Marchant & Bethune - [2024] FedCFamC2F 1432

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Marchant & Bethune [2024] FedCFamC2F 1432

File number(s): ADC 1449 of 2024

Judgment of: JUDGE MCGINN

Date of judgment: 20 August 2024

Catchwords: FAMILY LAW – CHILDREN – Interim parenting orders sought – Department for Child Protection and South Australia Police reports made by the mother – mother has made historical allegations of sexual abuse against father – allegations of father hurting the child physically – ongoing investigations by South Australia Police – Independent Children’s Lawyer appointed - ex tempore reasons delivered – orders made

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Baghti & Baghti and Ors [2015] FamCAFC 71

Carter & Wilson [2023] FedCFamC1A 9

Franklin & Franklin [2019] FamCAFC 256

Langley & Tarelli and Anor (No.2) [2020] FamCAFC 126

Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1

Re K (1994) FLC 92-461; [1994] FamCA 21

U v U (2002) 211 CLR 238

Division: Division 2 Family Law

Number of paragraphs: 140

Date of hearing: 20 August 2024

Place: Adelaide

Solicitor for the Applicant: Ms Annells of Annells Lawyers

Solicitor for the Respondent: Ms Cunningham of Brite Legal
ORDERS

ADC 1449 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS MARCHANT

Applicant

AND:
MR BETHUNE

Respondent

ORDER MADE BY:

JUDGE MCGINN

DATE OF ORDER:

20 AUGUST 2024

IT IS ORDERED UNTIL FURTHER OR OTHER ORDERS:
1.That the parties do have joint parental responsibility in respect of major long-term issues for the children X born in 2018 and Y born in 2019.
2.That the children do live with their mother.
3.That the children spend time with their father as follows:
(a)for period of six weeks:
(i)on a supervised basis, on one occasion each week for a period not exceeding 2 hours at B Contact Centre, City C, at such times and upon such conditions as the supervisor/director of the Centre may specify; and
(ii)each Saturday or Sunday of each weekend, being the day when time has not taken place at the said Contact Centre pursuant to order 3(a)(i), or if no such day has occurred at the Contact Centre on a weekend then on Sunday, from 10:00 am to 4:00 pm UPON CONDITION that the respondent father’s mother or sister shall have filed and served an undertaking in the usual form that they shall supervise the father’s time with the said children and that one of them having filed and served such undertaking is the person to be present to supervise the father’s time with the children;

(b)after a period of six weeks and UPON CONDITION that the father has applied for the report referred to in order (3)(c) below:
(i)each alternate weekend from conclusion of school Friday (or in the event Friday is a non-school day from 5:00 pm) to commencement of school Monday (or 5:00 pm in the event that Monday is a non-school day) UPON CONDITION that the father resides with his mother during all such periods and that his mother is in residence with the father during such periods; and
(ii)each Wednesday from conclusion of school (or 5:00 pm) to 7:30 pm; and

(c)that after 4 occasions of attendance at the Children’s Contact Centre:
(i)the father do seek and obtain at his expense a report as to his interaction with the said children at the said Contact Centre; and
(ii)notify the wife and the Independent Children’s Lawyer in writing of the application for the said report; and
(iii)do file and serve an affidavit annexing a copy of the report and written request on each of the mother and the Independent Children’s Lawyer.

4.The time that the children shall live with the mother and/or spend time with the father shall stand suspended and the children shall live with their mother and spend time with their father for special occasions as follows:
(a)for Christmas, in even-numbered years, with their father from 10:00 am Christmas Eve until 5:00 pm Boxing Day, and, in odd numbered years, with their mother from 10:00 am Christmas Eve until 5:00 pm Boxing Day;
(b)for Easter, in odd numbered years, with their father from 9:00 am Good Friday until 5:00 pm Easter Monday and, in even-numbered years, with their mother from 9:00 am Good Friday to 5:00 pm Easter Monday;
(c)for Father’s Day commencing in 2025, with their father 9:00 am to 7:00 pm and on Mother’s Day with their mother from 9:00 am to 7:00 pm; and
(d)for Father’s Day 2024, from 10:00 am to 4:00 pm subject to and UPON CONDITION of the supervision identified in order 3(a)(ii);
(e)on the occasion of each of the children’s birthdays and each of the parents’ birthdays from 3:00 pm to 7:30 pm with the parent with whom the children are not then living or spending time on the morning of that birthday, the father’s time with the children on X’s Birthday in 2024 to be subject to and UPON CONDITION of the supervision identified in order 3(a)(ii).

5.That for the purposes of clarity, the father’s time with the children is to be supervised by his mother and/or his sister.
6.That the father have telephone/video contact with the children each Tuesday at 5:00 pm for a period not exceeding 15 minutes in total, or at such other time as the parties agree in writing, by the father telephoning the children on a number nominated by the mother in writing;
7.It be a condition of the children living with their mother and father spending time with the children that:
(a)each parent shall facilitate the children’s attendance at any periodic extracurricular activity (including training and end of season events) that occurs in the time that the children spend with/live with them UPON CONDITION that the other parent shall not attend such activity that falls within the other parent’s time UNLESS prior written consent has been first had and obtained; and
(b)all handovers occur at the Children’s Contact Centre, school or early education centre where the father’s time with the children commences or concludes at a Contact Centre, school or childcare centre and otherwise, unless the parties have agreed previously in writing, at D Venue, E Street.

8.That the parties be restrained and an injunction be granted restraining each of them from:
(a)abusing, belittling, rebuking, insulting or denigrating the other or the other’s partner in the presence of or within the hearing the hearing of the children or allowing any other person to do so;
(b)discussing these proceedings or any allegations made in them in the presence of or within the hearing the hearing of the children or allowing any other person to do so SAVE AND EXCEPT for the purposes of any interview with police or the Department for Child Protection or its officers;
(c)posting any information on any social media platform regarding the other partner, the other parent’s partner , the other parent’s family, these proceedings or any allegations made in these proceedings or allowing any other person to do so; and
(d)consuming more than two standard alcoholic drinks whilst the children are in their care in any 24-hour period commencing at 12:00 am each day.

9.That each party shall communicate with the other for the purposes of giving effect to these orders by the use of the application “AppClose” and each party shall forthwith acquire such application if not already possessed of the same;
10.That each party shall keep the other informed of their current residential address, mobile telephone number and email address and advise of any changes to the same within 24 hours;
11.That each parent notify the other as soon as reasonably practicable by text message in the event of any serious childhood illness or medical emergency affecting either child whilst in his or her care;
12.That each party do all things and execute all documents necessary to:
(a)authorise the other to liaise with, obtain information from, provide information to and attend separate appointments with any medical specialist, general practitioner, dental practitioner, allied health professional, psychologist, counsellor and/or therapist the children might consult from time to time; and
(b)other than in case of emergency, provide 14 days’ notice of any appointment that either child is to have with any person referred to in order 12(a).

13.That each party do all things and execute all documents to authorise the other to obtain at their own expense information from the said children’s school/childcare as is usually provided to parents, including but not limited to, newsletters, reports and photographs and to attend separately functions and events which parents are normally invited to attend including, but not limited to, school concerts, school assemblies, sports day, and parent/teacher interviews UPON CONDITION:
(a)neither party approach or remain within 5 metres of the other; and
(b)each party do provide to the other with at least 48 hours written notice of their intention to attend any such school or childcare function.

14.That pursuant to section 68L of the Family Law Act 1975 (Cth) an Independent Children’s Lawyer be appointed to represent the interests of X and Y.
15.That to facilitate the appointment referred to in order 14 the parties and/or their respective solicitors do forward all relevant documents to the Legal Services Commission of South Australia within seven days of today’s date.
16.That the parties forthwith provide to the Independent Children’s Lawyer the names and addresses of any medical practitioners, counsellors or other professional people or agencies they have attended within the last 12 months together with the names and addresses of all medical practitioners, schools, day care centres and/or agencies whom the children may have seen or attended in the last 12 months and provide the Independent Children’s Lawyer with authorities for the release of information concerning themselves and the said children from any such person or agency as Independent Children’s Lawyer may request from time to time;
17.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and X and Y are to attend upon a Court Child Expert (practising under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (which are all of referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 30 October 2024 and that the family report address:
(a)any views expressed by X and/or Y;
(b)the matters set out in ss 60CC, 61D, 61DAA of the Family Law Act 1975 (Cth);
(c)the impact upon the children and upon their relationship with the mother if the Court made orders as sought by the father;
(d)the impact upon the children and upon their relationship with the father if the Court made orders as sought by the mother;
(e)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the children.

18.Not later than 4.00 pm on 28 August 2024 the parties must provide their contact telephone numbers and email addresses to […[@[…].
19.Each party will do all things necessary to ensure the children attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
20.The parties and the children shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
21.The Family Consultant shall be at liberty to inspect any material filed by the parties or the Independent Children’s Lawyer, and otherwise the following:
(a)any material that has been:
(i)produced to the Court pursuant to any order made pursuant to s67ZBD and s 67ZBE and is not marked confidential; and
(ii)that has by order been made available to the parties or their legal representatives for inspection and/or copying and is not marked confidential;

(b)the exhibits in these proceedings.

22.Upon the family report being provided to the Court, the Court may release the report and provide a copy to each party (or if represented, the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
23.Unless a party objects in writing within 14 days of the date of releasing the family report, a copy of the family report may (if the Court is requested to do so for a purpose related to the care, welfare or development of the children) be provided to the following:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and/or
(d)a convener of any legal dispute resolution conference.

24.Unless otherwise ordered, no person shall release the family report, or provide access to the family report to any other person.

IT IS FURTHER ORDERED:
25.That all interim applications do otherwise stand dismissed.
26.That this matter be listed before Judge McGinn on at 10:00 am on 18 November 2024 for trial directions in City C.
27.That the hearing of 11:30 am on 21 October 2024 before Judicial Registrar Derewlany be vacated.
28.That the question of costs of each party (including those claims sought on an indemnity basis) be reserved to trial.
29.That this matter be listed for trial at 10:00 am on 18 February 2025 (3 days allowed) in City C.
30.That correspondence produced to the Court by the South Australia Police pursuant to order made 1 July 2024 be admitted into evidence as Exhibit 1.
31.That correspondence produced to the Court by the Department for Child Protection pursuant to order made 1 July 2024 be admitted into evidence as Exhibit 2.

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

These reasons have been corrected for errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read. Some headings have been inserted to assist in this regard.
These are interim parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) concerning the children X, born in 2018, aged six years and Y, born in 2019, aged four years.
Pursuant to s 69ZL(1) of the Act, I propose to deliver these reasons in short form with respect to the issues in dispute.
In this judgment, the term “police” is a reference to officers of the South Australia Police and the term “DCP” is a reference to officers of the Department for Child Protection, South Australia unless context indicates otherwise.
The parties separated in or about October 2021 and these proceedings were initiated on 2 April 2024 by the applicant mother. For three and a half years since and from the parties’ separation, the parties had managed parenting arrangements by agreement for X and Y without recourse to legal processes. Despite the commencement of proceedings in early April 2024, those arrangements persisted until mid-2024 when the mother withheld the children from the father.
Prior to the initiation of proceedings, an interim intervention order was obtained in early 2024 by the applicant mother which is an order against the respondent father and names the mother as the protected person. That intervention order generally precludes contact including communication between the mother and father but permits contact in accordance with orders under the Act, dispute resolution, and by “SMS” to facilitate access to the children and to exchange information as to welfare. That order was made without notice to the father and was required to be served upon the father and is the subject of contest.
In the period following separation, the respondent had, at the very least, the children living with him every second weekend and overnight every second Wednesday and from December 2022 and following dispute resolution, under an equal time arrangement. That equal time arrangement persisted until mid-2024 when the mother told the father that she had been advised by police that she had grounds not to return the children to the father’s care on account of one of the children, X, telling her mother that her father had hurt her arm and head by grabbing them.
Despite being told by X of her father hurting her, the mother permitted the children to return to the father’s care on two occasions in mid-2024 and despite offers of the father to time spending being subject to supervision, the children have not seen their father since.
The father has offered to spend supervised time with the children on 1 July 2024 and his subsequent registration at a children’s contact centre should have seen his spending time at least at the relevant contact centre.
The father outlines that the mother has now enrolled at a children’s contact centre at some time on or about 30 July 2024.
The primary question for the Court today is what the interim living and time spending arrangements for the children should be.
The overarching purpose of the Act and the applicable Rules of Court[1] is to facilitate the just resolution of disputes in a way that ensures the safety of families and children and promotes the best interests of the children, including according to law and as quickly, inexpensively, and efficiently as possible.[2] The parties and their legal representatives are duty bound to conduct proceedings in a manner consistent with this purpose.
[1]Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
[2]Family Law Act 1975 (Cth) s 95.
When commencing proceedings, the mother informed the Court[3] that she has participated in dispute resolution services with the father and had cooperated with him in an appropriate dispute resolution service and had taken appropriate steps to resolve the dispute between the parties before filing her initiating application.
[3]Applicant Mother’s Genuine Steps Certificate of 2 April 2024 at [2] and [3].
ORDERS SOUGHT
By the initial interim applications before the Court, the parties between them have sought some 37 parenting orders.
By those applications, the parties appear to have agreed the following matters:
(a)that handovers should generally occur at a childcare, kindergarten or school or at other locations as agreed between the parties;
(b)that each of the parties are to inform and keep the other informed of their contact telephone number, email address, residential address, and any changes to those;
(c)that the children should have weekly telephone/video communication with the parent with whom they are then not living;
(d)that each of the parents notify the other as soon as it is reasonably practicable of any serious childhood illness or medical emergency affecting either of the children whilst they are in their respective care;
(e)that each of the parents are to authorise the other to liaise with, obtain information from, provide information to, and attend appointments with any medical specialist, general practitioner, dental practitioner, allied health professional, psychologist, counsellor and/or therapist that the children may consult from time to time;
(f)that each of the parties shall notify the other upon booking any appointments for the children made with any medical specialist, general practitioner, dental practitioner, allied health professional, psychologist, counsellor and/or therapist that the children might consult from time to time;
(g)that both parents be authorised to obtain any such information from any playgroup, childcare, kindergarten, early learning centre or school that the children may attend from time to time as usually provided to caregivers, including but not limited to newsletters, reports and photographs, and attend such events and functions that caregivers are normally invited to attending including, but not limited to assemblies, concerts, sports day and parent-teacher interviews; and
(h)that each of the parties be restrained and injunction be granted restraining each of them from:
(i)abusing, denigrating, insulting or rebuking the other, the other’s partner or family members in the presence of or within the hearing of the children or allowing any other person to do so;
(ii)discussing the proceedings or any allegations in the proceedings in the presence of or within the hearing of the children or allowing any other person to do so; and
(iii)the children spending time with their parents beyond that which is otherwise ordered at times as agreed between the parties.

The parties also sought that a Child Impact Report be ordered. That order has been made on 20 May 2024, but the report is yet to be received. That order by these reasons and the orders made today remains undisturbed.
The applicant mother is understood, allowing for typographical and other errors, to have proposed in 2024:
(a)that she have sole parental responsibility for the children;
(b)that the children live with her;
(c)that the children spend time with their father:
(i)each alternate weekend from 5:00 pm Friday until 9:00 am Monday;
(ii)for Christmas Day on even-numbered years from 10:00 am Christmas Eve to 5:00 pm Boxing Day on the basis that they spend the equivalent period with their mother in odd-numbered years;
(iii)on Father’s Day from 9:00 am to 7:30 pm on the basis that the children spend time with their mother from 9:00 am on Mother’s Day with no return of the children to the father later that day;
(iv)on the children’s birthdays, from 3:00 pm or the end of school to 7:30 pm on the basis of the children, if in the father’s care, spending an equivalent period of time with their mother, but not ending on that day;
(v)on the father’s birthday from 3:00 pm or the end of the school until 7:30 pm on the basis that the children are spending an equivalent period of time with their mother on her birthday;
(d)that handovers not otherwise occurring at school or as agreed between the parties, take place at the McDonald’s restaurant on F Street, City C;
(e)that the changes in residential address, mobile telephone number and email address be advised within 24 hours;
(f)that the father undertake a supervised liver function blood test for alcohol abuse which include an assessment of carbohydrate deficient transferrin levels, and the father provide the mother’s solicitor with a copy of the results within 24 hours;
(g)the father undertake alcohol counselling;
(h)the father undertake a Men’s Behaviour Change Program;
(i)the father be restrained with injunction from:
(i)taking the children to work sites;
(ii)permitting the children to ride on a motorbike or similar vehicle without appropriate safety gear; and
(iii)driving the children in a vehicle without a valid driver’s licence or whilst the vehicle is uninsured or not mechanically sound; and
(j)that each of the parties be restrained with injunction from:
(i)permitting the children to read any document or folder produced for the use in the proceedings or any part thereof or allowing any other person to do so; and
(ii)posting any information on any social media platform regarding the other parent, the other parent’s partner, the other parent’s family, these proceedings, or any allegations made in these proceedings or allowing any person to do so.
The respondent father is understood, allowing for typographical and other errors, to have proposed as at 16 May 2024 that:
(a)the children spend time with him:
(i)from Tuesday, 28 May 2024 and each intervening Tuesday thereafter from conclusion of school (or 3:30 pm if it is a non-school day) to 7:30 pm;
(ii)commencing Friday, 31 May 2024 from the conclusion of school (or 3:30 pm if it is a non-school day) to the conclusion of school the following Friday (or 3:30 pm if it is a non-school day), and each alternate week thereafter;
(iii)for Christmas in even-numbered years from 3:00 pm Christmas Day to 3:00 pm Boxing Day on the basis that the children spend from 4:00 pm Christmas Eve to 3:00 pm Christmas Day with the mother;
(iv)for Christmas in odd-numbered years from 4:00 pm Christmas Eve until 3:00 pm Christmas Day on the basis that the children spend time with their mother from 3:00 pm Christmas Day until 3:00 pm Boxing Day;
(v)for Easter in odd-numbered years from 4:00 pm or the conclusion of school Thursday to 4:00 pm Easter Monday on the basis that the children spend an equivalent period with their mother in even-numbered;
(vi)on Father’s Day from 9:00 am to 7:30 pm on the basis the children spend an equivalent period with their mother on Mother’s Day; and
(vii)for the children’s birthday on school days from the conclusion of school until 7.30 pm on the basis that the children would spend an equivalent period of time with their mother should the children then be living with the father, and on non-school days from 3:00 pm to 7:30 pm, provided that if the children are then in the father’s care, they spend an equivalent time with their mother;
(b)that handovers not otherwise occurring at school or as agreed between the parties take place at D Venue, E Street, City C;
(c)that any change in residential, email or telephone particulars be notified within 48 (not 24) hours to the other parent;
(d)parenting communications take place pursuant to a parenting app known as “AppClose”;
(e)that neither parent shall enrol the children in any sporting or extracurricular activities which shall take place during the other parent’s time, including training or sporting activity or practices/rehearsals for any extracurricular activity without the prior written consent of the other parent, and that both parents shall ensure their children are able to participate in all of their sporting and extracurricular activities when within their care;
(f)that each parent be able to travel interstate upon at least 28 days’ notice to the other parent by email, including a proposal for make-up time to occur within 21 days of the children’s return, and the other parent shall provide the consent within 14 days which shall not be unreasonably withheld;
(g)in the event that either parent intends to travel internationally with the children, that the travelling parent shall provide to the non-travelling parent at least 60 days’ notice prior to any anticipated travel and an itinerary which includes days of travel and telephone numbers and email address upon which the children and the travelling parent may be contacted, and the other parent shall provide the consent within 14 days which shall not unreasonably be withheld;
(h)that the parents shall do all things and sign all documents necessary to apply for a passport of the children, which passports are to be obtained at the expense of the father and to be held by him; and
(i)that each of the parents be restrained and an injunction be granted restraining each of them from consuming more than two standard alcoholic drinks whilst the children are in their care.
Each of the parties filed case outlines on 19 August 2024 which, amongst other things, identified the orders most recently sought by each of the parties. Those orders do little to substantially vary the orders sought by the parties’ respective applications.
Neither party sought the appointment of an Independent Children’s Lawyer. As previously indicated, further orders now may have been sought by each of the parties in the course of the submissions.
The making of orders that do not reflect the orders devised by the parties does not, of itself, vitiate the judgment or orders. [4]
[4]U v U (2002) 211 CLR 238 at [263], [284]-[285]. The Orders to be made are those in the best interests of this child or the children, not just a selection between the competing suites of Orders advanced by each party. There is no obligation to make those Orders habitually advanced, where there is an absence of evidence and submission to justify the making of such Orders.
THE MATERIAL RELIED UPON BY THE PARTIES
I have considered the material relied upon by each party which has included:
(a)for the applicant mother:
(i)Initiating Application filed 2 April 2024;
(ii)The applicant’s affidavit filed 2 April 2024;
(iii)affidavit of service on behalf of the applicant of 11 April 2024;
(iv)Response to Application in a Proceeding filed 28 June 2024;
(v)the applicant’s affidavit of 28 June 2024; and
(vi)the applicant’s affidavit of 26 July 2024;
(b)for the respondent father:
(i)Response to Final Orders filed 16 May 2024;
(ii)the respondent’s affidavit filed 16 May 2024;
(iii)the respondent’s Application in a Proceeding filed 17 June 2024;
(iv)the respondent’s affidavit filed 17 June 2024;
(v)the respondent’s affidavit filed 9 July 2024; and
(vi)affidavit of Ms G, the father’s mother, filed 9 July 2024.
Pursuant to the leave granted on 1 July 2024, the father filed on 9 July 2024 the affidavit of himself and his mother.
The mother then filed, without leave, her affidavit of 26 July 2024. There was no objection to me having regard to that affidavit.
Insofar as the father, by his outline, sought that regard be had to it, the father, by his outline sealed 19 August 2024, sought to rely upon an affidavit of 20 August 2024. That affidavit was tendered and was read and considered.
The mother has filed two Notices of Child Abuse, Family Violence or Risk with the Court, on 2 April 2024 and 28 June 2024. Although not sworn evidence, each such Notice is verified by a statement of truth by the mother.
The father has given argumentative affidavit evidence in relation to the content of the latter Notice, but it is instructive to have regard to both.
The mother, by her case outline, says this Court should have regard to her Notices. The Court has determined that it shall do so.
The first Notice says the children are:
(a)at risk of abuse or neglect and family violence, each reported to DCP and the police in late 2023;[5]
(b)there is drug or alcohol or substance abuse by the father and the father has been charged and/or has a conviction for drink driving in 2022;[6]
(c)that the mother thinks the children are at risk of being abducted as the father took the children to Sydney when it was her week with the children;[7]
(d)there are other concerns about denigration of the mother, the father not allowing the children to call the mother’s partner “step-dad”, use of a motorbike, stating a reduction in income for child support purposes and taking the children to construction work sites.[8]
[5]Notice of Risk sealed 2 April 2024, Part C and D.
[6]Notice of Risk sealed 2 April 2024, Part E.
[7]Notice of Risk sealed 2 April 2024, Part G.
[8]Notice of Risk sealed 2 April 2024, Part H.
The second Notice refers to an incident in mid-2024 and referrals to the police and City C Hospital and whilst referring to the earlier notice, abandons the assertion of a risk of abduction,[9] the mother also asserts that she has not sent the children to the father since mid-2024.[10]
[9]Notice of Risk sealed 28 June 2024, Part G.
[10]Notice of Risk sealed 28 June 2024, [35].
The Court is not assisted in this matter by expert evidence such as a Child Impact Report that will be provided following interviews on 12 September 2024. [11]
[11]Order of 20 May 2024.
Material was also produced to the Court under s 67ZBD of the Act and reference is to be had to it in these reasons. The material so produced will be admitted into evidence pursuant to s 67ZBH with material produced by police being Exhibit 1 and the material produced by DCP being Exhibit 2.
I have considered the submissions made on behalf of the parties. I do not propose to address every submission made, however, in reaching a determination of issues I have considered all submissions.[12]
[12]Baghti & Baghti and Ors [2015] FamCAFC 71.
Following the filing of the Initiating Application on 2 April 2024 and the response to that application on 16 May 2024, there was a hearing before the Court on 20 May 2024 at which time orders were made:
(a)for the matter to be listed for mention before me on 19 August 2024;
(b)for the preparation of a Child Impact Report pursuant to s 62G of the Act;
(c)to commence with appointments on 11 September 2024;
(d)for advice from the police of any documents or information in relation to either of the parties or their children pursuant to section 67ZBD of the Act; and
(e)adjourning the matter to 21 October 2024 for a procedural hearing.
Following the hearing on 20 May 2024, in mid-2024 the mother withheld the children from the father who was due to collect them to be in his care following a week-about arrangement which had persisted until then.
It turns out the mother was withholding the children as:
(a)in mid-2024, X told her mother that her arm was sore and explained that her father had pulled her by the arm giving her a headache straight away and she dropped down crying and that had happened that morning before school and that she told her grandmother who put “Deep Heat” on her shoulder. She then went on to say that her father was getting her dressed and grabbed the back of her head so it hurt;
(b)the mother observed that X had bruising around arm and shoulder;
(c)the mother took X to Emergency at City C Hospital where X told a doctor that she heard her bones crack when her father grabbed her;
(d)that the mother observed that part of the bruising looked like finger marks and the doctor found muscular weakness in X’s arm due to soft tissue injury;
(e)the doctor said they had to report the injury;
(f)the mother rang City C Police whilst at the hospital or soon after;
(g)the following day, a forensic photographer asked for X to be brought to the police station to take forensic photographs of X’s injury;
(h)whilst with the photographer, X said she was worried that her father would be angry and go to jail, her father punched walls and threw things and believed it was normal and allowed if dad was angry;
(i)leaving the station, X said she didn’t mind if dad went to jail, but wanted to see Nana and an Aunty (the father’s mother and sister);
(j)X also said her father had made her bones crack and “they” won’t let her call her mother and she forgets to tell her mother what has happened;
(k)that the back of X’s head was tender for a week;
(l)two days later, X’s bruising was present but quite faint but at the same time said to take about a week to heal;
(m)the following day, the mother “permitted” a dinner at the father’s house because the mother was not sure the police would be proceeding. The mother learned that X had told her father about her reporting to the police. The mother allowed this dinner meeting as it was in a public place with a large number of family and friends present;
(n)two days later, the mother spoke to a member of the City C Family Violence Unit who told her that she had grounds not to send the children to the father;
(o)on 17 and 18 June 2024, the parties’ solicitors exchanged correspondence in relation to the children not attending upon their father;
(p)on 17 June 2024, the father prepared an Application In a Proceeding seeking an urgent hearing (subsequently sealed 21 July 2024). At paragraphs 2 to 14 the father sought orders until further order relating to the parties and the children which were identical to those sought by way of interim orders in his response but for the dates as to when the time he sought with the children was to commence, an order seeking make-up time, orders dealing with the children’s medical treatment and travel and their passports. By way of an addition, the father also sought an order for indemnity costs of that Application In a Proceeding;
(q)a few days later, the police told the mother they would be pursuing an investigation and the mother then decided to withhold the children for their safety;
(r)a week later, the mother was told that X would be interviewed by DCP in City C and that the father would need to be interviewed;
(s)that same day, the mother reapplied for an intervention order, the intervention order of early 2024 having been withdrawn as the mother and father were both present at a children’s sports day and sexual assault charges were not proceeded with;
(t)on 28 June 2024, the mother also filed a Response to an Application In a Proceeding seeking orders until further order that the children live with the mother, she have sole parental responsibility for them both long-term and on a day-to-day basis, for the father to have supervised time with the children at a contact service and costs. This response articulates the change from interim orders sought by the Initiating Application in that it does not promote the children spending time with their father except on a supervised basis and omits orders dealing with communication between the parties and certain testing and counselling;
(u)a few days later, with the mother’s knowledge, X spoke with the father on the telephone, but Y did not want to;
(v)two days later, the father attended at each of the children’s school and childcare to speak with them;
(w)after the father’s attendance at school, the mother reports that X told the mother that her father explained to her that he did not mean to hurt her, but he always hurts her and the father said it was an accident and that the children would be home with their father the following week;
(x)the mother then applied yet again for another intervention order this time for her and the children;
(y)the mother’s affidavit of 26 July 2024 says in mid-2024 an interim intervention order was granted. It appears that there was a hearing date a week later. The date of the order given is mid-2024. The order contains an exception to otherwise prohibited communication and contact for the purposes of giving effect to orders and proceedings under the Act;
(z)In July 2024, the father attended Y’s childcare to speak to her; and
(aa)In July 2024, X was assigned a new person at the DCP to interview her;
The mother’s most recent affidavit also raises other matters, being:
(a)the father has always refused to pay child support;
(b)the mother has a number of issues with the children’s school as X has been inappropriately touched by another student and bullied (including being hit in the face with an object);
(c)the school assumed that X was making it up when informed of her sore arm;
(d)the school’s receptionist said that the absence of Y’s date of birth from the intervention order meant that the order did not have to be followed;
(e)the school has failed to provide the mother with newsletters and notices;
(f)a statement at parent-teacher night from X’s teacher was inconsistent with a subsequent grade in English; and
(g)the school lacks adequate staff.
The mother is of a belief that the children’s school should be altered in their interests.
Subsequent to the father filing the Application In a Proceeding and the mother filing her Response to it, this matter came before the Court on 1 July 2024. On that occasion it was ordered that the father be given liberty to file two further affidavits being the affidavits filed 9 July 2024, referred to above, and for outlines to be forwarded by 13 August 2024. Orders were made pursuant to s 67ZBD to the DCP and the police for particulars of information and documents held by them in relation to the parties and the children.
The material from the police and the DCP, under the order of 1 July 2024, was specified and ordered to be produced by 2 August 2024, and was so produced on that day, and an order was made that day permitting the parties to inspect the material so produced.
That material discloses:
(a)from the police:
(i)that there is an ongoing investigation in relation to offences of domestic abuse/child protection with a report date of mid-2024; and
(ii)that the police cannot provide further information without compromising the investigation.
(b)from DCP:
(i)that there are records of unspecified date containing allegation that the father had perpetrated violence of an unspecified type towards the mother during handover at unspecified times;
(ii)that in late 2023, there were two notifications that the father perpetrated domestic violence towards the mother, including:
(A)that the father assaulted the mother in the presence of the children;
(B)that the father disciplines/abuses the children, including pushing a child by the throat;
(C)that the father misuses alcohol;
(D)that the children have been exposed to the father punching holes in walls and throwing things at walls;
(E)that the children are left unsupervised by the father, and
(F)that the father is attempting to manipulate the children to hate the mother;
(iii)that in early 2024, DCP received allegations that the father has been breaching the current intervention order by driving past the mother’s residence with previous domestic violence perpetrated by the father including physical, verbal and sexual abuse;
(iv)that in early 2024, DCP received allegations that:
(A)the father misuses alcohol, having passed out and being unable to care for the children;
(B)the father tells the children negative things about the mother and her partner;
(C)the father perpetrated domestic violence towards the mother, including sexual assault, smashing items, yelling, screaming and putting holes in the family’s residence in the children’s presence; and
(D)the father’s behaviour escalates when he is intoxicated;
(v)that in mid-2024, DCP received six notifications that amounted to:
(A)in mid-2024, the father became physical towards X, with her reporting that her father firmly grabbed her by the arm and put it behind her back, causing pain, and grabbed her by the back of the head firmly causing her to stumble forward;
(B)that medical review showed redness near the back of the arm and bruising across the top of the arm;
(C)that Y’s emotional presentation was declining; and
(D)the father had a history of domestic violence and physical violence;
(vi)that in mid-2024, DCP received allegations that X was inappropriately attacked by another child; and
(vii)that DCP have referred to the police the mid-2024 allegations for response and continue to liaise with the police regarding the allegations.

The father, in answer to the mother’s allegations that he has physically abused X as made known to the mother in mid-2024, and that the matter needs to be investigated, asserts:
(a)that he has, in the past, been the subject of false allegations of sexual assault of the mother and breaches of intervention order;
(b)that he specifically denies that he has behaved violently in the presence of the children, or denigrated the mother to the children;
(c)that in 2023, whilst his late father was dying and whilst comforting his father, the father left the paternal grandfather’s room and punched a wall out of frustration, which Y, having left her bed, saw;
(d)that in mid-2024, whilst in bed, he scooped up X, who then said her father had hurt her arm and left the father’s bedroom in tears. The father came out and tried to console X, saying he could not understand how he hurt her, that he did not intend to do so, apologising if he had hurt her, and questioning where it was hurting. He says that X did not complain of a sore head, could move her arm and no injury was visible;
(e)that later, X complained to the paternal grandmother that her arm was still sore. The paternal grandmother inspected the arm and applied “Deep Heat”. X complained the “Deep Heat” was hot, so it was washed off, which X, on the father’s recollection of events, is said to have giggled about;
(f)that throughout this time, the children continued to get ready for school and childcare;
(g)that the father has been informed by the school that in mid-2024 that X went to the school office, complained of a sore arm and was given an ice pack and was sent back to class;
(h)that three days later2024, the father’s sister collected the children from the mother to spend about four hours at an event at the father’s home, without notice being given by the mother or on her behalf that X’s arm had been hurt or was hurting. X made no complaint of her arm so hurting on that day nor did it appear to any person that the arm was hurt, despite playing on playground equipment. The children were returned to the mother’s care at the conclusion of the function;
(i)that the following day, the father had the children at dinner without notice from the mother, or on her behalf, of X’s injury or the circumstances under which it had come to be acquired. Later that day, X said to her father repeatedly “[y]ou’re going to hurt me.” and “[y]ou’re going to get angry” after which he asked his mother to speak to X. His mother later informed him that X told her grandmother that the father had hurt her arm the previous Friday and that she had been taken to the hospital and police;
(j)that in mid-2024, the father requested the mother to allow for him to spend time with the children on a supervised basis, which was refused. Despite this, the father registered with the local contact service on a “without admission” basis, however, time spending for the children with their father at the children’s contact service has not proceeded to date; and
(k)that three days later, the father, and it appears his sister, attended Y’s childcare centre for Y’s graduation.
The father’s evidence places many of the contentions in evidence advanced by the mother in her affidavit material in dispute.
The paternal grandmother’s affidavit deposes to her recollection of events of the morning of mid-2024, noting that X came out of her father’s bedroom crying, saying that her father had hurt her arm, and that her arm was sore. Having got dressed, X re-appeared to her paternal grandmother, having dressed for school, still complaining about her arm being sore.
The paternal grandmother observed that X had function of her arm, both that day and three days later, and displayed no apparent discomfort on any of the days.
The paternal grandmother lives with the father. The paternal grandmother deposes that “most” of the time the father is home with the children, she is present as well and is willing and capable to be able to continue to do so. The paternal grandmother also deposes that she would intervene by asking the father to remove himself, or she removing the children to preclude the children from being exposed to the father acting violently or inappropriately.
The paternal grandmother’s evidence stands unchallenged in the mother’s affidavit of 26 July 2024, however, the mother says that she does not accept that the people the father lives with, or who are at his home regularly, would act protectively in respect of the children.
The affidavit does not set out explicitly the basis for the formation of this view. It appears to arise from the children sneaking things into their bags, the marking of the children’s clothing with dots, and the children remarking that their father said to them that “their mother is lying and mean”. Having considered this affidavit material, I do not consider that it can objectively and reasonably be taken as founding a proper basis to reject the paternal grandmother’s evidence of her ability and willingness to intervene in the interests of the children.
The mother’s affidavit evidence in respect of her unwillingness to accept the paternal grandmother as an appropriate person to supervise the father’s time with the children is inconsistent with the mother’s evidence that the children love the father’s parents.
In considering this matter, the Court is aware of the mother’s allegations that she has been sexually assaulted by the father, gave police a statement verified by a declaration in late 2023 that she was so assaulted in late 2017, requesting no investigation by police and has deposed that there are other sexual assaults that she says are not directly relevant to the children.
This affirmed evidence of the mother means weight cannot be attached to the DCP Information Report, being Exhibit 2, insofar as it refers to a notification in early 2024 that the father perpetrated domestic violence towards the mother “including sexually assaulting the mother in the presence of the children”. It is difficult to perceive that such a matter would be overlooked either in a statement to police made in late 2023 or in notices of child abuse, family violence, or risk filed in this Court by the mother or in the mother’s affidavit material before the Court.
The father has denied all allegations of sexual assault and other violent behaviours, other than punching the wall when his father was dying.
The father is not reticent about the allegations of sexual assault made against him. In addition to the alleged assault of late 2017, the father deposes that he’s aware that in early 2024, the mother alleged to police at City C that he sexually assaulted her in early 2023.
The mother’s sworn evidence of sexual assaults other than the late 2017 assault are not directly relevant to the children. The mother’s decision not to go into evidence about the assaults of early 2023 that have been made known to the father by the police when considered in the light of the father’s uncontested evidence that the father was the mother’s support person during her labour with her third child (by Mr H) born in 2023 indicates that these allegations are of little weight for the purposes of the determination of these interim proceedings. The Court infers that the father could only have been able to fulfil the role of being her support person during her labour with the mother’s consent and permission given to the relevant hospital where the birth occurred. Such behaviour on the mother’s behalf is inconsistent with having been so assaulted by the father and having been exposed to other alleged drunken violent behaviour on behalf of the father.
The DCP note in Exhibit 2 of having driven past the mother’s residence received in early 2024 is a matter which also must be considered. The father explains his absence from the vicinity of the mother’s house in his affidavit of 16 May 2024 and that it had been established by the provision of telephone records to the police. This evidence is not contradicted. Exhibit 1 neither confirms nor denies the father’s assertions in this regard.
An interim hearing is a curtailed hearing which proceeds on the documents filed by each of the parties and tendered into evidence. That evidence is yet to be tested; there is no cross‑examination of parties or witnesses about what they allege in their affidavits and so where facts are in dispute, the Court cannot make any conclusive findings about those matters. As the Full Court observed in Franklin & Franklin [2019] FamCAFC 256 at paragraph 73:
In interlocutory hearings, to the extent it is possible, judges are enjoined to make decisions about interim orders based on agreed facts, less contentious evidence, and inferences which fairly arise (citation omitted), but decisions must still be made despite contentious evidence. Judges are obliged to act on the strength of the evidence presented and, if it is relatively weak, are entitled to treat it so. Contrary to the inherent premise of the mother’s submissions in support of Ground 2(c), judges are not required to treat all untested evidence as bearing the same weight.
FAMILY VIOLENCE AND THE CHILDREN’S SAFETY
Orders in respect of children are regulated by Part VII of the Act. A parenting order is defined at s 64B of the Act. The Court may make such parenting order as it considers proper.[13]
[13]Family law Act 1975 (Cth) s 65D(1). And within the context of the objects of the legislation namely to ensure that the best interests of a child are met, including by ensuring their safety and to give effect to the 1989 Convention on the Rights of the Child and the fifty-four articles set out therein.
When making parenting orders, the Court is mandated to regard a child’s best interests as the paramount consideration. [14]
[14]Family law Act 1975 (Cth) s 60CA and s 65AA.
The Act specifies the non-hierarchical criteria which must be considered in arriving at a conclusion as to what is in the children’s best interests at s 60CC(2), the matters to be considered include:
(a)what arrangements would promote the safety (including safety from being subjected to or exposed to family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has the care of the child (whether or not a person had parental responsibility for the child);
(b)any views[15] expressed by the child;
(c)the developmental, psychological, emotional, and cultural needs of the child;
(d)the capacity of each person who has or has proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional, and cultural needs;
(e)the benefit of the child being able to have a relationship with the child’s parents and other people who are significant to the child where it is safe to do so; and
(f)anything else that is relevant to the particular circumstances of the child.
[15]By virtue of s 60CE, nothing in Part VII permits the Court or any person to require the child to express his or her views in relation to any matter.
In contemplating the aforesaid matters, the Court must consider any history of family violence, abuse, or neglect involving the child or a person caring for the child together with any family violence order that is current or has previously applied to a child or a member of the child’s family.[16]
[16]Family law Act 1975 (Cth) s 60CC(2A).
Section 60CG of the Act further requires a Court when considering what parenting order to make to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence and is consistent with any family violence order.
The evidence satisfies me that the children have a good relationship with each of their parents and that has been recognised by those parents in the past through their conduct and agreements in causing the children to live with each of their parents and in doing so, that the children would benefit from those relationships.
Despite each of the parents and in particular the mother harbouring misgivings about what she has latterly recalled of the father’s past conduct towards her and has come latterly to understand as family violence, the arrangements that the parties have arrived at, as to a shared care arrangement which has been the product of agreement that has persisted until mid-2024, speaks to the benefit of the children having a relationship with each of their parents.
The extent to which the children have spent time with each of their parents also indicates that each of the children were regarded by each of the parties to be safe in the other parent’s care.
This is borne out by the fact that the material from the children’s school produced in evidence does not indicate that it was apparent that either parent was neglecting the children while they are in either of the parent’s care.
The allegations of mid-2024 raised by X as to having been grabbed by the arm and head by her father said to have caused, amongst other things, bruising, which is the subject of forensic photographs, has caused a disruption to the pattern of the children’s care.
It may be that other things have contributed to this disruption such as:
(a)an emergent realisation on the mother’s behalf that the relationship with the father is to be viewed as violent, both physically and of the controlling and coercive type;
(b)a view that the father’s consumption of alcohol was both causal to the father’s alleged violent behaviour towards the mother and indicative of a lack of parenting capacity on his behalf;
(c)a belief that the father is an alcoholic;
(d)a resentment arising from an apparent understatement of income to the child support agency;
(e)a concern as to the children having access to a motorbike without helmets and visiting their father’s work sites; and the
(f)the mother meeting Mr H.
The concern about the father’s consumption of alcohol appears to have grounded the mother’s application for liver function testing. The father has undertaken such testing in early 2024 and provided the results to the mother at least by his affidavit of 16 May 2024 to which the results were attached. On the face of the test, the result was within the “normal” range, but a note in the test results suggests that the result may not necessarily be conclusive.
The father has also given evidence that he has been drug tested for work and has not tested positive. This evidence is uncontested.
The parties by their outlines have a common approach to the question of alcohol consumption.
None of the matters raised by the mother other than the alleged hurting of X in mid-2024 taken separately or in combination would, in my view, and on an interim basis, lead to a displacement of what had then been the prevailing arrangement for the care of the children. It is not that the arrangements had been simply prevailing but, rather, that those arrangements would have served the children’s interest in enabling them to be cared for by each of their parents and their extended families and to have achieved all of their developmental goals and, in particular, that they were arrangements that were perceived to not place the children’s safety at an unacceptable risk. Neither do the complaints of the marking of the children’s clothes, or the sneaking, by the children, of items into the bags or the children’s remarks about the mother being a liar or mean indicate that.
The reporting of matters to the police and to DCP in mid-2024, either by the mother or by the City C Hospital, does place matters on a different footing given the requirements of either medical or welfare authorities or the police for interviews and assessment of the parties and children. It is to be borne in mind, however, that the requirement of these authorities or persons are not always to be decisive of whether a child’s relationship with parents or any other person is to be varied or, as appears to have occurred here, curtailed, but only a factor to be considered in determining how the child’s arrangements to live with or spend time or communicate with a parent might be altered, if at all.
It is not the case that it should follow that any type of report at any time will lead to a cessation of time and/or communication between a parent and a child. Much depends upon the type of matter reported and the circumstances which have given rise to the report, and the practicalities of how and when such interviews and assessments occur.
If it were to be assumed that the mother’s complaints about the father’s past conduct were true, the mother’s conduct in facilitating an equal time-about arrangement since at least December 2022, if not earlier, for the care of the children by each of their parents demonstrates a willingness and capacity on her behalf to leave the past behind for the benefit of the children spending time with each of their parents.
Pursuant to s 60CC(2)(a), the Court must have regard to that arrangement which would promote the safety of a child and those who would have the care of the child. Safety is not defined in the Act. It is often said that words in a statutory context are to be given their ordinary natural meaning.^[17] The Oxford English Dictionary[18] defines the noun “safety” as “[t]he state of being protected from or guarded against hurt or injury; freedom of danger”.
[17]Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 at [56].
[18]Definition of `safety, n.’. In M.Proffitt (Ed.), Oxford English Dictionary. Oxford University Press. >
The Court is drawn towards the view that ‘safety’ of a child and its carer means, in this context, protecting that child and carer against hurt or injury or danger, whether physical or psychological, arising from historic or ongoing acts or behaviours. It includes protection from fear. It is not the complete elimination of prospective hurt, injury or danger, but rather making such order as affords the child and its carer the most optimal protection from these harms or potential harms.
In contemplating the child’s safety, or by natural implication any risk of an unacceptable nature to that safety posed by a proposal, the Court is mandated to consider any history of family violence, abuse or neglect involving the child or a person caring for the child, together with any family violence order previously or currently in place.
The mother’s initial affidavit spoke of the mother being presently intimidated by the father and scared of him, but was able to participate in mediation with him on 17 January 2024 without complaint. There is no evidence in the mother’s first affidavit that satisfies me that the mother is presently controlled or coerced by the father. Rather, that affidavit indicates that the mother has not been so controlled or coerced since at least late 2022 following her meeting her friend, Mr H in mid-2022 on account of the confidence Mr H has given to her and her ability to go to police and report the father.
The father’s evidence in his first affidavit of 16 May 2024, and the mother’s affidavit of 28 June 2024 does not cause any other view to be adopted.
The mother’s evidence of an attendance at the children’s sports day in mid-2024, where she had three support persons with her, does not satisfy me that the father is likely to act to intimidate her.
The mother’s apprehensions are such that they did not, on that occasion, and do not appear to on future occasions, prevent the father from spending time with the children.
There is no question of the father’s safety being at risk.
The question to be considered is, if there is a risk that the children face, what is the source of that risk and if and how that risk might be appropriately addressed.
The mother deposes the risk being considered by her to be “small” when she permitted the children to spend time with their father in mid-2024 for about four hours at his parent’s home when she was not sure that the police would be pursuing the matter.

A similar view can be expressed as to the children being permitted to spend time with their father, again, at his parent’s home for tea in mid-2024 with the mother deposing that she was not certain that the police would be proceeding and the visit being short as the reason for her permitting what the mother appears to describe as a three-hour visit that day.
Why those types of assessments of risk were then made by the mother to permit time, yet time at a contact centre could not be agreed, permits the inference, which I draw, that the mother perceives risk as somehow relating to the presence of ongoing police investigations and suggests that the mother’s agreement to the father spending time with the children in mid-2024 and withholding since is somewhat strategic.
The mother deposing to a failure to provide the father with a precise reason for withholding the children by letter of mid-2024, because she did not want to give the father time to think up an excuse for what she understood he had done to X is inconsistent with her understanding that the father had known since mid-2024 that the police were involved with allegations of him hurting X.
In Carter & Wilson [2023] FedCFamC1A 9 at [71] Bennett J said:
Section 4AB of the Act is drafted in very wide terms in order to catch behaviour which is thought to be undesirable. In so doing, the section also catches behaviour which is both acceptable and necessary (for example, exerting control over child in the exercise of the parenting powers). Therefore, in practical terms and save for blatant acts of family violence, an evaluation of evidence to ascertain the context in which alleged behaviour took place may be a precondition to the Court characterising behaviour as family violence within the meaning of s 4AB. Contextualising the behaviour calls for findings of fact.
Respectfully, in my view, considerations of context are important in this matter.
The mother’s case is that, firstly, the bruising evident on X’s arm in mid-2024 should give rise to an inference that the father was violent towards her in grabbing her arm and pulling the arm backwards, giving her a headache when she had been angry walking to her sister. She then dropped down crying. Her father, at the time, was angry. It happened before school. She then complained to her grandmother, who put “Deep Heat” on her shoulder.
Secondly, the father was helping X get dressed and grabbed the back of X’s head so it hurt.
At the hospital, a soft tissue injury with bruising to the arm was said to be observed by the doctor examining X.
The place and who was present when this event occurred is not detailed in the affidavit. The doctor’s observations, if any on this topic, are not in evidence. The next afternoon at the police station, the mother says X told the photographer “what had happened, and also about other things like her father punching holes in walls and throwing things when he was angry.” This evidence does not assist in understanding what X said then about the place and who was present when her arm or shoulder was grabbed.
It is noted that the mother deposed in mid-2024 that she has observed the children “flinch away reflexively” if you reach towards them and they do not see you coming. This must have occurred in the mother’s presence for it to have been observed by her, and capable of being deposed to by her. Her description, such as it is in her affidavit, is also consistent with a child or children being taken by surprise by someone reaching towards them.
On the evidence produced to date, no such behaviour is deposed to have occurred in anyone else’s presence but, apparently, that of the mother. Behaviour on behalf of the children to the contrary was observed in mid-2024.
There is an Interim Intervention Order that has been in place since mid-2024, which, amongst other things, precludes the father from assaulting, threatening, harassing or intimidating the mother and the children and as noted above, provides an exception for giving effect to orders made under the Act.
That order was to come back before the Court on 18 July 2024.
The context of X allegedly becoming bruised and developing a headache appears to have arisen in the context of X entering the father’s bedroom whilst Y was present with her father, and he becoming upset or perturbed with some of X’s then conduct or behaviour. Whether the father’s then actions were proportionate in response to X’s then behaviour is a matter that is contested and, ultimately, absent any evidence from an examining doctor or police, is probably a matter for trial.
The affidavit material records various views expressed by the children to their parents and others. The mother has variously deposed that:
(a)the children are often resistant to going with their father;
(b)Y has said her father is always hurting them and is always angry;
(c)that the father explained to X that he did not mean to hurt her, and it was an accident;
(d)that their father says that the mother is lying and mean;
(e)that the children say that the father says certain things need to be brought back to his house;
(f)that X has a concern that the father is going to be jailed;
(g)that X has asked when she is going to see her father;
(h)X wants to change schools; and
(i)X did not mind if her father went to jail but wanted to see the paternal grandmother and aunt.
The father has deposed that:
(a)Y has been in tears about her father being told to “pull his head in” by another parent at Y’s school; and
(b)X told her father in mid-2024 after trying to take chocolates from the kitchen pantry and being told by the father not to and trying to hit him to the face and kick him and going to her grandmother’s bedroom, that her father was going to hurt her and he was going to get angry and looked scared, but later, sat next to her father with his arm around her.
The paternal grandmother has deposed that:
(a)in mid-2024, X, on coming out of the father’s bedroom, had said that her father hurt her arm and that her arm was sore;
(b)in mid-2024, X made remarks that nobody wants to make her happy, she was hopeless, and no good, and “it’s not fair”. The evidence does not enable me to find at this stage of the proceedings that these comments were X, at six years, ruminating on her life generally, or in relation to the performance of or during a card game;
(c)in mid-2024, X told her paternal grandmother she did not want the father to go to jail and that she would tell everyone that it was an accident later after being cuddled by her grandmother and that she wanted to see her father; and
(d)that Y has told X not to make remarks about being in Mr H’s truck, saying that her mother had said that their father would “kill” the maker of such statements.
Both children have referred to Mr H as “step-dad” despite him not having a membership of their household and where there appears to be no cultural impetus for such recognition being extended to him by the children. The mother’s evidence on this topic of the father’s explanation as to why Mr H may not be “step-dad” does adversely reflect upon the mother.
The views of the children in this matter have been affected by comments that the parents have made and the processes and persons that they have been introduced to as a result of decisions to have the children examined and photographed. I am mindful that the views expressed on some topics seem, at first glance, to go beyond the children’s years and other statements are reflective of the parents’ comments of their unfavourable perceptions about the other.
The views of the children, given their ages and their relatively recent attendances upon their father following the events so soon after the reports of the mother of mid-2024 do not cause me to consider that those views are of decisive or great weight. They do not persuade me that the father’s time with the children should have ceased in the manner or to the extent that it has.
The children’s ages and the history of their care by each of their parents and his extended family indicate that it should be reasonably anticipated that stability and predictability in the children’s lives was and is of paramount importance. Recent decisions as to the children’s pattern of care have not been consistent with that need.
The evidence does not satisfy me that the pattern of care which was serving those needs should have been disrupted to the extent that it has occurred.
The parties’ now poor relationship and communication has been undermined by mistrust as to the mother’s motivation for the present applications seeking to limit the father’s time and/or inability to have conducted oneself properly in the past and in respect of the children presently.
The capacity of the parent to ensure the safety of a child is a further consideration under s 60CC(2)(d) of the Act requiring, as it does, consideration of the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs.
Each of the parents have recently had a history of looking after the children and participated in their care and their schooling. The mother invites the Court to consider historical matters. The father has appropriately acknowledged that during the relationship, the mother has fulfilled a primary caring role whilst he attended to parenting duties when work permitted. However, this acknowledgment does not take the mother’s case further, as the more recent week-about arrangements have been on foot for a significant period over the children’s development, and there is no evidence that the children’s general development is lacking despite the mother’s concerns about X’s English grade, which may be reflective of any number of matters.
Section 61CA of the Act encourages the parents of a child, where it is safe to do so, to consult each other about major long-term issues in relation to a child and, in doing so, to have regard to the best interests of the child as the paramount consideration. Should a parenting order deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child, then provision can be made for joint or sole decision-making in relation to all or specified major long-term issues. [19] Any encouragement of consultation is rendered obligatory upon the making of a joint parental responsibility order, requiring each person to consult each other in relation to such a decision and to make a genuine effort to come to a joint decision.[20]
[19]Family Law Act 1975 (Cth) s 61D(3).
[20]Family Law Act 1975 (Cth) s 61DAA.
Here, there are competing applications for parental responsibility. The matters raised by the mother indicate that any exercise of parental responsibility at this stage could be exercised in relation to a change in schooling for the children. I do not consider that it is in the children’s best interests that there should be an order for sole parental responsibility in favour of either parent and pending further consideration of matters, that parental responsibility be joint, requiring the parties to consult and make a genuine effort to come to joint decisions.
In this matter, I also intend to appoint an Independent Children’s Lawyer, given that there have been serious allegations made by each party as to the conduct of the other party that may well have profound implication for the children’s ongoing relationship with each of them and the presence of serious allegations of abuse.[21]
[21]Re K (1994) FLC 92-461; [1994] FamCA 21.
The Independent Children’s Lawyer may be able to make further and more detailed inquiries of the parties and/or police, the DCP, the children’s school, treating doctors, the father’s psychologist, the mother’s medical practitioners, the hospital at which the mother gave birth to her youngest child, the child support agency and the husband’s employer for records might bear upon the factual matters the parties have now brought before the Court, particularly if the parties are unwilling to do so on their own behalf. Amongst those matters, early access to the photographs and any expert interpretation of them may be of assistance to the parties.
Orders causing the parties to cooperate with the Independent Children’s Lawyer in that regard shall be made.
The parties and the Independent Children’s Lawyer should confer as to the likely length of a trial and the identity of witnesses to be called at such a trial. In this matter, such information would assist the Court in a search for trial dates at a future trial management hearing.
A Family Assessment Report should be prepared in this matter. The Report Writer should be given access to the affidavit material filed to date by each of the parties and these reasons and Exhibits 1 and 2.
POLICE INVESTIGATIONS
The prospect of investigations by the police and/or investigation by the DCP are but a factor to be taken into account in determining interim arrangements.
X is already aware of the involvement of police and of the prospect of her father going to jail. I would infer that Y is likely to be similarly aware.
The father is aware of the prospect of police involvement in relation to the alleged incident of mid-2024, having learned of it through his mother after she was told of such matters in mid-2024.
The Full Court in Re K (1994) FLC 92-461; [1994] FamCA 21 has said:
The exercise by a party of his or her right to silence or privilege against self‑incrimination in civil proceedings is a matter of decision by that party. Its exercise should not ordinarily determine whether the proceedings in this court should continue. It would not unusually be to the welfare of a child for dispute of proceedings about guardianship, custody or access to be delayed for a significant period of time because that person chooses to exercise that right or privilege. [22]
[22]Re K (1994) FLC 92-461; [1994] FamCA 21 at 80,765.
The Full Court in Langley & Tarelli and Anor (No.2) [2020] FamCAFC 126, agreeing with a proposition in Re K, stated that:
Delayed family law proceedings in relation to welfare of children for a significant period of time to await the conclusion of criminal proceedings involving the parties would be discouraging for the victims of crime, including family violence.
The Full Court further added that to delay family law proceedings would have the effect of the welfare of children, the object of family law proceedings “to be held hostage to criminal processes.”
In accordance with the principle in Langley & Tarelli and Anor (No.2) and Re K, any delay in the present parenting proceedings before this Court to allow for the conclusion of any criminal proceedings, including criminal processes or DCP processes would not be in the best interests of the children.
ORDERS TO BE MADE
Any orders made should operate until further or other orders, or as further or other evidence may become available to the parties or the Independent Children’s Lawyer.
Parental responsibility should be equal and shared. Although the mother is of the view there should be a change in schooling and has set out the reasons for that, I am not satisfied, without more, that such a change in schooling should be, at this time, authorised or facilitated by an order for sole parental responsibility in favour of the mother.
In all the circumstances, I am satisfied, in the context of this matter, that the father’s reintroduction of time should be graduated. I am not persuaded that there should simply be a return to the status quo. For the children to spend time with their father, it should initially be supervised through a contact centre and, otherwise, to ensure the children are not exposed to any harm and to ensure that matters that would otherwise concern behaviours that are the subject of these proceedings are not being discussed.
There is evidence that the children have been making remarks that might be regarded, in time, to be attributable to remarks by one or other of the parties or persons who frequent their households, or others who have discussed their parents’ observed or supposed behaviour. That should be precluded as far as practicable.
The existing intervention order having been made on what appears to be an ex parte and interim basis provides for an exception to its stipulations for the purposes and procedures that are now to take effect in this Court under the Act. It is otherwise anticipated that the parties will otherwise be giving effect to the orders made in the Magistrates Court of South Australia.
There is little evidence as to the children’s general routine, including any evidence of participation in extra-curricular activities.
The parties have both attended sports day events at the same time but such attendance has been fraught with tension, at least on the mother’s behalf. However, it is her evidence that she continued to attend. It is noted that each party, by their first set of interim orders, sought that they each be able to attend school events, such as interviews and sports days, but with the difference that the mother sought that such attendance be the subject of any intervention order. The terms of the intervention order would not make the parties attending the same event practicable. Each party should, where separate attendances are not possible, attend upon written notice to the other and remain, at least, five (5) metres apart.
Extra-curricular activities not related to school or childcare should, unless the parties otherwise agree in writing, be attended only by that parent in whose time the event occurs.
Handovers in more recent times have taken place between the mother and a member of the father’s family.
The parties differ as to where handovers, other than school, should take place by reference to two different venues, which appear by reference to maps, to be some two minutes driving time apart, with the further of them being six minutes’ drive, or thereabouts, from Y’s childcare centre. I conclude that a non-restaurant/eatery environment would be least distracting for the parties and the children, and would select D Venue, City C, as the venue for the handover should the parties not be able to agree otherwise.
At this stage of the proceedings, orders providing for travel interstate and/or overseas shall not be granted, nor orders attendant upon such travel. There is no evidence of weight that suggests such travel is imminent, let alone desirable or necessary.
The mother’s application for liver testing is no longer necessary with the father having completed the same.
I have already indicated that the Independent Children’s Lawyer should be authorised by the parties to make inquiries to ascertain the children’s development and their welfare.
The parties should confer with the Independent Children’s Lawyer for subpoenas, if any, that are to issue in this matter so as to avoid any implication.
Finally, I note the parties have in common that they are seeking certain injunctive relief. In all the circumstances, orders will be made in those terms.
Absent any further interim applications, the Court will hear from the parties on 19 November 2024 in respect of the listing of this matter for trial in 2025.
For the reasons set out above there shall be orders in the terms as set out at the beginning of these reasons.

I certify that the preceding one hundred and forty (140) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn.
Associate:
Dated: 22 October 2024

File number(s):	ADC 1449 of 2024
Judgment of:	JUDGE MCGINN
Date of judgment:	20 August 2024
Catchwords:	FAMILY LAW – CHILDREN – Interim parenting orders sought – Department for Child Protection and South Australia Police reports made by the mother – mother has made historical allegations of sexual abuse against father – allegations of father hurting the child physically – ongoing investigations by South Australia Police – Independent Children’s Lawyer appointed - ex tempore reasons delivered – orders made
Legislation:	Family Law Act 1975 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:	Baghti & Baghti and Ors [2015] FamCAFC 71 Carter & Wilson [2023] FedCFamC1A 9 Franklin & Franklin [2019] FamCAFC 256 Langley & Tarelli and Anor (No.2) [2020] FamCAFC 126 Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 Re K (1994) FLC 92-461; [1994] FamCA 21 U v U (2002) 211 CLR 238
Division:	Division 2 Family Law
Number of paragraphs:	140
Date of hearing:	20 August 2024
Place:	Adelaide
Solicitor for the Applicant:	Ms Annells of Annells Lawyers
Solicitor for the Respondent:	Ms Cunningham of Brite Legal

ADC 1449 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS MARCHANT Applicant
AND:	MR BETHUNE Respondent

ORDER MADE BY:	JUDGE MCGINN
DATE OF ORDER:	20 AUGUST 2024