Federal Circuit and Family Court of Australia
(DIVISION 2)

Rivett & Lamore [2023] FedCFamC2F 148 
File number(s):	PAC 5320 of 2020	
		
Judgment of:	JUDGE STREET	
		
Date of judgment:	9 February 2023 	
		
Catchwords:	FAMILY LAW – PARENTING – undefended hearing – unacceptable risk of family violence – orders made  	
		
Legislation:	Australian Passports Act 2005 (Cth)
Evidence Act 1995 (Cth) s 140  
Family Law Act 1975 (Cth) pt VII; ss 4, 4AB, 43, 60, 60B, 60CA, 60CC, 60CG, 61, 61DA, 61DAA, 65Y, 67ZN, 102NA
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Federal Circuit and Family Court of Australia (Family Rules) 2021 (Cth) rr 10.26, 10.27
Births, Deaths and Marriages Registration Act 1995 (NSW) ss 28(5), 29   	
		
Cases cited:	A v A (1998) FLC 92-800 
A & Z [2006] FamCA 179 
Cotton & Cotton (1983) FLC 91-330
Deiter & Deiter [2011] FamCAFC 82
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Fitzwater & Fitzwater (2019) 60 Fam LR 212
G & C [2006] FamCA 994
Goode & Goode [2006] FamCA 1346
Isles & Nelissen (2022) FLC 94-092
Johnson & Page (2007) FLC 93-344 
Jurchenko & Foster (2014) FLC 93-598
Lanceley & Lanceley [1994] FamCA 94
Loddington & Derringford (No 2) [2008] FamCA 925
M v M (1988) 166 CLR 69
Masson v Parsons (2019) 266 CLR 554
McCall & Clark (2009) FLC 93-405
N v S (1996) FLC 92-655 
Napier & Hepburn (2006) FLC 93-303
Nikolakis & Nikolakis [2010] FamCAFC 52 
Stott & Holgar [2017] FamCAFC 152
Zane & Allen [2008] FamCAFC 115 	
		
Academic Articles:	Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249	
		
Division:	Division 2 Family Law	
		
Number of paragraphs:	39 	
		
Date of hearing:	1 December 2022	
		
Place:	Parramatta	
		
Counsel for the Applicant:	Ms E Dalrymple	
		
Solicitor for the Applicant:	Mahony Family Lawyers	
		
Solicitor for the Respondent:	No Appearance	
		
Counsel for the Independent Children’s Lawyer:	Ms K Conte-Mills	
		
Solicitor for the Independent Children’s Lawyer:	Phillip A Wilkins & Associates	

ORDERS
	PAC 5320 of 2020	
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)	
BETWEEN:	MS RIVETT
Applicant
	
AND:	MR LAMORE
Respondent

order made by:	JUDGE STREET	
DATE OF ORDER:	1 DecEMBER 2022	

THE COURT ORDERS THAT:

1.	The matter is to proceed by way of a default hearing.
2.	Any earlier parenting orders are vacated.
3.	The mother have sole parental responsibility for the children X, born in 2009 and Y, born in 2013.
4.	The children live with the mother.
5.	The children spend no time and have no communication with the father.
6.	The child X Lamore, born in 2009, shall henceforth be known as X Rivett, and the child Y Lamore, born in 2013, shall henceforth be known as Y Rivett.
7.	The mother be authorised to apply to the Registrar of Births Deaths and Marriages that the child registered as X, born in 2009 be now registered as X Rivett, and the child Y Lamore, born in 2013 be now registered as Y Rivett.
8.	Pursuant to s 28(5) of the Births, Deaths and Marriages Registration Act 1995 (NSW), the Registrar shall register the children’s name as specified in the form in Order 7 herein.
9.	Pursuant to s 65Y of the Family Law Act 1975 (Cth), the mother shall be authorised and entitled to remove the children from the Commonwealth of Australia for the purpose of travel at her discretion.
10.	The Independent Children’s Lawyer is discharged from these proceedings.
11.	The Court reserves its written reasons for the orders just pronounced.
THE COURT NOTES THAT:
A.	Order 3 vests in the mother sole parental responsibility for the purposes of the Australian Passports Act 2005 (Cth) such that the mother is accordingly authorised to obtain any passport or travel document required to facilitate the children travelling overseas without first notifying or obtaining the consent of the father.
B.	The children consent to change of name(s) pursuant to s 29 of the Births, Deaths and Marriages Registration Act 1995 (NSW).

Note:	The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Rivett & Lamore has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
JUDGE STREET:
BACKGROUND
1	These are parenting proceedings that were commenced on 7 October 2020.  In summary, the applicant mother sought orders for sole parental responsibility of the two children from the relationship with the respondent, being X, born in 2009, and Y, born in 2013 (“the Children”). The applicant mother’s originating application, dated 7 October 2020, sought that the Children live with the applicant mother and spend no time with and have no communication with the respondent father, and also sought orders for a change of surname of the two Children, and appropriate correction of the register under the Births, Deaths and Marriages Registration Act  1995 (NSW),  and also to be permitted to take the Children outside the Commonwealth under s 65Y of the Family Law Act 1975 (Cth) (“the Act”).
2	On 17 June 2022, this Court made orders vacating a hearing date that had been fixed for this matter, due to the Court being informed that the respondent father was in custody. On that occasion, the Court fixed the matter for a final hearing on 1 and 2 December 2022, and made an order under s 102NA of the Act that the respondent father is not permitted to cross-examine the applicant mother, and the Court made orders requiring the respondent to file and serve affidavit evidence and put on a case outline. The orders, dated 17 June 2022, noted that the respondent father would be entitled to Legal Aid representation by reason of the s 102NA order, through Commonwealth funding, and remarked also that:
2. The matter will proceed as an undefended hearing on the next occasion if the Court is satisfied the respondent father has been properly notified of these orders and fails to comply with the above orders and/or appear before the Court.
  
3	On 1 December 2022, the respondent father failed to appear before the Court, and failed to comply with the orders of this Court dated 17 June 2022, in terms of filing and serving further affidavit evidence and a case outline. The applicant mother had filed an affidavit on 4 October 2022 that set out the steps taken to notify the respondent father of the orders made by the Court on 17 June 2022.  The Court is satisfied that the respondent father had been properly notified of the orders of this Court made on 17 June 2022 and that the respondent father was on notice of the fact that the matter may proceed as an undefended hearing on the new final hearing date(s). The Court is also satisfied that the respondent father is on notice of the substantive orders being sought in the applicant mother’s originating application and that, as a matter of procedural fairness, the respondent father has had a reasonable opportunity, even though he is still in custody, to instruct solicitors and engage in taking steps to comply with the Court’s orders.
UNDEFENDED HEARING
4	In determining whether or not to proceed as an undefended hearing, the Court has taken into account the principles identified in Lanceley & Lanceley [1994] FamCA 94, and Zane & Allen [2008] FamCAFC 115, as well as A & Z [2006] FamCA 179 at 66:
66. The term undefended proceedings was also referred to in Lanceley and Lanceley [1994] FamCA 94; (1994) FLC 92-491. The Full Court considered the position of a respondent who took no active part in proceedings. Barblett DCJ, Frederico and Lindenmayer JJ said at 81,104:
“A respondent who merely wishes to ask the court to dismiss the appellant’s application (and seeks no other order) and who wishes to place no evidence before the court, but who wishes to submit that the application should be dismissed even on the applicant’s evidence, is certainly not obliged by the Rules to file any answer or affidavit, but only a Notice of Address for Service. However, if such a respondent then attends the hearing and in fact makes no submissions against the application (as the husband did in this case) then, in anyone’s language, the application is ‘undefended’ or ‘unopposed’.
Unlike some other jurisdictions, such a circumstance does not and cannot lead, in this Court, to a ‘judgment by default’ in favour of the applicant, because the Court must still decide, on the evidence before it, that the applicant is entitled, in law, to the relief claimed and that, in the exercise of its discretion, it is appropriate to grant that relief. Nevertheless, the proceedings in such a case are clearly ‘undefended’, and it would be a misuse of language to describe them otherwise. They certainly could not be described as ‘defended’.”
5	The Court has taken into account the overarching purpose and objectives in s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The Court is satisfied that there has been default under r 10.26 of the Federal Circuit and Family Court of Australia (Family Rules) 2021 (Cth) (“the Rules”) enlivening the powers under r 10.27. The Court is satisfied that this is an appropriate matter in the interests of the administration of justice in which to proceed as an undefended hearing and has, accordingly, made an order to that effect. 
EVIDENCE AND PROCEDURE
6	The evidence before the Court as follows:
•	The applicant mother’s affidavit, dated 4 October 2022;
•	The Child Inclusive Conference Memorandum, dated 22 July 2021 which was marked Exhibit A; 
•	The applicant mother’s tender bundle, which was marked Exhibit B and comprised of criminal record information concerning the respondent; 
•	The ICL’s case outline; and
•	The applicant mother’s case outline.
7	Having considered both the applicant mother’s as well as ICL’s case outlines and the failure of the respondent to comply with the Court’s orders, his failure to appear, and the making of an order that the matter proceed as an undefended hearing, the Court took into account the evidence and identified that it would make orders on 1 December 2022 and publish the written reasons for those orders in due course. These are the written reasons for the orders made on 1 December 2022 that, in substance, reflect the orders sought in the applicant mother’s originating application filed on 7 October 2020, as well as discharging the ICL from the proceedings, and also adding a notation from the evidence of the mother that the children consent to the change of name, so far as the requirements of s 29 of the Births, Deaths and Marriages Registration Act 1995 (NSW) is concerned.  These are the written reasons in support of the orders made on 1 December 2022.  
chronology
8	The Court has set out the chronology from the mother’s case outline below:
DATE	EVENT	
1981	Respondent father Mr Lamore is born, presently, aged 41 years.	
1991	Applicant mother Ms Rivett is born, presently aged 31 years.	
2007	The parties meet.	
2007	The parties commence a relationship 
The applicant mother deposes to feeling pressured to enter relationship with the father due to age gap. At the time of commencing the relationship the respondent father was 26 and the applicant other was 15. The applicant mother deposes to keeping the relationship a secret from family and friends.	
2007	Shortly after the parties commence a relationship, the applicant mother is contacted by the respondent father’s former girlfriend Ms B who tells her “Mr Lamore is bad news. He chased me with a gun. We had a court matter at Suburb C Local Court for this”	
2007	The applicant mother attends the D Cemetery to commemorate the first anniversary of her father’s death. The applicant mother asserts that while she was there the respondent father sent her text messages calling her a “cunt” and a “dog”. Later that evening the applicant mother deposes to attending a friend’s home in Suburb E where she witnessed the respondent father speeding down the road towards her in his car. The applicant mother asserts that the respondent father swerved his car towards her and told her “Get in the car now you dog or I’ll run you over”. The applicant mother deposes getting into the car and the father driving her to his home in an erratic manner. When they arrived at the father’s home, the respondent father assaulted the applicant mother by punching her face several times and leaving her bloody and bruised.	
December 2007	The applicant mother asserts the respondent father attended her home and beat her so badly that she vomited and lost consciousness. The applicant mother says that when she came to, the respondent father begged her not to tell anyone about the violence.	
December 2007	The applicant mother asserts that the respondent father asked her to hold onto 500grams of marijuana for him due to an anticipated police raid.	
January 2008	The applicant mother asserts that upon her return to Sydney after spending a moth with her family in Melbourne, the respondent father was angry with her for travelling to Melbourne and assaulted her by punching her in the face, causing her tooth to break. The applicant mother asserts that the following that the respondent father’s friend Mr F told the applicant mother “he’s bad Ms Rivett. He bashed Ms G when she was pregnant, run for your life”.	
2008	The applicant mother becomes aware that the respondent father is a member of the H motorcycle club.
The applicant mother observes an escalation in the respondent father’s drug use. The applicant mother observes used needle in the respondent father’s home.	
2008	The parties commence living together.
The applicant mother deposes to moving in with the applicant father after discovering she was pregnant. Soon after it was discovered that the pregnancy was an ectopic pregnancy. The applicant mother says the re	
2008	The respondent father is convicted of the offence “Posses Prohibited Drug” and is incarcerated for a period of three months at the Suburb J Correctional Facility. During his period of incarceration the applicant mother experiences the respondent father to be manipulative and controlling.	
Late 2008	The respondent father is released from custody and begins selling pseudoephedrine. He tells the applicant mother this is legal. The applicant mother is in year 10 and is reliant on Youth Allowance and is pregnant with the subject child X.	
2009	While the applicant mother is home alone and 9 months pregnant, an incident occurs during which two men kick her door down at 5am, one man held knife to her throat and said “where is the money and the ice? Do not report this to the police or you are a dog.” The applicant mother was then made to sit on the bed for 30 minutes while the men ransacked the home.	
2009	Subject Child X is born, presently 13.5 years old.
The applicant mother asserts the respondent father was not present at X’s birth and visited on only one occasion for 30 minutes during the 7 days the applicant mother spent in hospital after giving birth to X. The applicant mother was 17 years old at the time and did not have her driver’s licence. The applicant mother asserts the respondent father did not install X’s car seat in his car and was not able to transport the applicant mother and X home from the hospital as a result.	
2009	The respondent father is shot by another member of the H Club.
White the respondent father is in hospital, they discover methamphetamine in his system and the Department of Communities and Justice become involved. They require the parties to undertake urinalysis but the respondent father refuses.	
September 2009	The applicant mother asserts that during an argument the respondent father threatened her saying “I will rape you and I will murder you!” The applicant mother in fear for her life ran out on to the street with X and made a report to the police who took out an ADVO on the applicant mother’s behalf.	
Late 2009	The applicant mother says that the parties continued their relationship following the ADVO being made for the applicant mother’s protection. Shortly afterwards the applicant mother fell pregnant again and had an abortion without the respondent father’s knowledge. When the respondent father discovered this he physically assaulted the applicant mother and did not allow her to leave the home for a whole week and when she tried to leave he pinned her down, held his hands around her mouth and said “I will kill you”.	
2010	Following a dinner to celebrate the mother’s 19th birthday, the mother asserts that the father drove home erratically and while driving threatened the mother saying “I’m going to kill us, I can’t do it anymore, I’m going to rape and murder you.” The mother told the staff at the K Centre, the accommodation she was living in of the father’s threats and they called police. The mother did not speak to police because she was fearful of the violence escalating. Following this incident the father was evicted from the accommodation and the mother and X were relocated to a women’s only refuge. 	
Early 2011	The mother asserts that while she was living at the women’s only refuge, the father attended and forced her to come outside and perform oral sex on him on the side of the road. 	
Early 2011	The mother and X were transferred to women’s only housing in Suburb L. The mother asserts that the father came to the complex with his belongings at 2am, punched the mother to the head causing her to become unconscious and forcefully moved his belongings into the home 	
2011	The father tells the mother “I have an Ice addiction.” 	
Mid 2011	The father is incarcerated. He calls the mother from jail and tells her that he has become a police informant to reduce his sentence. He is released from jail approximately 12 months later. 	
2012-2015	The mother experiences the father’s physical violence to subside and she only experiences physical violence on 2-3 occasions during this period. The mother asserts that the father remained financially controlling during this period. 	
2013	Subject child Y is born, presently aged 9 years. 	
2016	Mother asserts that the father recommences using amphetamines and during this period would disappear from the family home for 3-4 days at a time. 
The mother deposes to coming home and seeing the father smoking an ice pipe. When she questioned the father about this she asserts that he punched her in the arm and that the violence again escalated when the father recommenced using ice. 	
July 2017	The parties separate on a final basis but are separated under the one roof. 	
Early August 2017	The mother asserts that at this stage the father’s violence had escalated to the point where he was perpetrating violence on the mother on a near daily basis, as well as yelling at the children “Mummy hates us and wants me to kill myself” and “Mummy is crazy.” The mother alleges that the father attempted to choke her and threatened to kill her and to kill himself on more than occasion and that these attempts to choke occurred in the presence of the children. 
The mother deposes to a further incident of violence during this period in which the father grabbed the mother by the neck, dragged her outside and proceeded to punch and kick her in the head. The mother says that the children witnessed this incident and were visibly distressed and crying. 
The mother deposes to a further incident during which the father locked her in the bathroom for 3 hours and would not allow her to leave the home. The mother says that the police were attended the home on a near daily basis during this period. 	
12 August 2017	The mother deposes to an incident during which the father bit her on the face leaving teeth marks. 	
14 August 2017	Father tells the mother “You are not leaving me. If you do, I will kill you, if you are with anyone else, I will kill you.” 
Mother feels fearful the father will harm her or the children so agrees to stay in the relationship. A short time later the father punches her in the jaw repeatedly causing her to become dizzy. A neighbour calls police who attend at about 7pm. While the mother is talking to police, the father jumps over the back fence and runs away. 	
16 August 2017	The father calls the mother and says “we need to talk”. The mother agrees to meet the father outside Region M Police Station. The father yells at the mother and threatens to kill her. Two police officers come out to speak to them and the father runs away. The mother tells the police about the violence she has been experiencing and a Provisional no contact ADVO is issued for the mother’s protection from the father. 	
Mid-August 2017	The mother receives a phone call from a woman who says she was having an affair with the father, Ms N. Ms N tells the mother “Last night he [the father] stole all my stuff and tried to kill me.” 
The mother calls the father and he threatens to attend the children’s school and take the children. The mother reports these threats to the Region M Police Station who assist the mother to make arrangements for another school mother to collect the children and bring them to the police station. The school mother tells the mother that the father punched her car window when he saw her driving away with the children. 
That night the father sends the mother in excess of 50 text messages threatening to kill her and kill himself if she does not tell the police she lied. 	
Mid-August 2017	The mother and children return to the former home to collect belongings. The father again threatens the mother and punches her in the head. 
Police attend a short time later as there is a warrant out for the father’s arrest. The father is arrested and charged with various offences including break and enter, assault and breach of ADVO. 
The father is bail refused and sentenced to 18 months imprisonment. 	
August 2017	The Department of Communities and Justice become involved with the family due to concerns around the father’s violence and drug use. The case is closed in February 2018 and the children are deemed to be safe in the mother’s care. 	
27 September 2017	Final ADVO made providing for the mother’s protection from the father. Includes conditions that father is not to contact the mother in any way except through a lawyer or come within 200m of the mother’s home. ADVO is in place for 2 years. 	
July 2018	The father is released on parole and is required to wear an electronic monitoring device. The father contacts the mother via message and tells her “fuck it the ankle monitor is off, I’m coming to Sydney.” The mother reports this to the father’s Corrections Officer and his parole is revoked and he is returned to custody. 	
2019	The father is released from custody and continues to contact the mother in breach of the ADVO. 	
2019	The father asks the mother to see the children, he tells her “I have become a Muslim and found peace.” The mother agrees and about a week later the father spends time with the children in a public place with the mother present 	
23 March 2019	The father spends time with the children at Location O with the mother present. The visit is cut short because the father was being verbally abusive to another father. 	
April 2019	The mother agrees to let the father mind the children on three days during the school holidays. 
Following this period, the father begins referring to the mother as “Baby” which makes her feel uncomfortable. The father tells the mother that he is suicidal. The mother feels sorry for the father and allows him to begin spending time with the children on three occasions per week supervised by her. This continues until July 2019 when the father is again incarcerated. 	
2019	The father tells the mother that he threw his former girlfriend Ms N’s cat off a bridge. He puts his hands on the mother’s neck and the mother tells him “You can’t come back here until something has changed”. The father then sends the mother 23 text messages on 7 May and 46 text messages on 8 May 2019. 	
2019	The father attends X’s cross-country carnival. He becomes stressed discussing criminal proceedings and when the mother asks him to calm down he says “I’ll knock you out cunt shut the fuck up.” 	
2019	The father attends the mother’s home while she is out and breaks into the home. He calls the mother and tells her what he has done and tells her that he has thrown the family cat out the window. The father then sends X a Snapchat video of himself throwing the cat out of a second-floor window whilst staying “this is what you do when the cat fucks with you.” The mother says that X was upset by the video and began to cry. 	
26 June 2019	The mother is asleep at home and is awoken by a loud thump. She wakes up to see the father standing over her. He had broken into the home and raided the cupboards for food and then slept on the mother’s bedroom floor. The mother told him “you can’t stay here.” The mother is concerned at the time that the father is again using methamphetamines.	
1 July 2019	The father attends the mother’s home with his friend Ms P. They go into the mother’s bedroom to talk and the father becomes enraged and puts his hands around the mother’s neck and squeezes 
making it difficult to breathe. Ms P pulls the father off the mother and he then throws something at the mother’s television causing it to smash. He then walked to the mother’s bedroom window, opened the window and said “I am going to throw you out the window.” The mother texts her friend Ms Q and asks her to contact police. The father pulls a small knife out of his pocket, jumps on top of the mother, holds the knife close to her face and says “I will stab you.” The mother punches the father to get him off her. He puts the knife down and puts both hands on her mouth making it difficult for her to breathe. Ms P pulls the father off the mother and the mother yells out to X “X, call someone.” Police arrive when the father has already fled the home and a warrant is issued for his arrest. 
Following this incident the father was convicted for breaching the no contact ADVO and of the offence “intentionally choke person without consent” and sentenced to a further 2 years imprisonment. A further final no contact ADVO was issued for the mother and children’s protection which will expire on 25 March 2025. 	
1 July 2019	The children do not see or communicate with the father after this date. 	
1 November 2020	Father is released from custody on parole. 	
November 2020	Mother’s new partner, Mr R, commences living with the mother and children. The children have a close relationship with Mr R. 	
19 January 2021	Father is charged with possession of a prohibited drug. 	
18 August 2021	Father is charged with Assault occasioning Actual Bodily Harm and Common Assault. 	
29 November 2021	Father is charged with the offence of “drive with illicit drug present in blood – 2nd offence”. 	
11 January 2022	Father is charged with the following offences: 
Larceny 
Drive conveyance taken without consent of owner 
4 counts of aggravated break and enter in company 	
17 June 2022	The proceedings are listing for Interim Hearing. The father does not attend the hearing and it does not proceed. 	
22 June 2022	The mother’s solicitor writes to the father care of the S Correctional Centre where he is incarcerated at the time, to inform him of the final hearing listing. 	
2022	The mother has X’s phone and receives a follow request through X’s Instagram from the father’s partner at the time Ms T. Ms T also sends through photos of a baby and writes a message that says “This is U she is 6 months old she is also your baby sister. X. Your father sends his love and says he hasn’t stopped thinking of you and your brother and never will. He loves the both of you so very much and wishes things were different. He wants no problems with your mother. He just wanted for his children to meet their new sibling his new daughter xxx.” 
The mother does not tell X about these messages as she is concerned about the impact that doing so would have on X. The mother reports the messages to police as she believes them to a breach of the no-contact ADVO.  	
2022	Mother gives birth to a daughter from her new relationship, V. 	
1 December 2022	Matter is listed for Final Hearing. 	
9	Exhibit B identifies very serious criminal history of the respondent father, particularly relevant to breach of ADVOs and domestic violence against the applicant mother. The parties’ relationship commenced in 2007, when the applicant mother was 15 years old and the respondent father was 26 years old, and it appears that the parties separated in 2017, although there was a period of time which they continued living at the same property. The respondent mother’s evidence identifies significant family violence, including physical assaults, incidents of choking, threats by the father to rape and kill the applicant mother and her fears in relation to the reporting of such violence to the police, and there being an escalation in the respondent father’s violence as a result of such reporting by the applicant mother to the police.  It is of note that on 27 September 2017, a final no contact ADVO was made for the mother’s protection and a further final ADVO was issued on 1 July 2019.
10	On 17 November 2017, the respondent father was convicted of two counts of assault occasioning actual bodily harm and stalking to intimidate, intent to cause fear, and physical harm against the applicant mother. The respondent father was sentenced to a term of imprisonment of eighteen months commencing on 17 August 2017 and was released on parole on 16 May 2018. On 3 July 2019, the respondent father was charged with breaching the final no contact ADVO that was in place and was convicted and sentenced to two years imprisonment commencing on 2 July 2019, concluding on 1 January 2021.  
11	The applicant mother’s evidence supports that she was the victim of the respondent father’s physical, verbal, sexual, coercive and controlling violence during the relationship and following separation. On the evidence provided by the applicant mother, the Court finds that the respondent father was physically violent towards the applicant on a near daily basis throughout the relationship in the presence of the Children and attempted to choke her whilst threatening to kill her in the presence of the Children, as well as beating and strangling the applicant mother to the point that she lost consciousness. The family violence in this case can properly be described as horrific, from verbal abuse through to coercive and controlling violence by the respondent father.  
12	This is not a case where the respondent father has demonstrated any insight in relation to his behaviour or taken any steps to properly address the same. The respondent father has not demonstrated any insight in relation to the risks that the Children would be exposed to if their relationship with him were to resume.  The Court is also not satisfied that the respondent father has taken proper steps in relation to addressing his addiction to illicit drugs and notes that he was expelled from a rehabilitation facility on 20 September 2022.  It is not necessary to address all the horrific incidents to which the applicant mother was exposed due to the family violence perpetrated by the respondent father, which on numerous occasions occurred in the presence of the children. It is also apparent that the respondent father has a relationship with an outlaw motorcycle gang.  
THE LAW
13	Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of pt VII. These are to ensure that the best interests of children are met by:
•	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 
•	protecting children from physical or psychological harm arising from being subjected to, or exposed to, abuse, neglect or family violence; and 
•	ensuring that children receive adequate and proper parenting to help them achieve their full potential; and 
•	ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. 
14	In Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ noted that the focus of the objects was on “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”.
The presumption of equal shared parental responsibility
15	Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The considerations by the Court are identified in s 65DAA of the Act.
16	The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.
17	Further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. For reasons which I subsequently explain, I have determined that it is not in the interests of the child for the presumption to apply.
Best interests of the child
18	Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
19	Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
•	the benefit to the child of having a meaningful relationship with both of the child’s parents; and 
•	the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
20	In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: ss 60CC(2)(b) of the Act. The Court has also taken into account s 60CG of the Act to ensure the orders do not expose a person to an unacceptable risk of family violence. Family violence is defined in s 4AB of the Act and abuse is defined in s 4 of the Act. 
21	In considering that first matter, the Court notes that, in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) at 83,476, [122], the Full Court said:
…No doubt in the majority of cases, there will be a positive benefit for the child 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. 
22	In McCall and Clark at [117], the Full Court referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that “the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child”.  In other words, the focus is upon whether the child having a meaningful relationship with a particular parent will be of advantage to the child in the future.
23	In Jurchenko & Foster (2014) FLC 93-598 at 79,420, the Court noted at [123] that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests. 
24	In Loddington & Derringford (No 2) [2008] FamCA 925 (“Loddington”) Cronin J held at [169] that:
There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. 
(emphasis added)
25	In Loddington at [173] Cronin J further added that an assessment of the benefit to the child must be made according to ‘the peculiar facts of what the parents are offering.’ 
26	In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
And that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist. 
(emphasis added)
Issue of risk
27	The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm from being subjected or exposed to abuse or violence. The question that may be asked is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either parent.
28	In Stott & Holgar [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case and decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm.  If a determination is made that such a risk exists, the Court is then required to consider whether that unacceptable risk could be ameliorated by safeguards.
29	The relevant principles in assessing whether a child would be exposed to an unacceptable risk of psychological and/or physical harm were recently considered by the Full Court in Isles & Nelissen (2022) FLC 94-092, who agreed with and adopted Austin J’s dissenting judgment in Fitzwater & Fitzwater (2019) 60 Fam LR 212 as being the correct statement of the law. Justice Austin’s judgment includes the following:
138.	The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.	Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142.	As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
30	Thus, it can be seen that determining the issue of risk essentially involves applying a risk matrix, whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N v S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303, Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96] and Deiter & Deiter [2011] FamCAFC 82 at [54].
31	Additionally the following guidance emerges from authorities:
(1)	It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.
(2)	Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148].  
(3)	The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at [68], endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249.
(4)	While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”.   
Additional considerations
32	Section 60CC(3) of the Act sets out a number of additional considerations to which the Court is required to have regard. To assist analysis, those considerations can conveniently be grouped under the following headings:
Issues relating to the children – their views, level of maturity, culture and relationships:
•	Sub-section (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;
•	Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
•	Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
•	Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
•	Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child; 
•	Sub-section (3)(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;
•	Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
•	Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
Issues of family violence:
•	Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
•	Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
Effect of change:
•	Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Practical difficulty of implementation:
•	Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Avoiding further proceedings:
•	Sub-section (3)(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. 
Other relevant matters:
•	Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
FINDINGS
33	The Court has taken into account the principles applicable in relation to parenting applications in s 67ZN of the Act and the principles in s 43 of the Act. The Court has taken into account the statutory pathway in Goode & Goode [2006] FamCA 1346 at [65]. The Court has also taken into account the relevant principles and statutory provisions referred to above in relation to an unacceptable risk of family violence. 
34	The Court finds that the applicant mother’s evidence, in this case, identifies that both the applicant mother and the Children face an unacceptable risk from the respondent father spending time with the Children. The nature of that risk is physical violence, both physical violence to the applicant mother, as well as a real risk of both physical and emotional harm to the Children as a result of further violence being perpetrated by the respondent father on the applicant mother.  The Court finds that the nature of the risk in the present case is one of grave potential harm to both the applicant mother and the Children, given the history to which the Court has briefly referred to. The Court finds that the likelihood of that unacceptable risk of harm, to the applicant and Children, from family violence is high.
35	As to the statutory pathway under pt VII of the Act, the Court finds that there are reasonable grounds to believe that the respondent has engaged in family violence and accordingly the presumption under s 61DA of the Act as to equal parenting has no application. The Court is satisfied in the present case that it is in the best interests of the Children that the applicant mother have sole parental responsibility.  
36	The Court is not satisfied, on the evidence before the Court, that the respondent father has taken proper steps to address his drug addiction his violent physical behaviour, his violent and abusive conduct to the applicant mother, or any insight in relation to the significant adverse impact his conduct may have when occurring in the presence of the Children.  
37	In relation to the best interests of the Children, this is a case where the Court must give greater weight to the need to protect the Children from physical violence, physical and psychological harm, from being subjected or exposed to abuse, and being exposed to family violence by the respondent father. The benefit of the Children having a meaningful relationship with the respondent father under the primary considerations in s 60CC of the Act, on the evidence in the present case, is outweighed by the need to protect the children in accordance with s 60CC(2A) of the Act.
38	Moreover, the Court is not satisfied that there would be benefit to the Children at all from a renewal of their relationship with the respondent father, in circumstances of the extent of family violence that has been perpetrated, the high risk of further family violence, and the emotional harm that the Children may experience if the Court were to make orders permitting any time to be spent with the respondent father. The Court has also taken into account that neither Child has expressed a wish for such a relationship, and that both Children are desirous of a change of name and the older child has already been using a changed name.
39	The Court is satisfied that it is in the best interests of the Children that they live with the applicant mother. The Court is satisfied that it is in the best interests of the Children that they spend no time with and do not communicate with the respondent father. It is for these reasons that the Court made orders on 1 December 2022.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.	

Associate:

Dated:	9 January 2023