Dorval & Augustin
[2025] FedCFamC2F 808
•16 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
Dorval & Augustin [2025] FedCFamC2F 808
File number: MLC 8202 of 2021 Judgment of: JUDGE BLAKE Date of judgment: 16 June 2025 Catchwords: FAMILY LAW – Parenting - family violence – where father admits acts of family violence but says he has changed – whether father is an unacceptable risk to the children – HELD that father is an unacceptable risk to the children – orders that the children spend no time with the father Legislation: Family Law Act 1975 (Cth) ss 4(1), 60CA, 60CC(2), 60CC(2A), 60CC(3), 60CG(1) Cases cited: Fitzwater & Fitzwater (2019) 60 FamLR 212
Isles & Nelissen (2022) 65 Fam LR 288
Johnson & Page (2007) FLC 93-344
Nikolakis & Nikolakis [2010] FamCAFC 52
Partington & Cade (No 2) (2009) 42 Fam LR 401
Potter & Potter (2007) 37 Fam LR 208
Re C and B (children) (Care Order: Future Harm) [2001] 1 FLR 611
Division: Division 2 Family Law Number of paragraphs: 106 Date of hearing: 24 & 26 March 2025 Place: Melbourne Counsel for the Applicant: Ms Jardine Solicitor for the Applicant: Marcou & Associates Pty Ltd Counsel for the Respondent: Mr Howe Solicitor for the Respondent: MMH Lawyers Advocate for the Independent Children’s Lawyer: Mr Higgins Solicitor for the Independent Children’s Lawyer: Higgins Legal ORDERS
MLC 8202 of 2021 BETWEEN: MR DORVAL
Applicant
AND: MS AUGUSTIN
Respondent
INDEPENDENT CHILDRENS LAWYER
ORDER MADE BY:
JUDGE BLAKE
DATE OF ORDER:
16 JUNE 2025
THE COURT ORDERS THAT:
1.All previous orders be discharged.
2.The mother shall retain parental responsibility for X born in 2013 and Y born in 2014 (‘the children’) and have sole decision-making authority with respect to all decisions concerning major long-term issues as defined in section 4(1) of the Family Law Act 1975 (Cth) in relation to the children.
3.The children live with the mother.
4.The children spend no time with the father.
5.The father is authorised to send gifts and cards to the children on their birthdays and Christmas by post, to a PO Box or street address as nominated by the mother.
6.The mother is authorised to inspect any gifts and cards sent by the father in accordance with Order 5 above, and if she considers them appropriate, provide them to the children.
7.In the event the mother considers any gift and/or card sent by the father to be inappropriate, the mother is to keep such gift/s and card/s until the children turn 18 years of age, and only then provide them to the children.
8.The mother be and is hereby authorised to provide a sealed copy of these Orders to any school, medical or mental health practitioner the children may attend.
9.The children previously known as X DORVAL born in 2013 and Y DORVAL born in 2014 now be known respectively as X DORVAL AUGUSTIN and Y DORVAL AUGUSTIN.
10.The mother be authorised to apply to the Victorian Registry of Births, Deaths and Marriages to change the name of the children previously registered as X DORVAL and Y DORVAL to, respectively, X DORVAL AUGUSTIN and Y DORVAL AUGUSTIN, and do all such acts and things and sign all such documents as may be required to give effect to that registration, and the Registrar is to register the children’s names as X DORVAL AUGUSTIN and Y DORVAL AUGUSTIN.
11.The Independent Children’s Lawyer be and is hereby discharged.
12.All outstanding applications be otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
This is a case about Y born in 2014 (‘Y’) and her brother X born in 2013 (‘X’) (collectively, ‘children’). During parts of their short lives, the children’s father subjected their mother to serious and persistent acts of family violence. Some acts of family violence occurred in front of the children. Five years after he last saw them, the father now seeks an opportunity to see his children. The question for the Court is whether he should be given that opportunity, having regard to the relevant provisions of the Family Law Act 1975 (Cth) (‘Act’).
For the reasons that follow, I have decided that the father should spend no time with the children.
BACKGROUND
Statement of Agreed Facts
The parties helpfully prepared a Statement of Agreed Facts. What follows is taken from that document.
The mother was born in 1979. The father was born in 1984.
In 2010, Mr B (the father’s brother) was sentenced to imprisonment for a serious offence.
In 2012, the parties were married in an Islamic ceremony. During the course of that year, the father kicked the mother in the stomach while she was pregnant.
In early 2013, the Police applied for a family violence intervention order following a family violence incident.
In 2014, a witness observed the father holding the mother by the hair and trying to push her into a wall.
In 2014, Child Protection authorities substantiated that the father was responsible for harm.
In 2015, the father was remanded in custody for several months on multiple charges, including breaching an intervention order.
In December 2016, the father verbally abused the mother, pushed her into a bench and called her a “lying bitch”.
In 2018, the father sent the mother a text message threatening to kill her.
In late 2018, a final intervention order was made to protect mother and the children from the father.
In 2019, the parties were living separately under one roof. During this time, the father verbally abused the mother.
In January 2020, the Department of Families, Fairness and Housing (‘Department’) contacted the mother to advise her that the father’s brother, Mr C, had been charged with sexual offences against children. The Department sought confirmation that the children were not in contact with the paternal uncle.
In 2020, on one occasion, the father consumed alcohol and became verbally abusive towards the mother. The father then pushed the mother against the children’s bunk beds and grabbed her around the side of the neck and face.
In February 2020, the mother and the children left the home they had been living in.
In July 2020, the father sent the mother 556 text messages.
In August 2020, the father sent the mother 1,477 text messages (including 220 text messages on 19 August 2020).
In November 2020, the Department contacted the mother and advised her that Mr C possessed sexual images of minors, but that there were no images of the children. At around the same time, the father breached the final intervention order. The mother subsequently ceased visits between the father and children.
in late 2020, the father was incarcerated.
in early 2021, the father was released from prison on a community corrections order.
In July 2021, the father sent the mother 15 emails and offered to pay her $10,000 if she let him spend time with the children.
In late 2021, the father pleaded guilty to persistently breaching an intervention order and breaching the community corrections order. The father was fined $1,000 and the community corrections order was confirmed.
On 2 March 2023, the father completed a hair follicle test which returned positive results for codeine.
In late 2023, the final intervention order against the father expired.
On 2 March 2024, the father completed a further hair follicle test which returned negative results for all substances.
On 2 May 2024, the children commenced therapy with Ms D.
In September 2024, the father completed a further hair follicle test which returned negative results to drugs and positive results for low to moderate levels of alcohol.
THE POSITION OF THE PARTIES
The parties agreed that the mother should have sole responsibility for long-term decision-making in relation to the children. They also agreed that the children should live with the mother, and that the surnames of the children be changed to ‘Dorval Augustin’.
The father seeks final orders, inter alia, that he see the children on nine occasions each year for four hours at each time, with such time to be supervised by E Contact Service, and with him to meet the costs of the service. He relied on his trial affidavit filed 3 March 2025, his outline of case, and various documents tendered in the proceeding.
The mother seeks orders, inter alia, that the children spend no time and have no communication with the father. She relied on her affidavit filed 16 May 2024, her outline of case, and documents tendered during the proceeding.
The Independent Children’s Lawyer (‘ICL’) sought orders that the children spend no time with the father, but that the father be permitted to send gifts and cards to the children on their birthdays and Christmas, with the mother being authorised to inspect any gifts and cards to check if they are appropriate. The ICL also filed an outline of case that was relied on during the proceeding.
THE PARENTING ARRANGEMENTS FOR THE CHILDREN
The Law
Section 60CA of the Family Law Act 1975 (Cth) (‘Act’) provides that I must regard the best interests of the children as the paramount consideration.
Section 60CC of the Act sets out the matters the Court must consider in determining what is in a child’s best interests. There are general considerations set out in subsections (2) and (2A), as well as additional considerations that apply to Aboriginal and Torres Strait Islander children in subsection (3), that I am required to take account of and apply.
Section 60CG(1) of the Act requires the Court, in considering what order to make, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, to ensure that any order it makes is consistent with any family violence order, and does not expose a person to an unacceptable risk of family violence.
This is a case that raises the question of whether the father poses an ‘unacceptable risk’. In Isles & Nelissen (2022) 65 Fam LR 288 at [50]-[51], a five-member bench of the Full Court endorsed as a correct statement of the law, the following statements of Austin J in Fitzwater & Fitzwater (2019) 60 Fam LR 212 at [138]–[142]:
[138]The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter & Potter (2007) 37 Fam LR 208; (2007) FLC 93-326; [2007] FamCA 350 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
[139]Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
[140]It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis & Nikolakis [2010] FamCAFC 52 at [41], [44], [49]–[53], [96]; Partington & Cade (No 2) (2009) 42 Fam LR 401; (2009) FLC 93-422; [2009] FamCAFC 230 at [56]–[61]; Johnson & Page (2007) FLC 93-344 at 81,888–9; [2007] FamCA 1235 at [68], [71], [76], [77]).
[141]Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the “access” order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father’s appeal was dismissed because the possibility of the child’s past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child’s future sexual abuse.
[142] As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (children) (Care Order: Future Harm) [2001] 1 FLR 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
I intend to approach the matter consistently with the law and principles set out above.
BEST INTEREST CONSIDERATIONS
Arrangements that promote the safety of the child and each person who has care of the child
It is an accepted fact that the mother was subjected to serious family violence throughout the course of the relationship with the father, and that some of the violence occurred when the children were present.
The father’s behaviour toward the mother includes the following:
(a)in around 2012/2013, the father came home substance affected. He assaulted the mother, including by kicking her in the stomach when she was pregnant. She was bloodied during the incident and spent two days recovering in hospital;
(b)in 2014, the father held the mother by the hair and tried to push her into a wall;
(c)in December 2016, the father verbally abused the mother, pushed her into a bench and called her a “lying bitch”. The incident occurred in front of the children;
(d)in 2018, the father sent the mother a text message that he was going to kill her;
(e)in 2020, the father asked to borrow the mother’s car when she was putting the children to bed. She refused because he had previously damaged her car. In response, the father pushed the mother against the children’s bunk beds and grabbed her around the side of the neck and the face. The children were present and saw the incident;
(f)in July 2020, the father sent the mother 556 text messages; and
(g)in August 2020, the father sent the mother 1,477 text messages (including 220 text messages on 19 August 2020).
The father was charged with persistently contravening an intervention order between May 2021 and July 2021.
The father has also had various encounters with the justice system arising from, inter alia, acts of violence towards the mother. In respect of conduct toward the mother that has been raised in criminal courts, the father:
(a)was the subject of an intervention order obtained in the Magistrates’ Court of Victoria in early 2013 in which the mother was the protected person;
(b)was sentenced to one month’s imprisonment in mid-2015 for contravening a family violence intervention order;
(c)was the subject of a final intervention order obtained in the Magistrates’ Court of Victoria in early 2017 in which the mother was a protected person;
(d)in mid-2018, was fined $1,000 with conviction for persistently contravening a family violence order. The father’s conduct involved making phone calls, making threats (including on one occasion making a threat to kill), and visiting the children in breach of the relevant order;
(e)was the subject of a final intervention order obtained in the Magistrates’ Court of Victoria in 2018 in which the mother was a protected person;
(f)in late 2020, was sentenced to several months’ imprisonment for contravening a family violence intervention order, unlawful assault, and persistent contravention of the family violence order. The contraventions involved, potentially amongst other things, the father visiting the children in breach of an existing intervention order; and
(g)in late 2021, was fined $1,000 with conviction for persistently contravening a family violence order by emailing the mother around 10 to 15 times.
In the witness box, the father admitted that he put the mother through “sheer hell” by breaching intervention orders and perpetrating family violence upon her, and conceded that the mother would be “terrified” of him. I am satisfied that the father’s behaviour was violent and threatening. I am satisfied his behaviour coerced and controlled the mother, and that she is fearful of him.
The children were exposed to the father’s family violence. X recalls his father hitting his mother, which made him scared and sad. Y recalled her father trying to hurt her mother, her mother calling for help, feeling scared, and said that she does not have any good memories of the father. The mother gave evidence, which I accept, that when the children were spending time with the father, X went through a stage where he would get angry, hit his sister, and be verbally abusive to her.
The father was cross-examined about the assessment he underwent with Dr G, Consultant Psychiatrist. The father agreed that he had poor impulse control, that may be exacerbated when he uses drugs and alcohol.
The father acknowledged to Ms F, a Regulation 7 Family Consultant who prepared a Family Report in this matter dated 3 February 2025, that he was violent and selfish during the relationship and since separation. He acknowledged that he had previously promised the mother he would not use alcohol or assault her but then had proceeded to do it again. In the witness box, he expressed remorse for his conduct.
The father’s case before me was effectively that he was a “changed man”. The evidence that the father relies on to demonstrate the changes he has made to his life includes the following:
(a)he has had no interaction with the Police or the justice system since late 2021;
(b)he has completed numerous urine drug screens between 2022 and 2024 which were clear. Two screens which detected the presence of opiates are explained by his use of prescription medication to control pain;
(c)he completed several hair follicle tests between 2022 and 2024 which were clear, save for the detection of codeine that was able to be explained by his use of prescription medication;
(d)he has completed alcohol and other drugs assessment and counselling at Suburb H and J Centre in 2021 (13 sessions). He has been engaged with K Centre for Alcohol and Other Drug Counselling since 3 October 2022, and attended appointments during 2022, 2023 and 2024;
(e)a letter from the Department of Justice and Community Safety dated 17 November 2021 that confirms:
(i)the father’s history of drug screen results;
(ii)his attendance at the Change About Program; and
(iii)his attendance at the Tuning into Kids Program;
(f)his attendance on Dr L, psychiatrist, every two weeks, to assist him with his mental health; and that
(g)he is remorseful and understands the impact his behaviour has had on the mother.
The father is to be commended for the steps he appears to have taken to turn around his life. I also acknowledge and give weight to the admissions he has made in the course of these proceedings. The relevant question for the Court, however, is whether the father has turned his life around such that he no longer presents an unacceptable physical or emotional risk to the children or the mother. When all of the evidence is weighed, I am of the view that while the father has made some progress, he remains far from being a “changed man”. I have come to that view for the following reasons.
First, aspects of the father’s evidence before the Court show that the father continues to blame the mother for the family violence that he inflicted upon her. The father told Ms F that he believed the mother had exaggerated her concerns about the children’s safety and wellbeing. At paragraph [68] of his affidavit, the father says that he pushed the mother because he was “triggered by [the mother’s] insults against me”. He told Ms F that there was no more family violence because he was no longer with the mother, implicitly blaming her for his actions. In the witness box, these matters and others were put to him, including that the theme from his behaviour is that he blames his behaviour on the mother. The father denied that, but it was notable that in doing so, stated “those things provoked me”. These matters lead me to conclude that the father does not understand the full impact of his family violence upon the mother and the children, and that he still harbours a view that family violence may be justified in certain circumstances. He continues to blame the mother and not accept full responsibility for his actions. He justifies the acts of family violence by blaming the mother. There is a risk that the father may resort to family violence in the future when he feels provoked or when he feels it is justified.
Second, notwithstanding the courses that the father has attended, it appears that he has learned little from them. Three examples stand out:
(a)the father became dysregulated when interviewed by Ms F for the Family Report. He was argumentative, talked over the top of her and was easily frustrated. He conducted himself in this way even when he knew the purpose for which he was there, and that the matter would be reported to the Court;
(b)questioned in the witness box as to what he had learned from the various courses he had attended, the father provided answers that were unconvincing and lacked details. For example, when asked to describe what he learned from the Tuning into Kids program, the father said:
And it’s mainly about peoples being aggressive towards their woman. And – well, we will talk about, like, the children – how the children – children will be, like, traumatised and affected, like, in all this violence. And – and they will be traumatised. And, like, you know, to respect women, to like, you know, not argue and show violence towards to – in front of the children.
(c)the father has engaged in drug and alcohol counselling and admitted to being an alcoholic. Despite this, he admitted in the witness box to drinking alcohol socially. Asked about the risk of relapse, the father seemed not to acknowledge it, telling counsel there was not a risk of his relapsing because he was in a relationship now, and telling the ICL that he “chose to change”. These answers in cross-examination (combined with the other evidence referred to above) reveal that he does not understand the risks to alcoholics associated with relapse. His conduct suggests he has learned little from the drug and alcohol counselling he has undertaken. On this point, I note that Ms F made a similar observation in the Family Report stating that the father was “unable to acknowledge that relapse prevention is part of the cycle of dependence and addiction and is also often a feature of recovery, therefore ignoring the possibility that some risk may still exist in this regard”.
Thirdly, aspects of the father’s evidence suggested that he was more concerned with his own interests and emotions, rather than considering what might be in the best interests of the children. Ms F noted that during the Family Report interviews, the father refused to call X by his preferred name. In cross-examination, Ms F agreed with the proposition that while the father may love the children, he had failed to consider the effect that his contact would have on the children.
Ms F addressed the apparent risk the father presents to the mother and the children at paragraph [67] of the Family Report. There, Ms F noted that the father was, in a “very limited” way, able to acknowledge the concerns about him in terms of family violence and substance use. Ultimately, however, in respect of the father’s insight into and understanding of risk, Ms F at paragraph [73] of the Family Report stated that:
73.The most significant concern reported by [Ms Augustin] was the family violence that had occurred during the relationship perpetrated by [Mr Dorval] to which the children were exposed, the numerous intervention orders that were in place with [Mr Dorval] named as the respondent, and the subsequent breaches of the intervention order which resulted in [Mr Dorval] being imprisoned on several occasions. Information from both parents plus collateral information would suggest that, at times, [Mr Dorval] has been the primary instigator of family violence. Whilst it would appear that [Mr Dorval] has taken the correct formal steps to address his behaviour, such as completing two men’s behaviour change programs and a parenting program and engaging with a psychiatrist, the level of insight that he demonstrated about his past behaviour continues to be limited which is extremely concerning. [Mr Dorval] made comments throughout his interview that appeared to minimise the concerns around family violence and the impacts of what children have witnessed, and this, along with his presentation of emotional dysregulation, low frustration tolerance and poor impulse control, concerns which had been raised more than three years ago during his psychiatric assessment, suggests he has learned little from the programs he has completed and potentially still poses a risk to the children, particularly as they get older and are more likely to challenge him. Further, he showed limited insight into the risks that certain family members of his pose to the children, other than indicating that no family members visit his home, therefore suggesting that the children would not be at risk simply because of this. Despite repeatedly stating that he has done everything to address the concerns, the father has demonstrated that he is perhaps only at the pre-contemplation stage in the process of change. This stage is characterised by denial and ignorance of the problem. Individuals at this stage do not understand that their behaviour is damaging to themselves and others, and they are under-informed about the consequences of their actions. It is, therefore, the assessment of the report writer that despite the father’s belief that he poses no risk of harm to the children, his lack of insight and commitment to change is insufficient to mitigate any of the identified concerns or risks to [X] and [Y].
74.[Ms Augustin] also raised concerns about the children’s safety and well-being in the care of the father, given the concerns around family violence along with his drug and alcohol addiction. As outlined above, somewhat concerningly, [Mr Dorval] does not seem to be able to demonstrate any understanding of the risk of harm that the children have been exposed to, commenting that he has never harmed the children and then only later clarifying he has only ever harmed them mentally but not physically, and does not see any issue with the children starting to spend with him, initially believing that they would be really happy to see him even after five years apart, before learning that the children wished otherwise. He only displayed a very limited understanding of why there would be concern around him seeing the children, which places the children at even greater risk if he is not able to prioritise their safety needs and not put himself in their shoes to understand the risk.
I accept the evidence of Ms F set out above. I observe that one of the statements the father made to Ms F is that he would let X have contact with his brother who had murdered his own child (though he appeared to resile from this when he filed his trial affidavit).
The children are currently well-settled. The mother describes them as thriving. Ms F says that the mother has provided a safe and loving environment for the children. The father concedes that the mother is a good mother. I accept this evidence. It is a serious thing to contemplate interrupting the stability the children now enjoy.
Any views expressed by the child
X told Ms F that he did not want to see his father because his father would always hit his mother, because his father used to think he could use money to make him (X) love him (the father) more than their mother, and because the father would always try to get them to avoid their mother when they could. X told Ms F that if the Court ordered him to see his father, he would be a bit scared. He also told Ms F that if he saw his father in public when he was older, he would ignore him and walk away.
Y told Ms F that she does not want to see or spend time with her father because of all the screaming and fighting that used to happen every night between her father and her mother. Y told Ms F that if the Court ordered her to spend time with her father, she would go, but she would feel annoyed because she does not want to see him.
Ms F considered whether the children had been coached or influenced by the mother and dismissed that as a concern. I accept that the views of the children represent their own views.
The ICL spoke to the children in the week prior to the trial. The children told the ICL that they did not wish to see their father.
X is 11 years old and Y is 10 years old. Given their ages, their views are not determinative of the matter, nor can their views be given significant weight. Their views cannot, however, be discounted, especially given the personal recollections of family violence perpetrated by the father that they have been exposed to and have been able to recollect.
The developmental, psychological, emotional, and cultural needs of the child
The mother gave evidence that following separation, X self-harmed, said he was angry, and would act out against her and Y, calling them names such as “bitch”. Her evidence was that as time has passed and he has not seen his father, and as a result of counselling she has been able to arrange, X has settled down. The mother told Ms F that X was meeting all of his developmental milestones, and that issues to do with his hearing had been resolved.
The mother told Ms F that Y was reserved and quiet, and that Y had struggled with her reading and writing at school due to her non-participation in class and focus on finding a friend, but that this has now improved. Y has been diagnosed with a lazy eye and requires glasses.
The children are happy and well-settled in the care of the mother. The mother is aware of the needs of the children. The father, unsurprisingly given he has not seen them for five years, has little awareness of the needs of the children.
Parental capacity to provide for the needs of the children
The mother is a capable parent. The mother is able to, and has provided, a safe and loving environment for the children. She has ensured the children have accessed counselling support services to address the trauma they have experienced as a result of the father’s conduct.
The father is untested as a parent, having not seen the children for approximately five years. His capacity to provide for them is not known. He had some involvement with them when they were younger. There are however, for the reasons set out earlier, serious doubts about the father’s insight into his own behaviour and his capacity to protect the children from harm.
There is evidence before the Court that points to concerns about the capacity and mental health of the mother, and her capacity to take care of the children, if the father is reintroduced into the children’s lives. The father’s counsel made the point that there is no expert evidence (which I took to mean expert evidence from a medical practitioner or psychologist) about the mother’s mental health, or the potential for her or the children to be re-traumatised if time with the father is resumed. While there is no medical evidence of the type identified, there is the evidence of Ms F. At paragraph [71] of the Family Report, Ms F notes that given the mother’s fear of the father, she may need to focus on her own wellbeing and trauma if time with the father is reintroduced. Then, at paragraph [79] of the Family Report, Ms F states as follows:
79. If the Court were to order [X] and [Y]’s to spend time with [Mr Dorval], then there is a high potential for the children’s development to be impacted, which may result in regressive behaviours or their experiencing anxiety and trauma. Furthermore, this may have the unintended consequence of [Ms Augustin]’s mental health deteriorating. Given the high level of emotional co-regulation that occurs in the relationship between the mother and the children, [X] and [Y] rely heavily on their mother to provide stability, consistency, and predictability in terms of her responses to them. In order to undertake this, the mother is required to self-regulate. If the mother is unable to manage her own thoughts, feelings and behaviours as a result of the need to deal with [Mr Dorval] on an ongoing basis, then there is a likelihood that the mother may also become emotionally dysregulated. If this occurs, then the mother’s ability to remain attuned and responsive to the needs of her children will be compromised. It is for this reason that the Report Writer has significant reservations about any spend time arrangements between the children and their father, whether this occurs face to face, in a supervised environment or in the context of electronic communication.
I accept this evidence from Ms F as to the state of the mother’s mental health, and the risks posed to it by any reintroduction of time between the father and the children.
Further, the father was cross-examined about the mother’s mental health. He accepted that the children spending time with him might trigger her psychological difficulties.
Benefit to the children of having a relationship with the child’s parents
The children currently have an established and loving relationship with their mother. The Court is required to assess the current relationship between the children and the father, and the benefit of having a relationship with the father in the future.
Presently, the children and the father do not have a relationship. The father has not seen the children for around five years. X is able to recount positive and negative memories of his father. Y only recalls the times her father hurt her mother.
An aspect of the father’s case was that he had been deprived by the mother of the opportunity during the course of these proceedings to spend time with the children, and to have the opportunity of establishing a relationship with them. That contention requires close examination.
On 27 July 2022, the Court ordered by consent that the father’s time with the children be reserved, pending the children’s engagement in therapeutic counselling and “satisfactory outcome of same” (order 1). The mother was ordered within 28 days to obtain a mental health plan for both children, to engage in therapeutic counselling to assess the children’s resilience and resulting capacity to have contact with the father. The mother was then to obtain a report from a treating counsellor addressing the children’s emotional well-being and mental resilience for commencing time with the father (order 2). The ICL was to seek funding through Victoria Legal Aid (‘VLA’) to obtain a report from the children’s treating psychologist, and in the event that VLA did not fund the cost of the report, the report was to be paid for by the father.
On 10 October 2022, further orders were made by consent. Notation D to the orders records that the mother’s solicitor indicated that the children were on a waitlist to see a therapeutic counsellor and requested that the details of the counsellor not be provided to the father’s legal representatives.
On 27 February 2023, the Court made further orders by consent. Order 7 provided that the “cost of therapeutic counselling for the children…to assess their resilience and resulting capacity to have contact with the father…be shared equally between each parent”.
On 5 June 2023, Chief Judge Alstergren made an order (order 10) that the parties were to do all things necessary to enrol the children in a contact centre nominated by the ICL. The Chief Judge also ordered (order 11) that supervised time between the father and the children was to recommence after the first “psychological therapy session” of the children had occurred. A notation to the orders indicated that three sessions of psychological therapy for the children had been arranged for the end of June and July 2023.
On 27 May 2024, the Court ordered (by reference to order 2 of the orders of 27 July 2022 and order 11 of the orders of 5 June 2023) the mother to obtain from the family therapist, a report addressing whether the children were mentally stable, resilient and have the capacity to have contact with father (order 2). That report was to be completed by 1 September 2024. The father was ordered to cover the cost of the report. The ICL was ordered to file the report at least 14 days prior the final hearing.
On 23 October 2024, the Court ordered that the family therapy report referred to in order 2 of the orders made 27 May 2024 be filed by the ICL within 28 days.
Notwithstanding this suite of orders above, no report about the children from a psychologist, therapist or counsellor was ever prepared, and the father’s time never commenced.
In his affidavit, the father asserts that the mother failed to comply with orders to engage the children in therapeutic counselling. He deposed that both parties enrolled in M Children's Contact Service in Suburb N. Other than these statements, he provides no other evidence on this issue. Notably, there is no evidence of his attempts to secure compliance with any of the orders. There is no evidence from him as to his attempts or offers to fund the provision of the relevant reports, his efforts to find a counsellor, or his attempts to comply with the order that he share the cost of therapeutic counselling.
In her trial affidavit filed 16 May 2024, the mother deposed that the children had been on a waitlist for a “relevant counselling service”, and that they are “now engaged with [O Centre]”. She also indicated that she had received funds from “the victims of crime to engage in counselling with a practitioner [Ms D] from [O Centre]. I could not afford to pay a private counselling service provider”. Furthermore, and somewhat significantly, in her affidavit, the mother also deposed that subsequent to the order of 27 February 2023 requiring the parties to share the cost of therapeutic counselling, the father told her he could not afford to pay for the counselling.
The mother was questioned on these issues in the witness box. She effectively confirmed the evidence in her affidavit. She was asked about why therapy, and then supervised time, did not occur. She told the Court that after the orders of 27 July 2022, she made inquiries of counsellors. She recalled an order made that the parties were to share the costs of counselling but that “fell through, so I had to go back”. She confirmed that the children commenced therapy in May 2024. She agreed that supervised time did not commence following the first session, stating that she had signed up to a “supervised centre” but was not aware of the process. She could not recall whether she discussed with the children’s counsellors their ability to provide a report to the Court. She agreed no report had ultimately been prepared, but believed that maybe the ICL was in contact with the counsellor to obtain a report. She rejected the suggestion that she deliberately failed to obtain a report to stop the matter progressing.
On these points, I note the father filed his trial affidavit on 3 March 2025. In that document, he responded extensively to the mother’s trial affidavit filed 16 May 2024. Nowhere did he contest her evidence that he had refused to pay for therapeutic counselling. Nowhere did he give any evidence about the mother’s capacity, or lack thereof, to pay for counselling. None of these issues were put to him in the witness box. Not a single question was asked on these topics.
Finally, the ICL confirmed the children were attending on Ms D from O Centre. The Court was informed by the ICL that no report had been provided because Ms D had advised that she did not have the skills or experience to assess the children’s capacity to have contact with the father. The ICL submitted that they were not aware that a report could not be produced until they had followed up.
It is an understatement to observe that the state of the evidence before the Court in respect of the above matters, including attempts to engage a family therapist, why that did not occur, and why the father’s time never commenced, is entirely unsatisfactory. It was incumbent on the parties and the ICL to do more. I do not understand how it comes to pass that a therapist can be engaged without anyone checking (in the context of an actively contested family law proceeding) whether that therapist is willing and able to provide a report. The responsibility for this entire state of affairs rests at the feet of the parties.
The state of the evidence on this issue, in my view, permits only the following findings: that the mother had difficulty engaging a counsellor and was placed on a waitlist, that the mother was unable to fund private counselling or therapy for the children, that the children are now seeing a counsellor, that the current counsellor is not able to provide a report to the Court and that the father has not seen the children.
As to my observations about the state of the evidence on this issue, they are as follows. First, the father has not placed any evidence before the Court of his attempts to identify and secure a family therapist that could provide a report. Second, neither the father, nor the mother, produced any evidence of their respective attempts to follow up the reports that were to have been prepared. Third, the father produced no evidence to rebut the mother’s affidavit evidence that he refused to pay for half the costs of family therapy. Fourth, the father produced no evidence of his attempt to comply with the order of 27 May 2024 that he pay for the costs of a family therapy report. Fifth, beyond the evidence of the parties enrolling in a centre for supervised time and the mother’s evidence of not being aware of the process for supervised time to commence, neither party produced any evidence of their attempts to comply with the order of the Chief Judge of 5 June 2023.
The failure of the parties to undertake reportable therapy or counselling and the consequence of that inaction (the father not seeing the children), leads to a question as to whether this proceeding should be adjourned to enable the family therapy to take place. Whilst the question of adjournment was not raised by the parties in closing submissions, I have given this issue close consideration. Ultimately, I have decided against this course for the following reasons:
(a)no party requested the matter be adjourned;
(b)orders for therapeutic counselling were first made more than two years ago. While the children are seeing a counsellor, I cannot be satisfied given the state of the evidence, that the children are engaged in the type of therapy contemplated by the Court orders. Given a therapeutic intervention has not occurred after all this time, and given the apparent ambivalence of the parties to complying with Court orders, I have little confidence that appropriate therapy would commence even if the matter were adjourned;
(c)I am not satisfied that the parties could afford the cost of family therapy. The mother says she does not have the capacity to pay. She is relying on “victims of crime” assistance to secure the present counselling for the children. The father has produced no evidence that he could pay (there is no evidence he made any effort to comply with court orders requiring him to pay). It would seem to be apparent from the orders made in this proceeding that the ICL attempted and failed to get funding for an appropriate report for the children. There is no evidence from the parties as to their earnings or respective financial positions;
(d)adjourning the matter to enable therapy to take place would result in an untold impact on the children. The children are seeing Ms D, and the evidence is that they are settled and happy. By adjourning the matter to obtain a therapist’s report, I would be requiring the children to be placed in a new and potentially additional therapeutic setting. There is no evidence before me as to what that might mean for the continuation of the children’s therapy before Ms D (which I infer has been beneficial for them) or whether that therapy could continue. There is a real risk of disruption to the children’s current therapeutic or psychological supports and their wellbeing; and
(e)the matter has been in this Court for over 3.5 years. The parties, and in particular the children and the mother, need finalisation. Adjourning the matter now would mean, given the time taken for therapy and the lists of this Court, the matter would not be ready for trial until sometime in the first half of 2026.
Finally, on the issue of whether the children are likely to benefit from any relationship with the father, Ms F stated in cross-examination that any period of time (including supervised time) would unlikely be of any benefit to the children given the lack of progress the father has made with respect to his own behaviours.
The position, then, is that the father does not have a relationship with the children. The evidence before me does not support a conclusion that the mother has deliberately sought to deprive the children of a relationship with their father. Both parties bear responsibility for the failure of therapy to take place. There is little evidence before the Court of what, if any, benefit to the children there may be in the future of having a meaningful relationship with their father, though I accept the position often accepted in this Court that children generally benefit from a relationship with both parents where it is safe to do so. What evidence there is before me suggests that time between the children and the father is unlikely to benefit the children.
IS THE FATHER AN UNACCEPTABLE RISK?
It is implicit from the position taken by the father that he accepts he presents a risk to the children. He would not be proposing supervised time were it otherwise. The father’s position is that any risk he poses can be mitigated by the imposition of a requirement that his time with the children be supervised. The mother’s case is that the father is an unacceptable risk in any circumstance, including if his time with the children were supervised.
The father has engaged in family violence within the meaning of the Act. For the reasons set out earlier, I am not persuaded he is a changed man. I consider there to be a real risk of him engaging in further family violence as defined in the Act. The specific risks the father poses to the mother and the children are as follows:
(a)there is a risk to the physical health of the children if the father were to relapse into the use of drugs and alcohol. The father’s inability to consider that risk and his continued consumption of alcohol, despite being a self-confessed alcoholic, points to his limited insight into this matter. That said, any risk arising from relapse into drug and alcohol use could be mitigated by his time being supervised;
(b)the children are fearful of seeing their father. There is a risk to their emotional welfare if they see him. That risk to their welfare is present, even if the children’s time with the father was to be supervised. That was certainly Ms F’s view and I accept her evidence. I also accept her evidence that there is a risk of the children being re-traumatised simply from seeing the father, given their experiences of him;
(c)there is a risk to the children of the father becoming emotionally dysregulated. It is notable that he was dysregulated in front of Ms F. It is possible he could become dysregulated in front of a supervisor. While I expect the supervisor would end the time if that were to occur, the children would nevertheless experience some exposure to his dysregulated behaviour in the period prior to it being stopped;
(d)there is a risk to the mental health and welfare of the mother of the children if the father is permitted to see the children (see earlier evidence from Ms F). If the mother’s mental health and wellbeing is compromised, that has potentially very serious consequences for the children, given she is their primary carer. The risk to the mother’s mental health and the consequences it may have for the children exists, even if the children’s time with the father were to be supervised; and
(e)allowing the children to spend supervised time with the father will place them in the middle of the parental conflict that has existed. The mother has serious concerns about the children spending time with the father, and it is likely the children would become aware of the mother’s concerns around spending time with the father, despite her best efforts. Her concerns for the children when with the father will likely have an impact on the children and their ability to either reconnect with or enjoy time with their father. The position in which the children will find themselves will likely be one of confusion mixed with fear and trepidation.
On the question of whether supervision of the children’s time with the father would mitigate any risk to them, Ms F at paragraph [78] of the Family Report stated as follows:
78. Given the ongoing concerns about [Mr Dorval], including his lack of awareness or demonstrated accountability or understanding of his behaviours, it would appear that the only option to reduce the risk to the children, which allows them to spend time with [Mr Dorval], would be supervised time at a contact centre. However, it is noted that such arrangements are generally only able to continue for a specified period of time (for example, up to ten sessions or for no more than six months). It is, therefore, the assessment of the report writer that these parameters would be insufficient to support and encourage the development of a relationship between the father and the children and provide for their safety. Furthermore, the high risk of harm outside of supervised contact could not be seen to be in [X] or [Y]’s best interests to spend time with the father in any context. [X] presents as quite vulnerable and may struggle to engage in self-protection behaviours given the reports of how he behaved in the past, spending time with the father, including self-harming behaviours along with harmful aggressive behaviours towards others. He is also at risk of copying [Mr Dorval]’s behaviour and then displaying his own challenging behaviours, making [Ms Augustin]’s parenting role more difficult. [Y], given her more reserved and shy personality, may also be vulnerable to being exposed to [Mr Dorval]’s potentially harmful behaviours and may also not be able to self-protect against such risks.
I also refer to paragraph [79] of the Family Report as set out earlier in these reasons.
Ms F expanded on these matters in the witness box, noting that the father was quick to anger and frustration. Asked whether there was considerable risk in supervised contact, Ms F agreed.
I accept all of the above evidence from Ms F.
For all of the above reasons, I find that the father presents an unacceptable risk to the children. I also find that there is a real risk that contact between the father and the children may affect the health and welfare of the mother and compromise her ability to care for the children. These risks cannot be mitigated through supervision of the father’s time.
The following matters also weigh against the Court making any order for supervised time to occur:
(a)the father adduced no evidence that his proposed supervisors (E Contact Service) were prepared, or had the capacity to, supervise the father and the children for the periods sought by the father on a long-term basis. I note Ms F’s evidence was that she was unaware of any supervision services that provide long-term supervision, and her evidence that it would be disruptive to the children for them to commence supervised time for a period, only to then have it stopped;
(b)the father adduced no evidence that he had the capacity to pay for any services that E Contact Service may provide and presumably charge him for on a long-term basis. In fact, such evidence as there is suggests the father may not be able to afford the costs on a long-term basis. It must be remembered that he was unable to pay the costs of a family therapist; and
(c)no satisfactory answer was provided to the question of what would happen in the event the father behaved inappropriately such that E Contact Service ceased a supervised session. The father’s answer through his counsel was that time on that particular occasion would be stopped, but then resume on the next occasion. There are various problems with that answer, one of which is the ongoing risk of harm to the children depending upon what occurred. It would seem to be an almost inescapable conclusion that if an issue arose, the parties would find themselves back in court, with all the attendant difficulties, costs, and pressures that come with that.
THE ORDERS
For the reasons set out above, I regard it as being in the best interests of children that they live with their mother and spend no time with their father. The father is an unacceptable risk to the children. The father spending time with the children also places at risk the health and welfare of the mother and her capacity to care for the children. Any benefit that the children may gain from having a relationship with their father is outweighed by the risks to them and their mother of such a relationship. It is not in the children’s best interests for me to make an order that they spend time with their father.
The parties were in agreement that the mother should have sole decision-making responsibility for the children. I agree that it is in the best interests of the children for that to occur, and will make an order to that effect.
The ICL sought an order that in the event that the father was not successful in his application to spend time, he be permitted to send them cards and gift on special occasions. The ICL also proposed that the mother be permitted to inspect any gifts or cards to determine whether they were appropriate, and that she retain a discretion not to give them to the children if they were inappropriate. These orders were opposed by the mother on the basis that any contact from the father with the mother or the children would likely re-traumatise her.
On the question of gifts and cards, Ms F recommended that in the event the Court ordered that no time take place between the father and the children, the father be permitted to send cards and gifts. In the Family Report, Ms F stated that making provision for cards and gifts would ‘allow the children to maintain a connection with [the father] and then, when they reach adulthood, if they wish to see [the father], then they will have already had a connection to him and therefore, it may not be such a significant step if they have continued to have some level of communication with him and may therefore reduce some stress and anxiety for them’. In the witness box, she expanded on this by stating:
And I felt that it would – if the children changed their mind at any point in the future about having a relationship with the father, then there would be some connection there existing that might help them as adults to be able to recognise that he was in their lives, if not from a distance. And that might help that reconciliation down the track if they decide.
While Ms F effectively stood by the recommendation she made in the Family Report that the father be permitted to send gifts and cards, she acknowledged in cross-examination there was a potential detriment to the children if the father was permitted to send gifts and cards.
I accept the recommendation of Ms F set out in the Family Report. She assessed the mother and the children as being capable of managing the receipt of gifts and cards from the father on a periodic basis. The potential detriment to the children to which she referred in the witness box was not particularised or explored. I agree that it is in the best interests of the children to attempt, so far as is possible, to maintain some connection with their father so that if they wish to pursue a relationship with him in adulthood, they will not be doing so without any foundation. I will make orders in the terms sought by the ICL which I regard as being in the children’s best interests.
The father sought a range of ancillary orders including orders dealing with communication between the parents, injunctions, liberty to obtain school reports and newsletters, and notifications in the event of illness. I decline to make these orders in circumstances where there is to be no time between the children and the father, and where the mother will exercise sole decision-making responsibility.
The parties were agreed that the surnames of the children be changed to ‘Dorval Augustin’. I agree that it is in the best interests of the children to make such an order.
Given the history of the interactions between the parents in this matter and the ultimate orders that I have made, it is appropriate and in the best interests of the children that the mother be at liberty to provide a copy of these orders to schools, medical practitioners and mental health practitioners that the children may attend.
I have stepped back to consider the suite of orders I propose to make. I am satisfied that, taken together, they are in the best interests of the children.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 16 June 2025
0
4
1