Samper & Harpe - [2023] FedCFamC2F 1646

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Samper & Harpe [2023] FedCFamC2F 1646

File number(s): MLC 11709 of 2020

Judgment of: JUDGE PARKER

Date of judgment: 22 December 2023

Catchwords: FAMILY LAW – PARENTING – unacceptable risk – where Father has pleaded guilty to sexual offences against Mother when she was a minor – where Father is registered sex offender - where Court finds Father has additionally subjected Mother to serious family violence – where Father holds unremittingly negative attitude towards Mother and accepts no responsibility for his own conduct – where Father is lacking in insight – orders made for no time or communication with Father

Legislation:
Crimes Act 1958 (Vic) s 49N

Evidence Act 1995 (Cth) ss 79, 128, 140

Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61DA, 114AB, 117

Sex Offenders Registration Act 2004 (Vic) s 111A

Cases cited:
A & A [1998] FamCA 25; (1998) FLC ¶92-800

B & B (Access) [1986] FamCA 52; (1986) FLC ¶91-758

B & B [1993] FamCA 143; (1993) FLC ¶92-357

Bant & Clayton [2019] FamCAFC 198; (2019) FLC ¶93-924

Bielen & Kozma [2022] FedCFamC1A 221

Blinko & Blinko [2015] FamCAFC 146

Champness & Hanson [2009] FamCAFC 96; (2009) FLC ¶93-407

Cotton & Cotton [1983] FamCA 18; (1983) FLC ¶91-330

Dennison & Wang [2010] FamCAFC 182

Harridge & Harridge [2010] FamCA 445

Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC ¶94-092

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Lorreck & Watts [2012] FamCAFC 75

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

Maluka & Maluka [2011] FamCAFC 72; (2011) FLC ¶93-464

Mazorski & Albright [2007] FamCA 52

McCall & Clark [2009] FamCAFC 92; (2009) FLC ¶93-405

Moose & Moose [2008] FamCAFC 108; (2008) FLC ¶93-375

Mulvany & Lane [2009] FamCAFC 76; (2009) FLC ¶93-404

N & S & The Separate Representative [1995] FamCA 139; (1996) FLC ¶92-655

Napier & Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303

Pascoe & O’Keefe and Ors [2018] FamCAFC 243

Re Andrew [1996] FamCA 43; (1996) FLC ¶92-692

R & C [1993] FamCA 62

Sigley & Evor [2011] FamCAFC 22

Slater & Light [2013] FamCAFC 4

Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038

Vasser & Taylor-Black [2007] FamCA 547; (2007) FLC ¶93-329

Division: Division 2 Family Law

Number of paragraphs: 250

Date of last submission/s: 20 December 2023

Date of hearing: 24-27 July, 23 October and 10 November 2023

Place: Adelaide

Counsel for the Applicant: Mr McQuade

Solicitor for the Applicant: Daniel John Lawyers

Solicitor Advocate for the Respondent: Mr Jelbert

Solicitor for the Respondent: Gibson & Associates Family Law

Counsel for the Independent Children’s Lawyer: Ms Lindsay

Solicitor for the Independent Children’s Lawyer: Legal Services Commission of South Australia
ORDERS

MLC 11709 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR SAMPER

Applicant

AND:
MS HARPE

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE PARKER

DATE OF ORDER:

22 DECEMBER 2023

UPON NOTING THAT:
A.Pursuant to section 65DA(2) and Section 62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to an comply with an Order are set out in Annexure A and the Fact Sheet from the Federal Circuit and Family Court attached hereto and these particulars are included in and form part of these Orders.

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The Mother have sole parental responsibility for the child X born in 2017 (‘the child’).
3.The child live with the Mother.
4.The child spend no time and have no communication with the Father.
5.The Father be restrained and an injunction is hereby granted restraining the Father from:
(a)Communicating with the child and/or the Mother directly, indirectly, in person or remotely, by social media or electronic means or otherwise;
(b)Attending at or within 200 metres of the home of the child and/or the Mother;
(c)Attending at or within 200 metres of any place of care, residence, recreation, education, allied or medical treatment, social or other engagement or employment of the child and/or the Mother;
(d)Removing the child from the Mother or from any care or other person, organisation or care facility at which the child is in attendance; or
(e)Causing or permitting any other person to do those things set out in this order.

6.In the event that the Father finds himself within 200 metres of the Mother and/or the child, the Father shall immediately remove himself from this location without making his presence known to either of the Mother or child.
7.The Mother be restrained from denigrating the Father to or in the presence of the child or permitting any other person to do so.
8.The appointment of the Independent Children’s Lawyer be discharged.
9.All extant applications are otherwise dismissed.

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

Before the Court are the parties’ competing applications for parenting orders with respect to the child X, who was born in 2017 and was aged 6 at the time of the trial. X has been diagnosed with Global Developmental Delay and Autism Spectrum Disorder and is in receipt of National Disability Insurance Scheme funding.
The Applicant Father, MR SAMPER, was born in 1993 and at the time of commencement of the trial was aged 29. The Respondent Mother, MS HARPE, was born in 1996, and at the time of commencement of the trial was aged 26.
The parties gave differing evidence about the circumstances of the commencement of their relationship and cohabitation. For reasons set out later in these reasons, I accept the evidence of the Mother that she moved into the residence where the Father lived with his mother when she was 15 and the Father was 18, and that he had engaged in sexual intercourse with her on the first night she resided there despite knowing that she was underage, and that the parties’ relationship commenced at that time. It is not a matter of contention that by that time, the Mother had already had a traumatic childhood, which had included, amongst other things, physical abuse at the hands of her father and neglect by her mother, who had put her out of her home at the age of 11.
The parties had an ‘on and off’ relationship and separated on a number of occasions. There is a dispute between them, which it is not necessary to determine, as to the precise nature of their relationship at various times up until 2018 (when X was one year of age), at which point it is agreed that there was no longer any relationship between them.
X presently resides with the Mother in Adelaide, South Australia, and it is agreed that he will continue to do so. The other members of the Mother’s household are the Mother’s current partner and their infant daughter.
The Father resides in the City B region in Victoria. He shares his time between the home of his mother and stepfather and that of his partner MS D.
X has not seen or spent time with the Father since a supervised contact visit in February 2022, prior to which he had not spent time with him since in or around mid-2020.
THE PARTIES’ APPLICATIONS
The Father sought, in summary, that he and the Mother have equal shared parental responsibility for X, that X spend time with him for the first half of every short school holiday period and for a period of three consecutive weeks during the long summer school holidays each year, and that he and X have video communication each Sunday and Thursday. The Father also sought mutual injunctions with respect to illicit substance use and denigration, orders directed to the exchange of information and documents with respect to X and liberty to attend school events.
The Mother sought that she have sole parental responsibility for X, that X live with her, that there be no order for him to spend time with the Father, and that the Father be restrained from removing X from her care.
The Independent Children’s Lawyer supported the Mother’s position with respect to parental responsibility. His position at the conclusion of the trial was that there should be no time or communication of any kind between X and the Father and that there should be no obligation imposed on the Mother to keep the Father informed of developments with respect to X.
THE PARTIES AND THEIR EVIDENCE
The Father relied upon a trial affidavit filed on 19 June 2023. He also relied on an affidavit of his partner, Ms D, who was not required for cross-examination. Ms D has not met X. Her evidence was not germane to the issues requiring determination.
The Father was cross-examined by Counsel for the Mother and Counsel for the Independent Children’s Lawyer. His demeanour was generally calm and polite and he answered most of the questions put to him, but he exhibited a tendency to deflect and criticise the Mother when asked about his own conduct and to launch into speeches that were not responsive to the questions asked.
It was clear from the Father’s evidence that he loves X and yearns for a meaningful involvement in his life. There were, however, difficulties with the Father’s evidence with respect to a number of important issues. The most significant of these was his evidence with respect to his history of sexual offending against the Mother when she was a minor, which issue is considered in greater detail later in these reasons. This was one of a number of matters in relation to which the Father’s evidence was demonstrably false, many of which are considered throughout these reasons. In addition to unsatisfactory evidence in relation to significant and important issues, the Father casually gave contradictory evidence in relation to inconsequential matters, such as whether his partner smokes. The Father’s evidence also revealed a lack of insight into many important aspects of X’s safety and wellbeing and a lack of reflective capacity with respect to his own behaviour.
The Father conducted himself poorly in the courtroom during the trial, particularly during the Mother’s evidence. This included breaking into loud and exaggerated sobs at odd moments while the Mother gave her evidence; staring at the Mother during her evidence in a manner which appeared to me, and which was visibly perceived by the Mother to be, intimidating; and smirking at the Mother while she gave evidence, with obvious difficulty, about sensitive and traumatic topics. This behaviour caused the Mother obvious distress and resulted in a security screen being erected to shield her view of the Father while she gave her evidence. When the Father was asked to sit in a position where the screen would obscure the Mother’s view of him, he audibly sighed and rolled his eyes in a dramatic fashion. Counsel for the Father was given notice that regard would be had to his conduct in the courtroom.
The Mother relied upon a trial affidavit filed on 11 July 2023. She was cross-examined by Counsel for the Father and Counsel for the Independent Children’s Lawyer. She impressed as quietly spoken and timid. She answered the questions put to her and made frank concessions, including concessions of her own past poor behaviour, which she did not seek to minimise, and concessions that at times in the past, she had struggled to cope with the care of X and had at times been emotionally unavailable to him, particularly at times close to court events.
At times during her evidence, the Mother became visibly distressed, particularly when giving evidence about the Father’s treatment of her during their relationship and about her current concerns for her safety. At one point during the hearing, information which the Mother sought not to have revealed to the Father for safety reasons was inadvertently spoken aloud by Counsel. The Mother’s distressed response exhibited genuine fear. She also cried when giving evidence that she was ‘terrified’ of the Father. Her evidence in this regard was compelling.
The Mother was cross-examined about South Australian Department for Child Protection records which revealed that upon her arrival in Adelaide with X in 2018, she had informed that department that she was homeless and living in a car with X. She admitted that this had not been the truth and that she had in fact been staying with a friend. She said that she had given this false information to obtain priority housing for herself and X. She tearfully gave evidence that she had done so to avoid having to return to City B.
This admission by the Mother of having given untruthful information to a government authority was not dissimilar to an admission made by the Father that he ‘may have’ lied to Victorian child protection authorities about whether he was living with the Mother and X in late 2017, save that the lie told by the Father attracts the added concern that it was directed to deceiving child protection authorities with respect to matters pertaining to X’s safety.
Counsel for the Father pointed to a small number of aspects of the Mother’s evidence which he submitted indicated that she was ‘prepared to lie on oath to paint herself in an innocent light and to paint the Father in a bad light.’ He submitted that ‘seldom does one party alone have a monopoly upon truth.’ As will be seen, it was in fact the Father and not the Mother, who was shown to have lied under oath in relation to extremely important and serious matters in order to paint himself in an innocent light and paint the Mother in a bad light.
I accept that the Mother’s evidence was not wholly without discrepancies, but notwithstanding this fact and her admission that she had lied to authorities on a past occasion, the Mother’s evidence was significantly more credible than that of the Father, whose evidence contained blatantly false evidence about extremely serious and important issues. I accept the submission of the Independent Children’s Lawyer that the Mother’s evidence was generally cogent and plausible. As a result, where the evidence of the parties conflicts, I prefer the evidence of the Mother.
The Independent Children’s Lawyer relied on a Child Impact Report prepared by Court Child Expert Ms C dated 9 September 2022 (which was relied upon without objection despite its author not being made available for cross-examination); the Family Report of Regulation 7 Family Consultant Ms E dated 30 March 2023; and affidavits of the Independent Children’s Lawyer filed on 28 April 2021, 18 May 2021, 29 March 2022, 18 January 2023 and 16 May 2023, to which were annexed records from the Victorian and South Australian child protection departments and Victoria Police regarding the parties, the results of drug testing undertaken by the Father, a report from the F Contact Centre in South Australia (‘the Contact Centre’) with respect to the visits in early 2022, and a report from single expert psychiatrist Dr G with respect to the Father dated 5 December 2022.
In accordance with section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’), all findings of fact in this judgment are made on the balance of probabilities. Noting that some of the evidence in this matter relates to serious criminal conduct, I have had regard to the matters set out in section 140(2) of the Evidence Act, including the gravity of the matters alleged. The standard of proof of the balance of probabilities is ‘not the measure by which an unacceptable risk of harm is to be assessed,’[1] and it has not been applied to the consideration of issues of unacceptable risk in these reasons.
[1] Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC ¶94-092.
HISTORY OF CARE ARRANGEMENTS
The parties gave conflicting evidence as to the arrangements that had been in place for X’s care between 2018, when the Mother moved to Adelaide, and early 2020. The Father’s evidence was that X had lived with him for approximately 70 percent of the time. In the witness box, he said he could ‘prove it.’ He did not prove it. He also asserted that his mother could confirm his story in this regard but did not call her as a witness despite the fact that she was present in the courtroom during the trial.
The Father also gave evidence both that the Mother had relocated from City B to Adelaide in 2018 and left X in the care of the maternal grandmother and that the Mother ‘always dictated when [he] could spend time with [X] in accordance with her mood and when she thought it was convenient for her.’ Neither statement sat well with his evidence that X had been in his care for 70 percent of the time.
In the witness box, but not in his affidavit, the Father alleged that there had been an incident where the Mother had left X in the care of her (the Mother’s) maternal grandmother while she maintained a ‘nightlife’ in Adelaide. He alleged that he had ‘discovered’ him there, that he had no idea how long he had been there, and that he had found him gravely ill, not eating, suffering with a medical condition, and with eczema all over his body. He said that the police had considered it to be ‘disgusting’ but had been unable to do anything because, inexplicably, ‘their hands were tied.’ He claimed that he had ‘got him back to good health.’ No police, child protection or medical records were adduced which supported this story. Although he initially said this incident had occurred in early 2019, he also cited it as the precipitant to the filing of his application, which was brought in October 2020. The Father’s evidence in relation to this incident had the air of being grossly exaggerated, if not entirely fanciful.
It was submitted on behalf of the Father that the Court should draw an inference from the fact that the Mother did not ultimately rely on the evidence of her paternal grandmother, Ms H despite having indicated an intention to do, that she had realised that her evidence would not assist the Mother’s case in relation to her always having had the primary care of X following separation. In my view, the specificity of the inference sought on behalf of the Father in this regard exceeds the extent of any inference available pursuant to the rule in Jones v Dunkel.[2] In any event, not only did the Mother give evidence acknowledging that she had relied on both of her grandmothers for assistance with caring for X during the relevant period, the significance of this is limited in circumstances in which it is not in dispute that the Mother will continue to be X’s primary caregiver.
[2] [1959] HCA 8; (1959) 101 CLR 298.
The Father alleged that X had returned to the Mother’s care in late 2019 after living with him for the majority of that year and that thereafter, she refused to allow X to spend time with him. Despite having told the Family Report writer Ms E that he had ‘plenty of proof’ that X had been primarily in his care following separation, the Father provided no such proof to the Court.

The Mother’s evidence was that in mid-2018, she told the Father that she and X would be moving to Adelaide and he said words to the effect of ‘Good. Fuck you. Fuck off. I don’t give a fuck. He’s not my kid.’ The Mother’s evidence was that between her return to Adelaide with X in 2018 and the border closures arising from the COVID-19 pandemic in 2020, the Father spent limited time with X, all of which occurred when she travelled with X to City B and all of which occurred in the company of the Mother, members of her family or the paternal grandmother. She admitted that there were times during 2018 and 2019 after she moved to Adelaide when X spent time in the care of each of her grandmothers in City B because she was struggling with her mental health and the care of X and needed support. She admitted that she had not always told the Father when X was in City B but said she usually had. She denied that X had spent any time living in City B after her move to Adelaide.
The Mother deposed that over the summer of 2019/2020, she and the Father had arranged for X to spend 5 nights in the care of the Father and the paternal grandmother, following which the Father and the paternal grandmother had refused to return X to her, requiring her to enlist the help of her aunt, Ms K, to retrieve him. The Father gave evidence that he had contacted the Mother’s aunt and arranged for her to drive X back to Adelaide and said that had Ms K not done so, he would have driven X back to Adelaide himself. He denied that the Mother had been required to enlist the assistance of Ms K to retrieve X and asked facetiously whether she had done a ‘team raid.’ The Father tendered text messages between himself and Ms K[3] which demonstrated that he had contacted her, advised her that the Mother had given him her number and that the Mother had suggested that she could drive X with her to Adelaide. The messages confirmed that the Father had willingly provided X to Ms K but did not address the Mother’s evidence that he had been refusing to bring X to Adelaide and had not returned him to her care after the agreed period of time. I accept the Mother’s evidence as to the Father’s conduct in this regard.
[3] Exhibit F2.
The Father’s evidence was that it was at this time that X ceased living primarily with him and entered the care of the Mother. In the witness box, however, he gave evidence that up until the end of 2019, at handovers, the Mother would let him know what had been happening with X and give him a bag for him, which suggested that X was in fact living with the Mother.
As a result of the identified difficulties with the Father’s evidence in relation to this issue and more broadly, I accept the Mother’s evidence with respect to X’s living arrangements between 2018 and 2020. I find that X resided with the Mother in Adelaide, that he spent limited time with the Father, and that such time as they did spend together was (or was believed by the Mother to be) spent in the presence of others.
The Father commenced the present proceedings on 28 October 2020. Pursuant to orders made on 22 November 2021, the parties enrolled at the Contact Centre so as to facilitate supervised time being spent between X and the Father. One session of supervised time took place on 29 January 2022 and proceeded without significant incident. A second visit was attempted on 12 February 2022 but did not proceed as a result of X’s refusal. The Contact Centre thereafter declined to facilitate visits. X has not spent any time with the Father since that time.
THE FATHER’S CRIMINAL CONDUCT
In mid-2022, the Father was charged with sexual penetration of a child under 16 years. The complainant with respect to these charges was the Mother. The Father was also charged with weapons offences. The Father deposed that the weapons charge related to a ‘….’ The Mother’s evidence was that it was a weapon and that he had threatened her with it.
In late 2023, while the trial in these proceedings was adjourned part heard, the Father pleaded guilty to sexual penetration of a child under 16 years (one of which was a rolled-up charge), and drugs and weapons possession charges. He was sentenced in late 2023.
For the sexual penetration charges, the Father was convicted and received a suspended prison sentence. For each of the drug and weapons charges, he was fined without conviction.[4] The Father was required to register as a sex offender pursuant to the Sex Offenders Registration Act 2004 (Vic) for a period of 15 years. It was submitted on behalf of the Father that the Sex Offenders Registration Act 2004 (Vic) does not prohibit the offender’s attendance at a school or childcare facility. This submission did not engage with the provisions of section 49N of the Crimes Act 1958 (Vic), which regulates loitering by sexual offenders at schools, children's service centres, education and care service premises and public places regularly frequented by children.
[4] Exhibit F3.
There is no evidence before the Court as to the precise conditions imposed upon the Father as a consequence of his registration and the extent (if any) to which the registration would impact on his ability to do the things he sought to be permitted by this Court to do, such as attend school events and activities. Counsel for the Father foreshadowed that an application may be made for a registration exemption order pursuant to section 111A of the Sex Offenders Registration Act on the basis of the Father’s age at the time of his offending. There is no evidence before the Court with respect to whether such an application has been made or the outcome of such an application.
The sentencing remarks by the judge were tendered by the Independent Children’s Lawyer after the close of the parties’ evidence without objection.[5] Those remarks reveal offending by the Father that commenced on the same day upon which the Mother was brought to the residence at which he lived with his mother by child protection workers when she was a child. I note that the age difference between the parties is three years, the Father was aged 18 and was therefore young at the time of his offending, and that the Father appears not to have reoffended in a similar manner in the period of over 11 year that has elapsed since.
[5] Exhibit ICL11.
However, it is of significance that not only was the Mother underage, but the behaviour described in the sentencing remarks was predatory and involved the Father taking advantage of the Mother’s significant vulnerability as a homeless child, having held himself out as a person who could provide sanctuary to her, for his own gratification. As submitted by the Independent Children’s Lawyer, the purpose of the legislation prohibiting conduct of the type engaged in by the Father is to ensure that children are protected. The sentencing remarks describe the Father’s moral culpability as high and his offending as calculated, noting that his child victim was vulnerable, that she was in his home because she had nowhere else to go, and that he had taken advantage of her, knowing she was underage.
The Father’s evidence before this Court with respect to this issue was that he and the Mother ‘never engaged in sexual intercourse until after the Mother was 16 years old’ (being the age of consent in Victoria, where the offending took place). He told the single expert psychiatrist Dr G that ‘she has tried this a couple of times and she has been caught lying and the judge said that her testimony couldn’t be relied on. They took my phone and I haven’t been charged.’ This statement by the Father was demonstrably false. He was interviewed by Dr G in late 2022 and had been charged with the offences in question several months earlier in mid-2022. Under cross-examination, the Father referred to the Mother ‘going to police to have me charged for things I have not done.’
The Father’s evidence in this regard was plainly inconsistent with his guilty pleas. Those pleas are consistent with the Mother’s evidence of the history of the parties’ relationship, which involved the parties having met online when she was 12 or 13 years old, having met in person approximately a year later, and the Father having responded to a post she made on social media when she was 15 years old, facing homelessness and looking for a place to live. The Mother’s evidence was that she had moved in with the Father and his mother at that time, and that the Father had engaged in sexual intercourse with her from the first night she was there. The Mother was emotional while giving evidence of the Father’s offending against her. While Counsel for the Father emphasised that the sexual offences to which the Father pleaded guilty all occurred within a 24 hour period, I accept the evidence of the Mother that the Father’s offending conduct was repeated on numerous occasions prior to her sixteenth birthday.
The Mother deposed that the parties had initially falsely told the Father’s mother that she was 17 years old. The Mother first said under cross-examination that the Father had told her via messenger that she would need to tell his mother than she was 17 but then conceded that the messages between the parties did not reveal this to be the case. She said that she had misunderstood the question she had been asked and confirmed that her evidence was that he had said that to her, but that the conversation had not taken place via messenger. This latter statement was consistent with her police statement.
The Father asserted in the witness box that the Mother had misled both him and his mother into believing that she was 17 ‘for a place to stay’ and that he had been ‘shocked’ when he discovered that not to be the case. Although he acknowledged that he had had discussions with child protection workers before they had approved the Mother staying with him, and he was therefore obviously aware that she was under some form or care or supervision by child protection authorities, he denied having had knowledge of the Mother’s age. That evidence was unconvincing at the time it was given and was subsequently contradicted by the sentencing remarks, which reveal that the evidence before the criminal court included messages between the parties referring to sexual intercourse between them and acknowledging that the Mother was underage. I accept the Mother’s evidence that the Father had been aware of her age when she moved into his house.
It was submitted on behalf of the Father that the absence of a victim impact statement made on behalf of the Mother in the criminal proceedings contradicts the Mother’s evidence and gives rise to the weight that should be given to the Mother’s statement given to police with respect to the offending.[6] No application was made on behalf of the Father to reopen his Counsel’s cross-examination of the Mother in order to put this suggestion to her. In any event, I do not accept the proposition that the absence of a victim impact statement gives rise to the need for caution with respect to her evidence or her statement to police.
[6] ICL5.
The Father deposed that the Mother had not made the complaints to the police with respect to the sexual penetration charges until after he had commenced the present proceedings. It was put to her that she had made the complaint to deter him from pursuing the family law proceedings. She denied this. Her evidence was that two police officers and two family violence workers had attempted to talk to her about the Father’s conduct in 2013 but she had not been ready to talk about it at that time, and had ‘pushed away help,’ but that she had eventually made a statement after one particular detective had persevered and continued to care. I accept the Mother’s evidence but note in any event that the timing of her complaints to police is wholly irrelevant given that they were unquestionably truthful.
The Father pleaded guilty to the charges and was sentenced after the conclusion of his evidence before this Court. Evidence demonstrating the guilty pleas and sentences[7] was tendered on his behalf without objection when the trial resumed. No application was made on the Father’s behalf for him to be recalled to give further evidence about that issue, and indeed an application to that effect foreshadowed by the Independent Children’s Lawyer was met with opposition by the Father. It is evident from the written submissions filed on behalf of the Father that he accepts that his guilty pleas constitute conclusive evidence of his guilt and he no longer relies on his plainly false denials.
[7] Exhibit F3.
The Father’s conduct in offending against the Mother when she was a child is extremely serious and concerning. This conduct raises considerable concern about the Father’s suitability as a role model for X, and particularly what X might learn from him or model from him as he grows older in terms of attitudes towards predatory behaviour, sexual misconduct and disrespectful attitudes towards girls and women. The Father’s history of having sexually offended against the Mother also gives rise to the need for caution about any orders which would have the effect of forcing the Mother to have ongoing contact and communication with her abuser and the risk that this could have a detrimental impact on her which could impact on her parenting.
It was suggested by Counsel for the Father during the course of the trial that the circumstances of the Father’s offending may not have been ‘violent.’ This suggestion must be rejected. Sexually abusive behaviour is specifically listed as an example of conduct that may constitute family violence within the definition in section 4AB of Family Law Act 1975 (Cth) (‘the Act’) and is plainly violent. If the submission was intended to convey that the conduct was not physically forceful, I reject the suggestion that physical force is required before conduct may constitute violence, which is inconsistent with contemporary understandings of family violence.
The Father’s conduct in giving what was plainly false evidence with respect to his sexual offending against the Mother is itself a matter of significant concern. While the Father was entitled to the benefit of the privilege against self-incrimination with respect to the criminal proceedings he was facing at the time of the commencement of the trial in this Court, it was open to him to seek a stay or adjournment of the family law proceedings pending the outcome of the criminal proceedings or to object to giving evidence with respect to the subject matter of the criminal proceedings without the protection of a certificate pursuant to section 128 of the Evidence Act. Giving untruthful evidence was not an acceptable course.
The Father’s conduct demonstrates a willingness on his behalf to give false evidence to the Court about serious and important issues when he perceives that so doing will assist his case, which undermines the reliability of his evidence generally. As submitted on behalf of the Independent Children’s Lawyer, the Father by his actions sought to undermine the ability of the Court to assess the issue of unacceptable risk to X. The Father’s conduct in this regard also demonstrates a concerning refusal to take responsibility for his past actions and a callous disregard for the impact on the Mother, who is X’s primary caregiver, and who, as the Father is well aware, already suffers difficulties with her mental health resulting from trauma, of having her traumatic experience as the child victim of sexual offending knowingly denied and dismissed by the perpetrator.
When interviewed by Dr G, the Father took a self-pitying approach, painting himself as the victim with respect to this issue. He was critical of the Mother, his victim, alleging that she was ‘trying to get [him] in trouble and ruin [his] life’ and ‘trying to destroy [him].’ The Father’s conduct in seizing on the circumstance of his serious offending against the Mother as an opportunity to criticise her is a significant concern.
To Ms E, the Father alleged that the Mother had made false allegations about ‘sexual misconduct’ and said ‘yet there were people on drugs that were in their mid 20s that had sex with her but she did not charge them.’ Irrespective of whether this last remark is accurate, that the Father could speak with so little empathy of the Mother having been a child victim of multiple sexual offenders is a matter of serious concern, particularly in light of his own knowledge that he had offended against the Mother as she alleged, and that she had been a vulnerable and already traumatised child when he had done so. It is not a matter of contention that the Mother had nowhere to live and was dependent upon the Father and his mother to provide her with accommodation at the time of the Father’s offending. The Father’s evidence was that at the time the Mother commenced residing in his residence, he understood that she was going through an extremely tough time.
The Mother gave evidence that the Father’s conduct in denying what he had done to her made her feel as though everything she had gone through had meant nothing and that it had all just been dismissed. Ms E expressed concern about the impact on the Mother of the Father’s conduct in denying what he had done to her as a child, including the potential that it could impact on her emotional wellbeing, affect her feelings of safety and security, and cause her fear, stress, diminishing self-esteem and significant trauma, which could have a profound impact on her functioning and her parenting capacity and would add to the difficulties of parenting X. Ms E agreed that the Father’s conduct in running his case on the basis of a denial of his offending against the Mother constituted ongoing violence and that it had an impact on X. Interpreting the Father’s conduct in making false denials in the light most generous to the Father, it suggests that he is severely lacking in insight into the seriousness of the impact of his behaviour.
As a result of the fact that the Father made no application to adduce further evidence after his guilty pleas, the Court was left without any explanation from him about his plainly false denials of his offending against the Mother and without any evidence to suggest that he had gained any insight into the seriousness of his offending or its impact on the Mother and, by extension, X. There is also no evidence before the Court to suggest that the Father feels any regret or remorse with respect to either his conduct towards the Mother or his attempt to mislead the Court about this serious issue, or that he has any appreciation of the likely impact on the Mother and her parenting of being required to continue to have contact with him. The only reference to remorse in the sentencing remarks is a finding that the Father’s guilty plea reflects some level of remorse for his conduct. Ms E gave evidence that her recommendation that the Father have no time with X was reinforced by his guilty plea.
FURTHER RISKS ASSOCIATED WITH THE FATHER
Family violence
The Mother alleged that in addition to his history of sexual offending, the Father poses an unacceptable risk to X for a number of reasons. One of these reasons was that the Mother alleged that the Father had subjected her to extremely serious family violence during the course of their relationship. Her evidence was that this had included:
(a)physical violence, including strangling, choking (including to the point where she lost consciousness), punching her to the face, breaking her nose, smashing an iPad over her head, hitting her head into a door, kicking her and spitting on her including while she was pregnant with X, punching her to the stomach and threatening her with a weapon;
(b)sexual violence including forcible rape (in addition to the sexual offending to which he pleaded guilty);
(c)emotional abuse including calling her names such as ‘cunt’ and ‘slut’;
(d)property damage including smashing phones and punching holes in walls; and
(e)coercive control, threats and intimidation, including threatening to drive her and X into a tree, threatening to disseminate intimate photographs of her and forbidding her from associating with other men.

The Mother’s allegations were consistent with the contents of the child protection and police records relied upon by the Independent Children’s Lawyer.
The Mother alleged to Ms E that the Father had subjected her to physical violence in the presence of his mother. The Father denied that his mother had witnessed him assault the Mother but did not call his mother to give evidence to this effect.
Counsel for the Father relied in his final submissions on evidence given by the Mother early in the proceedings to the effect that she had been grateful to the Father for taking her in at the time she had first moved into the home in which he resided with his mother. He sought to contrast this with the Mother’s evidence of her experience of family violence at the hands of the Father. In my view, the Mother’s expressions of gratitude underscore the predatory nature of the Father’s offending against her and provide a credible contextual framework for her evidence that she found herself caught up in a cycle of family violence perpetrated against her by the Father.
Counsel for the Father also relied on evidence given by the Mother early in the proceedings which indicated that there had been times during their relationship when the Mother had been ‘comfortable enough’ to have sought and accepted the Father’s assistance, including his assistance in caring for X (in her presence) when she was unable to do so immediately following his birth. This does not, in my view, contradict or undermine the Mother’s evidence of having been subjected to family violence, particularly in light of the further evidence given by the Mother to the effect that following X’s birth by caesarean section, she had struggled to walk, had required assistance with lifting and caring for X, and had nobody else to help her.
The Father acknowledged some conduct towards the Mother which was controlling in nature, though he did not appear to appreciate that this was the case. For example, he complained to Ms E that during the relationship, the Mother had many male friends so he ‘had to worry about them and worry about what was going on in my house.’ He gave evidence that he had generally had concerns about the Mother having friends who were males but had ‘allowed’ her to spend time with her best friend who was male, and that he had used illicit drugs with the Mother because he ‘didn’t want her to do it with another male.’ He also admitted to having gone through the Mother’s phone without her consent.
It was submitted on behalf of the Father that the parties’ relationship had been ‘chaotic and dysregulated’ and that both parties had ‘perpetrated indignities on the other’ but that this did not mean that X should be ‘condemned’ to live his childhood in the absence of any knowledge of his father or any relationship or contact or communication with his father. This characterisation of the dynamic between the parties minimised the seriousness of the Father’s violent conduct and its importance to the Court’s assessment of X’s best interests.
The Mother’s case was that the violent conduct engaged in by the Father has the effect that time between X and the Father would pose an unacceptable risk of harm to X, both in the form of the risk that X will be subjected or exposed to family violence by the Father, and in the form of the risk that X spending time with the Father would compromise the Mother’s parenting capacity. I note also that a tendency towards violent conduct has ramifications for a person’s suitability as a role model for a child.
It was put to the Mother that the Father had never harmed X. She disputed this and gave as examples an occasion when X had been splattered in her blood when the Father had assaulted her in his presence, and the Father having driven in a vehicle with X unrestrained. Her evidence in this regard was credible and I accept it. In light of this evidence, I reject the submission made on behalf of the Father that the Mother ‘makes no allegation of physical harm or risk of physical harm to [X] from the father, save as to the presence of red cordial in his bottle.’ I note in any event that physical harm is not the only form of harm that is relevant to the determination of X’s best interests.
The Father denied having subjected the Mother or X to any form of family violence or threats. He alleged that the Mother was lying and had ‘manufactured allegations’ in order to alienate X from him. In light of the Father’s false denials of his sexual offending against the Mother, the Court can have no confidence in the veracity of his evidence in this regard. He responded dismissively when asked by Ms E about the allegations of violence, saying ‘if I had harmed her I would have served a jail sentence’ and alleging that the Mother had been using the Police as her ‘personal gestapo.’ He asserted that on occasions when the police had been called during the parties’ relationship, they had arrived to witness him ‘cool calm and collected’ and see he was ‘very reasonable.’ This assertion was not supported by the Victoria Police records before the Court.
The Mother was cross-examined about occasions upon which she had retracted allegations of violence she had made against the Father to police and had told police that she had been lying. Counsel for the Father also relied on independent documentary evidence suggesting that the Mother had denied allegations of risk posed by the Father and given an inconsistent narrative in relation to protective concerns relating to family violence when interviewed by Child Protection authorities. The Mother’s evidence was that she had lied on occasion during the parties’ relationship when withdrawing allegations because she did not want the Father arrested, but she had not lied when telling them what had occurred. She said she had called the police on occasion when the situation between the parties would not calm down and she had become scared, but that she had fallen into a cycle of seeing the Father at court hearings and withdrawing the charges against him. The conduct described by the Mother and suggested in the child protection records is consistent with contemporary understandings of the dynamics of family violence. It does not demonstrate that her allegations are untrue.
In direct contradiction of his denials that he had engaged in family violence towards the Mother, the Father gave evidence under cross-examination that the parties’ relationship had been plagued by family violence ‘from both parties.’ Furthermore, in light of the Father’s false denials of his sexual offending against the Mother, noting that such offending is a form of family violence, the Court can have no confidence in the veracity of any of his denials of violence.
Moreover, assertions by the Father that his conduct towards the Mother has been ‘passive’ and ‘respectful’ are completely undermined by the abusive content of text messages he admitted to having sent her, by his conduct towards her in the courtroom, as discussed earlier, and by multiple findings that he has breached family violence intervention orders, as considered later in these reasons. The Father is either being untruthful when he asserts that he consistently behaves appropriately towards the Mother or is so lacking in insight that he has no real understanding of the harmful nature of his behaviour. Either interpretation is indicative of risk.
The Mother’s allegations are reflected in child protection records relied upon by the Independent Children’s Lawyer[8] which demonstrate a long history of concerns having been raised with respect to violent, threatening and controlling behaviour on the part of the Father, and the Father having been found responsible for harm for exposing X to family violence. These records include a report of the Father having sent the Mother a string of text messages over a period of nearly 8 hours commencing at 1.15am in late 2020 including threats to kill himself and blaming her for making him feel that way. The Mother confirmed that she had received such messages.
[8] Affidavit of Mr J filed 28 April 2021.
A statement made by a Victoria Police informant tendered by the Independent Children’s Lawyer recorded that in September 2020, the Father had admitted sending a message to the Mother on Father’s Day and had told the police that he had been at his lowest point and had been going to self-harm.[9] Under cross-examination, the Father admitted having sent messages to the Mother despite an intervention order being in place, and sought to explain this by saying that he had been ‘trying to see [his] son’ and ‘she was responding, it was a conversation.’ These are not excuses for having breached the intervention order or for having sent messages of the type recorded in the child protection records.
[9] Exhibit ICL1.
The Mother also alleged that when she attended at an intervention order hearing in mid-2020, the Father attempted to physically remove X from her, requiring the intervention of sheriff officers and court staff. She also gave evidence that he attempted to intimidate her by staring at her, causing security staff to stand between them. This evidence was consistent with the conduct I observed from the Father in the courtroom during the trial.
Ms E’s evidence was that the Mother’s presentation when she met with her had been consistent with being frightened of the Father and with having experienced a longstanding loss of self in her dealings with him. She agreed that if the Mother was in communication with the Father and was frightened of him, this would have a negative impact on X. She also agreed that fear of the Father could reduce the Mother’s capacity to be available to X, a consequence that is all the more grave given X’s particular challenges.
The Mother’s evidence as to family violence was compelling and the Father’s denials were unpersuasive. I accept the Mother’s evidence that the Father subjected her to the family violence described by her. Ms E observed that the Father minimised the issue of family violence. This accords with my own observation of the Father’s attitude towards this issue during his oral evidence. The Father’s tendency to minimise his violent conduct has the consequence that there is no basis for any expectation that the Father will appropriately address his conduct.
Criminal history
In addition to his recent criminal convictions, the Father’s criminal history[10] includes (but is not limited to) convictions prior to X’s birth for violent offences including assault and recklessly causing injury, findings of guilt without conviction for burglary and recklessly causing serious injury, and a finding of guilt without conviction of having contravened a family violence intervention order, which the Father acknowledged was an order for the protection of the Mother. In the witness box, the Father denied having been charged with burglary. That evidence was demonstrably false. He minimised and sought to justify the charge of recklessly causing serious injury by saying that the other person had assaulted him first.
[10] As demonstrated in the Victoria Police records annexed to the affidavit of Mr J filed on 16 May 2023.
When interviewed by Ms E, the Father was dismissive of his criminal history and did not accept responsibility for his own behaviour or show any recognition of the seriousness of his conduct. He told Ms E ‘I don’t know about your Police stations but something they do here [in Victoria] is throw charges at you (with the) hope of one sticking’ and explained his criminal history by saying that he would have ‘to accept a charge or two.’ The evidence reveals that the Father lacks insight into the seriousness of his offending behaviour.
Breaches of family violence orders
In 2022, in an appeal from decisions made in 2021, the Father was convicted of persistent breach of a family violence intervention order with respect to the Mother and was found guilty and fined without conviction in relation to breach of a family violence intervention order. He was also found guilty and fined without conviction in relation to two counts of contravening a family violence intervention order in an appeal in 2021.
The Father’s evidence in relation to these contraventions demonstrated a troubling lack of insight into the seriousness of his conduct in having contravened intervention orders which had been made for the protection of the Mother. He claimed that he had ‘also demonstrated that six other counts of breaching the intervention order had been based upon false allegations.’ That claim was not supported by any independent evidence.
The Father admitted to having breached an intervention order by contacting the Mother to ask whether he could Facetime X on Father’s Day. The tenor of the Father’s evidence was that he believed this contact with the Mother was reasonable and the charge against him was therefore unreasonable. This, together with his evidence of having sent messages to the Mother in the context of a ‘conversation’ notwithstanding the existence of an intervention order demonstrated a complete lack of respect for and understanding of the importance of compliance with family violence orders and the fact that it is not acceptable for a person bound by such an order to pick and choose when they will comply with its terms. The Father appeared not to appreciate the problematic nature of his behaviour in disregarding the terms of the intervention order against him.
The Father told Ms E that he did not believe ‘much significance’ could be placed on an intervention order, stating ‘getting an IVO is as simple as getting a Medicare card ... just go in and say I don’t feel safe.’ He sought to justify this comment by saying that he had been referring to the specific intervention order that had been in place at the time, which is a wholly inadequate explanation. Notwithstanding these remarks and his admission of and criminal history for having breached intervention orders, the Father insisted that he respected intervention orders and took them seriously and gave evidence that he was ‘obeying very thoroughly.’ This evidence was plainly false.
On the second day of the trial, the Father was cross-examined about an incident that had occurred at the conclusion of the previous day, in which he had approached the Mother outside the courtroom, after he had given the evidence referred to above about obeying the intervention order thoroughly. It was put to the Father that he had approached the Mother and said ‘sorry to hear your nan died.’ He admitted he had said ‘sorry about [Ms L],’ Ms L being the Mother’s grandmother who had recently died. The Father asserted that he had said this to the Mother’s solicitor and not the Mother, and then changed his evidence to be that he had said it aloud to himself. Both versions were absurd. He then complained that ‘you can’t even extend an olive branch.’ The lack of judgment and restraint shown by the Father in not only breaching the intervention order but doing so shortly after insisting under oath that he respected and understood the need for compliance with such an order is a matter of grave concern.
The Father was asked under cross-examination whether he considered that the Mother might feel frightened as a result of him not following the rules. He was entirely dismissive of this suggestion, saying the Mother’s expressed fears were ‘an act.’ This betrayed a concerning lack of insight into the seriousness of his behaviour and its impact on the Mother, as well as his lack of respect for the Mother.
The Mother’s evidence was of serious safety concerns with respect to the Father. She was careful throughout the proceedings to ensure that he did not become aware of the name of her partner or their infant daughter or the name of X’s school. Her evidence with respect to her safety concerns was not only credible and compelling, but was entirely understandable when considered in light of the fact that the Father has been found to have contravened family violence orders made for her protection on multiple occasions.
It was submitted on behalf of the Father that the Mother’s fears with respect to the risks posed by the Father becoming aware of her partner’s details stemmed not from the Father’s behaviour but her own. This was based on an incident which occurred when the Mother was 18 years old in which she engaged in threatening behaviour towards another woman who she perceived to be involved with the Father. This incident is discussed in greater detail later in these reasons. This submission must be rejected. There is ample evidence before the Court, including but not limited to the evidence of the numerous occasions upon which the Father has breached family violence orders made for the protection of the Mother, which supports the genuineness of the Mother’s fear about the Father becoming aware of identifying details about her or members of her household.
Despite his knowledge of her efforts to conceal her personal information from him, during his evidence, the Father addressed the Mother directly and told her that he knew her address. This behaviour was inappropriate and troubling. The Father was unable to say what the address was. I gained the impression that the Father had said this in order to frighten the Mother. This was confirmed when he later gave evidence that he did not know her address, apparently having forgotten that he had told her that he did.
Attitude towards X’s special needs
The Father initially questioned X’s diagnosis of Autism Spectrum Disorder. He said that this was because he had not been provided with any documents in relation to the diagnosis.
During the first day of trial, he was provided with a Diagnostic Assessment Report dated 29 June 2021,[11] which confirmed X’s diagnosis. He asserted, and I accept, that he had not previously seen the report, which was dated over two years prior to the commencement of the trial. He also complained of not having been provided with other updates in relation to X’s health and medical information in contravention of the orders of 23 November 2020. The Mother gave credible evidence that she had given the report to her then-solicitor, had incorrectly believed that a copy of the Diagnostic Assessment Report had been filed and had only recently realised that the Father had not been provided with a copy. The issue of her non-compliance with the orders of 23 November 2020 is considered later in these reasons.
[11] Exhibit M1.
After having been given a brief opportunity to review the Diagnostic Assessment Report, the Father gave evidence that he wanted a second opinion. He attributed his doubts in part to an assertion that a relative suffers from Autism Spectrum Disorder and her behaviours are different from X’s, though he later tempered this and said he ‘believes’ his relative is autistic but it is a ‘sensitive issue to raise.’ Putting aside the question of how he could claim to have any real knowledge of X’s behaviours given the extremely limited time he has spent with him since he was a toddler (described by the Father himself as ‘one hour in three years’), this showed an extremely naïve and dismissive approach to the question of his son’s needs.
The Father’s complaint about not having received documents with respect to X’s health and medical needs from the Mother was not unreasonable, particularly in light of the orders of 23 November 2020, which required the Mother to provide him with such information. Rather than simply asserting that he was lacking in information about X’s diagnoses, however, the Father alleged that the Mother might be lying or that she might be to blame for X’s developmental issues for having allowed him to spend too much time on his iPad. He also suggested to the Child Impact Report Writer Ms C that unspecified ‘social workers he had been involved with’ had suggested that the Mother ‘may exhibit traits of Munchausen by Proxy.’ He adduced no evidence to demonstrate that such a concern was held by any professional, much less one who had had any involvement with the Mother or X.

The Father gave unpersuasive evidence under cross-examination to the effect that he had made enquiries of the NDIS to obtain details about X’s plan and the treatment he had been receiving but had been waiting since 2021 for a response and had not followed up again. He admitted that he had not made contact with any of the medical and allied health professionals listed on a report that had been produced by the Mother in 2021. Ms E gave evidence that this was a matter of concern because X’s needs are complex and parenting him requires proper understanding; and because a parent who is child-focused would be expected to engage with a child’s treating practitioners if they had the relevant contact details, particularly before criticising the child’s other parent and accusing them of lying.
The Father told Ms E that he believed the Mother could ‘exaggerate things’ regarding X’s development and as purported proof of this, said there were ‘moments’ when X was in his care that he was ‘miles ahead of other kids in terms of behaviour and intelligence.’ He said X’s development since ‘all this’ referring to the proceedings, had ‘halted.’ No evidence was adduced to suggest that the Father had any knowledge or experience with respect to child development by which X’s progress could be measured by him, nor how he had assessed that X’s development had ‘halted’ when he had spent only an hour with him since the commencement of the proceedings.
The Mother’s evidence was that she had noticed dysregulated behaviours in X such as meltdowns and screaming a lot prior to leaving City B, and had tried to discuss this with the Father, but he had been dismissive and blamed it on her parenting. The Mother’s evidence was consistent with the approach taken by the Father to X’s needs during the proceedings. For example, the Father described dysregulated behaviour on X’s part to Ms E, including kicking, hitting and spitting, but rather than acknowledging it as such and demonstrating a sensitive approach to his son’s struggles and needs, the Father described X as ‘pushing boundaries’ and having ‘developed bad habits’ including the spitting, which he described as ‘disgusting’ and for which he sought to attribute blame to the Mother’s partner, who he has not met.
The day after the Father was provided with the Diagnostic Assessment Report, he gave evidence that he had come to accept X’s diagnosis and withdrew his allegation as to the condition formerly known as Munchausen Syndrome by Proxy. Ms E gave evidence, and I accept, that the Father’s acceptance of the diagnosis lessened the concern with respect to that particular issue. However, the Father remained critical of the Mother, suggesting that her household (about which he knows almost nothing) could be exacerbating X’s condition.
The Father’s attitude in relation to this issue demonstrated a lack of insight. It betrayed a willingness to seize on any opportunity to criticise the Mother rather than to engage with the prospect of difficulties facing his son and take steps to educate himself about X’s needs and how he might support him. This does not bode well for the prospect that the Father would provide appropriate support or care to X with respect to his special needs if he were to spend time in his care and weighs against any finding that an order for equal shared parental responsibility would promote X’s interests.
The Mother expressed a concern to Ms E that X’s diagnoses and his attendant tendency to become heightened, combined with what she had experienced as the Father’s tendency to anger quickly, created a risk that the Father would not be able to handle X’s behaviour, which would put X at risk. In light of my findings as to the Father’s history of violent conduct and his insensitive and dismissive approach to X’s special needs, I consider these to be justified concerns.
Illicit substances
The Mother alleged that the Father has a history of illicit drug use, including use of illicit drugs, and that he sold illicit drugs during their relationship and introduced her to illicit drugs. The child protection records relied upon by the Independent Children’s Lawyer record this having been raised as a concern from the time of X’s birth. As a result of the fact that the parties presently have no interactions with one another, the Mother’s evidence in this regard is by necessity historical. The Father admitted historical substance abuse including use of illicit drugs during the parties’ relationship, but told Ms E that he had ‘never touched [illicit drugs]’ before contradicting himself and admitting that he had done so with the Mother. He gave evidence that he and the Mother had used illicit drugs together while caring for X when he was an infant. He said this had not occurred near X but ‘way down the other end of the house’ which he admitted was a small flat. The Father showed no understanding of the seriousness of the conduct he described.
The Father deposed that he no longer engages in use of illicit drugs. He deposed that he had not engaged in cannabis or other substance use since mid-2022 and that he is required to undertake random drug tests as a condition of his employment. The sentencing remarks with respect to the Father’s guilty plea in relation to possession of cannabis reveal that the cannabis in question was found by police when they executed a search warrant at his home in mid-2022. An affidavit relied upon by the Independent Children’s Lawyer annexed a urine screen produced by the Father dated early 2021 which was ‘non-negative’ for cannabis and negative for all other substances. The Father relied upon a hair follicle test for the approximate period mid to late 2022, and tendered a workplace oral fluid drug test dated mid-2023, both of which were negative for all substances.
There is insufficient evidence before the Court to enable a finding that the Father is currently engaging in illicit drug use. However, his casual attitude towards his past drug use and particularly using illicit drugs inside the same home where X was present leave the Court unable to have confidence that he understands the serious risks posed by the use of illicit drugs and that he would not do so again in future.
Mental health
The Mother raised concerns about the Father’s mental health but was unsure of the details of any condition he may be suffering. The Father informed Court Child Expert Ms C, who undertook the Child Impact Report, that he suffered ‘clinical depression.’ In his interview with Ms E, he was observed to minimise any concern with respect to his mental health.
The Father undertook a psychiatric assessment with Dr G, who opined in his report dated 5 December 2022, with a reasonable degree of medical probability, that he was suffering a chronic adjustment disorder with depressed and anxious mood. The Father has not engaged in any mental health treatment since Dr G’s report was released, despite a recommendation from Dr G that he do so.
The Father told Dr G that he had suffered depression and had had undertaken 10 sessions in 2021 with a psychologist who had told him he had healthy coping mechanisms. Ms E was asked whether the Father’s presentation to her was consistent with having developed healthy coping mechanisms. She said that it was not.
Significantly, Dr G opined that if the Mother’s account was accepted, the Father probably has significant personality problems, and that his prognosis, even if treated, ‘would be seen as guarded at best.’ Dr G was not required for cross-examination and I accept his assessment. In light of my earlier findings with respect to the Mother’s evidence regarding the Father, particularly in relation to his sexual offending against her, family violence and contraventions of family violence orders, I conclude, in accordance with Dr G’s assessment, that the Father has significant personality problems with limited prospects of successful treatment.
Negative attitude towards Mother
The Father’s unremittingly negative attitude towards the Mother is another potential risk factor. By way of one example, the Father told Ms E, without any proper basis, that the Mother was ‘not proud to be a mum.’ He also told Ms E that the Mother was ‘a narcissist.’ Ms E’s report also reveals that the Father was prepared to blame the Mother’s partner, who he does not know and has never met, for poor behaviours in X. He similarly repeatedly criticised the Mother and undermined her in his evidence.
Ms E observed that throughout his interview, the Father remained focused on his negative views of the Mother and preoccupied with presenting her as malicious and intent on interrupting his relationship with X and that he demonstrated no insight into his own role in the current situation. This accords with my observation of the Father in the witness box. Concerningly, the Father’s unrelenting negativity towards the Mother has persisted despite his indication to Ms E that the ‘most important thing’ he had learned through a Men’s Behaviour Change program with respect to his interactions with her was that ‘pointing a finger might as well be wielding a sword.’
Ms E expressed concern in the witness box that there could be psychological risks to X arising from the Father influencing him towards his negative views of the Mother. The Contact Centre report demonstrates that the Father was critical and dismissive of the Mother and her parenting in X’s presence, despite the presence of the supervisor, suggesting that he is either unwilling or unable to shield X from his views in this regard and that supervision is an insufficient measure of protection for X against this risk. Although Ms E had expressed concerns about the Father’s negative attitude towards the Mother and the ramifications for X in her report, the Father’s evidence, both in his affidavit and in the witness box, gave no indication that he had reflected on that feedback or sought to adjust his approach for X’s benefit.
The Father’s attitude in this regard poses a number of emotional risks to X in the event of time or communication between them, including the risk that X will be confused, upset or otherwise emotionally damaged by the undermining of his primary caregiver, and the risk that X’s relationship with the Mother and sense of security in her care will be undermined. The Father’s lack of insight into the problematic nature of his conduct, as evidenced by his willingness to undermine the Mother throughout his evidence, when interviewed by experts and in the presence of a supervisor, means that there is no basis for expecting that there will be improvement in his behaviour in future.
Insight
A further risk associated with the Father is his demonstrated lack of insight into the seriousness of his own conduct and the risks it has created for X. The Father told Dr G that he had ‘never said or done anything that has resulted in harm to [X].’ It is not clear whether the Father is genuinely unable to comprehend the harm to X that has resulted from the conduct in which he has engaged or whether he was simply seeking to minimise it. Either option is suggestive of serious future risk.
As opined by Ms C, it is concerning the Father is not taking responsibility for his behaviours and this increases the level of risk he may pose to X, and while the Father continues to place blame on the Mother and minimise her alleged experience of him, he misses out on opportunities to reflect on his own behaviour. This in turn means that the Court can have no confidence that there is any reasonable likelihood that the Father will change his conduct in the future. As submitted on behalf of the Independent Children’s Lawyer, the Father’s tendency to give untruthful denials rather than to accept any error or misconduct on his part and seek help or seek to make amends serves only to increase concern.
RISKS ASSOCIATED WITH THE MOTHER
Failure to facilitate relationship
The Father alleged that the Mother has engaged in ‘parental alienation’ and that she is determined to prevent X from having a relationship with him. The Mother freely acknowledged that she wishes for X to have no relationship with the Father, and that position accords with her application. The Father’s case is that the Mother’s approach in this regard is emotionally harmful to X. The Father repeatedly criticised the Mother for not wanting him to be in X’s life, apparently considering this to be self-evidently poor parenting on the Mother’s behalf, without demonstrating any insight into the reasons why the Mother might not want him to be in X’s life or the role of his own behaviour in the formation of her views in this regard.
The Father attributed X’s refusal to participate in a second visit with him at the Contact Centre to manipulative behaviour on the part of the Mother designed to undermine his relationship with X. Specifically, he alleged that on 29 January 2022, being the date of the Contact Centre visit between himself and X that had proceeded, he had seen the Mother deliberately digging her fingers into X’s ribs, causing him to scream and then pretending to console him. The Father’s evidence was that he had called out X’s name, following which X had run to him and embraced him. He asserted under cross-examination that seeing him had ‘got rid of all the stress’ for X.
The report from the Contact Centre[12] reveals that the Father called out loudly to X after specifically being told that the staff intended to wait until X was settled and in a state for the visit to proceed, at which time the Father would be invited in. The report does not support the Father’s version of events as to X running to him and embracing him upon hearing him call his name or about the Father having been in a position to witness the Mother physically harming X upon their arrival. Nor does it support a claim made by the Father to Ms E that X ‘followed his voice into the building.’ Indeed, the Contact Centre report records that X ignored the Father’s requests for a hug and moved away when the Father told him he loved him. Under cross-examination, the Father insisted that the Contact Centre staff had misrepresented what had occurred. That evidence was unconvincing. The Father showed no recognition of the inappropriateness of his conduct in having called out to a child in the care of the other parent in the setting of a supervised contact centre.
[12] Father’s trial affidavit filed 19 June 2023, annexure S-4.
The Contact Centre report also reveals that the Father repeatedly ignored other specific requests of the Contact Centre staff with respect to his conduct while at the Centre, including but not limited to repeatedly taking photographs despite having been asked not to. When cross-examined about this, the Father claimed that ‘the man’ had told him he could take photographs; demonstrated a lack of respect for the rules of the Centre by asking ‘what’s the difference if I take it or they take it;’ denied that he had done so, claiming unconvincingly that the staff were not in the room; and then denied having been made aware that the taking of photographs was prohibited. This evidence was lacking in credibility and served only to confirm that the Father does not consider it necessary to comply with rules unless it suits him. Notwithstanding his conduct and his evidence in this regard, the Father insisted that he had complied with the Contact Centre’s rules.
Unsurprisingly, the Contact Centre staff took steps to ensure that the Father had no face-to-face contact with the Mother and was not able to call out to X on the occasion of the second attempted visit on 12 February 2022. The Father deposed to being ‘absolutely certain that [X] [sic] had expressed a desire to want to spend time with [him], but that he was prevented by his mother from doing so, as [he] heard her dragging him away from the building.’ The Father’s belief is not supported by the Contact Centre report, which reveals that the Mother was observed trying to encourage X to attend for the session for approximately 30 minutes.
The Father points to a view expressed by the Mother to Contact Centre staff that the Court was ‘punishing’ her and to her failure to attend with X at what was supposed to be the first Contact Centre visit on 15 January 2022 as evidence that the Mother did not want to facilitate time spending between him and X. The Mother’s evidence was that she had not opened the email advising her of the visit until shortly before the visit, had been shocked that it had come up so quickly, and had called to cancel. The Mother’s feelings about the visit proceeding were not an excuse for failing to comply with the orders of the Court and she should not have cancelled the visit. Evidence of the Mother’s reluctance to facilitate time between X and the Father (which is not a matter of dispute) does not, however, prove the Father’s allegation that X wanted to spend time with him but was prevented from doing so by the Mother.
The Father suggested that there could be no logical reason why X was ‘happy’ to interact with him on 29 January 2022 but resistant on the next occasion two weeks later. Implicit in this suggestion was that X had not in fact been resistant on the second occasion and that his behaviour indicative of resistance had in fact been caused by the Mother. This suggestion ignores the fact that despite the fact that the visit on 29 January 2022 eventually proceeded without incident and it appears that X enjoyed parts of the visit, the Contact Centre report reveals that X had in fact also exhibited resistant behaviours on that occasion, including becoming red in the face, clenching his fists, yelling ‘no,’ and kicking and throwing toys. It also provides a clear example of what the Mother alleged is the Father’s insightless propensity to blame her when X engages in conduct indicative of Autism Spectrum Disorder.
The Contact Centre report reveals that upon learning that the Mother would not be attending the scheduled first visit on 15 January 2022, the Father walked out of his orientation session on 14 January 2022. He also behaved poorly when the session scheduled for 12 February 2022 did not proceed, including sternly telling the Contact Centre worker ‘no, you will be’ when she declined to participate in a call he attempted to make to his lawyer, and criticising the Mother for causing ‘abandonment issues’ by leaving X with a babysitter as an explanation for X’s refusal to spend time with him. The Father’s evidence with respect to these incidents was focused on perceived unfairness to himself, and the loss of visits to which he considered he was entitled, rather than consideration of X’s experience or perspective.
The Child Impact Report reveals that the Father alleged that there was ‘bias amongst the women’ at the Contact Centre and that their report was ‘biased.’ He also made the scandalous allegation that the Contact Centre staff had ‘coached’ the Mother to make X appear to be upset. The Father similarly told Dr G that the women at the Contact Centre were biased against him, and told Ms E that the visits at the Contact Centre had been cancelled because of ‘foul play.’ He further told Ms E that he had heard X ‘screaming in physical pain,’ and that he believed the Mother had been harming him, which had been ‘co-ordinated by a couple of women that work there.’ He expressed the view that the Contact Centre staff had pretended to speak to X to ‘trick’ the Father, that the Contact Centre staff had wanted the visits to occur in a particular way and so had ‘manipulated’ the sessions and that he had been ‘treated like a prisoner.’
The Father complained that the Contact Centre staff had downplayed the significance of his engagement with X, including by failing to mention him building a tower in their report. He also accused Contact Centre staff of ‘pretending’ to encourage X to send time with him and described (entirely appropriate) conduct on their behalf, such as keeping all the doors closed to avoid the Father repeating his inappropriate conduct in calling out to X, as ‘very suspicious.’ He alleged that there was a set up at the Contact Centre to stop him from spending time with X and rejected a suggestion that it was not rational to think that they were ganging up on him. The Father was clear that he did not allege that ‘the man’ at the Contact Centre was involved in the alleged set up, only the women. He also appeared to suggest at one point in his evidence that the female Contact Centre staff, Ms C and Ms E were united in attempting to stop him from seeing X. He rejected a suggestion that each had formed their own opinions.

The difficulties with respect to X’s sense of identity will be compounded by the fact that if orders are not made providing for him to have an ongoing relationship with the Father, it will not just be his father, but his entire paternal family, with whom he does not have a connection. There is no evidence before the Court to suggest that there is any existing relationship between X and any paternal family members, notwithstanding the fact that much of the time the Father spent with X prior to the commencement of the proceedings was spent in the presence of the paternal grandmother. The Mother’s evidence was that she had not received any contact from the paternal grandmother with respect to X and had received no gifts or cards for X from the paternal family since he had ceased spending time with the Father.
I accept the submissions made on behalf of the Father that X has the right to know who his father is and that the evidence suggests that the Mother cannot be relied upon to foster and promote X’s understanding of his biological father. However, notwithstanding the negative aspects of X losing the sense of identity that would come from growing up knowing and having a connection with his father and paternal family, this consideration must be secondary to the serious risks to his physical and emotional safety that are posed by the Father as outlined earlier in these reasons.
PARENTAL RESPONSIBILITY
In light of the family violence committed by the Father against the Mother, the presumption of equal shared parental responsibility does not apply.
I am, in any event, satisfied that it would not be in X’s best interests for there to be equal shared parental responsibility, as a result of the history of family violence; the potential for a deleterious impact on the Mother and her parenting if she is required to communicate with, and attempt to reach joint decisions with, the Father; the Father’s overwhelming negativity towards and lack of respect shown towards the Mother and her parenting; the dismissive attitude demonstrated by the Father with respect to concerns raised by the Mother about X’s needs, and the fact that, even on the Father’s evidence, the parties do not communicate effectively. This is consistent with Ms E’s assessment that there would be no capacity for the Mother to communicate with the Father.
As such, I shall make an order for the Mother to have sole parental responsibility as sought by the Mother and the Independent Children’s Lawyer.
TIME AND COMMUNICATION WITH FATHER
Although the Court will generally attempt to preserve a relationship between a parent and a child where protective measures can be put in place to manage any risks, there is no presumption that time between a parent and a child is in the child’s best interests,[27] and time may be refused where it would be destructive for the child concerned.[28] It is necessary for the Court to give consideration to the positive as well as negative aspects of the relevant relationship, and balance the risks associated with facilitating the relationship against any benefits that may be derived from doing so.[29] Severance of a relationship between a parent and a child must be proportionate to the risk.[30]
[27] Cotton & Cotton [1983] FamCA 18; (1983) FLC ¶91-330; N & S & Separate Representative [1995] FamCA 139; (1996) FLC ¶92-655.
[28] B & B (Access) [1986] FamCA 52; (1986) FLC ¶91-758.
[29] Maluka & Maluka [2011] FamCAFC 72; (2011) FLC ¶93-464.
[30] Bielen & Kozma [2022] FedCFamC1A 221.
As Tree J held in Theophane & Hunt (Final Parenting Orders):[31]
Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. …
[31] [2014] FamCA 1038 at [55].
The reality of the situation of the parents and the child is an important consideration.[32] In the present case, what is proposed by the Father is not a continuation of an existing relationship, but re-establishment of a relationship that has not been maintained, in circumstances in which X has spent no time and had no communication with the Father, other than one visit at the Contact Centre, since early 2020, and attempts made to establish a further visit at the Contact Centre were unsuccessful. The Court is not being asked by the Mother to terminate an existing relationship, but to refrain from imposing a requirement that a relationship be established.
[32] Dennison & Wang [2010] FamCAFC 182.
There are many aspects of the evidence before the Court which suggest that orders providing that X spend time with the Father would expose him to a risk of harm. These include the serious nature of the violent and other conduct exhibited by the Father, his lack of insight into the harm he has caused, and the lack of any evidence indicative of any likelihood that he will change his behaviour.
Unacceptable risk
The Mother’s case was that the prospect of time or communication with the Father posed an unacceptable risk of harm to X. It is well established that a court will not make an order for a child to live with, or spend time with, a parent if to do so would expose the child to an unacceptable risk.[33] Although the test initially related to allegations of risk of harm from sexual abuse, it has subsequently been extended to cases involving allegations of children being at risk of physical or emotional harm for other reasons.[34] In Vasser & Taylor-Black,[35] the Full Court referred to the High Court’s decision in M & M,[36] in which the test was laid out, as ‘having become the “touchstone” setting out the relevant principles to be applied in cases of asserted unacceptable risk of any kind.’ In addition to assessing past events, the Court must separately assess future risk. This is a predictive or prospective exercise.[37]
[33] M & M [1988] HCA 68; (1988) 166 CLR 69.
[34] A & A [1998] FamCA 25; (1998) FLC ¶92-800; B & B [1993] FamCA 143; (1993) FLC ¶92-357.
[35] [2007] FamCA 547; (2007) FLC ¶93-329 at [51].
[36] [1988] HCA 68; (1988) 166 CLR 69.
[37] Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC ¶94-092.
In N & S & The Separate Representative[38], Fogarty J said:-
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
[38] [1995] FamCA 139; (1996) FLC ¶92-655.
The assessment of whether there is an unacceptable risk requires determination on the evidence whether there is a risk, the magnitude of that risk and the potential consequences of the harm that might befall the child.[39] This involves giving consideration to the extent to which any risk found to exist may be ameliorated by protective measures such as supervision.[40] If an unacceptable risk is found, the Court must take steps which are proportionate to the degree of the risk.[41]
[39] Napier & Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303.
[40] Blinko & Blinko [2015] FamCAFC 146.
[41] A & A [1998] FamCA 25; (1998) FLC ¶92-800.
In Harridge & Harridge,[42] Murphy J referred to N & S & The Separate Representative (supra), and adopted the following list of inquiries with respect to risk assessment and analysis:
(1)What harmful outcome is potentially present in this situation?
(2)What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
[42] [2010] FamCA 445 at [73].
In Pascoe & O’Keefe and Ors[43] the Full Court emphasised the significance of family violence:-
46. … In cross-examination, the single expert discussed the deleterious psychological consequences for children of their exposure to family violence, which evidence was hardly a revelation. This Court has long-recognised its destructive effect on the immediate victim and those who are exposed to the violence including, most relevantly in this case, the child (Blanch v Blanch and Crawford (1999) FLC 92-837 at 85,745-85,748; B & K [2001] FamCA 880 at [32]; B & B [2003] FamCA 274 at [32]-[36]; Amador v Amador (2009) 43 Fam LR 268 at [95]; Khalil & Tahir-Ahmadi (2012) FLC 93-506 at [189]).
[43] [2018] FamCAFC 243.
The Father deposed that he had ‘never hurt [X] [sic] in any way, shape or form. There is no risk to the child’s safety whatsoever in [his] care.’ I do not accept this evidence. As outlined earlier in these reasons, the Father has engaged in extremely concerning conduct towards the Mother that has exposed X to harm and there is no evidence to suggest that there is any realistic prospect of there being a change to his attitude and behaviour in future. Ms E gave evidence under cross-examination that the patterns of behaviour by the Father as described by the Mother, whose evidence I have accepted, indicated dangerously high levels of risk. I accept that evidence.
Communication such as that proposed by the Father also poses risks. Although X would be shielded from direct exposure to physical violence if his involvement with his father was limited to video calls and the like, the absence of physical contact between them would not address all of the risks revealed by the evidence. These include the risk of emotional harm arising to X from his exposure to the Father’s poor role modelling and unremittingly negative attitude towards the Mother and the identified risks to the Mother’s emotional wellbeing which may impact on her parenting. There is also a risk that X would inadvertently disclose information about the Mother’s whereabouts which could jeopardise her safety, which is a matter of concern particularly in light of the Father’s history of non-compliance with family violence orders. In my view, it is unlikely that a meaningful relationship could be derived from such communication in the absence of any current relationship, and the prospect that this could occur is not sufficient to outweigh the associated risks. The Independent Children’s Lawyer submitted that even the receipt of letters, cards and gifts could pose risks to the Mother and thereby to the settled family life of the child. I accept that submission.
Having regard to all of the matters outlined in these reasons, I am satisfied that time and/or communication with the Father would pose an unacceptable risk to X.
Amelioration of risk
I have considered whether that risk might be ameliorated by protective measures such as supervision. As submitted on behalf of the Independent Children’s Lawyer, no proposal was made on behalf of the Father as to how the risks identified in the evidence before the Court might be ameliorated. Ms E was asked what conditions would need to attach if any time was ordered. She responded that such time would need to be supervised, though she was clear that she did not support supervised time.
Neither party put forward any proposal for a non-professional supervisor and there is no evidence to suggest that any such supervisor is willing and able to undertake such a role to a satisfactory standard. While the Mother acknowledged having taken some comfort in the past as to X’s physical safety in the care of the Father by virtue of the presence of the paternal grandmother, she also gave evidence that the paternal grandmother condones her son’s behaviour, which is a matter of considerable concern. The Father adduced no evidence from the paternal grandmother despite her presence in the courtroom during the trial. As such, the Mother’s evidence in that regard is uncontradicted.
Given the serious risks posed to X’s wellbeing if he were to spend time with the Father, and the lack of evidence of any other available supervisor, it would appear that the only available option with any realistic prospect of protecting him from harm would be indefinite professional supervision. Whilst it remains a matter for the Court’s discretion, many authorities have expressed caution in relation to the desirability of such orders.[44]
[44] See for example, Moose & Moose [2008] FamCAFC 108; (2008) FLC ¶93-375; Slater & Light [2013] FamCAFC 4; Champness & Hanson [2009] FamCAFC 96; (2009) FLC ¶93-407; Bant & Clayton [2019] FamCAFC 198; (2019) FLC ¶93-924.
I note that the previous attempt to commence supervised time spending between X and his father was unsuccessful and was cancelled by the Contact Centre after only one visit was able to be successfully implemented, based on resistance and dysregulation exhibited by X. There is no evidence before the Court to suggest any change or any likelihood of improvement in this regard, nor of any prospect of long-term supervision being offered by any professional service in light of the history of this matter.
Given X’s reaction on the last occasion upon which supervised time was attempted, there is a real risk that requiring him to undertake supervised time could cause him emotional harm. There is also a very real possibility that future attempts at handover would similarly be unsuccessful, noting that on the last occasion, handover was unable to be implemented despite approximately 30 minutes of sustained attempts and professional assistance. The lack of evidence adduced by the Father as to the conditions of his sentencing as a sexual offender adds to the difficulties with any prospect of ordering that time occur at any facility designed for and frequented by children.
Furthermore, while professional supervision would address some of the risks identified with respect of the Father, it would not protect against all risks, particularly the risk of emotional harm. This is particularly so in circumstances where the Father has demonstrated that he is unwilling to follow the directions of supervisors when they do not suit him or to respect and comply with their decisions; and the presence of a supervisor did not prevent the Father from exposing X to his negative attitude towards the Mother. Furthermore, supervision would not address the risks to the Mother’s emotional wellbeing and by extension, to her parenting of X, arising from the ongoing involvement of the Father, being a person who has pleaded guilty to serious sexual offending against her and who I have found subjected her to serious family violence, in X’s life and therefore indirectly in her life, as identified by Ms E. The evidence before the Court suggests that supervision is not a viable option.
Furthermore, in light of the Father’s repeated breaches of family violence orders, his minimisation of his conduct in this regard and his demonstrated lack of insight into the concerning nature of this behaviour, the Court can have no confidence that the Father would comply with any injunctions this Court could impose to attempt to ameliorate the risks associated with time between X and his father.
I have carefully turned my mind to the existence of the possible risks of harm and also to the magnitude of the possible harm. I am satisfied that there is an unacceptable risk that X will suffer harm if orders are made which provide for him to spend time or communicate with his father and that this risk cannot be ameliorated by measures such as supervision or injunctive orders.
OTHER ISSUES
In light of my finding that time or communication with the Father would pose an unacceptable risk to X and that it is not in X’s best interests to spend time or communicate with him, many of the other orders sought by the Father, which either are in the nature of facilitative orders or are predicated upon the Father having ongoing involvement in X’s life, have no application. The order proposed by the Father permitting his attendance at school events would be entirely inappropriate in light of his status as a convicted perpetrator of sexual penetration of a child and his registration as a sex offender, irrespective of whether he is ultimately removed from the register.
It also follows from my findings as to the risks posed to the safety of the Mother and X by the Father that it is not in X’s best interests for the Father to have access to documents and information such as the Mother’s contact details or address, or to have copies of school reports or be at liberty to communicate with X’s school, which could lead to the Mother’s location becoming known to the Father. Noting that the orders I have found to be in X’s best interests do not involve there being any communication between the parties, it is not appropriate that there be an order for communication to take place by way of a parenting app as sought by the Father.
The Mother gave evidence that she would consent to an order requiring her to facilitate time between X and his father in the event that X requested it. This was a child-focused approach which demonstrated a willingness on the Mother’s part to put X’s needs ahead of her own fears. Ms E indicated that caution was warranted and that she would support such an order only if there could be confidence that it would not have a negative impact on the Mother. She considered that there was a high probability of such an impact. The Independent Children’s Lawyer did not support the making of such an order and submitted that X’s best interests would be promoted by leaving such a decision up to the Mother rather than binding her to take particular action. I accept that submission. A request made by X for time with his father would not render such time safe.
The Father sought injunctions restraining both parties from drinking alcohol to excess or consuming illicit substances while X is in their care or during the 24 hours prior, and from exposing him to any person who is under the influence of alcohol or any illicit substance. I do not consider such an injunction to be warranted in circumstances in which there is no credible evidence before the Court to suggest any current risk to X arising from drug or alcohol use on the part of the Mother.
The Father also sought an order requiring each of the parties to keep the other informed of any major medical issue suffered by X and details of any medication, treatment, appointments and the like. Although an order in similar terms was sought by the Independent Children’s Lawyer at the commencement of the trial, the Independent Children’s Lawyer no longer supported the making of such an order by the time of conclusion of the trial. In circumstances where the Court has found that ongoing involvement of the Father in his life would expose X to unacceptable risk and would not promote his best interests, and where the Father has made very little effort to inform himself about X’s medical needs and treatment to date, I am not satisfied that there would be any benefit to X arising from the Father being provided with such information, particularly when regard is had to the risks to the Mother’s wellbeing and consequently her parenting arising from ongoing interactions with the Father.
The Mother sought an injunction restraining the Father from removing X from her care. This application was supported by the Independent Children’s Lawyer. Having regard not only to the safety risks I have found are posed by the Father to the Mother and X but also the Father’s history of failing to return X to the Mother as arranged and breaching multiple orders designed to protect her safety, I am satisfied that such an injunction is appropriate for X’s welfare.

The Independent Children’s Lawyer sought further injunctions restraining the Father from (in summary) communicating with X or the Mother and from attending or remaining within 200 metres of their home or other places regularly attended by one or both of them. Although this was described as seeking that ‘injunctive measures be made in line with those sought by the Mother,’ the Mother did not in fact seek such injunctions at trial. In my view, section 114AB of the Act would provide a barrier to such injunctions being sought by the Mother in circumstances in which there is an intervention order in place restraining the Father from engaging in such acts in relation to which the Mother was the applicant. I do not, however, consider that this provision precludes such an application being made by the Independent Children’s Lawyer. In light of the serious risks posed by the Father to the Mother and by extension to X and the Father’s history of non-compliance with Court orders, I am satisfied that the injunctions sought by the Independent Children’s Lawyer are appropriate for X’s welfare.
The Father sought an order for costs against the Mother. This application was not pressed in final submissions and in any event, there is no basis whatsoever, having regard to the evidence before the Court or the manner in which the Father conducted the proceedings, for a departure from the starting point that he should bear his own costs in accordance with section 117(1) of the Act.
CONCLUSION
Having regard to all of the considerations as outlined above, I make orders as set out at the commencement of these reasons, which I am satisfied are in X’s best interests.

I certify that the preceding two hundred and fifty (250) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Parker.
Associate:
Dated: 22 December 2023

File number(s):	MLC 11709 of 2020
Judgment of:	JUDGE PARKER
Date of judgment:	22 December 2023
Catchwords:	FAMILY LAW – PARENTING – unacceptable risk – where Father has pleaded guilty to sexual offences against Mother when she was a minor – where Father is registered sex offender - where Court finds Father has additionally subjected Mother to serious family violence – where Father holds unremittingly negative attitude towards Mother and accepts no responsibility for his own conduct – where Father is lacking in insight – orders made for no time or communication with Father
Legislation:	Crimes Act 1958 (Vic) s 49N Evidence Act 1995 (Cth) ss 79, 128, 140 Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61DA, 114AB, 117 Sex Offenders Registration Act 2004 (Vic) s 111A
Cases cited:	A & A [1998] FamCA 25; (1998) FLC ¶92-800 B & B (Access) [1986] FamCA 52; (1986) FLC ¶91-758 B & B [1993] FamCA 143; (1993) FLC ¶92-357 Bant & Clayton [2019] FamCAFC 198; (2019) FLC ¶93-924 Bielen & Kozma [2022] FedCFamC1A 221 Blinko & Blinko [2015] FamCAFC 146 Champness & Hanson [2009] FamCAFC 96; (2009) FLC ¶93-407 Cotton & Cotton [1983] FamCA 18; (1983) FLC ¶91-330 Dennison & Wang [2010] FamCAFC 182 Harridge & Harridge [2010] FamCA 445 Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC ¶94-092 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Lorreck & Watts [2012] FamCAFC 75 M & M [1988] HCA 68; (1988) 166 CLR 69 Maluka & Maluka [2011] FamCAFC 72; (2011) FLC ¶93-464 Mazorski & Albright [2007] FamCA 52 McCall & Clark [2009] FamCAFC 92; (2009) FLC ¶93-405 Moose & Moose [2008] FamCAFC 108; (2008) FLC ¶93-375 Mulvany & Lane [2009] FamCAFC 76; (2009) FLC ¶93-404 N & S & The Separate Representative [1995] FamCA 139; (1996) FLC ¶92-655 Napier & Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303 Pascoe & O’Keefe and Ors [2018] FamCAFC 243 Re Andrew [1996] FamCA 43; (1996) FLC ¶92-692 R & C [1993] FamCA 62 Sigley & Evor [2011] FamCAFC 22 Slater & Light [2013] FamCAFC 4 Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038 Vasser & Taylor-Black [2007] FamCA 547; (2007) FLC ¶93-329
Division:	Division 2 Family Law
Number of paragraphs:	250
Date of last submission/s:	20 December 2023
Date of hearing:	24-27 July, 23 October and 10 November 2023
Place:	Adelaide
Counsel for the Applicant:	Mr McQuade
Solicitor for the Applicant:	Daniel John Lawyers
Solicitor Advocate for the Respondent:	Mr Jelbert
Solicitor for the Respondent:	Gibson & Associates Family Law
Counsel for the Independent Children’s Lawyer:	Ms Lindsay
Solicitor for the Independent Children’s Lawyer:	Legal Services Commission of South Australia

MLC 11709 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR SAMPER Applicant
AND:	MS HARPE Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JUDGE PARKER
DATE OF ORDER:	22 DECEMBER 2023