggested that the travel distance was an impediment to time spending; albeit I consider that the effect of the same is that time spending (if ordered) would be confined to weekends and school holidays.
The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs – s60CC(3)(f)
The father’s case is that X is to live with the mother. Implicit in this position must be an acknowledgment on the father’s part that the mother is capable of and that she indeed does meet each and every aspect of X’s needs. Regardless of this inference however, I am satisfied that this is the case.
In circumstances where the father does not have any relationship with X, it was of some surprise that the father has not chosen to do anything to prepare himself for the prospect of a relationship with X, if indeed I was to accede to his application. In particular, the father has not sought any professional advice on how he might broach any reintroduction of his relationship with X, and how he might manage X’s inevitable questioning. The father has not undertaken any parenting courses. The father has not made any enquiries of any contact services in the event that there be a period of supervised time spending. Indeed, in answer to questions from the mother’s counsel as to whether it might have been appropriate for the father to prepare himself by having made those enquiries, the father showed a complete lack of understanding and insight into how his sudden appearance in X’s life (on his case) might impact X and be managed, by responding along the lines of “maybe, is that what other parents do” before adding further “why prepare myself for heartache”. Ultimately what became obvious from the father’s evidence is that he did not consider he needed to do anything to prepare himself for a relationship with X unless and until he was certain that he would have one, and even then, it did not appear that the father had turned his mind whatsoever to seeking out any professional advice, services or support in this regard. This is not to the father’s credit.
In addition, the father was questioned about how he might manage a time when X came to learn of the allegations and charges which the father had faced, particularly understanding that both Ms C and Mr B gave evidence (which I accept), that they have struggled with community gossip and innuendo, the loss of friendships and teasing. Of some concern (given it had been something discussed with him by Ms L), the father appeared unprepared for such a question. While the father responded saying that he would try to explain what had occurred in an “age appropriate way”, these words were mere platitudes in the absence of the father being able to clearly articulate what he might say to X and how he might say it, and/or that he would seek professional advice and guidance about the same. In all, the father’s evidence in this regard left me with no doubt that he had not considered the possibility that this may be information that X would likely come to learn about, that it would likely be distressing and/or troubling for X to grapple with, that he would likely question the father about it, and that he would need to think carefully about any response given to X. Again, this is not to the father’s credit.
During his interview with Ms L, she recorded in her report:
38.[Mr Ditlevsen] stated he had sent 1 card to [X] since his release from prison, and had not received a response. This prompted him not to send further communications as “I assume (the mother) would not give him presents because she doesn’t want me to have a relationship with him”; he considered [Ms Senghor] was financially motivated due to her past experience of dispute post-separation with [Ms C] and [Mr B’s]father.
Those comments of the father (which I accept were accurately recorded by Ms L) are telling for a number of reasons:
(a)Firstly, that he saw no benefit of X receiving any communication and/or having a connection to the father and/or there being any form of identify communication, unless there was something in return for the father by way of a relationship with X; and
(b)Secondly, that the father appeared keen to disparage the mother, accusing her of having financial motivations (which I reject), where he had earlier admitted to not paying any child support and where she had been entirely meeting all of X’s needs alone from the moment that the father was incarcerated.
Again, these comments by the father were not to his credit.
Any other fact or circumstance - s60CC(3)(m)
As identified earlier in these reasons, I have ongoing concerns about the father’s inappropriate sexualised behaviour involving those more vulnerable than him, in particular children. To that end, and given the centrality of those concerns in these proceedings, it was of significant concern to understand that the father’s Facebook social media account is replete with what can only be considered vile and inappropriate content that he has posted and/or shared, which he acknowledged is seen by his young relatives who are aged between 12 and 15 years of age.
I have turned my mind to the ability of the mother to facilitate a relationship between X and the father if that was something that I was to order. I am satisfied that if an order for time spending between the father and X were to be made, the mother would support the same. I have come to the view in circumstances where the mother has been able to maintain a relationship between Ms C and Mr B and their father, and support their decisions around that relationship (for example Mr B’s decision to live between his parents from 2019 at his discretion) such that each of those children consider that they have a “close and loving” relationship with their father, which suggests that the mother has the capacity to maintain those familial ties.
In addition, I accept Ms L’s evidence that the mother would abide by an order for time spending if indeed the court was to make the same. I am also conscious that Mr K has expressed a preparedness to supervise the father’s time spending if the court were to order the same.
The circumstances however are vastly different between Ms C and Mr B and their father as against between X and the father. This is for a range of reasons, not least of which because:
(a)The mother has a strong view (irrespective of the findings made in these reasons) that the father is guilty of the crimes charged over which he was acquitted;
(b)X and the father are entirely estranged as a result of the father’s incarceration and his conduct of this litigation; and
(c)As identified earlier in these reasons, I am satisfied that the father presents an unacceptable risk of harm towards X which cannot be ameliorated by any measures that would mitigate that risk.
CONCLUSION
For all of the reasons that I have identified, I consider it appropriate that there be orders that provide for X to live with the mother and that she have sole parental responsibility.
I am also satisfied that it is appropriate to make the injunctions sought by the mother to prevent the father coming into contact with her, X and/or her adult children; particularly as the latter from time to time spend time with X and it is foreseeable that they might provide care for him in the future. In coming to this view, I have taken into consideration the views the mother expressed to Ms L about her anxieties of running into the father or X doing so. In light of the same I consider it appropriate to make those injunctions to give the mother a sense of security and comfort in her care arrangements for X.

I certify that the preceding one hundred and sixty-six (166) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari.
Associate:
Dated: 21 December 2023

File number(s):	ADC 3682 of 2021
Judgment of:	KARI J
Date of judgment:	21 December 2023
Catchwords:	FAMILY LAW - CHILDREN – With whom a child spends time – Where the child currently lives with the mother and spends no time with the father – Where there is no relationship between the father and the child due to the father’s incarceration – Where the mother has provided the primary care for the majority of the child’s life – Where both parents seek that the child remain living with the mother - Where the mother asserts the father poses an unacceptable risk to the child – Where there are allegations of family violence – Where there are serious allegations of sexual abuse by the father involving vulnerable persons – Where the father did not meaningfully respond to the allegations raised – Where the evidence supports a finding that certain allegations are made out on the balance of probabilities – Where court is satisfied the father presents an unacceptable risk of harm - Where it is not in the child’s best interest to spend any time with the father - Orders for the child to live with the mother and spend no time with the father FAMILY LAW – CHILDREN – Parental Responsibility – Where the mother has been the sole decision maker for the child – Where there are allegations of family violence and inappropriate sexual behaviour – The presumption of equal shared parental responsibility is rebutted – Orders for the mother to have sole parental responsibility for the child FAMILY LAW – CHILDREN – Injunctions – Where the mother seeks injunctions restraining the father from coming into contact with herself, the child or the mother’s adult children – Where it is appropriate to make the injunctions sought by the mother – Orders for injunctions made as sought by the mother
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 61DA, 69ZT, 102NA Jury Act 1977 (NSW) s 73A
Cases cited:	Browne & Dunn [1894] 173 ER 181 Deiter & Deiter [2011] FamCAFC 82 Isles & Nelissen (2022) FLC 94-042 Mulvaney & Lane (2009) FLC 93-404 Jones v Dunkel (1959) 101 CLR 298 Logan & Logan (2013) FLC 93-555 M v M (1988) 166 CLR 69 Zaccardi v Caunt [2008] NSWCA 202
Division:	Division 1 First Instance
Number of paragraphs:	166
Date of hearing:	15 May 2023 – 23 May 2023
Place:	Adelaide
Counsel for the Applicant:	Mr Roberts
Solicitor for the Applicant:	Doyle Kingston & Swift
Counsel for the Respondent:	Mr Tredrea
Solicitor for the Respondent:	Kate Chisholm Family Lawyer
Counsel for the Independent Children's Lawyer:	Ms Tabbernor
Solicitor for the Independent Children's Lawyer:	Osborne Legal

ADC 3682 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR DITLEVSEN Applicant
AND:	MS SENGHOR Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	KARI J
DATE OF ORDER:	21 DECEMBER 2023