Tarka & Orlich
[2024] FedCFamC1F 307
•14 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tarka & Orlich [2024] FedCFamC1F 307
File number(s): MLC 12247 of 2020 Judgment of: BENNETT J Date of judgment: 14 May 2024 Catchwords: FAMILY LAW – CHILDREN – where 17 year old boy is spending limited time with father supervised by the child’s paternal grandmother – where child expresses desire to spend much more time with father – where father is a registered sex offender following conviction and incarceration for offences involving an underage girl – where father does not spend time with his younger children by two other mothers – where father pays no child support for any of his children – where child’s time with father is increased by 2 hours a fortnight – where orders are to be explained to child by Family Consultant contemporaneously with judgment being delivered
FAMILY LAW – FAMILY VIOLENCE – where there has been mutual family violence between mother and father – where mother concealed father’s criminal offending from child in order to preserve child’s relationship with father – where father has told child and his family that his conviction was pursuant to a conspiracy by the mother and others – where presumption in favour of equal shared parental responsibility rebutted – where mother has sole parental responsibility
FAMILY LAW – CREDIBILITY – where father’s exculpatory evidence is implausible
Legislation: Family Law Act 1975 (Cth) Cases cited: Carter & Wilson [2023] FedCFamC1A 9 Division: Division 1 First Instance Number of paragraphs: 242 Date of last submission/s: 13 May 2024 Date of hearing: 14-17 August 2023 Place: Melbourne Counsel for the Applicant: Ms Vogel Solicitor for the Applicant: Pentana Stanton Counsel for the Respondent: Mr Metaxas Solicitor for the Respondent: Starkie Law Group Counsel for the Independent Children's Lawyer: Ms Dwyer Solicitor for the Independent Children's Lawyer: Melanie Wyatt Family Law ORDERS
MLC 12247 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TARKA
Applicant
AND: MS ORLICH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
14 MAY 2024
THE COURT ORDERS THAT:
1.All previous parenting Orders in relation to the child X born 2006 be discharged.
2.The mother have sole parental responsibility of the child X.
3.X live with the mother.
4.Both the father and the mother advise the other and keep the other advised of their residential addresses and mobile and landline phone numbers.
Supervised time
5.X spend supervised time with his father each alternate Saturday from 12pm to 6pm and/or at other times as agreed between the parties.
6.The time that X spends with his father be supervised either by a commercial supervisor or by:
(a)The father’s sister Ms B;
(b)The father’s sister Ms C;
(c)The father’s niece Ms D; or
(d)the paternal grandmother Ms E.
7.Supervision by anyone other than a commercial supervisor is conditional upon the supervisor undertaking to the court in the usual terms, that:-
(a)they will be present at all times that X is spending time with the father; and
(b)if they observe any of the following:
(i)any action on part of the father that affects the safety, welfare or wellbeing of X;
(ii)any concerning, antisocial, unlawful, abusive, violent or inappropriate sexual activity on the part of the father; or
(iii)the father discussing the proceedings, denigrating the child’s mother or encouraging X to stay with him for longer than is provided in these Orders;
then they will end the visit and take X back to his mother.
(c)they will return X to the mother at those times specified in the Orders and will not collect X outside of those times allowed by this Order.
8.The person supervising the visits is required to attend changeover as part of the supervision.
9.The father be restrained by way of injunction from causing, permitting or suffering X to spend time with him or remain at his house outside of the time provided for in this Order.
10.The father and the supervisor collect X from the mother’s house at the beginning of the time he spends with the child and return him to the mother’s house at the end of that time.
Medical
11.Both the father and the mother advise the other immediately of any significant illness or injury suffered by X including the name of any professional treating the child or any facility of treatment.
12.The mother and the father do all acts and things necessary for X to continue to attend appointments with Ms F, Psychologist, (“the counsellor”) or another psychologist or counsellor that he has been attending if no longer attending Ms F.
13.The mother ensure that X attends all appointments and follows all directions and reasonable recommendations of Ms F, Psychologist, (“the counsellor”) or any other psychologist or counsellor.
14.The mother and the father do all acts and things necessary to obtain from the counsellor an updated report to the mother and father as and when agreed with the counsellor and in such details as the counsellor is satisfied does not compromise her therapeutic relationship with X.
15.The mother initially pay the out-of-pocket expenses for X’s sessions with the counsellor and provide the father and her solicitors with a copy of any receipt for payment by her of the counselling sessions for reimbursement in accordance with paragraph 8 of the Orders dated 12 April 2023.
Restraints
16.The father is hereby restrained from discussing or referring to any conspiracy theories surrounding his arrest, conviction, the mother, or his former partners and their new partners to the child.
17.The father and the mother be and are hereby mutually restrained from causing, permitting or suffering the denigration of the other or their partners or family members in the presence or hearing of the child or in circumstances where such words or conduct are likely to come to the attention of the child.
Provision of these Reasons to the child and others
18.The mother cause the child to attend this Court today to attend a conference with Court Child Services and the Court Child Expert/Family Consultant Ms G to explain these Reasons and ask any questions.
19.That for the purposes of paragraph 18 above the Court Child Expert/Family Consultant Ms G be provided with a copy of these Reasons for decision.
20.That, if the child requests it in the course of his conference with Ms G on 14 May 2024, Ms G may provide the child with a copy of these Reasons noting that the child is not required to read these Reasons.
21.That the Independent Children's Lawyer provide to the child’s treating psychologist, Ms F, a copy of these Reasons for decision.
22.The mother may, at her sole discretion, provide a copy of any of the following documents:-
(a)this Order;
(b)these Reasons for decision; and/or
(c)the Child Impact Report of Ms G dated 30 January 2022;
to any of the following persons / institutions:
(i)a treating medical or allied health practitioner treating the child other than Ms F;
(ii)the Principal of any school attended by the child; and
(iii)any individual over the age of 18 (or their guardian if the individual is under the age of 18) who is closely associated with the child and may come into contact with the father, as the mother deems appropriate.
Costs
23.Any party wishing to make an application for costs in this proceeding do so by written submission filed and served not later than 14 days after the lapse of the appeal period and any party against whom costs are sought file and serve any submissions in response in writing within 14 days of service upon them of the other party’s submissions.
24.The submissions as to costs are to be not longer than four single sided pages of double spaced text in a font not smaller than 13 point.
AND IT IS NOTED THAT :-
A.The mother resides at H Street, Suburb J and her mobile telephone number is ….
B.The father resides at K Street, Suburb L and his mobile telephone number is ….
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
BENNETT J
INTRODUCTION
These are the final parenting proceedings between the applicant father and the mother of the eldest of his children, X (born 2006, aged 17 years) (“X”).
Separate proceedings were brought by the applicant father in relation to parenting arrangements for three younger children against two further respondent mothers (Ms M and Ms N). Those proceedings were consolidated with these proceedings on 11 May 2021 and were heard contemporaneously with this matter until those other proceedings were discontinued on 10 March 2022 by way of consent. The father does not have parental responsibility for, nor does he spend time with, the three children subject to the discontinued proceedings.
The proceedings which concern X (“the child”) were brought by way of application for final orders dated 17 November 2020 and amended 20 July 2023.
In 2015, the father was imprisoned (with a period of pre-sentence detention, and a non-parole period) following conviction for an offence involving a child under 16 years of age. The father’s other criminal history and his patterns of denial of wrongdoing are detailed throughout these reasons. The father alleges that the mother and others framed him and vindictively secured his conviction for sexual offences.
The applicant father in this matter seeks that he and the mother have equal shared parental responsibility, that X live with the mother and that the father spend supervised time with X whenever X wishes. The mother seeks sole parental responsibility and what is effectively a continuation of the previous orders of a Senior Judicial Registrar made 25 January 2022, namely that X should spend supervised time with his father on alternate Saturdays from 12pm to 4pm. She also seeks costs from 18 March 2022 to final hearing on an indemnity basis.
X has strongly communicated views that he wishes to spend more time with his father. X holds the view that his father was innocent of the child sex offence and has communicated to the Court that he considers his father as a safe and supportive person in his life. I have made my determination in this matter with the intention of setting X up in the best possible way and with the hope that he will be well-armed with the tools he needs to develop his relationship with his parents as he deems appropriate once he turns 18, in a few months’ time.
THE HEARING
On 12 August 2021 an order was made requesting that an Independent Children’s Lawyer be appointed in these proceedings to represent X’s interests. Ms Melanie Wyatt was appointed in due course. Ms Wyatt had previously been appointed to act for the other three younger children in the parallel proceedings. An Independent Children’s Lawyer is appointed to act for child within the meaning of Division 10 of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Her role is to form an independent view, based on available evidence, of what is in the child’s best interests and then act in these proceedings in what she believes to be the best interests of the child.[1] She is not a legal representative retained by the child and she is not bound by any instructions from the child.[2] The role of the Independent Children’s Lawyer is to deal impartially with the parties, to ensure that any views expressed by the child are fully put before the Court. To do this, the Independent Children’s Lawyer is to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the Court’s attention. The Independent Children’s Lawyer is also under a specific duty to take steps to minimise, for the child, the trauma associated with proceedings,[3] and to facilitate an agreed resolution of matters in dispute in the proceedings to the extent that it is possible and in the best interests of the child to do so.[4]
[1] Family Law Act 1975 (Cth) s 68LA(2).
[2] Family Law Act 1975 (Cth) s 68LA(4).
[3] Family Law Act 1975 (Cth) s 68LA(5)(d).
[4] Family Law Act 1975 (Cth) s 68LA(5)(e).
This matter proceeded before me over four days from 14 August 2023 to 17 August 2023. Ms Vogel of Counsel appeared on behalf of the applicant father, Mr Metaxas of Counsel appeared on behalf of the respondent mother, and Ms Dwyer of Counsel appeared on behalf of the Independent Children’s Lawyer. The father’s representation from 21 April 2023 up to and including trial dates was pursuant to s102NA of the Act. The father’s Costs Notice, filed on 10 August 2023, noted that he had only paid $900 in legal fees to that date. The mother is paying privately. Her Cost Notice of 10 August 2023 notes that the costs of the mother incurred up to that date totalled $32,125.02 inclusive of GST, plus $1,200.00 in unbilled costs. The estimate as to the likely costs and disbursements associated with the Final Hearing were up to $20,420.00. The Independent Children’s Lawyer is in receipt of legal aid.
Five witnesses, namely the applicant and respondent, the paternal grandmother, the Family Consultant and an expert psychologist gave evidence over the first three days of the trial.
The paternal grandmother is currently acting as a supervisor of X’s time with the father. She swore an affidavit in this matter and gave evidence at Court.
The father proposed three further alternate supervisors, his sisters Ms B and Ms C and niece Ms D. They did not swear affidavits and were not otherwise called to give evidence. Further, they did not attend the trial. I made known to the parties that I was reluctant to appoint them as alternate supervisors without either an affidavit or undertaking as to willingness and capacity. However, on the final day of submissions, Mr Metaxas for the mother indicated that the mother has personal knowledge of ‘these people’ being Ms B, Ms C and Ms D and “[the mother] actually prefers them to the grandmother”. This was reflected in the minute of orders sought dated 15 August 2023 which was marked Exhibit C1. The Independent Children's Lawyer expressed concern about Ms B, Ms C and Ms D not being on affidavit. However, the Independent Children's Lawyer ultimately supported the proposed minute exhibit C1 on the basis that the paternal grandmother may become indisposed due to ill health which would leave the child without a supervisor.
There has been a considerable delay since the evidence and final submissions were concluded. On 31 January 2024, my Chambers contacted the Independent Children’s Lawyer asking for an update in respect to the following:
(1)Is the child X still in attendance at O School, or has he pursued a trade or a trade school;
(2)Whether either parent has changed address since the evidence concluded;
(3)What face-to-face time has the father had with X since evidence concluded and where has it occurred;
(4)Whether the paternal grandmother has been present as supervisor at any face-to-face time between the father and X;
(5)What electronic communication the father has had or is having with X since evidence concluded;
(6)Whether either of the parent’s employment status has changed since evidence was concluded; and
(7)Whether either parent has re-partnered.
On 5 February 2024 Ms Wyatt responded with the following short statement.
Dear Associate
I confirm that [X] is attending [O School] and will finish year 12 this year.
The Father is residing with the paternal grandmother at the same address and the Mother is still living at the same address.
The paternal grandmother has been collecting [X] from the mother’s home each alternate Saturday from around midday and return him to the [P Shopping Centre] at 4.00pm.
The paternal grandmother continues to supervise [X’s] time with the Father. The Mother’s solicitor has confirmed that the Father is not present at times and [X] will just spend time with his paternal grandmother and aunt. The Mother’s solicitor has confirmed that she believes the paternal grandmother is present for all visits.
The Father’s solicitor confirms that [X] and the Father have daily telephone or text messages.
The Mother and Father’s employment has not changed since the final hearing and neither parent has re-partnered.
Please do not hesitate to contact me if you require any further information.
On 8 May 2024, the Independent Children’s Lawyer added that:
The Father’s solicitor has confirmed that the child is currently attending [O School] on Monday, Tuesday, and Thursday. On Wednesday, he attends [trade school] in [Suburb Q].
This email chain has been exhibited and marked ICL4. On 8 May 2024, the mother agreed that the above information could be used as evidence. The father also consented on 13 May 2024.
THE RELATIONSHIP
The father is 53 years of age and was born in Australia. He is a tradesperson by trade but since his release from prison on parole in 2019 he has been either unemployed or working as self‑employed in another trade.
The mother is 42 years old and is a service worker. She is of Country S heritage.
The father and mother (“the parties”) met in 2005 and their only child together, X, was born in 2006. X is currently 17 years old and turns 18 in 2024.
It is common ground that there was mutual family violence in the lead up to final separation, however the specific incidents are not agreed. The mother deposes that the first incident occurred in 2006, perpetrated by the father. The police were called by a neighbour, who, in the father’s evidence, “was well-known to police at the time” and was a “drug-user”, a “Karen” and a “troublemaker”. The police attended twice on the one night. They spoke to the father. The father agreed to leave the family home and go to his parent’s home in Suburb R.
A second incident occurred in early 2007 in which an Intervention Order was taken out against the mother by the father. The parties temporarily separated and then reconciled the following month.
The parties continued to cohabitate until a further violent incident in late 2007 for which the mother was charged with breach of the Intervention Order (IVO). The father’s account is that the mother tried to take X out of the father’s arms, pushed him, scratched his face and ripped his shirt. The mother’s account is that the father retaliated and hit her in the face. He denies this. The following month, the father filed an application to vary the IVO to include X but he withdrew after it was opposed by the mother. The mother pleaded guilty in late 2007 to the breach of the IVO and to assault against the father earlier in 2007. It is both parties’ evidence that alcohol was involved in at least the early and late 2007 family violence events.
The parties separated on a final basis in late September 2007. From September to November, X lived with the father and spent time with the mother on a limited basis. The mother deposes that the father prevented her from seeing X from approximately November 2007.
The mother initiated family law proceedings in December 2007 (File Number MLC13574 of 2007). Those proceedings were finalised in September 2008 by consent with the parties agreeing to 50/50 time and equal shared parental responsibility.
The father’s evidence was that, over the period from 2007 to 2015, the relationship between himself and the mother improved to a “business-like” relationship with regards to X and this continued until he was accused of the child sex offence as discussed below.
The father re-partnered twice in the period between 2007 and 2015. As indicated, X has three half siblings, his father having one son with Ms M, T (born 2013), and two sons with Ms N named U (born 2010) and V (born 2009). The father does not spend any time with those three children and has not for many years. The father does not pay child support with respect of those three children or X.
At the time of the trial before me, neither parent deposed as to having a current partner. The facts agreed to immediately before delivery of this judgment were also that neither parent had re-partnered.
In 2015, the father was found guilty of a sexual offence involving a child under the age of 16. The particulars of the charge are that between 2002 and 2003 the father:
(1)committed an indecent act with the complainant on multiple occasions, and
(2)committed a sexual act with the complainant on multiple occasions.
The complainant was underage, and the father was 32, at the time of the offences. The father had not yet met the mother, and X had not yet been born.
The father was tried on three occasions. On the first occasion, the Court of Appeal overturned the trial on the basis of an error of law. The second trial resulted in a hung jury. In the third trial, the jury was unanimous in finding the father guilty. In the reasons for sentence, his Honour Judge Hicks in the County Court recounted that the father moved to Victoria following separation from his partner in Queensland and began living with his mother in Suburb R. The complainant’s parents had recently separated and she was new to Melbourne. The father met the complainant through a close friend who was dating the complainant’s mother. The father introduced the complainant to an activity and paid her membership fees to his club. The father became the complainant’s friend and she confided in him about her difficult relationship with her mother. The father commenced a sexual relationship with the complainant which continued over the course of six months. His Honour did not need to make individual findings as to each alleged assault. His Honour was satisfied that there was a relationship and features of the relationship included indecent acts or sexual acts. In his sentencing remarks, Judge Hicks stated:-
[37] This trial in my opinion was a trial about credit. In my opinion the complainant was a reliable and credible witness. The complainant over some four days of in the witness box and despite lengthy cross examination gave a consistent, plausible and in my opinion honest account of your offending.
[38] Despite the historical nature of the offence, there was strong supporting evidence of the complainant's testimony.
…
[42] For my part, I did not find you to be a credible or reliable witness.
As to prospects of rehabilitation, his Honour stated that:-
[58] Your prospects of rehabilitation are not clear cut. You have shown no remorse. You continue to deny any criminal involvement. I note the psychologist you consulted, [Ms GG], in her report dated […] 2016 stated as follows:
"The writer is of the view that [Mr Tarka] relies heavily on defences of: denial, defensive avoidance, exaggeration and elaboration to the effect of self‑enhancement in order to maintain self-esteem and that such processes vary along a continuum of intent to deceive others and self- deception not within conscious awareness."
…
[60] You presented to [Ms GG] [the psychologist] as a rigid person; however, I do accept though that you have some capacity for empathy and that you have great family support. You have a very good work ethic. The numerous character references which I have read speak well on your behalf and speak highly of you and of course concerning some of your problems. I also note [Ms GG] in her assessment reports your risk of re‑offending on similar allegations as "low or unlikely". As I stated, you have not re‑offended since the offence. Overall I asses your prospects of rehabilitation as reasonable.
There were a number of aggravating circumstances to the offending, summarised by Judge Hicks as follows:-
[63] Your behaviour involved a gross breach of trust placed in you by both the complainant herself and her mother. You had virtually unfettered access to the complainant, who trusted you and looked up to you and regarded you as a friend, and who gave evidence that you frequently in fact told her that you loved her.
[Sentencing reasons omitted to comply with Part XIVB of the Family Law Act 1975 (Cth)]
…
[69] The victim impact statement demonstrates the significant trauma that you caused your victim. She describes feelings of anger, hurt, fear and shame. The complainant in her statement states that her relationship with her mother and sister has been affected. These events have also affected her own sexuality. The complainant states she has felt that her childhood has been taken away from her […]. The complainant has now received treatment from a psychologist and has attempted to remake her life as a young married woman with small children.
The charge carried a maximum penalty of 25 years in prison. The father was sentenced to a period of imprisonment, with a period by way of pre-sentence detention, and a non-parole period. The father was imprisoned in 2015. He was granted parole in 2019 and his parole has since expired. He remains a registered sex offender for life. He continues to maintain his innocence. He lives with his mother, the paternal grandmother Ms E.
Upon the father’s incarceration, the mother applied for variation to parenting arrangements. Since then, X has lived in the full-time care of his mother. X was unaware that his father was incarcerated until one occasion in which he received a telephone call from his father in prison. The father claims that the Department of Families, Fairness and Housing refused to let him spend time with or communicate with X during his time in prison.
In addition to the child sexual offence, the father has an extensive criminal history including various allegations of family violence perpetrated by him against several of his ex-partners, including the mother. Details of this history are laid out from [83].
After the father’s release on parole in 2019, his contact with X recommenced by agreement with the mother. According to the Magellan Report, X had overnight contact at his aunt, Ms B’s, home while the father resided at a different residence for those evenings. The father was able to have unsupervised contact with X in public places. In 2020, at the end of his parole period, the father moved in with the paternal grandmother. The father deposes that he lived with the paternal grandmother (his mother) from his release on parole, and he does not mention living at his sister’s house in his trial affidavit. As of January 2020, X stayed with the father roughly three nights out of every 14 nights.
The Magellan Report notes that there was a verbal conflict between the parents in early 2020 which the father reported that the mother had asked the father to collect X or she would “kill him” and further verbally abused both the father and X while intoxicated. The mother denies this at [164] of her trial affidavit. Under cross-examination she said she “could” have been intoxicated[5] but no further evidence was adduced in relation to this incident. I take the mother’s response in cross-examination as her not excluding the possibility that she acted as the father describes.
[5] Transcript of 15 August 2023, page 134, line 15.
There was a further incident in early 2020 in which the parties depose very different versions of events. The upshot is that X stayed for a longer period at the father’s house against the wishes of the mother.[6] The mother deposes that during a conversation with X, she expressed to X that she did not want him seeing his father at the paternal grandmother’s house. She further deposes that as a result of that conversation, the mother and X had an argument and X called the father and asked him to come and collect him. The mother deposes that the father made a false complaint to child protection alleging that she was a risk to X and alcohol dependent. The father deposes that the mother “kicked [X] out of home” and that X began living with him for a period of a month. The mother denies ejecting X from her home and that the period in which he lived with the father was closer to two weeks. In this period the mother deposes that the father did not contact her as to the care arrangements for X and all communication went through X.[7]
[6] Affidavit of Ms Orlich affirmed 31 July 2023 [60]-[70], affidavit of Mr Tarka affirmed 20 July 2023 [29]-[36].
[7] Affidavit of Ms Orlich affirmed 31 July 2023 [63]-[69].
X continued to spend alternate weekends with his father until July 2020. The father deposes that the mother prevented X from spending time with him in the months leading up to commencement of these proceedings “due to COVID”. The mother denies this and says that several visits were facilitated. The mother annexed to her trial affidavit screenshots of text conversations between herself and X while X was at his father’s house between July and November 2020 which purport to show the child being at his father’s for multiple visits over that period.
The father commenced proceedings on 17 November 2020. He sought a variation of parenting orders (rather than filing a contravention application) in circumstances where X was spending alternate weekends with the father rather than equal time in accordance with earlier consent orders dated 4 September 2008. He also filed applications in respect of his other three children. All proceedings were heard together from 8 February 2021 until the proceedings with respect to X’s half-siblings V, U and T were dismissed on 10 March 2022.
On 8 February 2021 orders were made by consent by a Registrar suspending the previous orders for the father to have equal shared time. The orders state that X live with the parties as agreed between the parties and in accordance with the child’s wishes.
On 13 August 2021, Judge Carter of Division 2 of this Court (as her Honour then was) ordered that, by consent and until further orders, “all previous spend-time orders in relation to the father and [X] be suspended … save as is agreed in writing between the Father, [Ms Orlich] and the Independent Children’s Lawyer.”
In or around Christmas 2021, when X was 15, there was an incident in which X remained with his father for a period of four to six days over Christmas without written consent of the mother. The mother deposes that the father’s lawyer wrote to her lawyer on 17 December 2021 seeking that X live with the father from the end of school (being that day) to 27 December 2021, and with week about arrangements to begin on 3 January 2022. The father sought to justify the time spent by stating that the mother and the mother’s family do not celebrate “Australian Christmas”. On 20 December 2021, X went shopping with the paternal grandmother with permission from his mother. He was to return to the mother after shopping that day. X then asked if he could stay for the week with the paternal grandmother. The mother did not allow this, and X went shopping with the paternal grandmother as planned. However, at 9pm, when the mother contacted X to find out where he was, X informed her that he was at the paternal grandmother’s house. The mother did not tell X directly that he had to return. Instead, the mother instructed her lawyer to write to the father’s lawyer on 22 December 2021 requesting that he be returned to the mother’s house. She was informed that X “…refuses to go back until after Christmas”. X was returned to the mother’s house by the paternal grandmother on 27 December 2021.
The father admitted in oral evidence that the time spent with X from 20 to 27 December 2021 constituted a breach of the orders of Judge Carter and that the paternal grandmother also knew of the order and allowed the father to breach the order.
The mother further deposes that the paternal grandmother came to pick X up on 3 January 2022 to commence week-about arrangements pursuant to a proposal contained in the father’s lawyer’s email of 17 December 2021. The mother refused and the paternal grandmother left without further incident.
On 25 January 2022, interim orders were made to the effect that X spend supervised time with his father on alternate Saturdays from 12pm to 4pm. Time was to be supervised by either a paid (commercial) supervisor (from 2pm to 4pm only) or by the paternal grandmother, Ms E.
THE CHILD
X is 17 and lives with his mother and has done so since the father’s incarceration. He is in year 12 at O School. He has a part-time job, friends and at the time of trial, was enrolled in academic subjects.
Ms G, Family Report writer, made the following observations of X:
[4] [X] is described by his parents as being a well behaved, polite, compliant and respectful young man. This was consistent with his presentation. [X] is reported by his parents to be in good health and progressing at level academically. At interview [X’s] response to difficult conversations was often with nervous laughter and humour. Other times he appeared unable to find his words, avoidant of discussing his father’s convictions or providing his own views. Although noting that he had been advised of his father’s convictions during psychologist appointments, he advised that he couldn’t remember what they were. He was aware that they were “bad”, and of sexual nature. [X] advised the opinion that his father was innocent. [X] considered his father as a safe and supportive person in his life. He advised that if his father was guilty, then he may see his father differently however, he trusted that his father was telling the truth.
PROPOSALS
The father seeks equal shared parental responsibility, that X live with his mother, and that X spend supervised time with his father in accordance with his wishes. He also sought the changeover location to be Suburb L Police Station but conceded on the first day of the trial that changeover at the mother’s house is acceptable. The father proposes four supervisors – the paternal grandmother Ms E, the father’s sisters Ms B and Ms C, and the father’s niece Ms D. Only the paternal grandmother attended Court. The father also seeks an order to the effect that neither party can remove X from the country for 12 months (which would only be in effect until his 18th birthday) and that the Independent Children’s Lawyer be discharged.
Prior to the commencement of the hearing the mother proposed Minutes of Order dated 7 August 2023 on which she relied. On the first day of the trial, the mother and Independent Children’s Lawyer proposed a joint minute of order which I amended and marked “ICL1”. The joint minute seeks what is in effect a continuation of the orders of the Senior Judicial Registrar made on 25 January 2022. The mother seeks sole parental responsibility, continuation of the current spend-time arrangements, supervision by a paid (commercial) supervisor or by one of the four supervisors proposed by the father, and that the father be restrained from allowing X to spend any time with him that is not specified by the orders. Counsel for the mother suggested in closing submissions that the mother would prefer the supervisor not be the paternal grandmother. The mother also seeks costs from 18 March 2022 to final hearing on an indemnity basis.
THE LAW
This case was heard prior to the enactment of the Federal Circuit and Family Court of Australia (Family Law) Amendment (2024 Measures No.1) Rules 2024. The legislative changes to s 60CC do not apply to this case and the consideration of best interest factors below reflects the relevant legislation as at the date of final hearing.
These proceedings are brought under Part VII of the Act. Pursuant to s 60CA, in deciding to make any parenting order in relation to X, I must regard the X’s best interests as the paramount consideration.
Section 60B defines the objects of Part VII as to “ensure that the best interests of the children are met” by:
(a)ensuring 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
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
These objects may be regarded as the core values of the legislation.
The principles which underlie the objects are more specific but not exhaustive. They are that, except when it is or would be contrary to the child’s best interests:
(a)a child has the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)a child has a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their child; and
(d)parents should agree about the future parenting of their child; and
(e)a child has a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 65D of the Act provides that, subject to some associated provisions to which I will come later in these reasons, the Court can make such parenting orders as it thinks is proper.
Determining the child’s best interests
In proceedings under Part VII of the Act, the best interests of the child are the paramount, but not sole, consideration. In determining the best interests of a particular child, I am required to consider two primary considerations and several additional considerations, listed in s 60CC of the Act.
The primary considerations echo the first two objects set out in s 60B of the Act. In s 60CC(2) and are described as follows:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
with greater weight to be given to the need to protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[8]
[8] Family Law Act 1975 (Cth) s 60CC(2)(b).
Treatment of the additional considerations
The additional considerations listed in s 60CC(3) of the Act are numerous but not exhaustive. They include, “any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views”.[9] It is only necessary to consider the additional considerations which are relevant to this case. I will have regard to the relevant additional considerations in the context of evaluating the primary considerations, namely, ascertaining the benefit that may flow for the child in having a meaningful relationship with both parents and what is necessary to ensure that they are protected from harm and exposure to abuse, neglect or family violence.
[9] Ibid s 60CC(3)(a).
Finally, s 60CC(3)(m) of the Act requires me to consider “any other fact or circumstance that the Court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed.[10]
[10] B & B: Family Law Reform Act (1997) FLC 92-755.
ONUS OF PROOF AND FINDINGS OF FACT
Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
A statement of fact, including the aforementioned jurisdictional facts, is a finding of fact.
DOCUMENTS RELIED UPON
The trial was run with e-Brief with which all counsel were proficient.
The father relied on:-
(a)his Amended Application for Final Order dated 20 July 2023;
(b)his trial Affidavit affirmed 20 July 2023;
(c)his Outline of Case dated 10 August 2023;
(d)his Financial Statement dated 4 August 2023;
(e)an Affidavit of Ms E (the paternal grandmother) affirmed 8 August 2023;
(f)an Affidavit of Ms W filed 9 September 2022;
(g)an Affidavit of Mr Y (single expert) affirmed 28 April 2021;
(h)Child Impact Report dated 30 January 2022;
(i)Magellan Report dated 18 March 2022.
The mother relied on:-
(a)her further amended Response dated 4 August 2023;
(b)her trial Affidavit affirmed 31 July 2023;
(c)her further Affidavit affirmed 12 August 2023 following cross-examination of the paternal grandmother;
(d)her Outline of Case dated 7 August 2023;
(e)her Financial Statement dated 12 May 2023;
(f)Magellan Report dated 18 March 2022;
(g)a Section 11F report dated 9 August 2021;
(h)an Affidavit of Mr Y (single expert) affirmed 28 April 2021;
(i)Material from the Subpoena to Victoria Police dated 25 March 2022 and 14 April 2021;
(j)a Section 67Z Response for X dated 7 March 2021;
(k)a Section 67Z Response for V and U dated 1 February 2021;
(l)a Section 67Z Response for T dated 4 May 2021;
(m)Notices of Child Abuse Family Violence or Risk dated 2 May 2021, 4 March 2021 and 17 November 2020.
The Independent Children’s Lawyer relied upon:-
(a)Child Impact Report of Ms G dated 30 January 2022;
(b)Magellan Report dated 18 March 2022;
(c)a Section 11F report dated 9 August 2021;
(d)Material from the Subpoena to Victoria Police dated 25 March 2022 and 14 April 2021;
(e)Section 67Z Response for X dated 7 March 2021;
(f)an Affidavit of Mr Y (single expert) affirmed 28 April 2021;
(g)Affidavit of Ms F filed 11 August 2023.
The father tendered no exhibits.
Counsel for the mother tendered the Victoria Police Leap Criminal Record dated 28 April 2021 (“M1”) and 18 April 2022 (“M2”). Further tendered was a summary of offences table with a covering email listing the charges and convictions upheld with respect to the father (“M3”). The mother also tendered a series of messages between the father and women on a foreign dating site (see [113] below) (“M4”) and an image of a person unknown to the father at his front door (“M5”). I have regard to all of these exhibits.
The Independent Children’s Lawyer tendered an email written to Starkie Law and Pentana Stanton (solicitors for the respective parties) requesting the contact details for the proposed supervisors Ms B, Ms C and Ms D, which was not replied to (“ICL3”).
The paternal grandmother was cross-examined on day two of the final hearing. Ms G was cross‑examined on day 3 in relation to her interim Child Impact Report dated 30 January 2022. Mr Y was cross-examined in relation to his psychosexual report dated 28 April 2021. His evidence was interposed between Ms G’s.
X’s treating psychologist, Ms F, was not required for cross-examination although I note an affidavit enclosing two brief treatment progress reports was filed by the Independent Children’s Lawyer on 11 August 2023. In summary, the psychologist report states that Ms F had two sessions with X. In those sessions, X reported he had not discussed the offending behaviours with his father directly (at that time) and engaged somewhat superficially in an exploration of how he may feel should his father's court challenge be either successful or unsuccessful. According to X, this would not change the positive relationship he shared with his father, nor his preference to spend 50/50 time with each parent.
A further court-ordered psychologist, Ms Z was also not required for cross-examination although her notes were tendered by the Independent Children’s Lawyer (“ICL2”).
There is a further Affidavit of Ms W dated 8 August 2022. Ms W is a supervisor at AA Contact Service. Ms W was not required for cross-examination and her affidavit was not raised by Counsel for the applicant during the trial. In summary, Ms W reported eight contact visits which were supervised by herself or another employee of the same company, AA Contact Service, from February to June 2022. The visits were all without notable incident. However, the father did discuss his involvement with a foreign dating website with the child, as discussed below at [113].
A Magellan Report dated 18 March 2022 is also in evidence. Until February 2021, child protection in Victoria was known as the Department of Health and Human Services (“DHHS”). On 1 February 2021, DHHS was separated into two new departments and the child protection department was named Department of Families, Fairness and Housing (“DFFH”). For ease of reference, I will refer to DHHS and its successor DFFH as “child protection”. Nobody from child protection was required to give oral evidence as to the contents of the report. In summary, the Magellan Report details fifteen complaints made by either the mother or the father in the period 2007 to 2021, involving mutual family violence allegations. In its recommendations, child protection state that they do not hold significant concerns for the safety and wellbeing of X in the care of Ms Orlich or while having monitored contact with Mr Tarka. Child protection described monitored contact as: all contact does not require line-of-sight supervision, but that nominated person must know the location of X, be able to reach X if required, and check in with X.
I have taken an opportunity to refresh my memory of the affidavits, oral evidence and documents having regard to the time which has elapsed since the hearing concluded. I have not recited every fact or argument relied upon by the parties in these reasons but that does not mean that I have not taken all contentions of fact and the arguments of each party into account. I believe that I have had regard to all of the evidence and the submissions of the parties.
EXPERT EVIDENCE
There were two expert witnesses in this case who gave oral evidence and were cross-examined. The first, Ms G, prepared the Child Impact Report. Mr Y prepared a psychological and sexual violence risk evaluation dated 28 April 2021. Both experts gave evidence on the third day of hearing, being 16 August 2023.
Ms G is a Family Consultant and holds relevant tertiary qualifications. I found her to be a truthful witness and I accept her evidence.
Ms G conducted interviews with the mother, father and X on 10th and 11th of January 2023. She prepared an interim Child Impact Report (a preliminary report) dated 30 January 2023. In preparing the report she appropriately placed emphasis on short-term recommendations. Under cross-examination she stressed that she had not formed an assessment or view as to final parenting arrangements at the time she wrote her report.
Ms G relied upon her own notes when in the witness box but used them sparingly. She was also provided with a copy of her report and the report of Ms F, the treating psychologist, dated 25 July 2023 and published after the Child Impact Report. Ms G was present for Mr Y’s evidence which was interposed into her own.
Mr Y is a clinical psychologist. He is not a forensic psychologist but his work is largely forensic in nature. He interviewed the father on 3 March 2021 and administered the Family Strengths and Needs Assessment tool, the Static-99 and Risk of Sexual Violence Protocol. I found him to be a valuable witness. He had some good insights.
To prepare his report, Mr Y was provided with the affidavits of the father dated 8 October 2020, 16 November 2020 and 2 March 2021. He was also provided with the Notices of Child Abuse, Family Violence or Risk relevant to these proceedings, the applications and responses, various orders, the affidavit of Ms M dated 31 January 2021 and the affidavit of the mother dated 1 February 2021. Mr Y was also provided with a copy of the criminal history summary (Exhibit M3) on the evening before his appearance in Court.
Mr Y’s report covers the father’s psychosocial history, mental health, family strengths and needs and risk of sexual recidivism. The report is reasonably comprehensive.
I have considered the evidence of both experts and address their observations, evaluations, and recommendations throughout these reasons. I have extracted the expert evidence where I consider it to be relevant.
THE FATHER
The father gave evidence for nearly four hours over days 1 and 2 of the trial.
Criminal History
The father’s criminal history is extensive. I directed counsel to prepare a summary of the father’s offences which was marked exhibit M3. Exhibit M3 details approximately 20 charges from which 12 convictions were recorded. There are numerous other reports and complaints recorded in exhibit M3 that did not result in charges. I record below the charges and convictions as recorded by Counsel in exhibit M3, including breaches of any conditions. I also record various complaints and police reports as to domestic violence, including alleged breaches of various intervention orders against the father, noting that these did not result in any charges or convictions. There were other incidences with police listed in exhibits M1-M3. The relevant criminal history is set out below.
In oral evidence, Mr Metaxas for the mother summarised the father’s criminal history as “…cases of violence, some cases of family violence, cases of threats to kill, contravention of family violence prevention orders, criminal damage […], [property offences], behaving in offensive manner in a public place, indecent acts, and the child sex offending…”. The father admitted to “some but not all” of those offences. I asked him what he does not admit to, and he listed “…the child sex offence, the threats to kill, especially this case in particular with [Ms M]…”. The latter I believe was a reference to the business card incident, discussed at [101] below.
In 1993 or 1994, the father was charged with behaving in an offensive manner in a public place. He was not convicted.
In 1994 the father’s previous partner made a complaint to police including an allegation of domestic violence from which the complainant sustained an injury. An intervention order was taken out against the father, first in 1995 and again in 1997. No charges were laid. The father was asked specifically about this incident in which the father’s former partner was punched, thrown against a wall and sustained an injury. The father denies punching her and says she fell. When asked how she fell, the father said:
As a professional […] we use a special technique to block any kicks, pushes, […] or anything like that, and I used that to defend myself as we’re trained to do, and as a result, she fell backwards and [sustained an injury].
There was no supporting evidence for the father’s version of events. The father’s response impresses me as consistent with what the psychologist described in the husband’s pre-sentence assessment as a tendency for the father to “[rely] heavily on defences of: denial, defensive avoidance, exaggeration and elaboration to the effect of self-enhancement in order to maintain self-esteem and that such processes vary along a continuum of intent to deceive others and self‑deception not within conscious awareness." I am satisfied that the father was responsible for his previous partner’s injury in 1994.
In 1995 the father was convicted for breach of the Bail Act 1977 (Vic) (contempt). He was further convicted for driving offences in 1995. Outlined in M2, the father also breached the fine option order associated with those convictions.
In 1999 the father was charged with causing criminal damage and convicted. Outlined in M2, the father also breached the community-based order associated with that conviction.
In 1999, the father was further convicted of obtaining a social security benefit not payable.
In 2005, the father was convicted of multiple driving offences. He was disqualified from driving for a number of years and sentenced to a term of imprisonment to be served by way of an intensive correction order,[11] which is when an imprisonment term is served in the community under certain conditions, including commonly community work.
[11] Intensive Corrections Orders were abolished by the Sentencing Amendment (Community Correction Reform)Act 2011 (Vic).
In 2006, police attended the premises of the mother and father after a complaint was made. They reattended later in the evening and the father agreed to stay with his parents in Suburb R. This is referred to earlier in these reasons at [19]. In her affidavit and in oral evidence the mother admitted she has little memory of this incident.
In 2007, the police applied for an intervention order on the father’s behalf against the mother.
Also in 2007, the father was charged with a property-related offence, but this was withdrawn by police.
In late 2007, police again attended the house shared by the mother and father following a further complaint. The police records note the mother had physically abused the father and that the parties had conflicting statements over a struggle involving their baby, X. The affidavit and oral evidence of the mother was that the event involved mutual domestic violence, alcohol and that she was suffering from post-partum depression. The mother was charged with breaching the intervention order and assault and she plead guilty to those charges.
In 2009, the father took out an intervention order against Ms N on behalf of himself and X.
In 2010, Ms N took out an intervention order against the father on behalf of herself and her children V and U and filed a safety notice. In early 2010, police attended a verbal altercation between Ms N and the father.
In 2011, the father was convicted of a driving offence and received a suspended sentence. Mutual intervention orders were taken by Ms N and the father in respect of each other. The father then took an intervention order out on behalf of himself and his three sons against a Mr BB (the ex-partner of Ms M). This was withdrawn in 2013. Mr BB took out an intervention order against the father in 2013.
In 2012, the father breached the terms of the 2011 driving conviction. He was charged and convicted of a further driving offence and sentenced to a community correction order, which is a flexible sentencing order that an offender serves in the community.
In 2013, the father was charged with a sexual offence involving a child under the age of 16. This was discharged on the basis of insufficient evidence.
In 2014, Ms M made a report to police and the father was investigated for contravention of a final family violence order. The father denies involvement in the incident, which I will refer to throughout this judgment as the Card Incident. The following complaint was recorded in the Victoria Police LEAP Record (Exhibit M2).
On Thursday [...] 2014 at approx. 0745hrs, the AFM was leaving her house […] when she noticed […] cards spread all over the front lawn.
Upon inspection she noted they where [sic] […] cards […] with threatening messages to kill written on the backs.
Included and the most concerning messages are;
We wont stop till
U r dead bitch
We no everything u do
Just die
In total there were 18 cards. The AFM believes the resp is responsible because of the amounts of cards left and he is angry that she left to be with her children. It is all part of the resp plan to scare the AFM and have her return to him so he can protect her. Later that day an interim IVO was put in place at the […] magistrates' court. The resp was not present.
[Two weeks later] the AFM received a letter in the mail addressed to her. The AFM believes the resp has written the letter in the third person. The AFM has made statements and notes detailing her reasons of belief.
The letter makes no threats toward the AFM but raises emotional fear. Investigation continuing and resp has not been spoken to by police about the incidents.
The father’s explanation, provided in oral evidence, was that somebody broke into his house, stole these cards, wrote threatening messages on eighteen of them such as “We won’t stop until UR dead, bitch” and then left them on Ms M’s lawn. He denies having any involvement, even when pressed that his account of the story was “farfetched”. He agreed that the purpose of those sorts of messages was to intimidate Ms M. He says the perpetrator was motivated by the affair he was having at the time with Ms M.
As mentioned above at [27], in 2015 the father was found guilty of a child sex offence and imprisoned for a period .[12]
[12] Citation omitted to comply with Part XIVB of the Family Law Act 1975 (Cth).
In 2015 the father was also charged with contravening a family violence intervention order and he was fined without conviction.
The father was asked about a further charge of “[sexual offence involving] child under 16” which was withdrawn in 2016 due to insufficient evidence. The father did not recall that allegation and assumed the allegation was made by the same complainant as the child sex offence.
Whilst in prison in 2017, the father was charged with an unlawful assault and making a threat to kill. These charges were withdrawn.
In 2018, Ms M took out an intervention order against the father on behalf of herself and her children.
The father consistently denied the more serious allegations put to him in cross-examination, providing at time elaborate stories in support of his case. The following paragraphs illustrate some of these examples taken from cross-examination.
The child sex offence for which the father was imprisoned was raised several times by Counsel in the course of cross-examination of the father. When asked as to whether X is aware of the nature of the offending, the father explained that he has told X “…exactly what I was accused of, what I was convicted of, the outcome, why I went to prison, how long I went to prison and – but I also included that I was set up by certain people”. Later in cross-examination he attempted to clarify that he did not identify the “certain people” to X.
The father’s statements that he was “set-up” appeared throughout the father’s cross‑examination and written evidence. His theories as to conspiracy are complicated and he was not able to provide anything beyond conjecture to the Court. The father claims that a group (consisting of Ms N, Ms M, Mr BB, Mr CC, Ms DD and the mother) have a vendetta against him due to an affair he was having with Ms M while he was in a relationship with Ms N. When asked about the group’s motivation he stated that it was for “financial gain”. He was not able to isolate the financial gain except to say that he had looked at the complainant’s Facebook page twice since he was released from prison and noted that she had been overseas on holiday. The complainant was the father’s underage victim. He surmised that she could have been financially advantaged by making the allegations and thereby been able to afford a holiday overseas. The father said that he has not read her victim impact statement “because it’s just bogus” and did not listen in the County Court when it was read out during sentencing. The father’s evidence was that he had also not read the mother’s affidavit in this matter.
The father admitted to paying $20,000.00 in total for private investigators to investigate his conspiracy theories. In his interview with a family consultant for the Child Inclusive Conference (s 11F) on 2 August 2021, he told the family consultant that the private investigators hired by him had confirmed that Ms N drugged and raped him and that her brother is part of a drug cartel which was and remains a dangerous environment for Ms N’s children.[13] He further explained to the family consultant that he will pursue criminal charges against those who fabricated the allegations of sexual abuse and instigated his criminal conviction. The father likewise told the Child Impact Report writer that he had uncovered information via private investigators that would be of interest to this Court and that he intended to pursue criminal charges. He did not present any such information to the Court when given the opportunity to do so, for example:
HER HONOUR: What did they get out of it?
[MR TARKA]: That’s still under investigation, your Honour.
HER HONOUR: You mean you can’t say because you don’t know?
[MR TARKA]: Not yet.
[13] Section 11F Memorandum, 9 August 2021 [40]-[41].
It is my view that the father’s excuses and any substantiation of any conspiracy are paper-thin and non-existent.
The father was cross-examined about talking to X about his efforts with various foreign women on a dating site as noted in the supervision report. The father confirmed this had occurred but denied he had used the word “vulnerable” when discussing the women with X. In cross‑examination he claimed to be providing various foreign women with information relating to the civil conflict in their area. Significant time was spent on this issue. Conversations between the father and various women were called for and provided to counsel. Of over one thousand messages the father was able to provide six examples of providing “[conflict] advice”, which was probably unreliable in any event. Counsel for the mother suggested to the father that he was looking for highly vulnerable women through this dating site. The father disagreed. The father expressed that he would “love to go to [that country]”.
Ms G was concerned that the father had spoken with X about going on a dating site and bringing a woman over from another country to have an intimate relationship with him. She stated, and I accept, that “…it could be indicative of looking for vulnerable women in other places, and that would raise my concerns in terms of [X’s] development of understanding of healthy relationships and of women.” I am satisfied that the father is researching vulnerable, if not desperate, women for relationship purposes and merely trying to disguise his endeavours to X as some action he is taking to do with the civil conflict.
Credit
Throughout the proceedings before me, the father was highly defensive, presented versions of events that struck me as highly farfetched and demonstrated very little, if any, capacity for genuine reflection. While he has clearly brought this application to be able to spend more time with X, the father was not child-focussed in his evidence, preferring to present conspiracy theories and attack the character of the mother, his ex-partners, and their friends. I find that he was an unreliable witness and, save as indicated, I generally prefer the mother’s evidence and that of the expert witnesses.
The Child Impact Report Writer, Ms G, included the following analysis as to the father’s personality in her report.
[15] If it is the case that [Mr Tarka] is innocent of sexual offences, seeking to clear his name is understandable. However, having been convicted and placed on the Registered Sex Offenders List, the likelihood that he is innocent is improbable. [Mr Tarka] has grievances with multiple authorities such as Victoria Police, Child Protection and this Court and with seemingly with all of his previous partners. It is plausible that [Mr Tarka] has personality traits that have meant he has faced difficulty with respectful conflict resolution and maintaining interpersonal relationships. It is widely accepted in professional literature that sexual offenders, particularly against children, typically categorically deny the allegations, even in the event of conviction. This is often to avoid feeling shame and to prioritise their own self-interests and maintain self-esteem and social status. It is plausible that [Mr Tarka] is utilising systems to seek to control or intimidate his ex-partners regarding parenting matters and with regard to his conspiracy theory.
…
[17] [Mr Tarka] has not taken accountability for his actions and in this case his narrative of innocence and persecution will likely continue. This is a barrier to the development of insight with regard to the impacts of his behaviour on others. This may suggest personality traits and behaviour that will reduce his child focus and opportunity for positive role modelling for [X]. For example, [Mr Tarka’s] views provided at interview regarding women being favoured by systems may suggest limited understanding of gendered family violence. His views regarding Victoria Police and Child Protection being untrustworthy, may impact on [X’s] willingness to seek professional support or to disclose harm. [X] relies on relationships with positive and safe adults and he is at risk of longstanding emotional harm if involved in his father’s narrative, or any future offending.
Consistent with the above analysis, the father changed his evidence over the course of cross‑examination on multiple occasions. The father made some concessions in the witness box, but these struck me as disingenuous. For example, the father initially held the view that X should not be having driving lessons with the mother’s stepfather in an automatic car and should only be learning to drive a manual car. He says that he himself “…grew up to learn how to drive a manual and I’m just passing it down.” However, under cross-examination by Ms Dwyer, he later said that he would agree to X learning to drive an automatic car “after listening to everything”. The only evidence that had been adduced about manual and automatic cars was his own. There was no clear reason for him to change his opinion on this matter which had been a sticking point between the parties.
The father made several farfetched claims. First, the father claimed that his previous lawyers had divulged his address to the Court where it should not have been shared. When asked what he did about that he said that he “sacked her straightaway” but did not go to the disciplinary body for solicitors as he did not know that he could do so.
The father said he contributed to expenses for X and has paid for one of X’s hearing appointments and also purchased his glasses. He could not name anything else significant that he had paid for. He pays no child support.
The father gave evidence that he attended a Better Lives Program when in prison. The following exchange occurred in cross-examination:
MS DWYER: What did you learn?
FATHER: What the other inmates did to their victims.
MS DWYER: No. What did you learn yourself for your own benefit?
FATHER: How to be a better person and how to try and communicate a bit better.
In another example, he deposed to himself and the mother having an argument in Country S in which “…I was locked out of the [residence] and I had to walk approximately 11 hours back to the paternal grandmother’s place back in [City EE] which took me 10 or 11 hours and it was minus 28 degrees, I believe, and that’s when I rang my friends to try and get me out of [Country S].” The father did not include details of this incident in his affidavit, nor was it raised by counsel for the father with the mother in cross-examination. He gave no further evidence as to the account, and it strikes me as untrue or highly overexaggerated.
The father is on the sex offender’s register for life. When questioned about his reporting obligations he had some conflicting knowledge of those obligations. On the first occasion, he denied having to report to police if he has contact with a minor. Later that day he clarified that he needed to report to the “SORA” (the Sex Offender Registration Act2004 (Vic)) “people”. He was questioned about FF, his niece’s eldest son, who stayed with him on one occasion. The father did not know FF’s age but believed he was over 18 on the basis that he was doing an apprenticeship and drove a car. He later said he had reported that contact to “SORA” and that he has “receipts for all contact with any and all children”. The following exchange occurred:
MR METAXAS: But your evidence previously was that you don’t need to disclose child contact to Victoria Police. Is that right? That’s what you said before?
FATHER: Sorry, I was mistaken then.
HER HONOUR: Mistaken about what?
FATHER: The question. I must not have understood it properly.
HER HONOUR: Well, the question was, don’t you have to report having contact with a child? And you said, no?
FATHER: Sorry. I made a mistake.
HER HONOUR: Okay. So what bit of, don’t you have to report having contact with a child, didn’t you understand?
FATHER: Just in general, that question was.
HER HONOUR: Because it was tricky?
FATHER: Yes. To me it was.
HER HONOUR: Was it?
FATHER: Yes. Anything I do, I report it to SORA.
HER HONOUR: How was the question not pretty simple? How could you misunderstand the question?---
FATHER: I thought it was either family question or a general person in the community. That was my understanding of the question.
HER HONOUR: But a child is a child. Is there any distinction?
FATHER: No.
HER HONOUR: So what difference would it make if you thought it was in the community or in the family?
FATHER: I didn’t realise.
The father claims to have “section 25” reports for each of his interactions with children but these were not produced. The father claims he disclosed them to his lawyers but that those lawyers did not provide them to the Court.
The father gave evidence that he believes he is a good role model as he “no longer” associates with the wrong people.
THE MOTHER
The mother gave evidence for only 26 minutes on 15 August 2023. I found her to be an honest witness and I accept her evidence. I have summarised the important evidence below but have taken account of all of the relevant evidence.
In her affidavit affirmed on 31 July 2023, the mother deposed to her concern as to the type of role model the father is to X and to her belief that the father does not have X’s interests at heart. She deposed to her version of the family violence incidents between the parties in between 2006 and 2007, her understanding of the father’s history of criminal and antisocial behaviour. She deposed that she accepted the father’s convictions for a child sex offence.
In her written evidence, the mother also detailed the incidents referred to above in early 2020 and December 2021. She also annexed contact reports and put particular focus on the father’s use of a foreign dating website, discussed at [113]. The mother deposed her belief that the father is “continuing his tendency to seek out vulnerable women to become his sexual partner.”[14]
[14] Affidavit of Ms Orlich affirmed 31 July 2023 [137].
In the course of cross-examination, the mother was asked about her alcohol use. She admitted a history of alcohol and marijuana use, that she would pass out on occasion when she was younger and that she would engage in altercations as retaliation with the father when they were together. She has been involved in court drug and alcohol screening throughout these proceedings and has returned negative results.
She gave evidence that she had postnatal depression. She admitted that she had pushed the father and ripped his shirt as part of the altercation between late 2006 and late 2007. She said that she was protecting herself and the child after they were woken up by him at 2 o’clock in the morning.
The mother gave evidence that in the last two years X has become more argumentative and distant. She agreed that it could be due to puberty rather than just the father’s influence alone.
The mother stated that she had historically tried to engage the father in having parental responsibility for X. She says that she is being undermined by him now, and for example that X does not want to discuss his education plans anymore with her. She says there was never any attempt by the father or the paternal grandmother to organise meetings with X, and instead that they would “turn up out of the blue”.
The mother gave evidence that she is concerned that X’s routine will be disrupted if he spends much more time with his father.
The mother gave evidence that she did not press the father for child support and that she “would rather have not gone through extra stress that [Mr Tarka] [the father] is already – has already provided and I would have walked out naked and given him everything so that he just leaves me alone.”
The mother also compared the manner in which the father interacts with the child is “grooming happening”. She likened the father’s behaviour to that of a paedophile with a child, stating that “…they get friendly, they give them presents, they manipulate them.”
The mother says she is scared of the father. She blames her lack of memory of the late 2006 incident on both alcohol and the length of the period between then and her evidence. When asked about previous disagreements with the father, she said:
He would retaliate, just like I am not giving him fifty-fifty right now. He’s retaliating by making all the allegations and lies and making this courtroom, the judge to deal with this ridiculous situation for five days, where if he wants to be a parent together and bring up our son, then he should have done it a number of times when I did approach him and his family and not wait until 17 – my son is 17 years to do this, making it even more difficult, taking into consideration that my child is now a teenager and in conjunction with his age and being influenced by his father since his father has returned to jail, it is becoming – it’s getting in-between our relationship.
The mother deposed to having a close relationship with the maternal grandmother now, but that in the past:
He [the father] encouraged that my family was influencing me in a bad way to limit the contact with them more and more and moving further away from my family; therefore, restricting help as much as I needed, especially then.
The mother believes that the father is at medium risk of reoffending.
The mother denied ever threatening to remove the child from Australia and return him to Country S.
When she was cross-examined by counsel the Independent Children’s Lawyer, the mother was asked multiple questions about the child and his future aspirations. She was able to mention various career aspirations of the child and was of the view that both she and X were in agreement that he should finish year 12.
The mother deposed that her current mental health is good despite her history of postpartum depression and family violence trauma and she is “now even scared to drink on my family birthday” which I take to mean she does not currently consume significant amounts of alcohol.
PATERNAL GRANDMOTHER
The paternal grandmother, Ms E, gave evidence in support of her son’s application. She was cross-examined for a total of ten minutes.
I found the paternal grandmother to be honest, although the credibility of her evidence as a whole was limited by the fact that she maintains that her son is innocent of the child sex offence for which he was imprisoned.
The father lives with the paternal grandmother. Despite his extensive opposition to revealing his address in court earlier in the proceedings, the paternal grandmother gave her address when she was sworn in. When asked if she minds anyone having her address, she said no. This is contrary to the father’s evidence. The father steadfastly maintained that his mother’s address could not be disclosed because he would be in danger. Clearly, that is not a predicament which is bothering his mother.
Ms E gave evidence that she was capable of supervising and the supervision would not interfere with her life. She does not communicate with the mother. When asked about the December 2021 incident and breach of orders, she said her understanding at the time was that it was a week-about arrangement.
Ms E does not believe her son is guilty of the child sex offences. Ms Dwyer asked her “If you don’t believe that [Mr Tarka] is a risk, how can this court be satisfied that you’re going to be vigilant enough to make sure that [X] is not exposed to any risk?”. Ms E replied, “I can’t.”.
OTHER EVIDENCE
There is an affidavit of Ms F, X’s treating psychologist, in evidence however Ms F was not required to appear to give oral evidence. The affidavit annexes two brief treatment progress reports. Ms F recommended that X be afforded the opportunity to be provided further information regarding his father’s offending in a safe environment, engage in family therapy sessions, be provided the opportunity to develop the skills to articulate his needs, and that the parents become aligned in their parenting. She reported that X had not discussed the offending behaviours with his father directly and that it was unclear if he has been afforded the opportunity. She states that X was at times quite black and white in his thinking, which she attributes to either an inflexible thinking style or due to early trauma, and that:
[X] engaged somewhat superficially in an exploration of how he may feel should his father's court challenge be either successful or unsuccessful. According to [X], this would not change the positive relationship he shared with his father, nor his preference to spend 50/50 time with each parent. [X] acknowledged that his father had completed the mandated prison time regardless.
The Independent Children’s Lawyer also filed an affidavit of Ms W dated 8 August 2022, a supervisor at AA Contact Centre. That affidavit annexes a report requested by the father relating to supervised time spent between the father and X in the period 26 February 2022 to 11 June 2022.
A s11F report dated 9 August 2021 is in evidence. One of the recommendations of this report was that X may be adversely affected from learning that his father is a registered sex offender. As a result, the parties agreed to engage Ms Z for the purpose of determining whether X should be informed as to his father’s incarceration and the manner in which it would occur. There was no affidavit or report of Ms Z in evidence. Instead, the Independent Children’s Lawyer produced Ms Z’s notes dated 19 November 2021 (Exhibit “ICL2”). The notes relate first to Ms Z’s interview with X and then to her joint interview with X and the father. After the first session, it was agreed between the parties that Ms Z would inform X as to the father’s offending. Instead, in a joint session, Ms Z allowed the father to explain his offending to his son. He, predictably, denied the sexual offending. He continued to involve the child in his conspiracy theories in that session. The mother, in her affidavit, deposes that “[Ms Z] told him [X] that he was old enough to decide for himself where he lives”.[15] The mother links this session with the December 2021 incident, as described above at [42]-[43].
[15] Affidavit of Ms Orlich affirmed 31 July 2023 [93].
My impression of Ms Z’s involvement is negative. By allowing the father to describe the charges against him, she empowered the father to have control of the narrative surrounding his offending. When asked, Ms G described Ms Z’s strategy to the case as a ‘surprising approach’. I regard it as harmful.
DETERMINING THE CHILD’S BEST INTERESTS
Primary considerations
The primary considerations for the court are set out in s 60CC(2) and are described as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[16]
with greater weight to be given to the need to protect child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
[16] Family Law Act 1975 (Cth) s 60CC(2)(b).
Meaningful relationship with both parents
Since his release from prison in 2019, the father deposed to having paid for one pair of glasses, and one of the child’s hearing appointments. He deposed to believing he had paid half of X’s primary school fees but did not depose to having covered any other childhood expenses.
The father has never paid child support for any of his children. He claimed there was an agreement as to child support that neither parent pay child support. He deposed that this agreement was in place when the parties had shared care of X, but when this changed the child support did not change to reflect this.
The father has not taken part in any of the decision making for the child since his imprisonment in 2015 until bringing this application.
The likely effect of any changes in the children’s circumstances[29]
[29] Ibid s 60CC(3)(d).
In determining what is in the best interests of the child I am required to consider the likely effect of any change in the child’s circumstances particularly in relation to separation from their parents, other children, wider family including grandparents and other persons with whom the children have a relationship.
As discussed above, if the child is permitted to spend more time with the father “as he pleases” there is a risk of harm coming to the child either by way of fracturing his relationship with the mother or upsetting his routine at a pivotal point in his schooling (see practical difficulty, below).
Practical difficulty and expense associated with face-to-face time and/or communication with the other parent[30]
[30] Ibid s 60CC(3)(e).
The father proposes that the child spend supervised time with him whenever he wishes. Under cross-examination, he agreed that it would be inappropriate for this to happen without some notification provision to keep the mother informed as to the comings and goings of her son.
It is not contentious that time spent between the child and the father should be supervised. The fathers amended application specifies that the time be supervised by either his mother, sisters or niece. The mother proposes that it be supervised by a commercial supervisor. Both experts agree time should be supervised, although Mr Y stated this could be reviewed later on.
When asked about the practicality of the spend time arrangements he seeks, the father gave evidence that his mother, who is 86, would be able to be a full-time supervisor whenever X came to stay with them. He said she would be able to supervise during the day even when they leave the house together and that unsupervised contact (when she is asleep) is highly unlikely. He gave evidence that his mother did not have any social groups or visit family and that X’s visits would not interfere with her time. He was questioned as to the increased risk of coming into contact with X’s underage friends as a result of spending increased time with X. He expressed no real concern as to risk and stated he would tell X that those friends could not come around. The paternal grandmother was also asked about the practicality of supervision, and expressed no qualms or inabilities to supervise including overnight trips (for instance, camping). She denied having personal engagements, family events or medical appointments that may make her unavailable to supervise.
The father was asked about the practical arrangements for supervised time, particularly in the instances the paternal grandmother is not available. The father gave evidence that he assumed that his sisters would take over the role of supervisor. Ms Dwyer put to the father:
MS DWYER: it would make more sense if you only had daytime visits with [X] and it was for restricted periods, because that would be much easier for one of your family members to be able to stand in as supervisor, wouldn’t it?
FATHER: Yes.
However, the father disagreed that asking his sisters to live with him and X as a supervisor in those periods would be an onerous task.
The experts agree that, as far as the father’s sexual offending is concerned, the father does not pose a physical risk to X. Supervision is designed, and in place, to protect X from the risk of emotional harm posed by the father through advancement by the father of his conspiracy theories which are destructive and undermining of X’s relationship with his mother. A concern raised by the Independent Children's Lawyer is that the proposed supervisor, Ms E, believes her son is innocent. I repeat that the following illuminating exchange during cross examination of the paternal grandmother:
MS DWYER: So if you don’t believe that [Mr Tarka] was guilty of that, how can you satisfy the court that you will act protectively as supervisor? If you don’t believe that [Mr Tarka] is a risk, how can this court be satisfied that you’re going to be vigilant enough to make sure that [X] is not exposed to any risk?
[MS E]: I can’t.
The paternal grandmother’s beliefs bring into question the effectiveness of her supervision, even if she is available. There are also the father’s obligations as a registered sex offender. From the Child Impact Report:
[19] The parents provided differing understanding of [Mr Tarka’s] reporting obligations. It is likely that reporting conditions may impact on [X’s] social connections i.e. ability for young female friends to visit the home. It is plausible that it may impact on [Mr Tarka’s] capacity to school and social attend events. It is unclear as to the paternal grandmother’s level of supervision whilst [X] is spending time with his father or her awareness of, and views regarding [Mr Tarka’s] offending. Supervision may reduce the risk of [Mr Tarka] offending against [X]. Yet, if she holds the same views as [Mr Tarka] regarding conspiracy and his innocence, she may not act to protect [X] from the possible emotional harm he may experience from involvement in [Mr Tarka’s] narrative and or coercive behaviours, if this was the case.
Clearly the paternal grandmother does hold views consistent with the father’s false construct.
Supervision at this stage in X’s life provides only as much safety and insulation from the father’s destructive and selfish behaviour as X allows. Still, it is a buffer which I am satisfied should stay in place for as long as possible. Amongst other things, it send a message to X that his mother, the Court and the Independent Children’s Lawyer consider that the father’s behaviour is inappropriate and harmful to X. Further, this acknowledgment that X should be able to have a relationship with the father is based on respect for X as a young adult, rather than any indication that the father has anything positive to impart to X.
The father refused to provide his address to the Court notwithstanding that the paternal grandmother showed no hesitation in doing so. The father claims he is in danger from the mother and her “associates” and that he is “scared for [his] safety”. He claims to have video recordings substantiating this claim, but these were not part of the evidence upon which he relied. When questioned as to how he could continue to withhold his address from the mother if he was granted extra time with X, he responded that X is a very reserved child and would be unlikely to tell the mother the address and that both he and X refer to it as “Nan’s house”. He said even X’s school does not know where he lives. The father’s response is emblematic of his self-centred and harmful approach to X. It is reprehensible that the father tries to reinforce and lend credence to his baseless conspiracies by requiring X to keep secrets from his mother. It is a burden for X and an impediment to X’s relationship with the mother. I will adopt the minute proposed by the mother and the Independent Children’s Lawyer which requires each parent to keep the other advised of any changes to their residential address, mobile and landline telephone numbers.
When asked about communication with the mother, the father says there is mistrust between himself and the mother save that he conceded that, for the period of his incarceration, they were communicating and that the mother supported him throughout this period.
The father claims that he and the mother did not communicate between 2008 and 2010, and then “amicable” communications started again in 2010 and ceased upon the commencement of these proceedings. The father stated that he would “like to get back into a friendship like what we used to have” but conceded that the parties are unlikely to reach that stage before X’s 18th birthday. He agreed that an order for shared parental responsibility was likely to cause further conflict between himself and the mother and that that is not good for X. The father does not accept that the mother is fearful of him. He claims that his criminal history should be attributed to him “associating with the wrong people when [he] was younger”.
The father did not agree that people in X’s life should be warned about him, citing his innocence. The father does not think he would be putting X in a difficult position of having to either lie or explain to his friends that they could not come around to his father’s place as his dad is a registered sex offender.
The father said he lives between 30 and 45 minutes away from X’s school depending on traffic. He agreed with Ms Dwyer for the Independent Children’s Lawyer that, if X is allowed to move between his parents’ homes as he pleases, that it will be more difficult for the mother to manage and oversee X’s routines and ensure that X is getting everything that he needs. The father agreed that it would be difficult to resolve matters with the mother as they do not currently communicate at all. He suggested they attend group counselling together. I do not discern any benefit in counselling whilst the father continues to indulge himself by re-writing history and implicating the mother and others in wrongdoing. Counselling may be of benefit if the father assumes responsibility for his past actions.
The father gave his version of events as to the December 2021 incident (described at [42]-[43]. above). He understood that he breached the relevant order. The father was then asked about what would happen if he came into contact with X’s underage friends or girlfriend. The father agreed that they should not visit. He agreed with the statement that “it’s better that [X] doesn’t spend extended times in your household because in doing so he’s obviously deprived of his friends”.
PARENTAL RESPONSIBILITY
Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[31] Equal shared parental responsibility relates to decision making about ‘major long-term issues’, which is defined in s 4 of the Act as follows:-
…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 children to spend time with a parent.
[31] Ibid s 61B.
Where two or more persons share parental responsibility, equally or in relation to any major long-term issue under a parenting order, they are required to make the decision jointly. [32] The concept of shared parental responsibility carries with it the requirements to 'consult the other parent in relation to the decision to be made about that issue'[33] and to 'make a genuine effort to come to a joint decision about that issue'. [34] These provisions mean that consultation and some discussion between the parties is required regarding major long-term decisions, for which parental responsibility is shared.
[32] Ibid s 65DAC(2).
[33] Ibid s 65DAC(3)(a).
[34] Ibid s 65DAC(3)(b).
In the course of cross-examination, Mr Metaxas for the mother asked the father what long-term decisions were left to be made for X in the period between final hearing and his birthday in 2024, when X turns 18. The father agreed that the only decision would be whether the child could leave school and start an apprenticeship. He demonstrated a different view to the mother on that topic, namely that the child should be allowed to leave school before year 12 to start an apprenticeship and join a ME program with the school (as opposed to taking graded VCE classes). The Court understands by way of the updated comments of the Independent Children's Lawyer dated 5 February 2024 that the child is currently enrolled in year 12 and plans to complete the school year. I am therefore satisfied that there are no foreseeable major decisions remaining over which the father could have equal shared parental responsibility.
The father conceded that in the period that the mother has had sole parental responsibility (being the period since his imprisonment), the child has had all of his education and medical needs met. He has been given good career advice. The father agreed with Mr Metaxas’s proposition that “[Ms Orlich] has been 100 per cent completely responsible for being a good example and role model to [X]”.
Shared parental responsibility is unrealistic in this case. It is unreasonable and untenable to require the mother to consult with the father. Not only is the father totally self-absorbed but he maintains and promulgates false accusations about the mother to relieve himself of responsibility for sexually abusing an underage girl. The mother gave evidence that she cannot communicate with the father and there has been no communication since 2020. The father agreed there had been no communication since 2020. The mother has expressed fear of the father and I agree with the submission of counsel for the Independent Children’s Lawyer that her demeanour in the witness box was consistent with her oral evidence at the time when she spoke about being traumatised by him. The presumption in favour of equal shared parental responsibility is rebutted. Assessed without the benefit of the presumption, I am comfortably satisfied that the mother is the only competent parent to exercise parental responsibility for X.
CONCLUSION ON FATHER’S TIME WITH X
X is in his last year of school and needs to have a routine. The father’s status as a registered sex offender (which curtails X’s friends visiting the father’s home and the father going to X’s school) is another factor which make the father’s proposed outcome of equal time inappropriate. Because of the negative and damaging influences the father brings to X’s life, by maintaining conspiracies where none exist, equal time is not in X’s best interests.
The father’s secondary proposal is that X spend time with him whenever he wishes. However, the father conceded that time instituted at the child’s instigation would be inappropriate without some form of notification provision to keep the mother informed as to X’s whereabouts. Such an arrangement also has the potential to make X responsible for where he chooses to live which is inappropriate.
Taking into account the practical impediments to the child spending time with the father ‘whenever he wishes’ being the paternal grandmother’s inability to protect the child from the potential psychological risk posed by the father and the concealment of the father’s address from the mother, and the inability of the paternal grandmother to supervise for 24 hours in a day if the time extends to overnight time, the father’s proposed outcome is not in X’s best interests.
The mother and the Independent Children’s Lawyer recognise that X should continue to see the father. The Independent Children’s Lawyer and mother proposed that time remains as it is currently, being 4 hours on alternate Saturdays. If time were extended to say, six hours, Ms G suggests that this would allow X to understand that he had been heard by the Court. I accept that evidence and time should be of six hours duration.
A meaningful relationship between the father and the child should be preserved as it is important to the child’s developing identity, however not at the expense of his psychological wellbeing. As such, the father’s time will continue to be supervised. The mother conceded that the supervisor could be any of the four supervisors proposed by the father, but expressed a preference that it is not the paternal grandmother. The February 2024 update states that time has continued to be supervised by Ms E since the final adjournment of the hearing.
The supervisor should remain within earshot of X and the father as the primary risk to the child is emotional or psychological.
If time is to be supervised by a paid (and by that, I mean a commercial, or external) supervisor due to unavailability of the four approved supervisors, supervision should be paid for by the father.
OTHER ORDERS
It is important, in the circumstances where the orders made are not those that the child seeks, and especially given the age of the child, that these reasons be explained to X. It should be made clear that the court does not accept the father’s allegations about his conviction being the result of a conspiracy.
As I am not favourably impressed by the involvement of Ms Z in this matter to date, the Family Consultant, Ms G, has volunteered to be the one to explain this decision to X.
Given the fact that X turns 18 soon and that he is likely to be able to find a copy of these reasons when they are anonymised and published in any event, it is appropriate that he be provided a copy of these Reasons to review when he sees Ms G if he requests it.
I will direct that the mother and father do not instigate conversations with the child about the reasons behind this decision before X has had an opportunity to discuss the outcome with Ms G and any other treating medical or allied health practitioner treating the child requests, such as Ms F.
The mother is permitted to provide a copy of these reasons to any person who she believes it is in the best interests of X to have them, such as the principal of X’s school, any relevant allied health professionals and to the guardian of any persons under the age of 18 who are at risk of coming into contact with the father through the child.
In the proposed minute of orders sought by the ICL and mother (ICL3) at paragraph 17, the mother and ICL seek that:
The mother and the father do all acts and things necessary to cause the money which has been paid into the trust account of the mother’s lawyers pursuant to order 8 of the orders made 21st April 2023 shall be dealt with as follows:
a)to be applied to reimburse the respondent mother for all out-of-pocket expenses for the counselling sessions for [X] and upon the mother receiving an invoice for payment from [Ms F] or her nominee;
b)As otherwise agreed between the parties in writing; and
c)With any balance to be returned by the mother to the applicant father upon [X] attaining the age of 18 years.
The proposal departs from the previous order at paragraph 8 of the orders dated 21 April 2023. In the original order, the money was to be applied to pay one half of the mother’s out-of-pocket counselling expenses. The mother’s application is that it now be applied to the entirety of out‑of‑pocket counselling expenses. I do not recall either party making submissions as to the mother’s proposal. I am not satisfied that there can be a departure from the order dated 21 April 2023 in the absence of submissions. I will not make the order but note that I have not determined this proposal on its merits.
APPLICATION FOR COSTS
The mother has applied for costs to be awarded on an indemnity basis from the period 18 March 2022 to final hearing. I did not hear submissions as to costs in the course of this hearing. I understand from the mother’s costs notice that her costs up to and including final hearing were approximately $50,000.00.
The father has been wholly unsuccessful, especially in the circumstances that the child was already 17 at the time of final hearing. I will allow the mother to make submissions as to costs after the lapse of the appeal period.
CONCLUSION
I am satisfied that the orders I make are in X’s best interests.
I certify that the preceding two hundred and forty-two (242) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 14 May 2024
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