Yates & Woodford (No. 2) - [2021] FamCA 535

FAMILY COURT OF AUSTRALIA
Yates & Woodford (No. 2) [2021] FamCA 535

File number(s): MLC 4475 of 2017

Judgment of: JOHNS J

Date of judgment: 23 July 2021

Catchwords: FAMILY LAW – CHILDREN – parental responsibility – with whom children live – with whom children spend time – best interests of the children – family violence – children’s views – where the parents agree the maternal grandmother should have sole parental responsibility – where the parents have neglected the children – where the parents have exposed the children to family violence – where the parents have failed to avail themselves of the opportunity to communicate with the children – where the children have no desire for contact with the parents – where the mother seeks supervised contact with the children on four occasions per year.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 64B, 65C, 65DAA, 68B, 68L, 69ZW, 91B

Cases cited:
Bennett & Bennett (2001) FLC 93-088

Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518

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

Mulvany & Lane (2009) FLC 93-404 [76]-[77]

Oberlin & Infeld [2021] FamCAFC 66

Number of paragraphs: 218

Date of last submission/s: 23 April 2021

Date of hearing: 19 – 23 April 2021

Place: Melbourne

Counsel for the Applicant: Mr Kanarev

Solicitor for the Applicant: Purcell & Purcell

Counsel for the First Respondent: Mr Allen

Solicitor for the First Respondent: Knight Family Lawyers

Counsel for the Second Respondent: Ms Teicher

Solicitor for the Second Respondent: Vernon Da Gama & Associates

Counsel for the Independent Children's Lawyer: Ms Glaister

Solicitor for the Independent Children's Lawyer: Macgregor Solicitors
ORDERS

MLC 4475 of 2017

BETWEEN:
MS YATES
Applicant

AND:
MS WOODFORD
First Respondent

MR CALDER
Second Respondent

ORDER MADE BY:

JOHNS J

DATE OF ORDER:

23 JULY 2021

THE COURT ORDERS THAT:
1.That the application of the first respondent to spend time with the children D born … 2008, E born … 2010 and F born … 2014 be dismissed.
2.That the parenting orders dated 29 April 2021 remain in full force and effect.
3.That all extant applications be otherwise dismissed.
4.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yates & Woodford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

These proceedings relate to the parenting arrangements for the children D, aged 12, E, aged 10, and F, aged 7. Since 2017, they, together with their older siblings B, aged 15, and C, aged 14, have been the subject of litigation between the applicant maternal grandmother, Ms Yates, the first respondent mother, Ms Woodford, and the second respondent, Mr Calder, the biological father of the three youngest children. Mr Eade, the biological father of the two eldest children, has not participated in these proceedings.
In addition to the proceedings in this Court, all of the children have been the subject of child protection investigations and proceedings in Queensland and Victoria. At the time of hearing, there were ongoing protection proceedings in the Children’s Court of Victoria with respect to B and C.
The parenting proceedings were originally commenced by the applicant in 2017 after the three eldest of the mother’s five children came into her care at the request of the mother.
The applicant subsequently alleged that the mother and the father were using illicit substances, perpetrating family violence against the children and neglecting the children’s basic needs. She therefore sought orders that all five children live with her. That application was opposed by the first and second respondents.
The application was listed for final hearing in the Family Court of Australia in late July 2018. On 31 July 2018 final orders were made by consent providing that the applicant have sole parental responsibility for the three eldest children and that those children live with her. Orders were also made addressing specific issues, including for the mother and the applicant to engage in family therapy and for the orderly exchange of information between them in relation to any illness or injury sustained by the children.
The following day, 1 August 2018, interim orders were made by consent with respect to the parenting arrangements for the two youngest children, E and F. Those orders provided that E and F were to remain living with the mother, provided that she lived within 20 kilometres of a nominated primary school near the applicant’s residence. In the event that the mother lived outside that area, the children were to live with the applicant. Those orders also provided for those children to spend supervised time with the father.
Further orders were made at that time restraining the father from living with the mother and any of the children, and spending time or communicating with them, other than in accordance with the Court orders.
Compliance with those orders faltered within a matter of months. By October 2018, fresh proceedings had been commenced, with the mother seeking a recovery order against the applicant in respect of E and F and the applicant seeking orders that those children live with her and that she have sole parental responsibility for making decisions with respect to their care.
On 18 December 2018 interim orders were made by Senior Registrar Fitzgibbon that E and F live with the applicant and that she have sole parental responsibility with respect to their health and education.
Since that time, there have been applications in relation to the children (or some of them) in both this Court and the Children’s Court of Victoria. As a result of protective issues in relation to the children, on 26 October 2020 a request was made pursuant to section 91B of the Family Law Act 1975 (“the Act”) for the Department of Health and Human Services (DHSS) (as it then was) to intervene in these proceedings. That request was declined.
On 8 December 2020 I dismissed all parenting applications with respect to the two eldest children, B and C. This was necessary as a result of those children being the subject of ongoing child welfare proceedings in the Children’s Court of Victoria and that court being seized of jurisdiction with respect to those children. Accordingly, the final hearing that commenced before me on 19 April 2021 concerned the parenting arrangements for the three youngest children, D, E and F, only.
At the commencement of the hearing the applicant sought orders that she have sole parental responsibility for the children, that they live with her and spend supervised time with the mother and father, subject to the children’s wishes, and on no more than four occasions per year. That application was opposed by the mother and father, who sought orders that the children live with them and that they have sole parental responsibility.
On the seventh day of the final hearing, after the family consultant, Ms M, had given evidence, the parties came to an agreement with respect to the allocation of parental responsibility and the issue of with whom the children should live. On 29 April 2021, having been satisfied that the proposed orders were in the children’s best interests, I made final orders by consent as follows:-
(1)That the children… live with the maternal grandmother.
(2)That the maternal grandmother have sole parental responsibility for the children.
(3)That the mother and the father spend time and communicate with the children as follows:-
(a)By sending the children cards, letters and/or a small gift on no more than four occasions per year and the maternal grandmother shall ensure that the communications are provided to the children unless she deems the communication or present to be inappropriate.
(4)That the applicant shall authorise the children’s school to provide to the first and second respondents upon their application and at their expense, if any, copies of school reports and photographs relating to the children.
(5)That the applicant shall make the children available to a family consultant nominated by Senior Family Consultant Ms X, as directed, to enable the orders made this day to be explained to the children.
(6)That the applicant have leave to provide copies of these orders and Reasons for Judgment to the Department of Family Fairness and Housing, schools attended by the children, the children’s medical practitioners and allied health carers including counsellors, and any other Court seized of applications or proceedings relating to the children or any of them.
…
Two issues remained in dispute upon the finalisation of those matters, namely:-
·Whether the mother ought to be permitted to spend supervised time with the children on four occasions per calendar year. The ICL and the applicant oppose that application; and
·Whether an order should be made restraining the mother and the father from commencing further proceedings with respect to the children, without prior leave of this Court. All parties agree to an order in those terms, save for the father who seeks that that order be limited for a period of five years only. Notwithstanding the agreement of the parties to the making of that injunction, of concern to the Court was the question of whether it has the power to make an injunction in those terms.
These are my Reasons for Judgment with respect to those issues.
THE PARTIES
The applicant maternal grandmother is aged 73. The applicant is the mother of the first respondent. The applicant is self-employed, owning and operating her own business.
The first respondent mother is aged 36. The mother is a homemaker.
The second respondent father is aged 40. The father is self-employed.
Mr Eade was previously named as the second respondent father in the proceedings. Mr Eade failed to engage with the Court or file any documents over the entirety of the time he was the second respondent in these proceedings.
The mother and Mr Eade commenced a relationship in or around 2000 and separated on a final basis in 2006. There are two children of the relationship; B, aged 15, and C, aged 14. The mother deposes that on 16 May 2007 final orders were made in the Family Court of Australia providing for the mother to have sole parental responsibility for the children, for both children to live with the mother and that Mr Eade have no time with the children.
The first respondent mother and the second respondent father commenced a relationship in late 2007 and remain together. There are three children of their relationship; D aged 12, E aged 10 and F aged 7.
On 8 December 2020 I made an order dismissing all extant parenting applications with respect to B and C. As a result, the proceedings before me relate only to the parenting arrangements for D, E and F (“the children”). With the finalisation of applications relating to B and C, Mr Eade was removed as second respondent to these proceedings.
BACKGROUND
This matter has a long and protracted procedural history.
Proceedings were commenced in the Family Court of Australia on 10 May 2017, approximately one month after B, C and D commenced living with the applicant in Victoria. In her Initiating Application, the applicant sought final parenting orders with respect to all five children.
The applicant filed a Notice of Child Abuse, Family Violence, or Risk of Family Violence on 10 May 2017 with her Initiating Application. That Notice contained numerous allegations, including that the father perpetrated family violence against the mother and the children, that the mother and the father had used illicit substances in the presence of the children and that the care and welfare of the children had been neglected.
The matter first came before Macmillan J on 11 May 2017. That day ex-parte orders were made which provided that until further order, B, C and D live with the applicant, the first and second respondents be restrained from attending upon the applicant’s home or approaching she and the children and appointing an independent children’s lawyer.
On 23 May 2017 the matter came before Senior Registrar Fitzgibbon. The father did not appear at the hearing. Orders were made providing as follows:-
IT IS ORDERED UNTIL FURTHER ORDER
(1)That the children … spend time and communicate with the respondent mother as follows:
(a)each Saturday from 10:00am until 5:30pm, commencing 27 May 2017; and
(b)from 10:00am on Saturday, 10 June until 5:30pm on Sunday, 11 June 2017; and
(c)at other times as agreed between the parties and Independent Children’s Lawyer (“ICL”), in writing, and prior to the date/s.
(2)That changeovers occur with the maternal grandmother bringing the children to a place agreed, or failing agreement a public place and the mother returning the children to a place agreed, or failing agreement to a public place.
IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER
(3)That the respondent mother do all such things necessary to ensure that the children E and F are brought to the State of Victoria on or by 9 June 2017 and the said children to remain in the State of Victoria until further order of this Court.
IT IS FURTHER ORDERED UNTIL FURTHER ORDER
(4)That for the purpose of order 1 herein, order 2 made 11 May 2017 (a true copy of all orders made that day attached) only insofar as it applies to the first named respondent Ms Woodford, be suspended until further order or the adjourned date of hearing for the purpose of giving effect to the provision in these orders to enable any changeover and/or time being spent and return of the children.
…
The Senior Registrar also ordered the preparation of a s 11F assessment and requested a s 69ZW report from the Queensland Department of Communities, Child Safety and Disability Services. An ICL was appointed pursuant to s 68L(2) to represent E and F, as the previous appointment related only to the three eldest children.
The mother filed a Response to Initiating Application on 16 June 2017. She sought final parenting orders, including that she and the children be permitted to return to Queensland to live.
Consent orders were made between the applicant, the mother and the ICL on 1 August 2017 by Senior Registrar Fitzgibbon. Those orders provided:-
(1)THAT until further order the children E …and F … live with their Mother.
(2)THAT until further order, the Mother spend time with and communicate with the children B … C…and D…as follows:-
(a)on Saturday 5 August 2017 from 11.00 am to 1.00 pm at R Centre, S Street, H Town, in the presence of the children E and F, changeover to occur inside the centre…;
(b)on Sunday 10 September 2017 from 11.00 am to 1.00 pm in identical terms as paragraph 2(a) hereof, the mother to confirm date in writing (text) seven days in advance;
(c)at such other times as may be agreed to between the parties from time to time.
…
The father filed a Response to Initiating Application on 25 September 2017. He too sought final parenting orders, including that the children be permitted to return with he and the mother to live in Queensland.
The matter returned to Court on 11 October 2017 before Senior Registrar Fitzgibbon. Further procedural orders were made that day and it was requested that the Queensland Department of Communities, Child Safety and Disability Services prepare an updated s 69ZW report for the Court. A further order was made providing as follows:-
That the first respondent mother, or her nominee, on notice and as agreed, do arrange for and bring, or cause to bring, each of the children E … and F …to travel to Victoria and prior to the adjourned date of hearing and NOTING THAT the purpose of this is to await further order of the Court and to enable, by agreement and/or facilitation and input from the ICL time spent by them with their older siblings prior to or after the adjourned date of hearing.
On 29 November 2017 the proceedings were added to the list of cases awaiting allocation to a judicial docket. Senior Registrar Fitzgibbon made orders by consent providing:-
...
(8)That until further order, the children B … C …and D … spend time with the Mother as follows:
(a)from 9.30am to 4.30pm on the first Saturday of each month commencing 2 December 2017;
(b)as otherwise agreed between the parties in writing.
(9)That the Mother shall ensure that the children E…and F …attend for the time spent pursuant to order 8 hereof.
…
(12)That the Father shall spend time with D…from 12:00pm to 4.00pm on the first Sunday of each month (being the day following the time provided for at paragraph 8 hereof), such time to take place at R Centre in H Town.
(13)That the Father be at liberty to bring the children F and E or either of them for the time provided for at paragraph 12 hereof.
(14)That the Mother be at liberty to attend the time provided for at paragraph 12 hereof.
…
The matter proceeded to final hearing before Hogan J on 30 July 2018. On 31 July 2018, final orders were made by consent between the parties with respect to the parenting arrangements for B, C and D. Those orders provided as follows:-
(1)All previous parenting Orders with respect to B… C… and D… (“the children”) be discharged.
(2)The maternal grandmother have sole parental responsibility for the children.
(3)Prior to making any major or long term decision in relation to the children, the maternal grandmother consult with the mother and take into account the views of the mother in making any major or long term decision.
(4)The children live with the maternal grandmother.
(5)The maternal grandmother engage the children in counselling and continue to engage the children in counselling in accordance with the recommendations of the counsellor.
(6)The maternal grandmother and mother engage in family therapy as recommended in the first instance by Mr V at K Contact Centre in H Town and that the children attend such therapy at the discretion of the therapist. In order to facilitate the therapy the Independent Children’s Lawyer and the maternal grandmother’s solicitor be at liberty to provide Mr V, or such other therapist, with a copy of the Family Report by Family Consultant M dated 11 July 2018, the Children and Parents Issues Assessment dated 7 July 2017, correspondence directed to the court dated 30 June 2017 from the Department of Health and Human Services, and if thought of assistance, the most recent affidavits filed by the mother and maternal grandmother in these proceedings.
(7)The maternal grandmother and mother inform each other of any serious illness or injury suffered to the children and the maternal grandmother promptly provide the mother with information in relation to the children’s health and wellbeing.
(8)The maternal grandmother be authorised to liaise with and obtain information from the children’s treating medical and allied health professionals.
(9)The maternal grandmother and mother keep each other informed of their current residential address and contact telephone number and notify the other of any change to their residential address not less than seven (7) days prior to any such change.

Hogan J made further interim orders by consent on 1 August 2018 (“August 2018 Orders”) with respect to E and F, who remained living with the mother at that time. Those orders provide as follows:-
(1)The children, E … and F …, shall reside in the greater H Town area by 29 September 2018.
(2)In the event the mother is residing within 20 km of J School, then the children shall live with her and shall spend time with the maternal grandmother at all times as may be agreed between the parties in writing, but failing agreement as follows:
(a)each alternate weekend: from after school Friday until commencement of school Monday, with changeovers to occur at school or kindergarten respectively; and
(b)for half of each school holiday period: on dates to be agreed, with such time to commence in the long summer school holidays in 2018/2019.
(3)In the event the mother and E and F are not residing within 20 km of H School by 29 September 2018, then the children E and F shall live with the maternal grandmother in Victoria and shall spend time with their mother in Victoria at all such times as may be agreed between the mother and the maternal grandmother in writing and failing agreement as follows:
(a)each alternate weekend: from after school Friday until commencement of school Monday, with changeovers to occur at school or kindergarten respectively; and
(b)for half of each school holiday period: on dates to be agreed, with such time to commence in the long summer school holidays in 2018/2019.
(4)The children, E and F shall spend time and communicate with the father on a professionally supervised basis at K Contact Centre and the father forthwith make application to the Contact Centre for supervised time.
(5)The child, D …spend time at communicate with the father in accordance with his wishes and he have the option of spending the time with E and F provided for in Order 4 above.
(6)The children, B … C …and D spend time and communicate with the mother at such times as may be agreed between the mother and maternal grandmother in writing and, failing agreement as follows:
(a)on a supervised basis at K Contact Centre with such time to occur on alternate fortnight basis (following acceptance into the Centre) and at such times as may be accommodated by the Centre.·
…
(15)The father (Mr Calder) be restrained from living with the mother and any of the children, or spending time or communicating with the children or any of them other than in accordance with these orders.
…
AND IT IS FURTHER ORDERED BY WAY OF INTERIM ORDER THAT
(32)In the event that the mother requires respite care for the children, E and F, she contact the maternal grandmother and the mother is restrained and an injunction hereby issue restraining her from permitting the children, E and F, to be cared for by any adult during any time she may require hospitalisation without first notifying the maternal grandmother of her intention and providing the maternal grandmother with the first option to care for the children, E and F.
…
(37)The children, E and F, shall spend time with the maternal grandmother from 4.00 pm on 3 August 2018 until the mother returns to Victoria and provides the maternal grandmother with notice in writing that she is available to resume the day-to-day care of these children in the greater H Town area.
…
Two months after those orders were made by Hogan J, on 1 October 2018, the mother filed an Application in a Case seeking orders that E and F be immediately returned to her care pursuant to the August 2018 Orders. The applicant filed a Response to Application in a Case on 8 October 2018 seeking that the children live with her and the mother and father communicate with the children only at a professionally supervised contact centre on alternate weekends.
The matter returned to Court before Senior Registrar Fitzgibbon on 9 October 2018. The father made no appearance. Orders were made that day providing as follows:-
(1)That the maternal grandmother or her agent deliver the children E … and F … to W Library at 4:00pm this day for changeover.
(2)That the interim orders made 1 August 2018 and amended on 7 August 2018 otherwise remain in full force and effect, with the maternal grandmother’s alternate weekends to commence on 19 October 2018.
…
Further orders made by consent that day provided for the preparation of a s 11F oral report with respect to the parties and the five children.
The applicant filed an Application in a Case on 29 October 2018, seeking that E and F be returned to her care due to breaches by the mother of the August 2018 Orders; the applicant alleged that the father was residing with the mother, in breach of those orders. The mother denied those allegations and filed a Response to Application in a Case on 13 November 2018 seeking that the applicant’s application be dismissed.
Ms M provided an oral Child Responsive Memorandum on 15 November 2018, which was transcribed and placed on the Court file. An interim hearing was conducted on 19 November 2018. Judgment was reserved.
On 18 December 2018 Senior Registrar Fitzgibbon delivered his reserved judgment and made orders for E and F to reside with the applicant. Those orders provided as follows:-
(1)That all previous parenting Orders in respect of E …and F…be discharged.
(2)That E and F live with the maternal grandmother and until further order she exercise sole parental responsibility with respect to health and education for the children...
(3)That the mother or her agent deliver E and F to the maternal grandmother on 21 December 2018 at 4:00pm at W Library together with the children’s personal belongings such as toys and things they wish to keep with them.
(4)That until further order the mother spend time with E and F, conditional on Mr Calder (“the father”) not being present nor brought into contact with them, as follows:
(a)each alternate weekend commencing the first weekend after Term 1, 2019 commences from the conclusion of school and kindergarten on Friday or 3.30pm until the commencement of school and kindergarten on Monday or 9.00am, with changeovers to occur at school or kindergarten respectively or if unavailable the W Library;
(b)for Christmas 2018, the mother’s time with E and F be from 12 noon on Christmas Eve until 12 noon on Christmas Day with changeover back to the maternal grandmother to occur at W Library at 12:00 noon on Christmas Day;
(c)for one half of each school term holiday commencing Term 1 2019 on dates to be agreed between the maternal grandmother and the mother, and failing agreement the first half;
(d)from 4 January until 9 January 2019;
(e)from 18 January until 25 January 2019;
(f)with the maternal grandmother at all other times; and
(g)as otherwise agreed between the maternal grandmother and the mother prior and in writing, wherever practicable via direct email or text message between the maternal grandmother and mother.
(5)That E and F spend time and communicate with the second respondent father Mr Calder on a professionally supervised basis at K Contact Centre once per calendar month and at his expense and that the father forthwith make application to the Contact Centre for such supervised time and the maternal grandmother do all acts and things necessary to facilitate same.
(6)That the child D… spend time and communicate with the father if in accordance with D’s wishes and on a professionally supervised basis at K Contact Centre once per calendar month at the father’s expense and that D have the option of spending any such time with the father simultaneously with E and F as provided for in order 5 above.
(7)That the children B …C …and D …spend time communicate with the mother if in accordance with their wishes and at such times as may be agreed between the maternal grandmother and mother in writing.
…
The matter was again added to the list of cases awaiting allocation to a judicial docket with priority from 15 November 2018. As a result of those orders, by late December 2018, all of the children were living with the applicant.
On 4 February 2020, the applicant filed an Application in a Case seeking that the mother and the father return B to her care. The applicant deposed that B, then aged 14, had absconded from her care on 21 January 2020.
On 13 February 2020 the matter returned to Court and the mother and the father were self-represented. That day I made orders listing the matter for final hearing on 15 June 2020 as a five day matter. In addition to the usual trial directions, I made a further order for the preparation of a Family Report and provision of a s 69ZW report from the DHHS.
The matter was listed for mention on 14 May 2020 as a result of the impact upon Court hearings resulting from the COVID-19 pandemic. The father made no appearance. It was common ground amongst the other parties who attended that mention that it would be inappropriate for this matter to proceed as a virtual final hearing, and that every endeavour should be made to ensure that the final hearing proceeded in-person. The trial listed to commence on 15 June 2020 was therefore vacated and all extant applications were adjourned to a date to be fixed.
Two Contravention Applications were subsequently filed, one by the mother on 12 June 2020 and another by the father on 16 June 2020. Both alleged that the applicant had failed to comply with procedural orders of this Court. On 29 July 2020 Registrar George dismissed those applications.
On 31 July 2020 the matter returned to Court and was listed for final hearing before me on 26 October 2020 as a five day matter.
On 13 October 2020 the Court received correspondence from the ICL requesting that the DHHS be requested to intervene in the proceedings, as it was submitted that the Department intended to seek a child protection order in respect of C.
As a consequence the matter was listed for mention before me on 16 October 2020. That day the Court was informed that C had run away from the applicant’s home and had threatened to suicide. As a result, she had been hospitalised and then discharged into the care of the DHHS. The ICL also informed the Court that B had been charged with criminal offences as a result of allegations that he had sexually assaulted his sister, C. In light of those events, the parties sought that the Court request the DHHS intervene in these proceedings.
On 16 October 2020 I made orders and issued a request pursuant to section 91B of the Act for the DHHS to intervene in these proceedings in relation to all five children.
Further orders were made that day that the trial listed to commence on 26 October 2020 be vacated. I also made orders requesting that the DHHS provide a s 69ZW report to the Court, with such report to advise the Court of the following:-
(a)Whether the department has or intends to issue proceedings in relation to the children B…C…D… E… and F…in the Children’s Court Family Jurisdiction;
(b)The current status of any proceedings in the Children’s Court Criminal Jurisdiction in relation to the child B;
(c)Does the Department intend to join the Family Court Proceedings?
(d)The Department’s view with respect to the following recommendations contained in the Family Report of Ms M dated 23/7/2020:-
(i)Paragraph 172 sub paragraphs ii “It is recommended that the Court direct that Department of Health and Human Services provide accommodation for B, that he should not remain resident with Ms Woodford, Mr Calder or Mr Eade” and, iii” B is to undertake counselling as directed by Department of Health and Human Services”
(ii)The effect on the children of the risk factors identified in the Family Report
(e)The Department’s view with respect to an Order Sought in the proceedings by the Maternal Grandmother which seeks an Order that the child B live in supported residential care at a place chosen by the Maternal Grandmother in consultation with the Department of Health and Human Services;
(f)Of any welfare or professional report which the Department has sought or received in relation to the above named children;
(g)Any other relevant information which the Department seeks to put before the Court.
Notwithstanding the request made pursuant to section 91B, the Department did not intervene in the proceedings. That this is so is of great concern to the Court. The issues before the Court in relation to the children are complex and difficult, involving serious allegations of family violence, alcohol and substance abuse, parental neglect and incest. The proceedings were further complicated by the fact that the Department was pursuing applications in the Children’s Court in relation to at least two of the children and little information was available to this Court as to the progress of those child welfare and criminal matters. Given the issues in this matter were not deemed so serious as to warrant intervention by the Department, one wonders at what point proceedings are considered by the Department as appropriate for such action.
On 7 December 2020 Registrar George made an order releasing the s 69ZW Report to the parties. The matter returned to Court on 8 December 2020 and I made orders that day as follows:-
(1)That all extant applications in relation to parenting arrangements for the children B … and C … be dismissed AND THE COURT NOTES that those children are currently the subject of proceedings in the Children’s Court of Victoria.
(2)That until further order the first and second respondents spend no time with the children D… E… and F...
(3)That the Independent Children’s Lawyer have leave to forward a copy of the Department of Health and Human Services s 69ZW report dated 2 December 2020 to the Family Consultant AND IT IS REQUESTED that the Family Consultant provide to the Court by 22 March 2021 an addendum to the Family Report having regard to the contents of the DHHS report.
…
The matter was listed for final hearing, with respect to D, E and F only, to commence on 19 April 2021 as a five day matter and proceeded before me on that date.
At the commencement of the hearing, the Court was informed that B had been charged in relation to the sexual assault of his siblings. Those charges included sexual assault by touch, sexual activity in the presence of a child and incest of sibling (Exhibit ICL-8). On 10 February 2021, a Therapeutic Treatment Order in respect of those matters was made in the Children’s Court at H Town (Exhibit ICL-10).
B continues to live with the mother and the father.
At the time of hearing, C was living in accommodation arranged by the Department of Families Fairness and Housing (formerly DHHS) (“DFFH”). She was spending time with the applicant and her siblings in accordance with her wishes, and subject to a Family Reunification Order made in the Children’s Court on 27 January 2021 (Exhibit F-2).
MATERIAL RELIED UPON
The applicant relied upon the following documents:-
·Amended Initiating Application filed 27 August 2020;
·Case Summary document filed 12 April 2021;
·Trial affidavit of the applicant filed 10 March 2021;
·Affidavit of the applicant filed 25 March 2021;
·Affidavit of the applicant filed 23 April 2021;
·Family Report prepared by Ms M dated 23 July 2020; and
·Exhibits A-1 to A-17 inclusive, being documents tendered during the course of the hearing.
The mother relied upon the following documents:-
·Amended Response to Initiating Application filed 8 October 2020;
·Case Summary document filed 12 April 2021;
·Trial affidavit of the mother filed 18 March 2021; and
·Exhibits M-1 to M-4 inclusive, being documents tendered during the course of the hearing.
The father relied upon the following documents:-
·Amended Response to Initiating Application filed 11 September 2020;
·Case Summary document filed 12 April 2021;
·Trial affidavit of the father filed 18 March 2021; and
·Exhibits F-1 to F-6 inclusive, being documents tendered during the course of the hearing.
The ICL relied upon the following documents:-
·Family Report Addendum prepared by Ms M dated 22 March 2021;
·Family Report prepared by Ms M dated 23 July 2020;
·Child Responsive Program Memorandum prepared by Ms M dated 13 November 2018;
·Family Report prepared by Ms M dated 11 July 2018;
·Child Responsive Program Memorandum prepared by Dr G dated 7 July 2017;
·DHHS s 69ZW Response dated 2 December 2020;
·DHHS s 69ZW Response dated 27 March 2020;
·DHHS s 67Z Response dated 30 June 2017;
·DHHS Response to Notice of Child Abuse dated 24 November 2017; and
·Exhibits ICL-1 to ICL-10 inclusive, being documents tendered during the course of the hearing.
THE HEARING
The final hearing commenced on 19 April 2021. All parties were represented by counsel for the duration of the final hearing.
On the first day of the hearing, counsel for the mother did not appear personally as he had taken ill overnight. It was arranged for counsel for the mother to appear via Microsoft Teams. He informed the Court that he would be unable to commence the hearing that day due to his ill health. The matter was stood down until 2.15pm to enable counsel for the mother to attend upon a physician.
When the matter resumed at 2.15pm, the mother’s solicitor appeared via Microsoft Teams to inform the Court that counsel for the mother would be unable to proceed that day. In light of that position, the matter was adjourned to 10am on Wednesday 21 April 2021 to enable the mother’s solicitor to brief alternate counsel if required. All parties accepted that this was the most sensible course given the matter’s protracted history.
The matter resumed at 10am on 21 April 2021. Counsel for the applicant opened the applicant’s case and the applicant gave evidence for most of the day.
On the third day of the hearing, Thursday 22 April 2021, counsel for the mother and counsel for the father both informed the Court that their clients would not be attending Court that day as both had taken ill.
That day I made orders providing as follows:-
(1)That the first respondent mother and the second respondent father obtain a medical certificate this day, such certificate shall advise the Court of the following matters:-
(a)The diagnosis of their current illness;
(b)The likely duration of symptoms;
(c)The capacity of the patients to attend Court and give evidence;
(d)What treatment and/or medication is prescribed;
(e)The effect, if any, that any prescribed treatment or medication would have on the patients’ ability to attend Court to give evidence; and
(f)The symptoms that the patients are suffering.
(2)That the medical certificates provided by the first and second respondents’ medical practitioners pursuant to order 1 hereof be forwarded to the Court by email…by 9.30am on 23 April 2021.
All extant applications were otherwise adjourned part-heard to 10am on 26 April 2021, to ensure all parties were able to attend upon the resumption of the hearing.
On 26 April 2021, counsel for the applicant sought leave to rely upon a further affidavit of the applicant filed 23 April 2021. That application was not opposed. I granted leave for the applicant to rely on that affidavit which contained evidence with respect to the conduct of the mother and the father during the week prior.
After the entirety of the evidence had been heard, the parties returned for final submissions on 29 April 2021. At the commencement of the day the matter was stood down at the request of all parties on the basis that they were attempting to resolve the dispute. Later that day I made final orders by consent and reserved my judgment in respect of two discrete issues.
THE ISSUES

The issues which remain to be determined are as follows:-
·Whether the mother should be permitted to spend time with the children on a supervised basis four times per calendar year; and
·Whether there ought be an injunction restraining the mother and the father from initiating proceedings in relation to the children without leave of the Court, either indefinitely or for a finite period of time.
ORDERS SOUGHT
The positon of both the mother and the father at the commencement of the hearing was that orders should be made that they have parental responsibility for the children and that the children live with them. By the final day of the hearing there had been a significant shift in that position. The final orders made by consent provide for the applicant to have sole parental responsibility for the children and for them to continue to live with her. Further, it was agreed between the parties that the father should spend no time with the children, albeit that he will be permitted to send them cards, letters and gifts on no more than four occasions per calendar year.
Similarly, orders were made providing the mother the opportunity to send the children cards, letters and gifts up to four times per year. In addition to that order, the mother sought an order that she spend time with the children as follows:-
That the mother spend time with the children on four occasions per year at K Contact Centre or other agreed agency providing professional supervision services, at times and on dates as agreed between the applicant and the mother and the professional supervisory agency.
The applicant and the ICL opposed an order in those terms. It is their position that the mother should spend no time with the children.
In addition to that order, all parties agreed that an order should be made restraining the mother and the father from commencing proceedings without leave of the Court. The position of the applicant and the mother is that such injunction should be unlimited. The father’s position is that the operation of that injunction should expire after five years.
LEGAL PRINCIPLES
Section 60B(1) sets out the objects of Part VII of the Act, to ensure the best interests of 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.
Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):-
(a)children have 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)children have 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 children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The parties in this matter seek parenting orders as defined by s 64B of the Act. That is, they seek orders with respect to:-
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons; and
(c)the allocation of parental responsibility for a child.
Each of the parties has standing to apply for such orders in accordance with the provisions of s 65C of the Act; the mother and the father as parents and the applicant as a grandparent.
In deciding a particular parenting order, the best interests of the child is the paramount consideration (s 60CA of the Act). Section 60CC(2) and (3) of the Act set out the primary and additional considerations the Court must have regard to in determining what is in the children’s best interests. The Court must give greater weight to the need to protect the children from physical or psychological harm from being exposed to abuse, neglect or family violence (s 60CC(2)(b)). Otherwise, there is no requirement for the primary and additional considerations to be considered in a particular order or for any of those considerations to be afforded greater weight than others. Ultimately, the weight to be given to each of the considerations will depend upon the unique circumstances of each case.
As to the manner in which the Court is to take those considerations into account, May and Thackray JJ stated in Mulvany & Lane (2009) FLC 93-404 at paragraph 76-77 as follows:-
It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis in original)
There is a presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility (s 61DA of the Act). The presumption relates solely to the allocation of parental responsibility as defined by s 61B to comprise all the duties, powers, responsibilities and authority which, by law, parents have in relation to a child. I am satisfied that in this case the presumption is rebutted and that it is in the children’s best interests that the applicant have sole parental responsibility. This was acknowledged by the parties in the minute of proposed consent order tendered to the Court.
Given that position, I need not consider whether it would be in the children’s best interests and reasonably practicable for them to spend equal time or substantial and significant time with each party (s. 65DAA of the Act).
THE EVIDENCE
Findings are made on the balance of probabilities, having regard to the evidence. In applying that standard, the Court must consider the nature and subject matter of the case and the gravity of the matters alleged (Evidence Act 1995 (Cth), s 140). In what follows, statements of fact constitute findings of fact.
I have read all documents upon which the parties have relied and the exhibits tendered during the hearing. I have also had the benefit of observing the appearance and demeanour of the parties when giving evidence in Court.
In making my findings I have given careful consideration to all of the evidence, the nature of the proceedings, the seriousness of the allegations made and the consequences that flow from those findings.
The Applicant
The applicant was an impressive witness, making concessions where appropriate. Throughout her evidence, the applicant was child-focussed and insightful as to the children’s differing needs.
At times, the applicant appeared exhausted by the Court processes; she gave evidence as to the impact of the ongoing proceedings on her and the children. She described the numerous actions taken by the mother and the father against her, including complaints made to Worksafe in relation to the business in which she works, reports to DHHS and applications for intervention orders. Notwithstanding the burden those proceedings placed upon her, it was evident that her commitment and dedication to the care and protection of the children was unwavering.
The applicant had a detailed understanding of the needs of each of the children and has been proactive in ensuring that they had appropriate supports when placed in her care.
For example, both E and F had speech delays when they were initially placed in her care. The applicant has had E assessed and he has been diagnosed with an auditory processing disorder for which he is receiving treatment.
Assessment has confirmed that neither E nor F have intellectual disabilities. However at the time they were placed in the applicant’s care, their functioning was well behind that of their peers. The applicant confirmed that the children have made significant progress with their schooling and are progressing well, at a standard appropriate to their ages.
The Mother
The applicant’s case was opened on the basis that there should be no change to the children’s current living arrangements. It was submitted that the children’s lives when living with the mother and the father in Queensland were chaotic and dysfunctional, with regular attendances by police and child protection to their home as a result of the inability of the mother and the father to appropriately care for the children. Although the mother denied the applicant’s allegations in her trial affidavit, during the course of cross-examination, the mother conceded that when in her care, the children were exposed to:-
·Physical and verbal altercations between the parents;
·The parents using foul language towards each other;
·Police attendances at the parties’ home on numerous occasions;
·The father smashing a window, causing glass to shower over the bed whilst the children and the mother were on it;
·The mother and the father smoking marijuana in the home;
·The mother smoking marijuana with the child B;
·The father physically abusing B by throwing him backwards into a wall;
·The mother obtaining intervention orders against the father for her protection and that of the children;
·On occasions, the mother calling the police to the home to remove the father as a result of the father’s violence towards her and the children. The mother also acknowledged that notwithstanding the father’s violence towards her and the children, she had allowed the father to return to the home.
During her oral evidence, the mother conceded that she had spent no time with the children since April 2019. She also conceded that she had had the opportunity to spend supervised time with the children but had not availed herself of that opportunity.
The mother also conceded that she had not sent gifts or cards to any of the children to acknowledge their birthdays or Christmas since 2017.
The mother acknowledged during her oral evidence that she had made multiple reports to WorkSafe and the DHHS regarding the business operated by the applicant’s son and the applicant’s care of the children. The reports to the DHHS by the mother included claims that:-
·The children were left unsupervised at the library;
·There were mice infesting the applicant’s kitchen;
·The children were subjected to emotional abuse in the applicant’s care;
·The child E had been taped to a chair.
None of those complaints were substantiated by the Department.
During her oral evidence, the mother confirmed that the 2018 orders made by consent provided that the father’s time with the children was to be supervised and that he was not permitted to live in her household. The mother conceded during cross-examination that notwithstanding those orders the father did attend her home whilst the children were in her care. Her justification for admitting the father to the home was that the children were in bed. The mother conceded that she had breached the 2018 orders. The mother also conceded that the orders prohibiting the father from living in her household were made as a result of the level of domestic violence that had been perpetrated by him towards her and the children.
The mother also conceded that she had not attended intensive parenting programs as had been recommended to her by the DHHS.
Having regard to the mother’s evidence, I am satisfied that she does pose a risk of physical and psychological harm to the children and there is a need to protect the children from that harm. The evidence of the mother supports a finding that when in her care, the children were exposed to family violence perpetrated by both she and the father and the use of illicit substances. Further, I am satisfied that the children were neglected when in her care.
As a result of the mother’s inability to act protectively of the children, her relationship with them has been fractured.
I am also satisfied, having regard to her evidence that the mother has failed to pursue a meaningful relationship with the children. When provided with the opportunity to spend time with the children on a supervised basis, the mother has not availed herself of that opportunity. Further, the mother has not sought to communicate with the children, whether by letter, card or gift.
Throughout her evidence, the mother demonstrated little insight or understanding as to the impact of her behaviour upon the children.
Throughout her evidence, the mother appeared more focussed on the dispute with the applicant, her mother, rather than on the needs of the children. The mother appeared to prioritise her pursuit of that dispute over and above any action that might enhance or promote the opportunity of a relationship with the children. In my view, the numerous complaints made by the mother or her agents to DHHS and WorkSafe and seeking family violence intervention orders against the applicant (notwithstanding the fact that she had little or no contact with the applicant and this Court was seized of the parenting proceedings) is evidence of the mother’s pursuit of conflict with the applicant. My impression was that the mother’s pursuit of those matters was of greater importance to her than the needs of the children.
The Father
The father was an equally unimpressive witness. Throughout his oral evidence he was highly critical of the applicant, alleging that she had brainwashed the children against him. As to his own capacity as a parent, the father perceived himself as a good father, noting that he was “always there” for the children.
When presented with allegations regarding incidents of family violence alleged to have been perpetrated by him against the mother or the children, the father was often evasive, either denying those allegations or refusing to admit them. Only when presented with independent evidence of such events did he make any concession.
During the course of cross-examination, the father conceded that there had been family violence between himself and the mother which had occurred in front of the children. The mother’s explanation for the father’s conduct was that he was taking steroids for treatment of a medical condition which impacted his behaviour. The father agreed that he had been taking such medication, that the period in which he took that medication had been the worst part of his life and that the Queensland medical system, presumably the agency responsible for issuing prescriptions for that medication, had let him down. Seemingly, it was the father’s position that the medication was to blame for his violent conduct towards the mother and the children.
Initially when cross-examined as to his attempt to suicide whilst driving, the father stated that he could not recall saying he wished to kill himself. He did not recall hitting a wall or the circumstances of the motor vehicle accident. However later in the cross-examination when presented with the Emergency Examination Order (Exhibit ICL-2) in relation to those events, the father admitted that he was alcohol-affected, that his motor vehicle had significant damage at the front, that he was punching a brick wall and that the police were concerned that he would suicide in front of the mother and the children.
Similarly, when presented with the domestic violence application dated 14 June 2015 (Exhibit A-8), the father conceded many of the allegations contained therein. For example, in that document it is alleged:-
The [father] and [mother] have had a verbal argument over various issues within their relationship. During this argument the [father] has become highly agitated and began swearing at the [mother]. The argument has continued to escalate, the [father] has thrown Apple Juice around the house and ripped the curtains in the living room.
When those matters were put to the father he conceded those events save that he stated that it was milk and not apple juice he had thrown. The father agreed that he had been asked to leave the home by the mother, that he left and later returned via the back door.
Upon returning to the home, it is alleged that the father slapped and choked the mother. Again the father did not deny that allegation, save that he stated that the physical altercation did not occur in that context. He stated that he had pushed the mother and “ended up on top of her”. He further stated that the argument ceased when the child B walked past. It is alleged in the domestic violence application that in fact B attempted to intervene and pull the father off the mother and that the father grabbed B by the shirt and threw him backwards into a wall. The father did not deny that allegation.
The father was also cross-examined in relation to his alleged contravention of the family violence orders that occurred on 19 and 20 December 2016. Many of the matters alleged in relation to those breaches were denied by the father in his trial affidavit. However, when presented with the Court brief in relation to those matters (Exhibit A-10), the father conceded many aspects of the alleged breaches. For example, he conceded that he attended the mother’s home at approximately 3.15am on 20 December 2016. He also conceded that he had been aggressive towards the mother and the children. The father could not recall whether he had called the children into the garage at the property and threatened to take their bikes or invited the children to come with him stating that the mother is poor and has no money. The father did admit grabbing a knife from the garage but could not recall stabbing the end of the mother’s bed with that knife.
The father conceded that he had smashed the mother’s bedroom window, showering the mother and the children with broken glass. He denied that this had caused a cut to one of the children’s legs, instead stating this was a small scratch treatable with a Band-Aid. He stated that he did not know what he was thinking at the time.
Having regard to the father’s evidence, I am satisfied that he has perpetrated family violence against the mother and the children. Further, given the mother’s account of the events of 19 and 20 December 2016, which are consistent with the allegations contained in the Domestic Violence Application, I am satisfied on the balance of probabilities that the father did physically and verbally abuse the mother in the presence of the children as alleged in that application. During his oral evidence, where concessions were made by him in relation to his violent conduct, at all times the father sought to minimise that conduct and its impact on the children.
During cross-examination by counsel for the ICL, the father conceded that he does not pay child support for the children. He acknowledged that the children had been exposed to his use of illicit drugs and domestic violence in his care.

The father also conceded that he had problems with alcohol over the years but denied currently having issues with alcohol. The father admitted that he continues to use marijuana and that he uses it with the mother. The father also admitted to using it in the household in which he lives with B.
The father also conceded that the children had engaged in criminal damage to a neighbour’s property when in the care of the mother and him. He also acknowledged that the children had witnessed him being assaulted by a neighbour in June 2016 and admitted that that event would have been frightening for the children.
The father was an evasive witness. The evidence of the mother coupled with the father’s own admissions satisfies me that he has perpetrated significant family violence over a prolonged period of time and that the children have been exposed to, and on occasion victims of, physical and verbal abuse at his hands. It was only when presented with independent evidence of such conduct that he was prepared to make concessions as to his aberrant behaviour.
The father demonstrated little insight regarding the impact of his behaviour upon the children.
Ms M
Ms M is a psychologist and family dispute resolution practitioner. She was engaged as a family consultant in the Melbourne registry of the Family Court between 2011 and 2020. Since that time, she has been in private practice as a family dispute resolution practitioner. There was no challenge to Ms M’s professional qualifications.
Ms M has prepared a series of assessments and reports in this matter, as follows:-
·Family Report dated 11 July 2018 (“the First Family Report”);
·Children and Parents Issues Assessment dated 13 November 2018;
·Family Report Dated 23 July 2020 (“the Second Family Report”); and
·Addendum Report dated 22 March 2021 annexed to her affidavit filed 14 April 2021 (“the Addendum Report”).
In her role as family consultant and family dispute resolution practitioner, Ms M has had the opportunity to interview the parties and the children on 4 and 5 July 2018, 13 November 2018, and by telephone on 14 July 2020. Accordingly, Ms M has had the advantage of observing the children and the parties over an extended period of time.
Since the commencement of her involvement in this matter, Ms M has expressed significant concerns as to the impact of the behaviours of the mother and the father upon the children. She has consistently expressed a view that the children should live with the applicant. She has expressed reservations as to whether the children should spend time with or return to the care of the mother and the father.
For example, in the first family report, dated 11 July 2018, she observed of the mother and father as follows:-
181. [The mother] and [the father] may picture themselves as loving parents, but that does not appear to have been their children’s experience. As adults they were locked in an exclusive, passionate and abusive relationship fuelled by alcohol and drugs in an environment where their capacity to nurture and protect children was at best marginalised. Much is made of [the father]’s capacity for physical abuse, but both parents have acted in concert, as [the mother] has failed to protect the children from the excess of either parent. It is telling that [the mother] seeks Police assistance when [the father] attacks her, but pushing B into a wall, or, for either parent, unrestrained hitting of the children is not for them a drama that warrants intervention and hints at their inability to discriminate.
182. [The mother] and [the father] deal with the allegations by making derogatory claims about [the applicant] and responding to issues through obfuscation, minimization and denial…Neither parent has displayed responsible behaviour nor have they endeavoured to demonstrate any child-focus and their explanations for events range from the implausible to [the father]’s ludicrous claim of “…falling through a window”. It would appear that each parent lacks the capacity to parent, they are not attuned to their children’s needs, they cannot view events from any perspective other than own and they display little interest or empathy in relation to the lives of their children.
At paragraph 188 of the first family report, Ms M observes of the children as follows:-
[The children] have developed without consistent, nurturing adult attention from their parents. There appears to be a diminution in the emotional connection between the parents and the children and there is no observed physical affection between them and the children attempt to maintain physical distance most notably from [the father]. The children appear to have learnt their parents are not their safe haven, that they cannot rely upon [the mother] or [the father] to either assist them in a time of need, or to be proactive and protective of their welfare.
At the conclusion of the first family report, Ms M recommended that should the Court determine the applicant and the parents are unable to communicate and co-operate about long term issues with regard to the children, then it may be considered appropriate that the parent or grandparent best able to facilitate a relationship with the other, and able to make decisions in the children’s best long-term interests, have sole parental responsibility. Further, she recommended that the children live with the applicant and that the children not be given the opportunity to spend time with or return to the mother and the father’s care.
Ms M conducted a further assessment of the family following the final orders made in July 2018. Ms M met with the children on 13 November 2018 for the purpose of a Children and Parents Issues Assessment.
Little had changed in terms of Ms M’s assessment of the children and their relationships at the time of the preparation of that assessment. She observed of the children and their relationships as follows:-
58. The overwhelming issue is the picture of 5 traumatised children, including E who cannot speak for fear of upsetting [the mother] and who actively does not want to upset [the applicant]; D who cannot accommodate the actions of either of his parents towards his siblings or their behaviours to his grandmother; C and B whose trauma experience has been previously reported but the children identify they are allowed no relief or recovery space and F, the shock report in this family, whose issues are subtle and deeply concerning and who wishes to leave her mother at an age and stage children normally cleave to their mother’s side.
59. A concern of singularity is the immediacy of the older children’s connection and bond with the [the applicant] which has been replicated by the younger children. This capacity to engage with and rely upon an adult, largely unknown to the children, implies the extent of the trauma to which the children had been exposed to by [the mother] and the [father].
Ms M again assessed the parties for the preparation of the Second Family Report dated 23 July 2020. Due to the impact of the COVID-19 pandemic, Ms M conducted interviews of the parties and the children by telephone on 14 July 2020 for the preparation of that report.
At interview, D E and F each expressed to Ms M in the strongest terms that they wished to remain living with the applicant, that they did not wish to see or spend time with the mother and the father and that they were fearful of their older brother, B. At the time of that report, disclosures had been made by C, D and E that B had sexually abused them.
Ms M was equally as critical of the mother and the father as she had been in the earlier reports. She observed of the parents as follows:-
158. …[The parents’] only focus is their own gain, besting the system and not being held accountable for their behaviour. Neither [the mother] nor [the father] express any concern or empathy for the children, even electing to disappear from the lives of the children for a significant period of time only to reappear and manifest turbulence. They are not child-focussed nor have they capacity to be attuned to the needs of the children and they have demonstrated no interest in parenting and managing inappropriate behaviours.
…
163 C, D, E and F retain their view that life is better with [the applicant], she is present and supportive she assists them when they need help, she is present in their lives. D has noted the difficulty for B adjusting to rules and boundaries, but he and his siblings are clear life is better without the disruptions and abuse generated by B.
Further, in relation to the applicant, Ms M observed at paragraph 165 as follows:-
The only party here who genuinely cares for these children has been [the applicant] who has attempted, at considerable financial and emotional cost to herself, to support and care for these children. That her household is tainted by the abuse that lives through these children is an issue she grapples with, on a daily basis, and despite all, she maintains her sympathetic view of the children and a preparedness to soldier on.
In conclusion, Ms M made a series of recommendations with respect to future parenting arrangements, including that:
·D, E and F remain in the care and control of the applicant and that she should have sole parental responsibility for them; and
·That the mother spend supervised time with the children no more than four times annually at a professionally supervised children’s contact centre.
Ms M prepared an addendum to that report, dated 22 March 2021. Ms M was requested to consider the contents of the DHHS s 69ZW report dated 2 December 2020 for the purposes of the preparation of her addendum report.
Having reviewed all of the updating material, Ms M identified a range of risk factors for the children at paragraph 33 of her addendum report. Those risks identified included:-
·Being victims of physical violence perpetrated by the father and the mother, being exposed to the physical violence of others and being subject to emotional neglect, verbal abuse and denigration by both parents ;
·Current allegations of family violence and the alleged and repeated sexual assaults of C, D and E perpetrated by B;
·The exposure of the children to parental substance abuse both illicit substances and excess alcohol consumption;
·The actions of the parents in minimising any concerns raised including their parental substance abuse;
·The loss of a childhood experience for each child;
·The pattern of the mother and the father not being compliant with Court Orders and seeking to obfuscate their own behaviour by actively encouraging the children to be disruptive and difficult towards the applicant;
·On-going demonisation of the applicant by both the parents that reflects a determination not only to undermine the applicant but to damage her business interests;
·The children appear to have been held accountable by the mother and the father for the litigation and are encouraged to vary/retract their statements and to leave the applicant’s care.
Having identified those risks, Ms M made a series of recommendations, including that if the Court’s findings confirm the children’s experiences, then the children should remain living with the applicant and spend time with the mother and the father four times annually, supervised at a professional facility.
Ms M was cross-examined by counsel representing each of the parties in relation to her reports and recommendations.
During her oral evidence Ms M confirmed that she had had the advantage of a longitudinal view of the family in preparing her assessments. She confirmed that initially she held some optimism that the children could be returned to the care of the mother. That optimism was based on representations made by the mother that she intended to relocate to Victoria from Queensland, that she was prepared to live near the applicant and that she had ceased her relationship with the father and no longer used illicit substances. However, with the passage of time that optimism has evaporated.
Ms M confirmed that initially her view was that the children’s best interests would be served by trying to foster a cooperative relationship between the applicant and the mother in the absence of the father. However, Ms M observed during her oral evidence that the animosity between the parties is now entrenched. She noted that the applicant’s positon has always been that she was stepping in to assist the parties and that the goal had been some form of family reconnection. Ms M observed the malice of the mother and the father towards the applicant and their determination to ‘ruin her life, ruin her business, to see her in jail’. As to the relationship between the adults, she noted that:-
It’s absolutely toxic, and I can’t see how there would be any change from that position, and that’s very sad.
When questioned as to the impact upon the children of being caught in the midst of the conflict between the applicant and the mother and father, Ms M observed that the research-based view is that it is helpful for children to have the option of contact, however infrequent, with their parents so that they can maintain some connection. However, given the level of toxicity in the relationships between the adults in this case, and her view that the children are manipulated by their parents as go-betweens to effect violence on the applicant, Ms M observed that even the most minimal connection between the parties was problematic.
As to the impact upon the children of not seeing their parents, Ms M observed:-
My concern, of course, is if the children don’t see their mother and father that they might feel some sense of abandonment, but these children have not lived the life of ordinary children, and at no stage have they said they want contact with [the mother] and [the father], that their positons have been strongly opposed to that.
Ms M was questioned as to the proposal advanced by the mother and father that all children live together in the parents’ household, with B. Ms M confirmed her view that in circumstances where B is a person who has committed sexual offences against the other children, they could not live in the same household. She added that the children view B as obstructive and difficult and that he was a major source of problems within the household. She confirmed that the children had expressed the view that they did not wish to live with B. It was Ms M’s view that it would be “absolutely unacceptable in terms of [the children’s] health and well-being” to live in the one household with B.
During cross-examination by counsel for the applicant, Ms M confirmed her view that the mother and the father are not focussed on the welfare of the children and are not attuned to the needs of the children. She also confirmed that the children’s perception is that their parents are not interested in them.
In contrast, Ms M observed that the children view the applicant as the only party who cares for them. She noted statements by the children that the applicant “tucks me into bed”, “bought us toothbrushes”, and “asks us about our day”. Whilst these are very simple things which most children take for granted, it was Ms M’s assessment that such actions for these children are a measure of the care shown by the applicant.
Ms M was frank in her assessment of the father as “a vulgar trickster; a family violence perpetrator”. She recounted the father’s denial to her as to his use of drugs in contrast with the reports of the children of the presence of cannabis in the household, the regular use of bongs and the use of the drug “Ice” by their parents. She also recounted the description by the children of their trauma when the father broke into the property, breaking a window and stabbing a knife into the bed. Ms M noted that the father does not take responsibility for his behaviour.
Counsel for the applicant questioned Ms M in relation to her assessment at paragraph 171 of the second family report that “the matter will never resolve whilst [the mother] and [the father] continue to have access to the children”. Ms M confirmed that view.
Counsel for the mother invited Ms M to comment on the risks posed by the parents to the children. Ms M responded as follows:-
I think their risk is not identical. It’s different. But each poses a risk. So whilst [the father] may be more physically abusive, [the mother] is more psychologically abusive.
When challenged as to whether the children were at risk of physical harm by their parents, Ms M expanded, stating:-
…It’s not about whether they got hit on a Tuesday and not on a Wednesday. The problem for these children was that their parents’ moods were unpredictable and irrational. They lived in a state of fear. They had no resources to rely upon. It was traumatic for these children. And I can’t draw apart the extent of these children’s experience of trauma, only to say that both parents perpetuated this on the children. And [the mother] had ample opportunity to be protective and intercede on behalf of the children, and they report she did not.
When questioned further as to her concerns regarding the mother, Ms M confirmed that her primary concern was not direct violence, but that the mother over-prioritised her relationship with the father. She noted that anything in relation to the children diminished in importance for the mother as compared to meeting the father’s needs. Ms M noted the mother put no boundaries around the father’s behaviour towards the children and she did not leave the father, despite the serious displays of family violence perpetrated by him against both her and the children.
Counsel for the mother continued to press Ms M as to whether or not the children had been subject to violence at the hands of the mother. Ms M responded that she was aware of issues where C had attended school with bruising. However, Ms M was firm in her view as to the children’s exposure to family violence. She stated:-
…You talk about physical violence. That’s not what family violence is. Family violence is a constellation of behaviours to which the children were exposed and I have made the point that I think that [the mother] punishes indiscriminately …she physically punishes the children. But her role is in psychological and emotional abuse. She demeans them, she calls them names. C reported that…she calls them names, she creates arguments, and she tells them they’re worthless. That’s incredibly damaging.
Counsel for the father cross-examined Ms M as to the prospects of the father and the mother changing their behaviour, so as to have the possibility of a restoration of their relationship with the children. Ms M was extremely pessimistic of any prospect for change in either parent. She observed that both the mother and the father have repeatedly engaged in denial or minimisation of the extent of violence within their home. Ms M noted during her oral evidence that “denial and minimisation and excuses are the stock-in-trade” with respect to the father and the mother’s responses to allegations of violence. Ms M confirmed that there was no evidence at all of any change within the father or the mother; quite the contrary given the behaviour by them towards the applicant and the engagement of B in this behaviour.
Ms M’s impression of the circumstances in the home of the mother and father was that the children’s experiences “must have been horrific”. In support of that view she noted that when she first interviewed F, then aged four years and six months, F was clear in her position that she did not want to be with the mother, that she did not want to return to the mother’s home and that she wanted to be with her grandmother, whom at that point, she had had little contact with.
As to the possibility of the children having a relationship with the parents at this time, Ms M expressed significant reservations. She noted that the children view the mother and father as “dangerous and violent”. She noted that “no child wanted to have a relationship in an ongoing fashion with either their mother or their father”. Ms M considered that maybe when they are older, and the children are capable of regulating their own comings and goings and can manage their responses, they may be able to have a relationship of some sort with their parents. However, Ms M expressed concern as to the resumption of such relationship at this time, given what has occurred with respect to B and C, who have been heavily influenced by the mother and the father.

Ms M confirmed that it was her view that the children are entitled to at least a period of time in their formative years where they may have peace and opportunity to learn social norms and regulate their behaviour without the influence and undermining behaviour of the mother and the father.
Ms M was asked questions regarding her recommendation that the children spend time with the parents four times per year on a professionally supervised basis. She was asked what benefit such time would be to the children given her evidence as to the negative influence and impact of them upon the children. Ms M conceded that it was a struggle to see what benefit such limited time would have for the children. She observed that she was “the optimistic consultant” and noted that if there was a possibility of maintaining some connection with the parents she believed that would be helpful for the children. She noted that the benefit to the children of that arrangement was that it would avoid creating a yearning or longing in the children to see their parents. It was her view that it may be better for the children to be able to see their parents on a limited and supervised basis to enable them to have a connection with the parents if they wish.
Ms M was questioned as to the possibility that such visits could be disruptive to the children. Ms M conceded that such arrangement could be disruptive to the children and noted that any time would have to be very closely supervised. She cautioned that there could not be any discussion about the children’s living conditions or the grandmother and that the conversation between the parents and the children could only be at a superficial level. She conceded that there would only be limited psychological benefit to the children of such contact, so as to provide confirmation that they still have a parent.
Counsel for the ICL questioned whether that type of connection could be maintained through cards and letters. Ms M conceded that the connection could be maintained in that manner and that it would probably be less disruptive to the children.
Ms M was also asked what the impact upon the children would be if the arrangements for supervised time, albeit on such a limited basis, did not occur. Ms M conceded that that risk “bothered” her. She noted that the parents previously had had opportunities to have supervised time and that they had not availed themselves of those opportunities. She also noted the failure of the parents to avail themselves of the opportunity of telephone communication with the children, notwithstanding orders enabling them to have regular telephone time. She conceded that there is no sense that the parents will actually comply with a supervision order. Ms M conceded that if the Court finds that orders for supervised time are likely to be too disruptive for the children, she would support orders that the parents provide to the children cards or letters, with the applicant to vet that communication.
Ms M’s assessments and reports were detailed and thorough. She was a forthright witness who provided thoughtful and frank responses to the matters put to her during cross-examination. I found Ms M’s evidence to be helpful, concise and cogent. Ms M’s evidence, which I accept in its totality, was of great assistance to the Court.
SECTION 60CC CONSIDERATION
Primary Considerations: Section 60CC(2)
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
Ordinarily, it is in a child’s best interests to have a meaningful relationship with both parents. The question of what is a meaningful relationship was considered by Brown J in Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At paragraph 26 of that judgment Her Honour concluded that a meaningful involvement is one which is important, significant and valuable to the child.
In McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 the Full Court considered the interpretation of s 60CC(2)(a) of the Act and concluded that:-
119. … the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents ...
…
122. In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
(Original emphasis)
At issue is whether there is any benefit to the children in attempting to frame orders so as to maintain a meaningful relationship with the mother and the father in circumstances where the evidence of the mother, the father and Ms M is that the children have been exposed to significant family violence and neglect in their care. Further, Ms M reports that the children strongly oppose spending any time with their parents. Previously when orders have been made for the parents to have supervised time with the children, to have the opportunity of communicating with them by telephone and to send them cards and gifts, the parents have failed to avail themselves of those opportunities.
Given the father has conceded that there should be no orders for him to spend time with the children, it is implicit that he recognises that there is no benefit to them in maintaining a relationship with him. The issue for determination is what benefit, if any, there is to the children in making orders as sought by the mother.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
The evidence that the children have been subjected to neglect, physical, verbal and psychological abuse at the hands of the mother and the father and further, that they have been exposed to family violence as between the mother and father, is overwhelming. The mother made many concessions during cross-examination to that effect. Similarly, the father made concessions in relation to allegations of family violence which were the subject of police reports and investigations.
The evidence of Ms M, which I accept, is that the children reported to her many instances of their exposure to violence and abuse by the mother and the father.
Having regard to that evidence, I am satisfied that there is a need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence by the mother and the father.
Additional Considerations: Section 60CC(3)
(a)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;
All of the children have expressed in the strongest terms their desire to spend no time with the mother and father and to continue living at the home of the applicant, their maternal grandmother. Those views have been consistently expressed by the children across both Family Reports, in July 2018 and July 2020.
D’s views are set out at paragraph 140 of the second family report. Ms M notes there as follows:-
D, as is his style was more modulated in his response, he explained that [the mother] and [the father] “…didn’t give us a good life, we didn’t have toothbrushes, the house was not clean, food was not good” and he reiterated his experiences of and witnessing family violence in that household. By contrast “…it is really nice living with grandma, we get the necessities and when she can, we get what we want, she helps us instantly and helps us with our learning, and she doesn’t hit us.”
When asked whether he wished to see his parents, Ms M reports at paragraph 146 of the second family report that he responded, “no thank you, I do not wish to see mum or Mr Calder [the father].”
Ms M reports as to E’s views at paragraph 149 of the second family report. She reports:-
E doesn’t want to see his mother as “…she only says nasty things about grandma” and he does not wish to see [the father] “…because I don’t like him and I only want to be with grandma.”
F’s response to the proposal of spending time with her parents was set out at paragraph 152 of the second family report. Ms M reports there as follows:-
F explained she “…was worried about going to mummy, because E’s there and he hurt me in Queensland” and she described in graphic detail how “…scared” he made her and spoke about him bruising her. F simply said “…no thank you I don’t want to see Mr Calder [the father].”
As to the mother, Ms M reports at paragraph 153 as follows:-
F resisted the idea of seeing her mother and explained she “…would see her at Court” recalling the interview and observation 2 years ago, and F was insistent that this limited time with her mother would satisfy her as “…I like to see mummy at Court” because then she “…is safe” because “…there are other people and mummy is nice then” and like her siblings F paints the picture of the manipulative chameleon-like mother.
Ms M’s assessment, confirmed during cross-examination, is that the children were expressing views of their lived experience of life with the mother and father. She rejected the proposition that they had been subject to influence or coaching by the applicant.
I accept Ms M’s evidence as to the children’s views and as to her assessment of the validity of those views.
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The evidence of Ms M, which I accept, is that the children have formed a strong attachment with the applicant and wish to remain in her care.
The relationship between the children and their mother and father is fractured. Neither parent has spent any time with the children or communicated with them, whether by telephone, card or gift, since at least 2019.
The children have expressed in the clearest of terms that they do not wish to spend time with the mother and the father. The evidence of Ms M is that those attitudes have been formed as a result of the children’s lived experience of family violence and neglect in their parents’ care. I accept that evidence.
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
Notwithstanding orders made permitting them to spend supervised time with the children, neither the mother nor the father have availed themselves of those opportunities since 2019. Similarly, neither the mother nor the father have communicated with the children by telephone or sent them cards or gifts.
The children have lived with the applicant since 2018 and she has been responsible for all of their physical, intellectual and emotional needs during that time.
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The applicant has been wholly responsible for the financial support of the children since they were placed in her care. The mother and father pay no child support for the children.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The children have spent no time with the mother or the father since early 2019. The evidence before the Court is that there is likely to be little benefit to them of any change in that arrangement. Indeed the evidence of Ms M, which I accept, is that were orders made for the children to spend time with the mother, it is likely that they may experience significant disruption.
The children’s lives in the care of their parents were highly dysfunctional. The children were exposed to their parents’ violence, neglect, use of illicit substances and, as a result, regular attendances by police and protective services. The children’s health and educational progress was compromised as a result of these factors. Since the children have been in the care of the applicant, they have had the opportunity to live in a settled and nurturing environment, where there is routine and discipline. The evidence before the Court is that the children are thriving in that environment; their individual health needs are being met and they are now progressing well at school. Having regard to the children’s history with their parents and the gains they are making in the applicant’s care, I am satisfied that it would be contrary to their best interests to make any orders which may disrupt or compromise their progress.
At this time, having regard to the evidence of Ms M as to the potential risk of disruption to the children were I to make orders for them to spend time with the mother, I am not persuaded that such an order is in the children’s best interests.
I have made orders permitting the mother and the father to communicate with the children by way of card and gift. It is to be hoped that they will avail themselves of the opportunity to maintain a connection with the children through that means. As has been contemplated by Ms M it may be that if that connection is maintained, the children will seek the opportunity of a relationship with the mother and the father in the future.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
Given that there will be no order for the children to spend time with the mother this consideration is not relevant.
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
I am satisfied that the applicant has shown dedication and commitment to the children. She has provided for all of their physical, emotional and intellectual needs since they commenced living with her in late 2018. She has prioritised the needs of the children, at times to her own detriment.
In contrast, neither the mother nor the father have demonstrated any capacity to appropriately care for the children. As I have found earlier in this judgment, when the children were in their care, they were exposed to violence, abuse and their parents’ abuse of alcohol and illicit substances.
The evidence of Ms M, which I accept, is that the mother has prioritised her relationship with the father over the needs of the children. The mother has used cannabis with her eldest child, B, and both parents conceded their continue use of cannabis in the household they share with B.
Throughout their evidence the mother and the father lacked insight as to the impact of their behaviour on the children.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
To the extent these matters are relevant they are addressed earlier in the judgment.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
These matters are not relevant to the issues in dispute.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
To the extent these matters are relevant they are addressed earlier in the judgment.
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
I have addressed issues of family violence earlier in this judgment.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The children have been the subject of litigation in this Court since 2017. Although final orders were made in respect of the three eldest children on 31 July 2018 and interim orders relating to the two younger children on 1 August 2018, the matter returned to court some two months later as a result of the ongoing conflict between the parents and the applicant. In addition to these proceedings, the children have been the subject of notifications and investigations by DHHS. Since the commencement of these proceedings in October 2017 there have been no fewer than four reports to DHHS regarding concerns for the children’s welfare.
I am satisfied, having regard to the evidence of the mother and the father, that their lives with the children in Queensland were at times chaotic. The children’s lives with the mother and the father were marked by violence, neglect, the involvement of police and protective services, exposure to alcohol and drug abuse and conflict with their neighbours. As a result, the health and well-being of the children was compromised.
The evidence of the applicant indicates that the children have now enjoyed a period of relative stability. Their health needs are being attended to and they are making good progress at school.
It appears to be common ground between the parties that it is in the children’s best interests that there be an end to the proceedings. The parties join in asking the Court to make an order restraining the commencement of proceedings without leave first being obtained from the Court.
(m) any other fact or circumstance that the court thinks is relevant.
There are no other relevant facts or circumstances.
CONCLUSION
I have made orders that the applicant have sole parental responsibility for making decisions regarding the long-term care, welfare and development of the children. I am satisfied that such an order is appropriate having regard to my findings with respect to the children’s exposure to family violence and neglect in the care of the mother and father. Further, I am satisfied that that order is necessary, given my findings as to the high level of conflict between the applicant and the mother and the father.
It is also common ground between the parties that the children should continue to live with the applicant. Given my earlier findings as to the need to protect the children from harm, the children’s views and the capacity of the applicant to care for the children, in contrast to my findings as to the capacities of the mother and father, I am satisfied that such an order is appropriate and in the children’s best interests.

The father does not seek any orders that he spend time with the children. Given my findings in relation to his conduct, coupled with the evidence of Ms M as to the children’s views, the father’s attitude and lack of capacity to care for the children, I am satisfied that there should be no order for him to spend time with the children.
The mother seeks an order that she be permitted to spend time with the children on four occasions per year, such time to be supervised at a contact centre. That application is opposed by both the applicant and the ICL.
Having regard to Ms M’s evidence as to the potential disruption to the children were I to make such order, I am not persuaded that it is in their best interests for them to spend time with the mother. That view is bolstered given the mother’s history of failing to engage with the children. As noted earlier, previous orders have provided for her to spend supervised time with the children. The mother has not spent time with the children in accordance with those orders. Further, the mother has not provided cards, letters or gifts to the children for some years, nor has she communicated with them by telephone. Given that history, I am not persuaded that there is any benefit to the children in making further orders for supervised time.
Ms M was clear that were supervised time to be ordered, it would need to be tightly monitored to ensure the mother did not undermine the applicant’s role in the children’s lives; she confirmed that such time would be superficial and limited. Having regard to the risk such time poses to the stability the children now have in the applicant’s care, I am not satisfied that the orders sought by the mother in relation to her time with the children are in their best interests.
I have made orders by consent permitting the mother and the father to forward to the children letters, cards and gifts on up to four occasions annually. Provided that the mother and the father comply with that order, it will provide them with an opportunity to maintain a connection with the children. The evidence of Ms M indicates that in maintaining a connection in that manner, it will be open for the children to engage with their parents in the future, should they choose to do so.
SHOULD THERE BE ORDERS RESTRAINING FURTHER PARENTING APPLICATIONS?
The applicant sought an order in the following terms:-
The mother and father are prevented by injunction from making any application in this Honourable Court without prior leave of this Court.
The mother consents to an order in those terms and the ICL supports it. Counsel for the father indicated that he would be agreeable to an order in those terms, albeit only for a limited period of five years.
It was conceded by all parties that the current proceedings brought by both the mother and the father were not frivolous or vexatious. As a result, the parties did not rely upon s 102QB of the Act in support of their application that the Court make an order restraining the mother and the father from instituting further proceedings.
In seeking the restraint on the mother and the father, counsel for the applicant sought to rely upon s 68B of the Act, which provides as follows:-
68B Injunctions
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a)an injunction for the personal protection of the child; or
(b)an injunction for the personal protection of:
(i)a parent of the child; or
(ii)a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv)a person with whom the child is to communicate under a parenting order; or
(v)a person who has parental responsibility for the child; or
(c)an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
(d)an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i).
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
The issue for determination is therefore whether I have the power to make an order pursuant to s 68B of the Act restraining the mother and the father by injunction from initiating any further proceedings with respect to these children without first obtaining leave of this Court.
In the matter of Bennet & Bennett (2001) FLC 93-088, the Full Court rejected s 68B as a source of power to restrain persons from instituting proceedings in relation to a child without the leave of the Court, even though the institution of proceedings might be detrimental to the child's welfare. The Full Court held at paragraphs 32 to 33 that s 68B cannot be used in this respect noting that:-
·if a fundamental common law right or privilege is to be modified by statute, then the statute should make that intention unambiguously clear; and
·the right of a citizen to unimpeded access to the courts is a fundamental common law right.
Counsel for the applicant was unable to point me to any authorities which support his submission that s 68B of the Act empowers me to make an order by consent in the terms as sought by the parties.
The issue was recently considered by the Full Court in Oberlin & Infeld [2021] FamCAFC 66. There the Full Court considered the power of the Court to make injunctions as sought by the applicant pursuant to ss 68B, 114 or 102QB or whether such order could be made as a parenting order pursuant to s 64B(2)(g).
The Full Court, considering an order similar to that sought by the parties in this case, confirmed that ss. 68B and 114 cannot be relied upon to support an order as sought by the parties, as the order is not to be made for anyone’s personal protection, to restrain entry on premises or to protect the marital relationship or the parties’ property.
Further, the Full Court held that an order such as that sought by the parties in this matter could not be characterised as a parenting order pursuant to s. 64B(2)(g) of the Act as it positively forbids a party from bringing an application, regardless of their changing needs and circumstances; the Full Court held such order to be “an injunctive fetter upon the mother’s right to bring further proceedings in respect of the children under Part VII of the Act as and when she sees fit”.[1]
[1] Oberlin & Infeld [2021] FamCAFC66, [34].
The Full Court stated at paragraphs 36 to 37 as follows:-
36. In Betros & Betros [2017] FamCAFC 90, the Full Court (Thackray, Murphy and Austin JJ) considered an order made by a judge restricting a litigant’s ability to commence fresh parenting proceedings without first undertaking therapy for two years (at [9]-[12]) and said this:
… it is unnecessary to say much more than that caution should be exercised in crafting orders that are intended to delineate circumstances which arguably condition a party’s right to institute fresh proceedings to enable re-consideration of parenting orders.
37. Such caution is warranted because, unless the restriction is validly imposed by an injunction (such as one made pursuant to s 102QB(2)(b) of the Act or, more unusually, perhaps pursuant to s 114(3) of the Act) or by an order requiring preliminary steps to be taken before a new application is made (pursuant to s 64B(2)(g) of the Act), no statutory power exists for an order to be made impeding a litigant’s entitlement to commence fresh proceedings under Part VII of the Act. Once any such fresh application is filed, the question of whether it may then be prosecuted depends upon the applicant’s ability to demonstrate compliance with the guideline principle in Rice and Asplund.
Having regard to those matters I do not consider that I have the power to make the orders sought restraining the mother and the father from making further application to the Court. Accordingly, the application to restrain the commencement of further proceedings must fail.
The children have been the subject of ongoing litigation for a period of almost five years. Given that history I am satisfied the children are likely unable to recall a time in their lives when they have not been at the centre of conflict between their parents and the applicant. Accordingly, it is a positive sign for the children that their parents agree that they should refrain from bringing further proceedings at least for a period of five years (as conceded by the father). In my view, it is in the children’s best interests that the litigation and conflict end to ensure that the children can enjoy a settled period in their lives without the spectre of having to attend upon Family Consultants, an ICL or other professionals related to Court proceedings.
Given my findings in this matter, were the mother or the father to commence further proceedings in relation to the children, in my view they would need to demonstrate real and meaningful action and change by them to address their long standing issues with respect to substance abuse, alcohol and violent and anti-social behaviours.
Accordingly the orders I make are as follows:-
1.That the application of the first respondent to spend time with the children D born in 2008, E born in 2010 and F born in 2014 be dismissed.
2.That the parenting orders dated 29 April 2021 remain in full force and effect.
3.That all extant applications be otherwise dismissed.
4.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

I certify that the preceding two hundred and nineteen (219) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns.
Associate:
Dated: 23 July 2021

File number(s):	MLC 4475 of 2017
Judgment of:	JOHNS J
Date of judgment:	23 July 2021
Catchwords:	FAMILY LAW – CHILDREN – parental responsibility – with whom children live – with whom children spend time – best interests of the children – family violence – children’s views – where the parents agree the maternal grandmother should have sole parental responsibility – where the parents have neglected the children – where the parents have exposed the children to family violence – where the parents have failed to avail themselves of the opportunity to communicate with the children – where the children have no desire for contact with the parents – where the mother seeks supervised contact with the children on four occasions per year.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 64B, 65C, 65DAA, 68B, 68L, 69ZW, 91B
Cases cited:	Bennett & Bennett (2001) FLC 93-088 Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405 Mulvany & Lane (2009) FLC 93-404 [76]-[77] Oberlin & Infeld [2021] FamCAFC 66
Number of paragraphs:	218
Date of last submission/s:	23 April 2021
Date of hearing:	19 – 23 April 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Kanarev
Solicitor for the Applicant:	Purcell & Purcell
Counsel for the First Respondent:	Mr Allen
Solicitor for the First Respondent:	Knight Family Lawyers
Counsel for the Second Respondent:	Ms Teicher
Solicitor for the Second Respondent:	Vernon Da Gama & Associates
Counsel for the Independent Children's Lawyer:	Ms Glaister
Solicitor for the Independent Children's Lawyer:	Macgregor Solicitors

MLC 4475 of 2017
BETWEEN:	MS YATES Applicant
AND:	MS WOODFORD First Respondent MR CALDER Second Respondent
ORDER MADE BY:	JOHNS J
DATE OF ORDER:	23 JULY 2021