Duffield & Carlon - [2021] FedCFamC1F 344

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Duffield & Carlon [2021] FedCFamC1F 344

File number(s): SYC 8265 of 2018

Judgment of: MCCLELLAND DCJ

Date of judgment: 24 December 2021

Catchwords: FAMILY LAW – PARENTING – Magellan – Unacceptable risk – Where the father has previously been convicted of child sex offences – Where the father failed to disclose his previous convictions – Where it is alleged that the father sexually and physically abused the mother – Where it is alleged that the father has engaged in acts of excessive discipline with the children – Where the mother has engaged in alcohol abuse – Where the father engaged in manipulative behaviour to promote his relationship with the children at the expense of the children’s relationship with the mother – Best interests of the children in maintaining meaningful relationships with both parents – Mitigation of risks associated with respective parents – Mother to have sole parental responsibility with supervised spend time orders for the father – Children to be advised of the father’s convictions

Legislation:
Crimes Act 1900 (NSW) ss 61J(1), 61M(1)

Criminal Appeal Act 1912 (NSW) s 5(1)(b)

Child Protection (Offenders Registration) Act 2000 (NSW) s 12C

Family Law Act 1975 (Cth) ss 4AB, 43(1)(c), 61DA, 61DA(2)(b), 60CC, 60CC(2), 60CC(2A), 60CC(3), 65DAC(2), 65DAC(3)

Evidence Act1995 (Cth) s 140(2)

Cases cited:
B & B (1993) FLC 92-357

Blinko & Blinko [2015] FamCAFC 146

Dundas & Blake (2013) FLC 93-552

Fogarty, John, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249

Johnson & Page (2007) FLC 93-344

Mr Duffield v R

M and M (1988) FLC 91-979

Marvel v Marvel (2010) 43 Fam LR 348

Mazorski v Albright (2007) 37 Fam LR 518

McCall and Clark [2009] FamCAFC 92

N v S (1996) FLC 92-655

Napier & Hepburn (2006) FLC 93-303

Nikolakis & Nikolakis [2010] FamCAFC 52

Russell v Close [1993] FamCA 62

Rice & Asplund (1979) FLC 90-725

Division: Division 1 First Instance

Number of paragraphs: 399

Date of hearing: 12–16 July 2021

Place: Sydney (via videolink)

Counsel for the First, Second and Third Applicants: Mr Livingstone

Solicitor for the First, Second and Third Applicants: David H Cohen & Co

Counsel for the Respondent: Ms Knight

Solicitor for the Respondent: Legal Aid NSW

Counsel for the Independent Children's Lawyer: Ms Messner

Solicitor for the Independent Children's Lawyer: Holmes Donnelly & Co Solicitors
ORDERS

SYC 8265 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR DUFFIELD

First Applicant

MR B DUFFIELD

Second Applicant

MS C DUFFIELD

Third Applicant

AND:
MS CARLON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

24 DECEMBER 2021

THE COURT ORDERS THAT:
Parental Responsibility
1.That the mother shall have sole parental responsibility for the children.

Live with
2.That the children shall live with the mother.

Spend time
3.That the children shall spend time with the father as agreed between the parties in writing, and failing agreement, during school terms as follows:
(a)Each alternate week, commencing from the first week after the date of these Orders, from the conclusion of school on Friday (or 3.00pm if the children are not at school that day) to the commencement of school the following Monday (or 10.00am if the children are not at school that day).

4.That the children shall spend time with the paternal grandparents during school terms at such times as may be agreed between the parties in writing.
5.That during school holidays, the children shall spend time with the paternal grandparents as agreed between the parties in writing and failing agreement, as follows:
(a)For one half of the short school holiday periods following Term 1, Term 2 and Term 3, as agreed between the parties and failing agreement:
(i)In even numbered years, from the conclusion of school on the last day of the school term period to the midpoint of the school holiday period; and
(ii)In odd numbered years, from the midpoint of the school holiday period to the commencement of school on the first day of term in the following school term period.

(b)During the Christmas school holidays following Term 4:
(i)For 3 periods of 7 consecutive nights, with such periods not to take place over Christmas, and to occur no less than 5 days apart from one another, unless otherwise agreed between the parties.
(ii)At any other time as may be agreed between the parties in writing.

6.That for the purpose of the children’s time in accordance with Order 5:
(a)The children’s time that they would otherwise spend with either the mother or the father during any such period that they are spending time with the parental grandparents shall be suspended; and
(b)IT IS NOTED that the father shall be at liberty to spend time with the children whilst they are in the care of the paternal grandparents during that period, subject to the parties’ compliance with Order 7 herein.

7.The time between the children and their father must always be in the presence of and company of the paternal grandparents or such other person as agreed between the parties in writing, and in the event of their inability to be present for any time the children are to be returned, immediately, to the care of the mother.
8.That for the purposes of these orders:
(a)The “school holiday periods” will be referrable to the school holidays set down by the school attended by the children.
(b)“School holiday periods” shall be deemed to commence after school/after school care on the last day of the school term and conclude at the commencement of school/before school care on the first day of school for the subsequent term;
(c)The first half of the school holiday period shall be defined as the period commencing at the conclusion of school on the last day the children attend school for the school term until the midpoint of the school holiday period;
(d)The second half of the school holiday period shall be defined as that period commencing at 4.00pm on the midpoint of the school holiday period until the commencement of school on the first day of school for the subsequent term;
(e)The midpoint of the school holiday period shall be calculated by counting the number of days (including partial days as a full day) and by dividing the number thereby derived by two and then:
(i)In the event that there is an odd number of days in the school holiday period then the midpoint is and changeover shall occur at 4.00pm on the odd day; and
(ii)In the event there is an even number of days then the midpoint is and changeover shall occur at 4.00pm on the last day of the first half of the school holidays.

9.That the mother’s time with the children shall be suspended and the father shall spend time with the children, if the children are not otherwise in the father’s care;
(a)From 10.00am on Sunday of Father’s Day in September to before school or 9.00am on the following Monday
(b)From after school until 6.00pm on each child’s birthday if it falls on a school day and from 2.00pm to 8.00pm if it falls on a non-school day;
(c)From after school until 6.00pm on the Father’s birthday, if it falls on a school day and from 2.00pm to 8.00pm if it falls on a non-school day;
(d)Other than for Christmas Day 2021, from 2.00pm to 8.00pm on Christmas Day in even numbered years and from 10.00am to 2.00pm on Christmas Day in odd numbered years;
(e)Any other times as agreed in writing between the parties.

10.That the father’s time with the children shall be suspended and the mother shall spend time with the children, if the children are not otherwise in the mother’s care:
(a)From 10.00am on Mother’s Day (and the children shall remain in the mother’s care)
(b)From after school until 6.00pm on the Mother’s birthday if it falls on a school day and from 2.00pm to 8.00pm if it falls on a non-school day;
(c)From after school until 6.00pm on each child’s birthday, if it falls on a school day and from 2.00pm to 8.00pm if it falls on a non-school day;
(d)Any other times as agreed in writing between the parties.

11.That the paternal grandparents shall communicate with the children in accordance with the children’s wishes by telephone and other electronic devices but not later than 8.30pm, when the children are in the mother’s care.
12.That the father shall communicate with the children in accordance with the children’s wishes by telephone and other electronic devices but not later than 8.30pm, when the children are in the mother’s care.
13.That the mother shall communicate with the children in accordance with the children’s wishes by telephone and other electronic devices but not later than 8.30pm, when the children are in the father’s care.

Gifts
14.That the father may provide either child with access to cash money or a key card provided that the sum provided shall not exceed $30 per child per week.
15.Save and except for school or extracurricular activities, the applicants are not to make valuable gifts to either child other than on the child’s birthday and at Christmas.

Engagement with Dr D
16.That within 28 days of the date of these Orders, the parties do all acts and things to cause the children’s attendance upon Dr D for the purpose of making a sensitive disclosure to the children about the father’s convictions with such appointments to occur at the frequency and to continue for the duration recommended by Dr D.

Family therapy
17.That within 35 days of the date of these Orders, the mother do all acts and things and sign all documents necessary to engage with a family therapist (“the family therapist”) with the children for the purposes of family therapy, and for the purposes of this Order:
(a)The purpose of family therapy is for the mother and the children to work on issues such as improving their communication, conflict management strategies, limit setting behaviours and any other matters as the family therapist sees fit;
(b)The mother, and the children will attend upon family therapy at such times and dates as nominated by the family therapist;
(c)IT IS NOTED that the father and the parental grandparents shall be at liberty to attend appointments with the Family Therapist at the invitation and request of the family therapist.

18.The father shall pay for all costs associated with X and Y’s mental health treatment and therapy, including for the family therapy attended upon by the mother and the children.
19.That the parents and paternal grandparents shall do all acts and things to support and encourage the children to engage with their mental health treatment.

Changeover
20.That to facilitate the father’s supervised time with the children as outlined in these Orders when changeover does not occur at the school, the mother shall deliver the children to McDonalds at Suburb E at the commencement of the father’s time, and the father, with one of or both of the paternal grandparents shall deliver the children to McDonalds at Suburb E at the conclusion of the father’s time.

Communication and the Exchange of Information between the parties
21.That as and from the date of these Orders, the parties, by way of communication between the mother and the paternal grandmother, shall ensure that they each provide the other with their current residential address, email address and a current telephone number on which they can be contacted and shall advise one another of any changes to those details as soon as practicable thereafter, or in any instance within 7 days.
22.That unless in case of emergency, including but not limited to illness, injury, accident and hospital admissions, the parties shall communicate, by way of communication between the mother and the paternal grandmother, by email or such other form of communication as agreed between the parties.
23.That in the case of emergency, the parties will communicate as soon as reasonably practicable via text message or email.
24.The parties shall ensure that, by way of communication between the mother and the paternal grandmother, the other is kept informed of:
(a)Any medical problems or illnesses suffered by the children whilst in their care, such medical problems to include, but not be limited to, illness, injury, psychological distress and admittance to hospital;
(b)Any medication that has been prescribed for the children and shall ensure the other party is provided with this medication whilst the children are in the other party’s care.

25.That each party shall, as soon as practicable, contact the other party to advise in the event that the children:
(a)Become seriously ill;
(b)Are hospitalised; or
(c)Are involved in an accident, in circumstances requiring the attention of a medical practitioner or admission to hospital.

26.That each party shall provide such consents and authorities as may be required:
(a)By any school attended by the children to enable the parties to receive reports relating to the children and to discuss their welfare and performance at the school with their teachers.
(b)By any hospital, medical practitioner, or other health care professional to enable the parties to receive reports in relation to the children’s health, welfare and treatment and discuss those issues with the children’s health care practitioners.

Other matters
Children’s therapy
27.That within 42 days of the date of these Orders, the mother shall attend upon a practitioner from her local F Health Service (FHS) to seek a referral for a counsellor or psychologist (“the children’s practitioner”) for the children to attend upon and shall facilitate the children’s attendance upon the children’s practitioner at such times and dates as requested by the children’s practitioner.

Mother’s therapy
28.That the Mother shall continue to attend upon her counsellor, Ms G, or such other counsellor as nominated by Ms G and shall comply with all reasonable recommendations made by Ms G.
29.That within 42 days of the date of these Orders, the mother shall attend upon her General Practitioner for the purpose of obtaining a referral to psychiatrist to undergo a psychiatric evaluation and shall thereafter comply with all reasonable recommendations made by the psychiatrist including but not limited to the administration of any prescribed psychotropic medication and the ongoing attendance with the psychiatrist or such other medical professional, including a service and/or professional specialising in the treatment of alcohol abuse, as may be recommended by the psychiatrist.

Father’s therapy
30.Within 42 days of the date of these Orders, the father shall attend upon a forensic psychologist who has experience working with sexual offenders and shall continue to attend upon the forensic psychologist as and when recommended by the forensic psychologist and comply with all reasonable recommendations.
31.The mother to be at liberty to approach the father’s forensic psychologist either herself or through a counsellor or therapist to express any concerns relating to the counsellor’s expertise, if she notices any matter of concern including but not limited to changes in behaviour, inappropriately sexualised behaviour or grooming behaviour.

Section 121
32.Pursuant to s 121(9)(d) of the Act, the parties are each at liberty to provide a sealed copy of these Orders and the report of Dr D dated 22 December 2020 to:
(a)The Family Therapist;
(b)The children’s practitioner, or any other medical practitioner attended upon by the children in accordance with these Orders.
(c)Any medical practitioner attended upon by the mother in accordance with these Orders;
(d)Any medical practitioner attended upon by the father in accordance with these Orders.

Restraints
33.That the parties be restrained from consuming alcohol during any period of time that the children are in their care and the mother be restrained also from consuming alcohol in the 24 hours immediately preceding such time.
34.That, as and from the date of these Orders, each party:
(a)Is restrained from denigrating or making negative comments about the other party in the presence or hearing of the children.
(b)Is restrained from discussing these proceedings with the children.
(c)Must use their best endeavours to prevent any other person from doing any act of thing that has as its intention or effect the denigration of the other party in the presence of hearing of the children, including but not limited to instructing any family member or person with whom the children are cared for, not to say or do anything which has as its intention or effect the denigration of either party.

35.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Costs
36.The father pay one quarter of the costs of the ICL being $4862.75 less the amount of $1650 which he has already paid together with an additional amount of $935 in respect to outstanding costs payable to Dr D.
37.The father shall have 90 days to pay the amount referred to in Order 36.

IT IS NOTED, BY CONSENT:
A.That within 42 days of the date of these Orders, the mother shall do all acts and things necessary to cause an application to be filed with the National Disability Insurance Scheme (NDIS) to receive such funding as she may be determined eligible to receive to assist X and/or Y and/or the mother.
B.That within 28 days of the date of these Orders the father shall make an application to the Department of Human Services (Child Support) for an Administrative Assessment in respect of his child support obligations for X and Y.
C.That in light of the therapeutic interventions completed for by these Orders and the unknown effect of those interventions on the children and their respective relationships with the mother, father and paternal grandparents, the parties agree and acknowledge that neither party shall rely upon the principles espoused in Rice & Asplund to resist an Application made by either party in respect of the nature and frequency of the children’s time in the future with a party to these proceedings.
D.The mother has agreed that she will not change or attempt to change the children’s religion.

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 Duffield & Carlon has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION

This matter concerns the competing parenting Applications between the parties, being Mr Duffield (“the father” or “the First Applicant”), Mr B Duffield (“the paternal grandfather” or “the Second Applicant”) and Ms C Duffield (“the paternal grandmother” or “the Third Applicant”) (collectively, “the Applicants”), and Ms Carlon (“the mother” or “the Respondent”). These proceedings are in respect to the two (2) children of the de facto relationship of the father and mother (collectively, “the parents”), being X (“X”), born in 2005, and Y (“Y”), born in 2008 (collectively, “the children”).
The children currently live with the mother and spend one (1) night each alternate weekend with the father under the supervision of the paternal grandfather and paternal grandmother (collectively, “the paternal grandparents”). By way of summary, the Applicants seek orders that the parents have equal shared parental responsibility in respect to the children, and for the children to spend equal time with the parents on a week-about basis, without a requirement for supervision. This is opposed by the mother and the Independent Children’s Lawyer, who both seek orders that the mother have sole parental responsibility for the children and for the children to live with her and spend time with the father on alternate weekends from after school Friday until before school Monday supervised by the paternal grandparents. The parties are in agreement that the children should spend week about time with each parent on school holidays but the mother and the Independent Children’s Lawyer contend that the time that the children spend with the father should be with the paternal grandparents.
For reasons relating to the fact that the children are at an unacceptable risk in the care of the father I have made orders consistent with the proposals of the Independent Children’s Lawyer and the mother.
BACKGROUND
I will now set out background facts and where controversial, the parties’ respective factual contentions. I have done so primarily to give context to the nature of the history of the parental conflict in this matter. I will subsequently set out my findings in respect to material factual contentions, that is, where the factual finding is relevant to the issues requiring determination in these proceedings.
In 1943, the paternal grandfather was born. He is currently aged 78 years.
In 1944, the paternal grandmother was born. She is currently aged 77 years.
From 1964 until 2012, the paternal grandfather was engaged in part-time employment with the Australian Defence Force.
In or about December 1966, the paternal grandfather commenced his employment with the VV Group in Australia.
In 1975, the father was born. He is currently aged 46 years.
In 1980, the mother was born. She is currently aged 41 years.
The father acknowledges that he did smoke marijuana “very” intermittently when the parties first met, but denies consuming marijuana since in or about 1998.
In 1999, the parents commenced their relationship. This occurred in or around July 1999, whilst the father was employed in hospitality and the mother was employed by the H Company.
The father contends that, in or about 2000, the parents commenced cohabitation. Comparatively, the mother contends that, in or around 2001, the parents commenced cohabitation. That difference is not material to this decision.
There is a dispute between the parties as to the extent to which they have, in the past, consumed alcohol. It has not been necessary to resolve that controversy. For reasons which I explain, I am satisfied that the mother currently has a problem with binge drinking.
The father contends that, in or about 2000, the mother informed him that she had been asked by her mother, the children’s maternal grandmother, to leave after raising the issue of child sexual abuse by her stepfather’s employer at age 14 years and then lived with her grandmother and maternal uncle and aunt in the subsequent years. It has not been possible to determine whether this occurred. I accept, however, that there have been periods where the mother has had a strained relationship with members of her family.
In approximately 2003, the parents moved from the caravan park into a property located at Suburb J in New South Wales (“the Suburb J property”).
From 2003, shortly after moving into the Suburb J property, the father invited the child residing in the neighbouring property (“the neighbour’s son”), then aged 11 years, to come into the parents’ home. On these occasions, the father played cricket in the backyard or on gaming consoles in the lounge room with the neighbour’s son.
The father contends that, in or about 2003, the mother increased her consumption of alcohol. He further contends that, during this time, an incident occurred wherein the mother became intoxicated with alcohol to the point of throwing his work laptop into a nearby creek.
The mother contends that, in 2004, an incident occurred wherein, during an argument between the parents, the father yelled words to the effect of “If you leave me, I’ll kill you[r] family, including your sister”. It has not been possible to determine whether the father made threats to harm the mother or any other person. For reasons which I explain, I am, however, satisfied that the father has lost his temper and used loud, aggressive and insulting language directed towards the mother.
The mother contends that, before 2005, the father would frequently request the mother to have sex at mutual friends’ homes. She further contends that, when she refused those requests, the father would insult and call her profanities.
The mother contends that, in 2004, she fell pregnant with X as a result of the father removing his condom without her consent during sexual intercourse. The mother further contends that the father deliberately did this whilst he was aware that the mother was not currently taking the oral contraceptive pills and that she did not want children. It has not been possible to make a finding as to whether this act occurred.
The mother ceased working when she was 8 months pregnant.
In 2005, X was born. He is currently aged 16 years.
Sometime after August 2005, an incident occurred involving police. The father contends that this occurred in or about late October 2005. He contends that the mother, while intoxicated with alcohol, left the Suburb J property for several hours and, upon her return, she informed him that she had been sexually assaulted by a stranger near the Suburb J property. The father further contends that, as a result, he called the police and the mother subsequently underwent a sexual assault assessment at K Hospital, which could not verify that she had been sexually assaulted.
Comparatively, the mother contends that this incident occurred one evening in 2007 when the parents and a friend of the father were drinking alcohol. She contends that, as a result of the parents arguing, she left the Suburb J property and, upon her return, the father swore at her and caused her phone to be smashed which caused her to leave the property again. The mother further contends that, upon her return home, the doors of the Suburb J property were locked and, as a result, she remained in the laundry until the father woke her up. The mother denies informing the father she had been sexually assaulted and, comparatively, she contends that the father was the person who reported that she had been sexually assaulted. The mother acknowledges she was admitted to hospital overnight and discharged after a sexual assault examination. She contends, however, that she acceded to the police questioning and the hospital procedures at this time, as a result of her poor recollection of the incident. The mother further contends that she did not consume alcohol again for seven (7) years following this incident.
In 2006, the mother returned to part-time employment on a basis of one (1) day a week, following X’s birth.
The mother contends that, in or around 2006, the father moved the computer into the spare bedroom in the Suburb J property (“the spare room”) and installed a lock on the spare room door which could only be opened from inside the room.
The mother contends that, from 2006, she observed the father and the neighbour’s son playing on the computer on two or three occasions per week. She further contends that, a few weeks after these visits commenced, the father began to close the spare room door and, when she asked him why he closed the door, the father answered that it was because X would come into the room. The mother also contends that, on several occasions, she explicitly questioned the appropriateness of these visits to the father.
From 2007 to 2008, until she fell pregnant with Y, the mother worked two full days and two or three additional night shifts per week in the course of her employment.
The mother contends that, in or around 2008, during an occasion when the father and the neighbour’s son was playing on the computer in the spare bedroom, the father left the spare room and unsuccessfully attempted to forcefully have sexual intercourse with her. She further contends that the father then returned to the spare room where the neighbour’s son remained during this incident.
The mother contends that, in 2008, she tried to open the door of the spare room on several occasions when the father and the neighbour’s son was inside and observed the door to be locked.
In 2008, Y was born. He is currently aged 13 years.
From late 2008 to 2010, the mother did not work following Y’s birth.
The mother contends that, in or around 2009, the father disclosed to her that he was sexually assaulted by a neighbour when he was approximately aged 12 years. She further contends that he disclosed that he had been sexually assaulted by that neighbour on more than one occasion.
In 2009, the father was charged with three (3) offences of Aggravated Sexual Assault without Consent and five (5) offences of Indecent Assault, pursuant to the Crimes Act 1900 (NSW) (“the NSW Crimes Act”) s 61J(1) and 61M(1) respectively, in respect to alleged incidents perpetrated against the neighbour’s son, who was then aged 14 years (“the assault charges”). The father contends that, up until the parties’ separation on a final basis, he received full support from the mother in respect to his assault charges.
In 2009, the father attempted suicide as a result of the circumstances of his assault charges. He contends that he was discharged the next morning after overnight observation in hospital and that he has not made any other suicide attempts since this incident. The mother contends that this occurred on or around 16 January 2009, shortly after caseworkers from the Department of Family and Community Services, as the Department of Communities and Justice was then named (“the Department”), attended the Suburb J property and asked her questions about the neighbours on that date. She further contends that she was not aware of why they attended the property until the paternal grandfather informed her that the father was in hospital for attempted suicide in respect to the allegations made by the neighbour’s son.
The mother contends that, shortly after January 2009, the Department remained involved with the parents and the children after the sexual abuse allegations against the father, and that the family had been assigned a family caseworker from the Department. She further contends that a caseworker from the Department informed the mother that the Department did not want the father to remain in the home.
The mother contends that, from January 2009, the paternal grandfather become increasingly involved in the parents and children’s lives following the allegations of child sexual abuse against the father. She further contends that the father allowed the paternal grandfather to communicate with and attend the children’s schools on his behalf and attended all or almost all of the mother’s appointments with the father.
The mother contends that, in early 2009, the Department drafted an agreement that the father was to live with the paternal grandparents and to be supervised at all times he came to the parents’ home to see the children. She further contends that, about two weeks after the allegations were made against the father, the paternal grandfather informed the mother the father was allowed to return to the Suburb J property and that the father shortly thereafter moved back into the home.
In or around March 2009, the parents and the children moved to a property located in Suburb L close to the paternal grandparents’ home (“the Suburb L property”).
From 2010 to 2012, the mother resumed working one or two nights per week on an “on and off” basis.
The mother contends that, in 2010, she was informed by the father’s lawyer about the details of the allegations against the father in respect to the assault charges.
On 14 May 2010, the criminal trial in respect to the assault charges was heard in the New South Wales District Court. The father was convicted of two (2) counts of indecent assault and one (1) count of aggravated sexual assault. In addition, the Judge issued the father a certificate pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), granting him leave to appeal his conviction on a question of fact (“the initial convictions”).
The mother contends that, following 14 May 2010, the parents’ relationship became more unstable following the initial convictions. She further contends that, from this period, she observed changes to the father’s behaviour including the father being frequently short-tempered, increasingly aggressive and verbally abusive. The mother also contends that the father would call her profane and derogatory insults almost daily and would regularly kick the mother if she refused his requests for sex. She further contends that, during this same period, the father would swear at the children several times a week and call them profane insults. The father denies calling the mother profane insults and also denies swearing at the children.
In or around 2011, the parents attended couples’ counselling with a psychologist known to the paternal grandfather, Mr M. It is clear that the parties’ relationship was strained after the father was charged with the offences relating to sexual abuse of his 14 year old neighbour.
In 2011, the father’s appeal of the initial convictions was heard before the New Court Wales Court of Criminal Appeal (“the appeal”).
In 2011, judgment was delivered in respect of the appeal: Mr Duffield v R (“the appeal decision”). In allowing the appeal against the conviction of aggravated sexual assault and otherwise dismissing the appeal, it was determined the original Judge had erred in directing the jury in respect to an element of the offence under s 61J of the Crimes Act, being the element of “sexual intercourse”. In quashing the conviction of aggravated sexual assault, the Appeal Judges made orders as agreed between the father and the State of New South Wales substituting a verdict of guilty in respect of the offence of indecent assault and, further, quashing the original sentence. The judgment made further orders remitting to the original Judge the three (3) offences of indecent assault for which the father was convicted (“the indecent assault convictions”) for sentencing.
The father contends that, in or about 2011, the mother “partially” reconciled with her maternal family when the parents started attending Christmas and Easter celebrations with the maternal family. The mother contends that the father would often profanely insult the maternal grandmother when the mother took the children to see the maternal grandparents.
On 9 May 2011, the sentencing hearing in respect to the indecent assault convictions was heard before the New South Wales District Court. The father was sentenced to a suspended imprisonment term of 20 months, with supervision by the New South Wales Corrective Services probation service over that term.
On 25 May 2011, the father was entered onto the New South Wales Police Child Protection Register (‘Child Protection Register’), pursuant to s 12C of the Child Protection (Offenders Registration) Act 2000 (NSW).
The father contends that, since January 2012, he has not consumed alcohol and that the mother’s consumption of alcohol has significantly increased.
The mother contends that, from 2012 to 2018, the paternal grandparents spent several nights each week with the children at the parents’ home, being those nights when both the parents were at work.
From 2013, the mother resumed working two full days and two nights per week. She further contends that she occasionally worked on special occasions or to cover shifts for the father when he was ill.
The mother contends that, in or around 2015, she observed the father hit the children on two (2) occasions with his leather belt, specifically striking X’s bottom or upper thigh with the belt through X’s clothes.
The father contends that, until approximately 2016, the mother did not pay anything towards rent, food or utilities expenses in respect to the household.
The mother contends that, in or around 2017, the father regularly became angry about the children making noise and tell the mother to “go fuckin [sic] shut the kids up”. She further contends that, when she had told the children to be quieter, the father would tell her to “belt them”.
In 2017, the paternal grandparents took the children on an overseas trip to Country N. The mother contends she did not have any input as to whether the children travelled overseas.
The father contends that, in or about early 2018, the mother reconciled with her maternal family and, following her reconciliation, the mother’s behaviour changed. He further contends that the mother became more distant with the father and that she would consume alcohol shortly before returning home from work. The father also contends that the mother became impatient with the children and that the tension between the children escalated.
The mother contends that, in or around 2018, X informed her that he had tried to inform the paternal grandfather about the father striking him with a belt and that Y disclosed that the father had smashed his gaming console. She further contends that, around this time, the paternal grandfather told her that she had to stop the father from belting the children, and that she replied that the father would not listen to her.
In or around 2018, the mother was diagnosed with anxiety and prescribed Sertraline by her general practitioner, Dr O. Her general practitioner continues to prescribe this medication.
In or about February 2018, the paternal grandparents purchased a laptop for X to assist with his schooling. The mother subsequently returned the computer.
In or around 14 February 2018, the mother commenced attending upon a counsellor in respect to the father’s history of abusive behaviour during the parents’ relationship and her ongoing concerns about the indecent assault convictions.
The mother contends that, in or around April 2018, the father told the children that he would have to get rid of the family’s dogs in order to continuing paying rent on the Suburb L property. She further contends that the paternal grandfather told the children that the dogs would have to be disposed of during a FaceTime video call. The father and paternal grandfather deny threatening to dispose of the dogs.
In mid-April 2018, the paternal grandparents took the children on an overseas trip to Country P. She contends she again did not have any input as to whether the children travelled overseas.
On 26 April 2018, the parents separated on a final basis when the mother removed the children from the Suburb L property. The mother contends that, around this date, she decided to separate from the father and informed the father of her intention to leave the Suburb L property with the children by email. She further contends that, shortly after emailing the father, he attempted to telephone the mother several times.

From 26 April to July 2018, the mother and the children resided with her stepfather in his home located in Suburb Q, New South Wales. She contends that, immediately after separation, the Department assisted the mother to access various support services, including counselling and financial assistance.
Shortly after 27 April 2018, the mother caused the children to be unenrolled from their current schools and re-enrolled X and Y in R School and T School respectively. The father contends that the mother did this against his expressed opposition to changing the children’s school enrolments. He now accepts, however, that they are content at R School.
The Applicants contend that, shortly after April 2018, the mother removed a mobile phone that X used to contact the father and returned the laptop purchased by the paternal grandparents for X. The Applicants further contend that, since April 2018, they have had irregular telephone and video calls with the children and that the mother monitors this communication.
The mother contends that, after April 2018, the children disclosed to her that the father had hit them with the metal end of his belt and has kicked them with steel cap boots.
The mother contends that, in the months following May 2018, caseworkers from the Department attended her home and interviewed each of the children on several occasions.
The mother contends that, in or around May 2018, the mother attended upon a general practitioner with X. She further contends that X disclosed to the general practitioner that the father had previously struck him with a belt, kicked him with steel cap boots and would throw things at him. The mother also contends that X informed the general practitioner that he would take the blame for Y breaking things so that Y would not get into trouble.
On 28 May 2018, YY Centre, Suburb XX sent a letter to the father enclosing a certificate by a family dispute resolution practitioner pursuant to s 60I of the Family Law Act 1975 (Cth) (“the Act”).
The mother contends that, from late May 2018, the children communicated with the father by FaceTime video call on an approximately weekly basis.
The mother contends that, on 1 June 2018, the Applicants attended X’s high school and saw X for approximately 10 minutes.
On 1 June 2018, New South Wales Police served on the father a provisional Apprehended Domestic Violence Order (“ADVO”) naming the father as a defendant and the mother and children as persons in need of protection. That provisional ADVO restrained the father from approaching both the mother and the children. The mother contends that the ADVO application was made by police after she attended the police station to make a statement.
The father contends that, on or about 6 June 2018, he and the paternal grandfather attended a meeting with the Department in respect to a report that he had struck the children with a belt. The father acknowledges that he had used the belt to discipline the children on two (2) occasions and that this was not an acceptable form of discipline.[1] He contends, however, that he did not use excessive force.[2]
[1] Transcript 13 July 2021, p.150–151.
[2] Transcript 15 July 2021, p.303 line 39.
The Applicants contend that, on or about 26 June 2018, they attended R School to discuss X’s schooling progress with the Acting Principal and Year Coordinator. The father further contends that, during this meeting, he advised the attending school staff of X’s learning disability and medical conditions, of which the mother had not informed the school.
Since approximately July 2018, the mother and the children have resided in a three bedroom apartment located in Suburb S.
The mother contends that, in early August 2018, she observed X refusing to eat food after communicating with the father on the telephone.
On 9 August 2018, the ADVO application was heard in the Suburb U Local Court. The Magistrate made an interim ADVO by consent of the parties which named the father as the defendant and the mother as the person in need of protection.
The mother contends that, later in August 2018, X refused to eat food completely, and after a week of this refusal, he informed her that eating would make him sick and cause his death. She further contends that, as a result, she began preparing X’s meals wearing gloves and rinsing all cutlery and plates prior to his use in order to reassure X that the food was not contaminated.
The mother contends that, at this time, she and the children were regularly attending upon two therapists through the Department to support them with the separation and to deal with the family violence they had experienced. She further contends that she contacted the Department and X’s school to secure X support services that included regular contact with the school counsellor, the school chaplain and the V Service in Suburb W.
On or about 21 August 2018, the mother and the paternal grandparents attended a telephone mediation through Z Family Services but did not reach an agreement in respect to the time which the children would spend with the paternal grandparents.
In or about October 2018, Y required medical treatment in hospital. The father contends that he was advised of this by X and not by the mother.
On or around 20 October 2018, the mother attended upon a paediatrician, Dr AA, with X. Dr AA diagnosed X with Autism Spectrum Disorder and Attention-Deficit Hyperactive Disorder with comorbid anxiety.
The Applicants contend that, on or about 12 November 2018, they attended a meeting with a caseworker from the Department regarding reports about the children. The father contends that, during that meeting, he was informed by the Department that the children had stated they were afraid of the Applicants and other paternal family members. The paternal grandfather also contends that, during this meeting, he was informed that Y allegedly disclosed that he was afraid that he would kidnap Y.
On 21 December 2018, the father and paternal grandfather commenced these proceedings by filing an Initiating Application in this Court for final parenting orders.
The mother contends that, on 15 January 2019, the mother met with the Department caseworker for the family and discussed issues concerning X’s eating and the children’s behaviour. She further contends that, as a result, the Department referred the children to the V Service for therapeutic support.
From early 2019 up until June 2021, Y was engaged with BB Service for counselling and therapy. The mother contends that Y has not since commenced new counselling services.
The mother contends that, in or around January 2019, the children wished to stop their telephone contact with the father. She further contends that, when she suggested that the children call the father, Y refused but that X occasionally agreed to do so.
On 13 February 2019, Registrar Aitken made orders providing for the appointment of an Independent Children’s Lawyer to represent the children.
The mother contends that, in or around February to March 2019, she observed X to become more physically aggressive and argumentative with Y, and would throw things at Y or break items in their household. The mother contends that, in or around February 2019, the police called her after Y’s friends contacted the Kids Helpline about X’s violence.
The mother contends that, on 8 March 2019, X’s high school chaplain informed her by telephone that X disclosed that he would “hang himself” if he was made to return to living with the father, and that he disclosed previously trying to hang himself from a ceiling fan prior to the parties’ final separation. She further contends that she was not aware of that suicide attempt prior to this disclosure and that, immediately after this telephone call, she contacted the family’s assigned caseworker from the Department, X’s therapists through the V Service and X’s high school regarding her concerns. Comparatively, the father contends that he has never seen any indication of suicidality from X. He further contends that, after inspection of the ceiling fans in the Suburb L property, none have signs of damage consistent with an attempted hanging.
In or around March 2019, the Department ceased their involvement with the mother and the children.
The mother contends that, in or around early 2019, staff at the V Service assisted her to apply for Victims Services counselling.
From 1 to 12 April 2019, X attended an in-patient program run by QQ Service for activities to develop self-esteem, resilience and a personal sense of wellbeing. The mother contends that, following his attendance, she and X’s school observed great improvement in his behaviour and schoolwork.
On 3 May 2019, Senior Registrar Campbell, as his Honour was then, adjourned the hearing of the parties’ competing Applications for interim parenting orders, pending the appointment of an Independent Children’s Lawyer.
In the period from 26 April 2018 to until June 2019, the Applicants only spent time with the children on one (1) occasion.
On 13 June 2019, this matter was listed for interim defended hearing before Senior Registrar Campbell, as his Honour was then. Senior Registrar Campbell, as his Honour was then, made interim parenting orders that the children live with the mother and that the father spend time with the children, over a graduated regime, from two (2) hours each Saturday to one (1) night each alternating weekend commencing 3 August 2019. Those orders also required that the time spent between the father and children be in the presence and company of the paternal grandparents, and restrained the parties from discussing these parenting proceedings with both or either the children.
The mother contends that, shortly after 13 June 2019, she informed the children of the interim parenting orders made by Senior Registrar Campbell. She further contends that she informed X on a date that she was aware his school counsellor was on duty, and that she informed Y during a joint session with his therapists at DD Hospital. The mother also contends that both the children were upset and reacted angrily when they were informed.
The mother contends that, in the period from January up to 26 June 2019, the children did not speak to the paternal grandparents.
On 26 June 2019, Registrar Aitken made orders allocating this matter to the Court’s Magellan Protocol and requesting the Department of Family and Community Services, as the Department was then named, to prepare a ‘Magellan Report’ for the Court in respect to the children. Those orders also provided for the release of the Magellan Report to the parties and their legal representatives upon its receipt by the Court.
The mother contends that, on 27 June 2019, she took the children to a meeting with the Independent Children’s Lawyer. She further contends that, after this meeting, X was very quiet and Y suddenly became physically violent towards herself and X, including pushing, yelling, kicking and punching them.
The mother contends that, in July to December 2019, she observed changes in the children’s behaviour in that they were frequently restless, angry and, in respect to Y, more physically aggressive. She further contends that Y told her on several occasions that the Applicants “say bad stuff” about her and that the paternal grandfather says that she has taken the children away from their paternal family. Comparatively, the father contends that the children have never been violent or unmanageable whilst in his care.
On 2 July 2019, the ADVO application was heard before the Magistrate in the Suburb U Local Court, and the application was dismissed.
The mother contends that, in or around July 2019, the Department resumed involvement with the family after the children began spending time with the father. She further contends that this was because the children were unsettled and angry, and the mother was struggling to cope with the stress.
The mother contends that, from 3 August 2019, X would purposely refuse to get ready to attend contact visits with the father and that the children told her that they did not want to attend the visits. She further contends that X would regularly telephone her and request that she pick him up from the contact visits with the father.
Sometime after 20 August 2019, copies of the Magellan Report prepared by the Department were released to the parties and their legal representatives.
In 2019, the father completed a parenting course conducted by Z Family Services titled ‘Parenting After Separation – Focus on Kid’s Program’. In late 2019, the mother commenced attending weekly counselling with a psychologist through Victim Services, Ms G. She continues to see Ms G each week for therapeutic treatment in respect to multiple traumas including childhood abuse, sexual assault and family violence.
The mother contends that, in or around January 2020, during changeover after a contact visit with the father, X yelled at her to call the police and informed her that the father became angry with him, yelled at him and threw his trumpet into the paternal grandfather’s car because it was damaged. She further contends that Y also yelled at her to call the police but she managed to calm the children down without involving police.
On 9 April 2020, Registrar Ryan made orders by consent of the parties providing for the appointment of Dr D as the single expert for the preparation of a psychological assessment of both parents and a family report.
On 10 March 2020, the father received text messages from X stating he was suffering chest, stomach, back and head pain and asking whether he should go to school. The father contends that he replied counselling X to go to the doctor and that the mother had not attended upon a doctor with X despite X feeling unwell “for days”.
The mother contends that, since around April 2020, Y became increasingly physically and verbally abusive towards her and that, around this time, both the children started to regularly call her profane insults. She further contends that, since April or May 2020, she had observed X’s behaviour dramatically deteriorate.
The mother also contends that, in or around April 2020, the father started to give the children expensive gifts and that the children’s concerning behaviour coincided with receiving these expensive gifts, such as electronic devices and phones, a gel blaster gun and bank cards.
On 22 June 2020, the father and X exchanged a series of text messages in respect to X’s tonsil infections, during which X requests the father take him to attend upon a doctor.
On 9 July 2020, the father received text messages from X stating that the mother was intoxicated with alcohol in X’s presence.
On 11 July 2020, during the evening, the father again received text messages from X stating that the mother might be intoxicated with alcohol in X’s presence. The father and X exchanged a series of text messages regarding the mother’s intoxication.
The mother contends that, in or around September 2020, the Deputy Principal of X’s school informed her that the school had noticed a change in X’s behaviour and that he has started talking back to his teachers.
On 19 and 23 October 2020, the parents and the children separately attended virtual interviews with the single expert for the preparation of her expert report. During the course of the interviews, each of the parents and children independently completed psychometric testing.
On 2 November 2020, the paternal grandparents attended a virtual interview with the single expert for the preparation of her expert report.
On or around 1 December 2020, the mother learned that X and his girlfriend, Ms CC, had met up with the father at a park for a picnic without the paternal grandparents after Ms CC’s mother had contacted the mother about concerns regarding the father’s offer to help Ms CC find a job. She further contends that X had told her that he was meeting a school friend and that he admitted to meeting with the father when she asked him about this.
The mother contends that, since late 2020, the children have both continued to call her profane insults and said words to the effect that the father is “nice and will buy it for me”.
In 2021, Y commenced at R School following completion of his primary schooling. The children currently attend R School.
On 11 February 2021, Registrar Ryan made orders releasing to the parties and their legal representatives the expert report of the single expert dated 22 December 2020 (“the Expert Report”).
The mother contends that, in or around March 2021, Y said to her that she “took [them] away from Dad, all because you had an argument with Dad, you stupid fucking bitch, it’s all your fault”. She further contends that, in early to mid-2021, X said to her that the father had told him “we get to decide where we live, and it will be over”.
On 16 March 2021, during a directions hearing before Registrar Ryan, the Independent Children’s Lawyer made an oral submission for expedition of these proceedings in light of the issues raised in the Expert Report.
The mother contends that, on or around 14 May 2021, she was particularly stressed and unhappy as a result of the children spending the previous Mother’s Day weekend with the father and, upon returning from their visit with their father, not mentioning Mother’s Day to her and exhibiting particularly difficult behaviour. She acknowledges that, on that evening, she consumed six to seven alcoholic drinks across four hours. The mother contends that she informed the children she was going to bed at around 9 pm but was subsequently awoken by ambulance officers. She further contends that the maternal uncle later informed her that the children had called their father when they could not wake her up and the father had called the police, who requested an ambulance attend her home.
On 15 May 2021, the father received text messages from Y requesting he call the police as the mother could not “walk”.
On 21 May 2021, Henderson J made orders granting the Independent Children’s Lawyer’s Application for expedition and, as a result, on 1 June 2021, I listed this matter for final hearing commencing on 12 July 2021.
The mother contends that, on or around 5 June 2021, the children verbally abused and swore at her during changeover which the paternal grandmother witnessed but did not mention.
The paternal grandfather contends that, on or about 6 June 2021, an incident occurred between him and the mother during changeover wherein the mother swore at him in the presence of the children. Comparatively, the mother contends that she has only spoken to the paternal grandfather during changeover on one occasion in or around July 2019.
On 9 June 2021, the children attended a meeting with the Independent Children’s Lawyer. The mother contends that, at around 10.30 pm that night, she requested the children go to bed, which they refused, and Y began calling her profane insults in X’s presence whilst X was on a telephone call with the father. The mother also contends that, when she approached X to remove his mobile phone after he refused to go to bed, X kicked her very hard in the stomach and continued to tell her to “fuck off”.
The paternal grandmother contends that, on or about 20 June 2021, an incident occurred involving the paternal grandparents and the mother during changeover wherein the mother shouted at her for opening the mother’s car door in the children’s presence. The mother acknowledges that she has spoken to the paternal grandmother occasionally at changeover but contends that, comparatively, she has not had a conversation with the paternal grandmother since the interim orders were made on 13 June 2019.
The mother contends that, on or about 24 June 2021, she spoke to the Deputy Principal of R School about the children and was informed that the school counsellor and welfare office had been checking in with both the children. She further contends that the Deputy Principal informed her that their only concern was that the children were often late to school.
The father contends that, on or about 29 June 2021, he received text messages from Y stating that the mother was intoxicated with alcohol.

In 2021, the father completed the DD Programme, which includes managing challenging child behaviours, offered by the EE University. He further contends that he is enrolled in the ‘Engaging with Adolescents’ programme offered by GG Family Services at Suburb FF, which was scheduled to commence in July 2021.
The mother contends that, throughout 2021, X had threatened to punch her and thrown objects at her approximately monthly. She further contends that Y frequently yells and swears at her, approximately 10 to 15 times each week, and has thrown things at and pushed and shoved her. The mother also contends that, on approximately 20 occasions during this period, Y has come into her bed whilst she was asleep and slept next to her.
The mother contends that, in June 2021, when she told X that he could not use her camera to photograph the “blood moon”, X spoke to the father on the phone for about 30 minutes.
The mother attests that, on 3 July 2021, an incident occurred involving an ambulance attending her home. She contends that, after the children were dropped off to attend a contact visit with the Applicants, she consumed a few alcoholic drinks from around midday and, at around 3.30 pm, she sent a text message to her friend asking for help and stating words to the effect of “I’ve just had enough”. The mother further contends that her friend drove to her home from City HH, New South Wales, attended the mother’s home at about 5.30 or 6 pm that day and called an ambulance.
The mother further acknowledges that, at around 6 pm that evening, she was taken by ambulance to DD Hospital and kept overnight for general observation. She contends that, later during the night, she saw the resident psychologist in the hospital and was diagnosed with “low mood”. The mother further contends that, at around midnight, she was discharged from hospital on the condition of follow-up from the hospital’s Community Mental Health team.
It has not been possible to determine precisely what occurred on 3 July 2021. For reasons which I explain, however, I am satisfied that the mother had consumed an excessive amount of alcohol on that day.
The mother attests that, on 8 and 11 July 2021, she received check in calls from the Community Mental Health team, and further attests that she receives such check in calls every few days.
The father is currently employed by the WW Company on a full-time basis, and generally works from Wednesday through to Sunday each week.
The mother is currently employed by JJ Company in Suburb LL on a casual basis, and works 25 to 35 hours each week.
On the application of the father, after the conclusion of the hearing and receipt of the parties’ final submissions, the matter was relisted for the purpose of the father making an application to reopen his case to tender additional documentation. That documentation was determined to be relevant to the proceedings insofar as the documentation establishes that the period of time that the father will remain on the Child Protection Register is not as long as was anticipated. The orders made on 18 August 2021 were as follows:
1.Leave is granted for the proceedings in this matter to be reopened for the purpose of:
a. the Applicant Father tendering an email from Detective Sergeant KK of the Suburb MM Police Area Command, dated 20 July 2021 (and marked ‘Exhibit 17’ in the proceedings);
b. the Applicant Father tendering a letter from NSW Police Force to the Applicant Father, titled ‘Your status as a registrable person under the Child Protection (Offenders Registration) Act 2000’, dated 13 August 2021 (and marked ‘Exhibit 18’ in the proceedings);
c. the Respondent Mother tendering a letter from the Applicant Father to NSW Police Force dated 19 July 2021 titled ‘Re: Request for review of reporting period under Child Protection (Offenders Registration) Act 2000 by Mr Duffield DOB … 1975’ (and marked ‘Exhibit 19’ in the proceedings).
Relevantly, the letter from the New South Wales Police Force to the father dated 13 August 2021 provided as follows:
As you are aware, on the 14 May 2010 you were convicted of 3 charges of indecent assault. As a result, you were served with letters advising you that as a result of those offences you were required to register on the Child Protection Register for a period of 15 years, to expire on 14 May 2025. The letters informed you that certain provisions in the legislation may apply to you including restrictions around changing your name, working with children or engaging in conduct. You were correctly placed on the Register on the 14 May 2010. However, the length of time police required you to comply with the reporting obligations under the Child Protection (Offenders Registration) Act 2000 was too long. Your reporting conditions should have ended on 14 May 2018. This error had been corrected on the register.
This means you were improperly on the Child Protection Register from 14 May 2018 until the 20 July 2021. During the time that you were on the Register when you weren't meant to be, you likely took steps to comply with reporting obligations that didn't apply to you, including by reporting personal information to the NSW Police Force . The NSW Police Force may have also taken steps to verify that information by inspecting your home, relying on a power under the Act that didn't apply in the circumstances. If you didn't take steps to comply with reporting obligations, the NSW Police Force may have also taken action, including arresting and charging you, for what appeared at that time to be non-compliance with reporting obligations that didn't apply to you.
Although your reporting period has ended, provisions in the Act and other legislation continue to apply to you. For example:
(a) It is an offence against section 19E of the Act for you, or someone on your behalf, to apply to change your name in NSW or interstate, without first having obtained written approval from the Commissioner of Police. The maximum penalty for an offence against section 19E of the Act is $55 ,000, imprisonment for 5 years, or both;
(b) The Commissioner of Police may apply to the Local Court under section 4 of the Child Protection (Offenders Prohibition Orders) Act 2004 for a child protection prohibition order prohibiting you from engaging in certain conduct if you pose a risk to the lives or sexual safety of children; and
(c) you may be disqualified from holding a working with children check by section 18(1)(a) of the Child Protection (Working with Children) Act 2012.
The parties were also given liberty to apply in the event that they were able to reach agreement on any of the parties’ respective proposed orders that were considered during the course of the proceedings which were heard from 12 to 16 July 2021. The court has not been notified that any such agreement has been reached.
APPLICATIONS
Orders sought by the Applicants
The Applicants seek for orders to be made in accordance with the proposed orders set out in their Case Outline document filed 8 July 2021, marked ‘Exhibit 1’ in these proceedings, as follows:
Parental Responsibility
1. That the First Applicant and the Respondent are to have equal shared parental responsibility for the major long-term issues of the children of the relationship namely, X born … 2005 and Y born … 2008.
2. That the First Applicant and the Respondent are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
a. They shall inform the other parent about the decision to be made;
b. They shall consult with each other on terms that they agree; and
c. They shall make a genuine effort to come to a joint decision.
3. That notwithstanding the provisions of Order 2:
a. The Respondent shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with her; and
b. The First Applicant shall be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.
c. The First Applicant and the Respondent will ensure the children attend all extra-curricular and social activities that occur when the children are in their care.
Time Spent
4. That the children live with the First Applicant and the Respondent on an alternating week-about basis, with changeovers taking place on Sunday afternoons at 5:00pm.
5. That the children spend time with the Second and Third Applicant on alternating weekends from 4:00pm Friday to 8:00pm Sunday, with such time to occur concurrently when the children spend time with the First Applicant.
6. The children shall spend half of each short school holiday period with the First Applicant and the Respondent, with the Respondent to have the first half in even numbered years and the second half in odd numbered years and the First Applicant to have the opposite.
7. The children shall spend half of each long school holiday with the First Applicant and the Respondent, with the Respondent to have the first half in even numbered years and the second half in odd numbered years and the First Applicant to have the opposite.
Collection and Delivery
8. The parent with the children is responsible for delivering the children to the other parent at changeover time.
9. Unless otherwise agreed the venue of changeovers shall be:
a. The First Applicant’s house, for the commencement of the time when the children will reside with the First Applicant.
b. The Respondent’s house, for the commencement of the time when the children will reside with the Respondent.
10. In the absence of the First Applicant and the Respondent, the children may be delivered or received by a third party who is well known to the children, such as a relative.
Communications
11. When the children are living with the Respondent or the First Applicant, the parent who has the children in their care shall facilitate the children’s request to communicate with the other parent or Second and Third Applicant.
12. The children will communicate with the First Applicant or the Respondent with whom they are not living each Monday, Wednesday and Friday between 3.30pm and 5:00pm by landline, mobile, facetime or skype, and the First Applicant or the Respondent who has the children in their care will arrange that communication.
13. The children shall communicate with the Second and Third Applicant on the telephone or FaceTime at any reasonable times as the children request but otherwise on each Monday, Wednesday and Friday between 7:00pm and 8:00pm, and the First Applicant or the Respondent who has the children in their care will arrange that communication.
14. In relation to such communications, the First Applicant and the Respondent or the Second and Third Applicant shall:
a. ensure that the children are available to participate in the telephone call or other electronic means such as Skype or Facetime at reasonable time;
b. arrange for the children to telephone the other party later that night or the following night, if for any unforeseen reason the other party is not reachable during the scheduled call; and
c. ensure that the children have privacy during the conversation and the calls are not monitored by the parent or any other person. Moving Residence
15. The Respondent is restrained from relocating the children’s current residence without the First Applicant’s express written consent or an Order of the Court.
Travel
16. The children shall be permitted to travel with the First Applicant, or the Respondent, or the Second and or the Third Applicant either interstate or internationally. The following conditions shall apply:
a. International travel shall only take place to destinations where the country is subject to the Hague Convention on the Civil Aspects of International Child Abduction.
b. The First Applicant, or the Respondent, or the Second and Third Applicant shall be responsible for the costs associated with the proposed travel with the children.
c. The First Applicant or the Second and Third Applicant shall, no later than 28 days before the day the travel is due to take place, send copies of travel documentation, including details of the departure and return dates, flight/train/bus numbers, accommodation and contact numbers to the Respondent.
d. The Respondent shall no later than 28 days before the day the travel is due to take place, send copies of travel documentation, including details of the departure and return dates, flight/train/bus numbers, accommodation and contact numbers to the First Applicant, the Second and Third Applicant.
e. The travel coincides with NSW school holiday periods unless written permission is obtained from the children’s schools for the children to be absent outside the school holiday period, in which case the travel may extend beyond school holidays by not more than five (5) days.
17. The First Applicant and the Respondent may negotiate compensatory time if a portion of the travel will take place during the period when the children would normally reside with the First Applicant or the Respondent. Notwithstanding this, the maximum duration of any travel shall be twenty-one days.
18. The First Applicant and the Respondent do all acts and things and execute all documents and writings necessary to ensure that valid Australian passports are issued for the children at all times until the children attain the age of 18 years.
Special Occasions
19. That the children shall spend time with First Applicant, the Respondent, the Second Applicant and Third Applicant on special occasions as follows:
a. Christmas Day
i. from 5:00 pm Christmas Eve until 5:00 pm Christmas Day in even numbered years with the First Applicant, Second and Third Applicant and in odd numbered years with the Respondent; and
ii. from 5:00 pm Christmas Day until 5:00 pm Boxing Day in odd numbered years with the First Applicant, Second and Third Applicant and in even numbered years with the Respondent.
b. Children’s Birthdays
i. With the First Applicant, or the Respondent, or the Second and Third Applicant they are not living with on the day from 3:30pm until 7:30pm, with the First Applicant, or the Respondent, or the Second and Third Applicant with whom they are not living to be responsible to collect and return the children.
c. First Applicant’s Birthday
i. With the First Applicant from 3:30pm until 7:30pm, in the event that the day falls upon a day when the children are not living with the First Applicant, with the First Applicant responsible to collect and return the children.
d. Respondent’s Birthday
i. With the Respondent from 3:30pm until 7:30pm, in the event that the day falls upon a day when the children are not living with the Respondent, with the Respondent responsible to collect and return the children.
e. Second Applicant’s Birthday
i. With the Second Applicant from 4:00pm until 8:00pm, but in the event that the birthday falls upon a day when the children are living with the Respondent, the Respondent shall deliver the children to the Second Applicant at the commencement of that time and the Second Applicant shall return the children to the Respondent at the conclusion of that time.
f. Third Applicant’s Birthday
ii. With the Third Applicant from 4:00pm until 8:00pm, but in the event that the birthday falls upon a day when the children are living with the Respondent, the Respondent shall deliver the children to the Third Applicant at the commencement of that time and the Third Applicant shall return the children to the Respondent at the conclusion of that time.
g. Father’s Day
i. On Father’s Day, if the children are in the Respondent’s care, they will be returned by the Respondent to the First Applicant’s care at 5:00pm the Saturday before Father’s Day and remain in his care until 5:00pm Sunday.
h. Mother’s Day
i. On Mother’s Day, if the children are in the First Applicant’s care, they will returned by the First Applicant to the Respondent’s care at 5:00pm the Saturday before Mother’s Day and remain in her care until 5:00pm Sunday.
i. Anzac Day Sunday (generally the Sunday proceeding Anzac Day)
i. If the children are in the Respondent’s care, the Respondent will return them to the Second and Third Applicant by 5:00pm on the Saturday proceeding Anzac Day Sunday to facilitate their participation in Anzac Day commemorations, and remain in their care until 5:00pm Sunday.
j. Remembrance Day Sunday (Sunday before 11th November)
i. If the children are in the Respondent’s care, the Respondent will return them to the Second and Third Applicant by 5:00pm on the Saturday proceeding Remembrance Day Sunday to facilitate their participation in Remembrance Day commemorations, and remain in their care until 5:00pm Sunday.
Parental Communication
20. The First Applicant and the Respondent shall primarily communicate about the children by way of text message or email.
21. Each of the parties shall:
i. Permit the children to telephone the other parent and permit the other party to telephone the children at any reasonable hour;
ii. Do all acts and things to ensure the children’s attendance at regular extra-curricular activities continues whilst they are in the care of that party;
iii. Notify the other as soon as possible and in any event within twenty-four (24) hours of any serious injury or illness suffered by the children whilst they are in the care of that party;
iv. Notify the other of the name, address and telephone number of the children’s treating doctor or doctors and authorise that doctor or doctors in writing to release to the other at any time particulars of the health of any treatment requested by the other party;
v. Notify the other not less than seven (7) days before changing that party’s address, of such proposed change;
vi. Notify the other not less than seven (7) days before changing that party’s telephone number, of such proposed change;
vii. Notify the other and keep the other notified of a telephone number where the children may be contacted in the event of an emergency;
viii. Upon request supply to the other an authority to the school attended by the children authorising the other to obtain from the school particulars of the children’s welfare and progress at the school, school reports, school photographs, details of upcoming functions or activities and any other information disseminated by the school to parents of children attending the school;
ix. Be at liberty to attend school functions to which parents are invited.
Non Denigration
22. Neither the First Applicant nor the Respondent shall speak critically or in a derogatory manner about the other or members of the other family in the children’s presence, or within their hearing, or permit any other person to do so.
Medical
23. That the First Applicant and the Respondent will keep the other informed of the following, as soon as reasonably practicable:
a. Appointments regarding the children and attendances upon doctors or any treating professional.
b. Any medications which are prescribed for the children at any time.
c. Any diagnosis regarding the children as to any health issues as soon as possible.
d. Any hospitalizations as soon as it is reasonably practicable to do so.
e. Any referrals to specialists.
Change Names
24. The First Applicant and the Respondent are restrained from changing the children’s surname from “Duffield” or permitting the children to use any other name.
Religious Upbringing
Notation: The children’s religious Christian beliefs will be encouraged by the First Applicant and the Respondent and will not be undermined by the First Applicant and the Respondent; nor will the First Applicant and the Respondent permit any other person to do so.
(As per the original)

Despite the father’s contentions that the children are being neglected in the care of the mother, he nonetheless proposed, during the course of the proceedings, that the children spend time with the parents on an equal time, week about arrangement.[77] In that context, rather than contending that the children are being neglected to a significant degree including being inadequately fed, the father at times during the course of the proceedings modified his expression of concern, including stating that the mother “has lost her way a little bit”.[78]
[77] Transcript 13 July 2021, p.130 lines 1–2.
[78] Transcript 13 July 2021, p.131 line 4.
At the same time however, in responding to a question asked by me, the mother agreed that she could benefit from periods of respite of having to deal with some of the behavioural challenges exhibited by the children.[79] Her response was entirely understandable in the circumstances of this case. Increasing the amount of time that the children currently spend with the father and the paternal grandparents, as proposed by the mother and the Independent Children’s Lawyer, will provide such an additional period of respite for the mother.
[79] Transcript 14 July 2021, p.279 lines 35–36.
In that context, the Independent Children’s Lawyer and the mother have proposed orders for the children to spend supervised time with the father from after school on Friday until before school on Monday. The proposal has merit insofar as it would relieve the mother from the task of collecting the children from school on a Friday afternoon and also from the task of preparing the children for school on a Sunday evening, getting them ready on Monday morning and taking them to school. For that and other reasons which I set out in this decision, I propose making an order in those terms.
It was also contended by the father that the mother has neglected the children’s engagement in extracurricular and sporting activities. The evidence establishes, however, that X has been doing tae kwon do as his school sport and has also been attending a “boot camp” for exercise on some Fridays. The evidence also establishes that Y plays baseball. Counsel for the mother indicated to the Court that the mother is also prepared to explore other options such as the children becoming involved in a Police Citizens Youth Club.
While participation in extracurricular and sporting activities would, in my view, be in the best interests of the children, not only from the point of view of engaging in enjoyable, stimulating and healthy activities, it would also provide the opportunity for the children to be engaged with other positive male role models. Nevertheless, I accept particularly in circumstances where the children will be spending every second weekend with their father, there may be some challenges in coordinating the children becoming involved in sporting and other extracurricular activities on weekends. Accordingly, I do not propose to make any orders in respect to that issue.
Effect of change: s 60CC(3)(d)
The change proposed by the father, whereby the children would spend week about time with each parent, would be a significant change for the children. For reasons which I have explained in respect to the issue of risk and also limiting further opportunity for the children to be exposed to the father’s manipulative conduct, I do not consider those orders to be appropriate.
The spend time arrangements proposed by the Independent Children’s Lawyer and the mother in respect to the school term is for there to be an increase in time whereby the children would spend time with the father, from Friday afternoon after school until before school on Monday mornings. There has been no evidence presented that the children would have difficulty in coping with that. Indeed, such orders are closer to the wishes expressed by the children to spend more time with their father. One positive benefit of that change would be that there would be reduce faced to face changeovers between the mother and the father or the mother and the paternal grandparents. This is because the majority of the changeovers would occur at the children’s school.
Practical difficulty of implementation: s 60CC(3)(e)
During the course of the proceedings, an issue that potentially gave rise to significant practical difficulty in the children spending time with the father were anticipated limitations on the father’s ability to be involved with other children as a result of what the parties and the Court understood, at the time of the proceedings, were restrictions resulting from the father being on the Child Protection Register. As I have noted, as result of an error made by the New South Wales Police Force, which was revealed to the Court by supplementary evidence tendered following the close of evidence in the proceedings, that was not the case. Accordingly, I have not, in these reasons for judgment, considered that to be a practical difficulty in the children spending time with the father.
While very much a secondary consideration, there are some transport difficulties associated with the orders sought by the father for the children to live with the father. The father accepts that both of the children are content at their current school. The father initially asserted that the travelling time between his current residence and the children’s school is approximately 25 minutes by way of public transport.[80] The father subsequently acknowledged, however, that with a combination of rail and bus transport, the total travelling time from his home to the children entering the school gates would be approximately 45 minutes.[81] Nonetheless, that trip will only be made twice a fortnight and it is not such an onerous event that I consider it would cause hardship to the children.
[80] Transcript 12 July 2021, p.26 line 43.
[81] Transcript 12 July 2021, p.27 line 14.
Otherwise, the parents live in sufficiently close proximity such that there does not appear to be other practical difficulties in the children spending time with both parents. There was some discussion, during the course of the proceedings, as to where an appropriate changeover point would be for the children on non-school days. It appeared that both parties accepted that the McDonald’s restaurant at Suburb E would be appropriate.[82]
[82] Transcript 13 July 2021, p.132 lines 6–9.
Avoiding further proceedings: s 60CC(3)(l)
For reasons that I have explained, I have set a time limit on the requirement for the children’s time with the father to be supervised, until Y attains the age of 16, on the basis that it will hopefully avoid a further application to vary the orders on the basis of changed circumstances in terms of the Rice & Asplund principles.
Other relevant matters: s 60CC(3)(m)
In circumstances where it was acknowledged that the children have a strained relationship with the mother, it was agreed that an order should be made in terms of Order 10 proposed by the Independent Children’s Lawyer, which provides for the mother to engage with a family therapist.
During the course of the proceedings, the mother indicated that she would agree to a restraint in terms of Order 7 proposed in Exhibit 14, being a restraint on all parties, including the paternal grandparents, consuming alcohol when the children are in their care.[83]
[83] Transcript 16 July 2021, p.387 line 42.
The parties agreed to Order 9 set out in Exhibit 14 which requires the father to attend upon a forensic psychologist who has experience in working with sexual offenders.[84]
[84] Transcript 16 July 2021, p.388 line 19.
As a related issue, the mother also agreed to Order 10 as set out in Exhibit 14, which empowers the mother to contact the forensic psychologist consulted by the husband to express any concerns.[85]
[85] Transcript 16 July 2021, p.389 line 13.
During the course of the proceedings, the mother indicated that she would not oppose Order 11 as set out in Exhibit 14. An order in those terms was, however, opposed by the Independent Children’s Lawyer, who thought any restrictions on persons that the father was permitted to have in his household should be determined by any limitations set out in the relevant sex offenders legislation. In hindsight, the position adopted by the Independent Children’s Lawyer was prophetic because, subsequent to the conclusion of evidence in this matter it was ascertained that the anticipated period that the father would be subject to such restrictions would be for longer than it actually is. Accordingly, I do not propose to make an order in terms of Order 11 of Exhibit 14. The potential consequence of the Court making that order in circumstances where it was not proposed in the Applicants’ orders but rather, suggested as a potential outcome by counsel for the father, highlights why the methodology adopted by counsel for the father in proposing a potential aide memoire of orders different from those which he was instructed to place before the Court, is, with respect, fraught.
Similarly, I do not propose to impose what would be a mandatory injunction upon the father in terms of Order 13, as set out in Exhibit 14, in circumstances where the father is not proposing that such a restraint be imposed and where it is not sought by either the Independent Children’s Lawyer or the mother.[86]
[86] Transcript 16 July 2021, p.390–391.
The parties agreed to proposed Order 14 as set out in Exhibit 14, which restricts the father’s ability to provide cash or key card access to the children above the sum of $30 per week. [87] In a similar context, the parties were in agreement with proposed Order of 15 as set out in Exhibit 14.[88]
[87] Transcript 16 July 2021, p.391 lines 4–41.
[88] Transcript 16 July 2021, p.391–392.
Both parties acknowledge that an order requiring them to notify the other party in the event of a child suffering a serious injury or illness is appropriate.[89]
[89] Transcript 13 July 2021, p.134 line 45.
Both parties also agree that a non-denigration order is appropriate and that the orders should also apply to the grandparents.[90]
[90] Transcript 13 July 2021, p.135 line 37.
EVALUATION OF SECTION 60CC CONSIDERATIONS AND SUMMARY OF ORDERS
I have determined that there is an unacceptable risk of the children being subject to sexual abuse at the hands of their father, and that such risk needs to be mitigated by a continuation of the loose supervision arrangements that currently apply to the children spending time with the father.
Additionally, I have had regard to the fact that the children will be advised of the fact of the father’s sexual misconduct convictions and, as they grow, they are gaining a level of maturity which itself provides some protection against potential inappropriate sexual conduct on the part of their father.
I am also satisfied that the father has engaged in manipulative conduct in respect to the children and that the children would be subject to ongoing conduct of that nature in the event that they spend extensive periods of time with the father, or in circumstances where that time is unsupervised. The risk is not such, however, that I find it is necessary for that supervision to be provided by a professional agency. The supervision which has occurred to date primarily by the paternal grandparents is, in my view and on the basis of evidence presented, adequate. I therefore propose making orders in terms of Order 7 of the Independent Children’s Lawyer’s minute of order. That order would also permit the parties agreeing to another adult being present to provide supervision. In that context, during the course of the proceedings, the mother indicated that she would not have any difficulty with the children being present with the father in the company of a paternal aunt, Ms SS. The mother indicated however, that she would not like that to be a regular situation in circumstances where there have been issues of tension between herself and Ms SS and where Ms SS lives in Suburb TT, New South Wales.
For reasons which I have set out previously, I am satisfied that the supervision should occur until Y turns 16. The orders will provide, by way of notation, that the father may consider making an application for variation of that arrangement in the event that he genuinely engages in therapy to address his past offending and develop an appropriate safety plan, together with the father acting in good faith in encouraging and assisting the children to also engage in therapy to repair their relationship with their mother.
A positive which occurred during the course of these highly contested proceedings was the impressive evidence given by the paternal grandmother. She answered each question asked of her in a clear and direct manner. Her focus appeared to be on assisting the Court to determine what was in the best interests of the children and, to that extent, unlike the father himself and the paternal grandfather, accepted the reality that, as a matter of probability, the father had engaged in the acts of sexual abuse of which he was convicted.
In circumstances where I have determined that the children are at risk of being exposed to manipulative, coercive and controlling conduct in the care of the father and, further, in circumstances where I have found there is an element of dysfunctionality in the mother’s household, I am of the view that it is important for the children to have a period of respite by spending time with the paternal grandparents and, in particular, the paternal grandmother. For those reasons, I intend to make orders as sought by the Independent Children’s Lawyer in proposed Orders 4, 5, 6 and 8.
Those orders, appropriately, provide for the father to also be present when the children are spending time with the paternal grandparents. In that respect, there was no evidence that there has been any difficulty in the father arranging for that to occur. Both the paternal grandmother and the paternal grandfather indicated they are prepared to continue with the arrangement whereby they supervise the children’s time with the father whilst, at the same time, expressing the view that there was no need for that to occur.
As a result of the issues of risk which I have identified, I am satisfied that the amount of time that the mother and the Independent Children’s Lawyer proposed for the children to spend with the father, being from after school on Friday until before school Monday, is appropriate. This is because the time is such that it makes ongoing supervision by the paternal grandparents practicable while, at the same time, providing an opportunity for the children to spend time with the father and continue to have a meaningful relationship with him. It is also consistent with the recommendation of the single expert that there should not be a significant increase in the time that the children spend with the father for reasons which she gave as follows:[91]
I think the father lacks, and certainly the grandparents account of his parenting as being the boys’ friend as opposed to the authority in the home gives me some concern about the father’s ability to be the kind of parent that the boys need in terms of the strength and the control and the authority in the home. So I don’t know whether that would create any positive effect. The second concern that I have with that is, I think that, in many ways, what we’re seeing with the boys at this point is because of the unhelpful influence of the father and the grandparents, and more time with them increases that influence, and therefore may also increase the boys’ difficulties.
[91] Transcript 15 July 2021, p.310 lines 17–25.
Again, I respectfully accept the validity of that recommendation.
Both the mother and the Independent Children’s Lawyer proposed that the children spend an equivalent amount of time with the mother and also with the paternal grandparents during the school holidays. Both propose that the father also be entitled to be present when the children are spending time with the paternal grandparents. I am satisfied that those holiday arrangements are appropriate in so far as the additional time in a relaxed setting will be conducive to the children maintaining a meaningful relationship with both parents and the paternal grandparents while, at the same time, not being such that it unduly increases the amount of time that the children spend with the father and paternal grandfather and the risks described by the single expert concerning the prospect of the children being subject to unhelpful influence by the father and paternal grandfather. Accordingly, I agree that orders proposed in paragraph 7.2 of the minute of orders proposed by the mother are appropriate.
I am also satisfied that providing for the children to spend half of their school holidays with their paternal grandparents would provide the mother with some respite from dealing with the children’s challenging behaviour. Indeed, the mother acknowledged that having periods of respite would be welcomed by her.[92]
[92] Transcript 14 July 2021, p.279 lines 35–36.
Also consistent with the children having a meaningful relationship with each parent is for the children to spend special days with each parent including, respectively, Father’s and Mother’s Day and the parents respective birthdays, as well as Christmas. With respect to these special days, the orders proposed by the mother in paragraph 7.3 of her minute are appropriate.
The mother has proposed that the Court make an order requiring the paternal grandparents to sign an undertaking that they will supervise the children’s time with the father. The paternal grandmother gave her evidence and provided an assurance that if the Court orders that the children’s time with the father is to be supervised that she will ensure it occurs. In light of the impressive manner in which she gave her evidence, I have no doubt that it will occur and I do not consider that there is any need for either of the paternal grandparents to sign any such undertaking.
It is to be noted that Order 4 also permits the children to spend additional time with the paternal grandparents, which would facilitate the parties reaching agreement, for instance, for the children to spend time with the paternal grandparents on special occasions such as birthdays and significant anniversaries.
During the course of these proceedings, there was an issue as to whether the children should be permitted to travel overseas with the paternal grandparents and whether, as a condition, the father should also be present on the occasions of that travel. I respectfully agree with the submission of the Independent Children’s Lawyer that the evidence in the context of these proceedings is not sufficiently robust for the Court to make a determination of that issue. In particular, as noted by the Independent Children’s Lawyer, it is not apparent, at this stage, as to how the children will adjust to the period of therapy that these orders will put in place. In those circumstances, I respectfully agree that while it may result in a further application being made to the Court, the issue as to whether the children should travel overseas should depend on the circumstances of the proposed travel. That is, the issue should be determined by way of agreement between the parties or, if such agreement cannot be reached, by way of a further application to the Court in respect to that discrete issue.
There was no agreement between the parties that the children be enrolled in an activity or a sport or that the father should contribute to the cost or arrangement of such activities. Accordingly, there was no agreement for an order in terms of Order 1(b) of Exhibit 14.[93] I am, unfortunately, not satisfied that the level of cooperation between the parties is such that they would be in a position to coordinate the children attending extracurricular activities when the children are in their respective care and, accordingly, I do not propose to make an order in those terms.
[93] Transcript 16 July 2021, p.386 lines 5–7.

Both parties agree that communication in case of emergency is appropriate,[94] and I propose to make orders for that to occur in terms of Orders 13 and 14 of the Independent Children’s Lawyer’s minute.
[94] Transcript 16 July 2021, p.383–384.
Summary of orders
Parental responsibility: for reasons which I have set out, I have determined that the mother shall have sole parental responsibility.
Spend time orders: for reasons which I have set out, I have determined that the children should live with the mother and spend time with the father as follows:
·during school term from after school on Friday until before school Monday or a comparable time on non-school days
·for half of the school holidays
·on special days
Supervision: the children’s time with the father should be supervised by the paternal grandparents or such other adult as agreed between the parties.
Gifts: there should be a restraint on the value of gifts and spending money provided by the father and the paternal grandparents to the children.
Advice regarding the father’s convictions: it is agreed that the children should be informed about the father’s child sex offences and that they should receive that advice from the single expert.
Family therapy: it was agreed that the mother, together with the children, should attend family therapy. In circumstances where a substantial reason as to why there is a need for repairing the children’s relationship with the mother is the result of the father’s manipulative conduct, and in circumstances where the husband has not paid child support, I will require the father to meet the cost of that therapy.
Change over: it was agreed that the changeovers should occur at the children’s school on school dates and otherwise at the McDonald’s restaurant in Suburb E.
Communication and exchange of information between the parties: the parties agreed that an appropriate regime for communication between the parties should be put in place, with the proviso indicated by the mother that, other than in the case of emergency, communication should be between the mother and the paternal grandmother. In the circumstances of the conflict between the parents, I agree that such an arrangement is appropriate.
Mother’s therapy: the mother agreed it is appropriate for orders to be made requiring her to obtain mental health therapy, including in respect to alcohol abuse.
Father’s therapy: counsel for the father proposed orders for the father to be required to attend upon a psychiatrist to address issues associated with what the Court has found to be his conduct in engaging in the sexual abuse of a child under the age of 16. For reasons I have explained, orders will be made to that effect.
Restraints: appropriately, the parties agree that orders should be made restraining any party from engaging in any inappropriate conduct in respect to the parental dispute in these proceedings, including denigrating or permitting the denigration of any other party.
The parties also agree that a restraint should be imposed on the consumption of alcohol when the children are in the care of the parties and, in respect to the mother, for a 24-hour period prior to the children being in her care.
CONCLUSION
For all these reasons, I make orders in accordance with those set out at the commencement of these reasons for judgment.
COSTS
The Independent Children’s Lawyer sought costs against the Applicants on the basis that each of the Applicants pays one third, such that the total paid for the Independent Children’s Lawyer’s costs amount to two thirds of the total amount of $19,000. This is in circumstances where the mother is legally aided in these proceedings.
Counsel for the father submitted that the second and third respondents, that is, the paternal grandparents, should not be ordered to pay the costs of the Independent Children’s Lawyer in the sense of the grandparents have been “removed from the proceedings in the strict sense and they only offer themselves as a last resort or backup.” Further, it was contended that their participation in these proceedings did not add to the cost or complexity of the proceedings.
Counsel for the father further submitted that if an order is not made against the second and third respondents, it would be inappropriate to effectively single out the applicant father as the party responsible for paying the costs of the Independent Children’s Lawyer. In that context, it was noted that the father has received assistance from his parents to meet his own legal costs in circumstances where his own finances have been insufficient.
Nevertheless, it is the case that the father has failed to frankly acknowledge a central issue in these proceedings, namely, the fact that he has engaged in past sexual abuse of a minor and been subsequently convicted of that conduct. The father’s failure to acknowledge and address that issue has been a significant issue in these proceedings. In those circumstances, I propose to make an order that the father meet one quarter of the costs of the Independent Children’s Lawyer, in circumstances where there are three other parties who are not the subject of an order for costs. The father is also to be given credit for those costs which he has already paid to the Independent Children’s Lawyer.
Further, in circumstances where I accept that there is every likelihood that the burden of paying the father’s costs will fall upon the paternal grandparents, who are themselves pensioners, I will provide a period of grace of three months for those costs to be paid.
To avoid uncertainty, I confirm that the order for costs against the father will also include an obligation to meet his share of the cost of the single expert attending to give evidence in these proceedings, being the sum of $935.

I certify that the preceding three hundred and ninety-nine (399) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.
Associate:
Dated: 24 December 2021

File number(s):	SYC 8265 of 2018
Judgment of:	MCCLELLAND DCJ
Date of judgment:	24 December 2021
Catchwords:	FAMILY LAW – PARENTING – Magellan – Unacceptable risk – Where the father has previously been convicted of child sex offences – Where the father failed to disclose his previous convictions – Where it is alleged that the father sexually and physically abused the mother – Where it is alleged that the father has engaged in acts of excessive discipline with the children – Where the mother has engaged in alcohol abuse – Where the father engaged in manipulative behaviour to promote his relationship with the children at the expense of the children’s relationship with the mother – Best interests of the children in maintaining meaningful relationships with both parents – Mitigation of risks associated with respective parents – Mother to have sole parental responsibility with supervised spend time orders for the father – Children to be advised of the father’s convictions
Legislation:	Crimes Act 1900 (NSW) ss 61J(1), 61M(1) Criminal Appeal Act 1912 (NSW) s 5(1)(b) Child Protection (Offenders Registration) Act 2000 (NSW) s 12C Family Law Act 1975 (Cth) ss 4AB, 43(1)(c), 61DA, 61DA(2)(b), 60CC, 60CC(2), 60CC(2A), 60CC(3), 65DAC(2), 65DAC(3) Evidence Act1995 (Cth) s 140(2)
Cases cited:	B & B (1993) FLC 92-357 Blinko & Blinko [2015] FamCAFC 146 Dundas & Blake (2013) FLC 93-552 Fogarty, John, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249 Johnson & Page (2007) FLC 93-344 Mr Duffield v R M and M (1988) FLC 91-979 Marvel v Marvel (2010) 43 Fam LR 348 Mazorski v Albright (2007) 37 Fam LR 518 McCall and Clark [2009] FamCAFC 92 N v S (1996) FLC 92-655 Napier & Hepburn (2006) FLC 93-303 Nikolakis & Nikolakis [2010] FamCAFC 52 Russell v Close [1993] FamCA 62 Rice & Asplund (1979) FLC 90-725
Division:	Division 1 First Instance
Number of paragraphs:	399
Date of hearing:	12–16 July 2021
Place:	Sydney (via videolink)
Counsel for the First, Second and Third Applicants:	Mr Livingstone
Solicitor for the First, Second and Third Applicants:	David H Cohen & Co
Counsel for the Respondent:	Ms Knight
Solicitor for the Respondent:	Legal Aid NSW
Counsel for the Independent Children's Lawyer:	Ms Messner
Solicitor for the Independent Children's Lawyer:	Holmes Donnelly & Co Solicitors

SYC 8265 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR DUFFIELD First Applicant MR B DUFFIELD Second Applicant MS C DUFFIELD Third Applicant
AND:	MS CARLON Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	MCCLELLAND DCJ
DATE OF ORDER:	24 DECEMBER 2021