Gustafsson & Jeanes (No 4) - [2024] FedCFamC1F 812

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gustafsson & Jeanes (No 4) [2024] FedCFamC1F 812

File number(s): NCC 459 of 2023

Judgment of: SMITH J

Date of judgment: 29 November 2024

Catchwords: FAMILY LAW – CHILDREN – Final hearing – Family violence – where parties reached consent position as to a child nearing the age of 18 prior to trial – where Independent Children’s Lawyer, mother and maternal aunt proposed a joint minute of order seeking no time and no communication with the father – serious allegations of physical, psychological and sexual abuse family violence against the father – where father denied family violence or risk – where findings of serious long term family violence by father poses a high and unacceptable risk of any time or any communication - Ordered there be no time and no communication between the father and the child – s 68B injunctions ordered for the protection of the child.

Legislation:
Evidence Act 1995 (Cth) Pts 3.1, 4.1, ss 128, 140

Family Law Act 1975 (Cth) Pts VII, XI, ss 60B, 60CA, 60CC, 61B, 61C, 61DAA, 61DAB, 64B, 65AA, 65D, 65DAAA, 67Q, 68B, 68C, 69ZT, 69ZV, 102NA

Cases cited:
Isles & Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97

M v M (1988) 166 CLR 69; [1988] HCA 68

Gustafsson & Jeanes [2024] FedCFamC1F 217

Division: Division 1 First Instance

Number of paragraphs: 313

Date of hearing: 4 – 8 November 2024

Place: Newcastle

Counsel for the Applicant: Ms Beckett

Solicitor for the Applicant: Oliver Howells & Co Legal & Conveyancing

Counsel for the First Respondent: Mr Flanigan

Solicitor for the First Respondent: Resolve Legal Professionals

Counsel for the Second Respondent: Mr Allen

Solicitor for the Second Respondent: Ann Legal

Counsel for the Independent Children's Lawyer: Mr Mooney

Solicitor for the Independent Children's Lawyer: Jennifer Blundell & Associates
ORDERS

NCC 459 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS GUSTAFSSON

Applicant

AND:
MR JEANES

First Respondent

MS BLUTH

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

SMITH J

DATE OF ORDER:

29 NOVEMBER 2024

THE COURT ORDERS THAT:
1.All extant parenting Orders in relation to the child Y born 2010 are discharged.
2.Ms Gustafsson born in 1980 (“the mother”) and Ms Bluth born in 1985 (“the maternal aunt”) have equal shared parental responsibility and joint responsibility for making major long-term decisions for Y, to the exclusion of Mr Jeanes born in 1978 (“the father”).
3.Y is to live with the mother.
4.Y is to spend no time with the father.
5.Y is to have no communication with the father.

Injunctions directed to Mr Jeanes
6.Pursuant to s 68B of the Family Law Act 1975 (Cth), Mr Jeanes born in 1978 (“the father”) is restrained by injunction from:
(a)Approaching or contacting or communicating with Y directly or indirectly, including through any third party, in any manner whatsoever, including but not limited to responding to any message or request or communication sent by, or initiated by, Y;
(b)Approaching or contacting or communicating with Y through any of the paternal relatives, namely, Mr B, and/or Mr C, and/or Mr L, and/or Mr M;
(c)Providing money or any other item, thing or consideration to Y in any form, directly or indirectly, including through any third party, in any manner whatsoever, including but not limited to in response to any message or request or communication sent by, or initiated by Y;
(d)Approaching within 250 metres of Y, including through any third party;
(e)Approaching within 250 metres of any residence at which Y may reside from time to time, including through any third party;
(f)Approaching within 250 metres of, or contacting or seeking information from, any educational facility which Y may attend from time to time, including through any third party;
(g)Approaching within 250 metres of, or contacting or seeking information from, any place of employment at which Y may work from time to time, including through any third party;
(h)Approaching or contacting or approaching within 250 metres of the mother, and/or Ms E (born in 2004), and/or Mr D (born in 1980) and/or any other person who lives with them from time to time, directly or indirectly, including through any third party, in any manner whatsoever, excepting only that the father may engage a legal practitioner to correspond in writing with the mother on his behalf;
(i)Approaching or contacting or approaching within 250 metres of the maternal aunt, and/or the maternal aunt’s partner Ms N, and/or their children Ms O, P and Q, and/or any other person who lives with them from time to time, directly or indirectly, including through any third party, in any manner whatsoever, excepting only that the father may engage a legal practitioner to correspond in writing with the maternal aunt on his behalf; and
(j)Publishing on any social media account any information relating to or identifying Y, the mother, the maternal aunt, any other person identified in these orders, or these family law proceedings.
(k)Seeking a police welfare check in relation to Y.

7.Pursuant to s 68C of the Family Law Act1975 (Cth), the injunctions in Order 6 are for the personal protection of:
(a)Y born 2010;
(b)Ms Gustafsson born in 1980;
(c)Ms E born in 2004;
(d)Mr D born in 1980;
(e)Ms Bluth born in 1985;
(f)Ms N;
(g)Ms O;
(h)P; and
(i)Q.

8.If a Police Officer believes on reasonable grounds that Mr Jeanes born in 1978 has breached the injunction at Order 6 the Police Officer may arrest him without warrant and place him before a court exercising Federal jurisdiction in relation to the breach.

Provision of Orders and / or Family Reports to various bodies
9.The mother and the maternal aunt have leave to provide a copy of these Orders to any educational institution attended by Y.
10.The mother and the maternal aunt have leave to provide a copy of these Orders to New South Wales Police.
11.The mother and the maternal aunt have leave to provide a copy of the Family Report dated 26 October 2023, and the Child Impact Report dated 5 May 2023, in these proceedings, to any treating medical practitioner, counsellor, therapist or psychologist upon which Y attends. They are to provide a copy of these Orders with those reports to provide notice to those persons that they are not to publish that material.
12.A copy of this Judgment and Orders, and any other documents in this case, may be given to any police prosecutor, legal practitioner or judicial officer in relation to any extant AVO against Mr D or any application in relation to an AVO by the father.

Explanation of orders to the Y
13.Within 7 days from the date of these orders, the mother and maternal aunt make such arrangements as are necessary to have Y meet with the Court Child Expert who prepared the Family Report for the purpose of explaining these Orders to Y.

Mandatory notification to Victorian Department of Families, Fairness and Housing
14.A copy of these Orders and this Judgment is directed to be provided to the Victorian Department of Families, Fairness and Housing, with particular reference to paragraphs [311] – [313] of the Judgment, and a copy of the affidavit referred to there is also to be provided as part of a Notice of Risk in relation to a child.
15.Pursuant to ss 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.

THE COURT NOTES THAT:
A.In the ordinary exercise of parental responsibility, if the mother or the maternal aunt believes Y is initiating or responding to communication with the father, or any agent of the father, the mother or maternal aunt may remove all electronic devices from Y and return them to him at their discretion.
B.Final orders in relation to X were made on 10 July 2024 and 25 July 2024.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gustafsson & Jeanes has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:
INTRODUCTION

These proceedings are to determine parenting orders in the best interests of Y, aged almost 15, pursuant to the Family Law Act 1975 (Cth) (“the Act”).
The applicant mother is Ms Gustafsson, aged 44. She lives near City K, New South Wales, with her new husband Mr D, aged 44, who she married in 2022.
The first respondent father is Mr Jeanes, aged 45. He lives in a rented house near City J, Victoria, and works for a delivery service. He has not re-partnered.
The second respondent maternal aunt is Ms Bluth, aged 39 (“the maternal aunt”). She lives near the mother with her partner Ms N, their young child Q, and Ms N’s two older children.
The parents have two older children, Ms E aged 20 and X aged 17. Ms E is an adult and not a subject of the proceedings but has participated in interviews. X is now the subject of consent orders effectively allowing him to make his own decisions given his age.
I will refer to Ms E, X and Y as “the children” and to Y as “the child". An Independent Children’s Lawyer (“ICL”) has been appointed.
At present Ms E and the child live with the mother. X has returned to live with the father, as his behaviours make it unsafe for the mother or maternal aunt’s households for X to live with them.
The parents commenced a relationship in 2003, married in 2006, and separated on a final basis in around April 2019 when the mother left the relationship to commence a relationship with Mr D in the context, she alleges, of serious long-term family violence. The parents divorced in 2020.
The mother did not take the children with her when she left. She subsequently consented to family law orders that the children reside with the father. Her reasons for acting this way are in contest.
The mother commenced these proceedings on 17 February 2023.
Ms E was interviewed by a court child expert, Ms H (referred to as the “CIR expert”) for a Child Impact Report (“CIR”) in April 2023. Ms E made allegations of long term sexual and physical abuse by the father. These allegations had previously been made and withdrawn. Ms E supported the mother’s evidence of family violence. X was interviewed by the CIR expert and made allegations about the father’s family violence. Ms E and X both raised significant concerns about the risks the father posed to the child, who was living with the father at the time, of both sexual and other family violence.
X and the child were later interviewed by a second court child expert, Ms G (referred to as the “CCE”) for a Family Report in September 2023. They made further concerning statements.
In closing submissions the ICL, the mother and maternal aunt jointly submitted that the father poses an unacceptable risk of harm to the child and jointly proposed, [1] in summary, that the child live with the mother, that the mother and maternal aunt jointly share parental and long term decision making responsibility, that the child spend no time and have no communication with the father, and that those orders be enforceable by extensive injunctions pursuant to s 68B, supported by an explicit order for arrest without warrant pursuant to s 68C (given the father’s admitted breach of the current interim no communication orders). The mother, who I find is vulnerable to coercion, said she sought joint decision making with the maternal aunt for help and advice.
[1] Final Joint Minute of the ICL, mother and maternal aunt (MFI 38).
The ICL, mother and maternal aunt also sought no time and no communication orders pursuant to s 68B and s 68C directed to the paternal grandfather, a cousin who the father has used to communicate with the child in breach of interim orders, the father’s uncle Mr M and his brother Mr L, both of whom are convicted child sex offenders who the father has insisted on involving in the children’s lives.
The father denied all allegations of family violence. He made general allegations that it was in fact the mother who was the family violence perpetrator.[2]
[2] CIR, paragraph 19.
The father submitted that the mother has significant deficits in her parenting capacity and that the child wants to live with him, and will be better cared for living with him.
In closing, the father proposed orders as set out in his Amended Response[3] that, in summary, the child live with him, that he exercise sole parental and long term decision making authority, and that the child spend time with the mother for approximately half of school holidays, noting the distance makes school term time difficult. He also sought orders around communication by a parenting application, and transits and changeover interstate.
[3] Amended Response filed 31 October 2024.
For the reasons set out below, I find that the father is a persistent long-term perpetrator of serious family violence against the mother and children and presents a high and persistent risk of both physical and psychological harm to the child if he were to spend any time, or have any communication with, the child. That risk is unacceptable.
I am not asked, and am unable, noting the relevant evidentiary standard,[4] to make any positive finding in relation to the allegations of child sex abuse made against the father. However, applying the relevant principles,[5] I find that the evidence raises a real possibility that the father has engaged in child sexual abuse of Ms E, and that the child has been sexually abused by some person. I find the father poses a risk of sexual abuse to the child which is unacceptable, either directly or through facilitating child sex abusers to have access to the child.
[4] Evidence Act 1995 (Cth), s 140(2).
[5] M v M (1988) 166 CLR 69 at [25]; Isles & Nelissen [2022] FedCFamC1A 97, in particular at [7], [85]-[86].
I find that if the father maintains any contact with the child, directly or indirectly, this will pose a significant and unacceptable risk of serious long-term psychological harm to the child which substantially outweighs any benefit to the child of maintaining a relationship with the father, or the paternal grandfather or other paternal relatives.
The father stated in his sworn affidavits, though not read at trial, and conceded under the protection of a s 128 certificate,[6] that he has persistently ignored the court’s interim no communication orders pursuant to s 68B of the Act, and further indicated that he was unlikely to comply with a final no communication order. It is likely that the father will both continue to breach the no communication order I make, and to use agents including the paternal grandfather, Mr B, and his sister’s son Mr C, to communicate with the child, as he has in the past.
[6] Evidence Act 1995 (Cth), s 128.
Given my findings of unacceptable risk, and the risk of the father seeking to circumvent and undermine orders, I make orders that substantially reflect the orders proposed by the ICL, the mother and the maternal aunt. I am unable to extend the injunctions to third-parties without notice. This is an unfortunate lacuna in the powers of the Court under the Act to protect vulnerable children from persons associated with the parties.
In late 2022, X ran away from the father’s home after an incident in which he alleged the father threatened him with a weapon. He then moved to live with the maternal aunt and mother. He was then living between the mother and the maternal aunt’s residences. The mother and maternal aunt both stated, and X agreed in discussion with the CCE, that there were significant issues because of X’s unstable mental health and associated dangerous behaviour. Unfortunately for X, the extent of his violent and unregulated behaviours made him unsafe to the occupants of these two households. He moved to a refuge, and then, with no other viable options, moved to live with the father from about early 2024.[7]
[7] Family Report at paragraph 20; Mother’s affidavit filed 12 July 2024, paragraphs 115-122; Maternal Aunt’s affidavit filed 10 July 2024, paragraphs 10-26.
X is still a child for the purposes of the Act and will be until next year. Consent Orders made on 10 July 2024 provide for X to live where he chooses, with parental responsibility to follow. No orders regarding X are sought by any party to these proceedings, nor the ICL, and there is no real prospect that X would abide by any other orders I might make.
X is apparently facing various criminal charges. His position is dire and tragic. His poor mental health, drug addiction and violent and dysregulated behaviours are likely to be a result of being subjected to long term family violence, including at least physical and psychological abuse and neglect, at the hands of the father and in the presence of a mother who, a victim herself, was unable to provide any protection.
BACKGROUND
Alleged child sexual abuse of Ms E by father
In about 2017 or 2018 Ms E made sexual assault allegations against the father saying the abuse commenced when she was 11. Similar allegations were made by another girl at that time. Ms E was sent to live with the paternal grandparents. She retracted the allegations. She alleges this was the result of fear and coercion including from the paternal grandfather.
From 2019 to 2022 Ms E made five further allegations of sexual assault against the father. The father was interviewed by police, however no charges were laid.
In mid-2022 Ms E made further allegations leading to police taking out a family violence order against the father for her protection. The father entered a 12-month consent order without admissions. Ms E moved to the mother’s care, where she has remained since.
Ms E maintains the allegations. The father denies them. The mother accepts that she did not believe Ms E at the time, but says after Ms E came to live with her, she made further disclosures of sexual abuse.[8] The mother took Ms E to police. The mother now says she believes Ms E.
[8] Mother’s affidavit filed 12 July 2024, paragraph 114.
In early 2023, after moving to live with the maternal aunt and mother, X reported a long history of abuse to police and an AVO was issued for X’s protection against the father. As noted, his poor mental health and dysregulated behaviours led him to be homeless and return to the father, despite his allegations.
Father involving children with convicted child sex abusers
There is a significant history of sexual abuse in the paternal family. The father’s relative, Mr M, is a convicted child sex offender. Among his victims was the paternal uncle, Mr L, who he abused for a number of years and who he enlisted as a co-abuser of other children.

Mr L, who is also a convicted child sex offender, abused, amongst others, his (and the father’s) sister, a number of their cousins, and also children who were being cared for by the paternal grandmother.
The father denies having been sexually abused.
I set out an extract from a report on Mr L, noting that the relative referred to in the report is Mr M, to give context to the history. This is relevant as the father is aware of this history but denies these relatives have posed any risks to the children and has involved them in their lives:[9]
[9] Exhibit P.
5. Background History
[Mr L] was born [in] 77 in […] Victonia [sic]. He is the second child of a family of four children. [Mr L] has reported that he has experienced sexual abuse in his childhood. [Mr L] states that he was sexually abused by his [relative] from the age of five […]. This abuse consisted of oral sex, masturbation and being shown pornographic material. He states that he was abused individually and as part of a group of boys. He was encouraged by his [relative] to offend against the other boys and them to offend against him.
[Mr L] did not disclose the abuse to anyone until he himself @vas [sic] questioned by the Police with regard to his abuse of his sister.
[Mr L] began to abuse other children independent of his uncle from about the age of ten. He has stated that he assaulted his sister approximately twice a week for three years. The assaults on his cousins were limited to school holidays. The children who were being cared for by his mother were abused when he, [Mr L], wanted to. [Mr L] states that he could abuse a child just about whenever he wanted to, such was his access to children at that time.
[Mr L] states that he has no alcohol or drug problems.
6. Assessment of offending history
Motivation to abuse sexually
[Mr L] was clearly highly motivated to sexually abuse a wide range of children (ages and sex) prior to being discovered in [late] 199' [sic]. He has admitted this to the author, and in a range of other settings: He displayed a highly developed pattern of behaviour consistent with child sex offenders. That is to say, he had pro-offending thinking, targeting and grooming behaviours. Due to the high level of access to his sister and the [other] children, [Mr L] did not have to engage in any elaborate planning. However, he did ensure that the abuse took place away from others who might discover him. He has stated that he was aware that his behaviour was both illegal and wrong.
The origins of [Mr L's] motivation to offend appears to be found in his own sexual abuse. He has described an extended period in his childhood of repeated sexual abuse perpetrated on him by his [relative]. His [relative] is an established paedophile and he recruited [Mr L] into a ring of boys who were not only offended against but who were encouraged to offend ayainst [sic] each other. This mechanism, a common one used by paedophiles lives the victims with a sense that they are as responsible as the paedophile for what has happened. This increases the chances that they will not tell others about what has happened to them.
[Mr L], by his own account, was sexually aroused when he committed the offences against the children. This sexual attraction to children may well be a conditioned response developed through his early childhood sexual experiences. His offending behaviour went unchecked for a considerable time. His sexual arousal appears to have become conditioned around his offending behaviours. He has stated that he experienced sexual arousal combined with a sense of power when abusing his victims.
Overcoming internal inhibitions
Eldridge (1994) has identified two types of cycles; continuous and inhibited. Offenders with continuous cycles have no internal inhibitors other than fear to prevent them from offending. They have strong beliefs that their behaviour is acceptable and that the law should be changed in line with it. This pattern is common amongst fixated paedophilles. This is the pattern that [Mr L's] uncle displayed. Other offenders have inhibitions about offending, feel guilty and needing to provide themselves with an excuse to offend. [Mr L] prior to his discovery in 199 [sic] appears to fall to have taken on the short-circuit cycle he had been exposed in the behaviour of his [relative]. However, due to his age, at the time of his offending, the developmental issues must be taken into account.
[Mr L] has stated that he experienced no feelings of guilt and that he viewed children as a 'sexual objects to -et [sic] what he wanted from: which was "sexual gratification".
(As per the original)
During the Family Report interview in the prior proceedings the father acknowledged the relevant history. He said that Mr L still had a “good relationship” with Mr M, and further “expressed a view that his [relative] was helpful and had changed for the better, therefore he posed no risk”.[10]
[10] Exhibit 2, paragraph 20.
In early 2022, when speaking with Queensland Child Protection, it was recorded that having become aware the father was planning to stay with Mr L with the children the father was “asked to tell about his plans to keep his three children safe. [The father] replied ‘No plans. I know my children are safe with him. I am not making other plans. He is the children’s uncle and they have a right to see him’”.[11] The father told the interviewer to “cut your lying out” – “it wouldn’t change my plans anyway”.[12] He did eventually agree not to leave the children unsupervised with Mr L, however, did not abide by that agreement.
[11] Exhibit O.
[12] Exhibit R.
In early 2023 concerns were “raised for alleged sexualised behaviours for the child where there is a concern he may have been sexually abused by the uncle after he has made a disclosure of having ‘had sex with someone’”,[13] but not of with whom. Child Protection had “confirmed with both [Mr Jeanes] and Paternal Uncle and the children were having contact with Uncle without supervision”.[14] It was recorded that: [15]
[Mr Jeanes] has shown limited insight into the likelihood of harm he has placed his children in. [Mr Jeanes] has displayed reluctance when Child Protection have requested [Mr Jeanes] to cease unsupervised contact between the children and Uncle. Although Child Protection have been unable to confirm sexual abuse has occurred the likelihood of harm is high.
[13] Exhibit M.
[14] Exhibit M (as per original).
[15] Exhibit M.
It was also noted that X had made disclosures of being hit with various items.
In cross examination the father accepted Child Protection spoke with him but denied it was possible that anything untoward had been done to the children by Mr M or Mr L.
The father has consistently denied that Mr M or Mr L represent any risk to the children. The child reported that he had spent a lot of time with Mr L who “was not allowed to see his own daughter”.[16]
[16] Family Report, paragraph 161.
The father sought a direction that Mr M be permitted to be a witness in his case for the purpose of trial directions. He filed an affidavit from Mr M on 25 October 2023. The affidavit was included in the joint court book but not read at trial.
In cross examination the father said he had spoken to Mr M the night before, to ask about X, and said that X was at his home with both Mr C and Mr M.
Prior proceedings
There were prior family law proceedings (MLC 5960/2019) commenced in about May 2019.
A Family Report dated 10 February 2021 was prepared by regulation 7 Family Consultant Ms R (“FC Ms R”).[17] The mother made general allegations of family violence. These included coercive emotional control including through the father threatening to commit suicide, financial control, yelling and shouting, physical abuse including an incident of throwing a weapon at her, and hitting her with a belt.[18] The father denied these allegations in that report interview.
[17] Exhibit 2.
[18] Exhibit 2, see in particular paragraphs 2, 9 and 25.
The mother told FC Ms R she had wanted to relocate with the children but the father would not allow it. The three children, then all under 18, were video interviewed (during COVID-19) while living with the father. They were reported to have “expressed a clear wish to reside with their father and spend extended school holidays with the mother”.[19] Consequently, the mother spoke with FC Ms R again and she said she had come to accept the situation and “was happy as long as the children kept up their school holiday time with her”.[20] At that time the mother agreed with the father that Ms E lied regularly.[21] On that basis FC Ms R recommended equal shared parental responsibility, for the children to live with the father in Victoria and spend block school holiday time with the mother in NSW. On 3 March 2021 the parties entered final consent orders in those terms. The father says this is strong evidence of subsequent fabrication of the most serious allegations of family violence by the mother.
[19] Exhibit 2, paragraph 34.
[20] Exhibit 2, paragraphs 30 and 40.
[21] Exhibit 2, paragraph 10.
The mother gave evidence she consented to these orders, despite the family violence, because her solicitor advised she would not win.
It was reported in the CIR that:[22]
42.…The mother presented with strong feelings of grief and loss that she fled Victoria without the children, and then signed consent orders via this Court for the children to remain with the father. The mother said at the time she was very fearful of the father, felt unheard and dismissed by the system, and that she did not want to disrupt the children from their school or community.
[22] CIR, paragraph 42.
The mother’s oral evidence was in line with this statement to the CIR expert.
It was put to the mother in cross examination that her statements to the original Family Report writer in 2021 that she was “happy” to leave the children with the father and her failure to mention many of the most serious allegations of family violence raised in these proceedings to that report writer, as well as her decision to sign the consent orders for the children to live with the father, when legally represented, were inconsistent with the extent of her present claims of family violence.[23]
[23] Exhibit 2, paragraph 30.
The mother says her effective abandonment of the children was a result of her “own entrapment and vulnerability to the abusive family violence dynamic”.[24]
[24] Family Report, paragraph 177.
It is common ground, and I find, that the changed circumstances from 3 March 2021 comfortably satisfy the test in s 65DAAA and that it is in the child’s best interests to reconsider the final parenting orders.
Current proceedings
These proceedings commenced on 17 February 2023 when the mother filed an Initiating Application. The maternal aunt joined the proceedings in April 2023.
On 6 March 2023 the ICL was appointed, and a Child Impact Report (“CIR”) was ordered.
On 23 March 2023 the matter was allocated to the Evatt list.
Child Impact Report – April/May 2023
The CIR was conducted by Ms H (“the CIR expert”). She held remote interviews with the three parties on 23 April 2023, interviewed Ms E and X in person on 24 April 2023, and produced the CIR on 5 May 2023. She did not interview the child for reasons set out below. At the time of the interviews Ms E was living with the mother and Mr D, X was living with the maternal aunt, and the child was living with the father.
Given the significance and nature of Ms E’s and X’s disclosures, and the convenient summary provided of the parties’ positions and evidence, which was largely unchanged at trial, as well as the impact of the CIR on the making of subsequent interim orders, I substantially set the CIR report out. The CIR reporter reported that:[25]
[25] CIR, paragraphs 10 – 39.
10.[Ms E]: [Ms E] presented as friendly, astute, articulate, and considered in her answers. [Ms E] provided clear contextual information pertaining to her family, and her thoughts, feelings and worries. [Ms E] said she fled the father’s home in mid-2022 and transitioned to the mothers care due to the ongoing sexual and physical assaults by the father, saying she would regularly be covered in bruises and present to school with black eyes. [Ms E] said that [X] and [Y] are unsafe living with the father and that they should both live with the mother and [Mr D]. [Ms E] said she remained in Victoria longer than she wanted to, to protect [Y] and [X] and now is concerned that no one is in Victoria to protect [Y].
11.[Ms E] said she had the following message for the father “I am telling the truth about the sexual assaults. You treat me like I am a disabled person and I am not.” [Ms E] said she wanted the Judge to know “My father is a sexually abusive person, and he should go to jail and he should not be near kids.”
12.[X]: [X] presented as friendly, kind, anxious, and articulate and provided the CCE with clear contextual information about his parents, family, thoughts, worries and goals for the future.
13.[X] said he had the following message for the father “Why do you think it’s alright to abuse your kids? Why did you take your anger out on me and [Ms E]? Why did you abuse me and [Ms E] to the point where we were terrified of you? And if you hurt [Y] I will come to Victoria and brake your fingers”. [X] said he wanted the Judge to know “I have done my own research about the Court. But [Mr Jeanes] (dad) said the Court doesn’t care about my views due to my age. But I know you (Court) will keep me safe. You have to. I researched it. But if the Court tells me I have to go back and live with [Mr Jeanes], I will run off and become a missing person.”
14.Neither [X] nor [Ms E] raised any risk of harm concerns for the mother, [Ms Bluth], or the step-father [Mr D], saying they felt safe and loved in their care. [Y] [sic] said he would ideally want to live full time with the mother and the step-father [Mr D] and made a request that the ADVO protecting him from [Mr D] is rescinded as he felt it was unnecessary. [Y] [sic] said all the allegations by the father that he was unsafe with the mother and [Mr D] are lies.
15.[Y]: [Y] was not interviewed by the CCE, due to the fact the father said he was unable to bring [Y] to [City K]. The CCE attempted to interview [Y] via MS Teams on the 27 April 2023, however the CCE could not see [Y] on camera due to an apparent technical issue. The CCE advised the father an interview would not proceed unless [Y] could been [sic] seen as this was not clinically appropriate, and not in line with CCS policy and procedures.
RISK AND HARM ASSESSMENT
Family Violence Issues
16.[X] and [Ms E] advised seeing and hearing family violence perpetrated by the father towards the mother throughout the parental relationship. Both said the father had a pattern of hurting the mother by hitting, slapping, punching, choking and sitting on her. Both said they attempted to intervene to protect the mother on multiple occasions and would be physically assaulted and threatened by the father. [Ms E] recounted a time where the father was physically assaulting the mother, and in response [Ms E] kicked the father in the genital area and he quickly dropped to the ground. Following this [Ms E] said she directed [Y] and [X] to hide in their rooms as she was concerned the father would retaliate against her. [Ms E] said the father got up from the ground and punched her in the face. She said the father had a pattern of aiming for her eyes and she has always been surprised the father has never broken her nose.
17.Both reported seeing an incident where the father threw a [weapon] at the mother and said the [weapon injured] the mother’s shoulder. Both said the mother screamed in pain and was crying. Both said they saw the mother on the kitchen floor bleeding and that the father told them to return to their bedrooms. [Ms E] said she refused this request and told the father to “get stuffed” and remembers being scared the father would retaliate towards her for speaking to him like this.
18.The mother said the father has a long standing pattern of perpetrating family violence in the context of emotional, financial and physical control, coercive control, verbal abuse and name calling, and social isolation. The mother advised the family violence began early in the relationship; namely verbal abuse and coercive control, and escalated into physical abuse after the paternal [sic] grandparents died. The mother said the children have witnessed a great deal of family violence, including a time where the father threw a [weapon] at her.
19.The father denied all allegations that he has ever perpetrated family violence or that he has ever physically harmed the mother in any way and all allegations by the mother are a total fabrication of the truth. The father strongly denied he ever threw a [weapon] at the mother and alleged this incident was an accident. The father however was unable to explain why he didn’t seek medical treatment for the mother after this incident as by his own admission the mother obtained a significant wound which eventually became infected. The father alleged the mother was the perpetrator of the family violence in the context of verbal, emotional and physical assaults.
Additional Risk and Harm Issues
20.Risk of sexual harm: [Ms E] said the father has been sexually assaulting her since the age of 11 years old, with these assaults becoming more frequent after the mother left the home. [Ms E] provided a great deal of information about these sexual assaults to the CCE with this information being withheld. [Ms E] further advised the father sexually assaulted a female friend of her and this information was provided to the CCE.
21.[Ms E] said she has told education staff, Child Protective Services and Victorian Police (on multiple occasions), that the father is sexually assaulting her, however each time she has retracted these allegations due to her fear of the father. [Ms E] reported each time she reported the assaults the father would physically assault her and make threats of homicide for disclosing the sexual assault, and would also withhold food from her for days at a time as a consequence for reporting the assaults.
22.[X] said (unprompted) that [Ms E] told him on multiple occasions that she was being sexually assaulted by the father, and that [X] would often observe [Ms E] to leave the father’s bedroom distraught, crying and she would often lock herself in her bedroom. [X] further advised that the father would insist [Ms E] slept in his bed, and for [Ms E] to massage him in his bedroom behind closed doors. [X] said she was unable to protect [Ms E] due to his on fears of the father. [X] reported additional concerns that [Y] had commenced sleeping in the father’s bedroom after [Ms E] left the family home in mid-2022. [X] said the father had asked him on multiple occasions to share his bed, however [X] refused.
23.The father advised early in his interview (unprompted) that [Ms E] has made multiple disclosures that he has been sexually assaulting her, and that he has been interviewed on multiple occasions by Victorian Police and Child Protection Services. The father said all allegations made by [Ms E] about sexual assault were a lie, and that this has been proven by [Ms E] retracting her allegations, and the father never being convicted. The father advised he holds no resentment or anger towards [Ms E] for continuing to lie that he is sexually assaulting her and that he wants to heal his relationship with her.
24.It was common ground during 2019 that the mother and [Mr D] were exchanging nude photographs of one another via their private mobile phones. The mother alleged that, unbeknownst to her, the father had established family sharing on all devices so the devices were paired, and as a consequence, the father saw these photos. The father held a fixed view that, although [Mr D] did not intentionally send the children nude photographs, the children saw the photographs and this proves the mother and [Mr D] are irresponsible and not child focused. The father denied he had established family sharing to pair all the devices. Both [X] and [Ms E] firmly denied ever seeing any nudes from the mother or [Mr D] and said all allegations about his by the father are lies.
25.It was common ground the father successfully obtained an ADVO in 2019 prohibiting the children from living with [Mr D] or spending any time with [Mr D] unless supervised. It was common ground the father has successfully had this ADVO extended multiple times, with the father saying he will continue to seek extensions of the ADVO due to his ongoing concerns [Mr D] poses a risk to the children. It was common ground the matter is currently before the Court after the father alleged [Mr D] was unsupervised with the children on Christmas day 2022. The mother and [Ms Bluth] strongly denied this.
26.Threats of homicide: [Ms E] and [X] advised the father would make regular threats to kill them and the mother, and they believe that the father has the capacity and desire to do this. As an example, [Ms E] said the father would regularly threatened to kill her if she did not retract her statement to Police that he was sexually assaulting her.
27.[X] recalled an incident in [late] 2022 which lead to him permanently leaving the father’s care and relocating to NSW to live with [Ms Bluth]. [X] recalled this incident in graphic detail, saying the father threatened him with a [weapon] and was swinging the [weapon] around in an attempt to make contact with [X]. [X] said when he attempted to flee the home via the front door, [Y] locked this door to stop [X] from leaving.
28.[X] said he escaped via the back door and started running whilst screaming to the mother over the phone “He (dad) has a [weapon]”. [X] said the mother directed him to call triple zero, which he did. [X] said he was running down the middle of the highway, in and out of traffic, and could hear the father’s car coming behind him. He said when he informed the triple zero operator of this, he was advised to run as fast as he could, to not stop, and was directed to hide in a safe location.
29.[X] advised he ran to a service station and was assisted to hide in a back storeroom by a female employee. [X] said three police cars arrived and located the father and [Y] at the petrol station. [X] said the father was able to locate him as the father had a tracking device installed on [X’s] phone which sent SMS alerts to the father of [X’s] location. [X] said the father was arrested and he and the father made a police statement. [X] said during this incident he was in fear for his life, largely due to the fact the father had a longstanding pattern of making threats to kill him.
30.Following this [X] spent a two week period with a family member in Melbourne and said the father eventually provided “consent” for him to travel to [City K] and spend time with the mother. [X] said the father contacted him whilst he was at Melbourne airport and told him he was not permitted to travel to NSW. [X] said after hearing this, he ran through the airport, to the gate and boarded the plane as fast as he could as he did not feel safe returning to the father’s care.
31.[Y] living with the father: [X] and [Ms E] said they are very worried about [Y’s] immediate physical and emotional safety living with the father, with both saying they wanted [Y] to be placed immediately in the care of the mother. Both said the father should never be permitted to have any access to children and that they were concerned [Y] may be suffering ongoing physical assaults by the father without any safe ally or ability to seek help and safety. Both said [Y] is very aligned to the father and referred to [Y] as a ‘daddy’s boy’; with both saying [Y] will lie to the Court to protect the father and say all the allegations of physical harm are a lie.
32.Safety and wellbeing: [Ms E] and [X] both reported physical assaults by the father, with some being indicative of grievous bodily harm. Both advised the father hits, punches, kicks and slaps them on a regular basis with his hands and various other implements […]. [Ms E] and [X] said the violence towards them escalated in 2019 after the mother left the home and moved to NSW.
33.Both children recalled incidents where the father would [injure them]. Both children said the father [would use various items to injure them], however they never received any medical treatment. [X] advised he wears hats due to his head being covered in scars from being hit on the head by the father who used various implements to do this. [X] was observed to be wearing a hat during his interview.
34.Both children reported the father would padlock the fridge and cupboards and they were regularly denied food and were often hungry. [X] advised [Y] was the only child whose hand would fit into the fridge and he was sometimes able to obtain food for them. [Ms E] advised [X] and [Y] would hide food in her bedroom and she would take the blame for this and be regularly physically assaulted by the father. This was confirmed by [X].
35.Mental health: [X] and [Ms E] advised they experience ongoing mental health symptoms such as depression, anxiety and PTSD which they directly relate to their experience of physical, emotional, verbal and sexual assault and witnessing the family violence perpetrated by the father.
36.The mother and [Ms Bluth] described their mental health as good with no diagnosis. The father advised he has experienced thoughts of self-harm [and on one occasion he suffered an injury] and was transported to hospital by Ambulance. The mother alleged the father used threats of suicide and self‑harm as an attempt to control and manipulate her.
CHILD IMPACT ANALYSIS
37.[Ms E] and [X] provided clear information as to how the family violence, physical assaults, verbal abuse and the sexual assault of [Ms E] have impacted on them. Both children reported experiencing chronic anxiety, depression and symptoms of PTSD. [X] said he has recurrent thoughts of [self-harm and has recently injured himself]. Both children reported fears the father may come to NSW and attempt to harm them or kidnap them. Due to this both children said they feel unsafe in the community at times.
38.It was apparent both children held misplaced guilt that they were unable to protect the mother or each other from the father. It is a concern that both children have ongoing fears that [Y] is unsafe with the father and concerns [Y] is isolated and unable to seek help or safety and may be the primary victim of the fathers violence. Both children appeared to be living in a state of hypervigilance, with [X] saying if the father attempts to harm the mother, [Ms E] or [Y] he will assault the father and hurt him. [X] also advised he has ongoing anxiety that the Court will not believe him and will force him to return to Victoria. As a result [X] said he would go missing as opposed to returning to the father’s care.
39.This is an extremely worrying matter with a number of risk factors identified. So much information was provided to the CCE by the children it was difficult to capture it within this brief assessment. However, based on the available information the CCE is very concerned she was unable to speak with [Y] and that he may be unsafe living with the father. There are further concerns that [Y] appears to be completely disconnected from the mother, his siblings and maternal family. Of further concern is the children’s’ statements that the paternal grandparents and paternal family are not protective, that they are aligned with the father, and that they have threatened the children to not report any of the risk of harm concerns to anyone. This potentially increases the vulnerability of [Y], who has a complex diagnosis and is only 13 years old with minimal capacity to protect himself or seek safety.
(Emphasis in original)

The CIR expert identified a high lethality risk for the mother and children and concerns for the child continuing to live with the father.[26]
[26] CIR, paragraph 44.
The mother gave evidence that Ms E and X made disclosures in similar terms to those contained in the CIR when they came to live with her post separation, and that following the CIR, and learning what had been disclosed by Ms E, that she took Ms E to police.[27]
[27] Mother’s affidavit filed 12 July 2024, paragraph 114.
The father’s evidence is that X has told him that the mother and maternal aunt had both coached the children to tell people that he had abused them, and that these are all lies.[28]
[28] Father’s affidavit filed 25 October 2024, paragraph 18.
This hearsay evidence from Ms E and X of serious criminal conduct, including child sexual assault and physical assaults, was admissible by reason of s 69ZT for Ms E, and also by reason of s 69ZV for X. Ms E is an adult who could have been called as a witness. No submission was made, quite properly given the evidence of her very poor mental health, that there is an adverse inference to be drawn from the failure to call Ms E.
Having been admitted only by reason of Part VII Division 12A of the Act I am required to, and have, considered the weight, if any, that it is appropriate to give to this evidence, and similarly to the statements of X and the child to the CCE considered elsewhere. In the context of all of the evidence I consider that it is appropriate to give some weight to this evidence as part of the overall constellation of evidence of family violence, including risk of sexual abuse.
Further interim orders
The CIR was released on 8 May 2023. On 16 May 2023 consent orders were made for X to live with the maternal aunt and spend no time/have no communication with the father. Section 68B injunctions were made against the father for the protection of the mother and maternal aunt.
On 1 June 2023 interim orders were made for the child to live with the mother and spend no time and have no communication with the father.
The child ran away. There is an issue whether the child ran away to avoid the recovery, or, whether the father orchestrated or influenced the child’s absence from his house. The father denied that he had any involvement in the child’s actions.
In mid-2023 the child was recovered by police pursuant to a s 67Q order. A s 68B injunctions was directed to the father for the protection of the child. The following day was delivered into the mother’s care.
On 5 July 2023 a Family Report was ordered. It was released on 31 October 2023.
Family Report – September 2023
X was living in a refuge by the date of interviews. X expressed remorse for various incidents at the maternal aunt’s house which meant he could no longer live with her. He told the CCE that the father said things to him and the child which “made them hate the mother and stop speaking to her at times” and stated that he would never return to the father’s care again.[29]
[29] Family Report, paragraphs 138-143.
The CCE recorded at [142] that:[30]
142.[X] identified his greatest fear in relation to the current Court proceedings as being that he and [Y] will be sent back to live with the father. He said that while he feels he has explained the dangers they were in with the father, he cannot trust that the Court will not send him back because the father “has put stuff in my head about it”. It is noted in subpoena records from CAHMS, subpoena 2, that in February 2023, [X] was receiving messages from the father/paternal family which stated, “don’t get too comfortable living in [City K] because you’ll be back soon”.
[30] Family Report, paragraph 142.
The child was interviewed by video link. The CCE recorded at [151] that:[31]
151.[Y] said the father’s treatment of him and his siblings worsened after the mother left. He said the father was not very well and would lock himself in his room or his car and cry a lot. [Y] said he would worry about the father. When asked when he felt most worried about the father, he said “this year” after [X] had left. [Y] said the father told him that if he ([Y]) also left him, he would hurt himself. [Y] said this was “very hard” to hear and “made me feel like I didn’t want to leave”. When asked how he feels now, after he has left the father’s care, [Y] said, “I always knew it would be better (for me) if I was here”.
[31] Family Report, paragraph 151.
The child said that Mr D was nice but he had to get used to being near him “…because all the stuff [Mr Jeanes] said about him being dangerous and stuff”.[32] When asked what he missed about the father the child “reiterated his worries about the father’s wellbeing, and said that he recently told his friend to keep an eye on the father”,[33] and confirmed that the father had been in contact with him and “told him that he missed him”.[34]
[32] Family Report, paragraph 158.
[33] Family Report, paragraph 159.
[34] Family Report, paragraph 160.
The CCE reported at [162]-[163] that:[35]
162.[Y] reported that, since living with the mother, he speaks to a psychologist about his emotions which he finds helpful to “get things out of my head”. [Y] said he did not think the father would like him doing this because the father would not want to get into any trouble.
163.[Y] was asked whether he wanted to share his views about his parenting arrangements. He said he would like to have supervised phone calls with the father because he thinks this would help him not to think about the father as much. He commented that he finds it difficult concentrating at school sometimes because he thinks about whether the father might hurt himself, “because I know a lot has been happening…like his car got stolen”. He said he knows about the problems the father has had because of the messages he receives, and because the mother’s friend, [Ms F], tells the mother things and the mother tells him.
[35] Family Report, paragraphs 162-163.
The CCE considered the available material, including her interviews of the parents, X and the child and the material from Ms E and X as disclosed to the CIR expert, and while raising concerns about the mother and Mr D for consideration by the court, said of the father:[36]
170.The father’s parenting and treatment of the children has been depicted in this assessment, through various accounts, as merciless and abusive. The father presented with a substantial lack of empathy or warmth towards the children; and when speaking about them, the father shifted from sentiments of possessiveness and enmeshment, to punitive, scapegoating, and rejecting sentiments. Notwithstanding the serious allegations of abuse by him, the father’s presentation in this assessment alone raised serious concerns about the degree of current and future harm to the children via any form of contact with the father.
171.There are serious allegations of family violence by the father towards the mother in this matter which require careful consideration. Allegations of physical abuse (including […] causing injury, and using weapons), threats to kill the mother (including enacting the beginning of such plans), and elements of extreme control (such as stalking/monitoring, and sexually demeaning/controlling abuse) are indicators of a high risk of lethality associated with the family violence. These risks are considered to extremely high, if there is also a history of physical or sexual harm inflicted by the alleged perpetrator, to children. If the Court finds that the allegations of family violence in this matter are accurate, then the risks to the children and the mother during and post these proceedings would be considered extremely high.
172.There would also appear to be risks associated with the father’s psychological stability during and following these proceedings, based on numerous accounts of the father threatening to end his life if the children leave his care. The father appears to have entangled the children (and the mother) in these threats, causing them to feel overwhelmed with fear about his wellbeing. The risks associated with the father’s mental health not only intensify the actual risks of physical harm to the mother and children, but serve as an ongoing, pervasive threat to the children’s psychological wellbeing. While ever there is a means of contact between the children and the father (or associates of the father), then the terror associated with this form of abuse (or manipulation) will be activated in the children and continue to place the children’s own mental health at risk.
173.These dynamics may also need to be considered in context with the allegations of sexual abuse in this matter. A common tactic found to be used in sexual assault cases to silence victims and prevent them from reporting abuse, are threats by perpetrators to kill themselves and/or others if the abuse is ever reported.
174.Sexual abuse involves the most severe exploitation of a child and can impinge on all aspects of a child’s development. Sexual abuse of a child/ren within a family requires perpetrators to employ a number of tactics to engage the child in the abuse, and to maintain secrecy over the abuse. Grooming is a common tactic used by perpetrators, which generally involves a perpetrator grooming both the child, and the child’s environment, to allow the abuse to occur and persist. Violating and distorting boundaries is one of the ways a child may be directly groomed; while grooming the environment may include tactics such as: depicting the child to others as a ‘liar’; emphasising disabilities or problematic behaviours in the child to discredit potential disclosures; isolating or scapegoating the child; and utilising physical violence and threats on the child and others.
175. There are allegations in this matter that the father has perpetrated sexual abuse of [Ms E] (and a friend of [Ms E]), and concerns raised by [Ms E] and [X] in a previous Court assessment, about possible sexual abuse of [Y] by the father. While sexual harm by the father has not been substantiated by State authorities, the Court may need to consider whether the children are at an unacceptable risk of sexual harm with the father; not only in relation to the indicators of risk associated with the father’s presentation and pattern of behaviour, but also in relation to the father’s history of facilitating unsupervised time for the children with several known child sex offenders.
176. The father’s ongoing communication with the children, despite the current injunctions in place, is an extremely concerning issue in this matter. While it is acknowledged that the children and the mother may be participating in this to some degree, this would not necessarily be surprising in the dynamic of terror, control, and misplaced responsibility which appears present in this family. The mother’s seeming inability to understand the complexity of this dynamic and the risks posed by her transferring information between (or about) the children and the father, means that the Court may need to consider imposing very clear and restrictive conditions to assist protect these children.
[36] Family Report, paragraphs 170 – 176.
The CCE recommended that: the mother and maternal aunt share parental responsibility; that the child live with the mother; that X’s living arrangements be determined in consultation between X, the mother and maternal aunt; that the child spend no time and have no communication with the father, supported by injunctions pursuant to s 68B prohibiting the father from approaching or contacting, including through third parties, the child or the mother, or the child being brought into contact with Mr M, Mr L and possibly the paternal grandfather.
The CCE’s opinion was maintained in her oral evidence, considered elsewhere.
Further interim orders
On 8 November 2023 orders were made for X to live with the mother, and for the mother and maternal aunt to share parental responsibility for X.
On 9 November 2023 the matter was transferred to Division 1 and an order was made pursuant to s 102NA.
On 3 April 2024 the matter was set down for final hearing to commence Monday, 4 November 2024.
X returned to the father in March 2024, having no other alternative, and on 10 July 2024 consent orders were reached for X to live with either parent as he so chose, and for that parent to then have parental responsibility.
On 25 July 2024 a s 68B injunction was put in place restraining the mother from leaving the children in the unsupervised care of her partner, Mr D.
TRIAL
The trial commenced on Monday, 4 November 2024. All parties, including the ICL were legally represented, including by counsel. The trial concluded on 8 November 2024 with oral submissions.
The mother read or relied upon the following:
(1)Third Amended Application filed 10 October 2024,
(2)Affidavit of Ms Gustafsson filed 12 July 2024,
(3)Mother’s proof of evidence,
(4)Affidavit of Mr D filed 12 July 2024,
(5)Affidavit of Ms S filed 12 July 2024,
(6)Affidavit of Ms F filed 5 September 2024, and
(7)Submissions bundle filed 29 October 2024.
The father read or relied upon:
(1)Amended Response filed 31 October 2024,
(2)Affidavit of Mr Jeanes filed 5 March 2023,
(3)Affidavit of Mr Jeanes filed 2 May 2023,
(4)Affidavit of Mr Jeanes filed 5 September 2023, but not reading paragraphs 17, 19, 21‑24, 36-38, 45-51,
(5)Affidavit of Mr Jeanes filed 25 October 2024, but not reading paragraphs 22-25 including annexures B and C,
(6)Affidavit of Mr B, paternal grandfather, filed on 25 October 2024, and
(7)Case outline filed 1 November 2024.
The second respondent read or relied upon the following:
(1)Response to Final Orders filed 17 April 2023,
(2)Affidavit of Ms Bluth filed 10 July 2024,
(3)Affidavit of Ms T filed 12 July 2024,
(4)Affidavit of Ms U filed 12 July 2024, and
(5)Case outline filed 3 November 2024.
The Independent Children’s Lawyer read or relied upon the following:
(1)Child Impact Report prepared by Ms H dated 5 May 2023,
(2)Family Report prepared by Ms G dated 26 October 2023,
(3)Case outline (not filed), and
(4)Final joint minute of the ICL, mother and maternal aunt.
The mother, Mr D, Ms F, Ms S, the maternal aunt, Ms U, Ms T, the father, the paternal grandfather, and the CCE, were required for cross examination.
Numerous documents were cross examined on and tendered. These will be referred to as appropriate.
GENERAL ALLEGATIONS OF FAMILY VIOLENCE
The mother alleged significant long term family violence, both generalised and citing specific incidents, directed to both her and the children. The mother’s allegations were substantially in line with her statements to the CIR expert and to the CCE and were broadly supported by the disclosures and statements of Ms E, X and the child to the CIR expert and / or the CCE.
The mother’s allegations included: verbal abuse, such as the father telling them they were idiots, morons or retards; physical abuse, such as hitting and kicking with steel cap boots, as well as a range of specific allegations, such as the Christmas Day incident and the father sitting on the mother restricting her breathing; extensive coercive and controlling behaviour reinforced by the verbal and physical abuse, including control of finances, of movements, of social contacts; threats or attempts to choke; threats to kill; and threats of self-harm or suicide.[37]
[37] Affidavit of the mother filed 12 July 2024, paragraphs 10-20, 23-24, 26 and 28.
In cross examination it was put to the mother that this was all, in effect, a post separation fabrication. The mother denied that. She maintained the truth of her evidence.
In cross examination the father denied these general allegations.
He denied smashing Ms E’s phone to discipline her, however, when shown the child protection report recording that he had “reported that he had smashed [Ms E’s] phone and … was advised by Child Protection to find alternative discipline methods” he accepted that record was probably right.[38] I give weight to this concession as consistent with the mother’s and children’s general description of the father’s parenting.
[38] Exhibit K.
In relation to the allegations that he had a lock on the fridge, and denied the children food, he said he put a lock on the fridge to help Ms E because of her eating disorder causing her to put on a lot of weight. Ms E has a significant weight problem, as does the father. The concession indicates at best if accepted, a significant lack of empathy and parental capacity for Ms E’s health issues associated with an eating disorder causing obesity, and a disinterest in the other children’s well-being. The concession of a lock on the fridge for the children, but not the father, is also consistent with the allegations that the father engaged in coercive and controlling behaviours. Taking all of the evidence into account I consider this is more likely to be an example of the father’s exercise of coercive control as outlined by Ms E to the CIR expert.
The father maintained in cross examination that Ms E and X were lying when making disclosures, and that the mother had coached them, and the child, to lie about him.
SPECIFIC ALLEGATIONS OF FAMILY VIOLENCE
Incident – Christmas day
The mother gave evidence that on one occasion the father got angry when she had not cooked something the way he wanted it, and that he threw a weapon at her, hitting her and causing a wound. She said that he did not attend a doctor at first because the father would not allow her to. She said the maternal aunt came to the house and made an appointment for her to see the doctor.[39] In cross examination the mother maintained the version of events and that the injury was the result of an intentional act. She denied that it was an accident as the father alleged.
[39] Mother’s affidavit filed 12 July 2024, paragraph 21 – 22.
Ms E and X both gave hearsay evidence of this incident in the CIR, stating that they witnessed it directly, and it was raised by the mother and the father.[40]
[40] CIR, paragraphs 17 – 19.
Ms F gave evidence that on Christmas Day she and her then partner and child W were visiting. She said:[41]
13.… [Ms Gustafsson] wanted to cut up the meat and [Mr Jeanes] lost his temper because he said to her that it was his job to cut up the meat. [Ms Gustafsson] began to walk away, and [Mr Jeanes] threw a [weapon] at [Ms Gustafsson]. I was terrified and told [my partner] to get me out of there house with [W]. I recall the [weapon] hit [Ms Gustafsson] in the back […] and then the [weapon] fell to the ground on the floor between the kitchen and dining area. I was also scared for [Ms Gustafsson] and the children, and I tried to get her to leave but she would not. [Ms Gustafsson] said she could not leave because of the children.
[41] Affidavit of Ms F filed 5 September 2024, paragraph 13.
In cross examination, Ms F maintained her evidence that the father threw the weapon. She denied the father’s version of the event as an accident. She did not recall whether the father had encouraged the mother to go to the hospital.
The father’s evidence was that the parties were in the kitchen at Christmas. The mother went to get something. He was behind her holding a weapon. He told her not to turn around, but she turned around and the weapon accidentally went into her. He agreed it was a serious wound. He said he apologised straight away and tended to the wound. He said the mother refused to attend hospital. He denied throwing the weapon or refusing to allow her to go to the hospital.
He agreed the maternal aunt later saw the infected wound, at which point the mother went to the hospital, but said he was the one who asked the maternal aunt to inspect the wound.

The maternal aunt was not present at that time.
On balance, considering the available evidence and noting the gravity of the allegation, and taking into account all of the evidence, I prefer the evidence of the mother and Ms F, supported by the hearsay evidence of Ms E and X, to that of the father.
I consider the fact that the mother did not seek treatment for a serious wound until the maternal aunt saw the infection is consistent with the overall evidence of coercion and control, and that the mother’s version of events is more likely than the father’s version that the mother refused to seek treatment for a significant wound.
I find that this was a specific example of serious family violence by the father including both physical violence with a weapon, and coercion and control in not permitting the mother to seek medical treatment.
Sitting on the mother
The mother gave evidence that on one occasion the father sat on her until she could not breath properly. She said this occurred in front of Ms T and the children.[42]
[42] Mother’s affidavit filed 12 July 2024, paragraph 27; CIR, paragraph 36.
This was referred to by Ms E and X in the CIR.[43]
[43] CIR, paragraph 16.
Ms T gave evidence that:[44]
5.During a visit to [City J] to see [Ms Gustafsson] and the kids this time I've witnessed [Mr Jeanes] lay on top of her till she couldn't breathe because he wouldn't get off her until [Ms Gustafsson] said sorry & then when she did say sorry he still lay on top off her and wouldn't get off, he thought it was so funny, he was even laughing. Meanwhile [Ms Gustafsson] is crying & asking him nicely to get off her because she couldn't breathe, she asked [Mr Jeanes] numerous times to please get off her but he would not listen. I asked him several times to get off her as it was not funny both my kids and his kids were present at the house when this happened, i was trying to supervise the kids and help [Ms Gustafsson] at this time as he wouldn't get off.
6.I was staying at their house with my kids […] who both have autism and are developmentally delayed & both her kids [Ms E] and [X] and mine heard and saw everything that was going on. I had even asked [Mr Jeanes] quite a few times to get off her but he wouldn't he said she has to apologise first and I said she has but he didn't care he still thought it was funny.
[44] Affidavit of Ms T filed 12 July 2024, paragraphs 5–6.
In cross examination Ms T maintained her evidence. She said that the mother had said something was wrong, that the father wanted the mother to apologise, that the mother could not breath and was telling the father to get off her, and that he would not get off her until she apologised.
On balance, taking into account all of the evidence, and noting the gravity of the allegation and of the consequences of the finding, I prefer the mother’s and Ms T’s direct evidence, supported by the hearsay evidence of Ms E and X referring to the father sitting on the mother, to that of the father.
I find that this was another specific example of serious physical family violence by the father associated with coercion and control in requiring the mother to apologise before he would release her.
Threats to neighbour with a weapon, involving X, August 2022
The CCE asked the father about an incident in August 2022:[45]
82.The CCE asked the father whether he had ever threatened to harm or kill anyone with weapons. He denied this. The CCE specifically asked whether he had ever threatened to harm anyone with [a weapon] (based on the available collateral material). The father smirked in response, and conceded to an incident (in 2022) when he chased a man with [a weapon] in the street, which he initially suggested was an act of defence of his children because the man was reportedly bullying [X]. The CCE reflected to the father, however, that the incident occurred three weeks after the alleged bullying to [X], which would be more indicative of retaliation rather than defence. The father said that he took three weeks to consider his actions, and ultimately believed that he needed to show [X] that he did not like bullies, so purchased the [weapon] and tracked down the man.
[45] Family Report, paragraph 82.
The father was cross examined about this event, which was recorded in police documents.[46] I note that the father’s reflexive denial to the CCE, until taken to the specific event and being made aware there was evidence inconsistent with his denial, was the approach the father generally adopted to giving evidence throughout his cross examination.
[46] Exhibit J.
The father’s oral evidence was that there was an incident in which he had a weapon. The father agreed he had a weapon but denied buying it or premeditation. He said that, because the other person he was confronting had a weapon, he had then grabbed one. The father was not able to explain his inconsistent statement concerning premeditation to the CCE. I consider the father was seeking to minimise the event in oral evidence before me. I consider this another one of many examples of the father’s dishonesty in oral evidence.
I find that his statement to the CCE that this was a premediated act, in which he purchased a weapon and tracked down someone he thought was a “bully” to threaten them, is more likely to be what occurred. I find that this was a premediated act of violence as described by the father to the CCE.
The father said that there was an intervention order made but no further action was taken. He said he and the other family’s father (the V Family) had discussions, and they agreed the two families would stay away from each other.
The father did not appear to be in any way troubled by, or regretful of, his behaviour in this incident in his oral evidence. His calm and casual recitation of the facts, and defence of his actions, was deeply troubling. The father clearly believed he had acted reasonably.
Whilst this action was not directed at his family, he involved X in it. He told the CCE he was modelling behaviour to X and I find that was likely the truth. In cross examination the father denied this event involved modelling poor behaviour. He said this was because X knew “what’s right from wrong” without, however, genuinely accepting that his own actions were wrong.
I consider the fact of the occurrence, the father’s involvement of X, his statements to the CCE concerning pre-mediation, his dishonest oral evidence before me, and his defence of his actions, to be strong evidence that the father holds a fixed and current belief that he is entitled to use violence and threats of violence to intimidate others.
I consider the father’s behaviours in relation to this event to be consistent with the mother’s evidence, and children’s hearsay evidence, concerning his patterns of behaviours towards them and a further piece of evidence supportive of their evidence.
Alleged assault on X in late 2022
X raised the alleged assault with a weapon by the father in the CIR:[47]
27.[X] recalled an incident in late 2022 which lead to him permanently leaving the father’s care and relocating to NSW to live with [Ms Bluth]. [X] recalled this incident in graphic detail, saying the father threatened him with a [weapon] and was swinging the [weapon] around in an attempt to make contact with [X]. [X] said when he attempted to flee the home via the front door, [Y] locked this door to stop [X] from leaving.
28.[X] said he escaped via the back door and started running whilst screaming to the mother over the phone “He (dad) has a [weapon]”. [X] said the mother directed him to call triple zero, which he did. [X] said he was running down the middle of the highway, in and out of traffic, and could hear the father’s car coming behind him. He said when he informed the triple zero operator of this, he was advised to run as fast as he could, to not stop, and was directed to hide in a safe location.
(Emphasis in original)
[47] CIR, paragraphs 27 – 28.
The mother says she was on the phone with X when he said “dad’s got a [weapon], he’s going to hurt me” then ended the call. She said X spoke with her later explaining what occurred and this led to him first living with Ms F, then coming to NSW to live with the mother.[48]
[48] Mother’s affidavit filed 12 July 2024, paragraphs 53-59.
The father was cross examined on the police report which recorded X’s history that during a verbal argument the father “allegedly held a [weapon] up waving it around” causing X to flee to a service station and call police.[49] The child, who was in the home, denied seeing anything. The father told police he merely had his “[object] in his hand prior to the argument and never raise[d] his towards [X]”.[50]
[49] Exhibit S.
[50] Exhibit S.
In cross examination the father denied that he was arguing with X. He said they were talking about X’s behaviour. He said he was calm. He accepted he was holding an object when he was speaking with X. He denied swinging the weapon.
He accepted X ran, that he followed X, located him using an “SOS” locator on X’s phone, found X at the service station and asked him to get in the car to return home. He said he was then located by police and arrested.
On the available, primarily hearsay, evidence and noting the gravity of the allegation I am unable to make a positive finding that the father threatened X with a weapon, but note that there is no clear explanation why X would have reacted in that extreme way to what the father described as a calm discussion about X’s behaviours, merely because the father was holding an object, and then move to live with the mother if there was no threat.
Whilst a specific finding is not open, I do consider X’s statements as part of the constellation of evidence supporting the allegations that the father is a violent man who has committed acts of family violence.
Physical altercation with Mr L in late 2023
The father was involved in a physical altercation with Mr L before he attended the Family Report interview. He said he had been living with Mr L for three weeks prior, travelling from Queensland down to City K with him for the interview.
The CCE noted that the father attended the assessment appearing highly dishevelled and unclean and reporting that Mr L had assaulted him overnight by hitting him, for which Mr L had been arrested.[51]
[51] Family Report, paragraph 25.
In cross examination of the CCE, it was suggested to her that the father’s appearance was not unreasonable, given the assault. The CCE indicated that she understood the assault was the night before, allowing time for some attempt to clean up prior to the interview.
In cross examination the father was asked about this “argument” to which he responded, “if you call it an argument…” seeking to minimise the event. He agreed that Mr L hit him and said it was “over him using something of mine that holds personal” significance, which he clarified was an item the children had bought him for father’s day. He said Mr L had lost or misplaced it. The father said he asked Mr L to find it. The father denied he was upset when he made this request. He said that he did not raise his voice.
He said he told Mr L he would not give him back his personal property, which he was asking for, until he found and returned the father’s item. As a consequence, Mr L hit him. Police were notified and an AVO issued for the father’s protection.
The father was later cross examined on the police report, which read:[52]
The accused In the matter is [Mr L]. The victim in the matter is [Mr JEANES]. The victim and the accused are brothers and currently reside together at.. ... .... ......... ......... ..... ..... On Sunday […], the victim and the accused travelled together from their home address In Queensland to [a location] where they were planning to camp the night. About 6:30pm, the victim and accused engaged in a verbal argument where the victim was accusing the accused of having his [item]. The victim requested it back however the accused denied knowledge of its location. The victim noticed the accused's [personal property] sitting on the table and took this to use as a way of bargaining with the accused to return his [item]. The victim and the accused continued arguing as to the location of the victim's [item] and the accused's [personal property]…The accused began getting aggressive with the victim stating that if he "doesnt give the [personal property] back, i'll smack you over the head […]". The victim replied "when you find my [item]". The accused proceeded to use [a nearby item] to hit the victim over the left side of his head. This caused a small laceration and caused the victim to fall to the ground. Once the victim got to his feet again, the accused again hit the victim […]. Both the accused and the victim soon ended up on the ground where a short wrestled ensued. The victim eventually got on top of the accused and held him down to prevent further assaults. The accused pleaded with the victim to get off him where the victim stated“If you find my [item]". The accused agreed and the victim removed himself from the accused. At this time, the accused has used a closed fist and punched the victim in the mouth, again causing a laceration and swelling to the victim's top lip…. The accused soonmoved to the victim's vehicle where he used a closed fist to punch the stereo system within the vehicle. This caused the screen to be completely destroyed. The accused began throwing items around the area and the victim began looking for his phone. In an attempt to locate his phone, the victim has turned his vehicle on to use the light. The accused has began pulled fuses and wires out from the battery. The victim's phone was returned to him and the accused's [personal property] was returned. The victim soon contacted Police as he no longer wanted the accused to be staying with him. About 7:20pm, Police attended the location and spoke with both parties. The victim provided the above details. The accused stated to Police that the victim approached t he accused with a [weapon] stating "I will fucking kill you".
(As per the original)
[52] Exhibit N.
In cross examination, the father denied that he had threated Mr L with a weapon, saying there was a weapon, but it was in the back of the vehicle. He said he kept the item for domestic tasks, and that the item was confiscated by police.
The father seemed intent on downplaying the event, initially denying there was an “argument”, and generally treating the event as a run of the mill fraternal dispute. He did not seem to think that retaining Mr L’s personal property while demanding that he find and return an item, to the point where Mr L became enraged and seriously assaulted him, had been anything out of the usual.
The father’s oral evidence on this event was presented in a similar way to his evidence concerning the weapon threats to a neighbour, and was equally concerning.
While Mr L was the assailant, on the father’s version of events his conduct involved an element of controlling and manipulative behaviour in his withholding of Mr L’s personal property, which he wanted, until Mr L complied with his demands and doing this up to the point where Mr L was so enraged he battered him.
Threats of suicide and alleged emotional manipulation of “daddy’s boy”
The mother said that the father had threatened suicide and self-harmed when she threatened to leave.[53] Records from Victoria police for the period mid-2019, when the marriage was ending, noted the contemporaneous history of the mother alleging the father had threatened suicide. They stated he was admitted for a mental health assessment. Concerns that the father was using controlling behaviours were also raised at that time.[54]
[53] Mother’s affidavit filed 12 July 2024, paragraph 39-41.
[54] Exhibit K.
The father told the CIR expert, as set out above, and later the CCE, that he had experienced thoughts of self-harm, and on one occasion he suffered an injury and was transported to hospital by Ambulance, and that he had made threats to end his life.[55]
[55] Family Report, paragraph 32.
When asked in cross examination about the child’s statements to the CCE concerning his “worry about the father” because “the father told him that if he ([Y]) also left him, he would hurt himself” the father denied that he ever said that to the child.[56]
[56] Family Report, paragraph 151.
The father also told the CCE that when orders were made for the child to move to live with the mother on 1 June 2023:[57]
33.…[X] called him crying, concerned that he would kill himself in response to [Y] being taken away. When the CCE asked the father why [X] would have such concerns, the father initially deflected the question, and said that he promised [X] that he would not suicide.
[57] Family Report, paragraph 33.
The CCE expressed the opinion that the father’s “suggestions that the children would be highly concerned about his wellbeing at this time would appear very consistent with this alleged pattern of behaviour”.[58]
[58] Family Report, paragraph 34.
There was no explanation presented for why X would have thought the father would kill himself in response to the child being taken away if the father had not conveyed that message over time.
The father told the CCE that everyone referred to the child as “Daddy’s boy” and knew “how dependent the child is on him”.[59] The father said that he did not plan the child’s running away in June 2023, but said that “[Y] saw how ‘distraught’ he (the father) was about the outcome of Court and decided to run away”.[60]
[59] Family Report, paragraph 35.
[60] Family Report, paragraph 35.
I consider it significant that it was the father’s evidence that the child ran away, not because the child was upset at moving to live with the mother, but because of how distraught the father was about this order.
In cross examination, contrary to his statements concerning suicidal thoughts to the CIR expert and CCE, the father denied he had had thoughts of suicide. He said they were just something in his head and that he did counselling. He denied that he had expressed suicidal thoughts to the mother or the children.
I reject the father’s oral evidence on this topic. The fathers statements to the CIR expert and the CCE about suicidal ideation and self-harm, the evidence of the mother and the consistent contemporaneous police records in 2019, the hearsay evidence of the child to the CCE that the father had said he would hurt himself, the father’s own evidence that the child ran away because of how distraught the father was, the father’s statement to the CCE that X called him because X was concerned the father would kill himself and the father’s statement that he told X he would not suicide, lead me to find with a comfortable degree of satisfaction, noting the gravity of the allegations, that the father has engaged in serious coercive and controlling behaviour of the mother, and in particular of the children, through threats of self-harm and suicide.
I find that the father intentionally lied in his oral evidence on this topic.
The mother says that the child told her that in late 2023 the father contacted him and said he was going to kill himself.[61] I accept the mother’s evidence that the child told her this.
[61] Mother’s affidavit filed 12 July 2024, paragraph 155.
Given my finding that the father has used threats of suicide to enmesh and manipulate the children, and the evidence around the father’s contact with the child directly and through others considered elsewhere, I find that it is likely that the father said this to the child.
I note that the expert said in oral evidence that the mere expression “daddy’s boy” alone was not a factor which, absent other matters, would cause her concern. It was the totality of the evidence that made this piece of evidence relevant to the dynamic between the father and the child.
Communication with the child contrary to s 68B injunction
The father has not had physical contact with the child since he was recovered by Victoria Police in mid-2013.

The circumstances surrounding Mr D being subject to an AVO for the protection of the children is detailed in the CIR. The mother and Mr D gave evidence that they were unaware the father had activated family sharing and so the photo was unintentionally shared with the children. The father denies activating family sharing. In any event Ms E and X denied, in the CIR, seeing any photos and said the father was lying.
Even if the children saw these photos, the father accepted in the CIR that they were not provided to the children intentionally. He nevertheless sought the AVO and has sought to maintain AVO’s, causing significant difficulty to the mother and Mr D over an extended period of time, including Mr D having to leave the matrimonial home to live elsewhere for a period.
Mr D’s evidence was that after the phone incident he started receiving threatening messages from the father.[83]
[83] Affidavit of Mr D filed 12 July 2024, paragraph 14.
The father’s suggestion that this inadvertence, if the children saw the photos, means that Mr D is a risk of sexual harm to the children, but that the children spending time with convicted child sex abusers such as Mr M and Mr L poses no such risks, in the context of my overall findings of coercion and control, leads me to find, noting the gravity of the finding, that the father’s AVO applications have been no more than punishment of the mother for leaving, and the abuse of litigation as a tool of ongoing coercive control against the mother, Mr D and the children.
Mr D addresses an AVO was previously in place for the daughter of his ex-partner. He says that he consented to the AVO on a without admissions basis due to financial constraints.[84]
[84] Affidavit of Mr D filed 12 July 2024, paragraphs 24 – 41.
I note Mr D’s affidavit evidence, and video evidence, of the incident with X,[85] and the hearsay complaints of public indecency against Mr D in early 2024 which have not led to prosecution.[86]
[85] Exhibit F.
[86] Affidavit of Mr D filed 12 July 2024, paragraphs 42-44.
The ICL does not propose any restraints on Mr D.
I am satisfied that no such restraint is required, and that Mr D does not pose any risk of harm to the child.
A copy of this Judgment and Orders, the CIR, the Family Report and any other documents filed in this case may be given to any police prosecutor, defence lawyer or judicial officer in relation to any attempt by the father to extend or enforce any AVO or breach of the AVO against Mr D.
PATERNAL GRANDFATHER
The paternal grandfather was called. His trial affidavit addressed Ms E’s allegations. He said he accompanied Ms E to the sexual crimes unit to give a statement. He noted that another child had also made allegations against the father,[87] consistent with Ms E’s statement to the CIR expert. He said police agreed Ms E could live with him and the paternal grandmother so the father could return to the family home. He said “at no time did we speak to [Ms E] about the allegations that she made” against the father.[88] He said that when speaking with Ms E about an allegation against her of bullying at school she spontaneously told him that she had made the allegations up, so he took her to the police station to recant her allegations.
[87] Affidavit of Mr B filed 25 October 2024, paragraph 4.
[88] Affidavit of Mr B filed 25 October 2024, paragraph 5.
The CIR expert noted that:[89]
39.…Of further concern is the children’s’ statements that the paternal grandparents and paternal family are not protective, that they are aligned with the father, and that they have threatened the children to not report any of the risk of harm concerns to anyone.
[89] CIR, paragraph 39.
In his oral evidence the paternal grandfather effectively maintained this version of events and denied pressuring Ms E to recant her allegations.
He was also asked about his knowledge of the events involving Mr M molesting his son Mr L, and Mr L’s molestation of his daughter, and of cousins, and of other children under the care of his wife’s family day-care. He said that, because he was ill at the time with a significant problem, he knew very little about it. His evidence on this topic, that he knew little about the fact that his son was molested by an uncle, was charged with molesting his daughter and cousins and other children in his wife’s care, was entirely unpersuasive.
He was also cross examined about the recording of his call to the child.[90] I refer to my interim decision in which I outline the contents of that conversation:[91]
[90] Exhibit X.
[91] Gustafsson & Jeanes [2024] FedCFamC1F 217.
5The circumstances, as I understand it, are that Y has advised the ICL that he has concerns because he has been contacted by the paternal grandfather. Y advised the ICL that he had been caused stress by this. The ICL had asked the father whether he would consent to some form of order restraining members of his family from contacting the children, particularly Y. I am going to make orders about Y only today, noting that X is 16 and a half and I might say “doing his own thing”. I will refer to Y as “the child”.
6As relevant background, there is an order in place, being Order 5 of the orders of 1 June 2023, which was made after a contested interim application as part of a recovery order returning the children to the mother. Order 5 restrains the father, pursuant to section 68B of the Act, from approaching, entering or coming within 100 metres of any residence that the mother may, from time to time, live with y, or approaching, entering or coming within 100 metres of any place of education to which the children may, from time to time, attend.
7I was provided today with the Exhibit A, a very short recording of under four minutes. As I understand it, it appears the child has made the recording.
8The fact that the child has made the recording is itself significant evidence of the fact that he has concerns. People do not record conversations they do not have concerns about. I note that that also goes to the question of admissibility, which was not raised, (Mr Jeanes is unrepresented) but I am comfortably satisfied that where a child in litigation has recorded an adult speaking to them because of their concerns, this is material that would be admissible. I will also note the recent decision of Justice Lee in the Federal Court of Australia, regarding the question of whether or not the State laws regarding criminal recording apply. In any event, assuming they do apply, I am comfortably satisfied it is admissible evidence within that rubric, or should be admitted, and it was admitted.
9It is agreed the person calling the child is the paternal grandfather. About 0:24 minutes in, he asks the child where he is, and Y says he is in his room. The paternal grandfather says words to the effect of, “Your mother doesn’t know you’re talking to me?” When he is told no, he says, “Good. Make sure she doesn’t.” It is clear that the paternal grandfather does not want the mother to know this conversation is being held.
10At about 0:28 minutes, the paternal grandfather says, “You’re not happy up there, are you?”, to which the child answers, “Yeah”. And the paternal grandfather, somewhat surprised, says, “You are?” And then the child says, “I don’t know”. The paternal grandfather later says to him, at about 1:30 minutes, “So you don’t like being up there, do you?” To which the answer is, “I don’t know”. He then asked, “What do you mean you don’t know?” This is a clear and classic example of an adult trying to lead a child, to have the child give the answers he wants.
11It is clear that the paternal grandfather who does not want the mother to know that conversation has taken place. The first thing he tries to do is to lead the child into admitting he is not happy, despite the child in fact saying that he is happy when first questioned. So, he is placing pressure on the child to try and make him say he is not happy. The only possible purpose for that can be to interfere in the orders in this proceeding, and to interfere in these proceedings before the court.
12At about 1:46 minutes, the paternal grandfather says, “If you’re not happy…” noting that he has tried to have the child concede he is not happy; he then says, “something will be done”.
13The child has told the ICL that he is concerned that this may mean that the “something that may be done” refers to the paternal grandfather coming and taking him out of school.
14 At about 2:01 minutes, the paternal grandfather says:
There’s nothing stopping me from driving up there, not one single thing, and your mother can’t stop me from talking to you; it’s your choice. You can tell her to fuck off. You start doing what you want to do, not what everyone else is telling you to do. I want to know everything that has been going on up there if you’re not happy.
(footnotes omitted)
It is clear that the paternal grandfather called the child as the father’s agent to try and persuade the child to leave the mother’s residence.
In cross examination the paternal grandfather denied this fact. His oral evidence before me was entirely unpersuasive and inconsistent with the clear evidence of the audio recording.
On the available evidence I am not able to make any finding as to whether or not the paternal grandfather persuaded Ms E to recant her allegation or if it was, as he said, a voluntary statement by her, but his dishonest and dissembling evidence concerning the contents of his phone call to the child cause me to find that he is willing to lie on oath, and he is clearly content to act as the father’s agent including in breaching court orders, so that there must be considered to be a real possibility that he did threaten Ms E into withdrawing her allegations against the father.
I consider that the paternal grandfather, as the father’s agent, poses similar risks to the child of psychological harm that the father poses.
SUPPORTING WITNESSES
The mother and maternal aunt called several supporting witnesses. Their evidence in relation to specific events is set out elsewhere.
Ms F
Ms F was a friend of the mothers. Her evidence was that she had first met the parents at the end of 2011. She said she was petrified of the father and so ended her friendship with the mother, and that they reconnected later. She said there were many times where she saw the father screaming and yelling at the mother and children, on several occasions saw the father grab the mother on the arm or by the clothes or her hair, throw his dinner on the floor if dissatisfied, and saw the father kick X on the side of the kneecap with a steal capped boot on one occasion.[92] She also made other general allegations, but accepted in cross examination that much of her affidavit related to matters the mother had told. She maintained she had seen the events she specifically identified, in particular the Christmas Day incident set out elsewhere and seeing the father kick X with a steel capped boot.
[92] Affidavit of Ms F filed 5 September 2024, paragraphs 4 – 21.
She said the mother disclosed the bushland stripping naked incident to her on approximately ten separate occasions, and that her daughter had disclosed to her seeing the father begin to strangle Ms E around her neck when out camping with them. The difficulty with this evidence is that the mother did not allege the event occurred on ten separate occasions as Ms F suggested. Another concern was that despite what she said about being “petrified” of the father, Ms F could not explain why she allowed her daughter to go camping with the father.
Nevertheless, overall, I am satisfied that where reporting the specific incident regarding the weapon and observing the father kicking X, Ms F was both an honest and a reasonably reliable witness despite the passing of time. Her general statements, which are consistent with both the mother’s and children’s disclosures, are also given some weight.
Ms S
Ms S gave generally negative evidence about the father.[93] She specifically said that the father threatened her face to face and told her he would run her off the road if he saw her. She said she moved out of the area for her own safety.[94] The very general nature of her evidence does not assist me in making any findings.
[93] Affidavit of Ms S filed 12 July 2024.
[94] Affidavit of Ms S filed 12 July 2024, paragraph 16.
Ms T
Ms T gave general evidence of the father denigrating the mother and of being angry. Her most relevant evidence related to the father sitting or laying on top of the mother, set out elsewhere. Apart from that specific incident her evidence does not assist me in making any findings.
Ms U
Ms U is the father’s cousin. The father’s oral evidence was that she was one of the cousins Mr L abused. She gave evidence of seeing the father kick the mother so hard she nearly fell over in 2007.[95] I accept her on that recollection which provides some support for the mother’s evidence. Otherwise, Ms U evidence was so general that it does not assist me in making any finding.
[95] Affidavit of Ms U filed 12 July 2024, paragraph 4.
THE CHILD’S CURRENT CIRCUMSTANCES
The mother’s evidence, which I accept, is that the child is doing better in her care in recent times,[96] has engaged with a support worker who provided evidence of the child’s progress over the last six months,[97] has improved his school attendance from 3% at a standard high school to almost 100% by attending an outreach class, is applying for an specialised alternative local high school which has the capacity to assist high needs students for 2025,[98] and has obtained a job at a fast food store,[99] although is seeking further work opportunities as he is not getting many shifts. She says she has a purchased him a dog, and that he enjoys work, has formed friendships there, and has changed since he re-engaged with full time schooling with better emotional regulation with positive teacher feedback.
[96] Exhibit A.
[97] Exhibit C.
[98] Exhibit D.
[99] Exhibit B.
The mother’s evidence is the child has told her that he is scared that the father will seek to take him from school, and that the telephone calls from the paternal grandfather and Mr C in February 2024 caused him significant fear. I accept that evidence.
The mother’s evidence that the spectre of the father, hovering in the background and contacting him, causes him ongoing fear is consistent with the CCE’s evidence and opinion on the likely impact on the child of ongoing contact of any kind.
In cross examination the mother admitted the many difficult behaviours the child has engaged in whilst in her care.
The mother said that she believed the child wants to live with her but accepted that he has at times expressed the desire to live with the father and is communicating with the father.
She said that the child was going through significant emotions, that he wants to live with the mother, but knows that X is back with the father which is causing him confusion. She said that communication with X was a trigger for the child.
The father in oral evidence did not accept that the child was doing well with the mother because he was being “told differently” by the child.
COURT CHILD EXPERT’S OPINION
The CCE agreed that issues of fact concerning historical allegations of family violence were matters for the court. I note that my findings are consistent with the concerns expressed by the CCE based on the material available to her.
The complex issue of the child’s expressed view to the CCE that he wanted to maintain a level of communication with the father, albeit supervised, and the child’s behaviour in communicating with the father, noting the child’s age, was raised with the CCE on behalf of the ICL, who at that time had foreshadowed a possibility of proposing a mandated level of ongoing communication between the father and the child as a form of sanctioned outlet to reduce the chance that the child would insist on unregulated communication.
The CCE opposed any ongoing communication between the child and the father given her opinion on the coercive and controlling nature of their dynamic, noted in the Family Report. Given my findings of fact concerning the father’s coercive and controlling family violence I accept the CCE’s analysis of the dynamic between the father and the child.
Having been updated on the evidence before the court the CCE maintained her opinion, set out at paragraph [172] of her report, concerning the father’s entanglement of the child in his threats of self-harm so that:[100]
172. … While ever there is a means of contact between the children and the father (or associates of the father), then the terror associated with this form of abuse (or manipulation) will be activated in the children and continue to place the children’s own mental health at risk.
[100] Family Report, paragraph 172.
The CCE did not agree with the ICL’s then proposal that a limited form of prescribed contact would provide a controlled outlet or channel of communication for the child.
The CCE contested whether any form of ordered limited communication would be complied with, given the father’s conduct in breaching orders to date and his own evidence that he will not comply with such orders in future if he does not think it appropriate.
In that context the CCE also commented on the father encouraging the child to engage in what the child knows to be breaches of the court’s orders and keeping secrets, which she considered conduct which was also harmful to the child.
In cross examination of the CCE for the father on the similar topic, when asked whether given the orders for no contact are likely to be ignored, including with the child’s “co-operation”, that continuing the prohibition would cause the child problems, the CCE challenged the premise that the child was “co-operating” with the father in breaching the interim s 68B injunction. Her evidence was that the child is in a disempowered position to the father so that the notion of “co-operation” does not apply. Her opinion was that the child’s behaviours are an ongoing consequence of the enmeshment and unhealthy dynamic.
The CCE gave evidence to the effect that her assessment was that the child’s relationship with the father was not beneficial to the child as the relationship was unhealthy and unsafe.
The CCE considered the father’s needs overrode and overpowered the child’s needs, and wellbeing, in the relationship. She said that while the child may experience, and reported experiencing, missing the father, and at times felt drawn to the father, if the court finds there has been deep coercive control over many years, as I do, including feelings of responsibility for the father’s wellbeing through threats of suicide, then the child’s feelings are not the same as the feelings of the loss of a healthy relationship, even though they may feel subjectively similar to the child.
The CCE considered the child’s feelings to be unhealthy feelings which sought to pacify his discomfort in the context of his ongoing manipulation and enmeshment, or feelings which made him feel he was serving his duty, or being worthy in the context of having learned that his worth is tied to serving the father’s needs.
Accordingly, the CCE opined there was no benefit, and only disadvantage and risk, to the child in maintaining any relationship with the father.
Noting that the father made a threat of self-harm to the child relatively recently, set out elsewhere, any channel of communication can only pose serious risks of psychological harm to the child through allowing the father to continue to manipulate and coercively control the child.
In summary, given my findings that the father has engaged in significant family violence, and in particular has exercised coercive power and control over the child, including through manipulating the child into believing that he is responsible for the father’s safety from self‑harm and suicide, I accept the CCE’s evidence and find that there can never be any safe communication between the father and the child, and that the only way the child can be protected is through the making, and in due course if need be through stringent enforcement, of s 68B orders prohibiting any communication, whether directly or indirectly and in particular through third parties such as the paternal grandparents or X or Mr C, and requiring no response even to attempts by the child to reach out to the father, supported by explicit s 68C orders.

The CCE said that, even if the court did not make a finding of long term family violence and coercive control, her opinion was that the father’s parenting capacity was so deeply compromised, with such limited capacity for reflection, for accepting responsibility, for attunement and for empathy with the child or to consider the child’s needs separate to his own and as a priority over his own, that he presented an unacceptable risk of harm. These factors are clearly also present and represent consistent features of the father’s behaviours towards the mother and the children and reinforce, if such were needed, my finding as to the significant risks the father poses to the child of any time or communication at all occurring.
SUMMARY OF FINDINGS
Noting what I have said elsewhere and considering the evidence, while noting I am unable to make specific findings in relation to many matters, I am nevertheless comfortably satisfied to the requisite standard that the father has been a persistent long-term perpetrator of serious physical and psychological family violence against the mother and the children, including the child.
I find that the CCE’s characterisation of the father’s behaviours to the mother and the children were “merciless and abusive” was accurate.[101]
[101] Family Report, paragraph 170.
I find that the father has intentionally emotionally entangled the child and caused him significant psychological harm by threatening suicide. I find that the father has intentionally instilled in the child feelings of responsibility and fear for the father’s wellbeing as a mechanism of coercion and control. I find that the father’s desire to maintain control over the child is the motivating factor behind the father’s ongoing breaches of the no communication order.
I find that the father presents a “pervasive threat to the [child’s] psychological wellbeing”.[102]
[102] Family Report, paragraph 172.
I accept the expert’s opinion and find that:[103]
172.… While ever there is a means of contact between the children and the father (or associates of the father), then the terror associated with this form of abuse (or manipulation) will be activated in the children and continue to place the children’s own mental health at risk.
[103] Family Report, paragraph 172.
I find that the child’s reaching out to the father is an artifact of the abuse he has suffered and his unhealthy enmeshment with the father, and does not represent a healthy desire to maintain a relationship with the father.
I find that the father presents a very high and persistent risk of both physical and psychological harm to the child if he were to be allowed to spend any time, or have any communication with, the child. That risk is unacceptable. That finding is independent of my finding in relation to the risk of sexual harm.
I find that there is no benefit, and only harm, to the child in maintaining any connection or relationship with the father.
In relation to the further risk of sexual harm, I am not asked to, and could not on the available evidence, make any findings of fact as to the alleged sexual abuse of Ms E. I am nevertheless required to assess the risk of future sexual harm to the child.
I note Ms E’s maintenance of her allegations, though having previously withdrawn them, and that she said that “she wanted the Judge to know ‘My father is a sexually abusive person, and he should go to jail and he should not be near kids’”.[104]
[104] CIR, paragraph 11 (emphasis in original).
I note X confirmed Ms E’s contemporaneous complaints and seeing her leave the father’s bedroom crying and said that the child had commenced sleeping in the father’s bedroom after Ms E left the family home in mid-2022, and that the father had asked him on multiple occasions to share his bed.
I note the father’s insistence on exposing the child to convicted child sex abusers, Mr M and Mr L.
I note the disclosure by the child that he “had sex with someone”,[105] but not whom, and the child’s statement to the CCE that the father would not like him talking to a psychologist because “the father would not want to get into any trouble”.[106] I note, with lesser weight, the mother’s comments in the Family Report in the context of discussing why everyone refers to the child as “daddy’s boy”.[107]
[105] Exhibit M.
[106] Family Report, paragraph 162.
[107] Family Report, paragraph 45.
I note that the psychological enmeshment of the child, including through threats of suicide, which I find has occurred, and which contact and enmeshment were maintained by the father despite injunctions, is potentially consistent with a mechanism used by abusers to silence victims in child sex abuse dynamics.[108]
[108] Family Report, paragraphs 173-176.
While it is not possible on the available evidence to make any finding, the weight of the available evidence comfortably meets the relevant standard of unacceptable risk of future sexual harm to the child if allowed any time, or communication which might maintain the relationship and eventually opportunity, with the father.
This risk is unacceptable. This is an additional basis on which I would come to the same conclusion as to the appropriate parenting orders.
LEGISLATIVE FRAMEWORK
Objects of Pt VII of the Act are to (a) to ensure that the best interests of the child are met, including by ensuring their safety; and (b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989 (s 60B).
Parental responsibility
The parties seek parenting orders (s 64B), which the Court has power to make (s 65D(1)) within the context of the objects and the requirement that each child’s best interests is the paramount consideration (s 60CA and s 65AA) having regard to the mandatory criteria (s 60CC).
The parents have parental responsibility (s 61C), being all duties, powers, responsibilities and authority conferred by law upon parents (s 61B), unless and until an order is made changing that position.
An order allocating parental responsibility for a child in relation to “major long-term issues” may be made to one or more, people and may prescribe whether those persons have joint or sole decision-making authority in relation to all or only specified issues (s 61D(3)). “Major long-term issues” includes matters such education, religion, culture, health, name, and changed living arrangements (s 4(1)) and defines what “joint decision-making” requires in respect of such issues (s 61DAA). This does not require consultation about minor decisions which fall outside the concept of “major long-term issues” (s 61DAB).
Given my findings that the father presents an unacceptable risk of harm to the child it necessarily follows that the father is not a person who can be permitted to exercise any parental or long-term decision-making responsibilities in relation to the child.
I find that the child’s best interests will be served by the mother and the maternal aunt sharing parental and long-term decision making for the child, and that they will be able to work together to focus on decision making in the child’s best interests. I find that the maternal aunt’s support of the mother will be a significant benefit to the child.
Child’s best interests - section 60CC
Section 60CC provides how a court determines a child's best interests.
General considerations – section 60CC (2)
(a) Safety
I am required to and have considered “what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of: (i) the child; and (ii) each person who has care of the child (whether or not a person has parental responsibility for the child).”
For reasons set out elsewhere the only arrangements that promote the child’s safety, as well as that of each person who has the care for the child, are that the child live with the mother, and that he spend no time and have no communication with the father, whether directly or indirectly, or through any third parties.
(b) Views of child
I am required to and have considered “any views expressed by the child.”
The child told the CCE at [163] that “he would like to have supervised phone calls with the father because he thinks this would help him not to think about the father as much”.[109]
[109] Family Report, paragraph 163.
The child has told the father, at times, that he would like to live with him.
I find that his views as expressed to the CCE are likely to be a more accurate expression of his views.
Usually, considerable weight would be given to the views expressed by a child of the child’s age.
However, for the reasons set out elsewhere, I find that the child’s expressed views that he wishes to maintain a relationship with the father, albeit supervised, are substantially a result of, and cannot be disentangled from, the father’s long term and ongoing emotional manipulation and coercive control which has caused the child to feel responsible for the father’s well-being.
I find that even the supervised communication that the child told the CCE he would like would not be in the child’s best interests, as it will allow the father a sanctioned mechanism through which to maintain his unhealthy and harmful psychological hold over the child and cause the child significant ongoing psychological harm and inhibit his ability to recover from the effects of the long term abuse.
(c) Needs of child
I am required to and have considered “the developmental, psychological, emotional and cultural needs of the child” and find, consistent with the CCE’s opinion, that these needs are able to be met by the mother and the maternal aunt, and are not able to be met by the father, and that allowing the father any involvement in the child’s life will be detrimental to the child’s needs.
(d) Parental capacity
I am required to and have considered “the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs”.
I find that the mother, supported by the maternal aunt, has adequate capacity to provide for these, despite her own parenting capacity shortcomings, which are at least to some extent a result of her being subjected for many years to the father’s family violence, and that the maternal aunt has good parental capacity to assist the mother and the child in relation not these issues.
I find that the father has, in effect, no parental capacity and is unable to give any consideration to the needs of the child and is solely focussed on meeting his own needs.
(e) Benefit of relationship
I am required to and have considered “the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so”.
For the reasons set out elsewhere my findings are that there is a benefit to the child in being able to have a relationship with the mother and the maternal aunt.
I find that there is no benefit at all, and significant and grave risks, to the child in having any relationship with the father.
I make similar findings that there is no benefit, and significant risks, to the child having any relationship with the extended paternal family, including the paternal grandfather, Mr C, Mr M, or Mr L.
(2A) Family Violence
In considering the matters set out in paragraph (2)(a), the court must include consideration of: (a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and (b) any family violence order that applies or has applied to the child or a member of the child's family.
These are considered elsewhere in detail.
Aboriginal or Torres Strait Islander culture - section 60CC(3)
The child is not an Aboriginal or Torres Strait Islander child.
ORDERS
The orders will be as follows.
All extant interim orders be discharged.
The mother and maternal aunt shall have joint parental responsibility and joint responsibility for making long term decisions for the child. The child will live with the mother.
The child will spend no time and have no communication with the father.
For the benefit of the child, and those who live with, spend time with and exercise responsibility for the child including the mother, Mr D, Ms E, the maternal aunt and her partner and their three children, I will make orders pursuant to s 68B directed to the father to enforce the no time and no communication order, supported by explicit orders pursuant to s 68C. These orders are essential given my findings of risk
Similar restraints were proposed regarding the paternal grandfather, X, Mr C, Mr M and Mr L.
Even if I could make such an injunction in relation to X, I could not do so in good conscience, given he remains a child and is as much a victim of the father’s brutality as the child is. Unfortunately, this exposes the child to some risk, although the risk from communication with X is not their relationship but that the father is likely to use X to indirectly communicate with the child.
In relation to the other identified members of the paternal family, I do not consider I have jurisdiction to make such final orders in relation to third parties.
If the father breaches the orders, including through indirect communication via one of the family members identified, then the papers should be referred to the Marshall of the court for investigation and if appropriate proceedings.
I will make an order that the child meet with the CCE to have the orders explained to him in the hope that this will persuade him not to reach out to the father.
I will make the notation proposed by the ICL[110] so that the child is made aware of the fact that if he communicates with the father the court approves of the mother and maternal aunt removing his devices for a period of time for his own benefit in the exercise of their parental responsibility.
[110] Final joint minute of the ICL, mother and maternal aunt (MFI 38).
The father filed an affidavit on 28 October 2024 from a woman friend. It was included in the joint court book and, accordingly, perused prior to the trial. It was not read at trial and not taken into consideration in the making of this decision.
In that affidavit the deponent says she is a working single mother, has a 10-year-old son with ADHD, and despite being aware of the allegations against the father engages him as her full‑time babysitter from 3.30 pm – approximately 8.00 or 9.00 pm weekdays while working as a cleaner.
Given the significant evidence of risk of sexual harm from the father posed by the father in these proceedings, both directly and including through his involving children with known child sex offenders, that affidavit and a copy of this Judgment and Orders is to be provided forthwith to the Victorian Department of Families, Fairness and Housing together with a notice of risk of serious sexual harm in relation to that child as, or as if, a mandatory report in the exercise of the Court’s general welfare jurisdiction where the evidence causes significant concern that a child may be presently at grave risk of sexual abuse.

I certify that the preceding three hundred and thirteen (313) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith.
Associate:
Dated: 29 November 2024

File number(s):	NCC 459 of 2023
Judgment of:	SMITH J
Date of judgment:	29 November 2024
Catchwords:	FAMILY LAW – CHILDREN – Final hearing – Family violence – where parties reached consent position as to a child nearing the age of 18 prior to trial – where Independent Children’s Lawyer, mother and maternal aunt proposed a joint minute of order seeking no time and no communication with the father – serious allegations of physical, psychological and sexual abuse family violence against the father – where father denied family violence or risk – where findings of serious long term family violence by father poses a high and unacceptable risk of any time or any communication - Ordered there be no time and no communication between the father and the child – s 68B injunctions ordered for the protection of the child.
Legislation:	Evidence Act 1995 (Cth) Pts 3.1, 4.1, ss 128, 140 Family Law Act 1975 (Cth) Pts VII, XI, ss 60B, 60CA, 60CC, 61B, 61C, 61DAA, 61DAB, 64B, 65AA, 65D, 65DAAA, 67Q, 68B, 68C, 69ZT, 69ZV, 102NA
Cases cited:	Isles & Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97 M v M (1988) 166 CLR 69; [1988] HCA 68 Gustafsson & Jeanes [2024] FedCFamC1F 217
Division:	Division 1 First Instance
Number of paragraphs:	313
Date of hearing:	4 – 8 November 2024
Place:	Newcastle
Counsel for the Applicant:	Ms Beckett
Solicitor for the Applicant:	Oliver Howells & Co Legal & Conveyancing
Counsel for the First Respondent:	Mr Flanigan
Solicitor for the First Respondent:	Resolve Legal Professionals
Counsel for the Second Respondent:	Mr Allen
Solicitor for the Second Respondent:	Ann Legal
Counsel for the Independent Children's Lawyer:	Mr Mooney
Solicitor for the Independent Children's Lawyer:	Jennifer Blundell & Associates

NCC 459 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS GUSTAFSSON Applicant
AND:	MR JEANES First Respondent MS BLUTH Second Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	SMITH J
DATE OF ORDER:	29 NOVEMBER 2024