Machak & Lewy - [2024] FedCFamC2F 505

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Machak & Lewy [2024] FedCFamC2F 505

File number: MLC 5346 of 2019

Judgment of: JUDGE FORBES

Date of judgment: 2 May 2024

Catchwords: FAMILY LAW – parenting – application by father for time with daughter – where mother seeks no time order – whether father presents as unacceptable risk due to drug use, criminal offending and family violence – where allegations of family violence not contested – best interests of the child - where supervised time will not reduce risk to emotional welfare – where risk cannot presently be ameliorated – order for father not to spend time

Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA

Cases cited:

Blann & Kenny [2021] FamCAFC 161

Blinko & Blinko [2015] FamCAFC 146

Browne v Dunn (1893) 6 R 67

Isles & Nelissen [2021] FedCFamC1F 295

M v M (1988) 166 CLR 69

Mazorski & Albright [2007] FamCA 520

Division: Division 2 Family Law

Number of paragraphs: 234

Date of hearing: 12-14 February 2024

Place: Melbourne

Counsel for the Applicant: Ms Daly

Solicitor for the Applicant: Macgregor Solicitors

Counsel for the Respondent: Ms Damon

Solicitor for the Respondent: Kelly & McHale Family Lawyers

Counsel for the Independent Children's Lawyer: Ms Agresta

Solicitor for the Independent Children's Lawyer: Leslie Family Law
ORDERS

MLC 5346 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MACHAK

Applicant

AND:
MS LEWY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE FORBES

DATE OF ORDER:

2 MAY 2024

THE COURT ORDERS THAT:
1.The Respondent Mother have sole parental responsibility for the child X born in 2013.
2.X live with the Mother.
3.The Mother advise the Father of any major long term decisions made and medical emergencies in relation to X, by email.
4.The Father spend no face to face time with X.
5.The Father be permitted to send X letters, cards and gifts for X’s birthday, Easter and Christmas only, with such items to be provided via the paternal grandmother or as otherwise agreed in writing between the parties.
6.All extant orders and applications are otherwise dismissed.

AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B 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 and details of who can assist the parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION

In this parenting matter the issue of risk looms large.
X, born in 2013 (aged 11) is the only child of the relationship between the applicant father, MR MACHAK, and the respondent mother, MS LEWY.
X currently lives with the mother, Ms Lewy. She currently does not spend time with the father and has not done so since about early 2022.
The principal issue for the Court is whether the applicant father, Mr Machak, should spend any, and if so, how much time with his daughter. If the Court concludes that X should spend time with her father, the Court must decide the conditions which should attach to any arrangement.
Positions of the parties
Father
Mr Machak conceded during the trial that parental responsibility should fall solely with Ms Lewy. Although, he did condition that with the rider that he was happy for the mother to make decisions about X’s welfare “for now” and that Ms Lewy should inform him of any major decisions she makes.
Mr Machak also expressed that he has no objections to X living with Ms Lewy.
However, regarding face-to-fact contact, Mr Machak contends that X should be permitted to spend time with him. He accepts that the time should initially be supervised, but that over time it should transition to an unsupervised arrangement, to take place at his mother’s (X’s paternal grandmother’s) house.
Fundamentally, Mr Machak seeks to reinstate the spend time arrangements set out in interim orders made by Judge Middleton on 23 July 2019 (the Judge Middleton Orders). Those Orders provide for X to live with Ms Lewy but permit supervised time between X and Mr Machak for up to four hours each alternate week. The Judge Middleton Orders also allow for telephone or FaceTime calls between Mr Machak and X on Monday, Wednesday and Friday. Crucially, the orders also required that the parents undertake urine drug screening as requested.
During the trial Mr Machak expressed a desire for the Judge Middleton Orders to be varied to permit unsupervised contact with X after a period of six to twelve months.
Mr Machak also seeks an order that the mother, Ms Lewy, not be permitted to relocate X’s principal place of residence to regional Victoria, or beyond a 40 kilometres radius of Melbourne CBD. In her opening address, counsel for the father informed the Court that the application for this restraint would not be pressed. However, later during cross-examination the father insisted that he did want a restraint imposed on the child’s residence and said that his counsel never had instructions to concede that point.
Mother
The mother, Ms Lewy, contends that there should be no face-to-face time between X and her father, as Mr Machak presents an unacceptable risk due to his history of family violence, drug use, criminal offending and lifestyle, frequent incarceration and other factors.
Ms Lewy seeks an order for sole parental responsibility, and for X live with her full-time. Ms Lewy proposes that she should be responsible for informing Mr Machak about any major long-term decisions or medical emergencies regarding X. Ms Lewy contends that there should be no face-to-face time between X and Mr Machak, but that Mr Machak should be permitted to send letters, cards and gifts for X’s birthday, Easter and Christmas. The mother proposes that any correspondence between X and her father should occur through X’s paternal grandmother or as otherwise agreed. The Independent Children’s Lawyer (ICL) supports the mother’s proposed orders.
Alternative
The mother and the ICL also provided the Court with an alternative proposal, which would allow for Mr Machak to spend supervised time with X on four occasions per year upon Mr Machak’s provision of a clean hair follicle test. However, counsel for Ms Lewy strongly pressed for the mother’s primary proposal and stressed that the alternative was an unattractive fall-back position, not supported by the evidence.
BACKGROUND
The applicant Mr Machak was born in 1973 and is 50 years old. The respondent, Ms Lewy is 7 years younger.
The parties met for the first time in 1997. The circumstances of that meeting are unclear although during the trial Mr Machak sought to cast a shadow over the event by implying that he could reveal information about their meeting which would embarrass the mother or reflect poorly on her.
Mr Machak deposes that the parties commenced a romantic relationship around 2004. Ms Lewy on the other hand gave evidence that she did not see Mr Machak again until 2007, and that their acquaintance was rekindled when he attended her house and the pair exchanged phone numbers. Ms Lewy said she was scared of Mr Machak and aware of his long criminal past, but he assured her that he had changed his ways and was no longer associated with crime. Shortly thereafter they commenced a relationship.
Later in 2007, Mr Machak was incarcerated and the parties maintained “pen-pal” communication while Mr Machak was in prison. Upon his release in 2008, Mr Machak commenced cohabitation with Ms Lewy and embarked on a process of rehabilitation.
Mr Machak’s incarceration in 2007 was but one episode in a long criminal history, evidence of which was produced to the Court after the return of subpoenas issued to the Victoria Police and Corrections Victoria. For the period between 1990 and 2022 Mr Machak was convicted of criminal offences and served at least 20 periods in prison. His record of offending runs to more than 50 pages.
Mr Machak went to prison again in 2009 after being convicted of offences to support his drug habit. Mr Machak does not contest that he has suffered substance abuse and addiction issues for many years and that these have plagued much of his adult life.
In 2010 Mr Machak was involved in a serious car accident and was hospitalised for several months. He suffered multiple injuries in the accident and was left with ongoing incapacity. He says he has not to have been able to work full-time since and currently receives a disability pension of about $1000 per week.
In 2011 Mr Machak was released from prison after serving time for another conviction.
In 2012 the parties recommenced cohabitation. It is to be noted that from this point no convictions were recorded against Mr Machak for the following 8 years, until 2019.
In 2013 X was born.
Ms Lewy gave evidence that the parties separated shortly after X’s birth, in mid-2013, but continued to live under the same roof. Ms Lewy deposes that during this period, Mr Machak was aggressive, threatening to her and kept weapons in the home. Ms Lewy alleges that Mr Machak regularly used illicit substances and that his mental health deteriorated. Ms Lewy deposes that she was subjected to multiple incidents of family violence from Mr Machak, most of which involved verbal abuse and serious threats of harm, including threats to kill. Ms Lewy said in cross-examination that she stayed with Mr Machak because she believed she could fix him and rehabilitate him.
In late 2018 Ms Lewy and X moved out of the family residence and moved into her parents’ home with X. Ms Lewy alleges that before she moved out Mr Machak used drugs at the home on a daily basis and was heavily involved in gambling. She alleges that Mr Machak regularly threatened her life, would not let her leave and used X as blackmail to have her stay. Ms Lewy said that Mr Machak had a habit of blaming her for his misfortunes in life and that he accused her, in the presence of others, including X, of being a slut, liar, user, alcoholic and cheater.
Post-separation, the parties agreed to informal spend time arrangements which allowed Mr Machak to see his daughter. However, Ms Lewy states that in early 2019 Mr Machak withheld X and refused to return her to Ms Lewy’s care. Ms Lewy says she collected X from school a few days later after Mr Machak forgot to pick her up.
In early 2019 Ms Lewy obtained an interim IVO against Mr Machak, with herself and X listed as protected persons. That same day, Ms Lewy says that Mr Machak attended X’s school, breaching the IVO, an incident she reported to the police.
On 17 May 2019 Mr Machak commenced parenting and property proceedings in the then-Federal Circuit Court.
On 23 July 2019 Judge Middleton made the interim Orders to which I alluded earlier. The Court also ordered each party to enrol in a Post Separation Parenting program, which Ms Lewy completed in late 2019 and Mr Machak completed while again incarcerated in late 2020. The orders also restrained the parties from denigrating each other in the presence of X, and from using X to facilitate communication between themselves. An Independent Childrens Lawyer was appointed and Mr Machak was required to submit to a regime of drug testing.
In late 2019 Mr Machak was found guilty of breaching the IVO and sentenced to a good behaviour bond. This was Mr Machak’s first conviction since 2011.
In early 2020 Mr Machak was convicted by a Court of offences. He was sentenced to imprisonment to be served by way of a Drug Treatment Order.
On 6 May 2020 the parties’ property dispute was finalised and dismissed. The Court also declared that the parties’ relationship had ended in mid-2013.
In mid-2020 Mr Machak was again found guilty of breaching the IVO, this time being ordered to pay a fine.
On 12 June 2020 orders were made by consent for Mr Machak to spend limited time with X, supervised by a profession supervision centre, B Contact Service.
On 22 December 2020 new interim parenting orders were made, superseding the Judge Middleton Orders. The new orders directed that X continue to live with Ms Lewy, and that she spend time with her father on specified days either under the supervision of the paternal grandmother or B Contact Service. Mr Machak was also ordered to undergo hair follicle testing. Between late 2020 and early 2021 X and her father spent time together on five occasions.
In early 2021 Mr Machak received a negative hair follicle test.
On 11 March 2021 the interim parenting orders were adjusted to permit unsupervised time between X and Mr Machak on an increasing frequency without the requirement for further drug testing. Those orders provided for time every second Saturday and Sunday between 9am and 5pm. The orders also referred the parties to a psychologist, Dr C, for assessment.
On 21 May 2021 Dr C’s report was released. Dr C was not called to give evidence in this proceeding and her report was admitted into evidence by consent. Relevant observations from that report are discussed later in these reasons. Suffice to say, Mr Machak’s drug use, anti-social activities, personality issues and lack of insight were identified as a significant impediment to his capacity for co-parenting.
On 23 July 2021 the ICL wrote to Mr Machak’s solicitors requesting that he complete further hair follicle testing, despite there being no orders in place requiring him to do so. This was requested under the premise that Mr Machak’s drug use or abstinence from drugs would be put in issue at the final hearing. Mr Machak’s solicitors responded informing the ICL that Mr Machak could not afford further hair follicle testing.
On 29 September 2021, Court Child expert Ms D released the first of her two family reports. Ms D’s reports and recommendations are also the subject of detailed comment later.
A date for final hearing was set for 18 November 2021. On 15 November 2021, Judge Jenkins made orders for the final hearing to be adjourned to 19 September 2022 before me, to allow the parties to attend a Family Dispute Resolution Conference at Victoria Legal Aid.
In late 2021 Mr Machak was again incarcerated, but released on bail in early 2022. After his release Mr Machak saw X on alternate Saturdays and Sundays on about six occasions.
In early 2022 Ms Lewy obtained an extension to the IVO against Mr Machak, protecting Ms Lewy and X, with an expiry date of early 2027.
On 29 April 2022 Ms Lewy’s solicitors wrote to Mr Machak’s solicitors informing them that Ms Lewy was immediately suspending all time between X and her father, and requesting further hair follicle testing. The mother contends that her decision was triggered by a visit from the police to Ms Lewy’s home conducting a welfare check at the request of Mr Machak, and an alleged increase in unpredictable and threatening behaviour by the father. Ms Lewy also believed she was being stalked by Mr Machak or his associates.
In response, Mr Machak sent an email to the mother’s solicitors and the ICL, alleging that Ms Lewy had made false statements to police about him breaching IVOs and that she had been withholding X for over a month. Mr Machak said that Ms Lewy had voluntarily engaged in several interactions with himself and his family without fear which he had captured via CCTV. At trial Mr Machak conceded that he had requested the police welfare check on Ms Lewy’s residence because he believed she was acting irrationally, bullying Mr Machak and hanging up on his calls.
Throughout much of these proceedings, Mr Machak has been unrepresented. On 12 August 2022 I adjourned the final hearing of this matter again until 29 June 2023, to allow Mr Machak to apply to Victoria Legal Aid to obtain legal representation for the final hearing pursuant to the s 102NA cross-examination scheme.
On 17 October 2022 I made orders for Ms D to produce an updated family report, along with standard orders preparing the matter for trial on 29 June 2023. On the occasion of that court event, Mr Machak appeared from prison via weblink.
In late 2022 Mr Machak was convicted of numerous criminal offences and was sentenced to a further term of imprisonment.
In mid-2023, shortly before the scheduled trial date, Mr Machak was convicted of yet more offences and sentenced again to a term of imprisonment.
On 16 June 2023 I once again adjourned the final hearing until 12 February 2024. This adjournment was granted on account of the Court receiving a hand-written letter from Mr Machak indicating that he remained incarcerated with a proposed release date of late 2023. Mr Machak indicated that he wished to participate in the proceeding, wished to file further documents and relevant material, and was seeking legal representation. The Court again ordered Mr Machak to apply to Victoria Legal Aid to obtain such representation, cautioning him that he would not otherwise be permitted to cross-examine the mother.
Police records current at early 2024 show that Mr Machak is facing pending charges, including for contravening an IVO and an offence allegedly committed in late 2023.
On 12 February 2024 the matter came before this Court for a Final Hearing.
FINAL HEARING
Both parties were legally represented in this proceeding, save for the closing submissions. Mr Machak was represented by Ms Daly of counsel until her retainer was terminated at the end of the second day, after which he represented himself. Ms Lewy was represented by Ms Damon of counsel, and the ICL was represented by Ms Agresta of counsel.
Material relied upon
On 7 February 2024 Ms Lewy filed an outline of case, which identified the following documents as supporting the orders she sought:
(a)Amended Response to Initiating Application filed on 29 January 2024;
(b)Affidavit of Ms Lewy filed on 29 January 2024;
(c)Updated Family Report filed on 17 May 2023;
(d)Family Report filed on 29 September 2021; and
(e)Affidavit of Dr C filed on 27 May 2021
The ICL filed an outline of case on 8 February 2024, which indicated that she would rely upon the following documents:
(a)Section 11F Report filed on 25 October 2019;
(b)Affidavit of Dr C filed on 27 May 2021;
(c)Family Report of Ms D filed on 29 September 2021;
(d)Updated Family Report of Ms D filed on 17 May 2023; and
(e)Various Subpoenaed Documents
On 11 February 2024, the day prior to the hearing, Mr Machak filed an amended application and a trial affidavit. He did not file an outline of case.
Each of the father, mother and the Family Report writer Ms D were called to give evidence. Each swore to the truth of their affidavits and adopted them as their evidence in chief. They were cross-examined at trial.
It was agreed between the parties that Dr C, the author of a 2021 psychological report, would not be required for cross-examination and that her report should be admitted into evidence by consent.

Throughout these reasons, I will refer to the evidence of the parties only as necessary to resolve important conflicts and to address relevant issues in dispute. The Court is not required to and cannot possibly refer to every piece of evidence relied upon by the parties, traverse every argument that has been advanced by them or make findings in relation to all of the facts that are put in issue by them.
Nonetheless, I can assure the parties that I have read all the documents relied upon and taken into account all the evidence and submissions made. My findings are made on the balance of probabilities, taking into account the nature of the subject matter of the proceeding and the gravity of alleged matters[1].
[1] Evidence Act 1995 (Cth) s 140
Key issues
The main issues to be determined in this matter are:
(a)what (if any) orders for spend time and communication between X and Mr Machak are in X’s best interests;
(b)the impact of the alleged family violence and the risk it poses to X;
(c)the impact of the father’s criminal offending and incarceration on X’s safety, welfare and development;
(d)the risk of X being exposed to the father’s illicit drug use and the impact of the drug use on the father’s ability to be a responsible parent; and
(e)the acrimony between the parents and their capacity to make shared parenting decisions.
Introductory Observations regarding the trial
Although Mr Machak was represented by counsel for most of the trial, it is necessary to make some observations about some of his conduct as a witness and as the applicant party.
Throughout the trial, which had initially been listed for two days, Mr Machak caused significant delay to proceedings. He was not punctual in his attendance, he was an aggressive and dismissive witness, he displayed little respect for the Court and opposing counsel, and he appeared poorly prepared and frustrated by the proceedings.
Mr Machak blamed his lawyers for the late preparation of materials for the hearing and for not producing relevant documents such as hair follicle and urine testing results. He conceded that he had obtained legal representation under the 102NA cross-examination scheme in late 2023 but said “I am not in control of who prepares the paperwork”. He conceded that late preparation of paperwork was in part a consequence of his belief that the matter might resolve and not proceed to hearing.
On the first day, Mr Machak did not return to Court to commence at 2.15pm after lunch. His counsel made unsuccessful attempts to contact him. He appeared in Court at 2.45pm, shortly after I indicated that I was prepared to allow the mother to proceed undefended if he did not present himself.
On the second day of trial, the commencement of Court was delayed by almost two hours due to Mr Machak’s late arrival. It was further delayed by the late arrival of the paternal grandmother, who attended as a support to Mr Machak but was not called to give evidence. After lunch, the resumption of Court was again delayed by Mr Machak’s late arrival, which he said was due to needing to buy medication. On the afternoon of the second day of trial prior to Court adjourning, Mr Machak abruptly left Court and contacted his counsel Ms Daly, who was still in the courtroom, to dismiss her services.
As a result of the father’s delays (although not solely for that reason), closing submissions were not heard during the until the morning of the third unscheduled day of the hearing. On that third day, Mr Machak arrived thirty minutes after Court had commenced and then gave his own closing submissions without the assistance of counsel.
During cross-examination, the Father was particularly argumentative. He responded to questioning in an overbearing and forceful manner. He frequently raised his voice and made sudden gestures, such as banging on the witness stand.
Mr Machak directed threatening and abusive remarks toward counsel for the mother, accusing her of attacking him with questions about matters he felt were irrelevant or did not want to confront. He was prone to answering questions by aggressively confronting the questioner and seeking an explanation about the relevance of issues raised with him. The Court had to frequently intervene to redirect Mr Machak to the questions and encourage him to provide a direct response. He was evasive and prone to making speeches instead of answering questions directly. Mr Machak often departed from the questions which had been asked of him and pressed his preferred narrative, using cross-examination as an opportunity to direct invective and insults toward the mother or her counsel.
I accept that some of this conduct was borne of Mr Machak’s frustration at the court process, however it did not assist his case and the court cannot simply put it to one side. The father’s conduct affected my assessment of the credibility of his evidence and relevantly reinforced some of my adverse impressions about his parenting capacity and other matters.
FATHER’S EVIDENCE
Mr Machak adopted his affidavits sworn 10 February 2024 and 17 May 2019.
Mr Machak deposed to a close and loving relationship with X and outlined some of the caretaking responsibilities he previously undertook, such as teaching her to read and write and picking her up from school. The trial affidavit outlined the circumstances surrounding his unemployment as a result of his motor vehicle accident in 2010. He currently receives Centrelink Disability benefits and has limited capacity for work but he believes his injuries do not impair his ability to care for X.
Mr Machak deposed that in 2019 when Ms Lewy unilaterally ceased time between X and himself he was unable to cope and returned to drugs and crime after a period of abstinence from drug use for 14 years. While incarcerated, which he describes as a wake up call, he joined Alcoholics Anonymous/Narcotics Anonymous (AA/NA) and found this program, and his sponsor, to be very helpful. He annexed a support letter from his sponsor to his affidavit. Mr Machak also deposed to his completion of a Drug Treatment Order which involved counselling, urine drug testing, psychiatric assistance and parenting programs. Annexed to the affidavit is a copy of a report from his Counsellor which states that Mr Machak engaged well with the program and was on track to complete it ahead of time.
In his trial affidavit Mr Machak also states that Ms Lewy continued to restrict his time with X from 2020 to 2022 and did not involve him in the decision-making regarding her welfare. He deposes that gifts he had given X would subsequently be broken or misplaced. Mr Machak says that despite Ms Lewy not following Court Orders he was unable to fund legal representation to assist him and he was afraid to approach the mother due to the intervention orders in place. This caused him to decline mentally and he relapsed and was sent back to prison at the end of 2022. He deposes that as at early 2024 he was on a Community Corrections Order and he had not had any problems since then.
At the commencement of his evidence at trial, Mr Machak refused to provide the Court with his current residential address. Mr Machak stated that this was because Ms Lewy has caused him to be “raided, harassed by police, her friends” and that his mother (X’s paternal grandmother) had relocated and sold her home because of “harassment” from Ms Lewy. He later alleged that Ms Lewy had had him arrested 15 times for intervention order breaches and that he is scared of her reactions.
Criminal activity
In cross-examination, Mr Machak resisted confronting the scale and gravity of his criminal history. He did not contest the accuracy of his criminal record, but he questioned its relevance to the proceedings. Mr Machak said that had chosen not to read material produced to the court about his criminal history because “it has an adverse impact on me”.
Mr Machak was questioned about why he did not depose in his affidavit to charges for which he was convicted in early 2024, shortly prior to this trial. He responded that those charges had been laid prior his most recent incarceration, and he was only convicted after his release. Therefore, he did not believe the convictions to be relevant. He admitted that he had not disclosed the early 2024 convictions to his lawyer, nor did he disclose that he was on a Community Corrections Order at the time of trial. Mr Machak also denied any involvement in a burglary for which charges had been laid against him in early 2024, saying that he was intending to plead not guilty. As mentioned, a lot of Mr Machak’s evidence was selective or contradictory which reflected poorly on his credit as a witness.
Counsel for the mother noted that Mr Machak had been convicted of weapons charges. Mr Machak claimed that he possessed weapons which had been given to him by his father when he was a young boy, but denied they were ever used in committing a crime. Nonetheless, possession of illegal weapons is a criminal offence of which Mr Machak has been convicted. Mr Machak denied having any weapons in the home.
Relevantly, Mr Machak did concede that his criminal offending had impacted X’s life. He accepted the obvious proposition that he could not be part of his daughter’s life when he was in prison. He agreed that he had lied to her about his whereabouts by saying he was away working when he was in fact in remand. But he insinuated that matters were made worse by the mother who used these occasions to set X against him.
Regarding future criminal behaviour, Mr Machak stands by his statement given to the family report writer that he cannot guarantee he would not commit illegal activity again if he was in a similar situation or is put under pressure.
Drug tests and drug usage
Mr Machak admits to a long history of substance abuse and conceded that he had dependency issues for most of his life. He was frank about this and it caused him a lot of discomfort in the witness box. He accepted that drugs and his criminal offending were strongly related. In a rare show of humility Mr Machak said that he had a poor sense of belonging, had made bad choices and that drugs had been a scourge.
Mr Machak claims to have last used illicit drugs in late 2022. He submits that he is now drug-free. He said that he is a regular attendee at AA and NA programs.
However, Mr Machak was a poor historian when giving an account of his prior drug use. Corrections Victoria records (Exhibit R2) show that in late 2021 an Assessment Officer recorded Mr Machak’s drug usage as 0.5 grams of illicit drugs daily. At trial Mr Machak denied daily use, but admitted to relapses, the last being in late 2022.
He described all drug offences as “ancient”. Prior to the hearing, Mr Machak did not submit any urine or hair follicle tests to the Court, nor were they attached to his trial affidavit. During oral evidence, he indicated that a copy of recent hair follicle tests (which were mandatory as part of the conditions of his CCO) were held at his lawyer’s office.
Prior to the second day of trial, Mr Machak provided the Court with a copy of a hair follicle test collected mid-2022, and several urine test results collected on various dates in 2022 and 2023 while he was incarcerated, the latest test being from mid-2023. All results appear to be negative, however they had all been collected more than six months prior to trial and many during his imprisonment.
The evidence given by Mr Machak in his affidavit regarding the hair follicle test was inconsistent with the evidence he gave at trial. In his affidavit, Mr Machak stated that the mother had requested that he undertake hair follicle testing around early 2022, but that he could not afford the associated fees. This request occurred in the context of Ms Lewy suspending all time between X and Mr Machak, as mentioned above. Mr Machak deposed that he undertook a hair follicle test within three days of the request from Ms Lewy, and that it was negative.
However, there was no evidence before the Court of any hair follicle testing prior to mid-2022, and Mr Machak conceded that he “might have got the dates wrong”. Counsel for the mother put to Mr Machak that he had avoided the request earlier in the year and had waited until mid-2022 to take the test so that it would be clean, which he denied.
The mid-2022 test produced by Mr Machak also took place prior to the time that he claims to have last used illicit drugs, in late 2022. As the urine test results all occurred while Mr Machak was in prison, he properly conceded that there is no evidence to corroborate his claim that he has not engaged in any drug use since his release from prison.
Attitude towards Ms Lewy
Mr Machak expressed a consistently negative and critical view of the mother, Ms Lewy. During cross-examination he described her, among other things, as “a bad lady” “stubborn”, “evil”, “hard to deal with”, “egotistic” and “manipulative”. Mr Machak said that Ms Lewy makes him angry and is trying to push him over the edge.
Mr Machak was unable to articulate how he would work with Ms Lewy to make decisions for X in the future. He alleged that Ms Lewy punched and threw things at him while he was recovering from his surgeries.
Mr Machak said he did not trust Ms Lewy and that she was not an “angel mother”. He said she had abruptly left for overseas at one stage and left him to look after X. He said she was a bad lady and had been an alcoholic at times. He denied calling her a “slut” but said that she had cheated on him.
He also alleged that the mother’s family had behaved badly toward him and set a poor example for X. He said that they “sexualise everything, the way they dress, the way they are out at parties” and they act in a lewd manner around X. Mr Machak also said that the extended family would smoke and drink in front of X. Mr Machak gave evidence that Ms Lewy was a former drug user, at times had been an alcoholic and that her father is currently an alcoholic. He said he has not applied for any restraints on X spending time with Ms Lewy’s family because he could not afford it.
Mr Machak blamed Ms Lewy for his relapse into illicit drug use and criminal activity. He said that Ms Lewy withheld X, and requested that he take hair follicle testing, because she knew it would “break [him] financially”. Mr Machak takes the view that intervention orders were taken out against him as part of a manipulative tactic of Ms Lewy. Mr Machak claimed during cross-examination that Ms Lewy had been barred from several police stations as a result of her manipulative behaviour. When the ICL asked him if he believed the mother was also impacted psychologically and emotionally by the court process, he said “No, […] I think she’s putting it on big time”.
Allegations of family violence
When cross-examined, Mr Machak vehemently denied having committed family violence against Ms Lewy, despite being found guilty of breaching the intervention order in place between the parties. This breach, said Mr Machak, was the “lowest breach found” and was the only one out of 15 alleged breaches against him. The breach, according to Mr Machak, consisted of him sending a text to Ms Lewy about a present that she had asked him to buy.
Mr Machak otherwise gave no ground and made no concession that he was at all prone to aggressive behaviour. He said that “I never threatened her. I’ve never assaulted her. I’ve never done anything to her”.
Mr Machak denied every one of Ms Lewy’s allegations, saying that it is the “other way round”, implying that Ms Lewy had committed family violence against him. In cross-examination he said that Ms Lewy has thrown things at him, kicked and punched him. When asked by counsel for the mother whether he “deals” with Ms Lewy in the same way he had behaved towards counsel (verbally threatening and aggressive), he responded that he “probably” does. Mr Machak denied making death threats to Ms Lewy such as “the only place you will be going is a hole in the backyard”.
Ms Lewy in her affidavit deposed to Mr Machak coming into her room in 2017 or 2018 and saying “If I lose my [road accident] case, you’re dead”. Mr Machak denies this allegation. He said that all the allegations had been made up by Ms Lewy. Mr Machak also denied that he was trying to control the mother by seeking an order that her place of residence be restricted to a 35 kilometre radius of Melbourne CBD. He also denied the allegations of stalking Ms Lewy in the local neighbourhood.
Mr Machak was asked questions about his previous experience of supervised time with his daughter. He said the mother never facilitated the time ordered by the court. He said that mother filled the supervisor’s heads with rubbish and he agreed that he had changed supervisors because of cultural concerns. Counsel for the mother referred to an instance where a Family Contact Service worker was allegedly followed home by Mr Machak. Mr Machak denied this, saying it was just a coincidence.
Counsel then put to Mr Machak that the mother also feels that she was stalked by Mr Machak as he would appear when she was doing the grocery shopping. Mr Machak stated that at that time the parties shared a common supermarket as they lived nearby to each other, so the events were coincidental. Regarding Ms Lewy’s allegation that he had solicited a third party or a criminal associate to follow her, he said he knew nothing about this and he didn’t care what she did or who she sees, he only cared about X.
Attitude towards parenting
In his affidavit Mr Machak says that he lives in a home in Suburb E, that he is working one day a week (supplementing his Centrelink Disability Benefit) and would like to work more but is restricted from working fulltime due to his injuries. During oral evidence he stated that his home is rented, is twenty minutes away from X’s school and that he lives alone. Mr Machak stated that that he is also sometimes assisting his friend with odd jobs, but feels that his income is not adequate to pay the bills. He stated that there is a bedroom for X at her paternal grandmother’s house which would be more suitable than his unit.
The ICL asked Mr Machak whether he wanted to be part of X’s life. His response was “no […], I want her to be part of mine”. Mr Machak said that it was important for X not to feel abandoned by him. He said he wanted her to be able to grow and mature and solve problems as she becomes a teenager. Mr Machak said that if orders were made permitting X to spend time with him on a supervised basis, he would agree to it, because he loves her and enjoys being with her. He agreed with the ICL that it was important for X to not feel abandoned by him, and he would try to send her things through the mail if he could not spend time with her. He said that if need be he would try to scrape together the money for drug testing if it was a pre-condition for seeing X (although at several points throughout cross-examination he maintained that he could not afford hair follicle testing, as he could hardly afford rent).
Mr Machak stated that he had never exposed X to any criminal behaviour. He accepted that it was important that X not be burdened by his past criminal offending. He denied that he was bad role model and insisted that when he is playing his role as father he is a different person.
While Mr Machak said that he took responsibility for his criminal activity, he maintained that more recent drug use and prison occurred as a response to what Ms Lewy “had done to him”, including by ceasing all contact with X. Mr Machak expressed that he was unhappy with Ms Lewy informing X that he was in prison, as he believes she shouldn’t be informed of this fact until later in her life.
Mr Machak said that he considers it inappropriate for X to stay with the mother and her new boyfriend in Suburb F. He said that the mother is trying to replace him and that she is trying to eradicate him from X’s life. He expressed concern that X will not be able to see her friends or extended family if the mother moves outside the suburban area. However, he rejected the suggestion that he is trying to control Ms Lewy.

Mr Machak said he had not read the latest family report from May 2023.
MOTHER’S EVIDENCE
Ms Lewy swore to the truth of her affidavit dated 29 January 2024 and adopted that as her evidence in chief.
Her trial affidavit deposed to the family violence allegedly perpetrated by Mr Machak. She deposed that Mr Machak was “aggressive, unpredictable and blamed [her] for everything that went wrong” and that he kept weapons in the house. She stated that Mr Machak made threats of the following effect:
·“the only place you will be going is a hole in the back yard”
·“if I lose my [road accident] case you’re dead”
·“you will lose [X]”
·“you just wait and see”
·“you just keep going”
In the affidavit Ms Lewy alleged that Mr Machak’s mental health deteriorated from 2015 to 2018 and he was smoking marijuana and using illicit drugs. She deposed that the drug use was on a daily basis and that she believes X was exposed to and put at risk of harm by secondary marijuana smoke. As mentioned earlier, she stated that Mr Machak was also gambling heavily over that period.
Ms Lewy said that Mr Machak called her derogatory names in the presence of X and other family members. When X was present during this abuse she covered her ears and laughed to cope with the father’s outburst. At times the only way Mr Machak could be calmed down was if X approached him and cuddled him.
Ms Lewy deposed to being stalked by Mr Machak while the intervention order was in place. She stated that he appeared while she was doing grocery shopping on more than one occasion and asked to spend time with X. This was in breach of the intervention order.
Ms Lewy stated in her affidavit that she views Mr Machak to be a significant risk to the safety of herself and X. She said that it is not possible for her to make joint decisions with him because she is fearful of communicating with him or contacting him. She agreed that Mr Machak had not spent time or communicated with X for approximately 21 months prior (to the affidavit being written) but said she tried to maintain contact between X and Mr Machak’s mother. She explained that during the Christmas period in 2023 she facilitated X spending time with her paternal grandmother to maintain a cultural and paternal connection.
Cross-examination
The father’s counsel, Ms Daly, did challenge the mother’s affidavit or test any of the allegations raised therein. Mr Machak’s denials of family violence were not put to Ms Lewy. Nor did Ms Daly put to Ms Lewy any of the many allegations raised in the father’s affidavit about the mother’s conduct which would ordinarily have been put in cross-examination according to the rule in Browne v Dunn[2]. As a consequence, Ms Lewy was not given an opportunity to respond to any of Mr Machak’s allegations relating to family violence, alcohol and drug use, or her family’s behaviours around X which had been described by Mr Machak as “sexualised”.
[2] Browne v Dunn (1893) 6 R 67 at 70, 76
Cross-examination by the father’s counsel was contained to obtaining a few simple concessions. First, that the mother had been in a relationship with a new partner for approximately one and half years and that he lived in the Suburb F area. Secondly, that travel between the mother’s current location and her partner’s residence in Suburb F took about 30 minutes. She described the partner’s location as being about 45 minutes from the Melbourne CBD. Thirdly, that the mother had no immediate intention of relocating to Suburb F.
Cross-examination of the mother, Ms Lewy, largely fell to Ms Agresta who was representing the ICL.
In terms of her contact with Mr Machak, Ms Lewy said that she had not spoken to him from between 18 months and 2 years. When tested, she agreed that he had sent her a letter from prison in early 2023 and conceded that she had not mentioned this in her affidavit.
Explaining the nature of the parties’ relationship, Ms Lewy said that she had been subject to violence from Mr Machak for longer than she could remember. She said that most of the violence involved verbal abuse and that she was generally in fear of him because he was a large imposing man. She said that her ongoing fear of Mr Machak caused her to be quiet and to tippy toe around the father for her own safety. She said that she lived with the fear that one word could “set him off”.
Ms Lewy confirmed that she had a current intervention order against Mr Machak and that she had recently obtained a five-year extension. She said that this had been granted on the basis of allegations of family violence against the father which he did not defend.
Ms Lewy said that the father and people she believed to be his associates had engaged in many breaches of the IVO which she had not reported to the police. She said that she had been stalked by the father, that other people had stalked her and that she had been the recipient of long emails from the father. She added that she had kept the letter received from prison in early 2023 knowing that she could use it to “breach him”. She decided not to use it because she did not want him to serve further jail time.
In response to questions about her future intentions, Ms Lewy said that she had not told the father or the paternal grandmother about her new partner. She said that she was concerned about the father’s reaction if he learnt that she had a new partner. She said she was fearful for her safety and that of her new partner if the father found out where each of them lived. Ms Lewy also expressed concern that if X spent time with the father, she may be “dragged into the situation” and asked questions about where the mother and her partner live.
Notwithstanding these concerns, Ms Lewy said she felt it important for X to maintain a connection with her broader family and culture. She agreed that she allows X to spend time with the paternal grandmother on occasion, but said that a reason for doing so was the fear of ramifications from the father if she did not. Ms Lewy said that she was generally fearful of both the paternal grandmother and the father and that she often did things out of fear.
Ms Lewy also expresses the belief that the paternal grandmother is fearful of the father. For that reason, she did not consider it safe for X to see the father with only the paternal grandmother for supervision. She did not hold the same fear about X seeing the grandmother as long as the father was not present.
Ms Lewy conceded that X loves her father and misses him. She believes X knows that the father has done some bad things and that she is old enough to understand that the father is on drugs. Ms Lewy also accepted that X will probably be sad if she cannot see her father.
In response to a question about what Ms Lewy had conveyed to her daughter about the father’s situation, she said that she had told X that she could see her father “when the court thinks it is safe to do so”.
Ms Lewy gave evidence that X was doing very well at school and had been seeing a psychologist weekly. Ms Lewy also said that she was getting counselling every week to deal with trauma and that she was currently taking antidepressants.
Ms Lewy said that she believed the responsibility fell to her to ensure that X maintains a good memory and good image of her father. She said that the paternal grandmother is a line of communication to the father and that she had given the grandmother photos and school reports to ensure that the father has an awareness of X’s development.
REPORT OF DR C
Forensic psychologist Dr C was engaged by the Independent Children’s Lawyer to prepare psychological assessments with respect to each of the parties. She conducted an assessment of the father and the mother in April 2021. Dr C prepared her report after being provided with copies of all court orders, reports and other documents which had been filed to that date.
Copies of Dr C’s professional opinions were annexed to an affidavit sworn on 26 May 2021. As mentioned earlier, the parties by agreement consented to Dr C’s report being received into evidence and she was not required for cross-examination.
In her report relating to Mr Machak, Dr C recorded that he presented as controlling and evasive. She said he often provided discursive or digressive responses, despite clear direction. These observations accord with my own observations is recorded earlier in this judgment.
Dr C noted that Mr Machak’s family background likely contributed to and reinforced his tendency to be impulsive and have a low frustration tolerance. His difficulty maintaining engagement in pro-social activities is manifested in an extensive criminal and substance use history. A structured clinical interview and psychometric evaluation did not identify any formal psychological disorder, but Dr C reported that Mr Machak presented with personality problems related to impulsivity and aggression, driven by a sense of entitlement, need for control and poor coping strategies. Dr C noted that these observations were consistent with information from other professional supervisors who described Mr Machak as aggressive, demanding and difficult.
Dr C noted that parenting risks included ongoing exposure to anti-social activity and drug use and difficulties co-parenting. She recommended that Mr Machak undergo ongoing psychological assistance to gain greater insight into how his attitudes and behaviours impact X and Ms Lewy. Dr C observed that the necessary assistance includes maintaining regular engagement (at least fortnightly or 3 weekly) with a psychologist with experience in family therapy for a period of at least 12 months. She also encouraged Mr Machak to maintain his engagement with AA and NA.
Conversely, Dr C found Ms Lewy to be open and cooperative. She was noted to be child-focused throughout the assessment.
During her assessment, Ms Lewy reported background which involved an alcoholic father who was physically abusive toward her mother. Her relationship with her father was strained and subsequently, as Ms Lewy completed a secondary education, her own life spiralled out of control which resulted in a decision to try illicit drugs. For several years, perpetuated by illicit drugs use, she did not engage in structured activities, including completing tertiary education.
Ms Lewy told Dr C that she had known Mr Machak from 17 years of age, at the time she started using illicit drugs. Consistent with her affidavit evidence, Ms Lewy said that she did not have contact with Mr Machak for about 10 years before she reconnected with him. During that period Ms Lewy stopped using illicit drugs for several years, then briefly relapsed before ceasing use in 2004. For most of the time since then she has maintained stable accommodation, employment and abstinence from illicit drugs.
At the time the psychological assessment was performed, Ms Lewy said that she supported X having some time with the father, but opposed overnight time as X was vulnerable to being exposed to her father’s antisocial activities during that time.
Dr C did not identify Ms Lewy to be suffering from any formal psychological disorder. However, she considered it likely that Ms Lewy experienced elevated symptoms of anxiety and depression associated with relationship stressors, including coercive and controlling behaviour by Mr Machak. Dr C recorded that Ms Lewy was likely to encounter difficulty negotiating parenting decisions with Mr Machak given the nature of their relationship dynamic. She recommended that Ms Lewy engage in psychological therapy, particularly should time between X and her father increase.
FAMILY REPORT
Two family reports were written by Court Child Expert Ms D. The most up to date report, dated 16 May 2023, is summarised below and the author was the subject of cross-examination.
Mr Machak’s criminal activity and illicit drug use
Ms D opines that Mr Machak’s criminal behaviour and decision-making remain as significant risk factors for X. Mr Machak continues to blame the offending behaviour on financial stressors, and while he maintains that he wants to change, he has not taken any steps to assure X that he will be a positive influence in her life. Ms D believes that Mr Machak has limited insight into how his offending affects his parenting ability. Ms D believes that there is a high likelihood of Mr Machak engaging in similar behaviours if faced with similar stressors in the future – a conclusion informed by Mr Machak’s own evidence and again repeated when he was cross-examined.
Ms D considers that as X grows older, the impact of Mr Machak’s criminal behaviour and incarceration will cause increasing distress. This could likely have long-term consequences for her development, particularly as she enters adolescence where she may be at risk of having issues in the areas of education, social relationships, mental health and engaging in antisocial behaviours.
Ms D formed the opinion that Mr Machak has been in possession of or taken illicit substances in the past two years, despite his denial. This opinion was based on information from Mr Machak’s recent criminal charges and records of the Department of Justice. Ms D concludes that Mr Machak turns to these substances as a maladaptive way to manage his stressors.
Family violence
Ms D refers to Ms Lewy’s allegations of family violence, which she notes were not disclosed during the previous (29 September 2021) report, which could have been out of fear of repercussions. Ms Lewy discussed with Ms D her belief that Mr Machak had solicited a third party (who X has described as “daddy’s friend”) to follow and watch her in a vehicle for the past three years. Ms D considers this allegation particularly concerning, along with the fact that Mr Machak has continued to breach the Intervention Order. Ms D notes that there is limited information from other sources or witnesses to support Ms Lewy’s claims. However, Ms D believes that Ms Lewy fears reporting the stalking behaviours as she does not believe any action will be taken (by the police).
X’s relationship with her parents
Ms D notes that X appears to be thriving in the care of Ms Lewy. Ms D also observed that both the mother and the father love and care for X. She accepts that X loves Mr Machak and notes that X expressed wanting to have a relationship with him. X was aware that Mr Machak was in prison and said that she missed him, but knowing that he was in jail made her feel unsafe sometimes. Ms D notes the importance of X having a meaningful relationship with both her parents, but only if it is safe to do so.
While Mr Machak has expressed a desire to have a relationship with X, the report writer opined that he “continues to display poor decision making and inability to take accountability for his actions and instead plac[es] the blame on others including the legal system and [Ms Lewy]”. Ms D is concerned that this mindset will have a negative impact on X’s future development and well-being.
Regarding parental responsibility, Ms D noted that any communication between the mother and father was limited, and when it did occur, was conflictual and strained. They have a limited ability to share decision making regarding X.
Recommendations
Ms D recommends that:
(a)Ms Lewy have sole parental responsibility;
(b)Ms Lewy keep Mr Machak informed via writing regarding decisions made about X’s health, education, well-being or any other significant decisions;
(c)X live with Ms Lewy;
(d)if the Court determines that time between X and Mr Machak poses an unacceptable risk, X is to spend no time with him or alternatively identity time in a supervised capacity on a number of occasions throughout the year;
(e)if the risks can be mitigated by protective measures and the Court decides X can spend supervised time with the Mr Machak, any time should take place in the presence of the paternal grandmother; and
(f)any communication between the parties should occur via a parenting app.
Cross-examination
When cross-examined about her report and recommendations, Ms D said there were in a nutshell three main risks to the welfare and safety of X, all of which relate to the father. Those risks are the father’s drug use, his criminal offending and family violence directed to the mother.
Ms D said that in the particular circumstances of this case there were really only two options available to the court. Either the court could order that the father not spend time with X or, if time is ordered, that the time be supervised. Ms D said that in her opinion unsupervised time between X and her father should not be regarded as an option. Ms D said that in her opinion the court could not presently conclude that unsupervised time would be safe.
Ms D said that for there to be any possibility of unsupervised time in the future, the father would have to demonstrate not just a period of abstinence from drugs and a cessation of his criminal offending, but also evidence of insight into his past behaviours and their effect and evidence that he was seeking and receiving assistance to deal with the underlying issues which had given rise to the risk factors.
In Ms D’s opinion, in the absence of evidence of the father having addressed each of the matters referred to in the previous paragraph, the risk of emotional harm from unsupervised contact should be regarded as unacceptable.
Ms D elaborated on how the father’s behaviours in relation to drugs, criminal offending and family violence presented an ongoing risk to X’s emotional well-being. She explained that the children of parents who are incarcerated are known to suffer significant grief and loss. Ms D anticipates that as X gets older, the emotional harm will get worse as she becomes more attuned to the father’s lifestyle choices and the reasons for his absence. In her opinion, it is not possible for the father to simply compartmentalise and shield X from the unattractive parts of his life. It is simply not possible to protect the child from harm if the father is engaging in drug use, committing crimes, associating with criminals, spending time in prison or engaging in family violence.
Ms D also expressed concern that the father will be unable to protect X from his animus toward Ms Lewy. After being informed by counsel about the words Mr Machak had used in court to describe the mother, Ms D anticipated that the father would continue to convey those negative views to X and that in itself would be detrimental to her emotional and psychological well-being.
Ms D accepted that there was a need to balance out risk of harm on the one hand and maintaining a relationship between the father and child on the other. In terms of that balance and the available options, Ms D opined as follows. First, she acknowledged that the balancing exercise is a difficult one and there is no easy or obvious answer to the conundrum. In Ms D’s view, there will be an impact on X whatever the court decides. Secondly, if the court was minded to make a no-time order, the impact of that order on X could be significantly mitigated by a supportive residential parent and the memory of a past loving relationship between X and her father. Ms D emphasised that X’s best interests will be better served by the stability of a lasting positive memory, rather than facing a cycle of expectation and disappointment.
Thirdly, if the court is to consider any spend time, it might best be limited to what Ms D described as “identity time”. That is sporadic supervised contact time with the father, possibly arranged around birthdays or religious days, sufficient to maintain a point of contact between them. That identity time could continue until X develops sufficient maturity to make decisions for herself about the type of relationship she wants to have with her father.
As to which of the options best serves X’s needs, including the requirement that she be protected from emotional harm, Ms D was emphatic that the cycle of disappointment must be avoided. Ms D said that she would be very concerned for X’s well-being if she was to commence spending time with the father and for it to be interrupted by him returning to prison. In that respect, she agreed with the proposition advanced by the mother’s counsel, that the current outstanding criminal charges against Mr Machak present a significant risk for X, particularly if there is a prospect of the father serving yet another custodial sentence.

In answer to questions from the father’s Counsel, Ms D accepted that the future cannot be predicted with certainty. Nonetheless, she said that on her assessment, she could not support a proposal for supervised time followed by unsupervised time in the community. She reiterated that the father would first have to demonstrate abstinence from drug use, abstinence from criminal conduct and committed engagement with support services.
I asked Ms D whether time between the father and X may itself assist the father to break the cycle of drug use and criminality which, in turn, might improve his parenting capacity and ameliorate some of the risk to his daughter. Ms D cautioned that X should not be used as a “carrot” for the father. She expressed the view that the weight of responsibility should fall upon the father alone to demonstrate and prove that the risk factors have been attenuated.
LEGAL FRAMEWORK
The father seeks an order for supervised time with X, moving towards unsupervised time. He also seeks an order restraining the mother from relocating X’s principal place of residence to regional Victoria, or more than 35 kilometres radius of Melbourne CBD. As previously mentioned, the mother’s proposal does not provide for any time between Mr Machak and X.
Resolution of the parenting issues in this case requires the Court to consider the matters mandated by the statutory pathway set out in Part VII of the Family Law Act 1975 (Cth) (the Act). In deciding what particular parenting orders to make, I have had regard to the best interests of the child as the paramount consideration under section 60CC the Act. I must consider the matters described in the Act as primary considerations and additional considerations. I apply and take into account the whole of Part VII of the Act including sections 60CA and 60CC.
Meaningful relationship with both parents – s 60CC(2)(a)
Ordinarily it is in the child's best interests to have a meaningful relationship with both parents. The question of what is a meaningful relationship was considered by Brown J in Mazorski & Albright [2007] FamCA 520. At [26] of that judgment her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child. “Meaningful” is a qualitative, rather than strictly quantitative, adjective[3].
[3] Mazorski & Albright [2007] FamCA 520 at [26]
X has a loving and meaningful relationship with her mother, who has been her sole caretaker for much of her life. The family report of Ms D evidences this positive relationship. Whilst Mr Machak expresses love for X, and X has expressed that she misses her father, he has demonstrated a limited capacity to care for her due to his criminal behaviour and incarceration. I accept that, particularly during X’s very early years, Mr Machak and X developed a loving bond and that he assisted her to develop skills such as reading and writing.
When Mr Machak spoke about X during the trial, they were the few times he displayed any form of vulnerability or emotion that was not anger or defensiveness. However, I believe that Mr Machak feels somewhat entitled to a relationship with his daughter – perhaps best evidenced by his answer in cross-examination that she should be in his life, rather than he in hers. What must be prioritised is the significance and value of this relationship to X, not to Mr Machak, and X cannot, in the words of Ms D, be used as a “carrot” to lead her father away from crime and drugs. Mr Machak must show that he is able to overhaul his own behaviour.
I recognise that X has some understanding of her father’s criminal conduct but has largely been shielded from the finer details. For reasons explained later, the prospects of any meaningful relationship have been significantly compromised by Mr Machak’s conduct and the risk he poses to the emotional welfare of his daughter. I do not believe a meaningful relationship demands time between Mr Machak and X. In my view the best chance of there being a meaningful relationship at some time in the future is to reinforce and embed X’s past positive memory of her father and to allow indirect communications between them, such as by permitting the father to send X letters, cards and gifts for her birthday, Easter and Christmas.
Protection of the child from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence – s 60CC(2)(b)
Section 60CC(2)(b) requires the Court to consider the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. This provision is colloquially known as the “risk consideration”. The section requires consideration of the need to protect a child from potential future harm, and thereby requires an assessment of future risks.
Unacceptable risk
Among the findings counsel for the mother said that the court should make, it was submitted that I should find:
(1)that the father presents an unacceptable risk to the emotional and psychological welfare of X; and
(2)that there is no evidence that the risk can be reasonably mitigated.
In the family law context, the term “unacceptable risk” is one of a number of expressions which have been used to describe a circumstance where the Court will not grant custody or access to a parent. The term “unacceptable risk” has been adopted by the legislature in section 60CG with respect to family violence, but its use is more broadly adopted as a descriptor of other sources of risk to the physical or psychological welfare of children.
The High Court in M v M (1988) 166 CLR 69 considered that the Court’s task in assessing risk is to “assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, will have a detrimental impact on the child’s welfare and the existence and magnitude of the risk […] is a fundamental matter to be taken into account”[4].
[4] M v M (1988) 166 CLR 69 (M v M)
The concept of unacceptable risk invites a two-step consideration; is there a risk, and is it unacceptable?
Unacceptable risk requires the identification of a risk of serious harm to the physical or psychological welfare of the child. That risk may be an event, a situation or a combination of facts and circumstances which have the potential to cause harm or serious detriment. The task of the court is to assess the existence and magnitude of the risk or the possibility of that thing happening by reference to the facts and circumstances established by all the evidence. The evidence cannot be atomised - rather must be assessed as a whole with an eye to informing a prediction about future events and conduct. That is the approach I have taken in this case.
The assessment of risk must be an evidence-based conclusion[5]. However, it is not a fact in issue which must be proven on the civil onus. Rather, it is an issue in the dispute[6] and the conclusion reached by the court about risk and its gravity must be informed by the evidence of historical facts and circumstances. The evaluation of future risk is to be determined as a matter of reasonable conjecture[7].
[5] Isles & Nelissen [2021] FedCFamC1F 295 at [85] (Isles & Nelissen)
[6] Blann & Kenny [2021] FamCAFC 161 at [85]; Isles & Nelissen
[7] Isles & Nelissen at [52] citing MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Evidence that an event, situation or set of circumstances have existed in the past may inform the possibility that those things might happen again. However, it also remains open to the Court to be satisfied of a risk of something happening or the presence of a risk, even if it has not happened before, if the evidence before the court establishes a sufficiently cogent basis for that prediction.
Where an allegation of risk has been made, this does not change the best interests of the child being the paramount consideration, although the issue of risk will be important, and in some cases can be decisive. Ultimately the Court must balance the risk of detriment to the child from exposure to the risk with the possibility of benefit to the child of having a relationship with the parent[8]. In terms of whether the risk is unacceptable, the Court is to balance the risk against other factors and other orders it might make. In particular, the Court should determine whether that risk can be ameliorated by appropriate safeguards.
[8] M v M at 76-77
Relying on the evidence before the Court and Ms D’s observations, counsel for Ms Lewy submitted that the risk of psychological, emotional and developmental harm to X from time with the father would be extremely high and should be regarded as unacceptable. Counsel submitted that the father’s pattern of past behaviour stands as the best predictor of the future and that the Court should inform its assessment of risk by reference to the conduct.
As to individual factors and evidence which should inform that assessment of risk, the mother’s counsel made the following submissions.
In her evidence the mother detailed multiple instances of family violence – noting that these allegations passed unchallenged. The serious allegations raised by Ms Lewy included erratic behaviour by the father, harassment, ongoing contact in breach of intervention orders and threats to kill. Ms Lewy alleged that she had been stalked, another allegation which was not challenged. The father pleaded guilty and was convicted of breaching an intervention order in early 2019 for which he was sentenced to a good behaviour bond. The mother gave evidence that she had not reported every incident of family violence or every breach of intervention orders, citing fear of doing so. Ms Lewy and X are currently protected under an IVO until early 2027.
The father vehemently denies ever harming Ms Lewy, either verbally or physically. During the trial he also alleged that he had been punched and kicked by Ms Lewy. These allegations were not put to Ms Lewy and she was not given an opportunity to respond to them. I find it highly probable that, if Ms Lewy had verbally or physically turned on Mr Machak, it was in response to ongoing abuse being perpetrated against her. There is no evidence that Mr Machak ever sought an intervention order to protect himself from the alleged behaviours. I do not find that X is at risk of exposure to family violence by spending time solely with her mother.
The mother’s counsel also urged the court to take into account the applicant’s conduct in these proceedings and his behaviour in court as further exemplars of family violence. It is submitted that his failure to properly engage in the proceedings, including the last-minute filing of materials and his failure to attend court on time and after breaks, is further evidence of manipulation and control.
Moreover, counsel submits that the father’s overbearing and threatening conduct in court, including the use of derogative and demeaning terms to describe the mother and her legal representatives, all demonstrate an ongoing and unrelenting pattern of abusive and controlling behaviour, consistent with that observed by Dr C and Ms D. The fact that the father’s cross-examination of Ms Lewy was directed only at establishing whether or not she had a new partner gave an insight into his real priorities in the litigation.
Counsel submitted that the father’s extensive criminal history was also a significant factor which informs the assessment of risk. It was submitted that Mr Machak’s criminal past speaks for itself. He has nearly 220 prior convictions, including a number of convictions. At the time of the hearing Mr Machak was still to face a number of outstanding criminal charges, including in relation to very recent conduct.
It is submitted that any time between X and her father inevitably risks exposing the daughter to her father’s criminality and criminal associates, including behaviours involving drug use. Counsel submits that X’s emotional and psychological welfare are at significant risk of harm due to the father’s impulsive decision-making, his inability to exercise control, his propensity to blame drugs and the mother for his issues and his inability to prioritise his daughter. It is submitted that his ongoing criminality and his attitude to these proceedings, including his failure to comply with hair follicle and urine test requests, demonstrates a propensity to put his needs ahead of his daughter’s. Furthermore, the risk that the father will reoffend and go to prison presents the real risk that he will drift in and out of X’s life, be unreliable in his ability to spend time and will be a constant source of instability.
A separate but associated risk factor is the father’s ongoing drug use. Counsel for the mother submitted that there is no evidence that the father is drug-free or that he has his substance abuse under control. Save for the father’s evidence that he is engaging with Alcoholics Anonymous and Narcotics Anonymous, it is submitted on behalf of the mother that there is no concrete evidence of any supports being in place to mitigate this risk. There is also no evidence of the father receiving support, counselling or therapeutic assistance in relation to his own behavioural issues.
Having taken all the evidence into account, I find that Mr Machak has committed family violence against Ms Lewy. I believe that X has already been exposed to family violence perpetrated by the father. If she were to spend time with Mr Machak there is a risk that she would be exposed to and could become enmeshed in the ongoing animus between her parents.
Counsel for the mother submits that these risk factors taken together with the evidence in the proceeding as a whole establishes that the father presents an unacceptable risk of harm to the welfare of his daughter. The mother submits, with the support of the ICL, that the degree of risk is such that unsupervised time is not an option. The mother also urges the Court not to accept the only other option (other than no time), namely permitting Mr Machak to have limited supervised time with X on significant occasions such as Christmas, birthdays etc.
If the Court is considering making an order for no time between X and her father, the Court should clearly explain why no other options are workable[9]. In light of all the evidence and expert opinion, I find that supervised time is not workable because:
(a)previously ordered supervised time was attempted by the parties but was largely not successful. Mr Machak gave evidence that he either sacked or made B Contact Service withdraw because they forced him and the paternal grandmother to speak English during supervised time, and they were “on-side” with the mother. Ms Lewy gave evidence that Mr Machak harassed and stalked the supervisors from B Contact Service, which caused the withdrawal;
(b)the father cannot meet the costs of a private supervisor, nor can he meet the costs of ongoing hair follicle testing;
(c)the mother has expressed that she does not feel X is protected from harm if only the paternal grandmother acts as a supervisor, as the paternal grandmother is also fearful of Mr Machak. Dr C’s report notes that Mr Machak’s familial past resulted in him doing as he pleases and there must be serious doubt about whether his mother, an ageing woman, could effectively supervise time. I note also there is no evidence from the paternal grandmother to reassure the Court about her capacity or willingness to supervise contact between X and her son;
(d)if the Court were to order supervised time, and this time subsequently ceased or was interrupted because of the father’s criminal behaviour or drug use, it could likely have a long term impact on X’s development and mental health[10]. It would result in X being subjected to the cycle of expectation and disappointment about which Ms D warned; and
(e)Mr Machak has outstanding criminal charges which may lead to his reincarceration.
[9] Blinko & Blinko [2015] FamCAFC 146
[10] Updated Family Report of Ms D at [52]
I agree that the present circumstances warrant a finding of unacceptable risk. That finding, made on the evidence at trial, underpins the basis for the orders I make. It is not a risk which I consider can be presently ameliorated.
As both the ICL and mother conceded, the present circumstances may not prevail for all time and there remains a possibility that the risks currently in existence can be mitigated or attenuated by the father’s future conduct.
Counsel for the mother and counsel for the ICL accepted that the door remained open to the father to make an application for variation of the court’s orders if he can demonstrate a material change in circumstances. Such a change might include, as explained by Ms D, proof of a sustained abstinence from illicit drug use, proof of cessation of criminal offending and evidence of the father accessing support and services to address underlying issues. Demonstration of changes along these lines may persuade the Court to re-evaluate the father’s risk profile and reconsider the appropriateness of the orders made in these proceedings.
However, in the instant case, the Court must deal with reality and the present, as established by the facts and evidence presented at trial. I am satisfied for the reasons advanced by the ICL and counsel for the mother that contact with the father currently presents an unacceptable risk of emotional and psychological harm to X.
By reason of my finding that the father presents an unacceptable risk to X’s emotional and psychological welfare, I will accede to the mother and ICL’s proposal that there should be no time between X and her father. If there were any doubt in my mind about a no time order, consideration of the additional considerations under section 60CC(3) reinforces my conclusion.
Any views expressed by the child
Section 60CC(3)(a) of the Act requires the Court to have regard to any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight to be given to those views.
X is eleven years old, and as mentioned above she has some awareness of her father’s behaviours. Ms Lewy has told her that she will be able to see her father if the Court thinks it is safe to do so. I believe that X old enough to understand this, but perhaps not really old enough to appreciate the long term impact of her father’s drug use and criminal lifestyle on her own psychological and emotional development.
In the family report, X expressed wanting to have a relationship with her father. She knows that he has been to prison, and she misses him when he is incarcerated. But she also said that knowing that he was in jail made her feel unsafe sometimes. This observation contributes to Ms D’s evaluation that contact with her father in the present circumstances would likely lead to a “cycle of disappointment”.
Based substantially on the views expressed by the Child Court Expert, I find that X spending time with Mr Machak, in the face of current circumstances, would be more harmful than positive for her emotional and psychological development. I have given some weight to the fact that X has, at times, expressed feeling unsafe.
The nature of the child’s relationship with each of the parents and other people
Section 60CC(3)(b) of the Act requires the Court to consider the nature of the relationship of the child with each of their parents and other persons, including any grandparent or other relatives of the child.
As mentioned above, X and her mother have a loving, nurturing relationship. To use the words of Ms D, X appears to be “thriving” in Ms Lewy’s care. The mother believes that X would be upset if she could not see her father for the time being. It is unclear whether X has developed any sort of relationship with Ms Lewy’s new partner.
The paternal grandmother has acted as a line of communication between X, Ms Lewy and Mr Machak. The mother has both expressed that she wishes to maintain X’s relationship with her extended family and culture, and that she fears ramifications from the father if she does not allow X to spend time with her paternal grandmother. While I accept that fear may be a motivating factor in the mother’s decision-making, I am of the opinion that the paternal grandmother plays an important role in X’s life, and where it is possible and safe to do so the mother should continue to facilitate time between X and her paternal grandmother. Not only does the paternal grandmother provide an important cultural link to X’s Country G heritage, the grandmother can serve as a conduit and proxy for communication with the father.

Mr Machak deposes that during the parties’ relationship he had a very caring relationship with X, feeding, clothing and bathing her, and taking her out to the movies and for dinner. He says that, post-separation and while various interim orders were in place, he would have liked to have spent more time with X but the sessions were often cut short by the mother. Nonetheless, given Mr Machak’s ongoing antisocial behaviours, I have taken the view that it is more beneficial for X’s relationship with her father to remain a “positive memory”, for now.
The extent to which the parents have taken or failed to take the opportunity to (i) participate in making decisions about major long term issues (ii) to spend time (iii) to communicate with the child
Section 60CC(3)(c) of the Act requires the Court to consider the extent to which the child's parents have taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time and communicate with the child.
The father deposes that he is never included in decision making regarding X. He says that despite interim orders that allowed for equal shared parental responsibility, he was restricted from making any decisions about her medical, schooling or long term arrangements. He says that after X’s birth, the mother didn’t allow him to register X in his family name. As mentioned above, he says that time between X and himself was often cut short. He deposes to instances of Ms Lewy taking away phones or iPads from X during her court-ordered calls with Mr Machak.
I accept that where possible, particularly when he has not been incarcerated, Mr Machak has made an effort to maintain contact with X. However, one cannot ignore that Mr Machak’s opportunities to spend time with X, communicate with her and involve himself in decision making about her welfare and development have been self-sabotaged by his criminal conduct, drug abuse and periods in prison. These risk factors, which I have described above, have understandably caused the mother to retreat from Mr Machak in the interests of keeping her daughter safe. It is the father’s conduct which has resulted in X not seeing her father for the best part of two years.
The mother’s perspective of phone contact with X is that the father would insist on talking and not give her a choice whether to hang up or continue the conversation, even if she wanted to leave the call due to having a headache. While I do not doubt that at times Ms Lewy has likely withheld X from the father or cut his time short, given the mother’s evidence and my earlier findings regarding family violence, I suspect that the mother has acted in this way to protect X from perceived harm.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Section 60CC(3)(ca) of the Act requires the Court to consider the extent to which the child's parents have fulfilled, or failed to fulfil, the parents' obligations to maintain the child.
Ms Lewy has carried the day to day parenting responsibilities for much of X’s life. X is thriving at present and is living in a stable household, protected from the instability of Mr Machak’s cycle of drug use and criminal offending.
Ms Lewy has shown that the has the capacity to financially and practically support X, including facilitating a play therapist since 2016 and a psychologist through an organisation called H Centre (the sessions are currently covered by the public health system), along with extracurricular activities. According to her affidavit, the mother is currently working as an administrative assistant and she has a history of stable employment.
The father is on the disability support pension and completing odd jobs for a friend’s business. He gave evidence multiple times that he is struggling to pay his own rent. He cannot afford hair follicle testing. In the past he has relied on crime to cover his legal fees. I acknowledge the difficulties faced by Mr Machak in relying on the pension for income, and the impact of his car accident and subsequent injuries on securing employment. Periods of incarceration have also impacted his ability to make a living. I find that in the current circumstances he is unable financially support X.
The likely effect of any changes in the child’s circumstances
Section 60CC(3)(d) requires the Court to consider the likely effect of any changes to the child's circumstances including the likely effect on the child of any separation from either of their parents or other person with whom they had been living with.
In his trial affidavit Mr Machak deposed to his belief that the mother is interested in moving to Suburb F to live with her new partner and that X maybe enrolled into a high school in the area. He opposes this move or any similar move as it would make it more difficult for him to spend time with X. Ms Lewy gave evidence that she was not currently planning to move to Suburb F. She said her partner’s house is about a 30-minute drive from her house. Mr Machak refused to share his current residential address, so I have no way of determining how far Suburb F is from the father’s residence.
X currently does not spend time with Mr Machak. She is sad not to see her father and has expressed love for him and a wish to have a relationship with him. Notwithstanding those signs of genuine affection and hope, I must have regard to the views of the Child Court Expert and my own assessment of the risks of ordering time between Mr Machak and his daughter.
I will not repeat myself here, but I have concluded that at present and into the foreseeable future if nothing changes, time with Mr Machak presents an unacceptable risk to X’s emotional and psychological welfare – even though she might not appreciate that. I repeat Ms D’s fears that X might be exposed to a cycle of expectation and disappointment if time was to be ordered while Mr Machak remains captive to his current lifestyle. In my view an order for spend time in the current circumstances would significantly disrupt X’s current circumstances.
The father seeks an order that the mother be restrained from relocating with X to regional Victoria or more than 40kms radius of the Melbourne CBD. Given that I will not be making orders for time between the father and X, I will not impose any restraints on X’s primary residential location. Even if the mother does decide to move to Suburb F, it will not impinge on Mr Machak’s ability to send X cards and gifts on the specified occasions.
The practical difficulty and expense of the child spending time with and communicating with a parent
Section 60CC(3)(e) of the Act requires the Court to consider the practical difficulty and expense of the child spending time and communicating with their parents and whether that will substantially affect their right to maintain personal relations and direct contact with both parents on a regular basis.
As mentioned above, there are obvious practical difficulties with X spending time with her father if he returns to prison. Furthermore, he has made it clear that he cannot meet the expenses of hair follicle testing which, in my view, would be necessary condition for any time between Mr Machak and X.
I do not apprehend any practical or financial difficulties with the father sending X correspondence on the ordered occasions. To facilitate this correspondence Ms Lewy should maintain necessary contact with the paternal grandmother, and correspondence should be given to the paternal grandmother (or another agreed person) to pass on to X. Similarly, any significant updates about X should be passed on to the father through the paternal grandmother.
The capacity of the child’s parents; and any other person (any grandparents or others) to provide for needs of child, including emotional and intellectual needs
Section 60CC(3)(f) of the Act requires the Court to consider the capacity of the child's parents to provide for the needs of the child including emotional and intellectual needs.
The mother has proven that she is able to provide for X’s needs. It is notable that as a child who has experienced her parents’ separation and been exposed to family violence, X comes across in the family report as a resilient child who Ms D describes as “happy, friendly and giggly”. X reported a positive and loving environment in the home with her mother and maternal grandmother. It is to the mother’s credit that she has largely been able to shield X from the reality of her father’s offending. While X is aware that her parents do not like each other, I do not believe that Ms Lewy denigrates the father in front of X. The fact that X has a positive memory of her father is a testament to this.
I accept that there have been points in time where Mr Machak had the capacity to care for X emotionally and intellectually. X has good memories of the pair going shopping or out to eat. Nor do I question Mr Machak’s genuine desire to rekindle and relive the positive experiences he has had with his daughter. However, given all the information above, I do not find that Mr Machak currently has the capacity to care for X and it would be wrong for X to be the “carrot” for his rehabilitation.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and/or either of the child’s parents, and any other characteristics of the child
Section 60CC(3)(g) of the Act requires the Court to consider the maturity, sex, lifestyle and background of the child and the parents and any other characteristics thought relevant.
Mr Machak is of Country G background. Country G is the paternal grandmother’s first language, and Mr Machak and his mother speak the language together. Ms Lewy is of Country J background. Mr Machak lamented during the trial that X was withheld from him during Christmas, and he could only spend Country G (presumably Orthodox) Christmas with X. In coming to my decision, I have given weight to the importance of X maintaining an ongoing connection to the Country G side of her family.
The mother Ms Lewy is sympathetic to this cultural connection. She has facilitated and even encouraged a connection between X and the paternal grandmother, even though it has been personally difficult for her. I believe it is important for this connection to be fostered. It also serves the further purpose of establishing a means of indirect contact between X and her father and a possible platform for formal reconnection in later years.
The attitude to the child, and the responsibilities of parenthood, demonstrated by the child’s parents
Section 60CC(3)(i) of the Act requires the Court to consider the attitude of the child and the responsibility of parenthood demonstrated by each of the parents.
Given the above reasoning, it is unnecessary to further traverse the parents’ attitudes to parenting. The mother is child-focused and dedicated to creating a positive life for herself and X. The father, despite good intentions and strong positive feelings towards X, has proven himself unable to take on the corresponding responsibility that comes with parenthood.
Any family violence involving the child or a member of the child’s family
Section 60CC(3)(j) and (k) of the Act requires the Court to consider whether there has been any family violence involving the child or a member of the child's family, and if a family violence order applies, or has applied, to the child or a member of their family - whether any relevant inferences can be drawn from that order.
This issue has been significantly canvassed elsewhere in this judgment. Intervention orders have been in place protecting the mother and X since 2019, with the current intervention order continuing until 2027. Mr Machak has previously breached the intervention order. In making my orders, I have given considerable weight to these factors.
Whether it would be preferrable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Section 60CC(l) of the Act requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
The orders I propose to make will not include time between the father and X. Those orders should prevail unless there is a material change in circumstances – the responsibility for which rests entirely with Mr Machak.
As I previously mentioned, counsel for the mother and counsel for the ICL accepted that the door remained open to the father to make an application for variation of the court’s orders if he can demonstrate proof of a sustained abstinence from illicit drug use, proof of cessation of criminal offending and evidence that he has engaged support and services to address underlying issues.
Any other fact or circumstance which the Court thinks is relevant
My consideration of the relevant factors has been detailed and there are no other matters which are relevant.
PARENTAL RESPONSIBILITY
Section 61DA of the Family Law Act provides that when making a parenting order in relation to a child the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption can be rebutted where, inter alia, there are reasonable grounds to believe that a parent of the child has engaged in abuse or family violence.
Sensibly, the parties agree that Ms Lewy should have sole parental responsibility for X. X has lived with her mother for some time now and has not had any contact with her father for about two years. It is evident that, given the father’s history of offending behaviour and recent periods of incarceration, the mother has taken on sole responsibility for X not only because it is more appropriate but also because it has been necessary.
The parties do not have any capacity to co-parent. The father has an extremely negative and vindictive attitude towards the mother, and the mother is genuinely fearful of the father. I have no confidence that the parties have any capacity to reach agreement about anything, such is the depth of their acrimony.
The mother has indicated that she is prepared to communicate significant decisions made about X’s education, health and welfare to ensure the father has some line of sight into his daughter’s development. She has done this in the past and will continue to do so. I agree that this is an appropriate gesture on the mother’s part, which is supported by the ICL. Unless otherwise ordered or agreed, the paternal grandmother should be the conduit for those communications with the father.
DISPOSITION
For the reasons set out in this judgment, I am inclined to the orders sought by ICL, a draft minute of which was provided to the court on 14 February 2024. I note those orders are broadly consistent with the recommendations made by Ms D, the Court Child Expert.
For the avoidance of any doubt, I have turned my mind to the possibility of some supervised time between the father and X, but in my view the risks of harm to X’s emotional and psychological health and welfare at this stage of her development are too great. If the father wants direct time with his daughter, he must address the risk factors in a way which is sufficient to persuade the Court to revisit the orders I have made.
Based on my assessment of the evidence and my consideration of the relevant factors which inform the child’s best interests, I will not make any orders with respect to X spending time with her father. However, I will make orders to the following effect:
(a)the mother shall have sole parental responsibility for making all significant decisions regarding the X;
(b)X shall reside with the mother;
(c)the father spend no face to face time with X;
(d)the mother will inform the paternal grandmother about any medical emergencies or major long-term decisions regarding X’s education or welfare; and
(e)the father Mr Machak will be permitted to send letters, cards and gifts for X’s birthday, Easter and Christmas, subject to any such correspondence between X and her father being through the paternal grandmother or as otherwise agreed between the parties in writing.
Save for the making of orders as described in the previous paragraph, the father’s application should be dismissed and all other extant orders of the Court discharged.
Any application by a party for costs of this proceeding must be made to the court within 28 days of these orders.

I certify that the preceding two hundred and thirty-four (234) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.
Associate:
Dated: 2 May 2024

File number:	MLC 5346 of 2019
Judgment of:	JUDGE FORBES
Date of judgment:	2 May 2024
Catchwords:	FAMILY LAW – parenting – application by father for time with daughter – where mother seeks no time order – whether father presents as unacceptable risk due to drug use, criminal offending and family violence – where allegations of family violence not contested – best interests of the child - where supervised time will not reduce risk to emotional welfare – where risk cannot presently be ameliorated – order for father not to spend time
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA
Cases cited:	Blann & Kenny [2021] FamCAFC 161 Blinko & Blinko [2015] FamCAFC 146 Browne v Dunn (1893) 6 R 67 Isles & Nelissen [2021] FedCFamC1F 295 M v M (1988) 166 CLR 69 Mazorski & Albright [2007] FamCA 520
Division:	Division 2 Family Law
Number of paragraphs:	234
Date of hearing:	12-14 February 2024
Place:	Melbourne
Counsel for the Applicant:	Ms Daly
Solicitor for the Applicant:	Macgregor Solicitors
Counsel for the Respondent:	Ms Damon
Solicitor for the Respondent:	Kelly & McHale Family Lawyers
Counsel for the Independent Children's Lawyer:	Ms Agresta
Solicitor for the Independent Children's Lawyer:	Leslie Family Law

MLC 5346 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR MACHAK Applicant
AND:	MS LEWY Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE FORBES
DATE OF ORDER:	2 MAY 2024