Mr C Venter & Ms BA Venter (No 2)
[2025] FedCFamC1F 79
•14 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mr C Venter & Ms BA Venter (No 2) [2025] FedCFamC1F 79
File number(s): BRC 15241 of 2024 Judgment of: BAUMANN J Date of judgment: 14 February 2025 Catchwords: FAMILY LAW – REVIEW OF SENIOR JUDICIAL REGISTRAR’S DECISION – Interim parenting orders made for the child to spend unsupervised time with the father Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 34 Date of hearing: 28 January 2025 Place heard: Brisbane Place delivered: Brisbane Counsel for the Applicant: Mr R Leneham Solicitor for the Applicant: York Law Family Law Specialists Counsel for the Respondent: Ms H Dellidis SC Solicitor for the Respondent: M and K Lawyers Group Pty Ltd Solicitor for the Independent Children's Lawyer: Grant Legal And Mediation ORDERS
BRC 15241 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR C VENTER
Applicant
AND: MS BA VENTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
14 FEBRUARY 2025
AMENDED 17 FEBRUARY 2025THE COURT ORDERS UNTIL FURTHER ORDER:
1.That Orders 2 and 32 of the Order dated 24 December 2024 be discharged.
2.That Orders 1,
and3 to 3132inclusive and 33 of the Order dated 24 December 2024 remain in full force and effect.
Time with arrangements
3.That the children, BB born 2014, BH born 2016, BJ born 2018 and BK born 2020 (collectively “the children”) shall spend time with the father:
(a)commencing on Tuesday, 18 February 2025 and each Tuesday thereafter, from after school or 3.00pm on a non-school day until before school or 9.00am on a non-school day on Wednesday; and
(b)commencing on Saturday, 22 February 2025, from 9.00am on Saturday until 4.00pm on Sunday, and each alternate week thereafter.
4.That unless otherwise agreed between the parents in writing, changeover shall occur at the children’s school/s on school days.
5.That unless otherwise agreed between the parents in writing, changeovers that do not occur at school shall occur at a public location agreed by the parents and failing agreement at BC Family Services Centre (“the Centre”), with the father to pay the cost of the Centre for changeover.
Other orders
6.That this application be consolidated with the financial application (file number BRC5254/2024).
7.That these proceedings be adjourned for Case Management Hearing before the Honourable Justice Jarrett at 9.30am on 17 February 2025 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
8.That otherwise, the father’s Review Application filed 14 January 2025 be dismissed.
IT IS NOTED:
A.That these Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to reflect the intention of the Court.
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
BAUMANN J
The father, Mr C Venter (“the father”) and the mother Ms BA Venter (“the mother”), having commenced cohabitation in 2011, separated on 20 October 2023.
The couple were blessed with four children:
(a)BB – born 2014 (now 10 years old);
(b)BH – born 2016 (nearly nine years old);
(c)BJ – born 2018 (now six years old); and
(d)BK – born 2020 (now four years old).
Although shortly after separation the mother commenced financial proceedings only on 22 April 2024 (which were transferred to Division 1 on 23 April 2024 as a Major Complex Financial Proceeding (“MCFP”) matter), parenting proceedings were not initiated until the father filed an Application on 6 November 2024, seeking inter alia an equal time order. The parenting proceedings were transferred by a Senior Judicial Registrar to Division 1 on 3 December 2024, with the mother filing a Response on 11 December 2024.
After making an Order on 12 December 2024 for the parties to procure a family report from Dr BD, noting interviews had been arranged for 10 March 2025, Senior Judicial Registrar Best reserved her decision on the competing interim parenting applications. The Senior Judicial Registrar published her Reasons for Orders pronounced on 24 December 2024, including expanding the Order for the family report made on 12 December 2024, in particular (at paragraph 16) with a requirement that the father was to bear the cost of the family report at first instance.
The Orders of the Senior Judicial Registrar essentially provided for:
(a)the four children to live with the mother;
(b)the children to spend time with the father supervised by a Family Contact Service for a period up to three hours a week, with the father to meet the costs of supervision and, importantly, with the father entitled to engage the children “with up to two paternal family members, no more regularly than once every two (2) visits”;
(c)facetime calls between the children and the father each Monday and Thursday;
(d)by consent, the parents to attend and complete a Post Separation Parenting Orders program and a Circle of Security program; and
(e)the appointment of an Independent Children’s Lawyer.
On 14 January 2025, the father filed a Review Application, which was listed and heard before me on 28 January 2025 – with Mr Leneham of Counsel appearing for the father and Ms Dellidis of Senior Counsel appearing (by video link) for the mother.
The review hearing is a hearing de novo, and the submissions made were consistent with the obligation to consider the competing proposals afresh. In that regard, although both the father and mother relied upon the affidavits placed before the Senior Judicial Registrar, and identified by the father in his outline of case document filed 11 December 2024, and the mother in her outline of case document filed 12 December 2024, no additional affidavits were filed.
I marked the following documents as Exhibits before me, and they have also been considered:
(a)Exhibit 1 – BC Family Services Supervision notes for the visits between the father and the children on 12 January 2025; 19 January 2025 and 26 January 2025 (noting his parents were present for one visit);
(b)Exhibit 2 – part of the mother’s tender bundle produced to the Senior Judicial Registrar (but no longer relying on documents from the children’s school, as the issue no longer requires determination); and
(c)Exhibit 3 – a fresh tender bundle from the mother. Although the father’s Counsel objected to some parts of this Exhibit, for reasons delivered orally, I permitted reliance.
THE FATHER’S REVIEW APPLICATION
The father detailed the orders he sought to review as:
(a)Order 2 – for supervised time;
(b)Order 14 – for the parents to communicate by Our Family Wizard;
(c)Order 15 – the specific appointment of Dr BD as family report writer; and
(d)Order 16 – the father being solely responsible for the payment for the family report.
It is important to observe that the Orders for the children to live with the mother (Order 1); the restraints (Order 3); the telephone communication Order (Order 4) and various specific Orders (Orders 6 – 13) are not subject of review by either parent.
PRINCIPLES TO BE APPLIED
The statutory pathway is established by the Family Law Act 1975 (Cth) (“the Act”), and in summary relevantly provides as follows.
Section 60CC provides that when determining a child’s best interests, certain things must be considered:
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a)consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
The general considerations contained in s 60CC(2) prescribe that, for the purposes of the best interests consideration, the Court must consider the following matters:
(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 care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)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 ;
(e)the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
The additional consideration, which has a heading of the right to enjoy Aboriginal or Torres Strait Islander culture is subsection, is not applicable to the parties in these proceedings.
As the advocates before me acknowledged, at any interim determination stage in parenting matters, the Court is required to be cautious in making findings on disputed facts before all the evidence has been properly tested. However, even though an interim hearing is very much a truncated hearing, and where relationships between children and their parents require ongoing consideration in the litigation journey as more evidence becomes available, it is always a balancing exercise to weigh, as in this case, asserted risks against the father (which he generally denies or contests) against the rights of the children to maintain a safe relationship with their parents.
As to the submissions about the substantive interim parenting dispute (should the children’s time with their father be supervised), I make the following observations:
(a)All of the evidence points to a highly conflicted parental relationship certainly leading to separation, but it seems increasingly so since separation;
(b)Whilst the full extent of the parties’ financial circumstances is not clear to me, the assignment of the matter to the MCFP list strongly suggests considerable family wealth. Counsel for the mother pointed to the Costs Notice filed by the father to the effect that the father has incurred legal costs exceeding $300,000 already;
(c)I have a concern that the children’s best interests are not easily distinguished by the parents from the clearly adverse impact arising from the breakdown of the parties’ marriage and the ongoing financial connection – including financial issues of immediate concern to the mother about child support (the current liability is around $350 per week payable by the father) and spouse maintenance. Some of these issues will be further considered, at some stage, by Jarrett J who is seized of the property/financial matters, next before him on 17 February 2025. Using the children as “weapons” in this conflict – and there is a hint of that in the material already – is clearly contrary to the children’s best interests;
(d)It is not in dispute that between separation in October 2023 and January 2024, the parents arranged for the children to spend unsupervised time with the father and remain in the family home living with the mother;
(e)The mother in early 2024 applied for a protection order (naming herself and the children as aggrieved persons) and negotiated a parenting plan on 30 January 2024. The terms of the parenting plan (see “MCV-05” of the father’s affidavit sworn 22 October 2024) provided for the children to live with the mother and spend time with the father each Tuesday (4.00pm to 7.30pm) and from 10.30am Saturday to 5.30pm Sunday, which was to expand from 23 February 2024 to 5.30pm Friday to 5.30pm Sunday;
(f)It was surprising in some ways that this parenting plan was entered into effectively in not only the shadow of the mother’s protection order application but particularly the actions of the father which the mother deposes occurred and affected her, after the father became aware of domestic violence proceedings. The father says the mother reneged on expanding the time as provided in clause 7 of the parenting plan, but that otherwise the time continued with one overnight each weekend and one afternoon a week until 2 July 2024. The mother says otherwise, alleging the father regularly cancelled visits. This is not an issue I can resolve on an interim basis, although both parents agree all time ceased on 2 July 2024;
(g)The mother, at paragraphs 78 to 101 of her affidavit, deposes to events, many disputed by the father (or at least the reasons for some events), from January 2024 to July 2024, including:
(i)the father’s resignation in early 2024 as a director of a number of entities;
(ii)the children expressing to the mother that they were “scared of getting into trouble” from the father;
(iii)when the mother refused to vacate the family home at Town AD a corporate entity gave the mother a notice “terminating the lease” in early 2024;
(iv)allegations by the children that the paternal grandfather was saying things that scared them;
(v)steps taken by the father’s family to enter the Town AD home and allegedly “removing […] and valuables from our safe without” her knowledge and/or consent;
(vi)being “cut-off” from funds by the father necessitating the mother’s urgent financial application and, I infer, causing the mother to decide to leave the Town AD home with the children in early 2024 and temporarily moving in with her parents; and
(vii)at paragraph 99, the mother says when the children returned to her after a visit with the father on 2 July 2024 “they were incredibly distraught” and that (as detailed in that paragraph) the children alleged they had been interrogated by the paternal grandfather who made derogatory comments about her. The girls alleged that BH is the father’s favourite and they expressed concern.
(h)The cessation of time occurred some two weeks before the hearing in respect of the mother’s protection order application. It is not in dispute that the father elected not to contact the mother or the children after 2 July 2024, although his reasons for doing so are disputed (see the father’s affidavit paragraph 33 to 34).
(i)The Magistrate in late 2024, for reasons published (see “MCV-04”), found that the father had not committed any acts of family violence to date; was not satisfied that there is a real risk that the father will commit any acts of domestic violence in the future and therefore was not satisfied that a domestic violence order was necessary. The Magistrate accordingly dismissed the mother’s application. The Magistrate said inter alia:
I accept the evidence of the Respondent, that the Applicant has used the temporary protection order inappropriately and made false complaints to Police when he has committed no criminal offences. I note, in that regard, that the Applicant has been to the Police Station on multiple occasions, including with their children, to allege breaching of the temporary protection order. I take into account that the Applicant brought this application at a time when she did not want to be evicted from the [Town AD] property, and in her words “did not want to commence costly parenting proceedings in the Family Court”. Considering the propensity of the aggrieved to exaggerate and give false evidence, I find that an order would be undesirable as it would put the Respondent at risk of false complaints of breaches of the order. There is also a real possibility that the applicant would use an order with the strict conditions that she seeks – conditions which I have found to have no appropriate basis – to prevent the respondent from spending time with the children, and also to influence property and parenting proceedings in the future.
(As per the original)
I will discuss to what extent, on an interim basis, these findings by another judicial officer (who had conducted a trial) can assist this Court now. It is this Court’s function to determine whether the risks identified by the mother in her material and other documents raise a risk that compels the Court cautiously to impose supervision of the children’s time with their father, as she seeks.
(j)At paragraphs 106 to 113 of the mother’s affidavit, she deposes to some reactions and/or comments of the children during September 2024. It is clear, at that time, the children were exhibiting some behaviours that suggest, at least, an awareness of the ongoing parenting conflict; and
(k)The decision of the Senior Judicial Registrar made on 24 December 2024 meant supervised time has commenced. The notes from the supervisor (Exhibit 1) observed positive and warm interactions between the father, which included a visit for a recreational activity; interactions with the paternal family on the second visit; and a visit to the father’s apartment which included swimming in his pool. The supervisor, in her notes of the visit on 26 January 2025, recorded that at the end of the visit the children “didn’t want to leave”.
COMPETING PROPOSALS FOR THIS INTERIM HEARING
The mother essentially seeks that the father’s Review Application be dismissed – the effect of which is that the current interim Orders made 24 December 2024 would remain in place until further order.
Whether such Orders will remain in place after a further interim consideration, if so conducted when a family report is published, is a matter I can comfortably leave to the determination of Jarrett J – as the financial proceedings and these parenting proceedings (now both being in Division 1) should be consolidated and will be before him on 17 February 2025.
The father seeks, in his Review Application, for time to occur unsupervised as follows:
2.That the children spend time with the Father as follows:
(a) During school term on a fortnightly basis as follows:
(i)In week one from after school each Tuesday until before school on Wednesday;
(ii)In week two from Thursday after school until before school on Monday
(b)That notwithstanding any provision in these orders to the contrary, for one half of each school holiday period, with the first half in odd numbered years and the second half in even numbered years.
3.That for the purposes of changeover, the following will apply unless otherwise agreed between the parties in writing:
(a)when time commences on a school day, the party with whom the children are living or their nominee will collect the children either from school, or from the [BE Hotel, BF Street, Suburb BG], Queensland (the [BE Hotel]) at the commencement of the children’s time with them if the child(ren) did not attend school on that day (such non-attendance at school to be communicated to the other party not less than 4 hours prior to the handover time); and
(b)when time commences during school holidays and on days other than at the commencement of school, the party with whom the children are living with (or their nominee) will deliver the children to the [BE Hotel].
That in the alternative, changeovers on a non-school day take place at the [BC Family Services] Centre, with both parents to be responsible for half of the cost of such service.
(As per the original)
CONSIDERATION OF THE RISK THE FATHER POSES TO THE CHILDREN
Senior Counsel for the mother, in strongly advocating for supervision to continue, referred to the manner in which the mother says the father has treated the mother, including, it is asserted, causing her to be removed from the family home and ceasing any reasonable financial support that would allow the mother and the children to maintain a reasonable standard of living. She submits the father’s behaviour demonstrates either a lack of insight into the adverse effect on the mother and therefore the children, or worse behaviour designed to coerce and control.
Properly contended, the mother’s Counsel says that the wider definition of family violence under the Act and the father’s actions (he says not undertaken by him, but by his family) to withdraw financial support amounts to family violence.
I do take into account, despite the inability to make findings, that the father has not made it easy for the mother (and children) whilst where he lives and how his lifestyle continues, reflects a level of opulence – supported by his extended family.
I can understand the mother feeling under enormous pressure having to make significant adjustments to her living arrangements – although it seems, at least, the continued attendance of the children at their current private schools will be maintained for a while.
I have reached a conclusion that it is in the best interests of the children that they have time with their father but that it not, on an interim basis, be as extensive as he seeks in his application. I have also assessed that the behaviour of the father as set out above (at times it seems supported by his extended family) does not place the children at such a risk that their time with the father should be supervised. In particular, I take into account that:
(a)the parents negotiated time arrangements, without apparent difficulties being experienced by the children from separation to around July 2024 and this unsupervised time included on period of block holiday time;
(b)even with the overhanging family violence proceedings, the parents entered into a parenting plan for unsupervised time which was complied with until it was meant to increase on 23 February 2024;
(c)the basis for the mother electing to cease time in July 2024 appears to be more a reaction to the growing conflict; her financial difficulties and the pending hotly contested family violence hearing. I accept that it is likely, as the father deposes, that he had some concerns about how the mother was using the temporary protection order to expose him to possible allegations of breach. Having said that, I accept, as the mother’s Counsel submitted, that a number of the father’s text messages to the mother were unacceptable and capable of causing her emotional distress;
(d)the decision of the Magistrate was a pivotal event. Whilst the Court is able, relying on s 69ZX(3) of the Act to “adopt” findings of another judicial officer, on an interim basis where none of the evidence before this Court has been tested, I am not prepared to wholly adopt the findings. What credit findings might ultimately be made in these proceedings are best made by a Judge who hears all the evidence. However, as Mr Leneham submitted, the Court cannot ignore completely the findings of the Magistrate. Even allowing for the difference in the statutory test in the State legislation compared to s 4AB of the Act, for a judicial officer to find after a trial that no family violence had occurred, is a very strong observation; and
(e)the mother’s case is that the children will be exposed to risk of emotional and psychological harm. She does not assert they are at risk of physical harm, neglect or sexual abuse. I do not minimise the long term effect on the children if they are embroiled in the parental conflict (and also where it involves the extended paternal family), but the observations of the three visits which fortunately were able to take place out of the confines of a usual contact centre environment, are of children very happy to engage and interact with the father. Of course, it is to be expected that when being observed, the father (and when present, the paternal grandfather) did not make any hurtful comments about the mother. Restraint imposed by the Orders of the Senior Judicial Registrar will, of course, continue. However, the past allegations of derogatory remarks can be explored by Dr BD in interviews on 10 March 2025, and more data in that respect might be available to the Court.
CONCLUSION
I find it is in the best interests of the four children to have regular time with the father, but without the need for supervision.
I take into account that there has been a significant disruption to the children’s relationship with their father – particularly since July 2024. It is not about “making up for lost time” – but rather creating a platform for an ongoing safe, consistent and stable relationship with the father – from the security of what the children have known to be the case since separation, namely living primarily with the mother.
As the school holidays will not commence until April 2025 – and with a family report being prepared to provide further guidance to the parents (and the Court), I am not prepared at this stage to order school holiday time – although, of course, the parents could seek to reach some agreement in that regard on an interim basis.
Noting that some significant orders made by the Senior Judicial Registrar will continue until further order, I will order that the children’s time will no longer be supervised other than this weekend’s planned arrangements, and the Orders as set out at the commencement of these Reasons apply, namely:
(a)commencing Tuesday, 18 February 2025 and each Tuesday thereafter, from after school until before school Wednesday;
(b)commencing 9.00am Saturday, 22 February to 4.00pm Sunday, 23 February 2025 and each alternate weekend; and
(c)unless otherwise agreed, changeovers that do not occur at school shall occur at a public location agreed by the parents and failing agreement at BC Family Services Centre, with the father to pay the cost of the Centre for changeover.
The Court did not receive any submissions from the mother as to a changeover location, noting of course that she sought continuation of the supervised visits. In absence of any protection orders, there is no legal impediment that prevents the children moving from one parent to another at a public location (for example a McDonalds Restaurant at a location between where the mother and father live). Although I do not see the need, on the current evidence, to use the BC Family Services location for changeovers, it is important that the unsupervised visits occur immediately, and in the absence of agreement, and as the BC Family Services location was identified in the Review Application as an alternative, I will so order as an alternative.
OTHER ISSUES
The father challenges the appointment of Dr BD to prepare the family report and the order that he pay the costs, at first instance.
Counsel offered other possible report writers, and as I understand his submissions, no objection to Dr BD’s qualifications are raised (nor could they be raised) but rather the father says options like the three names he cited are either less expensive and might result, if interviews are arranged, in a report being published more quickly.
With the father no longer having to pay for supervised visits, I am of the view that the dates already offered (and accepted) for Dr BD should be maintained. The differential in cost is not determinative. I say so in circumstances where, no doubt where financial issues on an interim basis are to be determined, the father will be able to include details of any costs incurred in meeting the orders made for the children in any wider consideration.
Similarly, I find it is in the best interests of these children that a platform for communication such as was ordered by the Senior Judicial Registrar be used. I do not propose to make an order, again based on a cost saving of $300 per annum, that these parents communicate by text message or WhatsApp, as the father seeks.
Otherwise, the Orders of the Senior Judicial Registrar made 24 December 2024 remain in full force and effect, pending further order.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 14 February 2025
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