Sipos & Hidalgo
[2024] FedCFamC2F 1814
•19 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sipos & Hidalgo [2024] FedCFamC2F 1814
File number(s): MLC 374 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 19 December 2024 Catchwords: FAMILY LAW – Parenting – whether hearsay allegations of intimate partner violence from three partners of Father indicate substantial risk to the children – whether father had been violent to Mother – where psychometric tests relied upon by single expert witness – where expert witness refuses to make all data available for examination by Father’s lawyers – where parents not informed that some data from psychometric tests would not be available for examination by parties lawyers – whether diagnosis of Father should have any weight in circumstances – whether alleged psychological impact on Mother of any time with parents’ two children means only limited 4 times each year professionally supervised – assessment of risk of unsupervised time – whether Father has “evolved”, progressed or rehabilitated himself – examination of extent of “criminality” of the Father – whether Paternal Grandparents suitable supervisors of any time – or whether they are “enablers” of Father’s violence – where Mother relies on advice from service that has not met the Paternal Grandparents – whether all overnight time should be at the Paternal Grandparents’ home – whether all time with children should be tethered to involvement of Grandparents – final orders for time gradually moving from supervised time to substantial attendance to unsupervised time but all overtime time and police station changeovers to involve Paternal Grandparents. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 60CF, 60CG, 61DAA and 69ZT
Federal Circuit and Family Court (Family Law) Rules 2021 r 8.15(3)(e)
Sentencing Act1991 (Vic) s 76
Cases cited: Fox v Percy (2003) 214 CLR 118
Isles & Nelissen [2022] FedCFamC1A 97
Keane & Keane [2021] FamCAFC 1, (2021) 62 Fam LR 190
Norbis v Norbis (1986) 161 CLR 513
Slater & Light [2013] FamCAFC 4
Division: Division 2 Family Law Number of paragraphs: 285 Date of hearing: 22 – 25 July 2024 Place: Melbourne Counsel for the Applicant: Mr Stanley Solicitor for the Applicant: Leslie Family Law Counsel for the Respondent: Ms Damon Solicitor for the Respondent: V M Family Lawyers Counsel for the Independent Children's Lawyer: Mr Kiernan Solicitor for the Independent Children's Lawyer: Yarra Family Lawyers
Table of Corrections 9 April 2025 Paragraph 26, ‘ ultra bad Sam part of the other side’s case.’ has been removed 9 April 2025 Paragraph 72 ‘But at this point, although appearing in court’ has been removed. 9 April 2025 Footnote 30 has been removed in paragraph 113 9 April 2025 Paragraph 117 ‘ The Mother said she ceased that time cause she had came to’ has been removed. 9 April 2025 Paragraph 215, ‘K’ has been removed 9 April 2025 Footnote 58 has been added. ORDERS
MLC 374 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SIPOS
Applicant
AND: MS HIDALGO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
19 DECEMBER 2024
THE COURT ORDERS THAT:
1.All previous parenting Orders be and are discharged.
2.Mr Sipos (‘the Father’) and Ms Hidalgo (‘the Mother’) do all acts and things to cause and ensure that the child now known as X Hidalgo, born in 2020, be and is known only as X Sipos-Hidalgo (and referred to in these orders as ‘X’), for all purposes, and not permit any other person to use any other name for that child.
3.The Mother and the Father forthwith do all acts and things and execute any necessary documents as may be required to apply to the Victorian Registry of Births Deaths and Marriages to change the registration of the name of X to X Sipos-Hidalgo.
4.The Mother make decisions in relation to all major long term issues for the children namely Y born in 2018 and X (collectively ‘the Children’) and the Mother provide the Father with written notice of any decision made pursuant to this order.
5.Y and X live with the Mother.
6.Y and X spend time and communicate with the Father as follows:
(a)Commencing on the third Saturday after the making of these orders, on each Saturday from 10am until 12 pm at the home of Ms B or Mr C (‘the Paternal Grandparents)’, for and on four (4) consecutive visits with such time to be supervised by one or the other of the Paternal Grandparents;
(b)Thereafter, each Saturday from 10am until 2 pm at the home of the Paternal Grandparents for six consecutive visits with such time to be supervised by one or other of the Paternal Grandparents;
(c)Thereafter, each Saturday from 10am until 5pm at the home of the Paternal Grandparents for six consecutive visits with one or other of the Paternal Grandparents to be in substantial attendance;
(d)Thereafter, each Saturday from 10.00am until 5pm for 12 consecutive visits;
(e)Thereafter, each alternate weekend on Saturday, from 10am unit 5pm but not overnight, for 12 consecutive visits (24 alternate weekends);
(f)Thereafter, each alternate weekend, from 10am Saturday until 10am Sunday for six consecutive visits, with all overnight time to occur at the home of the Paternal Grandparents;
(g)Thereafter, each alternate weekend, from 10am Saturday until 2.00pm Sunday with the overnight time to occur at the home of the Paternal Grandparents, for six consecutive visits;
(h)Thereafter, each alternate weekend from 10am Saturday until 5pm Sunday, with the overnight time to occur at the home of the Paternal Grandparents, for 12 consecutive visits;
(i)Thereafter, each alternate weekend from 5pm Friday until 5pm Sunday with the overnight time to occur at the home of the Paternal Grandparents, or in the event they are staying away on holiday then at such accommodation where they, or either of them, are staying;
(j)In regard to the school holidays, the parties confer as to the form of the school holiday orders to give effect to these reasons and the gradual increase of school holiday time as proposed in the Father’s orders sought in his amended application filed 28 February 2024 as follows:
(i)any submission as to school holidays by the Father to be served on or before 28 days after the date of these orders;
(ii)and any submission as to school holidays by the Mother to be served on or before 35 days after the date of these orders;
(iii)and any submission as to the school holidays by the ICL be served on or before 42 days after the date of these orders;
Video time
(k)Commencing from 28 days after the date of these orders, each Wednesday via Facetime, Skype or such other form of electronic communication between the times of 5pm and 5.30pm, with the Mother to afford the children privacy during such calls;
Special days
(l)On special occasions as follows:
(i)On Father’s Day from 10.00am until 5pm;
(ii)At Christmas in odd-numbered years commencing 2025, from 12pm on 24 December until 12pm 26 December, with all overnight night time to occur at the home of the paternal grandparents;
(m)At such further and other times as agreed in writing by text message or email and .
7.In the event Y and X are spending time with the Father in accordance with these orders; such time be suspended as follows:
(a)On Mother’s Day from 10am until 5pm;
(b)At Christmas in even-numbered years from 12pm on 24 December until 12pm on 25 December;
(c)At Christmas in odd-numbered years form 12pm on 25 December until 12pm on 26 December; and
(d)At such further and other times as agreed.
8.The parties be at liberty to communicate with one another via the AppClose Mobile Parenting App and, in the event that App is not functioning, by text message or email, and all communication be courteous and respectful.
9.Unless agreed in writing to the contrary between the parents, all changeovers shall occur at the Suburb D Police Station until X’s birthday in 2030 and thereafter, changeover be at such place as agreed between the parents in writing.
10.Until X’s birthday in 2027, all overnight time is on condition that it occur at the home of the Paternal Grandparents (or if on holidays, at where they are staying) and one or other of the Paternal Grandparents attend at the changeover at the Suburb D Police Station at the start of the Father’s time.
11.Save for attending separate parent teacher interviews by electronic or video link means, the Father be and is restrained from attending at or near any school the children attend.
12.Both parties do all acts and things to cause and ensure that each parent be entitled to obtain, at his or her own expense, all information (such as school reports, photos and like information) that parents are usually entitled to obtain from the school, AND for the avoidance of doubt, this order does not restrain the Paternal Grandparents, or either of them, from attending at any school the children attend at events that parents or special persons are usually invited to attend.
13.The Father do all things necessary to keep the Mother apprised of any and all prescriptions for himself for substances which contain Tetrahydrocannabinol, and shall provide the Mother with copies of those prescriptions as soon as practicable upon receipt.
14.The Father be and is hereby restrained by injunction from consuming, using or being under the influence of alcohol and/or any illicit substance, and also prescribed Tetrahydrocannabinol, within the period of 24 hours prior to or during all and any time Y and X spend with him.
15.The Father do all things necessary to remain engaged with his treating psychologist and follow all recommendations of the psychologist including but not limited to attendance and treatment.
16.In the event he has not already done so:
(a)The Father is to complete a post-separation parenting program with E Centre or such other similar organisation and provide a certificate of completion to the Mother via her solicitor and to the Independent Children’s Lawyer, as soon as practicable;
(b)The Father promptly provide his treating psychologist with copies of:
(i)The psychological reports of both parties by Ms F;
(i)The Family Report dated 20 February 2024; and
(ii)All prescriptions for substances containing Tetrahydrocannabinol;
(c)The Father promptly provide a copy of his psychological report prepared by Ms F to any practitioner prescribing him with Tetrahydrocannabinol.
17.Both parties and their servants and agents be and are hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of Y and/or X, and from permitting any other person so to do;
(b)Passing messages to the other parent through the children.
18.Each party advise the other of any serious illness or injury suffered by Y or X as soon as practicable.
Vaccinations
19.Within 14 days of the date of this order, the Mother make an appointment with the children’s regular General Practitioner for the purpose of developing a “catch up vaccination schedule” for the children for all standard childhood vaccinations as set out in the Victorian Immunisation Schedule July 2024 (and “Annexure A” to the minute of proposed final orders submitted on behalf of the Mother dated 25 July 2024) and provide a copy of the catch up schedule to the Father within 24 hours of the same being available.
20.The Mother comply with the catch up vaccination schedule as set out in order 19 herein at time and dates as determined by the children’s general practitioner.
21.Upon completion of the catch up vaccination schedule, the Mother provide to the Father copies of the children’s Immunisation History Statement from Services Australia.
Passport & international travel
22.Pursuant to ss. 7 and 11 of the Australian Passports Act 2005 (Cth) and the court being satisfied that it is not practicable to obtain the consent of the Father to enable the children to obtain an Australian Passport to travel internationally, the Court makes the following order.
23.The Mother of the children be permitted to apply for an Australian Passport to enable the children to travel internationally notwithstanding that the Father of the children has not signed the passport application form and furthermore the said children be permitted to travel internationally without the permission of the Father.
24.Pursuant to section 65Y, the Mother be permitted to travel outside the commonwealth of Australia with the children for up to 21 days, provided she gives notice to the Father 21 days prior and confirms her departure and return date and details of the country the children will be travelling to AND provided the vaccinations described in the catch up vaccination schedule have been completed for both children.
Don’t publish on social media
25.The parents be permitted to publish material in relation to the children to his or her family and friends by letter, text message or email only, and each be and is restrained from publishing same on any social media unless the agreement of the other parent has been obtained beforehand.
26.The ICL cause and ensure that a copy of these orders and reasons for judgment are provided to the Paternal Grandparents.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 9 April 2025JUDGE O’SHANNESSY:
INTRODUCTION
The matter of Sipos and Hidalgo came before me for a four-day final hearing to determine the parenting arrangements for the parties’ two young daughters. Having separated after a short relationship, the applicant father, MR SIPOS (‘the Father’) and the respondent mother, MS HIDALGO (‘the Mother’), require a decision of this court. The major issue is whether the children should have any regular and overnight time with the Father. It was common ground the children would continue to live with the Mother.
The parties have two children, Y born in 2018 and now aged 6 years, and X born in 2020 and now just 4 years (collectively referred to as ‘the children’). An Independent Childrens Lawyer (‘ICL’) represents the children in these proceedings. As at the time of trial, the children had not been vaccinated as children in Australia usually are.
The central issue was whether the Father should spend any time at all with the children. It was asserted that if time were ordered, the children would likely be exposed to family violence, and that any time between the Father and the children would impact the Mother so that her psychological health and parenting of the children would be materially affected.
BACKGROUND
The Father was born in 1992 and is aged 32. He is currently studying and works casually in hospitality.
The Mother was born in 1981 and is aged 43. She is currently unemployed but has previously worked as a professional and says she intends to return to work once the children are older.
The parties commenced cohabitation around mid-2018 and separated in early 2019. During that time, their daughter, Y, was born in 2018.
It is common ground that the Father regularly cared for Y following separation, and that the parties continued to see one another during that time. The parties’ second child was conceived post-separation and was born in 2020. Thereafter, the Mother and the children moved to a town some couple of hours travel (less by car and more by public transport) from Melbourne and the Father continued to see them on approximately a weekly basis. It is common ground that the Mother ceased time between the Father and the children on or around January 2021, but continued to facilitate time between the children and the Father’s parents (‘the Paternal Grandparents’) for some months afterwards.
The Father commenced proceedings in this Court on 17 January 2023. Allegations of significant family violence permeated the parents’ life together and these proceedings.
THE PROCEEDINGS
Interim proceedings
The Father commenced proceedings in this court on 17 January 2023. Interim orders were made on 20 February 2023 which provided, inter alia, that:
3. The Father shall forthwith obtain a referral from his treating general practitioner to attend upon a psychologist (“the counsellor”) for therapeutic counselling, with a specific focus on anger management / family violence risk concerns, and the counsellor shall be provided with a copy of these Orders.
…
8. The children [Y] born [in] 2018 and [X] born [in] 2020 live with the Mother.
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10. Upon proof that the Father has complied with Order 3 herein, [Y] and [X] shall communicate with the Father each alternate Wednesday between 5.00pm and 5.30pm, via Microsoft Teams, supervised by the [G Contact Centre].
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It is common ground that the older child, Y, communicated with the Father via Microsoft Teams pursuant to those orders from June 2023. Interim orders were then made on 13 October 2023 which provided that the children live with the Mother and spend time with the Father as follows:
3. Until further order, the children [Y] born [in] 2018 and [X] born [in] 2020 spend time with the Father as follows:
a) Commencing forthwith, on each alternate Saturday for up to two hours supervised by the [G Contact Centre] (“contact centre”) at times to be directed by the contact centre, with changeover to occur at the contact centre;
b) Each parent comply with all reasonable rules of the contact centre;
c)Each parent comply with all reasonable requests or directions of the staff of the contact centre; and
d)The parties are permitted to provide a copy of these Orders to the contact supervisor.
Supervised contact between the Father and the children pursuant to those interim orders occurred at the G Contact Centre on alternate weekends from 10 November 2023 to 15 June 2024, with the exception of 9 March 2024 when time did not occur due to the Father being away on a holiday.
The Final Hearing
The Final Hearing commenced on 22 July 2024 and ran for 4 days. I reserved reasons on 25 July 2024. At trial, both the Father and the Mother were represented by solicitor and counsel, and counsel appeared on behalf of the ICL. This 4-day, trial by evidence in chief on affidavit, trial was 4 days of cross-examination and submissions. Evidence in chief was by affidavit and the parties proceeded on the basis that evidence in chief had been read before the start of the hearing. It had been. I told the parties that I hoped to deliver oral reasons two weeks after the conclusion of the hearing but was unable to. These are my reasons.
Unusually, in a case where the parents of the children disagreed about vaccination of the children and their welfare not being limited to an inter partes dispute and no evidence about the benefits or risks to these children of vaccination or the absence of vaccination, during opening submissions I requested the ICL identify and provide evidence from an expert about vaccination. In that context, with commendable efficiency, the ICL was able to call Dr H to give oral evidence. Dr H was cross-examined.
The substance of Dr H’s clear and precise oral evidence was that the children being unvaccinated[1] meant that they were unnecessarily exposed to a substantial risk of contracting serious communicable diseases, and the potential consequences of those diseases including serious illness and, in some cases, death. The substance of Dr H’s evidence included that the risk of contracting a host of serious communicable diseases was very much reduced with vaccination and that the risk of any significant side effect was, while not nil, very small.
[1] According to standard Victorian and Australian guidelines.
In final address, the parent that opposed vaccination agreed to ensure the children were vaccinated and proposed a form of orders to ensure that vaccination.
Documents relied upon
The parties proceeded on the basis that annexures to affidavits were in evidence because they had been referred to in the evidence in chief of the affidavit. This is despite Rule 8.15(3)(e) of the Federal Circuit and Family Court (Family Law) Rules 2021 (‘the Rules’). I acquiesced in that position and considered all annexures to affidavits relied upon by the parties to be in evidence, bearing the label given to them as annexures.
The Father relied upon the following documents:
·Outline of case filed 15 July 2024;
·Amended Initiating application filed 28 February 2024;
·‘Trial’ Affidavit of evidence in chief of the Father filed 24 June 2024;
·Affidavit of the Father’s mother, Ms B (‘the Paternal Grandmother’), filed 24 June 2024;
·Affidavit of the Father’s father, Mr C (‘the Paternal Grandfather’), filed 24 June 2024;
·Affidavit of Mr J filed 18 September 2023;
·Affidavit of Ms L filed 20 February 2024;
·Affidavit of Ms L filed 26 June 2024;
·Family Report of Dr M dated 22 May 2024.
The Mother relied upon the following documents:
·Outline of case filed 17 July 2024;
·‘Trial’ Affidavit of evidence in chief of the Mother filed 8 July 2024;
·Affidavit of Mr K filed 8 July 2024, ultimately not required for cross-examination;
·Affidavit of Ms N filed 8 July 2024, ultimately not required for cross-examination;
·Affidavit of Ms O filed 8 July 2024;
·Affidavit of Ms P filed 8 July 2024;
·Affidavit of Mr Q filed 11 July 2024;
·Subpoena material produced by Victoria Police, Suburb R Medical Centre, and S Hospital;
·Department of Families, Fairness and Housing Response to Notice of Child Abuse, Family Violence or Risk dated 1 March 2023;[2]
·Family Report of Dr M dated 22 May 2024;
·Affidavit of Ms F (‘the psychologist’) filed 1 March 2024.
[2] This document included a report of interviews of the Mother and of the Father
The ICL relied upon the following documents:
·Family Report of Dr M dated 22 May 2024;
·Affidavit of Ms F filed 1 March 2024;
·Department of Families, Fairness and Housing Response to Notice of Child Abuse, Family Violence or Risk dated 1 March 2023;
·Subpoena material produced by Victoria Police;
·Oral evidence from Dr H as to vaccination of children.
Exhibits tendered
Exhibits tendered are listed in the below chart:
Exhibit No:
Description:
Party
22 July 2024
C2
Joint trial plan
Court
F1
Police summary of Ms T allegations early 2022
Mother
F2
Father’s police record mid-2023
Mother
F3
Police prosecution summary to the court mid-2023
Mother
23 July 2024
F4
Police record of early 2017 police incident
ICL
24 July 2024
M1
Children’s book
Father
M2
Newspaper report of protests
Father
M3
July 2023 K10 Report
Father
M4
Mother’s GP notes October 2023
Father
C3
Child Impact Report dated 15 December 2023
Court
M5
Email chain 26 – 31 January 2021
Mother
25 July 2024
C4
Correspondence regarding psychological assessments and testing material
Court
ICL1
ICL proposed orders
ICL
APPLICABLE LAW
Standard of proof
In these reasons, statements of fact are findings of fact. I apply section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) which states as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
Reliability of parties’ evidence
In Fox v Percy (2003) 214 CLR 118 (‘Fox v Percy’), at first instance, the rider of a horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with oncoming horses and riders who were coming around the bend. The issue was upon which side of the road the collision occurred. The Court of Appeal of the Supreme Court of New South Wales interfered with the first instance decision because it had been incorrectly determined, by reason of the apparent unreliably/reliability of the witnesses, that the collision occurred on the Kombi van’s wrong side of the road. The Court of Appeal found the first instance decision was wrong because of the position of the braking skid marks of the Kombi van that were in evidence. The skid marks of the Kombi van incontrovertibly demonstrated that the Kombi van had been on its correct side of the road at the point of collision. The High Court found that the Court of Appeal was justified in upholding the appeal and upheld that court’s findings.
That is the context to the High Court’s following observations. When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality of Fox & Percy observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
(Citations omitted)
I have endeavoured to rely on objectively established facts and the apparent logic of events in this case as well as the evidence and demeanour in the witness box of the parties. Where I have not accepted I parties evidence on the balance of probabilities does not mean, and should not be regarded, as a finding of lies or deceit.
As discussed in detail later in these reasons I do not accept the mother's evidence in regard to her recollection of the criminal charges against her many years ago.
I also take account at the powerful motivation of the parents to give evidence within parameters that each sees as likely to advance his or her case.
Family Law Act provisions
In deciding what particular parenting orders to make I must regard the best interests of the children as the paramount consideration as commanded by section 60CA of the Family Law Act 1975 (Cth) (‘the Act’). I must consider the matters described in section 60CC of the Act in making a determination as to what is in the children’s best interests. I apply and the whole of Part VII of the Act. I particularly apply the section 4 definition of major long-term issues, section 4AB (definition of family violence), sections 60CA, 60CC, 60CF, 60CG and take into account the obligations of section 61DAA. Those are as follows:
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
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4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
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60CAChild's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
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60CC How a court determines what is in a child's best interests[3]
[3] As discussed later this “new” section 60CC came into operation on 6 May 2024.
Determining child's best interests
(1)Subject to subsection (4), in determining what is in the child's best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b)if the child is an Aboriginal or Torres Strait Islander child--also consider the matters set out in subsection (3).
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs ;
(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child's family.
Additional considerations--right to enjoy Aboriginal or Torres Strait Islander culture
(3)For the purposes of paragraph (1)(b), the court must consider the following matters:
(a)the child's right to enjoy the child's Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary:
(i)to connect with, and maintain their connection with, members of their family and with their community, culture, country and language; and
(ii)to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(iii) to develop a positive appreciation of that culture; and
(b)the likely impact any proposed parenting order under this Part will have on that right.
Consent orders
(4)If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).
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60CF Informing court of relevant family violence orders
(1)If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that party must inform the court of the family violence order.
(2)If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child’s family, that person may inform the court of the family violence order.
(3)Failure to inform the court of the family violence order does not affect the validity of any order made by the court.
60CG Court to consider risk of family violence
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
…
61DAAEffect of parenting order that provides for joint decision-making about major long-term issues
(1)If a parenting order provides for joint decision - making by persons in relation to all or specified major long - term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a) to consult each other person in relation to each such decision; and
(b) to make a genuine effort to come to a joint decision.
(2)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
…
69ZTRules of evidence not to apply unless court decides
(1)These provisions of the Evidence Act 1995 do not apply to child - related proceedings:
(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re - examination and cross - examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2)The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3)Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b)the court has taken into account (in addition to any other matters the court thinks relevant):
(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv)the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4)If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5)Subsection (1) does not revive the operation of:
(a) a rule of common law; or
(b) a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.
Hence it is immediately apparent that Parliament, by the amending Act, intended more than a change of emphasis. The new section 60CC and the removal of the previously applicable “objects” and underlying “principles” make clear that in considering the best interests of children as the paramount consideration orders that best promote the safety of children must be considered. It is no longer an object of the Act to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child. And I proceed on that basis.
Risk of future events
In any event, the purpose of looking at the events and attitudes of the past is to grasp the nettle of risk of future events. Although a serious allegation/s may not be proven on the balance of probabilities, the possibility that those past events occurred may indicate risk to safety. Where there is only a small risk, or likelihood or probability, of an adverse event occurring, but the consequences of the event occurring would be catastrophic, serious regard must be had to that risk.
In this case, the safety of children and the Mother, and her psychological health, was at the core of the case of all parties as well as the consequences for the children of, at the start of the case, of no relationship whatsoever with the Father or his family, and by the end of the case the consequences and risks for the children of very limited indefinitely professionally or family supervised time.
The parties referred me to settled principles of guidance for litigants and first instance judges from the intermediate appellate court, or what I regard as Norbis[4] guidelines as to risk, indefinite supervision and the impact on the “live with” parent of spend time orders. I was referred to and have revisited for the purpose of these reasons Full Court decisions including, Keane & Keane [2021] FamCAFC 1[5](‘Keane & Keane’), Isles & Nelissen [2022] FedCFamC1A 97 (‘Isles & Nelissen’), and Slater & Light [2013] FamCAFC 4. Those decisions are all bound by the legislative provisions of the Act at the time of they were handed down. The then applicable objects and principles of Part VII of the Act and section 60CC were different. From 6 May 2024 Part VII of the Act in its current form came into operation.
[4] The statements of law of the common law of the High Court in Norbis v Norbis (1986) 161 CLR 513.
[5] And note, for example, Keane & Keane at [71] refers to and applies the High Court observations in Masson v Parsons that refer to and apply the now repealed objects and principals that include
Provided the decisions I have been referred to are read in the context of the current state of Part VII, and not how it was before, I am satisfied the wisdom of those decisions still applies. I was assisted by all counsel in this case including by references to authority. I was also referred to the Explanatory memorandum of the amending legislation.
As to the body of jurisprudence known as the principles of Re: Andrew the decision of Keane & Keane provides a useful summary of those principles. Whilst no summary is entirely definitive and these reasons are already long enough., the discussion of at [78] through to [84] are helpful and I am satisfied contain a close enough statement of the Re: Andrew principles.
The different facts of each case inevitably mean different aspects of principle being emphasised from decision to decision. Nonetheless it is helpful to recite the Full Courts observation of [78] to [84] of Keane & Keane.
[78]In Russell v Close , the Full Court referred to the decision of the Full Court in B and B (1993) FLC 92-357 (“B and B”) and stated, at [32]:
In upholding children’s right to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary caregiver concerning the child’s exposure to potential harm where such anxiety is likely to impact adversely on that parent’s caregiving ability.
[79] In the cited decision of B and B, the Full Court at 79,780 stated:
It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.
[80]Subsequent authorities, however, confirm that it is an error to assume that, in each and every case where a parent is concerned about the safety of a child in the other parent’s care, the court will infer that there is an unacceptable risk that the concerned parent’s parenting capacity will be adversely impacted. To do so risks elevating those fears to an extent that it overshadows the totality of considerations set out in s 60CC of the Act. In particular, as noted by the primary judge, it does not give the concerned parent a right of “veto” over whether the child should have time with the other parent, citing Marra and Marra (Unreported, Full Court of the Family Court, Fogarty, Baker & Butler JJ, 8 September 1993) . As explained in Marra at [6]:
The genuinely held beliefs or concerns of the custodial parent as to access are relevant considerations in deciding what access to order (s.64(1)(bb)(i) and (v)). However, it does not give to the custodian a veto. Its relevance is the extent to which it may have an adverse impact upon the welfare of the child as a result of it affecting the custodian’s caregiving capacity. The wife’s fears in the present case, whilst of personal concern to her, do not appear likely to have significant effect upon her capacity as a custodian. The trial Judge in this case, though bound to take account of the wife’s fears, elevated her fears to an extent which transcended the consideration of the best interests of the children.
[81]Importantly, the Full Court in Marra held that not only is it necessary for the court to determine whether a parent has a genuine concern about the welfare of the child in the care of the other parent but it is also necessary to determine whether the concerned parent’s parenting capacity will be “discernibly impaired”. ‘Discernibly’, or similar expressions that have been used in the relevant authorities to which we have referred, means no more than being an evident or detectable impairment in parenting capacity such that there is an unacceptable risk that the child’s welfare will be adversely impacted.
[82]We respectfully agree with senior counsel for the father that the Full Court in Blinko did not intend to modify the principles adumbrated in the relevant authorities that have considered whether, on the facts of each particular case, the primary judge did or did not err in finding that a primary carer’s parenting capacity had been adversely impacted by the emotional and/or psychological consequences of orders being made for a child or children to spend time with the non-resident parent. What the Full Court did in Blinko was draw upon the line of authority commencing with Russell v Close and, at [83], usefully summarised the relevant principles adumbrated in those authorities as follows:
[83]It may be taken as well established by a line of authorities generally acknowledged to commence with Russell & Close (Unreported Full Court, 25 June 1993) that the following are correct statements of principle:
•If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child;
•If the Court does not find that a parent represents such an unacceptable risk of harm, nonetheless it may take into account anxiety on the part of the other parent arising from their genuine, but not necessarily rational, belief that the parent represents such a risk of harm. In such a case, the other parent’s belief must be genuinely held. If it is entirely irrational and baseless, then the genuineness of the belief would clearly be open to doubt. However where such a belief is genuinely held, if the child spending time with a parent would sufficiently erode the other parent’s capacity to properly care for the child, then that may of itself mean that the ensuing detriment to the child determines that it is in their best interests not to spend time or communicate with the parent;
•Further, where the history of abuse, violence or like behaviour between two parents means that any continued interaction between them would similarly erode the resident parent’s capacity to care for the child, the need for peace and tranquillity in their household may be a more compelling need for the child and hence also might justify an order prohibiting the other parent from spending time or communicating with a child: see Sedgley & Sedgley (1995) FLC 92-623 .
[83]Also of assistance is the decision of the Full Court in Helbig & Rowe [2016] FamCAFC 117 which explained, at [214], the correct approach in considering what the mother, in this case, has described as “the Re Andrew Principle”, as adumbrated in A v A (1998) FLC 92-800 where the Full Court said at 84,996, [3.29]:
The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.
(Emphasis added)
[84]In undertaking the task of considering what steps are “proportionate to the degree of risk”, the decision of Blinko makes it clear that the mere finding that a child may be at an unacceptable risk as a result of spending time in the care of another parent does not conclude the task before the primary judge. A necessary consequence of that finding, having regard to the totality of matters that the court is required to consider pursuant to s 60CC of the Act, is for the court to contemplate whether steps can be taken to ameliorate or mitigate against that risk such that the child can maintain a meaningful relationship with the other parent.
I will and must apply the Act and the convenient and comfortable short cut for family lawyers of the term “unacceptable risk”, while not inaccurate, is not the test to be applied. I refer to and apply the observations of the Full Court in Isles & Nelissen at [56-59] that emphasis it is the Act that must be followed.
[56] It is trite but true to observe that the law is as the High Court states it to be, so the principles enunciated in M v M about “unacceptable risk” were woven into the fabric of family law in instances of alleged actual and prospective child sexual abuse. The Full Court later extended such principles to cases involving allegations of children being at risk of physical or emotional harm for other reasons (A v A (1998) FLC 92-800 at [3.14]–[3.15] and [3.24]).
[57]However, courts exercising federal jurisdiction and wielding discretionary power in family law proceedings are constrained by the terms of the governing statute (Minister for Immigration & Multicultural & Indigenous Affairs v B (2004) 219 CLR 365 at 386 , 390 , 396 , 403 –407 , 434 –435 and 439 ; MRR v GR (2010) 240 CLR 461 at 464 –466 and 468 ).
[58]Specifically in respect of parenting proceedings, Pt VII of the Act is now drafted much more comprehensively and prescriptively than it was when M v M was decided. The phrase “unacceptable risk” did not then appear within the Act. At that point in time, courts were required by the Act (then s 64) to make parenting orders by reference only to the paramountcy principle, the child’s wishes and the desirability of avoiding further litigation. But now, s 60CG of the Act exhorts courts to avoid making orders which expose any person to an “unacceptable risk of family violence” and, when determining how children’s best interests will be advanced, s 60CC(2)(b) of the Act obliges courts to heed any need to protect children from physical or psychological harm through their subjection or exposure to “abuse”, “neglect” or “family violence”, for which purpose the terms “abuse” and “family violence” are very widely defined in ss 4(1) and 4AB of the Act respectively.
The Father’s case & orders sought
The Father asserts that he is not a safety risk to the children or the Mother or his intimate partners. He accepts he has been physically violent to the Mother on only one occasion and that he repeatedly breached a family violence intervention order by harassing the Mother with multiple calls demanding to see the children. He asserts the extent of physical violence alleged is exaggerated and that he has not assaulted or harassed or controlled his intimate partners before his relationship with the Mother, or another intimate partner with whom he had a relationship after separation from the Mother. If that is so he has been very, very unlucky in relationships.
The Father says that he now accepts that much of his behaviour during the relationship was, as he now understands it, coercive and controlling and acting with “entitled male privilege” and that he insisted on always having the final word in any argument with the Mother. He says that was how he contributed to the conflict between them. The Father claims, and the Mother does not accept, that he has learned much and gained insight into his “coercive and controlling” intimate relationship with the Mother. The Father claims that the Mother also contributed to the conflict between them, that she verbally abused him, assaulted and injured him on an occasion, struck one of the children when attempting to strike him while he was holding that child, and that the Mother would lose her temper on those and other occasions. The Father claims to have learned from the behavioural change program that he undertook as ordered by the Magistrates’ Court as part of his sentence for persistently breaching the intervention order made for the protection of the Mother. He says he satisfactorily completed that program, with two “intake and needs assessments” and then over the required 20 sessions, from mid-2022 to mid-2023.[6]
[6] See “Attendance Document” dated mid-2023 from the “Facilitator of Men’s Behaviour Change Program” at U Family Centre annexed to the Father’s trial affidavit at [33] and MRS-2.
The Father does not accept that the Mother’s parenting will be deleteriously affected by the psychological impact of her facilitating him having time with the children. The Father asserts the children, and the older child more strongly, have a growing and appropriate relationship with him and that he does, and will, care for the children very much and that they will benefit from a close relationship with him, as a parent, and with his parents, as grandparents.
The Father seeks that the parties have joint decision making in relation to major long-term decisions for the children, that the children continue to live with the Mother.
The Father seeks orders that the children spend time with him, initially under the supervision of the Paternal Grandparents, and then for some time with them in substantial attendance, in a very gradually increasing regime.[7] He seeks orders for joint long-term decision making and, I infer, he asserts that would actually work satisfactorily. He seeks that the children live with the Mother and commence spending time with him for 2 hours each weekend on a Saturday. He asks that his time with the children be supervised by his parents for the first 10 weekends, or sessions, and that they be in “substantial attendance” for a further 6 weekends or sessions.
[7] The orders sought by the Father are detailed in his Amended Initiating Application filed 28 February 2024.
The Father seeks that his time increase, bit by bit, over 11 different stages with the first overnight at stage 6, after 34 weeks from the first 2-hour supervised session. He seeks after those overnight sessions (with the Paternal Grandparents in substantial attendance for the first 3 overnight sessions) a regime of time gradually increasing bit by bit to alternate weekend (Friday afternoon/evening to Sunday evening) with another night in the other week. By his regime, the Father’s time is to be supervised by his parents for the first 10 sessions (over 10 weeks) and then with his parents in substantial attendance for the next 6 sessions. He says that after 16 sessions of his time (about 16 weeks) the substantial attendance requirement should cease until a bit later on when the first overnight should commence, with the first three overnights to be at his parents’ home.
The rather protracted, and at first brush appearing complicated, gradual regime is best described by the family report writer at [26] thus:
26.[Mr Sipos] is seeking Orders that the children live with their mother and spend supervised time with him at the home of his parent’s house in [Suburb D] initially once a fortnight for 2 hours per week on a Saturday. Additionally, [Mr Sipos] is seeking that there be a slow and steady gradual increase in his time spent with the children increasing incrementally from 2-hour blocks of time to 4-hour blocks of time to 7-hour blocks of time over several months. Following this increase [Mr Sipos] is seeking that the children then spend each alternate weekend on both Saturday and Sunday from 10 am to 5 pm on both weekend days with him supervised by the paternal grandparents. Following this period, he is requesting that overnight stays at the paternal grandparents' house commence every alternate weekend and as of December 2026 that the children spend time with him during the school holidays incrementally increasing from two nights in 2026 to 6 nights per school holiday in 2029.
The orders the Father seeks ultimately lead to unsupervised and overnight time with the children without mandatory supervision or connection with the Paternal Grandparents. That is so notwithstanding it is not suggested that his existing modest rented one-bedroom accommodation is suitable for overnight and extended overnight time for himself and the children. It was not challenged that his own independent accommodation was suitable for him. Except by the psychologist’s report referred to later. Also there was no suggestion or evidence that the Father, now a full time student in the early part of a course and a part time unskilled worker, would be able to accommodate the children overnight in his own independent accommodation.
He also seeks to impose the condition on himself and his parents that overnight time be at the home of his parents for the first 3 sessions, and thereafter that there be no such requirement. He seeks orders that cause the alternate weekend regime to continue through school holidays with gradually increasing time over several years, and also time on special days. He also seeks various injunctions to restrain himself from consuming illicit substances and to compel himself to complete parenting courses and to continue to consult a psychologist. He also sought orders that the children be vaccinated according to the standard medical advice for children in Australia.
The Father also sought weekly video communication each Wednesday, and for the standard, or ubiquitous, orders for obtaining medical and educational information and parental involvement at school. He opposes any order to restrict any member of his family from coming into contact with the children.
The Father’s counsel asserted in closing that the test I should apply was threefold. Counsel asserted:[8]
MR STANLEY: Your Honour, in my submission, there is a legal analysis which requires three elements in this case. First is to assess the unacceptable risk, if any, in relation to the children. Second is the application or otherwise an analysis of the principles associated with Re Andrew. The third is, on the basis that your Honour does not find that either there is an unacceptable risk sufficient to prevent the children from having a relationship with their father, or that the principles of Re Andrew apply, what does that relationship look like? So that, in my submission, is the three-stage legal reasoning that your Honour should engage with.
[8] At transcript page (‘TP’) 388.
The Mother’s case: No time orders sought
The Mother sought sole decision making for the children and opposed orders mandating vaccination of the children. The Mother initially sought that the children spend no time, and have no communication, with the Father.[9] During final addresses, this position changed twice. It was announced that the Mother now pressed orders where the children would spend 2 hours, six times each year, with the Father but supervised by the Paternal Grandparents. During final addresses, the Mother’s counsel sought further time to obtain instructions, which was granted.
[9] Mother’s amended response to initiating application filed 28 February 2024.
Following that time (when the case was “stood down” to permit further instructions) it was announced that the Mother then sought the same period of time (2 hours six times each year) but supervised by a contact centre or, at the Father’s expense, supervised by a nominated independent service and not supervised by the Paternal Grandparents. I permitted her that leave to change her position about orders sought (twice) during final address. Her last position was maintained to the end of final addresses and confirmed in a revised minute of orders sought by the Mother which was sent to the other parties and my chambers following the hearing. The minute included the following orders sought by the Mother:
Decision making
1.The Mother make decisions in relation to all major long term issues for the children namely [Y] born [in] 2018 and [X] born [in] 2020 (“collectively the Children”) and for the purpose the Mother provide the Father with written notice of any decision made pursuant to this order.
2.The mother and the father each have sole decision making for the Children, when they are in their respective care, with respect to any medical emergency requiring an urgent decision about either or both of the Children’s health on the conditions that the mother and the father will as soon as practicable and by no later than one hour from the onset of the emergency inform each other in writing (email or text message) about any decision made with respect to any such issue.
Live with and spend time
3. The Children live with the mother.
4.The children spend time with the Father on six occasions per year and for the purpose of such time:
a.It be supervised by [G Contact Centre] or in the event the Father wishes to meet the cost of such supervision then the [V Contact Centre]; and
b.For a period of no more than 90 minutes; and
c.With the father to give the Mother 21 days notice of his intention to spend time with the children; and
d.Such time not to occur more than once per calendar month; and
e.The Paternal Grandparents be permitted to attend such time.
Communication
5.The parties and the paternal grandparents communicate via AppClose regarding the children save for in the event of an emergency or if AppClose is unavailable, in which case they may communicate by SMS or telephone call.
Restraint
6.From the date of the Orders, the Father, his servants and agents, are restrained by injunction from attempting to locate and/or communicate with the Mother and/or children or either child and/or from going to or remaining within 200m of the Mother and/or children or either child or any place where they attend childcare, school, live, work and/or study.
7.Each parent, their servants and agents be and are hereby restrained by injunction from:
a.Discussing these proceedings with the children, or in the presence or hearing of the children, or allowing anyone else to do so;
b.Denigrating the other parent, their partner, or a member of their family in the presence or hearing of the children or allowing anyone else to do so;
c.Exposing the children to family violence or allowing any other person to do so;
d.Physically disciplining the children;
e.Save for as otherwise provided herein, consuming or being under the influence of excessive alcohol, illicit drugs or prescription drugs (unless that prescription drug/s is/are taken strictly in accordance with the prescription of such drug/s) 24 hours prior to and during their time with the children; and
f.Exposing the children to illicit substances or drug paraphernalia or allowing any other person to do so.
Drug Use
8.The Father shall do all things necessary to keep the Mother apprised of any and all prescriptions for substances which contain Tetrahydrocannabinol and shall provide the Mother (via AppClose) with copies of those prescriptions as soon as practicable upon receipt.
9.The Father be and is hereby restrained by injunction from using or being under the influence of illicit substances and prescribed Tetrahydrocannabinol within the period 24 hours prior to and during all time the children spend with him pursuant to these orders.
Vaccinations
10.Within 14 days of the date of this order the mother make an appointment with the children’s regular General Practitioner for the purpose of developing a “catch up vaccination schedule” for the children for all standard childhood vaccinations as set out in “Annexure A” herein, being the Victorian Immunisation Schedule July 2024 and provide a copy of the catch up schedule to the Father within 24 hours of the same being available.
11.The Mother comply with the catch up vaccination schedule as set out in order 7 herein at time and dates as determined by the children’s general practitioner.
12.Upon completion of the catch up vaccination schedule the Mother provide to the Father copies of the children’s Immunisation History Statement from Services Australia.
Passport
13.Pursuant to ss. 7 and 11 of the Australian Passports Act 2005 (Cth) and the court being satisfied that it is not practicable to obtain the consent of the Father to enable the children to obtain an Australian Passport to travel internationally, the Court makes the following order.
14.The Mother of the children be permitted to apply for an Australian Passport to enable the children to travel internationally notwithstanding that the Father of the children has not signed the passport application form and furthermore the said children be permitted to travel internationally without the permission of the Father.
15.Pursuant to section 65Y, the Mother be permitted to travel outside the commonwealth of Australia with the children, provided she gives notice to the Father 21 days prior and confirms her departure and return date and details of the country the children will be travelling to.
The Mother’s position at the start and end of the proceedings was that the Paternal Grandparents were not suitable supervisors of the children’s time with the Father because, or for reasons that included:
·the Paternal Grandparents had “an inability to deescalate” the Father when he was perpetrating family violence towards the Mother; and/or
·the Paternal Grandparents were, or the Mother now regarded them as, “enablers” of their son’s family violence against her and the children and posed a risk of danger to the children, and/or her, if acting as supervisors.
The Mother’s case asserted that the Father had perpetrated significant family violence upon her and the children and upon at least two other intimate partners and was likely to do so again, that he had abused illicit substances and was likely to do so again, but in final address conceded a limited relationship with the Father was in the children’s best interests – provided her and the children’s safety was ensured. The Mother asserted that the assessment of Ms F – that the Father actually had a mental health condition – was correct and demonstrated that any time with the Father outside of a contact centre or paid professional supervisor was potentially unsafe and hence not in the children’s best interests.
The Mother asserted she remained fearful of the Father. The Mother’s case was that the concept of the Father spending time with the children, other than limited time supervised by independent supervisors, would significantly impact of her psychological health and cause a deterioration in the quality of her parenting to the children.
Orders sought by the Independent Children’s Lawyer
As can be seen from the outline of case filed,[10] and minutes of orders pressed in final address, the ICL sought orders to the effect that the children live with the Mother, that she have sole decision making for health and education matters, and the parties have joint decision making about changes to the children’s living arrangements where it would make their time with the Father more difficult. The ICL sought that the Father have regular alternate weekend day time only time with the children with one overnight during the school holidays (from when X started school) but with all time supervised by the Paternal Grandparents and indefinitely into the future. The Father opposed such indefinite supervision as unduly restrictive and impractical. I am satisfied the Paternal Grandparents knew of this proposal (after their son’s evidence they sat with him in the courtroom through the remainder of the case) and although not a party to the case with a right of audience did not take steps to indicate such indefinite supervision could not be undertaken. The ICL pressed for X to have the same hyphenated name as her older sister and for the children to be vaccinated according to standard medical advice and in line with the evidence of Dr H.
[10] In outline of case filed 18 July 2024, the ICL sought that the Father’s time be “once per fortnight for no more than 3 hours, supervised by the paternal grandparents” but in minutes of orders, ICL 1 25 July 2024, sought
A minute of orders the ICL sought was provided to the court on the final day of the hearing and tendered as ‘ICL1’, in which the ICL sought the following:
Decision making
1.The mother have sole decision making for the children namely [Y] born [in] 2018 and [X] born [in] 2020 (“collectively the Children”) with respect to major long-term issues about:
a.health matters (excluding any medical emergency requiring an urgent decision about the Children’s health) save for the Children’s vaccination status as provided in these Orders;
b.education (both current and future);
c.matters that concern the Children’s emotional wellbeing including the requirement for counselling.
2.The parties have joint decision-making for the Children with respect to major long-term issues about:
a.Changes to the Children’s living arrangements that would make it significantly more difficult for the Children to spend time with the father.
3.The mother and the father each have sole parental responsibility for the Children, when they are in their respective care, with respect to any medical emergency requiring an urgent decision about either or both of the Children’s health on the conditions that the mother and the father will as soon as practicable and by no later than one hour from the onset of the emergency inform each other in writing (email or text message) about any decision made with respect to any such issue.
Live with and spend time
4. The Children live with the mother.
5. The Children spend time with the father as follows:
Commencing the first Saturday after the date of these Orders
a.On Saturday from 11:00am until 2:00pm and each alternate weekend thereafter;
Commencing the Saturday six (6) months after the date of these Orders
b.On Saturday from 11:00am until 6:00pm and each alternate weekend thereafter.
School holidays
6. The Children spend time with the father during school holidays as follows:
Commencing the term 1 holidays in the first year [X] starts primary school
a.During the Victorian School Term Holidays, for one overnight from 11:00am until 11:00am the following day on a day to be agreed between the parties and failing agreement, from 11:00am on the first Saturday of the holidays until 11:00am on Sunday;
b.During the Victorian Long Summer Holidays, for one overnight each alternate weekend as follows:
i.From 11:00am on the first Saturday of the holidays until 11:00am on Sunday and each alternate weekend thereafter.
Supervision
7.All time between the father and the children pursuant to paragraphs 5 and 6 shall occur on a supervised basis, with the paternal grandparents to act as supervisors.
Changeover
8.Unless otherwise agreed between the parties, changeover take place at the [Suburb D] Police Station between the mother and the paternal grandparents, where possible.
Communication
9.The parties and the paternal grandparents communicate via AppClose regarding the children save for in the event of an emergency or if AppClose is unavailable, in which case they may communicate by SMS or telephone call.
Name Change
10.Each party shall forthwith do all acts and things and sign all documents as may be required to apply to the Victorian Registry of Births Deaths and Marriages to change the registration of the name of the child [X Hidalgo] born [in] 2020 to [X Sipos-Hidalgo].
11.Each party shall henceforth exclusively use the name [X Sipos-Hidalgo] as the name of the child [X Hidalgo] born [in] 2020, now known as [X Sipos-Hidalgo], and not cause or permit any other person to use any name other than [X Sipos-Hidalgo] as her name.
Vaccinations
12.That the mother forthwith ensure the children attend the [W Hospital] Immunisation drop in clinic and do all things necessary to ensure that the Children catch up as soon as possible on all vaccinations that they would have had to date in accordance with the recommendations of the [W Hospital] Immunisation Clinic and that they continue to receive vaccinations in accordance with the Australian National Immunisation Program Schedule and as recommended by the [W Hospital] Immunisation Clinic.
As to the issues of the Paternal Grandparents being enablers to the alleged family violence towards Ms Sipos and not being an acceptable option for supervision, counsel for the ICL submitted in final address that:
MR KIERNAN: The paternal grandparents are capable of being effective supervisors…
Change of name dispute
The older child carries the Father’s surname of family name, hyphenated with the Mother’s surname. The younger child only has the Mother’s surname. The Father and the ICL seek orders compel the parents to cause both children to carry both parents surnames in the same hyphenated form as the older child does currently. The Mother seeks that the older child’s name be changed so as to delete the reference to, or incorporation of, the Father’s name in the older child’s name.
All parties seek that the two children have the same surname.
THE KEY FACTUAL ISSUES
The central question is what spend time arrangements are in these children’s best interests as determined by the application of Part VII of the Act and, in particular, the engine room provision of section 60CC. Related to that is the question of whether the Paternal Grandparents would be appropriate initial supervisors of the children’s time with the Father. Within those controversies, the evidence and the parties’ contentions frame central factual disputes, or questions, as follows:
(a)How violent (including whether or not the violence included “strangulation”) was the Father in past intimate relationships with three different women, including in the relationship between the Father and the Mother?
(b)How violent, if at all, was the Mother to the Father and how did that contribute to the nature of the parents’ relationship?
(c)How genuine is, and what is the significance of, the Father’s claimed learning and insight into his past violent or controlling behaviour?
(d)What is the extent of the risk of the Father exposing the children to dysregulated or angry or violent behaviour to intimate partners/ex partners including the Mother?[11]
(e)Would there be a significant loss to the children in not having the quality or sort of relationship with their father, and the Paternal Grandparents, that would likely arise from regular fortnightly time, including overnight time, with their father?
(f)Were, and are, the Paternal Grandparents “enablers” of the Father’s violence to the Mother?
(g)Would the Father having unsupervised and/or more than very limited (6 times each year for 2 hours) time with the children deleteriously impact the Mother’s mental wellbeing and parenting of the children?
(h)Has the Mother’s childhood experience of adult and parent/child relationships significantly influenced her perception of the benefit to the children of a relationship with the Father?
(i)If regular, including overnight, time with the Father is to occur, what is the extent of the risk to the children if that time later moves to being unconnected to the Paternal Grandparents?
[11] This question involves the assessment within Ms F’s report that included psychometric testing. The reliance on psychometric testing became controversial after Ms F refused to make the materials of the tests available to the parties.
CHRONOLOGY OF CRIME AND VIOLENCE
The following chronology sets out some of the significant events that were discussed during the hearing. It does not, however, recite all relevant events/allegations that occurred between the parties or provide intricate detail, rather, it serves to create a framework for the dispute between them.
The psychologist,[12] as recited later, opined that the Father “had a pattern of disregard for, and the violation of, the rights of others, criminality, impulsivity and a failure to learn from experience”.[13] This opinion is controversial and warrants a careful analysis of those matters including the “criminality” of the Father.
[12] The single expert witness Ms F is a clinical psychologist who assessed the personalities and psychological health of the parents.
[13] See [102] of the psychologist assessment recited later.
Criminal proceedings involving the Mother
During the hearing, counsel for the Father raised with the Mother criminal charges against her in the 2000s, when she was in her 20s. No party had subpoenaed any police or court records. The Mother gave somewhat ambiguous evidence in regard to those charges as follows:[14]
[14] Transcript page 170-172.
MR STANLEY: Yes. The fact is that in 2016 and before, you’ve been a bit of a wild spirit yourself, haven’t you?
[MS HIDALGO]: I guess, at times.
MR STANLEY: In fact, what I record is that in [the 2000s] you were involved in some riots?
[MS HIDALGO]: In a protest, yes.
MR STANLEY: Yes. Well, protests which ultimately caused injury to a police officer, damage to police vehicles, and you were ultimately arrested and charged for that?
[MS HIDALGO]: I didn’t do those things, but I was charged for things that happened at the protest.
MR STANLEY: Yes. And you were charged - - -
HIS HONOUR: Hang on, hang on. Charged for being present at a protest?
[MS HIDALGO]: I can’t remember what the charge was in the end.
…
[MS HIDALGO]: Yes, I think affray was one of the charges. I’m – but I’m not sure what the end outcome was. But the things that you mentioned are not things that I did at the protest.
…
MR STANLEY: Well, you were charged with criminal behaviour arising from that riot?
[MS HIDALGO]: I don’t remember what the charges were, but, yes, I was charged with something to do with the riot.
…
MR STANLEY: Well, … [that’s] certainly reported of you […], is that you were charged with [offences]. Do you recall that?
[MS HIDALGO]: I don’t recall that [report], but I believe you.
MR STANLEY: Okay. I’m recording of you. So what I’m – and I understand you were charged with that. You were at first instance convicted and required to complete community work?
[MS HIDALGO]: Yes.
MR STANLEY: Yes. And that you appealed that sentence and ultimately suggested that your conviction be overturned because it would stand in the way of your career advancement. Is that an accurate chronology?
[MS HIDALGO]: Yes. The conviction was taken away, and I think it was a finding of guilt with no conviction.
MR STANLEY: Yes. So certainly what’s recorded of you or reported of you is that you were remorseful, and sorry for your actions; is that true?
[MS HIDALGO]: Yes.
MR STANLEY: Yes. And that you accepted responsibility for those actions and that they were wrong. That’s what’s reported on you?
[MS HIDALGO]: Yes.
MR STANLEY: Okay. What – and that’s what you come to the court articulating, that those actions were wrong. And how do you say that his Honour should deal with your criminality in relation to those behaviours in the context of this case? What relevance do you say his Honour should place on your criminality?
[MS HIDALGO]: I don’t think I’m a criminal. There was no conviction, and it was a long time ago, and the – we haven’t gone into the details and I don’t know if we will about what my actions actually were. Like I said before, I didn’t do the things that you said, that you mentioned specifically at the protest.
MR STANLEY: Okay. You said in answer to that question that it was a long time ago?
[MS HIDALGO]: Yes.
MR STANLEY: Have you changed?
[MS HIDALGO]: It’s a one-off incident, yes.
…
MR STANLEY: [Ms Hidalgo], you – it’s – I want to suggest to you and give you the opportunity to contend with the proposition that part of your personality make-up is that you are explosive when you lose your temper. Is that a fair proposition?
[MS HIDALGO]: No.
MR STANLEY: Okay. Sure about it? Sure about that?
[MS HIDALGO]: Yes.
The case largely centred on whether or not the Paternal Grandparents’ home being a safe and appropriate place for time between the children and their father to occur. For the reasons stated herein, I accept that the Paternal Grandparents home is a safe and appropriate place for time between the children and their father. However, the orders pressed by the Father assume and have, admittedly a long way down the track, an automatic move to an ordinary spend time order without restrictions on place, supervision, substantial attendance, or attendance at changeover.
The involvement of the Paternal Grandparents is one of the significant matters that assists me find that orders that envisage their continued involvement, but not supervision, are orders that promote the safety of the children and the parents. Save for a limited introductory period, to promote the safety of the children, I am not satisfied that the involvement of the Paternal Grandparents needs to be as intrusive on the children, and as burdensome on the adults, as supervision entails. All overnight time will occur at their home, or if on holiday, where they are staying, when that is not inconvenient to them. Although not requiring supervision, the involvement, and the transparent involvement of the Paternal Grandparents is a significant matter I place much weight on. That transparent involvement is important to promote the safety of the children and to assist the Mother with her anxiety about the safety of the children. Transparency of involvement can be achieved by the imposition of the burden on the Paternal Grandparents of attendance at the changeover at the police station[56] at the start of the children’s time with the Father.
[56] I was told and accept that the Paternal Grandparents home is close to the police station.
Hence, in this case, notwithstanding;
·the significant not only inconvenience but also burden on them, but acknowledging their enthusiasm to assist their grandchildren and their own desire to have a relationship with their grandchildren; and
·the impediment to their relationship with the Father of time only occurring around their involvement; and
·the inevitable substantial inconvenience to the Father over many years;
I am satisfied that, until X is 7 years old and Y is almost 9 years old, that is until X’s birthday in 2027, all overnight time should occur at their home (or if on holidays at where they are staying) and one or other of the Paternal Grandparents should attend at the police station at the start of the Father’s time.
Any views expressed by the child/children.
In refer to those passages of the family Report recited above that recite their views. I accept that evidence. The children want to have a relationship and spend time with their father and his family and in particular the Paternal Grandparents. The children want a greater involvement than limited “identity” time with their father and his family. It is a credit to the Mother that she has sufficiently protected the children from her own feelings about their father that they are able to express those views. However the age of the children and the circumstance that their parents strongly disagree about their welfare, means that it is not appropriate that the responsibility for the decision about time with their father rest on them, directly or indirectly. Hence I place only a little weight on their views.
But the circumstance that their views coincide, in a broad sense, with the Father’s case is one aspect that indicates to me that the scheme of the orders the Father seeks, with some changes, are likely to actually work.
The developmental, psychological, emotional and cultural needs of the child.
I refer to those passages of the family report and the cross-examination of the report writer recited above that deal with the long-term importance and consequences of relationship between children and their parents where it is safe. I accept that evidence. In the long term the children have a developmental and psychological and emotional need to have a relationship, and hence regular time, with both parents.
Capacity to provide for developmental, psychological, emotional and cultural needs.
The Mother has a significant capacity to provide for these needs of the children. The difficulty she has in promoting the children’s relationship with the Father is an inevitable consequence of her life’s experiences and her personality. Her life’s experiences include the difficulty of her relationship with the Father and dealing with his personality. In addition, she experienced violence and control at his hand as discussed earlier in these reasons. Despite all that, the Mother has the capacity to provide, in every necessary way, for the children’s developmental, psychological and emotional and cultural needs.
The impediment to readily find that the Father has the capacity to provide for the children’s developmental, phycological and emotional needs is the history of violence in his relationship with the Mother. Violence and conflict with the children’s mother, their major carer, whether in their presence or not, inevitably affects the children.
The Father said the first anger management course he enrolled in (when ordered to do so) didn’t suit him. I am satisfied that in that first course he argued and maintained his view of his role in relationships. The Mother’s evidence, that I accept on this point, in substance described an opinionated and strong-willed partner who insisted on his point of view being acknowledged to the point of causing her upset and distress. That personality was, to a much milder extent, demonstrated, and also acknowledged, in the witness box. I am satisfied that the Father’s personality was, and is, of always having strong opinions about whatever. His relationship with the Mother included insistence on usually having the last word of any argument or conversation, and a determination to convince the other person, or intimate partner, that he really was both knowledgeable and always correct. During the relationship, he had a limited capacity to consider the Mother’s experience and feelings about how they interacted when they disagreed. As a result of the Father’s attendance at the MBCP, and Dr JJ, and the intense and intrusive examination process of these proceedings, I am satisfied that the Father now has a significantly greater capacity to provide for the developmental, psychological and emotional needs of the children free from the harm of exposure to violence.
I am satisfied the Mother’s account to the Social Worker about the 2018 incident when pregnant with Y, recited above, was accurate. The Mother’s circumspection at that time about whether that was family violence was because she had lost her temper after a long argument and at that time hoped for a loving and supportive relationship with the Father. But what she accurately described was an assault, it was the use of force and was family violence as described by section 4AA of the Act. I am satisfied that one significant aspect of the parents’ relationship was that on many occasions the Mother attempted to hold her ground in arguments with the Father and reacted to his relentless pursuit of his point of view by losing her temper or, in modern parlance, becoming dysregulated. She felt, and was, controlled by him. She did not apply force to him “until he calmed down”. On at least two occasions, while dysregulated, and fearing his use of force, she struck him or attempted to strike him with considerable force. I am satisfied that both the black eye incident and the time when, then baby, Y was struck by the Mother was in the course of another of the parties’ arguments when she feared his use of force. I am not satisfied she just walked up to him and whacked him.
I am also satisfied that at all times the Father was the physically stronger party and able to, and did, use that strength to apply force to the Mother. I am satisfied her reactions, ill-advised and impulsive, were within the human range of reactions of a weaker party to the stronger. His response was the forceful squeezing of the Mother to, from his point of view, get her to calm down. But he applied much force to do this, and he knew that she strongly opposed that used of force. It was dangerous and was assault. It caused fear and the Mother felt, and was, controlled at these times. There was not an equivalence or even tit for tat use of force. The Father may well have been apprehensive of being struck at times but he was not in fear of the Mother. But she was of him on many occasions.
At those times, when the Father was both having the last word and then applying force to the Mother, the mother of his children, he did not have, or did not demonstrate, the capacity to provide for the children’s developmental, phycological and emotional needs.
The central issue in this case, and central to the safety of the children, is whether the Father now has the capacity to provide for the children’s developmental, psychological and emotional needs. The Father denied some of the Mother’s allegations of violence and attempted to claim some sort of equivalence of violence between the parents. For the reasons stated above, I do not accept that there was any such equivalence.
I accept the family report writer’s observations regarding the nature and quality of the Father’s interactions as a parent with the children. Those observations satisfy me that the Father does have the capacity to provide for the developmental, psychological and emotional needs of the children.
The Mother’s case included the concern that the knowledge of the Father spending time with the children and having to facilitate that time would so profoundly impact on the Mother, their major care giver, that time should not occur at all or in her final address should only occur in the most limited and supervised manner she ultimately proposed.
I am satisfied that having to facilitate the children’s time with the Father will cause anxiety to the Mother. As a result of her experience of him she now has contempt for him. Her personality is one where she holds strong opinions and mostly the confidence to hold them. The Mother has overcome very real difficulties in her life and has demonstrated the robustness of her personality by both participating in the riots explored in the evidence (or mere demonstrations depending on your point of view) and coping with the court cases that followed and none the less completed significant study and professional qualifications. I infer from the absence of evidence to the contrary that she has worked successfully in her profession. The professional work she has undertaken, I infer, would have been challenging and definitely not for the faint hearted. She has utilised professional support to assist her deal with the difficulties of her life and also the relationship with the Father.
In all of the circumstances I am satisfied that the Mother will access support when needed and that she has a sufficiently robust personality that she will cope with the reality of the Father having a role in the children’s lives. I am satisfied she will be able to facilitate the children having a relationship with the Father and a more significant one than she ultimately pressed for.
The observations of the nature of the Father’s ability to care for the children observed by the family report writer also inform me that, at this time, the Father has a significant capacity to provide for the developmental, psychological and emotional needs of the children. I am also satisfied that the relatively modest proposal of the Father for time with the children indicates significant insight into his own circumstances and the children’s and itself demonstrates capacity to provide for the developmental, psychological and emotional needs of the children.
Benefit of a relationship with the child’s parents & other (significant) people (if) safe
Ultimately it was common ground that a relationship was important and necessary for the development of these children. What the extent of that relationship should be is in dispute. On the one hand the minimal relationship consequent upon only “identity” time professionally supervised and of only hours four time a year and on the other regular and unsupervised time including limited holiday time and limited alternate weekend time as pressed by the Father.
Each of the Paternal Grandparents gave evidence of the children joyfully relating to the father when he cared for them at their home and of the children joyfully relating to the Paternal Grandparents in a close and Grandparent/grandchild like relationship. They had significant opportunities to observe the Father relating to the children in the absence of the Mother. I accept their evidence. As observed by the family report writer the Father’s parenting style is quite different to the Mother’s[57]. I am not satisfied that the Mother’s parenting style is deficient but it is different. I am satisfied the caring style of the grandparents is very caring and focussed on the children. The personalities of the Paternal Grandparents, observed by the family report writer and by me in the witness box, are consistent with them being kind, caring and thoughtful hands on grandparents. I am satisfied the children will benefit from consistently experiencing the different but caring style of the Father and his personality. There is much they can learn from him. Taking into account the observations and opinions of the report writer of the report writer and the evidence of the Paternal Grandparents I am satisfied that there is a real benefit to the children of a significant relationship between the children and the Father and between the children and the Paternal Grandparents.
[57] See the observations at [?] of the family report recited above.
Anything else that is relevant to the particular circumstances of the child
The matters that must be taken into account is the Mother’s poor opinion of the Father. In regard to how he has been violent and controlling to her opinion has a reasonable foundation. The children have not seen the father for a long time. If the children are to have a relationship with the Father it is essential that that be safe and gradually introduced.
The ambit of the Father’s case at trial, relative to what he wanted when the case commenced and what he wanted when interviewed by the report writer, is modest and very gradual. This modesty of approach, far from what the father would want if it was solely up to him, shows some insight by the Father as to the reality of the circumstances of his children and his role in that. It is one of the matters that demonstrates to me that the Father has learned about what family violence is, and to some extent, what his role and responsibility in the disaster of a relationship with the Mother was.
Family violence
As I have recited above the Father has engaged in coercion, controlling behaviour and force and violence against the Mother. The allegations that he has committed family violence against other, and all known, intimate partners of the Father must be had regard to. The other intimate partners were not witnesses. No charges were laid or proven in regard to those partners in the criminal courts. The Father denies the allegations.
Counsel for the ICL submitted with some force that it was unlikely that there was no substance in the repeated allegations of violence of four different former intimate partners of the Father and hence there was a real risk of the Father exposing the children to violence with future partners. Counsel for the Father submitted that to take the hearsay and untested allegations of unhappy former partners as reliable evidence was a slippery slope towards unreliable conclusions. There is substance in both positions. Apart from intimate partners the allegation about the lengthy intimidation of a mere friend of a friend working in a bar is concerning.
The Father’s denials were not inherently implausible and his demeanour in the witness box not lacking verisimilitude. I am not satisfied on the balance of probabilities of the reported allegations of the two prior intimate partners and one subsequent intimate partner of the Father of his violence to them.
But I am not satisfied, on the balance of probabilities, that there was nothing to see there as the Father contends. Because I do not have a comfortable satisfaction that the hearsay and untested allegations are true or accurate does not mean, when I asses risk of future events, that I dismiss or disregard the allegations. Sadly the allegations made by the different intimate partners are not implausible.
I must also have regard to the cumulative effect of those allegations notwithstanding I am not satisfied on the balance of probabilities, for the reasons given, that the events occurred. I am also not satisfied that all or any of them are entirely without substance. Given I cannot dismiss those allegations, the nature of them, the number of them, the fact they come from different sources, the fact that some were reported to police and the police records show one occasion of the Father observed by police standing over, an intimate partner, taken together with my findings about the Father’s behaviour to the Mother and the many and broad aspects of that and notwithstanding it was in a complex relationship compel me to find that there is a not inconsiderable risk of the Father engaging in intimate partner violence with a future intimate partner. If his were to occur and the children be exposed to it that would be devastating to their welfare.
I am not satisfied there is any material risk of intimate partner violence by the Father while the children’s time is connected to his parents and any overnight time occurs at their home.
Am satisfied that prohibiting the Father from attending school or school events where the Mother may attend, save for parent teacher interviews by video link, together with local police station changeovers and presence of a Grandparent, ameliorates the risk of the parents or either of them exposing the children to the risk of conflict or disparagement or display of attitude or contempt and of the children being exposed that or to coercive or controlling behaviour of either parent.
I am not satisfied that it is in the children’s best interests if both parents are able to attend the children’s school, including the usual special events, at the same time. I am not satisfied that there is any risk to the children if the Paternal Grandparents were to attend special school events parents are usually invited to attend. I am satisfied that it is in the children’s best interests that the Mother have the comfort of knowing that the Father will not attend at or near the children’s school and that his attendance at school will be limited to electronic means for the purpose of separate parent teach interviews, if permitted by the children’s schools.
I am not satisfied there is a material risk of future conflict or violence between the parents if changeovers are, unless agreed in writing between the parents, at the local (Suburb D) police station.
The change of name controversy
The applications about changing one or other children’s names must be decided according to the children’s best interests. I am satisfied that the children’s welfare will be best advanced if they have the same surname or family name. Having the same name is likely to promote the relationship between the children and their identity as sisters. Their sibling relationship is now and will be for their lives a very important relationship. Y, now aged 6, has been known as Sipos-Hidalgo, and I infer is known by that name at her school. That the children have the same surname will become more important to their sense of identity and who they are when X commences school. I infer the children will attend the same school. It is not in the children’s interests that they should have to explain why they have different surnames to peers at school, or anyone else. I am satisfied that the benefits to the children of having the same surname, or family name, is one of the developmental, psychological and emotional needs of the children that must be considered pursuant to section 60CC(2)(c). For the reasons I have set out, I am satisfied that there is a benefit, and a significant benefit, to each of the children in having a relationship with both of their parents. And in the circumstances where I am going to make orders that will provide for such a relationship, there is significant benefit in the turbulent circumstances of the children’s lives, of having both of their parents’ names in their surname. The model adopted when Y was born, of Sipos-Hidalgo, is a sensible way forward.
The Mother seeks that the name Sipos be removed from Y’s name. I am satisfied that part of her motivation is her contempt that she feels for the Father after what she has endured during her relationship with him and since. I am not satisfied that it is in Y’s best interest when I am going to make orders that will provide for an ongoing relationship with both parents, that her name be changed so as to delete reference to her father. It is inevitable that Y will learn of this change and be curious about it. She is already aware that her mother does not like her father, and a further exploration of that circumstance that explanation about a change of name by deleting her father’s name from her name would further expose her to the enmity between her parents and is not in her best interests.
I refer to and rely upon the observations of the family report writer, recited above, in regard to the Mother’s proposal as to the change of name.
The Mother’s unhappiness about Y having part of her surname the same as her father’s is also a matter that I must take into account. I also take into account that at the time of X’s birth and registration, the Mother chose not to include the Father’s name in X’s name as she had for Y. At that time, 2020, the parties had an appalling relationship.
I am not satisfied that it is in X’s best interests that that sad period in her mother’s life should mark out and differentiate her name, and hence her from her sister Y, when they both share both parents.
I am also satisfied that it is likely that the sibling relationship between X and Y is likely to outlive the relationships between the children and their parents.
I place only a little weight on the fact that the change of name sought by the Father is supported by the ICL. But I do place some weight on that.
Balancing all of those matters, I am satisfied that there should not be a change to Y’s name, and that X’s name should be changed so that it is the same as her elder sister, Y.
CONCLUSION AS TO PARENTING MATTERS
I am satisfied, in all the circumstances, and balancing all of the risks to the children’s welfare in this case, that it is in the children’s best interests that they have a parent/child relationship with the Father and a grandparent/child relationship with the Paternal Grandparents. The risks that come with a relationship with their Father must be and can be ameliorated by limiting that time, by a gradual buildup of time (largely as proposed by the Father), by initially supervised time and centring that time around the Paternal Grandparents’ home until 2027, and police station changeovers until 2030. Those same matters ameliorate the risk of the impact of time upon the Mother and her parenting capacity being materially impaired.
Taking account of all of the above and balancing the risks to the children of each of the three parties’ proposals and the advantage sand disadvantages of each I am not satisfied that the Mother’s last proposal is in the best interests of the children. I am not satisfied that the Father’s proposal to eventually move to still relatively limited but overnight and block holiday time without mandatory connection to the Paternal Grandparents is in the best interests of the children. I am not satisfied the ICL’s proposal for indefinite limited (but some overnight) but always supervised time is in the best interests of the children.
Different orders within the ambit of the parties’ dispute
I am satisfied that the Father’s proposal for eventual block school holiday time, unless other time was agreed in writing by the parents, should be broadly as he proposes. The ICL seeks one night overnight in school holidays and the Mother seeks no time, overnight or otherwise. The Father’s proposal for the eventual alternat weekend time and the “evening meal” time roll through all school holidays is not practical and may become oppressive to the Mother. The orthodox or ubiquitous half and half sharing of school holiday time, in a no risk or low risk common or garden case to the extent there is such a thing in the Family Law Act courts, has two sides to it. That children get the benefit of block, and holiday or at least not at school, time with both parents is one side. The other is that each parent gets a break and a holiday from, regularly or usually, ensuring the children are available to the other parent for at least some part of every week. I am not satisfied that it is in the children’s interests that the eventual alternate weekend time propose by the Father always rolls through the school holidays. This limits the block time with the Father but also limits the uninterrupted school holiday block time with the Mother.
I am satisfied the Mother should still enjoy an uninterrupted one half of each school period and so the eventual alternate weekend time does not roll through the whole of school holidays but only half of it and then resume in the same alternate weekend regime during school term from when it commences until Kingdom Come. The parents can then plot all time the children are to be with the other parent with certainty around the alternate weekend regime.
However, the parties have not had the opportunity to contemplate the form of the school holiday orders that would give effect to my reasons. That the Mother opposes any school holiday time at all does not mean she should not have the opportunity for her lawyers to confer and make submissions about the form of the orders. What to family lawyers are simple matters such as, should the Father’s school holiday time be always at the same time of the year; or should it alternate between first half and second half of school holidays, can, in many families, make an enormous difference to the orderly organisation of their lives again, and again, and again. Hence, I will not make the school holiday orders at this time but give the parties time to confer and make any short-written submission in regard to the form of school holiday orders to give effect to my reasons. The school holiday time will not commence for many months yet, and hence there is no urgency that those arrangements be fixed at this point in time.
So, draft school holiday orders are attached to these reasons in Appendix 1 and are subject to short written submissions to be received, if the parties wish to make any, by email to my associates, provided any such submissions are CC’d to the other parties. If the parties are unable to reach agreement as to the form of the orders, then the Father should make a short submission as to the form of the orders within 28 days of these reasons, the Mother should make any short submission she wishes to make within 35 days and the ICL make any submission sought to be made within 42 days of these reasons. I will then make a determination as to the form of those orders if they are not agreed.
The Father proposes an eventual shift to an evening meal on each alternate Tuesdays, both during school holidays and school term. In a common or garden low risk or no risk case such a modest proposal would be sensible and in the children’s best interests. Such things also assist the parent with the burden and joy of the greater time with the children by having a child free later, at work or sport or shopping, night. But this is not such a case. To ameliorate a number of risks and to reassure the Mother all changeovers are to be at the local police station, and the changeover at the start of all time must have one of the Paternal Grandparents present. The Mother finds compliance with court orders that the Father spend any time with the children very stress full. Changeovers, even at the police station, will be stressful for the Mother. She will see them as interrupting her life. The requirement (for time to occur) of the paternal Grandparents being present at changeover will be both a joy and a considerable burden on them. I am satisfied, from the nature of the relationship enjoyed by the children observed by the family report writer that the “other week” evening meal proposed by the Father is not necessary for them to maintain and build a close and appropriate relationship with their father. This is a case where less not more changeovers are in the children’s best interests.
In all those circumstances and balancing risk and practicality and benefit to the children, I am not satisfied the Tuesday evening meal time is either practical or in the children’s best interests.
For the same reasons I am not satisfied the stage of the Father’s proposal where time moves from each Saturday 10am-5pm to each Saturday and then each Sunday at those times (but not overnight), on the way to joining those two days with an overnight in the middle, is in the children’s best interests. The four changeovers on one weekend will feel oppressive to all concerned and particularly the Mother. That many changeovers on one weekend is impractical in this case and not in the children’s best interests. I am satisfied the relationship between the children and the Father observed by the report writer, will by then, have become more secure. So the day time only each Saturday night will stay a little longer and the first one night overnight weekend commence a little earlier.
In this case, with a poor relationship between the parents, police station changeovers, and one parent having strong antipathy to the other, I am not satisfied that the benefit to the children of celebrating their birthdays and their parents’ birthdays with both of their parents, but separately, on the same day is practical or in their interests. That benefit is outweighed by being subject to a changeover between unhappy parents at the local police station. If no special provisions are made, the parties are still at liberties to agree, if they chose, to share the celebration of the children’s birthdays or their own birthdays on the actual day. I am not satisfied that these children will not enjoy celebrating their birthday and their parents’ birthdays on a day close to those actual days, but not exactly on the day. It is likely that those days will, usually, fall within the Mother’s time and the Father will be able to celebrate those special days when he sees the children either before or after the day. I am satisfied the children will enjoy celebrating their own birthdays, on different days, with each parent. The substance of the Mother’s orders was to oppose any special time at all. I am not satisfied the Father’s proposal is in the children’s best interests, or practical.
I am satisfied that it in the children’s interests that Mother’s Day be always celebrated when the children are in the care of the Mother, and Father’s Day be always celebrated when the children are in the care of the Father. And hence I will make special day orders in regard to Mother’s Day and Father’s Day as proposed by the Father.
I am satisfied the Christmas special days proposed by the Father are in the children’s best interests. But to go further and have special arrangements for a plethora of special days is not in the children’s best interests in this case.
The effect of the orders proposed by the Father is that the supervised time for two hours on a Saturday would commence on the next Saturday following the making of these orders. In the circumstances of the Mother’s strong opposition to that time that I will order, I am not satisfied it is in the children’s best interests that that time commence as abruptly (for her) as that. I am satisfied that it is reasonable and in the children’s best interests that the Mother have some time to contemplate how she will give effect to these orders. Also, the burden imposed on the Paternal Grandparents is such that they too need some time to contemplate how they will accommodate their assistance with these orders. In those circumstances, I am satisfied that these orders should commence from the third Saturday after the making of these orders, that is with a delay, or interregnum, of about two weeks.
I proceed on the basis that these changes are in essence opposed by the Mother and the ICL and not sought by the Father. I am satisfied these changes are well within the ambit of the dispute agitated by the parties and in the children’s best interests.
Parental Responsibility
The effect of the spend time orders is that the Mother and hence the children will have to live within what is for the Mother a convenient travel distance of the Suburb D police station. I am not satisfied that the parents have the capacity or the desire to confer about anything, let alone major long term decisions concerning the children. The reality is that the Mother has made any necessary decision about long term issues concerning the children so far in their lives and I am not satisfied that there is a need to interfere with that at this point. Were the parties able to confer, there is likely to be a benefit to the children of both parents being involved in major long term decisions concerning them. But that does not apply here. The obligation to confer about any major long term decision will only likely cause trouble and grief for the parents and the children. The Mother is a highly motivated and highly educated and professionally trained person, and there is no reason to doubt that she would not support proper education for the children. The issue of vaccination vexed the parents, however that is now resolved once the evidence of the vaccination expert was heard. I am not satisfied the children’s health will be harmed, or other than appropriately seen to by the Mother if the Father does not have a role in those decisions.
I am not satisfied that there is a sufficient reason in the circumstances to impose upon the parties the obligation of joint decision-making about where the children live as proposed by the ICL, in the circumstances where the Suburb D Police Station changeover necessarily determines the broad area where the children will live.
In those circumstances, I am satisfied that the order for parental responsibility proposed by the Mother should be made.
Social media
I am not satisfied the order the Father seeks in regard to social media is in the children’s best interests, and it was not supported, but opposed, by the ICL and the Mother. The Father sought that the parties be permitted to publish material in relation to the children online and on social media at order 19 of his amended initiating application. I dismiss that application. I am satisfied that the parties should be able to provide material in relation to the children to his or her family and friends by letter, text message or email only, and each be and is restrained from publishing same on any social media unless the agreement of the other parent has been obtained beforehand. In this case, knowledge that the other parent is publishing images or information about the children on social media is likely to antagonise each of the parents and is not in the children’s best interests.
Communication and obtaining of information
I am not satisfied that the orders the Father seeks in relation to the obtaining of medical information in regard to the children and a blanket authority to directly obtain medical information is necessary or in the children’s best interests.
I certify that the preceding two hundred and eighty-five (285) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 19 December 2024
‘APPENDIX 1’
Commencing 1 December 2026, during school holiday periods, with all overnight time to occur at the home of the Paternal grandparents, as follows:
(a)During the 2026/2027 long summer holidays, in the same rotation as during school term, on the second alternate weekend, from 3 pm (or the conclusion of school if a school day) Friday until 5pm Sunday and on the first weekend of those holidays, , and extend by two nights to conclude at 5pm Tuesday; and
(b)During all school term holidays in 2027, on the first occasion of the holiday alternate weekend time and in the same rotation as during school term school and that weekend to extend by three nights to conclude at 5pm Wednesday;
(c)During the 2027/2028 long summer holidays, on each holiday alternate weekend, and in the same rotation as during school term, and such occasion of holiday alternate weekend time extend by four nights to conclude at 5pm Thursday;
(d)During all school term holidays in 2028, the first occasion of alternate weekend time (pursuant to paragraph 6(k)(i) herein) extend by five nights to conclude at 5pm Friday;
(e)Commencing in the 2028/2029 long summer holidays and for each long summer holiday period thereafter, each occasion of alternate weekend time (pursuant to paragraph 6(k)(i) herein) extend by five nights to conclude at 5pm Friday;
(f)Commencing in the first term holiday period in 2029 and for each term holiday period thereafter, the first occasion of alternate weekend time (pursuant to paragraph 6(k)(i) herein) extend by six nights to conclude at 5pm Saturday.
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