Beckford & Beckford (No 2) [2025] FedCFamC2F 455 | Case summary

Beckford & Beckford (No 2) [2025] FedCFamC2F 455 | Case summary | Zoe

[8]

Having separated in September 2017, the mother and father were divorced in early 2019. Around the time of separation, both parents took family violence interim intervention orders out against the other and the mother was subsequently charged for contravention of the intervention order against her on 2 separate occasions in 2018.
On 12 August 2019, orders were made substantially by consent such that the children were to live with the father and the parents had equal shared responsibility (first parenting orders). Those orders were intended to be final and, it is uncontroversial, were substantially complied with until around March 2020.
In March 2020, following incidents involving alleged physical dragging of Y by her mother, an alleged physical altercation between the children's mother and paternal grandparent and an admitted inappropriate display by the mother at changeover, X stopped communicating with her mother and the children did not spend any time with their mother for a period.
Around late June 2020, amid the global COVID-19 pandemic, the father relocated with the children from Melbourne, Victoria to City B, Queensland. He did so unilaterally and without notice to the children's mother.
On 24 July 2020, having learned that X had been removed from her high school, the mother commenced proceedings in this Court seeking variation of the first parenting orders to a week about arrangement.
On 30 July 2020, the mother learned of the relocation to Queensland and sought intervention of this Court. Ultimately, on 21 August 2020, an order was made by another Judge of this Court for return of the children (in Beckford & Beckford [2020] FCCA 2639 per Judge Carter as she then was) (first return orders). On 16 and 18 September 2020, the father filed a notice of appeal and sought a stay of certain of the first return orders. On 8 October 2020, the father's application for stay of the first return orders was refused (in Beckford & Beckford (No.2) [2020] FCCA 2775 per Judge Carter as she then was). On 4 November 2020, a Registrar made a recovery order (first recovery order) and the children were subsequently returned to their mother by the Australian Federal Police. On 13 November 2020, the 21 August 2020 orders requiring the return of the children were discharged.
In mid-2021, a family violence intervention order, applied for by a member of Victoria Police, was consented to by the mother (on a non-admission basis) and named the paternal grandmother as a protected person for a period of 12 months.
On 15 October 2021, final orders were made by another Judge of this Court which provided that the children were to live with their mother who was to have sole parental responsibility for them, X was to spend time with her father as she wished and Z and Y were to spend time with their father on alternate weekends and half of the school holidays (in Beckford & Beckford [2021] FedCFamC2F 181 per Judge Carter as she then was) (most recent final parenting orders).
In November 2021, Child Protection received a report raising concerns for the safety and wellbeing of Y who was in the primary care of her mother.
On 8 November 2021, the father withheld the children and, on 11 November 2021, their mother sought intervention of this Court. Ultimately, on 19 November 2021, an order was made by another Judge of this Court for return of the children to their mother and suspending time with their father for a period (in Beckford & Beckford (No 2) [2021] FedCFamC2F 657 per Judge Carter as she then was) (second return orders). The following day, a recovery order was issued (second recovery order) and the children were subsequently returned to their mother by the Australian Federal Police.
In December 2021, the children were placed into the care of the Department of Families, Fairness and Housing (DFFH) following a report by the paternal uncle of alleged physical violence by the mother against Y. According to the father's evidence, it was on or about this day that X told him of an incident at the mother's home which X knew of because Y had sent (to the son of her father's partner) a photo of her swollen lip caused by her mother hitting her.
On 2 December 2021, an interim accommodation order was made which provided for Y and Z to live with the paternal uncle. The children's spend time arrangements with their parents was suspended until:

[11]

In early 2022, a family violence intervention order, applied for by the father, was consented to by the mother (on a non-admissions basis) and named the father and children as protected persons for a period of 12 months.
In mid-2022, the mother was charged with unlawful assault in respect of the incident with the paternal grandmother.
On 14 September 2022, a family preservation order was made and provided for Y to remain in the father's care and Z to remain in the mother's care until 13 March 2023. In that instance DFFH was the intervenor and their records indicate that Child Protection agreed to the order for 6 months to allow the parents to seek a variation of the most recent final parenting orders so that Y could continue to reside with her father without the involvement of DFFH.
On 9 March 2023, the subject proceedings were commenced by the paternal uncle seeking that the father have sole parental responsibility of the children, the children live with the father and the children's time with the mother be suspended on an interim basis. The paternal uncle also sought urgent ex-parte orders.
On 10 March 2023, the paternal uncle was notified by way of email that a Registrar of the Court had rejected the Applicant's proposal to have the matter listed urgently. That same day, Child Protection was notified of a report raising concerns in regard to the children's exposure to a person charged with sexual offending and likelihood of abuse in their mother's care.
On 13 March 2023, the family preservation order expired. Y continued to live with her father and did not return to her mother's care at that time. The involvement of Child Protection ceased on that day, following a file review which identified that the concerns reported to Child Protection on 10 March 2023 were historical in nature and had been investigated.
On 29 March 2023, the paternal uncle's application for review of the Registrar's rejection of an urgent hearing was dismissed by another Judge of this Court.
In early 2023, 3 days before the family violence intervention order was due to expire, Child Protection received a further report raising concerns in relation to the children due to their exposure to their father's perpetration of family violence toward their mother and concerns about his mental health. A file review was conducted by Child Protection and identified that the concerns subject of the report were historical in nature and had been investigated. Child Protection determined that their intervention was not warranted.
A day later, 2 days before the family violence intervention order was due to expire, an interim family violence intervention order was made on application by the father. The interim named the father and children as protected persons pending final order, variation, revocation or withdrawal. The interim order was opposed by the mother on that occasion.
On 20 April 2023, DFFH released a report pursuant to s.67ZW of the Act (DFFH report). The DFFH report summarised the prior child protection history of the family in terms that there had been 15 previous reports to Child Protection for X, Y and Z in the period 2013 to 2021. The DFFH report detailed the then current Child Protection Intervention by reference to the report of 4 November 2021 (regarding Y's safety), the second return orders made by the Court, the report of 2 December 2021 by the paternal uncle (regarding alleged physical violence by the mother against Y), the interim accommodation orders and family preservation order and further reports based on what were found to be historical allegations raised in early 2023 (outlined above). Ultimately, the DFFH report concluded that DFFH did not intend to intervene in the proceedings and no further action would be taken on the matter. The following were also recorded in the DFFH report as at the time of its issue:

[13]

In mid-2023, the interim family violence intervention order was again extended on an interim basis pending final order, variation, revocation or withdrawal. The interim order was again opposed by the mother on that occasion.
On 27 July 2023, the paternal uncle filed an application in a proceeding which sought that the ICL be discharged, the matter be transferred to Division 1 of the Court and that previous orders of the Court be set aside on basis of alleged non-compliance on the part of the mother.
Later in mid-2023, the interim family violence intervention order was again extended on an interim basis pending final order, variation, revocation or withdrawal. The interim order was not opposed by the mother on that occasion.
On 21 August 2023, for purposes of interim proceedings before this Court, a Child Impact Report was prepared (Interim Child Impact Report). The report writer, a Ms L, is an appointed Child Court Expert who holds a tertiary qualification and has over 25 years' experience in social work including 3 years as a Child Court Expert.
On 6 September 2023, interim parenting orders were made which the family has since lived by for some 18 months (by a Registrar of the Court, earlier defined as the ongoing interim arrangements). The ongoing interim arrangements were not accompanied by written reasons. Since those interim orders were in place and at the time of hearing, X and Y have lived with their father and they have chosen to spend no time with their mother. Z has lived with her mother and spent 5 nights each fortnight with her father and siblings and half of school holidays. The resident parent has had sole parental responsibility for the child in their care and obligations to communicate with the other parent about all decisions made by the other pursuant to the ongoing interim arrangements no less than once per month by email to a nominated email address.
On 18 October 2023, the paternal uncle discontinued his involvement in these proceedings, at which time the father became the applicant.
In late 2023, the interim family violence intervention order was again extended on an interim basis pending final order, variation, revocation or withdrawal. The interim order was not opposed by the mother on that occasion. This interim order was due to expire in late 2024 and is the most recently documented family violence intervention order in evidence before the Court.
On 23 January 2024, these proceedings were set down for final hearing before another Judge of this Court. The trial directions referred to sections of the Act that had been repealed. On 20 February 2024, the father sought to appeal the trial direction orders which appeal was incompetent and not accepted by the Registrar which decision the father then sought review of and was upheld on review by decision of 15 April 2024 (in Beckford & Beckford [2024] FedCFamC1A 57 per Justice Austin of Division 1 of this Court).
On 10 May 2024, the father filed an application for constitutional or other writ in the High Court of Australia by which he sought to challenge the trial directions of 23 January 2024 and the outcome of his attempted appeal. On 13 May 2024, these proceedings were adjourned pending the outcome in the High Court of Australia and another Judge of this Court declined the father's recusal application (in Beckford & Beckford [2024] FedCFamC2F 633 per Judge Bender). On 29 July 2024, a single Justice of the High Court of Australia dismissed the father's application (in Beckford v The Federal Circuit and Family Court of Australia and the Judges and Justices thereof & Ors [2024] HCASJ 33 per Justice Edelman) and, in doing so, reasoned (in summary) that the application was manifestly hopeless and an abuse of process: at [3].
In parallel to the progress of these proceedings and that in the High Court of Australia (as above), on 12 March 2024 the father filed a contravention application alleging that the mother had withheld Z between 22 and 27 February 2024 which came before a Registrar of the Court on 11 April 2024. Ultimately, on 15 August 2024, the father was granted leave to withdraw the contravention application and the contravention hearing for 16 August 2024 was vacated.
On 21 January 2025, the father filed an amended initiating application in these proceedings and, on 29 January 2025, the mother filed an amended response.
As at time of final hearing it was the evidence of the parents that the father had made a further application for extension of the family violence intervention order, which application was opposed by the mother and due to be heard in the Magistrates Court in early 2025. At hearing before the Court, the father confirmed that there was one family violence intervention order in place which had been subject of various extensions due to postponements of the hearing of the matter. The father also told the Court that he had reported the mother for alleged breaches of the family violence intervention order but she had been convicted of none of them.

[15]

The mother was born in Country N and speaks English and Language O. She has some family and friends in Australia and has been supported by charitable organisations over the years. She has been Z's primary carer for the majority of her life. At the time of hearing, the mother was not employed and received financial support through social security payments and some child support payments at the rate of $65 per month since December 2024 (following adjustments due to more recent tax returns, which the father conceded would need to be adjusted up again since his recent employment). The mother said she had provided stable housing for Z which was not understood to be disputed.
In his trial affidavit the father deposed to a series of historical incidents of alleged family violence, sexual and physical assault in respect of X and Y when in their mother's care or presence - some (if not all) of which have resulted in intervention of DFFH as outlined above. In cross-examination, the father regularly sought to answer questions by reference to these allegations and described the children's past behaviours as including nightmares, anxiety, agitation, scared, trouble sleeping, refusal to return to their mother - which he believes was a result of their experiences. The father gave evidence of his fears about prospective harm to Z in her mother's care being borne of his past experience of physical and mental harm of X and Y in their mother's care and his belief that the mother has mental health issues which are unmanaged. In cross-examination, the father acknowledged that there have been no reports of such incidents involving Child Protection intervention in respect of Z or in the past 2 years.
Other historical concerns raised in the father's trial affidavit were that the mother had lost her driver's license on account of refusal to undertake a drug test, alleged alcohol abuse issues, alleged breach of an intervention order against a Mr P (a former friend of the mother's) and that the mother has been convicted of assaulting the paternal grandparent. He also gave evidence that the mother had made suicidal threats in 2021.
The father gave evidence of some recent examples of allegedly exhibited poor parenting behaviours when Z has been in the mother's care, such as:

[17]

The father also referred to unspecified occasions when Z has muted a phone call with her father to block out whatever her mother is saying in the background and has been frustrated when the mother plays loud music in the background of a phone call between him and Z requiring them to communicate by text instead of talking.
The father also described instances of the mother's denigration of him in the presence of the children including a recent example, in January 2025, to the effect that Z has told him about her mother complaining about the father, his partner and that she has to pay child support. By way of another example, in May 2024, the father and his partner told of an instance where the family all came into contact at a medical clinic and the mother was visibly upset with the partner's presence and allegedly threatening. He also deposed to concerns about the mother's negativity towards the father's partner and her son (who they referred to as the children's step-brother). The father pointed to the Interim Child Court Expert Report which had included a reference to the elder children having reported their experiences of prior exposure to denigration of their father by the mother.
The father did not accept, when put to him, that his position in these proceedings (5 nights per fortnight with the mother) was inconsistent with both his purported fear of risk that Z will be exposed to physical and sexual assault and the absence of issues since the ongoing interim arrangements have been in place. Rather, the father sought to emphasise his position for the future is that they all seek support through family therapy.
It was also alleged by the father that Z has fallen behind at school as Y had done when she lived with the mother. He said she is below standard in maths and is learning in the English as an additional language stream. The father does not believe the mother is or can address Z's educational needs. For his part, the father wants Z (and Y) changed from their current religious school to a public school. The father has had issues with the school because he believes they did not act when Y reported (or tried to report) incidents to them. However, he told the Court at hearing that he is more concerned about Z's health than the high school she is to be enrolled in.
For her part, the mother strongly denied many of the allegations but also acknowledged that, in the past, there have been instances of inappropriate behaviour on her own part, there have been physical altercations between herself and Y (in particular, she had "pushed [Y] back" - subject of the 1 December 2021 report), and she has denigrated the father in the presence of the children. In respect of the more recent allegations, the mother maintained that the 12 March 2024 contravention application by the father arose from a genuine misunderstanding between them about the operation of the Court orders which affected 5 nights of the long summer holidays. Regarding the incident at the medical clinic, the mother explained her concern that she was being set up to contravene the family violence intervention order. The mother did not admit the January 2025 and November 2024 allegations.
Prior judgments of the predecessor to this Court have included findings about the mother's shortcomings in terms of her past behaviours and past choices. There have been findings that the mother had denigrated the father and members of his household causing distress to the children and had engaged in an uncontained emotional display at the father's home in July 2021. In the past, the mother has been found to have experienced difficulties managing Y's behaviours and in getting the children to school.
In the present proceedings, the mother told the Court of her efforts to manage her mental health (medical help and medication) and to learn better parenting behaviours by attending M Services, in accordance with a family preservation order. In her trial affidavit, the mother acknowledged her diagnoses of major depression, post-traumatic stress disorder, and other mental health conditions and she deposed to taking medications for management of those conditions. She deposed to seeing a clinical psychologist every 3 to 4 weeks and produced evidence of her attendance to the Court. Prior psychiatric assessments of the mother filed in these proceedings were not updated in proximity to the final hearing and Dr C was not called to give evidence at final hearing nor were his prior reports directly relied upon in these proceedings. Dr C's assessments were summarised in prior judgements of this Court and the outcomes are consistent with the mother's admitted conditions in these proceedings.
The mother also deposed to Z's academic progress being satisfactory according to her school and that no concerns had recently been identified. The mother said that she has demonstrated capacity to care for Z by complying with Court orders to ensure Z received psychological support and providing Z to her father for visits. When pressed about her weaknesses as a parent, the mother told the Court that she considered herself to be too soft and that her daughters do not take her seriously sometimes.
Further, the mother said that she is no longer associated with the third party (with whom the mother had a prior relationship) and who was involved in some of the allegations in respect of X. At hearing she confirmed that the children are no longer exposed to that person.

[19]

The father was born in Country N, speaks English and Language O. He has a brother, parents and extended family in Australia whom the mother described as emotionally and psychologically abusive of her in the past and whose past involvement in these proceedings she disagreed with. The father has been the primary carer of X and Y for a substantial part of their lives. At the time of hearing, the father had been unemployed but just 2 weeks prior secured a casual job as a labourer and the father's partner was working 2 hours per week but received financial support from social security payments and weekly WorkCover payments having been injured at work. They live together with the partner's son, X and Y in a house owned by the father's brother. They have a private agreement to pay rent but at the time of hearing were behind on those rental payments on account of their financial situation. The father told the Court that, although he was represented by a lawyer courtesy of Victoria Legal Aid at final hearing under the rule of s.102NA, he has spent some $600,000 on legal fees in the course of the various proceedings which would have been the children's inheritance. He no longer has any superannuation and, according to his partner, has loaned the money for legal fees.
As outlined above, in 2020, the father removed the children from Victoria and took them to Queensland without the mother's knowledge, resulting in the issue of a recovery order. In 2021, the father refused to return the children to the mother's care, resulting in the issue of a further recovery order. In the course of the second return order proceedings, the father told the Court that he would not be returning to Victoria even if ordered and, in that instance, did not persuade the Court of any pressing or urgent requirement to have moved without notice. In each instance of the father withholding the children, the children were recovered by the Australian Federal Police. The mother gave non-specific evidence that, in the past, the father has not complied with the spend time conditions of the family preservation order in relation to Y and has not returned Y to the mother's care since its lapse.
In her trial affidavit, the mother gave evidence of her ongoing concerns that the father may withhold Z and described a recent incident of withholding in the 2024/25 summer holidays. The mother said that she had emailed the father seeking clarification that he would collect Z on 4 January 2025 and return her on 25 January 2025. After collecting Z, the father informed the mother that he intended to keep her in his care until 1 February 2025. Following correspondence between the mother's solicitor to the father's solicitor and a request for Z to be returned by 18 January 2025, Z was returned on 22 January 2025.
The Child Court Expert had expressed concerns in the Interim Child Impact Report about the father's communication with the children about the family dispute and his negative views of their mother. The mother also deposed to her perspective that the father continues to alienate the children and turn the children against her. She gave general examples of his past belittling and put downs in the presence of the children.
The mother also gave evidence about the father's alleged role in contravening the earlier parenting orders by recording conversations between himself and X in or around 2021. In early 2023, the mother was interviewed by police in relation to those matters and was informed that the father had provided them with copies of text messages and recordings in support of his claim that the family violence intervention order had been breached. The father was taken to extracts of police records at hearing which showed that there had been recordings made by Y between her and her mother in 2021 and told the Court that he had not known that Y was making those recordings. The father sought to characterise Y's recordings as justifiable in the context of nobody listening to her. The mother pointed to the evidence that, in early 2023, Child Protection ceased their involvement with the case at the lapse of the family preservation orders as they had no further concerns. At hearing, the father gave evidence that he has made a complaint to the Independent Broad-based Anti-corruption Commission (IBAC) alleging that Victoria Police had been biased and had not done their job properly and foreshadowed that he may yet make a complaint about DFFH's conduct of the matter.
The mother also gave evidence of her concerns about the father's capacity to provide for the children's needs based on his attitudes and behaviours including alleged alienation, refusal to pay child support, lack of commitment to co-parenting and disregard for the children's wellbeing by continual litigation.
The mother deposed to her own belief that the father's actions in continually bringing court proceedings is contrary to the children's wellbeing.
The mother accepted the benefit to Z in having her father meaningfully involved in her life but described her worry that increased involvement would risk damaging her existing relationship with Z and the existing stability in the Z's life. At hearing the mother gave evidence that she feared that the father would withhold Z in the future. However, when pressed, the mother was unable to particularise why this fear would be diminished if the father was ordered spend time with Z of 5 nights instead of 7 nights each fortnight.
No particular concerns were raised in relation to the father's mental health. He had also engaged a psychiatric/psychological assessment for purposes of prior proceedings which did not identify any concerns according to prior judgements of this Court which evidence was not directly relied on in these proceedings.
For his part, the father told the Court that he is no longer seeking to relocate to City B which was a move he had made in the past to protect the children and remove them from the familial conflict.
When questioned about his conduct in unilaterally removing the children from their mother in June 2020 and November 2021, and when asked to describe how he would typically respond if Z were to complain about her mother, the father did not give direct answers and repeatedly returned to the allegations of sexual and physical assault of X and Y. He also said that he feels the children blame him for not protecting them in those past instances. He presented as frustrated by the interventions of the justice system that have prevented him from managing the issue as he sees fit (eg. relocating to Queensland). When pressed about whether there was any explanation for his past non-observance of Court orders, the father gave a candid answer:

[21]

As to the more recent occasion in the 2025 summer holidays, the father claimed the orders were defective in this respect and in any event there was an agreement that Z join him for a family camping trip on a date that was one week earlier than the Court's orders provided. In cross-examination, he said he had not understood that he was to have no longer than 2 weeks with Z notwithstanding the agreed earlier commencement date. He also said that he had been out of contact whilst camping therefore could not get clarity from his lawyers. The father also complained that he had difficulty in reinstating his time after the school holidays.
The father strongly denied any alienation of the mother or to have influenced the children with his negative views about their mother and denied recording or requesting recording contrary to court orders. The father told the Court that he is more likely than the mother to facilitate a relationship between her and the children than the other way around and Judge Carter was wrong about her decision to the contrary.
The father claimed to have completed a parent separation program, Tuning Into Kids, but did not present a certificate in support. He also claimed to have sought support of a psychologist to get Y to spend time with her mother but, when pressed, withdrew this evidence.
In cross-examination, the father was not able to articulate how he would handle Z's issues with her mother. Whereas the father's partner gave evidence on affidavit and orally in cross-examination about her approach to Z's alleged negativity toward her mother which includes focussing on positive things and trying assist Z to put her thoughts into perspective.
The father told the Court of the impact of the Court proceedings on the children. His evidence was that Y has experienced psychological stress by being forced to choose between her mum and himself and both X and Y have been fairly distressed about not getting listened to. However, strident in his views about the mother's part, he did not appear to accept any responsibility for his own part in their circumstance.

[22]

Both parents gave evidence of a non-existent co-parenting relationship. The Child Court Expert, in the Interim Child Impact Report, had identified a toxic family dynamic giving rise to concerns about the parents' capacity to agree decisions in the children's best interests. It was not understood to be disputed that theirs continues to be a strained relationship.
The parents both gave evidence of keeping the other updated in relation to the child/ren in their respective care. For her part, the mother complained the father does not cooperate and his communication is not sufficiently regular or open. There was an example of difficult and confused communication between them precipitating the contravention application in 2024. By way of example, in respect of the frequency of updates by the father (or lack thereof) in relation to Y, the mother said that she was not kept updated by email at least monthly as the ongoing interim arrangements required. In cross-examination, the father was taken to an email with the subject line "yearly update" that he had sent to the mother in the weeks prior to the final hearing. Initially, he told the Court that he did not know that he needed to update the mother by email on at least a monthly basis about all decisions made by him in relation to (X and) Y pursuant to the ongoing interim arrangements. After further questions, he came to tell the Court that he had just started giving medical updates about Y on a monthly basis.
For his part and for example, the father said that the parents can not even communicate about the doctor.
Beyond this, both parents consider their ability to communicate is significantly impaired by the breakdown of their relationship.
The mother also deposed to lapses in child support payments due by the father over the years which, according to the evidence of the father given in Court, is now in need of being recalculated since his recent employment. The father, for his part, emphasised that he has provided for all of the children in a range of ways (including medical) over the years without contribution of the mother.
There was no evidence of any particular differences in parenting approaches from a religious or cultural perspective.
There appeared to be a looming dispute about Z's schooling. The father proposes to send Z to a public school as he claimed that he cannot afford to send her to a religious high school and has had issues with the school (outlined above). Whereas the mother maintained that it is her preference that Z (not yet commenced high school) remains at a religious school because they provide a quality education and further noted that Z is settled and progressing well at her current religious school.
In relation to medical decisions, regarding Z, the mother gave evidence of a recent occasion on 15 November 2024 when the father had informed her that he had taken Z to a GP and obtained a referral to a psychologist under a mental health plan. At the time of hearing, the father's evidence was that he had been arranging and paying for Z to see a psychologist, and the psychologist had recommended a paediatrician. It was established in cross-examination of the father that the appointments and referral had occurred without the mother's prior consent.
The father sought to respond to questions about the regularity of his communication updates with the mother (outlined below) by explaining that he has gone to lengths to support Y who came to him with a severe psychological trauma after what had happened to her, with anxiety and sensitive hearing. He confirmed that Y is not currently getting psychological help because she refuses to attend. When questioned further, he said that family therapy with her mother would be the best thing to stick with but did not accept the proposition that family therapy is a mere possibility and was not happening at the time of the hearing in order to substantiate the contention that Y is presently receiving psychological support as he had indicated.
In relation to changeovers, the ongoing interim arrangements provide for the father to effect the changeovers which is understood to complement the interim family violence intervention orders. The mother expressed her position that the father should conduct changeovers and not his family members. She alleged to have been threatened in the past by the father's brother upon changeover and to have been alleged to have harassed the father's partner and that Z has claimed the father's partner does not want to pick her up from school. The father told the Court that most changeovers happen at school however, in the school holidays, he was always forced to do it and felt the need to bring a witness on each occasion because of something the mother might do (usually his partner, in the past his dad or his brother). Ordinarily he stays in the car for changeover, except for one time which resulted in a Court order for him to stay in the car.
The mother was able to speak positively about the father's parenting saying he is protective of the children. She accepted some responsibility for the breakdown of their co-parenting relationship. The mother said that she would participate in family therapy if given the opportunity - in circumstances where she cannot afford to pay for at least half of the fee. She described her hope that X and Y would engage in family therapy so she could tell them how much she misses them and that she is so sorry for what has gone on.
The father did not articulate anything positive about the mother's parenting or any responsibility for his role in the breakdown of their relationship but was also understood to say that he would welcome and participate in family therapy. He did not give direct evidence about the matter of payment but, through his representative, submitted that he would pay for family therapy.

[25]

The most recent objective evidence of the children's views was that of the Interim Child Impact Report, which assessment was based on attendance by the children and their parents on the family consultant in August 2023.
Back then, the Child Court Expert had recorded Z's preference was to live with her father and spend time with her mother every day for one hour after school. At the time, Z was concerned about her mother's distress if she went to live with her father and therefore felt it was important she remain in regular contact with her mother. Z had spoken about her mother's cooking and believed her mother cared for her but was uncomfortable with alleged yelling. The Child Court Expert had ultimately recommended that Z's time with her father gradually increase to 4 to 5 to 7 nights in each fortnight.
In cross-examination at hearing, the Child Court Expert elaborated on her recommendations in the Interim Child Expert Report by reference to her notes and best recollection. She told the Court that she had the sense that there was a love and care that Z had for her mum and that she really wanted to protect her mum and her mum to feel okay - Z did not want to upset her mother but also wanted to still have contact with her as well. The Child Court Expert was of the view that, at the time, Z was too young to appreciate the reasons for the different orders as between her and her siblings and this had been a source of some resentment for Z but also that she wanted to be able to have the experience of living with her siblings and her father.
Also at the time of the assessment, the Child Court Expert had assessed the 3 siblings as having a very close relationship which had been a constant source of stability in their lives. At the time of their interviews, the siblings had each described their close connection with one another. The Child Court Expert told the Court that, at a general level, keeping siblings together is an important factor. However she came to express the opinion that, in the present case, the sibling relationship may be a factor weighing both positively (given their bond) and negatively (given the elder siblings' feelings toward their mother) in terms of the prospect of increasing Z's time with the father.
The Child Court Expert said there were some other issues that had a bearing on her recommendation of an escalation of time in August 2023, namely the fact that the father had a slightly greater ability to provide for Z (whether from a materialistic or a day-to-day care level) where Z had conveyed feeling uncomfortable with things like being yelled at by her mother.
At the time of hearing, the Child Court Expert said it was hard for her to comment but considered it unlikely that a shared care arrangement would work for this family based on the high conflict and the absence of a co-parenting relationship. When asked to elaborate, the expert maintained that equal time would be difficult to sustain in the circumstances known to her. Ultimately, the Child Court Expert was reluctant to give an updated recommendation not having assessed Z again since the ongoing interim arrangements or in proximity to the hearing. When informed of the ICL's instructions from Z, given on 2 occasions and most recently in August 2024, that Z desired to spend more time with her father but was happy living with her mother, the Child Court Expert initially accepted that:

[39]

The parents' competing proposals for live with, spend time and major decision-making in relation to Z are effectively a mirror image of the other. The key difference is that the father seeks to change the interim status quo whereas the mother, supported by the ICL, seeks to continue the ongoing interim arrangements and have them enshrined as final parenting orders.
The father's case is that his proposal keeps Z together with her siblings and affords Z some respite from her mother's continued denigration of him and exposure to harm that her siblings have suffered in their mother's care including serious incidents of conflict, family violence, alcohol abuse and manic behaviours. Were the mother's proposal adopted, the father contended that he is gravely concerned that Z will be at unacceptable risk of abuse in her mother's care and Z will suffer from the same harm as her siblings. He accepted that these particular fears are borne of his prior experiences but asked the Court not to accept the mother's evidence that she is now appropriately managing her psychiatric conditions and of capacity to safely care for Z absent an updated psychiatric assessment.
The father further contended that the mother has, including in more recent times, behaved obsessively toward his new partner and in a threatening manner toward Z. The mother is alleged to denigrate the partner's son in Z's presence and to have had several relationships which put the children at risk. The father also raised concerns about Z's educational progress and overall development.
And the father asked the Court to appreciate that his prior decision to unilaterally relocate all of the children to Queensland whilst Court orders provided for them to live with their mother was out of exhaustion, protection and fear about the ongoing risk to the children in their mother's care.
The mother's case, which the ICL supported, is that her proposal offers stability through maintenance of the ongoing interim arrangements. With reference to the father's history of abusive behaviours, attempted undermining and alienation of particularly the elder siblings, she contends that an increase in time spent between Z and her father will negatively impact Z's well-being and emotional stability, exposing Z to obstructive and volatile behaviours. Whilst respecting the importance of the father's role and promotion of a relationship between him and the children, the mother asked the Court to find that Z, being younger than her siblings, would benefit from continuing to live in her mother's primary care and less frequent exposure to her father's attitudes and behaviours.
Were the father's proposal adopted, the mother is concerned about an ongoing risk of alienation and damage to the mother's existing relationship with Z. The mother asked the Court to find that these considerations outweigh the allegations of family violence and abuse against her which are historical and a substantial part of the evidence about which has been comprehensively addressed and resolved in prior proceedings before this Court and the Children's Court. She also seeks changeovers be conducted by the father not his family members or partner on account of her views that his family may not encourage a positive relationship between the mother and her children.
The ICL told the Court that the reason why they had to support the current status quo is that there is really no evidence about Z, in terms of how she would react in an equal time arrangement, whether she would act well in the reverse arrangement (a 9/5 with her father as primary carer) and the Court should infer that the status quo is working for Z and should not order a change.
The ICL also told the Court that the "tipping point" in terms of time with Z was not the home base of having one household but, rather, how far one parent would go to act on their (respective) fears. The height of the submission was this:

[46]

On the basis of the admitted or uncontentious incidents alone, the evidence justifies a finding that the children have historically been exposed to family violence, abuse, emotional and psychological harm in the care of both parents. The remainder of the alleged and strongly contested instances of family violence, which in all respects pre-date the ongoing interim arrangements, do not require resolution as a matter of fact but nonetheless are to be taken into account in informing the prospective risk assessment with respect to the safety of Y and Z.
The Court is also required to consider the fact of various family violence intervention orders the history of which was before the Court and is summarised in the chronology of key events above. Most recently there was the extant interim family violence intervention order, first made in early 2022 and since extended. On its face, the order operates to protect the father and all 3 children and names the mother as respondent. It was uncontentious that the order was made on the basis of allegations that pre-date the operation of the ongoing interim arrangements ordered by this Court which have operated in parallel since 6 September 2023. A final family violence intervention order was pending hearing at the time of the hearing of these proceedings.
Pursuant to the ongoing interim arrangements, the fact of Z having spent 5 nights per fortnight with her father and 9 nights with her mother for more than 17 months is a relevant contextual consideration. In this time, Z has lived with her mother and her mother has been solely responsible for major decision-making. In this time, there have been no new reports of physical or sexual abuse in the care of either parent and no interventions of DFFH in respect of the family.
By their oral evidence given to the Court, I assessed both parents as genuinely aggrieved by their historical experiences and perceptions of the past experiences of their children, respectively having convinced themselves that history may repeat itself in relation to Z.
However, by their respective positions in these proceedings, the parents may be taken to have implicitly accepted that Z's safety (and their own safety, and that of the father's partner - as her carers) is not at an unacceptable level of risk in the other parent's care, whether that be over 5 nights (as they respectively sought) or 7 nights (as at least the father was prepared to accept). In any event, accepting that the children have historically been exposed to family violence and abuse in both parents' care, on the evidence before the Court, there is no genuine basis to draw a distinction between 5, 7 or 9 nights' time with either parent in assessing the promotion of the prospective safety of Z and her carers.

[49]

There was some expert evidence of assistance to the Court in respect of these considerations and, as the case was argued, it is convenient to make findings about the evidence in this respect together.
At hearing, the representatives endeavoured to address the limitations on the expert evidence summarised above by questioning the Child Court Expert who had prepared the Interim Child Impact Report and interviewed the family members for that purpose in August 2023. Understandably the Child Court Expert was confined to mostly generic responses because they simply did not know how the children were coping or developing at the time of hearing. Their evidence is adopted with appropriate weight in light of the identified challenges.
The mother has been the primary carer for most of Z's life which is an important consideration.
However, the benefit to Z of being able to have a relationship with both parents and other people who are significant to Z, where it is safe to do so, is also an important consideration.
Z's ability to have a relationship with her 2 elder siblings took on particular significance in the present case because more or less time with Z's older siblings was a distinguishing feature of the respective proposals. On her mother's proposal, Z would continue to live separate from her siblings for 9 nights each fortnight and, on her father's proposal, that separation would be reduced to 5 nights in a fortnight.
Tending against the continuation of a longer separation from her older siblings is the evidence of Z's close relationship with them which was observed by the Child Court Expert as of August 2023 and, according to the father and his partner's evidence, continued as at the time of hearing. Additionally, the incontrovertible fact that the sibling relationship has been a relative constant for Z throughout a lengthy period of familial turmoil.
However, Z has also been separated from her 2 elder siblings for 9 nights per fortnight for some 18 months now and has been in the primary care of her mother for most of her life to date. The elder siblings have not demonstrated any desire to spend time or communicate with their mother, where Z has in the past expressed her desire to ensure her mother is okay and to maintain a strong connection with her mother. The current strength of the sibling relationship is not known but there was no evidence before the Court to suggest that Z would be precluded from or not able to choose to spend more time with her elder siblings on either proposal.
Beyond these matters, the evidence did not demonstrate a particular benefit of 9 rather than 5 overnights per fortnight with her siblings in terms of their relationship.
The father gave evidence of concerns about Z's educational performance and the mother said her performance is satisfactory. Neither position was probatively established but both are acknowledged as the parents' respective views. The father's concerns are also understood, based on his own evidence to the Court, as strongly connected with his overall dissatisfaction with the school and its handling of matters unrelated to Z's academic performance.
There was otherwise limited evidence as to Z's particular developmental, emotional, psychological and cultural needs.
Although there is no evidence of Z's views or particular experience since 6 September 2023, the cessation of reports to Child Protection and intervention of DFFH over a period of some 18 months is supportive of a conclusion that there has been some stability for Z. At 11 years of age and having experienced significant turmoil in her family and living arrangements prior to the age of 9 years, the relative stability that Z has enjoyed since the ongoing interim arrangements is likely (albeit not absolutely known) to have positively contributed to her development and other needs.

[51]

The respective cases as to parental conflict were directed at their inability to communicate. The parents' relationship has been of such high conflict that the Child Court Expert maintained that a shared care or equal time arrangement simply could not work and was not prepared to recommend it to the Court.
The mother admitted to some past history of family violence, physical and sexual assault occasioned on the older siblings by her and when in her care. The mother has some personal mental health challenges. It was not understood to be controversial that she has used alcohol and illicit substances in the past. I accept the mother's evidence that she has since taken steps to change - having removed the risk of the third party from coming into contact with her children, sought psychological and professional help and demonstrated at least some insights to her own behaviour. It is accepted that the mother has experienced a great loss in the estrangement from her elder children and seeks to restore those relationships.
For her part, the mother could articulate positive features of the father as a parent to their children despite the history and indeed the current level of animosity between them.
The father denied any alienation of the children from their mother but could not elaborate on efforts taken to promote those relationships. His protestations were unsupported and, at times, implausible. For example, his initial evidence that he sought help via a psychologist to have Y spend time with her mother was withdrawn when pressed.
The overall impression of the father's evidence was that he is so concerned to protect his children that he cannot truly appreciate the benefit of supporting a relationship between them and their mother. And, while he is able to appreciate (or at least express an appreciation of) the impact of the various legal proceedings and interventions on the children, he did not demonstrate a capacity to reflect on how his own conduct has contributed to the difficulties his children have endured.
For completeness, the allegations of the mother's obsession with the father's partner and denigration of the partner's son were not made out but are acknowledged as consistent with past behaviours she has exhibited and indicative of the ongoing high conflict between the parents.
I also accept there is proper basis on the evidence to hold concern that Z's father will not be proactive in promoting a positive relationship between Z and her mother. Beyond this, having considered the various allegations and evidence as to their parenting approaches, the evidence discloses various human flaws but I do not find the evidence of the respective capacities of Z's mother and father to point in favour of either case.

[53]

In weighing all of the relevant factors and s.60CC considerations, the question of orders about with whom the children shall live and spend time and which parent ought have sole parental responsibility for them turns on a few fairly fine points of distinction. As earlier noted, the absence of any current evidence specific to Z presents a significant challenge for the Court in this case.
In respect of Z, I have carefully considered the respective proposals and the alternative concept of an equal time arrangement.
The parents' respective fears were assessed as real to each of them. Nonetheless, neither case can be understood to genuinely challenge the safety of Z in either parent's care (or that of her carers) because both seek there be a continuation of time spent with the other parent albeit to different (yet either way significant) proportions of overnight time.
In terms of her admitted failings in the past, Z's mother has expressed insight and endeavoured to change and improve her parenting. There have been no reports or interventions in the past 18 months and I accept that Z's mother is particularly motivated to ensure she does not repeat those mistakes which have led to estrangement from her 2 eldest children.
Having regard to the findings made above, and accepting there may be a benefit to Z in having more overnight time with her siblings, I consider this to be outweighed by Z's emotional and developmental needs which include the importance of stability in her living arrangements and a secure relationship with her mother.
On what is known of Z's developmental, emotional, psychological and cultural needs, it is in her best interests that there be a continuation of the ongoing interim arrangements as to live with, spend time and sole parenting responsibility which will enable her to spend time with her father and siblings whilst maintaining a stable home and living environment and a secure relationship with her mother. I will order accordingly in relation to Z.
In respect of Y, having regard to the above findings and the s.60CC factors, I am satisfied that the parents' consent position appropriately provides for Y's safety (and that of her carers), her developmental, psychological and emotional needs. It is also an appropriate reflection of her views as they are best able to be understood on what is before the Court. I am satisfied that it is in Y's best interests that she continue to live with her father, spend time and communicate with her mother in accordance with Y's wishes. I make these orders by consent.
I accept it is appropriate that updates be provided by the resident parent no less than once each month and the orders will so provide.

[57]

To the extent that the parents and the ICL consented to other parenting arrangements, I am not required but may and have taken into account the matters at s.60CC(2) as relevant.
The proposed restraint on the father and his agents changing the children's address outside the state of Victoria was agreed and consistent with the father's evidence as to his future intentions. This is an important issue in this case having regard to his prior unilateral relocation of the children to Queensland and it is appropriate that there be such restraint by order of the Court.
The proposed restraints on both parents and their agents would apply to attendance at the children's school(s); criticisms, harassment, threats, abuse and denigration; discussion of these proceedings; exposure of the children to family violence; exposure to parental conflict and adult matters; recording of the children during any communication or changeover; and using the children to communicate with the other parent are agreed and would be mutual. There is proposed to be separate clarification that the parents may attend school functions including but not limited to parent/teacher appointments, school assemblies, open days and presentations, sporting and other co-curricular and extra-curricular activities in which the children are involved. The evidence supports the necessity and appropriateness of such restraints, which are directed at preventing a further occurrence of historical abuse and other forms of harm. For completeness, I consider the term "agent" to cover any person acting on instruction or behalf of the parents including whether they are paid or are paying to do so and will omit antiquated reference to "servants".
Other than as already provided by the above, the parents and the ICL agreed that communication between the parents ought only occur in writing by SMS and/or email. Further, that their communication be restricted to children's matters only and they keep each other informed of contact telephone numbers and residential addresses and promptly advise of any changes (within 3 days of such change occurring). They also proposed to have recourse to family dispute resolution as a first option to resolve any future dispute about the operation of the parenting orders or the care and welfare of the children was also agreed. There was no question in this case that the parents are not able to effectively communicate or cooperate in relation to matters involving their children. The parents will not share responsibility for parental decision making in relation to any of the children which ought to minimise parental conflict yet, on the evidence, it is possible to foresee future disagreements such as Z's schooling (where the mother will retain choice to decide and the father has foreshadowed an affordability issue). In the past there have also been instances where the parents have misunderstood or disagreed about the operation of the Court's orders in relation to the duration of spend time arrangements. The children are unfortunately implicated in such issues. I am satisfied that it would be appropriate that the parents first attempt to resolve such matters by family dispute resolution (with a family relationship centre or person authorised under s.10G of the Act) going forward and that such order is in the best interests of Z and Y. I also consider such order to be consistent with the resolution of the application for harmful proceedings orders explained in the below.
Also agreed were orders about: the parents keeping each other appraised of serious illness, emergency, major medical treatment and medication; mutual access to medical information, school records and information. Those arrangements provide an important means of both parents staying appraised of significant developments with respect to the children, especially where parental responsibility is not jointly held.
The agreed order as to the application of s.68Q of the Act, which provides that an extant family violence order is invalid to the extent of any inconsistency with the orders of the Court, is self-explanatory but provides an important clarification which, with the parents' express consent, is appropriate to include given the extant family violence intervention order and the history of family violence orders in the matter.
I am satisfied it is in the best interests of the children to make orders consistent with their parents' consent position in respect of those matters.
There being no power to order family therapy, the parents' agreement on the matter will be recorded in a notation to the orders to be made.

[67]

The father's application for further final parenting orders was met with an application by the mother for a harmful proceedings order. At hearing the Court asked the representatives to address why such an order, if it were made, would not apply mutually in the circumstances of this case.
The mother's primary contention was that the father habitually abuses court processes by filing numerous frivolous, vexatious and unmeritorious applications across jurisdictions including this Court (Divisions 1 and 2), the Magistrate's Court and the High Court of Australia. She asked the Court to find that the father's continual initiation of unnecessary proceedings causes significant distress for her and jeopardises the wellbeing of the children, requiring them to relive prior traumas. Further, as the mother has been funded by Victoria Legal Aid (unable to afford her own representation), and is required to respond to each application brought, the father is creating an unjust burden on public resources.
The ICL supported this position and added that the father has expended significant amounts of money on litigation rather than the needs of the family.
The mother and the ICL opposed a harmful proceedings order against her on the basis that the evidence does not support a finding that the mother has been the initiator of applications, contravention applications and appeals. Further, given the father's past withholding and removal of the children from the state of Victoria, the mother anticipates a need to come back to the Court for an urgent recovery order or an urgent variation and a harmful proceedings order may be an impediment to her doing so. The ICL suggested that the Court could and ought make a harmful proceedings order that the father and his agents be prevented from instituting proceedings under the Act, in acknowledgment that it was the paternal uncle who had instituted these proceedings on behalf of the father.
The father did not oppose the harmful proceedings order provided that it was of mutual application to the mother and on the basis that would operate as a measure to protect the children from further litigation. In response to the concern about the potential necessity for future recovery order proceedings, the father's counsel submitted that the question of leave under s.102QAE and the ex-parte application could be decided at one hearing and there would be no prejudice.

[69]

There is a long history involving a litany of litigation and protective interventions in relation to this family. The parents are diametrically opposed on many issues but one matter they both agree on is that their children have suffered significant trauma, emotional and psychological impacts on account of the ongoing court proceedings and legal processes.
Absent any prohibition of the kind contemplated by this provision, any future parenting application made by either parent or their agent would directly involve the children through participation in child impact reports and indirectly through the involvement of their parents and other family members. Whilst it is unnecessary to demonstrate that harm has been occasioned in the past, the evidence establishes that for both Z and Y much of their lives to date have been characterised by litigation of this kind and required their participation resulting in them being forced to relive their trauma and remain at the centre of their parents' dispute. As of August 2023, the Interim Child Impact Report noted the elder children's observations of their feelings of being overwhelmed and disheartened by court processes and that the re-telling of their narrative has affected their emotional and educational development.
Beyond her contention, there was no current probative medical evidence of the psychological impact on the mother of the ongoing proceedings or the likely impact of future proceedings as may have assisted the Court to make such finding.
It may be accepted that further proceedings instituted by either parent or their agent would require a response from the other parent and cause them to incur cost. The evidence is that neither parent has the financial means to sustain the cost of further litigation and, in this way, the other parent would be inflicted with financial harm.
In the particular circumstances of this case, I am satisfied that there are reasonable grounds to believe that the children would suffer psychological harm and/or major distress if either parent instituted child-related proceedings against the other. I am also satisfied that the mother would suffer financial harm if the father or his agents were to institute future proceedings against her under the Act and the father would suffer financial harm if the mother or her agents were to institute proceedings against him under the Act.

[70]

In deciding whether to make a harmful proceedings order against the father and also the mother, the Court may have regard to the factors at s.102QAC(3)(a) to (c) which is not an exhaustive list.
In this case, it is appropriate to have regard to the history of proceedings under this Act. The detail of the many and various proceedings is uncontentious and outlined in the chronology of key events above. In summary, over at least the past 7 years, proceedings before the Court or its predecessor have resulted in outcomes earlier defined as: the first parenting orders; the first return orders; the first recovery order; the second and most recent final parenting orders; the second return orders; the second recovery order; and, most recently, the ongoing interim parenting arrangements. In parallel to the proceedings which have resulted in those outcomes, 2 procedural decisions of the Court have been unsuccessfully appealed and on one occasion to the High Court of Australia. In the course of dismissing one such appeal, Justice Edelman of the High Court of Australia described the father's application as manifestly hopeless and an abuse of process.
Relevant context also includes the series of reports to Child Protection and related interventions since 2013. Whilst an interim family violence intervention order continued to operate by extension at the time of hearing of these proceedings, DFFH had ceased its involvement with the family more than 17 months prior.
Whether the first party has frequently instituted or conducted proceedings against the other party in any Australian court or tribunal (including attempts to do so and prior to the commencement of s.102QAC) is also a relevant factor in this case. As will be apparent, most of the proceedings under the Act were initiated: by the father or the paternal uncle on his behalf; or, otherwise, by the mother in response to the father's withholding and relocation of their children. An analysis of proceedings in other jurisdictions reveals that both parents have sought to reagitate historical allegations at times proximate to Court events or hearings in a manner that has unnecessarily prolonged the involvement of authorities. In respect of the consideration of whether to make a harmful proceedings order against the mother, that she has not presented as the most frequent initiator, at times has done so in order to recover the children and mostly has been required to respond to the many and various applications and interventions are matters to be taken into account yet not determinative in the present case.
Appropriate regard has also been had to the potential cumulative effect of the resultant harm. In doing so, regard is had to the past harm occasioned on Z and Y as reasoned above.
The ICL's submission about the ongoing burden on the legal aid system and associated injustice is an apt and relevant consideration in this matter, where the interests of the administration of justice favour the making of harmful proceedings orders.
It is acknowledged that the father feels let down by the justice system and his frustrations with the justice system are underscored by the conviction of his belief as to the truth of the serious allegations of physical and sexual abuse of his elder children in the past. However, that the father has not succeeded in securing his desired outcomes does not justify his non-compliance or defiance of Court orders. The father's frank evidence about his past difficulties with complying with Court orders, and the harm likely to be occasioned on his children if this were to continue, is a relevant matter to be taken into account.
It is accepted that the mother's fear of future non-compliance with Court orders is founded in her past experience of the father having secretively removed the children from Victoria and refused to return them. Her fear is justified in light of the father's past non-compliance and frank admissions in this respect. That said, a harmful proceedings order against the mother would not impede her ability to obtain recovery orders in the event it is necessary to do because the father has contravened the Court's orders. The Court adopts a procedure whereby recovery proceedings are heard urgently, by a Judge, who would be in a position to grant leave and proceed to make recovery orders in an appropriate case.
However, in that event, it would be necessary for the other parent in each case to receive notification of future proceedings subject of an application for leave pursuant to s.102QAG. As considered above, there is insufficient evidence to support a finding that the mother would suffer emotional or psychological harm were she to receive such notification in the future and the father did not oppose being so notified.

Beckford & Beckford (No 2) [2025] FedCFamC2F 455 (9 April 2025)

At a glance

Court

Decision date

Source

Judgment (80 paragraphs)

Legislation Cited (3)

Cases Cited (4)