Briginshaw v Briginshaw

Amended pursuant to r.10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 28 March 2025

1. The mother have sole parental responsibility for decision making for the children:

(a) V born in 2008 ("V");

(b) W born in 2009 ("W");

(c) X born in 2011 ("X");

(d) Y born in 2015 ("Y"); and

(e) Z born in 2016 ("Z");

("the children"), with the mother to notify the father within 14 days of making any long-term decisions for the children.

1. The children live with the mother.
2. The father be restrained from communicating with V, W, or X unless V, W, or X express to the mother a desire to spend time or communicate with the father.
3. To effect order 3 herein:

(a) In the event V, W, or X express to the mother a desire to communicate with or spend time with the father, the mother or her nominated agent notify the father by email and propose a date and time for V, W, and/or X to spend time with the father supervised by the B Contact Service in Town C, or such other supervisor agreed by the parents in writing;

(b) The mother and father make an application with B Contact Service in Town C within 14 days of the mother's notification provided above;

(c) The supervised visits do not exceed four occasions per year unless otherwise agreed between the parents in writing.

1. The father be restrained from spending time with or communicating with Y and Z.
2. The father be restrained from instigating any communication with the mother and from approaching or remaining within 200 meters of the mother, her residence, or her place of work.
3. The father be permitted to respond to any email communication from the mother or her nominated agent within 14 days of the date of the communication.
4. The father be restrained by injunction from:

(a) Committing family violence towards the mother or the children or exposing the children to family violence;

(b) Using physical chastisement as a form of punishment;

(c) Denigrating the other party and/or any members of their extended family in the hearing and/or presence of the child and/or from allowing any other person to do so;

(d) Discussing court proceedings in the hearing and/or in the presence of the child and/or from allowing any other person to do so; and

(e) Video and/or voice recording either party or the children using any electronic device.

1. The father be permitted to send the children cards and letters to an address or postal box nominated by the mother.
2. All extant applications be otherwise dismissed.

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

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

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

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. In early 2013 the applicant father, Mr Leonis ("the father") went to the workplace of a Mr D ("Mr D") and hit him multiple times with a weapon before leaving him for dead.
2. Mr D was left with multiple severe injuries.
3. But for the attendance of another employee at the workplace of Mr D, after what the police described as a "savage" attack, it is likely that Mr D would have died. Mr D spent weeks in hospital including in the intensive care unit and in an induced coma.
4. Mr D has been left with a brain injury, is in constant pain, and is unable to work as a result of the attack by the father.
5. The father was charged in late 2017 and was ultimately convicted and sentenced to prison.
6. In his evidence, the father described his actions on the day in early 2013 as "inappropriate."
7. The matter before me concerns the father's application to spend time with his five children.

1. The father and the respondent mother, Ms Castor ("the mother") met in 2001 when the mother was about 19 years of age and the father about 30 years of age. At the time the parties met, the mother had a one-year-old son, E ("E") from a previous relationship.
2. During the parties' relationship, they had six children together:

(1) Ms F, ("Ms F") born in 2006;

(2) V, ("V") born in 2008;

(3) W, ("W") born in 2009;

(4) X, ("X") born in 2011;

(5) Y, ("Y") born in 2015; and

(6) Z, ("Z") born in 2016.

1. Ms F, who at time of trial was almost 19 years of age, is not subject to the court's jurisdiction but participated in the child impact report.
2. During the proceedings, the children were classified in two groups with V, W, and X being referred to as the older children ("the older children") and Y and Z as the younger children ("the younger children").
3. The parties remained in a relationship until sometime between 2019 and 2021.
4. During the parties' relationship, there were periods when they were either formally separated or otherwise living apart. The mother was involved in at least two serious relationships with other men, including Mr D, during these periods of time.
5. After the father was incarcerated, the mother took the children to visit the father in prison on a regular basis until the COVID-19 pandemic in March 2020, when face to face prison visits ceased. The children continued to have contact with the father via telephone and video calls on an almost daily basis until the mother ended this communication in late 2021.
6. In early 2021, the mother commenced a relationship with her current partner Mr G ("Mr G"). They now have a two-year-old son together called H.
7. The mother filed an application for divorce in 2021, claiming the parties had separated in 2019. The father opposed this application as he disputed the date of separation. The mother subsequently withdrew this application. The parties were ultimately divorced in early 2023.
8. In or about November 2021, the mother requested that the prison where the father was incarcerated remove both her and the children's telephone contact details from the permitted callers list of the father. This meant the father was no longer able to call the children from prison. The mother also ceased paying for the postal box in Town J to which the father had been sending cards and letters to the children. This effectively cut off all communication between the father and the children, save that V sent him a letter in 2022.
9. The father was released from prison in 2023 and is on parole until 2026. As a condition of his parole, he is restrained from having any contact with the mother or children without a court order and is required to wear an ankle bracelet to monitor his whereabouts.
10. The father instigated these proceedings on 31 January 2024.
11. In June 2024, the parties attended a child impact report with Ms K ("Ms K"). The older children stated at that time they did not want to spend any time with the father. The younger children had little memory of the father and seemed confused as to his identity, referring to him by another name. The mother's evidence was that this is the maternal grandfather's first name, although the children have never referred to the grandfather by his first name.
12. The Independent Children's Lawyer ("the ICL") spoke with the children on the Sunday prior to the commencement of the trial. The views of the children were consistent with those expressed in the child impact report.

1. Notwithstanding the father had been in prison for over five years, was on parole, and had not had any face-to-face contact with the children for several years, in his initiating application he sought for the children to live with him. However, he subsequently amended his application to provide for the children to remain living with the mother and for his time to recommence with the children through family therapy, video calls, messages, and supervised time. The father proposed that after he completes his parole conditions, that time progress to unsupervised time each alternate weekend from the conclusion of school (or 3:30pm) Friday until 5:00pm Sunday, on special occasions, as well as other times in accordance with the children's wishes.
2. The mother proposed orders for any time with the older children to be limited to four times per year under supervision and subject to their wishes. She opposed any time with the younger children. The mother did however agree to an order for cards and letters to be sent to the children.
3. The ICL did not have a firm position but agreed with the orders of the mother in the event the court found the father to be an unacceptable risk to the children.

1. The father relied upon the following documents:
   • his amended initiating application filed 17 January 2025;
   • his trial affidavit filed 23 December 2024;
   • his affidavit in reply filed 7 January 2025;
   • the affidavit of Mr L ("Mr L"), friend, filed 3 January 2025;
   • the affidavit annexing the report of Ms M ("Ms M"), psychologist, filed 3 July 2024;
   • the child impact report of Ms K ("Ms K"), court child expert, dated 24 June 2024; and
   • the section 69ZW response from the Department of Families, Fairness and Housing ("DFFH") dated April 2024.
2. The mother relied upon the following documents:
   • her amended response to final orders filed 20 January 2025;
   • her trial affidavit filed 19 December 2024;
   • her affidavit in reply filed 6 January 2025;
   • her notice of risk filed 13 March 2024;
   • the affidavit of Ms M annexing the family report filed 3 July 2024;
   • the child impact report of Ms K dated 24 June 2024;
   • the section 69ZW report from Victoria Police dated early 2024; and
   • the section 69ZW response from DFFH dated May 2024.
3. The ICL relied upon the following documents:
   • the affidavit of Ms M annexing the family report filed 3 July 2024
   • the child impact report of Ms K dated 24 June 2024;
   • the section 69ZW report from Victoria Police dated early 2024; and
   • the section 69ZW response from DFFH dated May 2024.

1. This matter proceeded in person save for the evidence of Ms K, which was given by way of Microsoft Teams. The mother initially viewed the trial from an adjacent courtroom at the Dandenong registry but gave her evidence in the main courtroom, with the father taking her place in that other courtroom. Although there were occasional technical glitches, I am satisfied that these did not impact the fair running of the trial.
2. I have had regard to the contents of each of the documents relied upon by the parties. I have not read anything contained in tender bundles, subpoenaed material, or any documents emailed to the court which were not otherwise separately tendered into evidence as exhibits.
3. It has not been possible to include every aspect of each of the parties' evidence. As per the High Court in Whisprun Pty Ltd v Dixon [2003] HCA 48, just because I have not mentioned something in these reasons does not mean that I have not considered it.
4. Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities. However, the more serious an allegation the more scrutiny should be given to the evidence. As set out by Dixon J (as his Honour then was) in Briginshaw v Briginshaw [1938] HCA 34 at [362]:

... The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

1. The father was an unimpressive witness who appeared to concede only matters that he could not otherwise reasonably deny. In particular, he had to concede that he had lied to police when he initially denied the offending against Mr D in 2017. It is also evident that he must still have been lying when he did confess to the assault as his version of events in that record of interview does not explain how Mr D received such severe head injuries.
2. In addition, other aspects of his evidence were inherently unbelievable, for example that he was not angry when he hit Mr D multiple times with a weapon.
3. The father also gave evidence that he was prepared to try and manipulate the court system by filing an application for residence in circumstances where he did not actually intend to seek those orders, but he believed it would expedite matters. The father conceded he had not given any thought to how this might impact the mother or his children.
4. For all of these reasons I cannot rely on the father's evidence alone where it is otherwise uncorroborated by other sources.

1. In regard to the evidence of the mother, there were also a number of aspects to her evidence which were inherently unlikely. For example, she says that she was unaware that the father was the prime suspect in the assault on Mr D until 2017 (being some four years after the assault on Mr D took place). Another example was her evidence that between 2013 and 2018, she never left any of the children alone with the father. Indeed, the mother had to concede that the father had in fact cared for the children when she was in hospital giving birth to Y and Z. In addition, she has been convicted of multiple dishonesty offences, a record of which was tendered by the father's counsel.
2. For these reasons, I cannot rely on the mother's disputed evidence alone unless it is otherwise corroborated by other sources.

1. Mr L ("Mr L") was a gentleman called in support of the father. He gave evidence to the effect that he was "a good judge of character," that he rated the father "tremendously high as a human," and described the family as "a model family."
2. Nonetheless, Mr L conceded that he had never been inside the father's home, and his interactions with the children were limited to observations at sporting events and the like. In fact, Mr L could not recall the names of all of the children and certainly not their ages. He had also never discussed with the father his offending or why he went to jail.
3. I found Mr L's evidence of no assistance.

1. The mother did not call either her mother or her partner, Mr G, to give evidence in this matter. The father consequently argues that a negative inference should be drawn that had they been called their evidence would not support her.
2. What is frequently referred to as "the rule" in Jones and Dunkel was established in the case of Jones v Dunkel [1959] HCA 9 ("Jones v Dunkel"). The rule is ordinarily raised where there is an unexplained failure by a party to call a witness or to tender documents. However, the court is not bound to draw such an inference from this alone. It must be readily apparent that the evidence that was not adduced would have shed light on a live issue in the matter where there was not otherwise evidence before the court.
3. It is evident from cases such as Primrose Meadows Pty Ltd v River View Pty Ltd [2019] VSC 263 that the rule in Jones v Dunkel is not straight forward. The party making an allegation must first establish evidence in support of the allegation before another party is required to bring evidence to rebut the assertion. Secondly, the party responding need not call a witness to give evidence already given by another witness, and, thirdly, failure to call a witness may have a satisfactory explanation.
4. The mother agrees that her mother would not give evidence in her support, as they have had a falling out. In terms of her partner, she simply said she was not asked to put him on affidavit - presumably by her solicitor. In any event, the father did not say exactly what issue he asserts their evidence would have addressed that was not otherwise before the court.
5. In such circumstances I do not propose to draw a negative inference from the failure of the mother to call her mother or her partner to give evidence.

1. Ms K's evidence was of limited value in this matter. She seemingly had no independent recollection of the interviews or the children. Her answers under cross-examination were limited therefore to the contents of the report and her general experience. The report itself was also seven months old at time of trial.
2. The affidavit of Ms M went into evidence by consent, and she was not required for cross-examination.

1. Pursuant to section 60CA of the Family Law Act 1975 (Cth), ("the Act") the best interests of a child are the paramount consideration for the court when making a parenting order.
2. Section 65D of the Act directs the court to make such parenting orders as it thinks proper.
3. The Act specifies six matters which must be considered in determining what is in the child's best interests at subsection 60CC(2). The matters to be considered include:

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i) the child; and

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

(b) any views expressed by the child;

(c) the developmental, psychological, emotional and cultural needs of the child;

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs;

(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;

(f) anything else that is relevant to the particular circumstances of the child.

1. In contemplating the foresaid matters, the court must consider any history of family violence, abuse, or neglect involving the child or a person caring for the child, together with any family violence orders that are current or have previously applied to a child, or a member of the child's family.
2. Section 60CG of the Act further requires a court when considering what parenting order to make, to ensure whatever order is made, that it does not expose a person to an unacceptable risk of family violence and is consistent with any family violence order.
3. Whilst I have considered each of these factors, I need not address each of them where one of the factors is determinative. In this case, the risk to the children is the determinative factor.

1. The mother alleges that she and the children were subject to family violence throughout the relationship with the father. She says the children are at an unacceptable risk of harm due to his lack of insight into his violence. The father denies ever having committed family violence either against the mother or the children. Given I have determined that I cannot rely on the parties' own evidence, where it is in dispute, I have necessarily turned to the other available evidence.

1. The children, including Ms F, were interviewed as part of the child impact report.
2. Ms F, who was 18 years at the time of the interviews, reported extensive violence by the father including at [24]:

She [Ms F] discussed being exposed to [the father's] physical behaviour towards [the mother] and [E] (who she stated that he disliked because he was not his child). These behaviours included throwing [E] against a wall, targeting him verbally and 'shoving' [the mother] during heated arguments. She stated that she and her siblings would go to their rooms when the arguments escalated. She spoke of seeing [the mother] highly upset afterwards and [the father] being very angry and 'really really scary.' [Ms F] stated that she and her siblings wanted to speak to [the father] initially and include him in their lives. However, after time he started to try and gain information from them about [the mother] and not about them. She said that he would get very angry at them during calls when they had nothing to talk about. [Ms F] stated that [the father] had contacted her whilst she was at school and that he started abusing her and telling her that [the mother] was using drugs and being unfaithful.

(Emphasis added)

1. The father believed that the children had been coached by the mother, but Ms K said she saw no evidence that this was the case. Indeed, Ms K found Ms F in particular to be a credible historian stating in her report at [37]:

[Ms F]'s narrative was particularly powerful and sincere with her experiences of family life and her clear recollections of situations.

1. However, there were reasons to treat the comments of the children, including Ms F, with some caution. In particular, the evidence showed that the children were aware at the time of the interviews that the father was seeking orders for the children to live in his care. Ms F and W specifically remembered an incident where the father had physically hurt W by grabbing her arm and pulling it very hard, where they both recalled the father had been angry during this occasion. Ms K conceded that the children may have exaggerated or embellished their concerns about the father to thwart an application to have them change residence to live with the father. Ms K further conceded that the sibling group may have influenced each other.
2. In this regard, I note that Ms F, who had the strongest views, assisted with bringing each of the children into the interviews with Ms K, and may have been present throughout same.
3. The children were also unaware that it was the mother who had stopped all communication between them and the father, and that it was the father's parole conditions that prevented him from contacting them upon his release. It is possible this led to feelings of abandonment. This may explain why the children's views appear to have changed dramatically from 2021 when the communication stopped.
4. The father annexed various cards and letters, which, on the face of it suggest they had a loving relationship with him up and until late 2021. Ms F told Ms K that the father would "constantly harass the children to send him cards and would become aggressive if they did not do this" and said that she wrote most of the cards on behalf of the sibship to "appease him." I cannot discount the possibility that she was reinventing history to support the mother.

1. The material tendered into evidence from Victoria Police and DFFH includes allegations made by both parties about violence during the relationship, both towards each other and towards the children.
2. The police have not laid any charges against either parent in this regard, although, there was a family violence incident report in 2003 which records the father as the perpetrator and the mother as the victim, stating that the victim, was "suffering facial injuries but not wishing to press charges." Otherwise, the police material does not show ongoing family violence incidents between the mother and the father.
3. Rather, the police material primarily concerns the mother and her tendency to have confrontations with others in the community. The mother referred to this as "having words" but conceded she had been charged with assault, (albeit those charges were withdrawn) was accused of burning down a house (no charges were laid), and fined for assaulting a man called Mr N.
4. In regard to the DFFH information, the father asserts that the material primarily raises concerns about the mother rather than himself. He tendered into evidence a report from 2009 in support of this assertion. However, the report raises just as many concerns about the father as it does about the mother.
5. In that report from 2009, E, who was around nine years old at the time, made allegations that the father threatened to beat him "black and blue" and that the mother hit him with a broomstick. He also reports that a year earlier, in 2008, the father had held him down whilst the mother "belted him with a belt." Each of the parties specifically denied those allegations in these proceedings however the DFFH were sufficiently concerned to issue a protection application removing E from their care. It is noted that the DFFH assessed E, Ms F, and V as likely to suffer significant harm and made recommendations, with respect to both the mother and the father (being Mr Leonis, and not E's biological father) not to hit or hurt the three children. Ultimately, the protection application with respect to Ms F and V was withdrawn and E returned to the mother and father's care, on the undertaking of both the mother and the father that they would access appropriate supports.
6. It appears on the evidence that each party has committed family violence and that the children have been exposed to this and at times have been the targets of that violence.
7. It also appears on the evidence that the mother was prepared to leave the children with the father for lengthy periods of time when it suited her, in particular going camping with her new partner. I infer from this that she did not see the father as a risk to the children, at least at that time.
8. Whilst the father raised a myriad of concerns about the mother's treatment of the children, including stating that she was "a dangerous woman" who had physically disciplined them with a strap, he did not seek the children be placed in his care, or that she be supervised in her contact with the children. The father also said he had "the utmost respect" for her as the mother of his children.
9. To the extent that the father committed family violence, this does not appear to have impacted on the children's desire to want to spend time with him.
10. Material from DFFH states that in 2020, the children loved both their parents and missed their father.
11. Although the mother's evidence was that she visited the father out of obligation or due to coercion by him, I do not accept this. The mother sent the father a number of letters and cards which indicate otherwise. She says she did so to appease him, however, I have considered the contents, and they appear to go beyond what would be reasonably necessary to do so. In one particular letter the mother says to the father as follows:

This is the hardest thing by far I have ever had to deal with & will ever have to deal with. You not being here with us is heartbreaking. We miss you every second of everyday & every moment your not here is unbearable.

I don't know how to be happy anymore, I feel like a miserable sad sack of shit who isn't present. Life is incomplete without you.

I love you so much I cannot explain it & the words I love you don't seem to be big enough or strong enough for how I feel for you.

You are a amazing husband & father a& we are so proud & feel so lucky to have you love & support us.

I am so tired & just worn down.

I dream of the day you are home with us & the feeling of you holding me & rubbing my back so I can fall asleep & for the kids to have their daddy tuck them in & kiss them goodnight.

Please don't ever doubt by love for you, because it's the only thing in life I'm sure of & a few bad chapters does not mean our story is over, we have gone through things that would tear most apart & we have come out stronger & more committed to each other.

Please remember the little message I sent to you at work one day.

I loved you yesterday, I love you still. I always have & aways will.

I choose you.

And I'll choose you,

In a heartbeat.

I'll keep

You are my best friend & the love of my life.

I live from visit to visit, its what keeps me going. Your in my mind every second of every day.

Love, [Ms Castor]

(Errors as per original - emphasis added)

1. Although the mother denied it, I find that the parties continued to be in a committed relationship throughout the period of the father's incarceration up and until 2021, and that the mother willingly visited the father in prison during that time. I note the mother was seeing another man, a Mr O, in 2020 however the mother had previously seen other men during the parties' relationship, so this does not lead me to conclude that the parties relationship had ceased. It is also likely in my view that the mother was a willing participant in the sexual activities the parties engaged in during the prison visits, rather than a victim of the father's sexual abuse, and that the children, or some of them, may have been exposed to this.
2. Another particularly disturbing aspect of the case was the evidence concerning the mother smuggling tobacco into the prison on a regular basis in the children's underwear. It is common ground that the father would transfer the mother $500 for each bag of tobacco she brought into the prison. The mother says she was forced to do so by the father, however, I did not get the impression this was the case from the manner in which the mother gave her evidence. Furthermore, in circumstances where she was struggling to make ends meet whilst the father was imprisoned, the mother received a substantial financial benefit from doing so as it gave her some $440 profit for each bag, and sometimes she was able to bring two into the prison. The fact that the children were subjected to this "smuggling" on a weekly basis for what may have been years is something I find to be extremely concerning. The children would clearly be aware that what they doing was illegal, or at least in breach of prison rules, given they were putting the tobacco in the gusset of their underwear.
3. It seems likely to me that upon the mother commencing a relationship with Mr G in 2021, the communication between the parties deteriorated. It is during this period that the father is reported to have told both Ms F and V that their mother was being unfaithful. This in turn appears to have led to the mother ceasing all communication and contact between the father and the children. The mother says she do so because of the comments to the children and because the father was aggressive on the phone and bombarding the home with calls. I do not accept the father's calls to the children were excessive in themselves. The father explained during cross-examination that each prison call had a 12-minute time limit and therefore with so many children, he had to call back repeatedly to speak to each of them, which seems perfectly reasonable in the circumstances. However, it is likely that the father, upon discovering the mother had commenced a new relationship, was agitated and angry at times on the phone.
4. The mother said she felt relief when the Covid-19 pandemic restrictions kicked in and further relief when she ceased all contact with the feather, saying she "felt peace" for the first time. This may have been the case, however, in all likelihood it suited the mother to be able to move on with her new partner without having to deal with the father's animosity about it.
5. What was evident was that upon the father being released from prison, the mother contacted his mother, the paternal grandmother, and left a voice message offering for the father to spend time with the children. The mother says she left this message in order to find out if the father had been released, however, the voice message was played to the court and the tenor of the message, does not convince me that that was her motivation. What seems more likely is that the mother was prepared for the father to see the children until she became aware of his application for residence. The mother's voice message was sent in November 2023, and the father filed his application in this court in January 2024.

1. I am not satisfied that the mother believes the children are at an unacceptable risk of harm from being exposed to family violence or other abuse. However, the mother's belief is not determinative.
2. In the end, the father left a man for dead. I am not satisfied that he accepts responsibility for doing so or has any insight into the gravity of his behaviour. He described the offending as "inappropriate and unnecessary and that it was the wrong thing to do." Such words completely belie the nature of the injuries and the ongoing impact on the victim.
3. Although the father has done several courses, including a course called "taking responsibility" he continues to put the blame for the vicious attack, committed by him, on the mother who he says put him up to it, and has never been honest about what occurred.
4. I cannot dismiss the possibility that the mother encouraged the father's behaviour or at least did not dissuade him from confronting Mr D because he may have caused the mother to receive a sexually transmitted disease. However, there is no evidence the mother was aware or could reasonably foresee the father would beat Mr D so badly that he almost died.
5. Furthermore, it is disturbing that the father says he was not angry at the time of the offences, which if true, is of even greater concern. He asserted there was a difference between being "assertive" and "angry."
6. In Batas & Gaire (No 2) [2024] FedCFamC1F 672 Kari J set out at [55] the two stages involved in assessing risk and whether it is unacceptable:

(a) Firstly, the fact-finding exercise, which may include findings about any allegations that have been made, together with any admissions made; and

(b) Secondly, the predictive exercise which involves the assessment of the evidence and circumstances, including but not limited to any findings/lack of findings/ inability to make findings.

1. In Deiter & Deiter [2011] FamCAFC 82 at [61] the Full Court said as follows:

Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.

1. Pursuant to the Full court in Isles & Nelissen [2022] FedCFamC1A 97 a risk of some occurrence may be tolerable, but an unacceptably high risk of the same occurrence is not.
2. I accept that the father's offending occurred over 12 years ago and that he has not come to the attention of the authorities since. I also note that I am unable to make a specific finding on the evidence that the father has physically abused the children. However, he has shown he is capable of extreme violence for which he has little insight. Although the likelihood of the children being exposed to such violence is small, the severity of the consequences makes the risk an unacceptable one.
3. Nonetheless, I must also determine if that risk can be ameliorated. The father seeks orders that he be reintroduced to the children in family therapy and that his time initially be supervised. However, I find that the children should not be put through family therapy and in the case of the younger ones, an introduction (or re-introduction) to a father they do not remember, unless it is in their best interests for their time with the father to progress. Until the father demonstrates insight into his violence, he remains a risk to the children and therefore the time would have to be supervised indefinitely. The mother proposes orders that in the event the older children, being V, X and W, express a desire to spend time or communicate with the father, that the time be supervised at the B Contact Service in Town C. I shall make orders in those terms, when the same can be accommodated.
4. In the meanwhile, the children need to know the father did not abandon them. He ought to be able to send them cards and letters and the mother and ICL consented to such an order being made.
5. In terms of parental responsibility for decision making, the father conceded in his evidence that he was agreeable to the mother making the decisions provided he was informed about them. He did not seek to be part of the decision-making process just to be told. He trusted the mother to make the right decision. This was in keeping with the order proposed by the mother and supported by the ICL, and accordingly, I will make an order to that effect.
6. Finally, the mother seeks various injunctions including preventing the father from contacting and communicating with her or the children or committing family violence. Although the father is currently restrained from any contact with the mother or children by virtue of his parole, this ends in 2026, and I presume his parole may be subject to variation. As such, I will make the injunctions as proposed to ensure the mother and children's ongoing protection.
7. For all of these reasons I make the orders as set out at the commencement of this judgment.

I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins.