Ross (a pseudonym) v The Secretary to the Department of Families Fairness & Housing

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2025 01579

ROSS (a pseudonym)	Appellant
v
THE SECRETARY TO THE DEPARTMENT OF FAMILIES FAIRNESS & HOUSING AND OTHERS (according to the attached Schedule)	First respondent

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JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2025
DATE OF JUDGMENT:	2 April 2025 (oral ex tempore); 15 April 2025 (revised); 30 April 2025 (revised)
CASE MAY BE CITED AS:	Ross (a pseudonym) v The Secretary to the Department of Families Fairness & Housing
MEDIUM NEUTRAL CITATION:	[2025] VSC 195

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APPEAL — Children’s Court of Victoria — Interim accommodation order — Nature of appeal — Appellate intervention under s 271 where Court thinks that Children’s Court ought to have made a different order — Evaluation of risks of harm and consideration of other relevant circumstances having regard to best interests of the children — One of the conditions in each of the current orders of Children’s Court was inconsistent with the current arrangements for the care of the children — The current orders were made without regard to recent probative evidence of a senior psychologist — The father presented no risk to one of the children of the family and he had sole parental responsibility pursuant to orders of the Federal Circuit and Family Court of Australia — Decision-making principles — Risks of psychological harm to children — Wishes of children — Relationship with parents — Placement with siblings — Children, Youth and Families Act 2005, ss 8, 10, 263(7), 271.

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APPEARANCES:	Counsel	Solicitors
For the First Appellant	Ms B Proud	Myers Family Lawyers
For the First Respondent	Ms J Davidson	Department of Families, Fairness and Housing
For the Second Respondent	Self-represented litigant
For the Third and Fourth Respondents	Ms G van Niekerk	Van Niekerk Legal
For the Fifth Respondent	Ms N Battiato	Battiato Solicitors

TABLE OF CONTENTS

Summary.............................................................................................................................................. 1

Factual context.................................................................................................................................... 1

Applicable law.................................................................................................................................... 3

Consideration of the evidence and submissions......................................................................... 7

Overview........................................................................................................................................ 7
Family Court reasons for judgment July 2021.......................................................................... 8
Family Court judgment February 2024.................................................................................... 10
Reports to the Department........................................................................................................ 14
The current applications to the Children’s Court.................................................................. 16
The CCC report........................................................................................................................... 17
Recent hearings in the Children’s Court proceedings........................................................... 23
The interim accommodation orders as extended and varied on 12 March 2025............... 26
Current arrangements and the foreseeable future................................................................. 27
Submissions by the parties........................................................................................................ 28
Analysis and conclusions........................................................................................................... 31

Orders................................................................................................................................................. 36

HIS HONOUR:

Where the Children’s Court has made an interim accommodation order in respect of a child under the Children, Youth and Families Act 2005 (the Act), a parent may appeal to this Court under s 271 of the Act.[1] An appeal must be heard forthwith or otherwise at such time and in such manner as a Judge of this Court directs.[2] Such an appeal turns on whether this Court thinks that a different order ought to have been made.
[1]Act s 271(1)(b).
[2]Supreme Court (General Civil Procedure Rules) 2015 r 58.20(2).

Summary

This appeal was heard by me as the Judge sitting in Practice Court on 31 March 2025. This is a revised version of the oral reasons I gave when determining the matter on 2 April 2025.

I decided that the Children’s Court’s most recent interim accommodation orders do not accurately reflect current arrangements and the most recent probative material available to the Children’s Court, and are not in the best interests of the children in certain respects. I decided that different orders ought to have been made by the Children’s Court.

I decided to make orders that more accurately facilitate the continuation of the arrangements that are currently in practical effect for the care of the children, to place Child 3 in the father’s care with respite on alternative weeks at the home of his current carers — where his mother and sisters also live, and to add certain further safeguards proposed by the Secretary.

Factual context

The father and mother were in a relationship from about 2008 and they separated in early 2019.

There are three children of the relationship, Child 1 — a girl who was eight at the time her parents separated and is now 14, Child 2 — a girl who was seven at the time and is now 12, and Child 3 — a boy who was four at the time and is now 10.

After the separation, for about a year, the children spent roughly an even time in the care of each parent, and then with the advent of the COVID-19 pandemic this arrangement broke down.

For much of 2020, the children were mostly in the care of the father. From December 2020 to May 2021 the father had no access to the children, after they were unilaterally removed by the mother. He commenced a proceeding in the Federal Circuit Court, which continued as a proceeding in the Federal Circuit and Family Court - Division 2 Family Law (Family Court).

In July 2021, the Family Court made interim orders placing the children in the father’s care with the mother having limited access. The reasons of the Family Court in July 2021 are in evidence.[3] I address them in some detail later in these reasons.
[3]They are published under pseudonyms as Ness & Firmin [2021] FCCA 1669 (Judge O’Shannessy).

The mother failed to return the children after a contact in September 2021 and the Court made a recovery order and suspended her contact. This remained the situation until the final orders of the Family Court in early 2024.

Telephone contact occurred during this period, September 2021 to September 2022, but then the father ceased facilitating this after the mother was heard and recorded speaking negatively of him to two of the children.

In February 2024, the Family Court ordered that the father have sole parental responsibility for the three children, that they live with the father, that they spend no time with the mother, that the mother be restrained from approaching or contacting the father or the children subject to limited cards and letters. The reasons for judgment for these final orders are in evidence before me.[4] I address them in detail later in these reasons.
[4]They are published under the same pseudonyms as Ness & Firmin (No 2) [2024] FedCFamC2F 191 (Judge O’Shannessy).

About seven months after the Family Court’s final orders in February 2024, on 10 September 2024, there was a protective intervention by the Department of Families, Fairness and Housing, leading to: the removal of the children from the father’s care, the current protection application proceedings in the Children’s Court, the interim accommodation orders relating to the children, and this appeal from those orders.

The events following the Family Court’s final orders in February 2024 and evidentiary materials in that period are addressed in more detail later in this reasons.

Interim accommodation orders for the children were first made by the Children’s Court of Victoria on 11 September 2024. The operative forms of the interim accommodation orders before me on the appeal were the orders as varied and extended on 12 March 2025.

Applicable law

This is an appeal under s 271 of the Act from those interim accommodation orders in respect of each child.

Section 271(2) of the Act requires me to consider whether a different interim accommodation order should have been made for each child, and if so, to set aside the order appealed from and make any other order that I think should have been made.[5] Before turning to those questions, it is necessary for me to note the applicable law in more detail.
[5]Act s 271(2)(a).

The statutory context in which the Children’s Court is called upon to make an interim accommodation order is important. I explained that context in the case of Weiren,[6] and I adopt that explanation again here without repeating it all. Suffice it to note, with particular significance to the arguments concerning the position of Child 3 in this case, that an interim accommodation order may provide for a number of accommodation options, including ‘the release of the child into the care of his or her parent pending the hearing, or the resumption of the hearing’,[7] and that s 263(7) of the Act provides that ‘[a]n interim accommodation order may include any conditions that the Court … considers should be included in the best interests of the child’.
[6]Weiren v Secretary to the Department of Families Fairness and Housing [2023] VSC 553, [22]–[36] (‘Weiren’); also citing Purcell v RM [2004] VSC 14, [25], [31]–[32] (Gillard J); Secretary to the Department of Families, Fairness and Housing v AM (a pseudonym) [2023] VSC 291 (Ginnane J).
[7]Act s 263(1)(b).

The requirement to be guided by the best interests of the child is not limited to the conditions of an interim accommodation order. The Children’s Court and — by logical extension and necessary implication — this Court on an appeal under s 271, must ‘have regard to the principles set out in [pt 1.2] (where relevant) in making any decision or taking any action under this Act’, and this includes the ‘best interests principles’ in s 10. Section 10(1) and (2) provide:

(1) For the purposes of this Act the best interests of the child must always be paramount.
(2) When determining whether a decision or action is in the best interests of the child, the need to protect the child from harm, to protect his or her rights and to promote his or her development (taking into account his or her age and stage of development) must always be considered.

The above considerations must always be considered, the best interests of the child being paramount. A set of additional considerations in s 10(3) must be considered when they are relevant to the decision.[8] Those considerations include:
[8]Mia Harris (a pseudonym) and Adam Jackson (a pseudonym) v Secretary to the Department of Families Fairness and Housing [2023] VSC 228, [116] (O’Meara J).

(a) the need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society and to ensure that intervention into that relationship is limited to that necessary to secure the safety and wellbeing of the child;
(b) the need to strengthen, preserve and promote positive relationships between the child and the child’s parent, family members and persons significant to the child;
…
(d) the child’s views and wishes, if they can be reasonably ascertained, and they should be given such weight as is appropriate in the circumstances;
(e) the effects of cumulative patterns of harm on a child’s safety and development;
(f) the desirability of continuity and permanency in the child’s care;
…
(g) that a child is only to be removed from the care of his or her parent if there is an unacceptable risk of harm to the child;
…
(i) the desirability, when a child is removed from the care of his or her parent, to plan the reunification of the child with his or her parent;
…
(q) the desirability of siblings being placed together when they are placed in out of home care;
…

The principles applicable to appeals to this Court from interim accommodation orders have been considered in numerous decisions of this Court. I examined some of these in Weiren,[9] including the distillation of principles set out by Macaulay J in Secretary v Children’s Court.[10] One of the principles distilled by his Honour included an observation that it was unnecessary to establish ‘error’, in the sense that the magistrate’s order might have been open to it, but nevertheless the Supreme Court might still think a different order should have been made. If so, the appeal will succeed.
[9]Weiren [37]–[47].
[10]Secretary to the Department of Human Services v Children’s Court of Victoria & Ors [2014] VSC 609, [23]–[24] (‘Secretary v Children’s Court’).

Gorton J closely examined this issue in KDN v Secretary to DFFH.[11] His Honour concluded that a s 271 appeal is a form of rehearing for the correction of error, where ‘error’ is regarded as made out if the Supreme Court thinks that a different order should have been made. Gorton J emphasised that a s 271 appeal is not a de novo rehearing, and that there are good reasons for restraint in receiving fresh evidence. I respectfully agree.
[11]KDN v Secretary to the Department of Families, Fairness and Housing [2023] VSC 749 (‘KDN’).

The nature of appeals under s 271 was recently considered by Richards J in AGN v Secretary to DFFH.[12] Her Honour identified three anomalous aspects of the appeal avenue provided by s 271:[13]

First, the right to appeal to the Supreme Court from an interim accommodation order is broader than the right to appeal on a question of law from a final order of the Family Division of the Children’s Court under s 329 of the [Children, Youth and Families Act 2005] CYF Act. There is no obvious reason why this should be so. An interim accommodation order is often made on an urgent basis, in rapidly changing circumstances, and with relevant evidence still being gathered. Where new facts or circumstances have arisen since the making of the order, the CYF Act enables a protective intervener, a child, or a parent of the child to apply to vary the conditions of the interim accommodation order, or to apply for a new order. In that situation, it is clearly more sensible to have the Children’s Court reconsider an interim accommodation order than to escalate it to the Supreme Court.
Second, the CYF Act was enacted with a purpose of continuing the Children’s Court as a specialist court relating to children. The Supreme Court is not a specialist court relating to children. As the superior court of Victoria, it has a general supervisory jurisdiction, which the High Court has described as ‘the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power’.[14] The Supreme Court’s judicial review jurisdiction is complemented by statutory rights of appeal on a question of law from lower courts and tribunals.[15] In exercising its judicial review jurisdiction and in determining an appeal on a question of law, the Supreme Court is concerned with the lawfulness of the decision under review or appeal, as distinct from its merits. However, on an appeal under s 271 the Supreme Court must undertake its own assessment of the merits of the decision made by the specialist Children’s Court.
Third, and relatedly, s 271 of the CYF Act does not enable the Supreme Court to remit a proceeding for reconsideration by the Children’s Court. Where error is established, s 271(2) requires the Supreme Court to determine if a different interim accommodation order should have been made and, if so, to set aside the order of the Children’s Court and make any other order that it thinks ought to have been made. This is despite the fact that the Children’s Court is more likely to be familiar with the issues for determination in the underlying application pending before the Children’s Court.[16]

[12]AGN v Secretary to the Department of Families, Fairness and Housing [2024] VSC 176 (‘AGN’).

[13]AGN [40]–[43].

[14]Citing Kirk v Industrial Court (NSW) (2010) 239 CLR 531, [98] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[15]Citing Magistrates’ Court Act 1989 s 109; Criminal Procedure Act 2009 s 272; Act s 329; Coroners Act 2008 s 87; and Victorian Civil and Administrative Tribunal Act 1998 s 148.

[16]Citing KDN [19] (Gorton J).

I respectfully agree with Richards J’s description of these three points as anomalous. In my view, each of them reinforces the importance of a constrained approach to receiving fresh evidence on an appeal under s 271. In AGN, Richards J referred approvingly to Gorton J’s remarks in KDN about the limitations on receipt of fresh evidence,[17] as well as distilling other principles applicable to the role of this Court in s 271 appeals.[18] I respectfully adopt her Honour’s summary of the principles in its entirety. Her Honour’s summary of the principles included the following guidance (most references omitted):[19]

… it will usually not be necessary or appropriate for it to make findings of fact about past events of alleged harm. The central considerations for the Court are the best interests of the child and, where the Court is considering removing the child from the care of a parent, whether there is an unacceptable risk of harm to the child.[20] In making that assessment, the Court must weigh the available evidence concerning the conduct in question, consider the likelihood of it occurring in future, consider the nature and extent of harm to the child were the conduct to recur, and determine whether the risk of that harm is unacceptable.
… The Court cannot disregard factual allegations that appear to be rational, but equally it is not obliged to give weight to mere assertions or ‘concerns’ that have no apparent basis in fact. The best interests of the child concerned will usually require the Court to take a cautious approach when assessing the risk of harm.
[17]AGN [44]–[45] (Richards J), citing KDN [18], [36]–[37], [38], and [41] (Gorton J).
[18]AGN [46]–[48] (Richards J).
[19]AGN [46], [48] (Richards J).
[20]Citing Act s 10(1), (3)(g).

Consideration of the evidence and submissions
Overview

The appeal was supported by the father’s affidavit sworn 17 March 2025, which was received into evidence at the hearing on 31 March 2025. It contained numerous exhibits, including various reports of the Department, the two Family Court judgments, a letter from the wellbeing officer of the children’s school written in November 2024, five letters from the Women’s Centre for Health and Wellbeing relating to the mother, Child 1 and Child 2 written in December 2024, and the Children’s Court Clinic report (CCC report) dated 14 February 2025.

The Secretary relied on the affidavit of the Department’s Practice Leader in Child Protection, Kate Robinson, affirmed on 31 March 2025, which was also received into evidence.

Many of the Department’s reports, and the four letters from the Women’s Centre for Health and Wellbeing, contain records of (mostly unsourced) allegations being made about the father mistreating the mother and, to some extent, Child 1 and Child 2.

The Family Court’s judgments describe the case somewhat differently, and are adverse to the mother. The CCC report is the most recent, and most detailed, report on the family by an apparently senior and well qualified clinician.

As made clear in the authorities, my task on the appeal is not to make findings about contested facts such as past allegations of harm, but rather to weigh the evidence concerning the conduct in question, consider the likelihood of it occurring in the future, consider the nature and extent of the risk of harm to the child associated with the conduct were it to occur or re-occur, and consider whether that risk is unacceptable having regard to the paramount interests of the child.[21]
[21]See, for example, Secretary v Children’s Court [2014] VSC 609, [23]–[24] (Macaulay J); AGN [46]–[48] (Richards J), discussed above.

Family Court reasons for judgment July 2021

The reasons for judgment of the Family Court in July 2021 show that, shortly after the time she unilaterally removed the children from his care in December 2020, the mother through her solicitors made allegations against the father that he had illegal drugs in the home where the children could access them and that he was using drugs. She demanded that the father undergo a hair follicle test for illicit substances. The learned judge noted that the father underwent a hair follicle test and submitted the results.

The mother was herself ordered by the Family Court to undergo a hair follicle test. She admitted to cocaine use that stopped in February 2021.

Following a court order in May 2021 for access by the father, a family reporter observed that the children had a warm and affectionate relationship with both parents, with Child 1 warmly hugging her father on a particular occasion in June 2021 in spite of the period since December 2020 without contact.

Yet only four days later, at a handover attended by the father and a man who was the mother’s partner or friend, Child 1 remained in the man’s car, the man said that Child 1 did not wish to come, and he drove off with Child 1 in the car. The learned Family Court judge regarded this event as very concerning.

Something similar then occurred later in June 2021, this time with the two younger children reporting that they did not wish to go with their father. His Honour said at [42] ‘I am concerned primarily at the mother’s ability to promote the children’s relationship with the father and to protect them from her own anxieties and antipathy towards the father’.

In giving reasons for judgment for the interim orders his Honour also said as follows:

It is a significant part of the mother’s case that she has over many years been the victim of significant family violence at the hands of the father and that this has impacted upon her in significant way.
The mother has also asserted that she is the subject of abuse and coercive behaviour by the father’s conduct of these proceedings. I spent some time attempting to identify just what it was, but the long and short of it comes down to the circumstance that it appears that the father has the assistance of his family to fund his legal representation and that she does not and that this is of itself abuse. The position that the mother perceives the father’s father having in the community and the financial support that she perceives the father is receiving from his parents is also, she says, a form of coercive, manipulative behaviour. I do not find that is so.

His Honour also said as follows, in giving reasons for his interim orders:

I primarily base my decision on what the agreed, or not disputed, history of the children in the care of the father (and/or the father and his mother) until the mother’s unilateral removal. Further, it is significant that whilst alleging abuse and manipulative behaviour at the hands of the father, the mother removed the children from the father’s care, refused to let him see them, and at that time, justified it on the basis of the father’s drug abuse whilst at about that time, when the children were in her care, she now says she was abusing cocaine.
The manner in which the mother conducted herself and this litigation is or could be characterised as highly manipulative. I do not find that the mother has been the victim of the violence that she asserts. However, I do not find that she has not. I do not find that she has lied about the violence that she says she has been subjected to. I do not disregard the allegations.
However, for the current crisis, the determination of the allegations of family violence does not assist me. It is in the children’s best interests to have some stability in their parents’ care in a drug-free environment and I note that the father has now provided two hair follicle tests that demonstrate abstinence from substances over many, many months.

For these reasons, in July 2021 the Family Court made interim orders placing the children in the father’s care with the mother having limited access, as I have already noted.

Family Court judgment February 2024

In his reasons for making final orders in February 2024, the learned Family Court judge noted the matters that follow.

At paragraph 8, his Honour noted that:

The 2021 reasons provide a detailed account of circumstances up to that time. Nothing has transpired since or been given in evidence that requires any qualification or reconsideration of the circumstances then observed on only an interim basis at that hearing.

In fact, his Honour said:

[s]adly, events have moved on and the tentative observations and concerns at the time of the 2021 reasons have been demonstrated to be well founded.

His Honour said that he was not reciting all the significant evidence. He mentioned abusive and sometimes violent, threatening communications of the mother to the father after separation and during litigation and to the father’s mother and the father’s partner that were in evidence and not denied. He mentioned the serious allegations of family violence made by the mother against the father. His Honour noted that the mother had alleged she suffered severe physical violence and sexual violence during the relationship including in 2014, 2015, 2016 and 2019.

His Honour noted that the father denied the allegations. He said:

While the allegations and their denial coloured the entire final hearing, ultimately no party pressed for findings about those events and the outcome did not turn on findings about those serious allegations.

His Honour recounted the events that he had already mentioned in the lead-up to the interim judgment in July 2021. He referred to the September 2021 events that I have mentioned. He mentioned that in a hair follicle test in October 2021, the mother tested negative. He referred to psychiatric assessments in late 2021 in relation to both the father and the mother. He accepted the psychiatric assessment of the father, but he did not accept an aspect of the psychiatric assessment of the mother. One aspect of that assessment is noted in paragraph 60 of the relevant report containing the psychiatric assessment which is reproduced in paragraph 68 of his Honour’s judgment. The clinician said:

I do not see any major impediments from a psychiatric point of view to her [the mother’s] care of the children at this point in time.

His Honour said because of subsequent events, he did not accept that assessment as an accurate assessment after November 2021.

His Honour noted the recommendations of a second report dated May 2022. Those recommendations included consideration being given to the father having interim sole parental responsibility for all children and prohibiting the mother from contact with their school, medical practitioners and sporting clubs and having supervised limited contact with the children only. His Honour said he gave that report a lot of weight.

The judge noted an allegation that the mother made in and from mid-2022, alleging that the father was not the father of Child 2. He noted in October 2022 the mother sent abusive and insulting text messages to the father’s mother.

A final hearing that was due to take place in August 2022 was delayed because of the mother’s admission to a mental health facility. His Honour was satisfied that the mother was genuinely unwell at that time.

In September 2022 the judge found that the father was still concerned that the mother was attempting to undermine his relationship with the children. In early September 2022 the father recorded a phone call in which the mother denigrated the father in a conversation with Child 3, then 8 years old, and denied that he was the true father of Child 2, and asked the child whether he loved his father or did not like his father.

His Honour referred to these matters at paragraphs 90 and 91 of his reasons for judgment. As to the mother’s denial of the paternity of the father for Child 2, his Honour said:

I am satisfied she raised the allegation in the manner she did for her own emotional needs and satisfaction and was reckless as to the likely impact on [Child 2] and/or the other children.

His Honour said:

The stress for [Child 3] in being asked to tell his mother he does not like his father, as recorded in the conversation, is self-evident. [The mother] did not express any regret for these events in what she said to [Child 3]. I am satisfied that, if [the mother] got the chance, [the mother] would again and again be unable from demonstrating her antipathy to [the father] to the children and that this would be psychologically harmful to them.

The judge, in the course of the judgment, also noted charges of assault and cause injury laid against the father in mid-2022 relating to alleged conduct in early 2019. He noted that these charges were withdrawn in late 2022.

The judge also noted a number of family violence intervention order applications, and further family violence intervention orders are mentioned in the affidavit of the father. Two of these applications were commenced by the mother against the father and were struck out in early 2021 and mid-2021 by a magistrate.

The father’s affidavit noted an additional application for an intervention order in July 2021 which did not proceed to an interim order. He also deposed that in January 2022 Victoria Police applied for an intervention order to protect him from the mother. A ‘no contact interim order’ was made on that application and in August 2022 a final order was made, which remains in effect and is due to expire in August 2025.

Returning to the Family Court’s reasons for judgment for final orders of 15 February 2024, his Honour noted that the final hearing was in March and May 2023. In a series of paragraphs of his reasons from [112] through to [154], a number of relevant things are noted about that hearing. I will just mention them by topic, essentially.

His Honour gave his impressions of the witnesses. His impressions of the mother were adverse, and there are some concerning impressions that his Honour formed in particular at [116].

His Honour noted two reports that were received from the Department of Families, Fairness and Housing. Those are noted at [120] to [127] and the reports are in the material before me. The second report concluded with the assessment that the Family Court is the most appropriate forum to address the issues raised.

Under the heading ‘primary considerations’ and the subheading ‘the need to protect children from physical or psychological harm’, his Honour noted the father’s case has been that if the children are in the mother’s care and/or during supervised or unsupervised time, the risk of psychological harm is of great concern. His concern was well founded, said his Honour, because:

These parents have a highly conflictual relationship and are limited in their ability to communicate about the children. The parents need to protect the children from the conflict between the parents, the intensity of their feelings about the other and the parenting and financial disagreements. I am satisfied that [the father] is better able to protect the children from his feelings about the parenting dispute and the other parent.

At [150] his Honour found:

I am satisfied that the children are well cared for in [the father’s] care.

At [151] he said:

I am satisfied that [the mother] has undertaken a “campaign” against [the father] and his family and partner with the intention to undermine [the father’s] relationship with the children. I am not satisfied [the mother] will cease this campaign. Undermining [the father’s] relationship would undermine the precious stability in their lives. On all of the evidence I am satisfied there is a real risk of psychological harm to the children of [the mother] undermining the children’s relationship with [the father] and his family, even in supervised time.

His Honour noted the central principles in the case as being a conflict between what the children want and their best interests. He formed the view that the children’s views or what they want are not in their best interests. More specifically, he formed the view that the desire of the children to maintain a continuing relationship with their mother was not in their best interest because the mother:

Simply can’t be trusted to not undermine the children’s stability if she sees them at all or in a supervised capacity.

The judge noted the need for finality and he said he placed significant weight on orders ensuring a cessation in litigation between the parties, given that the matter had been on foot for three years.

His Honour noted that he was choosing the ‘least worst’ outcome, a phrase that was repeated a number of times in submissions before me on 31 March 2025. He described that least worst outcome in terms that included the following:

The emotional stability of [the father] is essential to the children’s lives. There is a fragility to [the father’s] emotional stability in the face of what he realistically experiences as [the mother’s] “campaign” against him. These considerations contend for final orders not interim ones. No one now seeks interim orders in any event but, after notice to the parties that I was considering interim orders and considering their responses, if I determined the interim orders were in the children’s best interests I would not shrink from making interim orders.
In the end, balancing all of the evidence and submissions, I am satisfied that there is a very real and substantial risk, and an actual likelihood, that limited supervised time, even if considered as recognition or connection time, would undermine the children’s relationship with [the father] and the stability of their home environment and compromise their short term and long term psychological health, emotional stability and welfare. There is a real need to protect the children from that risk.

His Honour ended up making orders that placed all the children, as I have said, in the care of the father with him having full parental responsibility for them and only very limited contact with the mother.

Reports to the Department

The father deposes in his affidavit from [25] about the events following the conclusion of the Family Court proceeding. He deposes that, prior to the commencement of the Family Court proceeding, there had not been any protective concerns raised with the Department regarding the care of the children. Since the commencement of the Family Court proceeding, the father deposes that 14 reports have been made to the Department. Of these reports, 11 were closed and three were investigated. Out of these, one protection application has been made, which is the subject of this proceeding.

The father’s affidavit then notes a history of reports being received by the Department. My understanding is that the Department does not and perhaps legally cannot reveal the sources of such reports. The series of reports began on 15 February 2024, the same day the final Family Court orders were made, and that was a report raising concerns for the safety of the children in the father’s care.

In the course of further reports following this, there was a report in July 2024 that the father kicked Child 1, causing a red mark. There was again a report and an investigative process of sorts in September 2024 concerning a report by the second child that the father had kicked Child 2 in the ribs in early September 2024. It appears that this incident led to a protective intervention by the Department, which in turn led to proceedings in the Children’s Court, which in turn led to the appeal to this Court.

The father deposes that in September 2024, the Department was contacted by the wellbeing officer at the children’s school. Shortly after, protective workers attended the children’s school and Child 1 reported to them that there had been a verbal argument between Child 1 and the father alleged to have occurred the day before. The father met with protective workers and was advised that the children would not be permitted to remain in his care.

The exhibits to the father’s affidavit show a record of a removal of the children by emergency care in September 2024 completed by an officer of the Department, titled ‘summary information form’. The document contains information adverse to the father apparently based on reports about him and without disclosure of the sources of those reports. The ‘assessment/outcome’ at the end of the document is that it is imperative that the children be placed in the care of the mother. The document also noted the Family Court orders and noted that ‘Child Protection does not currently have the documentation to identify the rationale for this decision’. The document noted the contents of an interview with the mother on the same day in which she explained her understanding of the Family Court proceedings and outcome, including her view that she had been disadvantaged in those proceedings and became reactive to disclosures in those proceedings.

The current applications to the Children’s Court

A short time later, the Department filed the protective intervention applications for emergency care regarding the three children. That document is in evidence and it appears clear that it then led to protective applications being listed in a regional Magistrates’ Court, sitting as the Children’s Court. Interim accommodation orders were made on that occasion, which was 11 September 2024.[22] In making those orders, the learned magistrate described them as holding orders until the next court date, and the protection applications were adjourned to 16 September 2024.
[22]By these interim accommodation orders the children were placed in the care of parents of a close friend of the mother.

On 16 September 2024, they were adjourned to 2 October 2024 for ‘reserved submissions’. Reserved submissions, as I understand it, are a way of describing what is also called a ‘submissions contest’.[23]
[23]See Weiren [45]–[47].

On 10 October 2024, a reserve submissions hearing, or a submissions contest hearing, took place. Submissions were made to the Children’s Court regarding the children’s placement and contact. The learned magistrate on that occasion did not make any substantial changes to the interim accommodation orders that had been made on a holding basis on 11 September 2024 but expressed the view that the father’s contact with Child 3 ought be considerably more liberal, including progressing quickly to weekend and overnight contact.

The magistrate also made orders for the Children’s Court Clinic (CCC) to assess the family and prepare a report in accordance with s 560 of the Act, and the proceedings in relation to the three children were adjourned to 28 October 2024 for the Department to prepare protection and disposition reports in relation to each child.

On 21 October 2024, reports in relation to the children were served by the Department.

The Department’s reports recommended that it was imperative that the children be placed in the care of the mother and that the father was not able to provide safe care. These reports were prepared by the same officer who prepared the summary information form relating to the removal by emergency care on 10 September 2024.

On 28 October 2024, there was no agreement regarding final disposition and the CCC report was not yet available, so the proceedings were adjourned to 16 December 2024.

A notation on the Court’s orders on 28 October 2024 noted that ‘the department are not opposed to the mother residing with the carers and the children’. On that day, the Children’s Court adjourned the matter for a clinic assessment at the request of the department. The clinic report was not available until February 2025.

From late October 2024, it appears that the mother commenced living in that home with the children and there is a notation on the Court’s orders on 28 October 2024, consistent with the notation that the Department were not opposed to the mother residing with the carers and the children.

On 16 December 2024, the CCC advised the Court that the report was not yet complete and more time was required and the proceeding was adjourned to 19 February 2025. The father deposes, and it is uncontroversial, that throughout November and December 2024, his contact with Child 3 increased significantly. By the summer school holidays, Child 3 was spending about a week with the father unsupervised and a week with the carers, with the mother — who was living in the same home as the carers —having supervised or monitored contact.

The CCC report

On 14 February 2025, the CCC finalised its report, which is a report of Dr Paula Verity, a senior forensic psychologist. The report is very detailed and extends to 60 pages. It was based on a wide range of information identified in the report, including clinical interviews and observations of the following individuals and groupings: the mother; the father; the children together; Child 3 with the father; and each of the children separately. It is also based on discussions with: the father’s partner; the current carers; departmental officers; a social worker or family violence counsellor at a service called the Women’s Centre for Health and Wellbeing, relating to support of the mother; someone from another family care agency in relation to support of the father; the director of wellbeing at the children’s school; and the vice-principal of the children’s school.

Dr Verity noted that there was no clinical observation either of Child 1 or Child 2 in the company of the father. That is because Child 1 and Child 2 declined to participate in a clinical observation in company with him.

Dr Verity said that the mother ‘impressed as an articulate yet anxious individual who displayed limited insight in relation to her psychological functioning and the potential impact upon her parenting.’

Dr Verity said that the father presented as relatively stable in relation to his personal functioning.

Dr Verity reported that Child 1 expressed very negative views about her father and she said she was unable to recall any positive memory of him.

Dr Verity reported that Child 2 said that her father had hurt her and her siblings, recalling that when she and Child 1 had had a fight, the father ‘kicked her in her back … it was red’. She said that Child 1 was not in significant pain or impaired. She also recalled that ‘Dad kicked me in the side when we were play-fighting’. She said once, ‘dad was angry and smacked [Child 3] on the bottom once’. Asked if there were any other incidents, she said no. Dr Verity reported that Child 2 did not want to see the father ‘because of things he’s done to me and my siblings’.

Dr Verity reported that Child 3 drew a picture of his family showing first his sisters and then his mother and lastly his dad. She reported that Child 3 said he had been living between his mum and dad on the holidays, five days with his dad, 10 days with his mum and ‘I want seven days each … equal split’.

Dr Verity reported on her discussions with the father’s partner. Dr Verity queried with her the apparent shift in Child 1 and Child 2’s feelings towards the father. The partner said she thought Child 1 was talking to the mother and was unable to identify any other explanation. The partner reported that the mother still posts, ‘things online directed at [the father] and myself’, however was increasingly mindful of doing so in an indirect and legal manner.

Dr Verity reported that the current carers spoke favourably of the mother and that the girls were scared of returning to the father’s care. They reported that they had stepped back to enable the mother to resume parenting responsibilities. They had never seen the mother disparage the father in their company.

The vice-principal of the school told Dr Verity that after the mother and father separated, the mother’s conduct was irrational, noting that she would ‘send emails in the early hours of the morning and go over the top at the smallest things’. He said that she has been ‘a lot calmer this time and was more compliant in relation to the court orders’.

The school wellbeing counsellor told Dr Verity that Child 1 and Child 2 had spoken adversely of the father and presented as happier since leaving his care. The counsellor reported that Child 3 presented as having a positive relationship with his father and wanted a relationship with both parents. Child 2 made a comment the previous week stating that she wanted to stay in the current carers’ care.

Dr Verity reported that the Women’s Centre for Health and Wellbeing counsellor she spoke with reported that the mother was referred for trauma counselling for past family violence with the father as well as ‘Family Law Court violence’. The latter expression was explained as meaning that the mother had been made to feel like a culprit and bad person in the family law proceeding.

Dr Verity reported on the outcome of her risk assessment, concluding that the mother presented a greater risk to the children than the father. This was based on eight risk domains described in the CCC report. Those domains include ‘abuse and neglect factors’, ‘child factors’, ‘parental factors’, ‘parental attitudes and behaviours’, and ‘family functioning’, amongst others.

With respect to ‘abuse and neglect factors’, the report of Dr Verity noted that Child 1 and Child 2 had made allegations of physical and verbal abuse in the father’s care and had reportedly been too fearful to have contact. She said reports suggest that their relationship and feelings towards their father has oscillated over time so that these claims, whilst serious, should be viewed through a contextual lens, eg through the prism of a high conflict relationship. Dr Verity said:

I note there is evidence to suggest that [Child 1 and Child 2] were unhappy to remain in their father’s care and legally, claims of abuse or mistreatment would appear to be the only way of overriding Family Court orders (by involving Child Protection). While I am not dismissive of their allegations, I am also mindful that this is the only pathway available to affect change to their living circumstances and renewed contact with their mother.

Dr Verity was clearly sceptical of the information that had been provided about abuse and neglect by the father of Child 1 and Child 2. She noted (at [199]):

Furthermore, whilst the children reported that they have never had a positive relationship with their father, there is evidence that previously he had been an involved and attentive care giver, with whom they had shared a strong relationship.

Dr Verity noted there is no evidence to suggest that the mother has perpetrated physical abuse or neglect towards the children.

With respect to ‘child factors’, Dr Verity noted her view that the behaviours observed in Child 1 and Child 2 are reflective of trauma rather than abuse perpetrated by the father, and reflect a ‘heightened and exaggerated emotional response disproportionate to the threat posed by the father’. There are likely to be multiple factors at play including Child 1 and Child 2’s historical grief in relation to losing their mother, their blame and rejection of their father and the mother’s continued hostility towards the father.

In relation to ‘parental factors’, on balance, Dr Verity identified more issues of concern in respect of the mother than in respect of the father.

In relation to ‘parental attitudes and behaviours’, Dr Verity noted there is evidence to suggest that the mother has displayed deficits in relation to her parenting knowledge skills and attitudes by fabricating evidence in Family Court proceedings in relation to Child 2’s parentage and seeking to actively disparage and undermine the children’s relationship with the father.

With respect to the ‘family functioning factor’, Dr Verity noted it is apparent the children have been exposed to a high conflict separation. With respect to Child 1 and Child 2, she said they displayed ‘splitting’ in their attachment system, resulting in the apparent praise and idealisation of the mother and hostility and devaluation towards the father. Dr Verity said this is an understandable response towards trauma as it reduces ambivalence, for example, by aligning with one parent and rejecting the other. She went on to say:

Although [Child 3] maintains a positive relationship with [the father], [Child 3] is likely to be subject to a high degree of stress owing to his apparent desire to maintain a relationship with both parents.

She concluded that, with respect to the father, he would not appear to present with major risk factors in relation to child maltreatment but that Child 1 and Child 2 are at risk of emotional and psychological harm in their father’s care given their current attitudes and beliefs towards him. Child 3 would not appear to be at risk of harm in his father’s care.

Dr Verity’s conclusions with respect to the mother were to the effect that there is evidence to suggest that the mother has fabricated evidence against the father in the past and sought to ‘triangulate her children in these disputes for her own gain’. Dr Verity said it is important to note that aside from her acrimonious relationship with the father, the mother does not present with any significant risk factors that are likely to be associated with child maltreatment. However, whilst the mother reports that she no longer seeks conflict with the father, the children are at risk of being exposed to emotional and psychological harm in her care. For example, seeking to undermine rather than support the children’s relationship with the father.

Dr Verity concluded that Child 3’s relationship with the father would appear to be at particular risk, given the other members of his family hold a negative view towards the father.

Dr Verity noted the historical evidence suggesting that the mother exposed the children to emotional and psychological harm, although ‘there is no overt evidence to suggest that the mother has sought to unduly influence her children’s attitude towards [the father]’. Dr Verity concluded:

It is difficult to foresee a significant shift in [the mother] and [the father’s] dynamic given the levels of suspicion and distrust within this relationship. I note that [the father] has a new partner, however this is also likely to be a trigger for [the mother] given her former connection with [another person], and [the mother] not being involved in a current relationship. It is also difficult to see how the children could be shielded from negative views regarding their father, given the beliefs expressed by both their mother and their carers during the current assessment.

Dr Verity made a series of recommendations. Dr Verity concluded that there was sufficient evidence to support Child 3 being returned to the care of the father. She said:

I am mindful that [Child 3] is seeking shared care with his mother, however I have concerns about the feasibility of this arrangement, given the dynamics that have been described. It is recommended that [Child 3] has supervised contact with [the mother] six times per year to maintain some level of contact with his mother, within a controlled environment. I am mindful of the apparent harm in separating the siblings but am also mindful that [Child 3] would appear to be in a different psychological state to his sisters and would benefit from greater stability and cohesion.

Dr Verity recommended that:

[Child 1] and [Child 2] would benefit from being placed in kinship care, with family members (from either [the father’s] or [the mother’s] side) who can provide a stable and supportive environment whilst they rebuild their relationship with their father. It is important that any care-giver is able to remain objective and not aligned with any particular parent, focusing instead on the wellbeing of the girls. Any future carer would also need to be prepared to support the girls to establish positive relationships with both parents. It is hoped that counselling can assist the girls to process their attachment related trauma which is impacting upon their current emotional state.

Dr Verity then expressed concern about the current level of contact and influence that the mother has had upon Child 1 and Child 2, given that she has been allowed to reside in the current carers’ home. Dr Verity said she did not support the children being placed in the mother’s care as this would preclude their capacity to rebuild a healthy relationship with their father.

There were further recommendations for all members of the family for clinical and/or forensic psychological treatment and engagement.

Recent hearings in the Children’s Court proceedings

Upon the CCC report being released, on 27 February 2025, the lawyer for the father wrote to the parties in the Children’s Court proceedings seeking a return of all three children to his care on family protection orders, with limited provision for supervised contact with the mother. The lawyer sought confirmation of the Department’s position regarding the protection order it now seeks and regarding the status of the interim accommodation orders until the conclusion of the court process.

In an email on 4 March 2025, the Department said it did not agree that new interim accommodation orders would be ‘in the best interests of the children at this stage’ and that a four-week adjournment would be sought to complete assessments, reviews and reports. The mother’s position was consistent, and her lawyer also indicated that she did not support the recommendations of the clinician in the CCC report. By email early on the morning of 5 March 2025, the lawyer for Child 3 indicated disagreement with the changes sought by the father and instructed that Child 3 sought a 50-50 shared care arrangement alternating on a weekly basis and contact with the mother to be unsupervised.

The matter returned to the Children’s Court, at the regional Magistrates’ Court, on 5 March 2025. The father’s affidavit explains the events on that day. The matter was mentioned early in the day, before a magistrate (whom I will refer to as ‘Magistrate A’). By his counsel, the father made an oral application for new interim accommodation orders. The mother through her lawyer sought the recall of the CCC report. It appears that the basis for this application was that the Women’s Centre for Health and Wellbeing had prepared reports in December 2024 which, according to the mother’s case, might have affected Dr Verity’s report, but which had not been placed before Dr Verity. Magistrate A stood the matter down for discussions.

The father disputes the suggestion that the CCC report is undermined by the mother’s reliance on the letters from the Women’s Centre for Health and Wellbeing. His affidavit records an email from the Department on this topic sent shortly after the hearing, which states that the Department contacted the CCC about this issue, and the CCC ‘confirmed that any information provided after the assessment commenced did not change the clinician’s opinion’. That probably means that any information of the kind in the December 2024 letters did not affect Dr Verity’s opinion, although perhaps that is not entirely clear.

In an email before the matter was recalled before Magistrate A on the afternoon of 5 March 2025, the Department’s position altered somewhat in the direction of the father’s position. The email stated that the Department sought a new interim accommodation order for Child 3 to the father. The Department’s new position was described in an email late on the morning of 5 March 2025. The Departmental lawyer said that the Department sought a two-week adjournment, indicated that it consented to a new interim accommodation order for Child 3 to be made to the father with contact by the mother to be supervised, and also indicated it would support extension of the interim accommodation orders for Child 1 and Child 2 but subject to a variation to include a condition that the mother be excluded from residing at the current carers’ home.

The father’s affidavit at [57]–[61] records what happened when the matter was recalled before Magistrate A. The father deposes that the Department’s submissions were inconsistent with its email earlier in the day, summarised above. His Honour ultimately said that it was a very complex matter and, given it was not listed for reserved submissions, he had insufficient time to properly consider the issues raised. He noted that he had not read the CCC report. Accordingly, he was of the view that the matter be adjourned to a reserved submissions date before a specialist magistrate in the Melbourne Children’s Court.

I accept that the CCC report was available to the Children’s Court but was not read by his Honour.

The notice of order made on 5 March 2025 shows that his Honour was not prepared to consider the matter in its entirety on 5 March 2025, noting that there was no application for new interim accommodation orders lodged and the listing was not for reserved submissions.

The outcome of the hearing on 5 March 2025 included an order adjourning the matter to 29 April 2025 at the Melbourne Children’s Court for a reserved submissions hearing for 120 minutes, and an order that the matter be further listed for a contested hearing at the Melbourne Children’s Court for 10 days commencing on 14 July 2025.

The matter returned to the Children’s Court, again sitting in a regional Magistrates’ Court, on 12 March 2025. The matter was listed for a hearing on the application of the Department because the current carers required a short period of respite. For ‘completeness’, the father filed a written application reflecting the application for new interim accommodation orders he had made orally on 5 March 2025. The matter was heard on that occasion by another magistrate (whom I will refer to as ‘Magistrate B’).

An email from the Department’s lawyer on the day of the hearing conveyed instructions that the father’s application for a new interim accommodation order in respect of Child 3 would not be opposed, but no change in relation to the arrangements for the other children would be supported.

The father deposed, and I accept, that on 12 March 2025, her Honour noted that she had not read the CCC report. I also accept (as the father deposed) that she said that there was ‘lots of merit’ regarding the submission made on behalf of the father about Child 3 being placed on an interim accommodation order to the father, but given the ‘highly contested’ nature of the proceeding she would not be in apposition to ‘digest the material and make complex decisions regarding longer term issues’. She made orders varying the interim accommodation orders only in respect of the short-term respite issue.

The interim accommodation orders as extended and varied on 12 March 2025

The orders on 12 March 2025 are in evidence and had been received as Exhibits R1, R2 and R3. They were emailed by the Department during the hearing. They are in similar but not identical terms for the three children. The order for each child as varied and extended on 12 March 2025 is the form of order that I should take into account in the best interests of the children in deciding whether a different order ought to have been made, which is my statutory task under s 271 of the Act.[24]
[24]Weiren [40].

In respect of Child 1 and Child 2, the interim accommodation orders as varied and extended by her Honour Magistrate B on 12 March 2025 placed Child 1 and Child 2 with the current carers pending the hearing or resumption of the hearing and following a report on those persons’ suitability and that placement occurred on nine conditions. The first two conditions relate to visits and support services. Condition 3 is ‘father, mother must not live or have contact with the child other than court ordered contact’. I will come back to that. Condition 4 is ‘mother may have contact with the child for a minimum of six hours per day at times and places agreed with the carers and or DFFH. The carers will supervise contact unless DFFH assesses that supervision is not necessary. All contact is subject to the child’s wishes and is proposed to take place outside of school time.’

For Child 1 and Child 2, condition 5 is ‘father may have contact with the child for a minimum of one times per week at times and places as agreed between DFFH and the child. DFFH or its nominee will supervise contact unless DFFH assesses that supervision is not necessary. All contact is subject to the children’s wishes.’ And there are four more conditions. One is a temporary one relating to respite, which is now spent.

For Child 3, condition 5 is different. Condition 5 for Child 3 is that the father may have contact with the child for a minimum of three times per week for a minimum of 3.5 hours each time.

In recording each of these orders, her Honour noted as follows:

The proceedings were adjourned to 29 April 2025 in the Melbourne Children’s Court for reserve submissions hearing for 120 minutes.

Her Honour noted that the matter was being adjourned so the issue of placement could be heard by a specialist Children’s Court magistrate.

Under the topic of ‘current position with respect to proof, substantive orders, conditions and other issues’, the positions of the parties were as follows. The Department’s position as to Child 3 was that there be a new interim accommodation order to the father, with the mother’s contact to be supervised. With respect to Child 1 and Child 2, the Department’s position was that the interim accommodation order be extended and varied and for the mother’s contact to be supervised.

The mother’s position was that the current interim accommodation orders be extended on the same conditions. The father’s position was that all three children return to his care on family protection orders with some limited provision made for supervised contact with the mother. The position of the children is noted as being that the interim accommodation orders be extended on the same conditions.

In the notations, it was noted that the children seek that their contact with their mother continue to be unsupervised.

Current arrangements and the foreseeable future

As recorded in the material before me, what had been occurring since at least the summer holidays was that Child 3 was living one week on, one week off with the father and with the carers, and when he was living with the carers, he had unsupervised but monitored contact with his mother, who was also living with the carers. At those times he was also of course living with his sisters. In respect of Child 1 and Child 2, they had been refusing any contact with the father over that time and were simply living with the carers, with whom of course the mother was also living. During this time, the mother had unsupervised but monitored contact on an unlimited basis with all the children.

Although the next listing of the proceedings is for a ‘reserved submissions’ hearing of two hours on 29 April in the Melbourne Children’s Court, there is also the 10-day fixture scheduled in the Melbourne Children’s Court from 14 July 2025, as ordered by Magistrate A. It is unclear, and not yet decided, what the precise purpose of that fixture will be. That fixture is presumably an occasion for the final hearing of the protection applications for the children, or alternatively it would at least be available for a detailed consideration of what interim accommodation orders should be made pending final determination of the protection applications.

Submissions by the parties

At the hearing on 31 March 2025 all respondents made oral submissions, with the second respondent, the mother, being self-represented. Child 3 was separately represented from Children 1 and 2. I will refer to them in a broad brush manner.

The father submits that the learned magistrates erred in that, in making the orders on 5 and 12 March 2025, their Honours failed to consider probative material that was before the court, in the form of the CCC report, and this led to a misunderstanding of the risk of harm faced by the children. In particular, it is said that Magistrate B varied and extended the interim accommodation orders on the basis:

that the risk to the children is principally one of physical harm caused by the father. When having regard to CCC report, these risks were assessed as no longer being a paramount concern. Instead, the clinician’s view that the children’s contact with their mother should be supervised and is significantly reduced to mitigate the impact of emotional harm they might experience when with her was not given any weight by the Children’s Court.

The father also contended that her Honour ‘erred in applying the criteria in s 10 in making an IAO for [Child 3] to be in the care of a suitable person in circumstances where no protective concerns are held by the Department as regards to [Child 3], being in the care of his father. To leave [Child 3] in the care of the suitable persons [the current carers] rather than the father was an error, in that to do so where a parent does not pose an unacceptable risk to the child fails to give appropriate weight to the considerations outlined in s 10 of the Act’ and in particular, s 10(3)(a), (b) and (g).

It is noteworthy, in respect of the matter raised as a relevant consideration by s 10(3)(g), that in the case of Secretary to the Department of Human Services v Children’s Court of Victoria[25] Macaulay J noted that a child is only to be removed from the care of a parent if there is an unacceptable risk of harm. But he noted that although a child is to only to be removed from the care of a parent if there is an unacceptable risk of harm, the existence of an unacceptable risk of harm is not the only matter to be considered in all the circumstances. And all circumstances relevant to the paramount interests of the child must be considered.
[25][2014] VSC 609, [24] (Macaulay J).

The father went on to submit that for Child 3 an interim accommodation order should have been made and should now be made placing the child in the father’s care ‘with the mother’s contact … to be supervised. When determining the frequency of the mother’s contact with [Child 3], regard should be had to the fact that [Child 3] is school-aged and plays competitive sport several times a week around school. This is an activity that is always done with the father and about which they share a close bond.’

In respect of Child 1 and Child 2, the father submitted that ‘an IAO be made in accordance with [the CCC psychologist’s/Dr Verity’s] recommendation that they would benefit from being placed in kinship care, with family members.’ I noted that recommendation earlier.

However, the father went on to submit that ‘unfortunately there are limited alternative placement options from either the maternal or paternal family having regard to the mother’s alienation from both sides of the family (and the imposition of several family violence intervention orders by family members against her), and a concern amongst the children’s community of the risk of further allegations being made against others.’

Also if Child 1 and Child 2 are to remain subject to an IAO placing them in the current carers’ care, ‘it is submitted that the evidence before the Court supports a condition that the mother ought not live in the home with them, but instead can have supervised contact with them.’

The mother and all the children seek a continuation of the status quo.

The Secretary’s position was more nuanced. As to Child 1 and Child 2, the Secretary submitted (references omitted):

… other than the current carers, no party has identified any family members who might be “suitable persons” to whom an IAO could be made. The current assessment of Ms Robinson is that the carers are suitable persons and are capable of monitoring the risk of the mother engaging in conduct denigrating the father. The risk of harm arising from such conduct needs to be balanced against the harm that would be caused by removing the girls from the carers they have been living with for the last 6 months and separating them from their mother again. Any such decision must also have regard to the girls’ clearly expressed wishes to remain with their mother, and the need for continuity in their care.

As to Child 3, the Secretary submitted:

… having regard to all of the material now available, it does not appear that Child Three is at unacceptable risk of harm (s 10(3)(g)) in the care of his father, so as to justify continual removal from his care.
This is not to say that there are no protective concerns, only that they do not require removal. Accordingly, the IAO in respect of Child Three, which is currently to the carers, could be made to the father.
However, the First Respondent would continue to support an arrangement that would provide for substantial time with both parents, in accordance with Child Three’s expressed wishes.
While concerns have been raised as to the risk of the mother engaging in conduct alienating the father, Child Three has been subject to the current IAO for a number of months and has maintained his desire to see his father.

In oral submissions, counsel for the Department went into greater detail on those matters and also relied on the affidavit of Kate Robinson, which explained the position of the Department in more detail.

In that affidavit, amongst other things, Ms Robinson said, in respect to Child 3:

On the basis of the material currently available to me, I do have some concerns regarding the father’s care of Child 3 and I anticipate that services may need to be put in place to support the father in his care of Child 3. However, these concerns do not rise to the level of unacceptable risk of harm to justify the continued removal of Child 3 from the father’s care. Accordingly, I would support the court making an interim accommodation order placing Child 3 in the care of his father. Given the concerns raised by the wellbeing counsellor, I consider that the interim accommodation order should include a condition prohibiting both parents from denigrating the other, utilising physical discipline or discussing the court proceedings with the children.

Ms Robinson went on to say she would not support removal of Child 3 from the care of the mother having regard to her discussions with the carers. She deposed that Child 3 has expressed views about spending time with both parents, the importance of stability, and the risk of harm arising from separating him from his siblings and mother. She is of the view that the interim accommodation order should enable Child 3 to continue to live part of the time with the carers, his mother and his siblings. She also deposed that:

It would be appropriate that the carers continue to monitor the contact between the mother and Child 3 and there be a condition prohibiting denigration.

As to Child 1 and Child 2, and in relation to the CCC report’s recommendation about placing Child 1 and Child 2 in the care of kinship carers, the Secretary correctly pointed out that no potential kinship carers have been identified to whom an interim accommodation order could be made. The Secretary’s submissions go on to rely on the assessment of Ms Robinson that the current carers are suitable persons to continue to perform that role.

Analysis and conclusions

In order to reach the conclusion that a different accommodation order should have been made in respect of a child, it is not necessary that I be satisfied that the Children’s Court reached a conclusion that was not open to it. It is enough, if I am satisfied on the material that was before the magistrate, that I think a different order should have been made. I am satisfied that the learned magistrates who heard the matter on both 5 March 2025 and 12 March 2025 had access to the CCC report. They did not read it, because the matter had not been listed for a contested application on such material.

Should I take the CCC report into account? No party objected to my doing so. In any event, I am positively persuaded that I should consider it. It was available to the Children’s Court on both 5 and 12 March 2025, and so does not constitute fresh evidence on the appeal. I am entitled and perhaps compelled (by reason of the paramountcy of the best interest of the children) to take it into account.

The current interim accommodation orders have the children in the care of a couple who are the parents of a friend of the mother. They purportedly prevent the father and mother living with the children.

Child 3 wishes to be with both his father and mother. He currently lives with his father on alternate weeks.

The current orders do not reflect the current arrangements, which are that:

(a) Child 1 and Child 2 live with carers in whose home the mother has also been permitted to reside for some months; and

(b) Child 3 currently lives with his father, and then with the same carers and his mother, on alternate weeks.

For this reason alone, the current orders are not in the best interests of the children and different orders ought to have been made.

It was suggested to me that due to the imminence of the two-hour ‘reserved submissions hearing’ before a specialist magistrate on 29 April and because of the likelihood of there being further reports from the Department at that time, it was open to me to make no orders now and to leave the current interim accommodation orders in place.

If there was a high likelihood of a detailed examination of material and medium- to long-term conclusions being reached on 29 April on that material, this would be an attractive course. However, having regard to the stage reached in the Children’s Court proceedings and the complexity of the material and the issues, in my assessment, there is unlikely to be any determination of the issues at the two-hour ‘reserved submissions hearing’ (or ‘submissions contest’) on 29 April 2025. The earliest likely occasion for a sufficient hearing in the Children’s Court will be the 10-day fixture in July 2025. On that occasion there is likely to be a final hearing of the protection application, or in the alternative at least a detailed consideration of the appropriate interim accommodation orders.

In my view, it is not appropriate to leave the current orders in place until July 2025. I will make orders that more accurately facilitate the continuation of the arrangements that are currently in practical effect for the care of the children.

I will also add further safeguards proposed by the Secretary, which I regard as manifestly in the best interests of the children having regard to the contents of the CCC report and the evidence as a whole.

In doing so, I am not making any findings of fact. I am adopting the approach the applicable authorities lay down of taking a precautionary approach in the children’s best interests based on my assessment of the risks that appear to arise.

In fashioning the appropriate orders, I also note and give weight to the current Family Court orders, which are final orders, and which are to the effect that the father has sole parental responsibility for the children and they must live with him and have little contact with the mother. I also give weight to the most recent clinical and psychological report, the CCC report, by the senior forensic psychologist, Dr Verity dated 14 February 2025, which is broadly consistent with the Family Court orders and also recommends treatment or counselling for all members of the family by a psychologist.

That report, which I have summarised in some detail, is broadly consistent with the conclusions reached by the Family Court judge and with the Family Court orders. In addition, it recommends treatment or counselling for all members of the family by a psychologist.

I also note and give weight to the Secretary’s position that an interim accommodation order may be made placing Child 3 in the father’s care but not Child 1 or Child 2.

The key issues to consider in formulating the orders are:

(a) the wishes of Child 1 and Child 2 to remain living in the same place as the mother;

(b) the wishes of Child 3 to split his time equally between being with his sisters and mother on the one hand and being with his father on the other;

(c) the absence of any other proposed suitable people with whom Child 1 and Child 2 can live, except for the current carers;

(d) endeavouring to nurture the relationship between the siblings;

(e) the parental relationship between the children and both the parents, and in particular:

(i) maintenance of the parental bond between the father and Child 3;

(ii) endeavouring to allow the relationship between Child 1 and Child 2 and the father to be rebuilt; and

(iii) respecting the wishes of all three children regarding their mother;

(f) safeguarding from parental alienation by either parent against the other; and

(g) ensuring access to recommended therapeutic care for all the members of the family.

There is essentially no basis for thinking the father presents any risk to Child 3.

The suggestion that the father may be a direct or physical risk to either of the other children is very weak. There is cause for concern that, at least in the past, they have been influenced to have a negative view of him, perhaps by the mother. However that may be, they are at present averse to having contact with their father, and there may be an adverse psychological impact on them at this time if these wishes were to be overridden.

The mother presents as a risk — of a complex psychological kind — to all three of the children. However, addressing that risk must be balanced with the harm that could be caused by any abrupt change in their current practical care and contact arrangements, including the level of contact they currently have with their mother, and the fact that the siblings are living together every second week.

I have decided that, in respect of each child, a different interim accommodation order should have been made and I propose to set aside the orders and make fresh orders to the following effect:

(a) the interim accommodation orders should not purport to prevent the father or the mother from living with the children — this will formalise the permission for the mother to live with the children’s current carers and Child 3 to live (every second week) with the father;

(b) each order should permit the mother to live with the carers and to have contact with the children monitored by the carers of the minimum duration currently provided, which is six hours per day while the children are in the care of the current carers;

(c) there should be a condition precluding both the mother and father denigrating the other, utilising physical discipline or discussing the court proceedings with the children;

(d) there should be monitoring of the mother’s contact with the children; and

(e) there should be a condition requiring the mother and the father to participate in an assessment by Dr Milburn, or other similarly qualified expert nominated by the Department, and to comply with any recommendations the expert makes.

The conditions relating to the father’s contact with Child 1 and Child 2 should remain as they are.

In addition, specifically for Child 3:

(a) (as noted above) the interim accommodation order should not purport to prevent the father from living with Child 3;

(b) on the contrary, the interim accommodation order should place Child 3 in the father’s care, provided that the child will spend seven days in each fortnight with the current carers, in whose home the mother and sisters also currently live.

I was told by counsel that the above could be achieved by framing an order for Child 3 to have seven days of respite care with the current carers in their home every two weeks. This brings the order into line with current practical arrangements, which are that Child 3 is in the unsupervised and unmonitored care of his father for seven days every two weeks and in the care of the current carers for the other seven days, during which days Child 3 is with his sisters and his mother. They are living at the carers’ house and the mother enjoys monitored contact of at least six hours a day at those times.

Further, there should be some flexibility in the fortnightly arrangements. They should be subject to each of the father and the current carers giving reasonable consent to requests for minor or short-term variations in the timetabling of care of Child 3 under the auspices of the Department. The father and current carers must also give reasonable consent to alternative short-term respite placements should the need arise, with a person approved by DFFH.

Orders

Following the delivery of oral reasons, the Court heard the parties on the appropriate form of orders.

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SCHEDULE OF PARTIES

Chad Ross (a pseudonym)	Appellant
-and-
The Secretary To The Department of Families, Fairness and Housing	First respondent
Annie Keller (a pseudonym)	Second respondent
Child One (a pseudonym)	Third respondent
Child Two (a pseudonym)	Fourth respondent
Child Three (a pseudonym)	Fifth respondent

[2025] VSC 195

2 April 2025 (oral ex tempore); 15 April 2025 (revised); 30 April 2025 (revised)