Armonas & Armonas
[2025] FedCFamC1F 220
•4 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Armonas & Armonas [2025] FedCFamC1F 220
File number(s): MLC 2188 of 2020 Judgment of: WILLIAMS J Date of judgment: 4 April 2025 Catchwords: FAMILY LAW – PARENTING – Where the father has a long-term history of illicit substance abuse, and misuse and/or abuse of prescription medication – Father has suffered from several drug-induced psychoses culminating in a series of hospitalisations – Where the father’s account of his history of substance abuse was not transparent, fulsome nor truthful – Where the father has failed to meaningfully engage with treating practitioners, and attempted to silo information rendering it impossible for treating professionals to reach a reliable diagnosis and treat him appropriately – Failure to adduce proper expert evidence of the father’s wider personality functioning, and the impact on his mental health of his substance abuse, both illicit and prescription drugs – Finding that the father poses an unacceptable risk of harm to the child – Unacceptable risk of harm cannot be ameliorated by safeguards – Where the mother is a highly motivated and competent parent who is able to continue to provide for the child’s needs – Order for the mother to have sole parental responsibility for decision making in respect of major long-term issues – Order for the child to spend no time with the father. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61D, 61DAA, 65DAAA
Family Law Amendment Act 2023 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth)
Cases cited: B and B (1993) FLC 92-357
Eastley & Eastley (2022) FLC 94-094; [2022] FedCFamC1A 101
Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Jones and Dunkel (1959) 101 CLR 298; [1959] HCA 9
Lainhart & Ellinson (2023) FLC 94-166; [2023] FedCFamC1A 200
M v M (1988) 166 CLR 69; [1988] HCA 68
Rader & Rader & Ors (No 2) [2019] FamCAFC 227
Re David (1997) FLC 92-776
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 223 Date of hearing: 10-14 February 2025 Place: Melbourne Counsel for the Applicant: Ms Borger Solicitor for the Applicant: Feeney Family Law Counsel for the Respondent: Ms Dellidis SC Solicitor for the Respondent: Clancy & Triado ORDERS
MLC 2188 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ARMONAS
Applicant
AND: MS ARMONAS
Respondent
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
4 APRIL 2025
THE COURT ORDERS THAT:
1.All previous orders with respect to the child, X, born 2020 (“X”) be discharged.
2.X live with the mother.
3.The mother have sole responsibility for decision making in respect of major long-term issues for X.
4.The Court declares that s 61CA of the Family Law Act 1975 (Cth) does not apply to the mother, the father, and/or X.
5.X spend no time with the father.
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 the pseudonym Armonas & Armonas has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Williams J
INTRODUCTION
The application before the Court concerns the living arrangements of the child, X, born 2020, who is currently five years old.
The applicant father (“the father”) and the respondent mother (“the mother”) separated when X was an infant, and since then have been embroiled in continuous litigation about the time X should spend with her father.
It is uncontroversial that X will live with her mother, and therefore the primary issue for determination is whether X should spend time with her father and if so, what conditions should be imposed to ensure her safety and mitigate the risk to her, given the allegations of serious risk raised by the mother. The parties are also in dispute about whether the mother should consult with the father prior to her making long-term decisions pertaining to the child, although they both agree the mother should have sole responsibility for long-term decision making.
According to the mother, the issue of risk arises from the following three factors: the father’s long-term use of a range of illicit substances including ketamine, amphetamines, methamphetamines (ice), gamma-hydroxybutyric acid (GHB), cocaine, and cannabis, his use/misuse/abuse of prescription drugs including sedatives, opioids, antidepressants, and anti-psychotic medication, as well as his chronic and acute mental health issues, involving multiple drug induced psychosis, admissions to mental health facilities, and involuntary detentions in a psychiatric hospital.
The mother seeks orders for no time between the father and X unless otherwise agreed between the mother and father in writing, in circumstances where the Court suspended the father’s regular supervised time with the child on 24 September 2024, and in his absence made orders providing for time between the father and the child to be as agreed between the parties. She also seeks an order for long-term decision making to be solely vested in her, without any requirement to advise or consult with the father.
The father seeks orders for the reinstatement of his time with X, initially professionally supervised for six visits in consecutive months, and thereafter progress to unsupervised day time and ultimately overnight time. Concurrently with his time, the father proposes a regime of drug testing and that he attend upon a psychologist. He also seeks orders for the mother to advise and consult with him in writing, prior to making long-term decisions for the child. He asserts he has not used illicit substances since early 2024 and relies on a series of drug tests to support his assertions.
For the following reasons, I determine it is in X’s best interests for the Court to largely accede to the mother’s application, so that the child will spend no time with the father, and the mother should not be required to advise or consult with the father prior to long-term decision making.
ISSUES IN DISPUTE
The following issues required determination:
(a)Is X at unacceptable risk of harm if she spends time with the father, arising from his illicit drug use, his prescription drug use/misuse, and his mental health;
(b)If yes to the above, can the risk of harm be ameliorated;
(c)If so, what orders are in X’s best interests; and
(d)Should the mother be required to consult with the father and make a genuine effort to reach agreement with him, prior to making a long-term decision about X.
BACKGROUND
The father is aged 52 and is a health professional, who voluntarily relinquished his Australian Health Practitioner Regulation Agency (“AHPRA”) registration following an investigation by AHPRA. He is currently unemployed, although aspires to regain his AHPRA registration. The mother is aged 41 and is engaged in X’s fulltime care. The father has a son from a previous relationship, Y, who is now 11 years old and lives with his mother in Queensland.
The parties commenced a relationship in 2014, when they were living in Victoria, married in 2016, and separated in February 2020, when X was an infant.
The father currently lives in Victoria with his parents, and the mother and X currently live in Region C in New South Wales.
The father was involved in family law proceedings with Y’s mother about the time he spends with Y. Those proceedings were resolved by consent in late 2024, without a testing of evidence. The orders provide for Y to spend graduated time with his father, culminating in unsupervised overnight time, subject to the father complying with preconditions over an 18-month period.
As at the date of trial, the father had not spent time with nor communicated with X since October 2024. The current orders prescribing his time with X were made in his absence on 24 September 2024, which provide for X to spend time and communicate with the father as agreed between the parents in writing.
Senior counsel for the mother prepared a comprehensive chronology which she relied upon in her final submissions. During her final submissions, counsel for the father agreed with the chronology, except for the description of some events, which she did not specify. The chronology is Annexure A to these reasons.
THE PROPOSALS OF THE PARTIES
The father’s counsel provided an Amended Minute of Proposed Orders which is Annexure B to these reasons.
Senior counsel for the mother also provided an Amended Minute of Proposed Orders, which is Annexure C to these reasons. The mother changed her position after observing the father’s evidence and cross-examination over three days.
MATERIAL RELIED UPON
The father relied upon the following documents:
(a)Amended Application for Final Orders filed 3 February 2025;
(b)Father’s trial affidavit filed 20 December 2024;
(c)Affidavit of Mr B (Drug and Alcohol Counsellor) filed 11 December 2024;
(d)Affidavit of Dr E (Consultant Psychiatrist) filed 28 November 2024;
(e)Affidavit of Dr D (Director of Toxicology) filed 20 January 2025;
(f)Outline of Case document filed 3 February 2025;
(g)Family Report of Dr F dated 7 February 2025; and
(h)Documents tendered by counsel, including documents produced pursuant to subpoena.
The mother relied upon the following documents:
(a)Amended Response to Initiating Application filed 29 November 2024;
(b)Mother’s trial affidavit filed 13 January 2025;
(c)Mother’s affidavit, annexing medical report from Dr G and psychological report of Dr H filed 11 October 2024;
(d)Mothers’ affidavit, annexing medical report from Dr J filed 18 October 2024;
(e)Notice to Admit served 25 January 2025
(f)Family Report of Dr F dated 7 February 2025;
(g)Outline of Case document filed 4 February 2025;
(h)Affidavit of Dr K filed 18 November 2020; and
(i)Documents tendered by counsel, including documents produced pursuant to subpoena.
The following documents were tendered during the course of the trial:
Exhibit Number
Description
F-1
Police report dated June 2023.
F-2
Police report dated August 2024.
F-3
Recording of incident in early 2023 between the father and Ms L.
F-4
Mr B – Case Note 1.
F-5
Mr B – Case Note 2.
F-6
Further report of Dr E dated 6 February 2025.
F-7
Letter by email to Clancy & Triado dated 13 December 2024.
F-8
Letter to Feeney Family Law dated 13 January 2025.
F-9
Emails to and from Dr D dated 28 August 2024.
F-10
Letter to Feeney Family Law from Clancy & Triado dated 17 October 2024.
F-11
Letter to Clancy & Triado from Feeney Family Law dated 28 November 2024.
F-12
Letter to Feeney Family law from Clancy & Triado dated 2 December 2024.
F-13
Letter from Dr E to Feeney Family Law dated 21 November 2024.
M-1(a)
Statement of father dated 20 June 2023.
M-2(b)
Email from Mr M to Dr N dated 7 May 2023.
M-3(c)
Progress notes dated 7 February 2024.
M-1
BB Health Service admission form 2022 (undated).
M-2
Triage Screen O Hospital dated late 2022.
M-3
Risk screen O Hospital dated early 2023.
M-4
AHPRA Notification of Outcome dated 2023.
M-5
SMS bundle of messages between Mr Armonas and 4 mobile numbers, 31 March 2023 – 31 October 2023.
M-6
Transcript of telephone call between child’s paternal grandmother, paternal uncle, and mother.
M-7
Dr N’s notes regarding the father.
M-8
Email from CAT Team to Dr N.
M-9
Emails from Mr M to Dr N.
M-10
Fathers’ affidavit in the proceedings relating to Y, 7 June 2023.
M-11
Dr P’s file notes dated 11 January 2024 to 20 February 2024.
M-12
Emergency documents notes, Q Health Service dated early 2024.
M-13
SMS and photos from father to mother dated 7 August 2024 to 16 August 2024.
M-14
Fathers email to Dr E dated 11 November 2024.
M-15
Dr E’s file note regarding consultation with the father dated 14 November 2024.
M-16
Fathers email to Dr E dated 25 January 2025.
J-1
Affidavit of Dr R.
J-2
Affidavit of Ms S.
J-3
Family Report – Armonas & Armonas, 7 February 2025.
J-4
Ms Armonas – Individual psychological evaluation.
J-5
Dr K Family Report – Armonas & Armonas.
J-6
Mr Armonas – Individual Psychological Evaluation.
EVIDENCE
The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
The father and mother relied upon their respective affidavits. The affidavits exhaustively recounted the history of the parties’ relationship. I have examined that evidence and do not propose to repeat it in these reasons.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
CREDIBILITY OF WITNESSES
The father, Mr B, and Dr E all gave evidence on behalf of the father and were cross-examined by senior counsel for the mother. Dr D was not required for cross-examination.
The father was clearly intelligent, and a somewhat challenging witness, who sought to give his answers through the prism of his current beliefs. Significantly, he attempted to present his case as having been abstinent from illicit substances since 2024, and confident in his continued sobriety and capacity to parent X. Regrettably, he was less than forthright with the two treating health professionals he relied upon, and I gained the impression he was selective with information provided to various people, so that they would fall into his narrative. For example, he did not disclose to his treating psychiatrist that he had failed to re-engage with T Health Service in May 2024, when he had been scheduled to do so. His description of his self‑discovery odyssey to Country U in late 2024 omitted any reference to his attendance on Mr B, his drug and alcohol counsellor in September 2024, which painted a very different picture of his presentation on the day he returned from Country U. Similarly, the father’s lack of candour about Ms L (“Ms L”) was inexplicable. The selective snippets of information about Ms L and her alleged stalking of him, including either being on his roof or arranging for other people to do so, were difficult to piece together and fell short of a comprehensive and credible explanation of this issue. There was no objective corroborating information, other than self-serving police reports made by the father and text messages from random phone numbers, with no verification of the identity of the sender, other than the father’s say so that Ms L had caused the messages to be sent. He did not provide any court documents to substantiate her alleged conviction, or indeed whether she was even present or aware of the asserted hearing and did not provide any context to the incident of early 2023, which was an argument between the father and supposedly Ms L, which was tendered as Exhibit F-3. I do not accept the father as a reliable witness and have significant concerns that he has attempted to portray himself in the best possible light, and to skew and manipulate the narrative about his drug addiction and mental health struggles to suit his own purposes.
Mr B was the father’s counsellor. He presented as reasonably candid, although he was initially vague about the reason he had counselled the father, which he later conceded was primarily alcohol focused, as opposed to drugs. I accept his professional opinion and observations of the father, as recorded in his case notes (Exhibit F-4 and F-5) which were referred to in cross-examination by senior counsel for the mother. I refer below to his evidence in greater detail.
Dr E, consultant psychiatrist, is the father’s current treating psychiatrist, to whom the father was primarily referred in the context of his attention-deficit/hyperactivity diagnosis (“ADHD”). Dr E presented as somewhat guarded, and clearly did not have a fulsome picture of the myriad of problems confronting the father. Given the limitations of his experiences with the father, he was truthful, although somewhat defensive, and I accept his professional opinion. I refer below to his evidence in greater detail.
Dr D provided an analysis about the results of the father’s drug testing, in circumstances where the mother challenged the veracity of the father’s drug testing regime. Dr D was not appointed as a single expert witness by both parties, as should have occurred in compliance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Despite that deficiency, I granted leave to the father to rely on his affidavit. Dr D was not required for cross-examination, and I therefore accept his evidence as unchallenged. Notwithstanding the admission of Dr D’s evidence, the father did not seek to provide an explanation why he failed to provide to the mother’s lawyers evidence of his prescribed drugs at the time of the testing, as had been requested, and thereby attempt to alleviate her scepticism about the father’s asserted sobriety, save that his counsel submitted the objective of the drug testing regime was to detect illicit substances and not necessarily prescription medication.
The mother gave evidence and was cross-examined by counsel for the father. There was no objection to the mother annexing the reports from her various medical practitioners, although it should be noted that the practitioners themselves should have sworn affidavits annexing their respective reports. None of the medical practitioners were required for cross-examination, and I accept their unchallenged evidence.
The mother was a thoughtful and considered witness who gave clear and direct answers. She did not obfuscate and was acutely precise about her most of her recollections of her dealings with the father over the years. She appeared sincere and concerned for the safety of X in the father’s care. There was no trace of vitriol in her references to the father’s conduct, but rather a sense of anxiety and exasperation of the long-term saga of the father’s addictions and mental health, and the draining effect on her own mental health. She seemed to have reached the point of no longer having any confidence in the father’s protestations of sobriety and improved mental health, which is reflected in her amended proposal, which was formulated after her observance of the father’s evidence in cross-examination spanning three days. I accept her as a witness of truth and where her evidence differs from the father, I prefer her evidence.
The Family Report writer, Dr F, prepared a Family Report dated 7 February 2025 and a psychological evaluation of both parties, also dated 7 February 2025. She was cross-examined in person by both counsel. Dr F was a highly impressive and thorough professional witness. She made appropriate concessions when presented with additional information, of which she was previously unaware. Her observations of the parties and her evaluation of the family dynamic were consistent with my observations. Her Family Report, psychological reports, and oral evidence were considered, insightful, and logical. I accept her opinion and attach significant weight to her evidence. Her evidence is discussed in detail throughout these reasons.
THE APPLICABLE LAW
This case was heard after the enactment of the Family Law Amendment Act 2023 (Cth). The legislative changes therefore apply to this case and the consideration of best interest factors below reflects the relevant legislation as at the date of final hearing.
The legal principles applicable to parenting disputes
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders.
Section 60CC of the Act sets out how the Court is to determine what is in a child’s best interest by reference to general considerations (s 60CC(2)). Section 60CC(2) sets out a non-hierarchical list of considerations which I must take into account, being:
(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.
Subsection 60CC(2A) provides:
In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
Abuse in relation to a child is defined in s 4 of the Act and means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
In considering what order to make, s 60CG of the Act requires the Court, to the extent possible, to ensure that the order does not expose a person to an unacceptable risk of family violence and enables the Court to include in the order any necessary safeguards.
How the Court approaches allegations of unacceptable risk
The primary issue that informs what time, if any, X should spend with her father, and if so, whether the time should be supervised, is the issue of the risk arising from the father’s drug use and mental health. There was no suggestion the father posed a risk to X arising from family violence.
The father’s behaviour giving rise to an unacceptable risk of harm to X, as contended by the mother is identified at [4] above.
The mother contends her concerns have continued notwithstanding the father’s assertions, which she does not accept, that he has abstained from illicit substance abuse as from early 2024.
Conversely, the father contends that because he has maintained abstinence from illicit drugs since early 2024, he does not pose an unacceptable risk to X and his time with X should be reinstated.
The High Court in M v M (1988) 166 CLR 69 (“M v M”) at [76] observed:
… it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence…
….
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw…
(Footnotes omitted)
Further, the High Court states at 77 – 78:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A. v. A.), "an element of risk" or "an appreciable risk" (Marriage of M.), "a real possibility" (B. v. B. (Access)), a "real risk" (Leveque v. Leveque), and an "unacceptable risk": In re G. (A minor). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In Isles & Nelissen [2022] FedCFamC1A 97, the Full Court of this Court (Alstergren CJ, McClelland DCJ, Aldridge, Austin, and Tree JJ) reconsidered the issue of unacceptable risk. In the course of their reasons, their Honours observed that unacceptable risk is not to be established on the balance of probabilities.
Simply put, the Court is required to make factual findings about past relevant disputed events underpinning the allegations, to the requisite standard of proof and then on the basis of those findings and other relevant considerations, predict the level of future risk to a child. In carrying out the risk assessment, the Court assesses both the prediction of future harm and the severity of the impact, if such harm were to eventuate. The possibility of future harm and severity of harm may be determined as unacceptable.
As the Full Court observed at [47]:
…. The civil standard of proof is not the measure by which an unacceptable risk of harm is to be assessed. The civil standard of proof is reserved for the proof of facts, the positive or negative findings in relation to which could well feed into any alternative finding about the existence of an unacceptable risk of harm.
Their Honours at [50], agreed with and adopted the commentary of Austin J in Fitzwater v Fitzwater (2019) 60 Fam LR 212 (“Fitzwater”). At [132]–[142] of Fitzwater, his Honour observed:
132.Having eschewed the need for any positive factual finding that the father had sexually abused the eldest child, the mother’s case was instead that the evidence was still sufficiently persuasive to establish the risk of sexual abuse posed by the father to the children, and furthermore, that the magnitude of the risk was unacceptably high, such that it could only be attenuated by the imposition of the children’s permanent supervision when spending time with the father. The trial judge properly understood that to be the nature of the mother’s case, as is evident from the reasons for judgment (at [1], [31], [60], [497], [501]). Consequently, the mother and the trial judge were entirely focussed on what the evidence implied was the risk of harm to the children in the future; not what probably did or did not happen in the past.
133.In civil proceedings, s 140(1) of the Evidence Act provides the “case of a party” must be found proven if the court is satisfied of its proof on the balance of probabilities. For that purpose, the “case of a party” is defined (in the Dictionary to the Evidence Act) to mean “the facts in issue in respect of which the party bears the legal burden of proof”. The substantive law determines where the legal burden of proof falls in respect of facts in issue.
134.It must be borne in mind that proceedings in respect of children under Part VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at 76; ZP v PS (1994) 181 CLR 639 at 647). The paramount consideration in Part VII proceedings is the child’s best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character (CDJ v VAJ at 188-189). The resultant orders represent the court’s discretionary judgment about how the child’s interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at 231).
135.The conclusion reached by a court in Part VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”)).
136.In Malec, Brennan and Dawson JJ said (at 639-640):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur…
…
…To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation…
and Deane, Gaudron and McHugh JJ said (at 643):
…The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring…
137.The High Court was there referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald & Karrington (2016) FLC 93-726 at [60]; Bant & Clayton (2015) 53 Fam LR 621 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
140.It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis & Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington & Cade (No.2) (2009) FLC 93-422 at [56]-[61]; Johnson and Page at [68], [71], [76], [77]).
141.Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the “access” order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father’s appeal was dismissed because the possibility of the child’s past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child’s future sexual abuse.
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
Turning now to the s 60CC(2) considerations.
GENERAL CONSIDERATIONS
What arrangements would promote the safety of the child and each person who has care of the child
Under this consideration, I will deal with the risk factors asserted by the mother and whether the father poses an unacceptable risk to the child.
The gravamen of the father’s case is that he is in “recovery” from his illicit drug use addiction, having last used illicit drugs in February 2024, and consequently does not pose an unacceptable risk of harm to X, if she were to spend time with him, initially supervised for six visits and thereafter progressing to unsupervised time, eventually culminating in overnight unsupervised time. He also proposes a future regime of drug testing and attendance on his mental health practitioners. He is regretful that his past drug usage has adversely impacted on his relationship with X.
According to him, prior to his relapse in early 2024, he had not used illicit drugs for the preceding six months. Following his relapse, he consulted with his psychiatrist, Dr P, and his previous psychiatrist Dr N, and decided to admit himself to a rehabilitation facility. He underwent treatment at T Health Service in Melbourne for several days in early 2024 and has maintained sobriety since. He describes that experience as “spiritual” or “psychological”, rather than physical.[1]
[1] Affidavit of the father filed 20 December 2024, paragraph 101.
Although he does not specifically say so, it can be inferred the father does not consider he poses a threat to X arising from his use/misuse of prescription medication, nor arising from his mental health.
Contrary to the father’s assertions, the mother remains highly sceptical about the father’s sobriety and mental health because her trust in the father has eroded over time, with each broken promise made by the father to stop abusing substances. She considers the father to have been constantly deceptive, dishonest, and manipulative about his substance abuse and mental health.
The mother is significantly concerned about X spending time with her father because of his mental health problems, chronic history of drug use, personality issues, inconsistent contact with X, and lack of responsibility and accountability. Her experience of the father is that he minimises both his drug use and the reality of his mental health difficulties and fails to appreciate the ongoing impact of his conduct on both the mother and X.
She remains unconvinced the father has provided sufficient information to her or demonstrated sufficient insight for her to accept the risks posed by the father to X, are outweighed by the benefit of X having a relationship with her father.
In her trial affidavit, the mother details the father’s lack of disclosure during these proceedings about his health, including diagnosis, prognosis, and treatment, his use of prescription medication, his use of illicit drugs, issues raised by and within his medical practice, and his dealings with AHPRA. To attempt to piece together a better understanding of the father’s functioning, she has had to issue subpoenas to obtain information about him, and she remains concerned the father’s trial affidavit is not a true and comprehensive account of the father’s difficulties.
In this proceeding, the factors which inform an assessment of risk are:
·Whether the father has been transparent and candid about the duration of his substance abuse and mental health problems;
·The father’s sobriety including whether he is currently abstinent from illicit drug use and misuse of prescription medication;
·The father’s current mental health; and
·Whether the father has engaged with appropriate health professionals to manage both his substance abuse and mental health.
Turning now to consider each identified risk factor.
Whether the father has been transparent and candid about the duration of his substance abuse and mental health issues
It is not disputed the father has had several health and personal issues over the last couple of years, which have impacted his relationship with X.
In his trial affidavit, under the heading “history of my mental health and substance use issues” the father attributes the commencement of his drug use to an injury, for which he required surgery in late 2021, and an accident in mid-2022. He does not depose whether this reference to “drug use” relates to use of illicit substances or prescription medication. In mid-2022 whilst still using an aid for his injury, the father tripped which caused an injury to his arm.[2]
[2] Affidavit of the father filed 20 December 2024, paragraph 63.
The father omitted to mention in his trial affidavit his previous drug addiction problems, and scantily referred to his history of addiction in his Outline of Case document, where it states:
The father has a history of using illicit drugs and abusing prescription medication.
…
He has attended on psychiatrists to manage his psychiatric and neurological issues. As early as 2018 he sought professional assistance with the misuse of prescription medication.
In his trial affidavit, the father refers to two episodes of hospitalisation arising from drug induced psychosis, the first between two dates in late 2022 in O Hospital, and the second between two dates in early 2023, again in O Hospital.[3] In that affidavit, the father does not elaborate about his psychosis, acknowledge any further mental health difficulties during 2024, nor refer to his attendance on an addiction specialist (Dr V) in 2018.
[3] Ibid, paragraph 68.
In her trial affidavit, under the heading “[the father’s] health” the mother deposes in extraordinary detail to the history of her knowledge of the father’s substance abuse and mental health difficulties.
The mother deposes to the father having been a chronic drug user and having mental health problems for well over a decade. She refers to the T Health Service records which state that the father told Mr W, that his mental health began to decline in 2013.[4] The father’s previous partner, Ms Z, told the mother in or around 2012 that the father regularly used cocaine.[5]
[4] Affidavit of the mother filed 13 January 2024, paragraph 142(a).
[5] Ibid. Paragraph 143.
In her trial affidavit, the mother deposes that medication registers from the father’s medical practice record that in 2018 and 2019 the father removed a number of medications without the medications being accounted for. She was not challenged about this during cross-examination, and I accept her evidence.
The mother also deposes to the father obtaining prescription drugs in other illegal ways including self-prescribing, issuing prescriptions in the names of other people but obtaining and using the drugs himself, obtaining medication from his brother, which were prescribed for his brother, and using his medical practice to obtain medication by overprescribing to patients and retaining the excess for himself.[6] She was not challenged about this during cross-examination, and I accept her evidence.
[6] Ibid. Paragraph 148.
In April 2018 the father commenced attending Dr V, an addiction specialist in relation to his opioid addiction. In her trial affidavit, the mother deposes that Dr V’s notes recorded the following, which she was not challenged about this during cross-examination:
·In April 2018, Dr V recorded the father had been addicted to an opioid for one and a half years, taking up to 10 to 12 tablets per day, with the father accepting there was no medical reason for the analgesic, and there had not been for a long time;
·A short time later, Dr V recorded:
·The father obtained 50 tablets of a benzodiazepine “which he took and finished in the second half of the one week holiday in Queensland… he took about four tabs [sic] at night and some during the day and [had a] patchy memory of those last few days now with much guilt over it – he fell asleep at night while with five-year-old [Y] tried to wake him but could not… Eventually [the mother] did”;
·The father had relied on his brother’s Xanax 1mg per night saying, “I need it” and it did not give him euphoria – he is developing a tolerance;
·The father was counselled on the highly addictive nature of these benzodiazepines, especially alprazolam (Xanax) and it was stressed to him it must be stopped… and he must not pressure his brother to give him Xanax; and
·The father promised Dr V he would stop.
·In May 2018, Dr V recorded the father “got his hands on 30 tabs [sic] of Valium (on the day of last attendance here, got it from his brother) 5 to 6 tabs [sic] per day for five days ‘quite out of it, sedated’ – at home, no responsibility”;
·In August 2018, Dr V records the father stated “I do not want to be an addict any more… Over it…”. Overall, he is motivated to be drug-free, to cease self-medicating for which he has a tendency for;
·On 14 December 2018, the father stopped attending Dr V despite telling him he would continue to see him three times per year. The father has not seen Dr V since.
In her trial affidavit, the mother also deposes to the father’s illicit and prescription drug misuse in 2019 during a family trip overseas to attend a friend’s wedding, when she was approximately four weeks pregnant with the child. Shortly after arriving home, an argument ensued over the mother’s refusal to give the father access to tablets, to which he threatened “you’ve got fuckin’ three seconds” before attempting to grab the mothers phone from her. Around this time, the mother also deposes to the father’s use of a medication, an analgesic taken via an inhaler that made him sedated, and finding the father passed out at work after hours.[7] The mother was not challenged about this in cross-examination, and I accept the mother’s evidence in this regard.
[7] Affidavit of the mother filed 13 January 2024, paragraph 160.
In late 2019, the mother discovered the father passed out on Y’s bed with a pain relief inhaler in his hand and another inhaler on the floor. A few days later she was contacted by the practice manager employed by the father’s medical practice, who raised concerns about the father’s behaviour and queried whether he was addicted to prescription medication. In late 2019, the mother was present when the practice manager called the father to raise concerns about his recent behaviour and missing medication. The father later denied the phone call ever took place. The mother was not challenged about this in cross-examination, and I accept the mother’s evidence in this regard.
She further deposes to events in late 2019 when the father was confronted by staff at the medical practice about taking a medication from his clinic, which he had prescribed for a patient but had taken himself. In December 2019, the mother and the father had an argument about him being a drug addict, where the father said he knew how to beat the system. The mother recorded the conversation and offered to produce the recording to the Court. It was not called for, and I therefore accept the mother’s unchallenged evidence about this event.
In December 2019, the father commenced attending upon Dr N, psychiatrist, who diagnosed his ADHD. He was prescribed various medications including medications which Dr V had warned him not to use. In the mother’s trial affidavit, she deposes to discovering the father had offered a staff member at his practice a “loose” Valium that he had in his pocket which he kept as a spare just in case if he needed it during the day. On 20 August 2021, the mother deposes to instructing her lawyer to ask the father where he obtained the Valium. According to her, on 23 August 2021, the father swore an affidavit stating that he has “never carried [Valium] on my person”, notwithstanding Dr V’s file notes from May 2018 which recorded the father “getting his hands on 30 Valium tablets”. The mother was not challenged regarding this evidence during cross-examination, and I accept her evidence in this regard.
In her trial affidavit, the mother deposes that in early 2021, a notification was made to AHPRA that the father had stolen medication from his medical practice, had regularly attended the practice, and practised, while substance affected, had been observed self-injecting in the practice car park, had inappropriately prescribed medication to patients and family members, and had forged or otherwise altered patient records.[8] The mother was not challenged about this during cross-examination.
[8] Affidavit of the mother filed 13 January 2025, paragraph 182.
She further deposes that the practice records refer to events of early 2021, when the father was lying on the floor at his practice reception area for 20 minutes whilst patients were present, and the father telling a staff member that he would “just drink some local anaesthetic out of a cartridge and continue working”.[9]
[9] Ibid. Paragraph 183.
The mother was unsuccessfully challenged about that history, and I accept the veracity of her evidence, particularly as many details were gleaned from subpoenaed records of rehabilitation facilities attended by the father, his medical practitioners, his medical practice, and AHPRA.
In her final submissions, counsel appearing on behalf of the father most sensibly agreed there was evidence to substantiate findings that the father has a long history of substance abuse, has taken a wide variety of illicit substances, as identified by the mother, but denies he has taken GHB, and that his opioid addiction dates from 2018 and probably from 2016. I accept that submission and find that the father has a long-term history of use of a variety of illicit substances. I am unable to positively find the father has taken GHB. It is not necessary to make a positive finding about GHB, as nothing turns on a positive finding about GHB.
The evidence also supports a finding that the father has engaged in long-term misuse and/or abuse of prescription medication including sedatives, opioids, antidepressants, and antipsychotic medications, and I so find.
I find that the father’s account of the history of his substance abuse in his trial affidavit was not a transparent, fulsome, nor truthful account of his drug addiction, which obviously predated both his injury in late 2021 and his injury in mid-2022. There was no explanation why the father failed to disclose his history of misuse of prescription medication and use of illicit substances, other than a cursory reference in his Outline of Case document, until it was disclosed by evidence which emerged during the during trial.
The father’s sobriety including whether he is currently abstinent from illicit drug use and misuse of prescription medication
To understand the extent of the father’s substance abuse problems, it is useful to refer to the notes of the father’s attendance at BB Health Service, O Hospital, and T Health Service, all of which were produced pursuant to subpoena and tendered by the mother.
The mother’s trial affidavit at paragraphs [202] – [207] details the father’s ongoing illicit drug use and refers to the notes of BB Health Service (Exhibit M-1), a rehabilitation facility, pertaining to the father’s attendance for three weeks in 2022. The father was admitted in early 2022 and was scheduled to remain for approximately a month, but departed early. In these proceedings, the father has described the facility as a “well-being and health centre” where he went for “life coaching to develop better life habits”.
The BB Health Service notes include an undated admission questionnaire where the father admitted himself under a different name. The notes record he was “presenting with dependency on cocaine, benzos [sic], ketamine – drugs [he] used to have control over in the past recreationally”.[10] He admitted to using cocaine, and various drugs; stating he wants to be able to “dabble recreationally if [he] want[s]” without addiction. He stated that he used more cocaine when he “lost his son” Y to Queensland, and “almost lost control”; he has a quick temper and had aggressive arguments and violent outbursts in the preceding two years; with his partner, is easily offended, oversensitive and has outbursts; with everyone else, he can be completely dismissive.[11]
[10] Exhibit M-1.
[11] Ibid.
According to the mother, the admission questionnaire records the fathers then girlfriend telling BB Health Service that the father is codependent on his mother and brother, and they have “yelling matches”; she has “PTSD from the intense yelling matches and aggression [with the father] and that his behaviour “affects [her] ability to parent [her] daughter properly as [she] is tiptoeing around, on edge with the next drama”.[12]
[12] Affidavit of the mother filed 13 January 2025, paragraph 203(b).
According to the mothers’ trial affidavit, around the date of admission, the father’s drug use disorders identification test (DUDIT) scale was 21, being “extremely severe”.[13]
[13] Affidavit of the mother filed 13 January 2025, paragraph 203(c).
Per the mothers’ trial affidavit, on 9 May 2022, the notes from a BB Health Service session about food and nutrition record that “[Mr Armonas] [the father] is very medical and thinks he knows all there is to know. I am not confident he took anything from the session”.
The treatment notes from Ms AA at BB Health Service, as stated in the mothers trial affidavit, record the father reported using cocaine for 20 years; that he had used drugs intravenously, and intramuscularly; that he wants to be able to use recreationally, monthly for special events; that the partners of his medical practice saw him injecting “peptides”; that Ms AA has “significant concerns re: [Mr Armonas’] [the father’s] goals – want to have a healthy relationship with drugs e.g. recreational/special events, drugs are part of ID”. The father left BB Health Service in mid-2022. In these proceedings, the father failed to provide any details or information about his treatment at this facility.
According to the notes of Dr R (Exhibit J-1), three months later the father returned to BB Health Service for a 10-day residential detoxification program but discharged himself early. In her trial affidavit, the mother deposes the father was recorded as telling BB Health Service he was using numerous medications and drugs. The notes also record that Mr CC, who treated the father on both occasions in 2022, observed the father was still presenting behaviour of not wanting to be in recovery, was lying about his drug use, then admitting frequency of use from guilt, was trying to convince himself he was okay by lying in sessions, did not want to be at BB Health Service, and was almost speaking as though the program was a holiday retreat. This was not challenged during cross-examination, and I accept the mother’s evidence in this regard.
In late 2022, the father was admitted to O Hospital for drug induced psychosis. The notes from his admission (Exhibit M-2) record the father reported using “cocaine and meth in last week – cannabis and magic mushrooms in the past”.
According to the mother, which was not challenged, in March 2023 when she took X for a visit to the father’s home, she observed the father to be extremely agitated, anxious, and overwhelmed and he was speaking in a rushed and pressured manner and was pacing around the house. Two days later, when the mother again took X to the father’s home, she observed syringes around the house, which the father asserted belonged to his former cleaner/girlfriend, Ms L.[14]
[14] Affidavit of the mother filed 13 January 2025, paragraphs 105-106.
In early 2023, the father was again admitted to O Hospital where he remained for just over a week. The Risk Screen notes record the father reported using ketamine, methamphetamine, benzodiazepines, and cocaine. [15] Immediately prior to his admission, the father was found in a stranger’s backyard asleep in his underwear and was taken to the hospital. According to the mother’s trial affidavit, the father said he met someone the night prior to his admission, took drugs from her and had delusions where he thought he was in a police pursuit, which led to him attempting to cover himself. The mother was not challenged on this during cross-examination, and I accept her evidence in this regard.
[15] Exhibit M-3.
On 7 May 2023, the father’s stepfather wrote to Dr N (Exhibit M-9). On 24 April 2024, the paternal grandmother and paternal uncle called the mother and described the father’s ongoing drug use, finding needles in the house, the father’s delusions, and urged the mother to leave Queensland and take X to New South Wales (Exhibit M-6).
In April 2023, the father attended Dr N via telehealth and the notes of the consultation (Exhibit M-7) demonstrate that the father “requested dexamphetamine saying that he needed to be prepared for the court case and said all 100 had been dispensed” and that “dexamphetamine would help him not to use”.
The notes of Dr R (Exhibit J-1) indicate that in a letter dated 29 May 2023, Dr N noted the father’s diagnosis of delusion disorder in remission, ADHD with a favourable prognosis, and generalised anxiety disorder secondary to ADHD. This is despite noting amphetamines in the father’s urine test of 15 May 2023.
In late 2023, the father told Dr R (Exhibit J-1) that in the six months following his discharge from O Hospital, from late 2022 to early 2023, he used amphetamines 6-10 times, and admitted to taking 3-4 times his prescribed dose of a medication.
In early 2024, the father was admitted to the DD Hospital for drug induced psychosis. I refer to this admission in greater detail below, whilst dealing with the father’s mental health.
Three weeks later, the father admitted himself to T Health Service, a rehabilitation centre in Melbourne, where he remained for a month. On 8 April 2024 the father had his first appointment with drug and alcohol counsellor, Mr B, via telehealth (Exhibit F-4). The father was scheduled to readmit himself to T Health Service for another one to two weeks in May 2024, but failed to do so.
In the context of many years of substance abuse and addiction, the father contends he has been abstinent from illicit substances since early 2024, and relies upon the affidavit of Dr D in support of this proposition.
In her trial affidavit, the mother expresses her concern and scepticism about the veracity of the results of the father’s drug tests. To summarise, her concerns stem from:
·The father’s failure to provide a fulsome and transparent disclosure to her of his current prescription medications and dosage, including actual copies of his prescriptions, rather than relying on the father’s declarations about his medication;
·Test results which have failed to detect some prescription medications which the father has declared he is using;
·Tests detecting amounts of prescription drugs in excess of the prescribed amount;[16]
·Urine tests which demonstrate diluted creatinine levels, suggesting “a large water intake prior to passage of urine, or perhaps adulteration of the sample water after collection”;[17]
·The possibility that a sample for one test which may have been collected in Brisbane in July 2023, was not the father’s sample, because he was admitted to hospital in Region EE the same day;[18]
·The father reported to QML on two dates in August 2023 and provided a different account of his medications on the two days;[19]
·His urine drug screens in May 2023 and August 2023 are inconsistent with his hair follicle test on 4 August 2023;[20]
·The father’s drug tests in August 2023 do not align with Dr P's letter to Dr N dated 23 October 2023;[21] and
·The father’s failure to provide the twice weekly urine drug screens taken during his stay in T Health Service in early 2024, referred to in the notes of the director of T Health Service, annexed to his affidavit.
[16] Affidavit of the mother filed 13 January 2025, paragraph 248.
[17] Ibid. Paragraph 298(e).
[18] Ibid. Paragraph 253(b).
[19] Affidavit of the mother filed 13 January 2025, paragraphs 254-256.
[20] Ibid. Paragraph 257.
[21] Ibid. Paragraph 261.
Nevertheless, Dr D’s evidence about the father’s drug screens was not challenged by the mother.
The father has failed to provide any proper explanation as to how he has managed to maintain abstinence from illicit substances since attending T Health Service in early 2024, given the extent of his illicit drug use and misuse of prescription medication, as demonstrated by the inpatient records of the various facilities he has attended. That observation is particularly pertinent in the context of Mr B’s evidence during cross-examination that his primary focus during the father’s time in T Health Service in early 2024, was for treatment of alcohol abuse,[22] and Dr E’s evidence that his primary role was to treat the father’s ADHD. I note the father’s contradictory evidence during cross-examination about the focus of Mr B’s counselling. I prefer the evidence of Mr B and his documented notes of the consultations, to the father’s oral evidence about his recall and understanding of the counselling process.
[22] Transcript 12 February 2025, p.5 lines 6-13.
Counsel for the father attempted to explain some of the discrepancies identified by the mother and said one such explanation was that the tests undertaken by the father would not necessarily disclose his prescription medication, and otherwise relied on the evidence of Dr D as the unchallenged expert.
Even if I accept the father has managed to be abstinent from illicit substances, relying upon the evidence of Dr D, that is by no means the end of the matter. Questions inevitably arise as to how long that is likely to continue in the context of a serious and lengthy abuse of substances, which is canvassed below in the context of the professional support or lack thereof, provided to the father, and whether he engages appropriately with professionals. Neither do the test results relied upon by the father address the seriousness of the father’s longstanding use/misuse of prescribed medication.
Turning now to the father’s use of prescription medication, apart from acknowledging he has been prescribed medication by his former psychiatrist, Dr N, who diagnosed his ADHD, and that he is currently prescribed medication by Dr E, the father provides scant information about his current prescribed medication and his dosage, and no explanation for his failure to do so. Dr E, who currently prescribes the father’s medication does not, in any of his reports and letters, nor in his oral evidence, provide an overall objective statement of the father’s prescribed medication and dosage. Nor did the father seek to adduce evidence from a general practitioner, whose role might have been to be involved in overall health coordination and planning.
According to the mother’s trial affidavit, which was not challenged in this regard, nearly two years ago, in May 2023, the father’s then psychiatrist, Dr N, in his letter provided to the father refers to a plan to taper and cease one medication “later on” and for another medication to be continued at present and “to be reviewed, with a view to reduction in six months’ time”.
Dr E’s evidence was that in the first consultation with the father in April 2024, the goal was to cease clonazepam use within a four-week period, that is by May 2024, but it had not eventuated, and he said the father was addicted to the drug. He agreed the father had self‑administered 4mg of clonazepam in November 2024 which was “less than optimal”. His evidence in cross‑examination is referred in detail below, including the undesirability of long‑term use of the drug and his ongoing prescribing of clonazepam to the father.
Because of the father’s own lack of candour and objective documentary evidence about his prescription medication and dosage, I am unable to make definitive findings about the extent of his use, with the exception of his use of clonazepam, a benzodiazepine. It is self-evident from the notes of Dr N and Dr E’s evidence that in the intervening two-year period, the father has not been able to abstain from use of this highly addictive drug. It is also obvious the father has had long-term usage of other prescription medications.
The only evidence about the father’s current prescription medication is at paragraph 97 of his trial affidavit. He lists the medications but does not specify the dosage nor provide any independent documentary evidence of the prescriptions and most importantly, whether he consumes the medications as prescribed. Self-evidently, in November 2024 he did not comply with the prescribed dosage of clonazepam, and I do not accept the father’s evidence, absent corroboration that he is compliant with the prescribed doses.
I accept the father has underlying mental health issues which warrant the use of certain prescription medications, but the broader issue in this case is the length of time he has been addicted to certain medications and the lack of information from him about the medical and social implications of long-term use and possibly misuse of the medications. It is also concerning that the father has failed to be open and transparent about the extent of his misuse of and self-medication of a highly addictive drug, clonazepam, as recently as November 2024.
Counsel for the father in her final submissions agreed it was appropriate to find the father has had a long history of substance use, has had a cocktails of drugs that he has taken from time to time, has misused and abused prescription drugs including sedatives, had an addiction to opioids in 2018 which probably goes back to 2016 on the evidence, and has from time to time administered himself higher doses of antianxiety medication or antidepressant medication,[23] and I so find. Because of the unsatisfactory nature of the father’s evidence about his current use of prescription medication, coupled with his admitted misuse of clonazepam as recently as November 2024, I am unable to be satisfied that the father currently uses his prescribed medication in accordance with the prescribed dosage or that he would be capable of doing so in the future, and I so find.
[23] Transcript 14 February 2020, p.70 lines 11-22.
The father’s current mental health
The father’s mental health issues are somewhat intertwined with his substance abuse and there was little direct and clear evidence about the interrelationship between the father’s illicit drug use, prescription drug misuse, mental health issues, and personality vulnerabilities.
It is useful to consider the father’s past psychiatric history including his hospital admissions, to assess his current mental health. His admissions to O Hospital inlate 2022 and in early 2023, and his admission to the DD Hospital in Victoria in early 2024 were for drug related psychosis. The admission records refer to both the father’s drug use, and his psychotic delusions.
The father relies upon the psychological assessment carried out by Dr F and the evidence of his treating psychiatrist, Dr E, to demonstrate his mental health issues are sufficiently treated and contained to enable him to spend time with X.
During cross-examination by senior counsel for the mother, Dr E resiled from the statements in his reports that effectively stated the father’s parenting capacity was not compromised by his mental health (Exhibit F-5). Dr E agreed he did not know about the father’s admission into a psychiatric hospital in early 2024, although he did know that he had abused stimulants, and had a relapse of psychotic symptoms. He also said the father did not go into details about those psychotic symptoms, other than stating he was aware they were hallucinations and delusions, and Dr E admitted he was unaware of the stress factors or events leading up to early 2024. He was also under the impression the father was attending sessions (“GG Health Service sessions”), contrary to the father’s statement to Dr F that at the time of assessment he had not attended GG Health Service sessions in the past six weeks because he was too busy, and he thought that the father should see an addiction specialist psychologist. Consequently, I find that the father’s lack of candour and presentation of a fulsome account of his struggles, issues and vulnerabilities renders it virtually impossible for his treating health professionals to reach a reliable diagnosis and prognosis of the father and to therefore treat him appropriately.
Dr F’s psychological assessment was premised on information provided to her. During cross-examination by senior counsel for the mother, she conceded significant gaps in information provided to her.
The mother contends the father’s mental health issues are broader than his anxiety, depression, ADHD, and drug induced psychosis. She is sceptical that his fixation on Ms L and associated delusions are necessarily drug induced.
Exhibit J-1 is an affidavit of Dr R filed 10 October 2024, which annexes a psychiatric assessment of the father, which was obtained for the proceedings between the father and his ex-partner, Ms Z. It was tendered by consent and Dr R was not required for cross-examination. Dr R conducted a psychiatric assessment of the father in October 2023 and prepared his report dated 24 November 2023.
According to Dr R, as at the date of his interviews, the father had two hospital admissions (at the O Hospital) for psychosis, the first in late 2022, and the second in early 2023.
Paragraphs 52 to 56 of Dr R’s report are as follows:
52.According to the triage screen from [O Hospital], he was brought in by the police under the mental health act, believing he was being harassed by a group of masked, camouflaged people, some of them speaking French and armed with weapons that were in his home and threatening to attack him. He was found by police outside his home armed with knives to defend himself. He claimed he took photographs and videos of these people, but the video showed him running around the yard with no one else present. He claimed that some of them were engaged in sexual acts. He said that some of them may have been associated with his neighbour.
53.He reported in that, in the preceding 3 to 4 days, up to 20 strange people in dark military uniforms were running outside and banging on his doors, climbing through windows, looking like hippies, and, at times, engaging in sexual behaviour; this included one woman with large breasts holding a dildo. He could hear people speaking in making groaning, sexual noises. He could hear people counting down was not sure what they were counting.
54.He had been waking up with anxiety at night over the preceding week and not sleeping well for a few nights. He had initially denied feeling depressed or euphoric, but then said he was feeling the best he had ever felt.
55.He admitted to using cocaine and methamphetamines in the week prior. He acknowledged his stresses in terms of his current partner moving out, and injury to his arm three and a half months prior, and issues with AHPRA… and not practising [his profession].
56.His brother reported functional decline for two years, with psychotic symptoms on and off for the last six months. He had been calling the family, making bizarre allegations of people sitting on his roof, a 100-year-old Muslim man sitting on his couch, and being increasingly paranoid and disorganised across the last few years. He reported that he was calling his mother, upsetting her with strange comments such as estrangement and was sitting on his roof masturbating. He reported that he was abusing ketamine and GHB.
Dr R at paragraph 63, notes the father was referred to mental health services in late 2022 with concerns that he thought there were people in his yard, and he had been accused of molesting a girl. He refused any ongoing input from mental health services, and in late 2022 denied any ongoing concerns.
At paragraph 64, Dr R describes the incident of late 2022 as follows:
64.In relation to this episode, he reported at interview that he had missed his flight to Melbourne for [an event]. He had taken 1g of methamphetamine. He believed he had been delusional for three to four hours. He ended up taking the diazepam for around three weeks. He believed the psychiatrist had told him that he had not seen anyone admit to delusions like he had. He had ceased the clonazepam, dexamphetamine, and escitalopram. He felt a bit elated. He felt like he was in a dream state. He denied having any ongoing symptoms in hospital or on discharge, and stated his psychiatrist, [Dr N], had put him on the antipsychotic olanzapine after that episode.
The father was readmitted to the psychiatric unit of the O Hospital on a Treatment Authority, under the relevant state Mental Health Act in early 2023.
Dr R refers to this admission at paragraphs 66 to 71 of his report as follows:
66.According to the Triage Screen of [early] 2023, [Mr Armonas] was brought in by ambulance having been found asleep in someone else’s backyard. He believed that he was being chased by police along the beach and had taken drugs from a random person on the beach.
67.He has reported use of ketamine, methamphetamines, and alcohol. He was described as initially disorganised, with pressure of speech and loosening of associations.
68.Concerns were raised that he was extremely narcissistic, very smart, and very manipulative, that he was calling family and friends and abusing them, that he believed that his neighbour […] had a vendetta to get him off the street, that he saw police on the beach and felt the need to hide, and that he had covered himself in sand and seaweed.
69.He was noted to have an elevated affect and pressured speech.
70.The diagnosis on admission was a drug induced psychosis, with a drug screen positive for cannabis, cocaine, and opiates.
71.The clonazepam, dexamphetamine and escitalopram were ceased, and he was commenced on the mood stabiliser, sodium valproate, 500mg twice a day, with a diagnosis of a drug induced psychosis with a query of an underlying mood disorder.
In December 2022, Dr N said in a report, that the father’s symptoms were well controlled, and he had made good progress, and noted the father required ongoing psycho therapeutic support and medication review whilst dealing with stressful situations.[24] The father did not adduce evidence of any such support, and indeed in April 2024, specifically did not engage with a psychologist specialising in addiction, as was recommended by Dr E.
[24] Exhibit J-1.
Dr R’s report also notes that a few months later, in early 2023, the father was assessed by the Crisis Assessment and Treatment Team (“CATT team”) from the FF Hospital, with concerns people were hiding in his roof (Exhibit J-1). He had taken an antipsychotic drug, olanzapine, the day before, but reported his ex-neighbour was harassing him and working with Ms L to track his phone and accesses his accounts. It was noted he had used GHB in early 2023, and the impression was of a resolving drug-induced psychosis with a query of an underlying mood disorder.
In early 2023 the CATT team handed back care of the father to Dr N because the father refused to further engage with the CATT team. Shortly thereafter, in mid-2023 the father’s stepfather wrote to Dr N (Exhibit M-9):
Dear [Dr N]
I am writing about [Mr Armonas]. There is no question his psychoses are getting worse. For example, the other night he called my wife at midnight saying he was scared and then proceeded to go to various hotels during the night in the freezing cold without even having any shoes on.
In addition, we came home and found he had gone to extremes to barricade the bedroom window, there was rope around the stairs and also a chain on one of the stairs. There was also cord wrapped around the kitchen tap – very strange indeed. He also sent my wife a recording of voices he heard, but the tape was blank – there were no voices. And if he is not using ice, then perhaps his delusions are indicative of a more serious mental condition.
Although these incidents may seem harmless, we are very concerned about possible ramifications, including self-harm.
In addition, we don’t know how to handle each “episode”. I believe he needs urgent treatment to get his psychoses under control. Until that time, I suspect he is a serious threat to himself. I understand you cannot admit him to hospital forcibly, but there must be something you can do to get him effective treatment, as his oral medications are obviously not helping. Perhaps he is not taking olanzapine in the right dose or at all, so recommending an increase in dose will have little effect.
We actually called the CAT team last weekend but they would not have him admitted because he was non-violent.
[Dr N], his hallucinations and delusions are becoming more bizarre, and we are very concerned about these aberrant behaviours. We’ve begged him to go to rehab but he refuses.
I would very much appreciate if you can intervene and try to put a stop to all of this.
Thank you
At paragraph 269 of her trial affidavit, the mother sets out messages which the father sent to her on 3 and 4 February 2024 about people allegedly following him and implicating his neighbour and Ms L.
In early 2024, the father was once again admitted to hospital for drug induced psychosis. The records of the DD Hospital (Exhibit M-12) state as follows:
50 yo M
BIBA and police with delusional, paranoid behaviour at hotel, where he had been staying awaiting flight to [Region EE] where he lives. Patient reported to have been knocking on doors and banging doors as he suspected that there were 12 people that had come into his room but had disappeared when he asked them why they were in his room. It is reported by pt that he then called the police, but nobody could believe him pt stated that the hotel staff colluded with Federal Police to dismiss his concerns despite him showing them a series of recordings of what he believes were the voices coming from the rooms next to his. Patient had been sending same audios to the family, in a delusional and psychotic state. The audios are believed not to contain anything.
…
Reported he had not been sleeping for the last three days but denied drug use.
In early 2024 the father attended upon Dr P, psychiatrist, prior to admitting himself to T Health Service, where he was an inpatient from for a period of time.
The mother deposes to receiving a voicemail from the father in early 2024, whilst he was residing at T Health Service, wherein he stated he had “told her the truth” about what was happening, and “it’s not crap, and it’s not delusional”.
The mother expressed her ongoing concerns about the father’s mental health and his conduct throughout 2024, and I share her concerns. These include:
·The father’s text messages and voicemails to her (Exhibit M-13) between 7–16 August 2024 which are consistent with the themes of people following and persecuting him, despite his apparent abstinence from illicit drug use;
·His disappearance from Melbourne between 11-23 May 2024 when he was uncontactable;
·His abrupt departure for Country U in late 2024 without notification to the mother;
·His lack of coherence when he attended upon Mr B in late 2024 upon his return from Country U;
·His inability to cope with forthcoming interviews with Dr F;
·His heightened anxiety and panic attacks from early November 2024;
·His email to Dr E on 11 November 2024 (Exhibit M-15) where he stated “anxiety levels seem to be out of control” and admitted to increasing his dose of medication to 4mg a day;
·His attendance on Dr E on 14 November 2025 where the father said it “feels like [his] brain is on fire” (Exhibit M-16);
The mother does not accept the father’s fixation and delusions, as articulated in the T Health Service records, are necessarily drug induced, and are rather symptomatic of an underlying mental health issue. If they are not drug induced, then the fixations raise even greater concerns about the father’s mental health. The father did not provide any objective documentary evidence to substantiate his claims of Ms L stalking and pursuing him, other than an Intervention Order, which did not indicate whether Ms L was present when the order was made, and two self-serving statements he made to the police. He did not provide any court documents to substantiate the alleged conviction for breaching the Intervention Order.
There were no allegations the mother’s conduct impacted the father’s safety. His concern was rather about the mother’s restriction of his time with the child. For reasons which remain unexplained, in the context of there being no dispute that the mother would continue to be X’s primary carer, in his trial affidavit, the father sought to attack the mother’s mental health. He sought to justify his asserted concerns by contending her behaviour would impact the relationship between himself and X, and expressed his lack of confidence that the mother would facilitate a relationship between father and daughter. I deal with this assertion below.
Does the father pose an unacceptable risk of harm to X?
It is obvious that the father did not provide in his trial affidavit a complete and comprehensive overview of his substance abuse and mental health problems. Rather, he sought to provide myopic and selective information, which he attempted to mould to his narrative to minimise his substance abuse and mental health problems. The father’s modus operandi is also evident in the selective and discrete information provided to both Mr B and Dr E, neither of whom had a comprehensive or complete idea of the extent of the father’s substance abuse and mental health problems. I find the father has attempted to silo information and has failed to provide a forthright history of his problems, which at best may be described as a lack of insight into his problems in functioning and an inability to face the reality of his situation. It is concerning in the extreme that the father has failed to avail himself of ongoing psychological assistance during the five-year duration of the litigation, particularly since April 2024 when he was specifically referred to an addiction specialist psychologist by his own psychiatrist, Dr E. Nowhere in the father’s material did he disclose the primary focus of his ongoing psychiatric treatment with Dr E was ADHD, rather than his substance abuse problems and more generalised mental health problems.
The cross-examination of Mr B and Dr E presented a bleak picture of the father’s lack of candour and his inability, even at this stage of the litigation, to appropriately engage with qualified professionals who could give him the assistance he sorely needs, and I so find. His description of his time at T Health Service in early 2024, as a spiritual experience is simply mind-boggling in the context of the father’s substance abuse struggles and ongoing mental health problems.
His explanation about the trauma and ongoing PTSD arising from his involvement with Ms L was not corroborated by any documentation other than self-serving statements and a recording (Exhibit F-3) to which no context was provided. He did not mention this issue to Dr E, except on one occasion in November 2024, when he said he was harassed by a former partner but did not otherwise elaborate.
There was no evidence from a forensic psychiatrist nor even a treating psychiatrist who had a fulsome picture of the father and his prolonged struggle with substance abuse since at least 2018, which would have provided an objective and comprehensive assessment of the father’s substance abuse and current mental health. Attempts by the father to shift blame to the mother for lack of such evidence are misguided and disingenuous in circumstances when it is the father’s responsibility to persuade the Court that he had insight into his substance addictions and mental health, that he has been frank and transparent with the information provided by him, and that the health professionals he promulgated as assisting in the management of his vulnerabilities, could actually offer that assistance.
The submission that the father faced difficulties in identification of the case he was being asked to meet was similarly disingenuous. The mother’s contentions of unacceptable risk and the reasons therefore have prominently featured in and indeed have been the central focus of this litigation, which has been ongoing for five or so years. There is not the remotest possibility that the father is unaware of the risk allegations levelled against him or that he has been caught by surprise.
The assessment conducted by Dr F was also permeated by a lack of transparency on the part of the father, as was obvious from cross-examination by senior counsel for the mother. Dr F said at the conclusion of cross-examination, “yes, I think there’s been a lot of information that supersedes the reports that were produced”.[32] Dr F agreed she previously understood the father had been having counselling for his drug issues, he had appropriately consumed prescribed prescription medications, and he had been attending on a counsellor for the purpose of his drug problems. She was unaware the father remained dependent on prescribed medications, despite his psychiatrist giving evidence his continuing long-term use was less than desirable and against best practice, or that according to the evidence of Mr B, the focus of the father’s attendance on him was alcohol, although he was aware of the father’s drug problems, and that his attendance was inconsistent.
[32] Transcript 14 February 2025, p.34 lines 19-20.
The father’s attempt to gloss over the deficiencies in his case were exacerbated by his failure to provide evidence from his former life coach, who would have provided an invaluable insight into the father’s struggles, and his failure to adduce evidence from his family members, in particular his mother and stepfather who, relying on the mother’s evidence which I accept, have been intricately involved in the father’s history of substance abuse and mental health issues. I can only conclude that calling such evidence would not have assisted the father’s case; Jones and Dunkel (1959) 101 CLR 298.
Dr E’s focus is not the father’s mental health arising from his multiple and long-standing substance abuse, but rather his ADHD and the prescribing of medication. The father did not adduce any evidence about his intention to obtain further psychiatric assistance to address both his addiction to and misuse of prescription medication, nor his mental health or how he planned to address his future abstinence from illicit drugs if he experiences triggering anxieties in the future. He has clearly failed to engage with Mr B to the extent which would provide optimal assistance, and he has failed, since April 2024 to engage with an addiction specialist psychologist, as recommended by Dr E.
Furthermore, his conduct between his discharge from T Health Service in early 2024 and the date of trial raises more questions than answers about the father’s future conduct. During the 12-month period when he was not using illicit substances, his periodic absences and crippling anxieties, including an inability to attend Family Report interviews, do not illicit confidence that he is stable and sober. The incidents in late 2024, upon his return from Country U, as recorded by Mr B, his “brain on fire” incident with Dr E in November 2024, and his request for medication from Dr E in January 2025, when it was noted the father was not coping well, are recent contra indicators to his asserted stability and wellbeing.
X is a vulnerable five-year-old child who is unable to self-protect in any manner whatsoever. She is entirely reliant on her caregivers to provide responsible and nurturing care. It does not take much stretch of the imagination to contemplate the disastrous situation if X were to spend time in the unsupervised care of her father, including overnight time, if he were to misuse prescription medication or illicit substances or have anxiety, a panic attack or experience delusions whilst caring for her or immediately prior. Whilst the proposed regime of drug testing may provide some comfort about use of illicit substances, the father has thus far failed to provide an explanation about his prescription medication usage/misuse or even contemplate a proposed strategy for relapse prevention. I have no reason to believe, or convincing evidence to rely upon, which enables a conclusion that after so many years of lack of transparency about his substance abuse problems, mental health, and attempts to minimise his behaviour, that the father will suddenly experience an epiphany and be forthright and open about his issues and develop insight into his conduct. The past and future effect on his immediate family members, and the mother, is obvious and palpable, as is the awaiting catastrophe if X were in his care during use of illicit substances or misuse of prescription medication, or if the father experienced a decline in his mental health, including a psychotic delusion. I cannot speculate that the father’s conduct will improve with professional assistance and must take the father as I find him. As outlined by Austin J in Lainhart & Ellinson (2023) FLC 94-166 at [29], “courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experience”.
When all the above risk factors are taken into consideration, I conclude the father’s former illicit drug use, prescription drug use/misuse and mental health issues constitute significant risk factors for X if she were to spend unsupervised time with the father in the future. It is not possible to have any confidence whatsoever that the father will in the future responsibly take his prescribed medication in accordance with prescribed dosage or engage with the health professionals he so sorely requires. Those identified risks individually and collectively can potentially cause significant harm to X and there is an unacceptably high chance of those risks occurring. Therefore, I determine the father poses an unacceptable risk of harm to X, if he were to have unsupervised time with her.
Whether or not supervision of X’s time with the father will sufficiently ameliorate the unacceptable risk, will be addressed below in my consideration of appropriate parenting orders, taking into account the legislative considerations (s 60CC(2)).
Turning now to the remaining considerations.
Any views expressed by the child
X is currently five years old. Dr F opined in her report that X:
(1)Is a bright, even-tempered, vivacious child who was a delight to engage with;
(2)She appears to be exceeding her expected developmental milestones which was particularly evident with respect to her expressive and receptive language and her general knowledge; and
(3)She was observed to make friends with another child in the waiting area, suggesting that she has developing social skills.
Dr F stated in her report that X did not express any clear views with respect to her care arrangements, and even if she had, X is not of an age or level of maturity where it would be appropriate for the Court to place significant weight on her views in determining her. ongoing care arrangements. I agree X is too young to accord any significant weight to her views.
Developmental, psychological, emotional and cultural needs of the child
Because of X’s young age, she is entirely dependent upon the adults in her life to meet all her needs.
Dr F observed that X evidenced a strong bond with each parent, although it was evident that her mother is her primary connection. The formal observation session of X and her mother demonstrated X was settled in her mother’s presence and had a clear strong loving reciprocal bond. The mother was child focused and softly spoken, allowing X to direct play, and both mother and child engaged in spontaneous affection towards each other. X was polite, bright, inquisitive, and able to be independent in her play. The mother encouraged an educational component in her play, whilst allowing X the space to respond and work things out on her own before offering a solution or assistance. The mother offered X choices, asked what she thought, and was mindful of X’s safety but not in an intrusive manner. X also demonstrated her bilingual capacity sharing her knowledge of Country LL language words and evidenced an interest in music and rhythm.
Dr F did not identify any significant parenting deficiencies in the mother and indeed supported the parents’ agreement that X should continue to reside merrily in her mother’s care and that she should have sole parental responsibility. She did however recommend that the mother promote X’s engagement in social activities and making meaningful connections with local community groups, because of her intention to homeschool X.
X was initially somewhat trepidatious when she spent time with her father, however she quickly warmed and took to engaging with him despite the extended period without physical contact.
The interaction between the father and X during the observation session was positive, and the father was appropriate and spontaneous in his interaction with X.
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
Despite the father supporting X continuing to live with her mother, and for the mother to have sole decision-making responsibility subject to consultation with him, the father attempted to criticise the mother’s parenting decisions. Specifically, the father is critical of the mother’s moved to Sydney in September 2024, her recent move to Region C, her refusal to reinstate face-to-face time between X and her father since August 2024, terminating face time calls between him and X in September 2024, and failing to reinstate face time calls in November 2024.
In his trial affidavit, under the heading “[the mother’s] history of mental illness”, he devotes many paragraphs to various complaints about the mother’s past conduct and difficulties including anxiety, depression, and eating difficulties over two decades. His various criticisms are incongruent with his agreed position that X should continue to live with her mother and that she should have sole responsibility for decision-making and seem retaliatory in nature. His criticisms of the mother and her parenting pale into insignificance when considered in the context of his own history of substance abuse and mental health difficulties.
The father was highly critical of the mother’s capacity to promote, encourage, and facilitate a relationship between himself and X, rather than reflecting upon the likely consequences of his behaviour, addictions, the impact on her of having to engage in litigation for five years and communicate with him, sometimes whilst he was substance affected, as deposed to in her trial affidavit.
Dr F did not observe any discernible adverse consequences on X, nor on her relationship with her father, which she opined continues to exist despite no physical contact between father and daughter since August 2024. She did, however, recognise it would be unlikely the mother would facilitate a relationship between the father and X, of her own accord, because of the mother’s perception of the father’s level of unacceptable risk.
As submitted by senior counsel for the mother, and I accept, some of the mother’s parenting choices may appear unorthodox, but there is no evidence the mother has ever cared for X in any manner other than an exemplary fashion. From the mother’s perspective, the reasons she stopped X’s time with the father were amply justified. Because the mother applied to the Court and obtained orders for cessation of time between X and the father, I accept the mother’s concerns as genuine and not as generally demonstrative of her inability to facilitate a relationship between the child and her father. I also observe that since the commencement of these proceedings there have been many orders by consent which have attempted to ensure consistency of time between X and the father, and in some instances the father has failed to avail himself of opportunities to spend time with his daughter pursuant to the orders.
I therefore accept, and find, that the mother is a highly motivated and competent parent who has thus far has, and is able to continue, to provide for X’s needs in every way.
I accept the interaction between the father and X during the observation session was positive, and the father was appropriate and spontaneous in his interaction with his daughter. However, interaction with a child in a supervised, limited, and controlled observation session is not the same as parental capacity to provide for a child’s needs absent supervision by another adult, or in this case, for part of the session in the presence of both the mother and Dr F.
Regrettably, for the reasons referred to earlier, which I have identified as posing an unacceptable risk to X, I find that the father does not have the capacity to provide for X’s needs.
The benefit to the child of having a meaningful relationship with both of the child’s parents and other people who are significant to the child where it is safe to do so
It is ordinarily in a child’s bests interests to have a meaningful relationship with both their parents. The Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) at [45]–[46] refers to recognition of parental relationships and benefit to a child of parental relationships.
I accept the evidence of Dr F that X has an established bond with her father, which has endured despite no physical time between them since August 2024. However, the overriding issue in this instance is how to ensure X’s safety, if she is to spend time with her father.
Anything else that is relevant to the particular circumstances of the child?
There were no other relevant issues raised by either party.
At the conclusion of her Family Report, Dr F referred to the relationship between X and her half sibling Y. The father, in his Minute of Proposed Orders, at paragraph 6 refers to the parents endeavouring to provide opportunities for the children to develop a sibling relationship. Whilst this is an admirable sentiment and it would be beneficial for the children to have a relationship, there was little focus on this issue during the trial.
Turning now to consider major long-term decisions and decisions making.
Parental responsibility for major long-term decisions and decision making
The Court has the power to make orders relating to the allocation of responsibility for making decisions in respect to major long-term issues for children. Section 61D(3) of the Act provides that a parenting order dealing with the allocation of responsibility may provide for joint or sole decision-making in relation to all of specified major long-term issues. Where a parenting order provides for joint decision-making about long-term issues in relation to a child, each person is required to consult each other person in relation to each decision and to make a genuine effort to come to a joint decision (s 61DAA).
Both parents agree the mother should have sole responsibility for decision-making in respect of major long-term issues for X. Additionally, the father seeks orders obliging the mother to consult the father in writing in relation to the decision to be made about a particular issue, make a genuine effort to come to an agreement about the decision, and thereafter if a reasonable attempt to reach agreement fails, the mother shall make the decision and inform the father as soon as reasonably practicable of the decision.
During cross-examination by counsel for the father, the mother’s evidence made it abundantly clear that she has no wish to engage with the father nor further communicate with him, particularly after her observations of him and listening to his evidence during the trial.
The father’s proposal does not take into account the mother’s reluctance to communicate at all with the father and her effective “litigation fatigue”, in circumstances where the dispute between the parents has continued for around five years. She asserts it would be detrimental to her wellbeing to be required to further engage with him. I accept her assertion because the father does not appear to have any insight into the adverse emotional impact on the mother if she is required to communicate and consult with him, nor did he address how it would be possible for the mother to meaningfully consult with him in writing if a decision had to be made and he was experiencing anxiety or some other mental health issue which rendered him incapable of meaningful engagement with the mother, as has been evident during the events of 2024. Nor did he realistically propose how the mother was supposed to communicate with him if he failed to take his prescription drugs in accordance with recommended dosage, or misused prescription drugs, and was experiencing adverse consequential effects or how communication could possibly occur if he were experiencing delusions as he has in the past.
The father’s proposal is unrealistic, aspirational in the extreme, and lacks insight as to the practicalities of implementing the proposed arrangements. The father’s own counsel submitted that “the father’s case is not that he is a rehabilitated, for all intents and purposes, cured of addiction, litigant”,[33] but rather “he is in the process of rehabilitation”.[34] To require the mother to consult with the father, who has had a long and tortuous history of substance abuse and mental health problems, which on his own version of events, some five years or so into litigation, remains unresolved, is untenable and impractical. I therefore do not intend to subject the mother to the requirement to consult with the father and will make an order as sought by the mother and I will make orders accordingly.
[33] Transcript 14 February 2025, p.63 lines 11-12.
[34] Ibid. Line 16.
PARENTING ORDERS TO BE MADE
I now turn to whether the identified risks of harm can be ameliorated, and what orders are in X’s best interests.
Can the identified risks of harm be ameliorated?
The father’s proposal includes safeguards, which he contends would sufficiently ameliorate any risks he posed to X. It can be readily inferred from the father’s proposal that for the purposes of these proceedings, he acknowledges his substance abuse and mental health issues impact upon his capacity to spend time with the child.
He proposes X spend time with him for an initial period of six months professionally supervised for four hours on both Saturday and Sunday of a nominated weekend. Thereafter, he proposes a six-month period of daytime time with the child from 9.00am to 3.00pm on each of the Saturday and Sunday of a nominated weekend, thereafter a further six-month period from 9.00am Saturday until 3.00pm Sunday on a nominated weekend and concluding with time on a nominated weekend from after school Friday until 3.00pm Sunday. Concurrently, he proposes a regime of drug use and testing, which he has adapted from the mother’s Amended Response filed 29 November 2024, and that he attends upon a psychologist having specialised experience in drug and alcohol counselling and management of patients with ADHD for a period of not less than 18 months. He also proposes a suspension of time in the event he produces a positive drug test and/or fails to attend within the requisite period for supervised drug testing, and if he fails to attend two consecutive appointments with any of his regular mental health practitioners, his time be suspended and resume upon the father producing written evidence from his practitioners that he has maintained three months of consistent attendance.
At the commencement of the proceedings, the mother sought orders for X to spend time with the father as agreed between the parents in writing, together with a suite of drug testing orders as set out in her Amended Response to Initiating Application filed 29 November 2024. At the conclusion of the trial, in her final submissions, senior counsel for the mother proposed there should be orders for no time between X and her father unless otherwise agreed in writing between the parents. The basis for the mother’s change of position was her observation of the father in the witness box during the trial, his evidence during cross-examination, and the ongoing lack of transparency about his substance abuse and mental health.
The father’s counsel suggested to Dr F that supervision in this case was not to regulate the father’s behaviour with X, which was assessed as appropriate during the observation session. Her response was that the father’s behaviour was observed as appropriate, but that was obviously one period of time. Counsel also suggested to Dr F that supervision might be helpful to obtain some feedback as to the father’s conduct during time with the child, to which Dr F responded that she was not sure if observations from a supervisor would convince the mother.[35]
[35] Transcript 14 February 2025, p.14 lines 41-42.
Dr F’s evidence was primarily that supervision addresses safety, risk, and impartiality by removing the responsibility from a friend or parent who may not be equipped or qualified to deal with the risk. She identified the father’s parents concern about their capacity to manage the father in circumstances where he presented as either unwell or at risk.[36]
[36] Transcript 14 February 2025, p.15 lines 10-13.
The mother’s position with respect to supervision ameliorating the risk is evident from the questions of her senior counsel put to Dr F about difficulties with supervision. The mother does not believe supervision can mitigate the unacceptable risk. The deficiencies of professional supervision include supervision agencies have differently qualified staff with varied experiences who are not necessarily trained in any mental health field, and that the father presents as quite a complex personality, who on face value on a superficial level can present quite reasonably. [37] Dr F said:
I guess there’s a ceiling as to what someone can be expected in a supervisor – in a professional supervision capacity to identify, and what’s reasonable for them to actually be – for what reason – what’s reasonable to be put on them as an expectation to monitor.
(Transcript 14 February 2025, p.33 lines 21-25)
[37] Transcript 14 February 2025, p.33 lines 9-15.
Dr F further agreed with senior counsel for the mother that professional supervisors would not necessarily have the degree of skill and diligence to protect X from potential exposure to the father’s mental health, and that she would not expect a supervisor would be able to pick up signs of the father’s deteriorating mental health and in the absence of any other support or assistance, that would make a supervision role particularly difficult.
I accept Dr F’s evidence about the expertise, or lack thereof, of a professional supervisor to identify any possible deterioration in the father’s mental health or presentation at a supervised visit. The problems which could confront a supervisor if the father’s mental health were deteriorating are florid and obvious. The father did not propose any suitably qualified supervisors or particulars of how that would be achieved, and indeed it would be difficult to do so.
Neither was there any evidence to persuade me that a professional supervisor would have the expertise or capability to identify if the father had engaged in recent prescription medication abuse, when the father’s counsel freely submitted the drug testing regime proposed by him was to identify illicit substances. Again, the consequences of the father attending for a supervised visit with X if he had recently misused prescription medication, and the supervisor was unaware, are obvious and highly undesirable. In reaching that conclusion, I have had regard to the mother’s evidence throughout her trial affidavit about her experiences with the father when substance affected and his conduct, which evidence was largely unchallenged.
As to the father’s proposed progression from supervised time to unsupervised time, Dr F did not pursue her original recommendation, and rather agreed with the recommendation of the Family Report writer in the proceedings involving Y, that there should be first a psychiatric assessment and then a further set of conditions around the father’s mental health engagement and reports, before there should be unsupervised time. She agreed that in this factual landscape she could not possibly contemplate moving to a self-executing unsupervised regime of time between X and the father. I share her concerns, accept her evidence and find, for those reasons, there should not be any progression from supervised time to unsupervised time as proposed by the father.
In the circumstances of this case where there have been longstanding substance abuse and mental health problems and lack of acknowledgement of same on the part of the father, the Court cannot possibly assume the father’s substance abuse and mental health issues will have resolved at the expiration of six months, so that the father no longer poses a risk to X, such as to warrant no supervision. It is impossible to predict how the father’s personal and health circumstances may evolve in the future or whether, even if he did attend upon a mental health professional, the father would meaningfully engage with the therapist, noting Dr F’s evidence that an aspect of meaningful therapy and treatment is around meaningful engagement and not just about attending.[38] When the father has wilfully and blatantly thus far failed to engage with recommended mental health treatment, specifically an addiction specialist psychologist, for the Court to make self-executing orders progressing to unsupervised time between the father and X would be an abrogation of responsibility to ensure X’s safety. Neither can a court make orders delegating judicial decision-making responsibility at a future time based on a future expert report. Per Austin J at [31] of Lainhart & Ellinson, orders of this type have been identified and criticised by the Full Court in the past (Re David (1997) FLC 92-776 at 84,575-84,576; Rader & Rader & Ors (No 2) [2019] FamCAFC 227 at [53]). The judicial function cannot be delegated to others, apart from registrars in limited circumstances, and only then subject to the right of de novo judicial review (Harris v Caladine (1991) 172 CLR 84 at 95, 120-122, 145, 150-151, 160 and 163-164).
[38] Transcript 14 February 2025, p.19 lines 16-20.
If there is no progression from supervised time to unsupervised time, then another relevant consideration is the challenges and difficulties for X arising from long-term supervision. According to Dr F, she would have serious concerns about a parent, where long-term supervision was considered necessary. I accept that evidence.
The imposition of a long-term supervision arrangement is generally not appropriate as a long-term measure; see B and B (1993) FLC 92-357. Supervision is an artificial environment and there is an obvious possibility of X at some future time questioning the requirement for supervision, the potential for her to question her own safety, and to challenge or resent her mother about the necessity for supervision, thus detrimentally affect her relationship with her mother, her primary carer. For all the identified reasons, I do not consider the circumstances of this case warrant ongoing and long-term professional supervision and I so find.
As to the proposed drug screens providing a “scaffold” to ameliorate the unacceptable risk, counsel for the father correctly submitted that the drug screens were to test for illicit substances and not for prescribed drugs. Accepting that submission, there was no proposal as to how to regulate nor monitor the father’s usage of prescription medication in accordance with prescribed doses, when clearly, he had not done as recently as November 2024.
The father did not adduce any evidence of current relapse prevention strategies for either use of illicit drugs or misuse of prescription drugs. All that was proposed was the father’s future engagement with a psychologist specialising in addictions, which, as referred to above, he had been referred to by Dr E in April 2024 and had failed to engage as recommended. There were no particulars about the identity, qualifications, or availability of a suggested psychologist. The father has had ample time between the referral and the date of trial, to avail himself of specialist psychological treatment to address the underlying cause of his problems, and to suggest he does so now is too little too late. I have no confidence he would engage in a meaningful manner with any such psychologist, nor do I have any fulsome evidence about how that would ultimately assist both his substance abuse and mental health. In any event, the Court is required to assess litigants as they are at the time of the trial and not what they aspire to achieve; Lainhart & Ellinson (2023) FLC 94-166.
For the above reasons, I find the unacceptable risk of harm to X cannot be ameliorated by safeguards, which include professional supervision of time, an illicit drug testing regime and proposed future plans for the father to adhere to a mental health treatment regime or meaningfully engage with an addiction specialist psychologist. Therefore, the only available option is to make orders largely in accordance with those sought by the mother, which are in X’s best interests for the reasons referred to above.
Decisions to sever a relationship between a child and a parent are difficult, unpalatable, and impact a child. In this case, I am satisfied the mother has sensitively and appropriately explained to X why the father’s time with her has at times been erratic, and his absence from the child’s life since October 2024, and am confident she will continue to do so, and in doing so I also rely on the evidence of Dr F.
I appreciate the father will be sorely disappointed by my determination. The father must assume responsibility for his own actions, and failure to be forthright and transparent with his struggles. He alone was the architect of his destiny and his failure to present a candid, understandable, and open account of his substance abuse and mental health struggles did little to assist him. His clouded and murky version of events and myopic view of the dispute left many unanswered questions and gaping holes in the evidence presented on his behalf. As correctly identified by his counsel, she was in no position to fill the gaps in the father’s evidence, and she acquitted herself and conducted the proceedings in a highly competent and professional manner.
If the father seeks to pursue a relationship with X in the future, he will need to openly confront and address both his substance abuse and mental health issues with the assistance of relevant professionals. If he manages to do so in a committed and transparent manner, and supported by unequivocal expert evidence, he may be able to persuade the mother of his actual sobriety and mental health stability so that she may agree to time with X, or if not, he is at liberty to make an application under s 65DAAA of the Act.
For all the foregoing reasons, I make orders as set out at the commencement of these reasons.
I certify that the preceding two hundred and twenty-three (223) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 4 April 2025
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