Arnetts & Arnetts - [2021] FCCA 1553

FEDERAL CIRCUIT COURT OF AUSTRALIA
Arnetts & Arnetts [2021] FCCA 1553

File number(s): BRC 13616 of 2019

Judgment of: JUDGE CASSIDY

Date of judgment: 8 July 2021

Catchwords: FAMILY LAW – drug and alcohol misuse – history of domestic violence – mental health problems – where the paternal grandmother and paternal grandfather are interveners – where the father sought that two children live with him and there be an equal time arrangement with the other two children – where the mother adopts the ICL’s proposal – where the ICL proposes that the mother have sole parental responsibility and that the children live with the mother

Legislation: Family Law Act 1975, ss 60B, 60CA, 60CC(2), (2)(a), (2A), (3), (3)(a)-(c), (3)(f), 60CG, 61DA(1).

Cases cited: Barrett & Barrett and Anor [2017] FamCAFC 4
Betros & Betros [2017] FamCAFC 90
Briginshaw v Briginshaw [1988] FLC 91-957
Donaghey & Donaghey [2011] FamCA 13
TF & JF [2005] FamCA 394
George & Nichols [2016] FamCA 519
Heath & Hemming (No. 2) [2011] FamCA 749
Horan & Beckett [2010] FamCAFC 200
Jones v Dunkel 101 CLR 298
M v M [1988] FLC 91-979
McCall & Clark [2009] FamCAFC 92
Moose & Moose(2008) FLC 93-375
Sigley v Evor (2011) 44 Fam LR 439
T and N (2003) FLC 93-172

Number of paragraphs: 179

Date of last submission/s: 11 June 2021

Date of hearing: 3, 4 and 11 June 2021

Place: Brisbane

Solicitor for the Applicant McCarthy Durie Lawyers – Brisbane Office

Counsel for the Applicant Ms Hillard

Solicitor for the First Respondent Self-Represented

Solicitor for the Second Respondent Self-Represented

Solicitor for the Third Respondent Gary Rolfe Solicitors

Counsel for the Third Respondent Mr Trost

Solicitor for the Independent Children’s Lawyer Legal Aid Queensland

Counsel for the Independent Children’s Lawyer Ms Dart
ORDERS

BRC 13616 of 2019

BETWEEN:
MS ARNETTS

Applicant

AND:
MR ARNETTS

First Respondent

MR B ARNETTS

Second Respondent

MS C ARNETTS

Third Respondent

LEGAL AID QUEENSLAND

Independent Children’s Lawyer

ORDER MADE BY:

JUDGE CASSIDY

DATE OF ORDER:

8 JULY 2021

THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting Orders and Undertakings be discharged.

Parental responsibility
2.That the mother have sole parental responsibility for the major long term issues of the children W born in 2005, X born in 2008, Y born in 2012 and Z born in 2015 (“the children”).

Lives with/spends time with
3.That the children live with the mother.
Phase one
4.That the children spend supervised time with the father:
(a)For two hours each week supervised by a Contact Centre agreed in writing between the parents and failing agreement the D Children’s Contact Centre (“the Contact Centre”).
(b)If Father’s Day falls within this phase, for an additional two hours on the Father’s Day weekend if the Contact Centre can facilitate this time.
(c)If Christmas falls within this phase, for an additional two hours on a date close to Christmas Day that the Contact Centre can facilitate.

5.In order to facilitate Order four (4):
(a)Within seven (7) days of the date of this Order, if they have not already done so, both parents are to contact the Contact Centre and are to do all acts and things necessary to register with the Contact Centre and attend when required for an intake interview.
(b)The father is responsible for the costs associated with the parent’s intake appointment and all Contact Centre fees associated with the children spend time with the father.
(c)Both parents shall comply with the reasonable requests, rules or directions of the staff of the Contact centre.
(d)Both parents shall comply with any appointments made by the Contact Centre for supervised time.
(e)The father is at liberty to bring the paternal grandparents to the Contact Centre visits, subject to the rules of the Contact Centre.
(f)The parents are at liberty to provide a copy of these Orders to the Contact Centre.

6.The father is at liberty to send gifts and cards to the children at the mother’s nominated address and the mother has liberty to peruse these to ensure they contain content suitable for the children before providing them to the children.
Phase two
7.Upon the father providing to the mother by email:
(a)Evidence of completion of the E Community Centre Men Choosing Change Program, or similar program;
(b)Evidence of completion of the Parenting Orders Program;
(c)Hair follicle drug and alcohol test results that are negative for illicit substances, prescription medication the father does not have a prescription for and demonstrate no use to low range alcohol use;
(d)A report/letter from the father’s treating psychiatrist setting out the father’s diagnosis, if any, treatment recommended and compliance with treatment;

The children will spend time with the father:
(i)For a period of two months, each Saturday from 9.00am to 5.00pm;
(ii)Thereafter for a period of two months each alternate weekend from 9.00am Saturday to 5.00pm Sunday;
(iii)If Christmas falls within this phase from 9.00am to 12 noon Christmas Day;
(iv)Via telephone/video call each Tuesday and Thursday between 7.00pm and 8.00pm, with the father to initiate the call to the nominated telephone number of the mother.

Phase three
8.At the conclusion of the four -month period set out in Order 7(i) and (ii) the children will spend time with the father:
(a)Each alternate weekend from after school/3.00pm Friday to before school/9.00am Monday, with the father to take the children to school on the Monday mornings when they are in his care;
(b)Via telephone/video call each Tuesday and Thursday between 7.00pm and 8.00pm, with the father to initiate the call to the nominated telephone number of the mother;
(c)One half of all gazetted school holiday periods, being the first half in odd numbered years and in alternate years thereafter and the second half in even numbered years and in alternate years thereafter, and any provision for time in this Order that is inconsistent with school holiday time be suspended during school holiday periods.
(d)For the Father’s Day weekend from after school Friday to before school Monday, with the father to take the children to school on Monday mornings when they are in his care.

Christmas
9.When the children are spending time with their father pursuant to phase three in Order 8, the children will spend time with their parents over the Christmas period:
(a)That in all even numbered years:
(i)The children spend time with the father from 12 noon Christmas Eve until 12 noon Christmas Day; and
(ii)That the children spend time with the mother from 12 noon Christmas Day until 12 noon Boxing Day.

(b)That in all odd numbered years:
(i)The children spend time with the mother from 12 noon Christmas Eve until 12 noon Christmas Day; and
(ii)That the children spend time with the father from 12 noon Christmas Day until 12 noon Boxing Day.

Birthdays
10.When the children are spending time with their father pursuant to phase three in Order 8, the children will spend time with their parents on birthdays as follows:
(a)The children’s birthday;
(b)The mother’s birthday; and
(c)The father’s birthday

At times to be agreed in writing between the mother and father, and failing agreement, the children shall spend time with the father from 3.00pm to 7.00pm on those birthdays and the mother at all other times on those days, and that any provision of time under this Order that is inconsistent with this Order be suspended.

Family dispute resolution
11.No earlier than six months after time commences pursuant to Order 8 and provided that the father is compliant with hair follicle drug and alcohol testing and mental health treatment, the parents will attend family dispute resolution to discuss equal shared parental responsibility and the progression to an equal time arrangement, with the parents bearing their own costs of the family dispute resolution conference.

Mother’s Day weekend
12.The children will remain in the mother’s care on the Mother’s Day weekend and any provision under these Orders that is inconsistent with this Order be suspended.

Make up time
13.In the event the mother intends to take the children on a holiday, the mother will provide the father with no less than 30 days’ notice via email to the father, and make-up time will be arranged at the Contact Centre between the children and their father for any time missed while the children are on holidays on whatever days or times the Contact Centre can facilitate.
14.In the event the mother intends to take the children on a holiday, the mother will provide the paternal grandmother with no less than 30 days’ notice via email to the paternal grandmother, and make-up time will be arranged at the Contact Centre between the children and their paternal grandmother for any time missed while the children are on holidays on whatever days or times the Contact Centre can facilitate.
15.In the event the mother intends to take the children on a holiday, the mother will provide the paternal grandfather with no less than 30 days’ notice via email to the paternal grandfather, and make up time with be arranged between the paternal grandfather.

The children’s time with the Paternal Grandfather Mr B Arnetts
16.That the paternal grandfather Mr B Arnetts is:
(a)At liberty to spend time with the children as agreed in writing with the mother and failing agreement, for no less than two hours on the first Sunday of the month;
(b)At liberty to communicate with the children by way of email or telephone at any time;
(c)Restrained from allowing the children to come into contact with or communicate with the father or the paternal grandmother unless otherwise permitted by these Orders;
(d)At liberty to attend school events that family members are invited to attend.

17.While Orders 4 and 16 are in place, the paternal grandmother and father are restrained from attending any location where they are aware the children are spending time with the paternal grandfather.
18.While Orders 4 and 16 are in place, that should the father and paternal grandmother attend the location where the paternal grandfather is spending time with the children, the paternal grandfather shall remove them from that location. In the event the paternal grandmother or father continue to seek contact with the children on that occasion, the paternal grandfather will immediately arrange for the children to return to their mother.

The children’s time with the Paternal Grandmother Ms C Arnetts
19.Until such time as the children are spending unsupervised time with the father, that the paternal grandmother is at liberty to spend time with the children for a period of two hours each month at the Contact Centre set out in Order 4(a), separate to time the children spend with the father, on dates and times to be nominated by the Contact Centre.
20.In order to facilitate Order 16:
(a)Within seven (7) days of the date of this Order, if they have not already done so, the mother and paternal grandmother are to contact the Contact Centre and are to do all acts and things necessary to register with the Contact Centre and attend when required for an intake interview.
(b)The paternal grandmother is responsible for the costs associated with the parties intake appointment and all Contact Centre fees associated with the children spending time with the paternal grandmother.
(c)The mother and paternal grandmother shall comply with the reasonable requests, rules or directions of the staff of the Contact centre.
(d)The mother and paternal grandmother shall comply with any appointments made by the Contact Centre for supervised time.
(e)The mother and paternal grandmother are at liberty to provide a copy of these Orders to the Contact Centre.

21.When the children are spending time with the father pursuant to phases 2 and 3, Orders 7 and 8 of these Orders, the paternal grandmother is at liberty to spend time with the children while they are in their father’s care with the father’s consent.
22.The paternal grandmother will not attend the children’s schools and school events without the mother’s written consent.
23.The paternal grandmother is at liberty to send gifts and cards to the children to the mother’s nominated address and the mother has liberty to peruse these to ensure they contain content suitable for the children before providing them to the children.

Changeover
24.For the purpose of Orders 7, 8, 9, 10 unless otherwise agreed in writing between the parents, changeover shall occur at McDonalds at Suburb F and the parents will not approach within 10 metres of each other at changeover.
25.Should the parents come into contact at changeover they will not expose the children to conflict between the parents, including but not limited to denigration.
26.The paternal grandmother will not attend and is restrained from attending changeover.

Suspension of unsupervised time with the father
27.The children’s time with the father pursuant to Orders 7, 8, 9, 10 is conditional upon the father’s compliance with hair follicle drug and alcohol testing, compliance with mental health treatment and not contravening the Protection Order.
The children’s time with the father in Orders 7, 8, 9, 10 will be suspended in the event that the:
(a)Father’s hair follicle drug test results are not clear as defined in Order 28(k);
(b)Father’s hair follicle alcohol test results demonstrate high range alcohol use as defined in Order 28(l);
(c)Father’s non-compliance with treatment or medication prescribed by his treating psychiatrist, psychologist or medical practitioners; or
(d)There is a significant deterioration in the father’s mental health such that he is hospitalised, subject of an Emergency Examination Order or is admitted under the Mental Health Act as a result of his mental health;
(e)The father is convicted of a breach of the Protection Order committed from the date of these Orders, naming the mother as the aggrieved

THEN the children’s time with the father will revert to phase one in Order 4 and will only progress to phase two and three when the father provides to the mother:
(f)Hair follicle drug and alcohol test results that are negative for illicit substances, prescription medication the father does not have a prescription for and demonstrate no use to low range alcohol use if the non-compliance relates to Orders 28 (a) and/or (b); and
(g)A report/letter from the father’s treating psychiatrist setting out the father’s mental health is stable and he is not a risk to the children if the non-compliance relates to Orders 28(c) - (d). The father must provide to the treating psychiatrist providing the report/letter a copy of the Affidavit of Dr G filed 14 July 2020 and a copy of these Orders, with leave hereby given to the father to do so, and with the letter/report to include confirmation of receipt and consideration of those documents; and
(h)Evidence of completion of any courses the father has been ordered to attend as part of any sentence if the non-compliance relates to Order 28(e).

Drug and alcohol testing
28.That the mother is at liberty to request that the father undertake hair follicle drug and alcohol testing and for that purpose:
(a)Such requests occur no more than once every three months and continue for no more than two consecutive years from the date of the first hair follicle test being completed by the father pursuant to these Orders;
(b)Requests must be sent via email to Mr Arnetts;
(c)The father must undertake the test within 7 days of the request by the mother;
(d)The father is responsible for the costs of the testing;
(e)That the father make appointment and attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair drug and alcohol testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing;
(f)The hair drug and alcohol test must screen for alcohol EtG and drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolite.
(g)The father is to provide the collector with photographic identification to be recorded before each hair collection;
(h)This Order authorises AWDTS or nominee to provide the results of each test to both the father and the mother;
(i)In the event AWDTS does not provide the results to the mother, the father will provide the results to the mother within 24 hours of receiving same;
(j)The parents are at liberty to provide a copy of these Orders to AWDTS;
(k)The drug tests shall be taken to be “clear” if the results are negative for all illicit substances, and the father provides a letter from his General Practitioner outlining that the father has a prescription for any prescription medication shown, and the amounts of the prescription medication is within the limits provided for by the prescription;
(l)The alcohol tests shall be taken as “clear” if they show no to low range alcohol use;
(m)In the event that the father fails to undertake the test and/or provide the results to the mother, the results are deemed no clear and the children’s time with the father will revert to phase one in Order 4 until the father provides clear results.

Medical
29.The father will attend upon a psychiatrist for treatment and for that purpose:
(a)The father will provide, and is hereby given leave by the Court to provide, a copy of the Affidavit of Dr G filed 14 July 2020, a copy of the Protection Order dated 4 August 2020 and a copy of his criminal history and these Orders to the psychiatrist;
(b)The father will use his best endeavours to follow and not unreasonably refuse to comply with, all directions from the psychiatrist, including but not limited to:
(i)Attending upon all appointments recommended;
(ii)Engaging in all treatments as recommended including attendance upon a psychologist or other mental health care professional as directed by that professional for as long as therapeutically indicated;
(iii)Taking all medications as prescribed.

30.The father shall provide an irrevocable authority in the following terms:
That this Order shall be authority for the mother to obtain information from the father’s psychiatrist or other treating mental health care professional no more than once every two months for a period of two years after the father has commenced engaging in treatment with his treating psychiatrist as provided for in these Orders, confirming:
(a)The father’s compliance with Order 29;
(b)Whether there has been any significant deterioration in the father’s mental health or hospitalisation;

(c)Whether the father has been subject to an Emergency Examination Order;
(d)Whether the father has been admitted under the Mental Health Act; and/or
(e)Whether he/she has any concerns about the risk to the children being in the father’s care and such report/letter will be at the father’s cost.

31.That the father keep the mother informed in writing at all times of the names and contact details for his treating psychiatrist and any other mental health professionals, and advise of any change within seven (7) days of such change.

Exchange of information
32.The father shall use his best endeavours to have his agent inform the mother immediately if:
(a)The father is admitted to hospital, or is subject to an Emergency Examination Order or is admitted under the Mental Health Act or attends the hospital emergency department and the reason for the attendance;
(b)The father enters a drug rehabilitation program;
(c)The father is charged with any criminal offence or a driving offence involving alcohol;
(d)The father is the aggrieved, respondent or named person (if he is aware he is a named person) in a Protection Order or Temporary Protection Order.

33.That each parent shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue, significant illness or injury suffered by the children and authorise any treating medical practitioner to release the children’s medical information to the other parent.
34.That each parent shall keep the other informed of the children’s doctors, health care and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children and this Order shall serve as such authority.
35.That each parent shall keep the other informed of any school, educational facility or extracurricular activity provider and authorise those providers to provide the other parent with information that they are lawfully able to provide about the children.
36.That if there is a cost associated with the provision of any information or documents under these Orders from the children’s doctors, health care and other treatment providers or school, educational facility or extracurricular activity provider the expense shall be borne by the parent requesting the information.
37.The parties will keep each other informed of a contact address, email address and telephone number.

Specific issues
38.The parties will ensure that the children are not left in the care of the paternal uncle Mr H.
39.The mother will facilitate the children communicating via electronic means with their cousins including her sister Ms J’s children.
40.Both parents are restrained, and an injunction is hereby issued, from consuming illicit substances whilst the children are in their care, or allowing the children to come into contact with persons who they reasonably believe are under the influence of illicit substances, or having or otherwise allowing illicit substances to be kept at their premises whilst the children are in their care.
41.That the parties shall not consume alcohol above the legal driving limit, whilst the children are in their care or twenty-four (24) hours prior to the children coming into their care.
42.That during the time the children are with any of the parties they shall:
(a)Respect the privacy of the other parties to this matter and not question the children about the personal life of the other parties;
(b)Speak of the other parties respectfully;
(c)Not use the children to convey messages to another party, that are adult issues or concern arrangements for the children’s health and welfare;
(d)Not denigrate or insult the other parties in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parties in the hearing or presence of the children;
(e)Not attempt to discuss any issues in dispute between the parties or adult issues, with the children, or allow a third party to do so;
(f)Not discuss these court proceedings with the children;
(g)Not show or read court documents to the children;
(h)Not physically discipline the children.

43.That all parties are at liberty to release the Family Report and the Psychiatric Report and this judgment to any treating professional they or the children may attend.
44.That the Independent Children’s Lawyer be discharged save for any appeal.

IT IS NOTED:
(A)The child MR K born in 2003 is now 18 years of age.
(B)The paternal family members are at liberty to facilitate time with the paternal family including the children’s cousins when the children are in their unsupervised care
(C)The children’s time with the paternal grandparents will be take into account the children’s ages and other commitments.
(D)That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.

.Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Arnetts & Arnetts is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Cassidy
INTRODUCTION

This is an application by the mother in relation to the four children of the relationship: W born in 2005 (herein, ‘W’), X born in 2008 (herein, ‘X’), Y born in 2021 (herein, ‘Y’), and Z born in 2015 (herein, ‘Z’ or collectively ‘the children’). The oldest child, MR K born in 2003 is 18 years old now, so the provisions of the Family Law Act 1975 (herein, ‘the Act’) no longer apply to him.[1]
[1] Family Law Act 1975 (Cth) s 65H(1)(a).
The father and his parents are the respondents to the mother’s application, and they each seek different orders in relation to the children.
The Court appointed an Independent Children’s Lawyer (herein, ‘the ICL’) in this matter because of allegations of domestic violence, drug use and mental health issues.
Proposal of the Independent Children’s Lawyer
The ICL handed to the Court a proposal at the conclusion of the trial before her counsel made her submissions in the matter.
The proposal provided in summary[2]:
[2] Proposal of the Independent Children’s Lawyer handed up on 11 June 2021.
(1)That the mother have sole parental responsibility;
(2)That the children live with the mother;
(3)That the father’s contact with the children be supervised initially;
(4)That the father’s time with the children was to move to unsupervised contact increasing gradually provided he completed various courses, and he has hair follicle and alcohol tests that are negative for illicit drugs and demonstrate his alcohol consumption to be either none or in the low range;
(5)That the children spend time with the paternal grandfather for no less than two (2) hours on the first Sunday of the month;
(6)That until the children are spending unsupervised time with the father, the paternal grandmother is to spend to (2) hours each month with the children at a supervised contact centre;
(7)That the mother is at liberty to request hair follicle and alcohol tests;
(8)That the father must attend upon a psychiatrist for treatment; and
(9)Orders for exchange of information and specific results.
The Mother’s Proposal
The mother adopted, for the most part, the proposal of the ICL.
The mother sought an order that provided for makeup time, should the children be away on holidays or school excursions. The other order sought by the mother was for the provision of reports to the children’s counsellor.
The Father’s Proposal
The father sought that W and X live with him and that Y and Z live with both parents in an equal time arrangement.
The father sought an order for equal shared parental responsibility.
The father is willing to complete the E Community Centre Men Choosing Change Program, or similar program, and the Parenting Orders Program.
The father was also agreeable to the mother having the children on Mother’s Day, that changeovers are to occur at City L McDonald’s, and that the parents not expose the children to conflict. He also agreed to various Orders for exchange of information and specific issues.
The Paternal Grandmother’s Proposal
The paternal grandmother sought time with the children supervised by the paternal grandfather. This was opposed by the mother and the ICL.
The paternal grandmother’s alternative position was that she receive some treatment from a psychologist and then spend time with the children each alternate weekend from 9:00am Saturday to 4:00pm Sunday, or some special occasions and for the March/April gazetted school holidays.
The paternal grandmother also sought an order for telephone contact and that she be at liberty to attend special occasions at school.
The Paternal Grandfather’s Proposal
The paternal grandfather appeared to adopt the ICL’s proposal for unsupervised time with the children for two (2) hours on the first Sunday of each month.
BACKGROUND
Counsel for the ICL provided a very helpful outline of submissions at the conclusion of the trial. The “Background” in that outline adequately summarises the facts of this matter:[3]
The Mother was born in 1982 and is currently 38 years of age.
The Father was born in 1977 and is currently 43 years of age.
The parties commenced a relationship in 1999/2000, married in 2003 and separated on 30 August 2019.
There are 5 children of the relationship, Mr K who is now an adult, W born in 2005 (16 years of age), X born in 2008 (currently aged 12), Y born in 2012 (currently aged 9) and Z born in 2015 (currently aged 5).
Mr K is working in the military. W attends the M Trade School and is currently in the equivalent of grade 11. X attends the Suburb F State Secondary College and is in grade 7. Y is in grade 4 at Suburb F State Primary School and Z is in prep at the same school.
The Mother commenced a relationship with Mr N last year. He has a child from a previous relationship. The Court has no evidence from him. The Mother in her oral evidence proposed that Mr O primarily care for the children when she is working and they are not at school, although it is clear that Mr N has had contact with the children and may provide some care for them in the future.
The Father and the paternal grandparents (PGP) have not spent time with the children since April 2020.
[3] Outline of Submissions of the Independent Children’s Lawyer handed up on 11 June 2021 at page1.
Parenting Arrangements During the Relationship
There is no doubt that both parents were very active in caring for the children during the relationship. The paternal grandparents retired in around 2012 to assist the parents with the care of the children.
The parents and the paternal grandparents lived together on a block of land at Suburb F. The parents and the children lived in the larger home and the paternal grandparents lived in the smaller home on the block.
Parenting Arrangements Post Separation
The parties separated on about 30 August 2019. The mother left the former matrimonial home with Mr K, Y and Z.
The father’s evidence is the parties had an informal agreement that the boys would live with the father and the girls would be in an equal time shared care arrangement.
In around 12 September 2019, the girls were spending time with the father by agreement of the parents.
The mother commenced these proceedings on 11 November 2019.
There was a supervised visit with the father and the two girls. The father brought X and the paternal grandmother to the visit on 24 November 2019. The centre notified the father that brining X and the paternal grandmother to the visit was in breach of the “Service Agreement”.
On 4 December 2019, Orders were made by consent (in summary) for:
(1)Mr K, Y and Z to live with the mother and X and W to live with the father;
(2)Hair follicle drug testing of the parents; and
(3)The parents to complete a Triple P Parenting Course, a Parenting Orders Program, a Circle of Security course and to engage with a psychologist.
On 6 December 2019, the father undertook a hair follicle test. The result was positive for Methamphetamine.
On 8 December 2019 there was a second contact visit. The father was again in breach of the Service Agreement because he brought X to the visit and provided the children with letters. The supervisor then removed from the children.
On 22 December 2019 there was another supervised visit organised but it was cancelled because the father did not pay the fees.
On 20 January 2020 there was another supervised visit arranged, but the father failed to attend.
On 20 February 2020 Orders were made by consent (in summary) for:
(1)X and W to spend alternate weekends with the mother;
(2)Y and Z to spend supervised time with the father, with such time to be supervised by the P Contact Centre, it being in the discretion of the contact centre as to who can attend the visits;
(3)The paternal grandparents to supervise the father’s time with W and X; and
(4)The father not to use illicit substances.
On 19 March 2020, the mother’s affidavit records the following:[4]
at approximately 6:30pm, Mr Arnetts drove W and X to Q Street, the street I was living at with Mr K, Y and Z. Upon entering Q Street, Mr Arnetts left W and X on the side of the road, approximately 50 metres down the road from my house. When W and X got out of Mr Arnetts's car they were left standing on the side of the road by Mr Arnetts. W and X walked to my residence each carrying numerous plastic bags containing their clothing and other possessions. After W and X got out of Mr Arnetts's car, Mr Arnetts drove laps around the block and only left Q Street when my neighbour told him to leave the street.
[4] Affidavit of Ms Arnetts filed 4 May 2021 at paragraph 169.
On 27 March 2020, Orders were made for W and X to spend time with their mother from 27 March 2020 to 1 April 2020. Directions were made for the filing of material. There was a Notation to the Order which provided that in the event the father fails to deliver the children into the mother’s care on 27 March 2020, the mother shall be at liberty to list the matter on Monday 30 March 2020 as a priority matter.
On 1 April 2020, Orders were made (in summary) for:
(1)W and X to live with the mother;
(2)The father and his agents be restrained from removing the children from the mother’s care;
(3)The children’s time with the father be suspended until the father provides negative hair follicle drug test results;
(4)The father not to communicate with the child, Mr K;
(5)The parties not to show copies of court documents to the children;
(6)The mother to arrange non-reportable counselling for the children;
(7)Within 14 days the father to undertake a hair follicle drug test
On 12 May 2020, Orders were made (in summary) for the children’s time and communication with their father and the paternal grandparents to be suspended. A Notation to the Orders provided that it was the intention of the ICL to seek funding for a psychiatric assessment of the father when face to face appointments resume.
The father and the paternal grandparents have had no time with the children since 12 May 2020.
Education History of the Children
As set out in the ICL’s Outline of Submissions in relation to the children’s education history:[5]
Mr K is working in the military. W attends the M Trade School and is currently in the equivalent of grade 11. X attends the Suburb F State Secondary College and is in grade 7. Y is in grade 4 at Suburb F State Primary School and Z is in prep at the same school.
[5] Outline of Submissions of the Independent Children’s Lawyer handed up on 11 June 2021 at paragraph 5.
There have been some issues with attendance during times the children have been in the father’s care.
During the period of 11 September 2019 to 13 September 2019, Y and Z spent time with the father with the consent of the mother. The father did not take Y to school during this period.
While the boys, W and X, were living with their father, W had 26 days absent from school and X missed 29 days.
Domestic Violence
The Mother and the Father
The father’s case is that but for a “false” temporary Protection Order made against him naming the mother as the aggrieved, we would not need to be here in this Court deciding the matters relating to the children. He refers to that Order as “the rapist order”.
The mother alleges serious domestic violence during the relationship.
The mother applied for a Protection Order on 13 September 2019. The grounds the mother set out in her application for the Protection Order were as follows:[6]
Has been writing my name and number on toilet walls. DV began in August 2018 and has escalated over this period with multiple cases of verbal, emotional, financial, sexual and domestic abuse. He has threatened to kill me, threatened many times that if I leave I will get nothing from the house and that he will take my children, that if I said anything that he would ruin my life. He has not paid into the household since he quit his job in 2018, wouldn’t leave the premises, has made me move out to rent. When arguing would not let me leave rooms, would force me to hug him during fights, would grab and squeeze my neck during sex, which on multiple times was extremely rough to the point that I developed an aortic abdominal aneurism. Moved our children to the second house on the premises, telling me that if I tried to stop him he would have me charged. Made me take out a $15,000 loan for his brother.
[6] Subpoena Tender Bundle prepared by the Independent Children’s Lawyer marked exhibit 1 in the proceedings at page 14.
The first return date of the mother’s Domestic Violence Order (herein, ‘DVO’) was on 25 September 2019. The Temporary Protection Order was made by consent without admissions.
The father claims that no Order was made.
On 4 August 2020, the mother’s Domestic Violence Application was heard. The hearing was contested by the father.
The Magistrate found there were periods of economic and physical abuse. The children were named on the Order. The Order is in place for five years.
The Final Order provides:[7]
[7] Affidavit of Ms Arnetts filed 4 May 2021 at paragraph 200.
(a) The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved;
(b) The respondent must be of good behaviour towards the named person (being all 5 of your children) and not commit associated domestic violence against the person and where a child/children, not expose the child to domestic violence;
(c) The respondent is prohibited from entering, attempting to enter, or to be within 100 metres of where the aggrieved lives or works:
(i) except for the purposes of having contact with children but only as set out in writing between the parties or in compliance with an order of a Court or when contact is authorised by a representative of the Department of Communities (Child Safety) with a child.
(d) The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved by any means whatsoever including telephone, text or internet;
(i) except when appearing personally before a Court or Tribunal;
(ii) except when attending an agreed conference, counselling, or mediation;
(iii) except for the purposes of having contact with children but only as set out in writing between the parties or in compliance with an order of a Court or when contact authorised by a representative of the Department of Communities (Child Safety) with a child.
(e) The respondent is prohibited from following or remaining or approaching to within 100 metres of the aggrieved when the aggrieved is at any place:
(i) except when appearing personally before a Court or Tribunal;
(ii) except when attending an agreed conference, counselling, or mediation; and
(iii) except for the purposes of having contact with children but only as set out in writing between the parties or in compliance with an order of a Court or when contact authorised by a representative of the Department of Communities (Child Safety) with a child.
(f) The respondent is prohibited from entering, attempting to enter or to be within 100 metres of where the named person lives or works:
(i) except for the purposes of having contact with children but only as set out in writing between the parties or in compliance with an order of a Court or when contact authorised by a representative of the Department of Communities (Child Safety) with a child.
(g) The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the named person by any means whatsoever including telephone, text or internet:
(i) except when appearing personally before a Court or Tribunal;
(ii) except when attending an agreed conference, counselling, or mediation; and
(iii) except for the purposes of having contact with children but only as set out in writing between the parties or in compliance with an order of a Court or when contact authorised by a representative of the Department of Communities (Child Safety) with a child.
(h) The respondent is prohibited from following or remaining or approaching to within 100 metres of the named person when the named person is at any place:
(i) except when appearing personally before a Court or Tribunal;
(ii) except when attending an agreed conference, counselling, or mediation; and
(iii) except for the purposes of having contact with children but only as set out in writing between the parties or in compliance with an order of a Court or when contact authorised by a representative of the Department of Communities (Child Safety) with a child.

The father has breached the DVO on a number of occasions.
The father has pleaded guilty to contravening the DVO arising from six charges brought by the police. He was also dealt with for two failures to appear. On the first breach of the DVO, the penalty was:[8]
No conviction recorded
Recognisance: $500.00
Good behaviour period: 9MO (sic)
[8] Subpoena Tender Bundle prepared by the Independent Children’s Lawyer marked exhibit 1 in the proceedings at page 1.
The remaining five breaches of DVO charges and the failures to appear resulted in the following penalties:[9]
On all charges
Recognisance forfeited: $500.00
Time to pay: 28D (sic)
(RE: breach of/ application against order imposed on 07/07/2020)
On all charges with traffic matters
No conviction recorded
Fined: $2,000.00
Time to pay: 28D (sic)
[9] Ibid.
The breaches of the DVO involved the father sending messages to the mother and telephoning her.
One change the father arranged was for the paternal grandmother to attend the mother’s home.
I accept the father has committed acts of domestic violence against the mother and he has pleaded guilty to the six breaches of the DVO.
I also accept there was an incident on 23 November 2019 where the child Mr K intervened to protect the mother from the father.
This incident is adequately summarised in the chronology provided by the ICL:[10]
[10] Chronology prepared by the Independent Children’s Lawyer handed up on 11 June 2021 at page 4.
Physical altercation between the parents and child Mr K intervened to protect his mother.
The mother states:
·     The father tried to drag her into the car to take her for a drive to show his power.
·     The mother refused to go and the father pushed the mother against the front door of the house.
·     The mother ran upstairs and locked herself in the bathroom.
·     The father was yelling at the mother through the door for 45 minutes saying she was “nothing” and “not wanted” and the mother wanted to hurt herself and kicked a mirror in the bathroom.
·     The father broke down the door and dragged the mother onto the bed and yelled at her to “shut the fuck up”.
·     The father pushed the mother up against the wall with his arm under her throat.
·     Mr K pulled the father off the mother. Mr K grabbed the mother and put her behind him and took her downstairs. Mr K got a knife from the kitchen and said that if he hurts her again he will kill him.
Furthermore, the subpoenaed records are evidence that the mother was disclosing incidents of domestic violence to her General Practitioner as early as 5 September 2018 while the parties were still in a relationship:[11]
[11] Subpoena Tender Bundle prepared by the Independent Children’s Lawyer marked exhibit 1 in the proceedings at pages 92-93.
Surgery consultation recorded by Dr R on 05/09/2018
Attended very upset
Tearful
Fees (sic) bullied by her husband, has been emotionally abusing her, calling her names and threatening to take her children and lose her house
She lives with him, his parents and his brother, who is on drugs and often flies away to do drusg (sic) and lives on their land on his caravan
Husband has been drinking and using all their money on drugs and alcohol, soon he will lose his job and he has already lost a position due to testing positive for ICE at work
Reason for visit
Stress
Relationship problem
Has been working hard to keen (sic) her position at work and studying at the same time, but feels horribke (sic)
Husband has had drinking problem for years and never really dealt wiht (sic) it
Plan
(…) bok (sic) for mental health plan
I accept there has been a history of domestic violence by the father against the mother and that the domestic violence included serious physical violence in the incident described above.
The Father and his Niece
On 18 December 2020, the police records indicate that the father was the respondent to a Protection Order.
The father gave evidence at the trial that the aggrieved is the daughter of his brother, Mr H.
The Mother and the Paternal Grandmother
The paternal grandmother is the respondent to a Final Protection Order that names the mother as the aggrieved.
The Order was made after a contested hearing. The Order is in place for five (5) years.
The mother filed an application for a Protection Order on 13 September 2019.
The mother set out in her application the reason she sought the Protection Order against the paternal grandmother was:[12]
Due to ongoing verbally abusive behaviour in front of the children (about me) and to myself.
…
That I need someone to beat me up, knock in my face, the kids would be better off if I died. Giving me the finger behind the police’s backs, 05/09/19.
There has been multiple occasions over previous 9 months of verbal and emotional abuse, telling me that I need to get beat up and hit in the face, that they/she wanted me out of my home. She bullied me into dropping my court Orders in February by contantly verbally attacking me, saying things to the children and making our home life hell. She bullied me into leaving my property to get away from the constant abuse, now they are (her/her husband and son) are all refusing to pay mortgages on the property, leaving all payments up to me. She has also hit me in the back as I walked up the stairs carrying my daughter.
…
[12] Subpoena Tender Bundle prepared by the Independent Children’s Lawyer marked exhibit 1 in the proceedings at pages 21 -22.
The Magistrate found at the trial on 16 March 2020:[13]
[13] Affidavit of Ms Arnetts filed 4 May 2021 at paragraph 165.
165. (…)
(d) The following findings were made:
(i) Ms C Arnetts's reference to my elective plastic surgery was unnecessary and for a nefarious purpose;
(ii) Ms C Arnetts's reference in stating to me that she would "play the game," was an act of domestic violence as it was emotionally abusive;
(iii) Ms C Arnetts's reference to me regarding who would look after the children, was an implied threat and act of domestic violence, and emotionally abusive;
(iv) the non-payment of the mortgage and leaving it to me to pay and take legal steps, was an act of domestic violence and expressly said to be economic abuse. Ms C Arnetts made claims that having to pay legal fees and being a pensioner were reasons for not paying the mortgage payments. Acting Magistrate S rejected these claims;
(v) the domestic violence of 21 July 2019 was made out, in that Ms C Arnetts was verbally abusive towards me when seeking for me to sign a real estate contract, which Mr Arnetts had organised;
(vi) the domestic violence of 6 August 2019 was made out, in that Ms C Arnetts was verbally abusive towards me, had threatened me, and subsequently punched me in the lower back, causing me pain and discomfort;
(vii) other recent events (as relied on) warranted an order. This related to oral arguments on my behalf concerning the conduct of the continued legal proceedings between the parties, and the Office of the Heath Ombudsman complaint which was lodged by Ms C Arnetts against Ms Arnetts in December 2019 (the OHO Complaint); and
(viii) I was fearful, and felt attacked and bombarded by Ms C Arnetts. There had been many spaced-out matters in this regard. Arguments raised before the Court on my behalf including:
(1)    my being forced to file for parenting and property Orders in this proceedings;
(2)    the OHO Complaint;
(3)    Ms C Arnetts seeking Orders for her full custody of the children;
(4)    Ms C Arnetts refusing to agree to Orders regarding the property on 20 February 2020, forcing me to file an application in the Supreme Court of Queensland on 18 March 2020, seeking the appointment of a statutory trustee to sell the matrimonial home which is jointly owned by the parties.
I accept the mother’s evidence of what the Magistrate made findings about.
Of particular concern to the mother was the paternal grandmother’s complaint to the Office of the Health Ombudsman. The paternal grandmother claimed that the mother, who is a health care worker, had drugs at her home which she had taken from the hospital where she worked and she used them. This complaint was made on 9 December 2019.
At that time, the mother was supporting three of the children with her income and paying the mortgage on the former matrimonial home. The complaint put her job in danger. The complaint was investigated and it was determined that no further action was required.
The subpoenaed records evidence a bizarre email that the paternal grandmother sent to the Office of the Health Ombudsman Assessment Team on 12 December 2019, which provides:[14]
[14] Subpoena Tender Bundle prepared by the Independent Children’s Lawyer marked exhibit 1 in the proceedings at page 36.
From: Ms C Arnetts
To: OHO Assessment Team
Subject: Re: Notice of acceptance for case …
Date: Thursday, 12 December 2019 9:06:58 AM
Hi [redacted],
Thank you for your email letter and record of conversation. Sorry I didn’t reply sooner but I had to go to magistrates court in regards to the DVO Ms Arnetts put on me. The trial date for that is in March.
Just a couple of things I want to clarify. The container found did not contain any used needles but was empty. I am sorry but what I meant to say is the container is used to contain used needles. The other correction is Ms Arnetts put a DVO on my son and accused him of domestic violence when he has never been violent to her. Two of the five children chose to stay with their father, namely W who is 14 and X who is 11. They chose to stay with their father because they witnessed their mother being violent to their father. This can be corroborated as they have been seeing a psychologist and told him. The girls also wanted to stay with their father but a thought due to their they still needed their mother so they agreed to an unofficial 50/50 share care arrangement. Ms Arnetts put the DVO on Mr Arnetts 2 weeks after she left the family home. She has since posted many photos on facebook of happy snaps and not looking like an abused wife at all. During their marriage Mr Arnetts left work for 4 years so Ms Arnetts could pursue a career in [redacted]. Ms Arnetts has also recently had breast augmentation and cosmetic surgery to her face. She has also had approx.. $10,000 on dental work done. Mr Arnetts and Ms Arnetts officially separated in January but she didn’t leave the family home until September when she moved closer to her half sister who is now her primary babysitter and the girls have barely seen before then. Ms Arnetts will not let the father see the girls unless under strict supervision, she will not allow their brothers to see them at all or the grandparents that looked after them while the parents worked. Hope the above information is of some use to you.
Kind Regards,
Ms C Arnetts
This email was after a phone call to the paternal grandmother by a staff member of the Office of the Health Ombudsman, the subpoenaed record of the conversation records as follows:[15]
[15] Ibid at page 97.
Call took place Tuesday 11 December at 4pm
Call Ms C Arnetts (C) explained to C that the complaint has been accepted into assessment. Explained that assessment is a gathering information process to determine what should happen with the complaint if anything.
Explained that at the moment we have decided to withhold notice from the provider and would appreciate it if she did not discuss the complaint with her, C acknowledged this and agreed not to discuss the complaint with the provider.
C explained that she still has the sharps box, we discussed if C could provide a photo of the box, C explained that she does not think her phone can do this, but she will ask her son.
Discussed with C the medication that she alleged the provider kept at home. C stated that they were viles of medication that looked like sample boxes. C stated that they did write down the medication names at one point, but have since lost the paper. C stated that there was morphine and stroke medication.
C explained that the provider is a [redacted]. C stated that the provider would work on her own in people’s houses and it was her role to dispose of the medication. C stated that she believes the provider was disposing of the medication but bringing it home for her own personal use.
C stated her son (the provider’s husband) and the provider would take the drugs for recreation, along with cannabis. C explained that the provider had also given her other son medication for back pain, but she does not know what it was.
(…)
C explained that if people do not agree with the provider the provider has a hissy fit. C stated that the provider is high maintenance and has had cosmetic surgery. C stated the provider came into the relationship with nothing, but has worked (sic) away with a lot.
(…)
Discussed with C why she is bringing the complaint. C explained the provider is doing something wrong, she is in a position of trust. C stated that she does not know if the provider should lose her job or be reprimanded. C stated that she does not know if the provider is hurting patients.
This conduct by the paternal grandmother is, in my view, very serious domestic violence.
The paternal grandmother has also breached the final DVO against her with the mother as the aggrieved. There were six charges arising out of the breaches. They were heard together. The penalty on all charges was a fine of $450. A conviction was recorded.
The breaches involved contact with the aggrieved, sending emails and telephoning the aggrieved. The paternal grandmother admitted those breaches.
Father’s Mental Health
Dr G prepared a psychiatric assessment of the father at the request of the ICL.
The doctor interviewed the father on 18 June 2020.
The father attended for a “Personality Assessment Inventory”. This report was prepared by Dr T, PhD.
The report records:[16]
[16] Personality Assessment Inventory Clinical Interpretive Report of Dr T, Phd handed up on 4 June 2021 at page 8.
DSM-IV Diagnostic Possibilities
Listed below are DSM-IV diagnostic possibilities suggested by the configuration of PAI scale scores. The following are advanced as hypotheses; all available sources of information should be considered prior to establishing final diagnoses.
Axis I: 309.9 Adjustment Disorder, Unspecified
Axis II: 799.9 Diagnosis Deferred on Axis II
Axis II Rule Out: 301.9 Personality Disorder NOS (Mixed Personality Disorder with Paranoid Features)
Dr G in his oral evidence said in summary:[17]
33.1. He was concerned about some of the responses in the Father’s Personality Inventory Report and the results, in essence, confirmed his view.
33.2. He would have more confidence about the father’s rehabilitation if he could remain abstinent from drugs for a period of two years.
[17] Outline of Submissions of the Independent Children’s Lawyer handed up on 11 June 2021 at paragraph 33.
Counsel for the ICL accurately summarised Dr G’s evidence in his report as follows[18]:
32.      Dr G in his report dated 14 July 2020, prepared as a result of an interview he conducted with the Father on 18 June 2020, opines:
32.1.    The Father suffers from a psychiatric illness or condition called psychosis (page 22 of 53, line 4).
32.2.    The treatment usually recommended for his illness depends on the cause of it. Testing will need to be done to analyse potential causes, concerning diseases of the body and of the brain. Efficacy of treatment for the illness also depends on the cause and this sort of psychiatric illness can be caused by illicit drugs use and by stimulants like speed, ice and amphetamines. [page 25 of 53, lines 3-11]
32.3.    If it is found that the Father has used or continues to use the substances he will need to be encouraged, counselled and supported to enter into a detoxification and rehabilitation process. The likely duration of the condition depends on the outcome of casual investigations. The most concerning foreseeable circumstances that will exacerbate the illness is ongoing substance use. [page 25 of 53, lines 14-23]
32.4.    The impact of the mental state abnormalities outlined will have a profound adverse impact on his ability to care for the children. This is because of a severe impairment to be able to stop and listen to the needs and wants of a child, as the mental process is active in the Father’s mind “motor on”, relatively oblivious to the needs and wants of the child. This is very increased risk of inability to know and respond to the physical and emotional and psychological needs of a child, as a result of the mental state abnormalities outlined in the opinion. [page 25 of 53, lines 25-34]
[18] Outline of Submissions of the Independent Children’s Lawyer handed up on 11 June 2021 at pages 8-9.
On 13 May 2020 the father was transported to U Hospital under an Emergency Examination Authority, The “Criteria for being transported” was:[19]
[19] Subpoena Tender Bundle prepared by the Independent Children’s Lawyer marked exhibit 1 in the proceedings at pages 123-124.
2. Criteria for being transported
Describe the person’s behaviour:
Pt (sic) was calm and compliant. Pt (sic) was not aggressive toward QAS staff. Pt (sic) initially admitted to seeing demons but then stated he didn’t have visual or auditory hallucinations. Pt (sic) speech was rapid and pt (sic) discussed that today was the start of his new life.
Describe the reasons you believe the person’s behaviour, including, for example, the way in which the person is communicating, indicates the person is at immediate risk of serious harm:
Pt (sic) initially stated visual hallucinations in the past but then denied stating religious affinity only. Pt (sic) stated his aggressive outburst in room (sic) was due to him practicing dance routine for a show he was performing this evening either in his room or on the tennis (sic) to the children or anyone that showed up. He showed QAS an engagement ring he bought for a girl he met online and stated he was going to change his name. Pt (sic) lacked insight and displayed poor judgement.
Describe the reasons you believe the risk appears to be the result of a major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason:
Pt (sic) denies having any alcohol or drug intake today although Pt (sic) was told yesterday that he was denied access to his children due to a failed ice test. Pt (sic) told QAS that his life had changed today and that he was changing his name and putting on a concert this evening either in his bedroom or at the tennis courts.
I note it was the paternal grandmother who called the ambulance and raised concerns about the father.
The transcript of the paternal grandmother’s phone call records:[20]
[20] Additional Material of the Applicant Mother marked exhibit 27 in proceedings at pages 48-50.
DC: (…) I don’t know what to do. He’s (up there/obviously?) hallucinating, I think he’s on ICE, or been on ICE.
(…)
DC: No, he’s in his bedroom but he’s yelling and I’m worried about him.
ASO: Oh, ok. So, you think he’s been on ICE?
DC: yes.
ASO: who’s he yelling at? (…)
DC: Nobody He’s hallucinating.
(…)
DC: And I don’t know what to do, I don’t know whether he’s a danger to himself or, I don’t know. I rang the hospital and they said I’d have to talk to Emergency if I felt that…I don’t know what to do…(indistinct)
(…)
DC: Bring 2 men, not women, men. Strong men.
(…)
I consider the evidence suggests that at the time Dr G saw the father and when the paternal grandmother called the ambulance and an Emergency Examination Authority was made on 13 May 2020, the father was displaying mental health problems.
The father has not provided any evidence that he is currently being treated by a psychiatrist, that he has been treated recently, or that he does not require further treatment at this time.
I therefore consider the father’s mental health potentially presents a risk to his children if they were to spend unsupervised time with him.
The father can remove any concern about that risk by presenting to a treating psychiatrist and providing the doctor with Dr G’s report and the Family Report of Ms V.
The Father’s Drug Use
The father has had a history of serious drug use and misuse of alcohol.

The father was convicted of drink driving in 1998, the reading was 0.139% blood alcohol content. Furthermore, he was admitted to the hospital in 1999 after a head on collision. The subpoenaed records report that the father had been drinking “ETOH ++”.
On May 2018 the father tested positive to Methamphetamine at his workplace. The father attended his General Practitioner on 31 May 2018. The record notes that the father did not purchase the drug and that he uses it twice per year.
On 5 September 2018 the mother attended her General Practitioner upset and tearful, complaining that the father had been drinking and using all their money for drugs and alcohol.
On 7 September 2018 the father attended the General Practitioner and admitted he was drinking alcohol and hiding it from his wife. The father was prescribed diazepam.
On 4 October 2018 the mother’s evidence is as follows:[21]
40. On or about 4 October 2018, Mr Arnetts telephoned me while I was at work and informed me that Mr H had beaten him up and was trying to have Mr Arnetts committed to a psychiatric hospital. I spoke to Mr H’s daughter, Ms W who was there at the time over the telephone and Ms W agreed to meet me halfway between Sydney and Brisbane so I could collect Mr Arnetts and bring him back to Brisbane.
41. On the same day, I left to drive halfway to Sydney immediately after work to collect Mr Arnetts. When I got just outside of Town AA and retrieved Mr Arnetts, it seemed to me that Mr Arnetts was extremely "high"; he was slurring, he was drowsy, he could not remember names, and not talking sense at all. I could not understand what Mr Arnetts was trying to say.
42. We stayed overnight in a hotel and we drove home the next day. Mr Arnetts was not capable of driving and I drove all the way back from Town AA. This was because Mr Arnetts was still unwell and he told me he had been using again; that they had been using the whole ten (10) days. Mr Arnetts was also covered in sores all over his body; on his legs, face, arms and chest.
43. For the next two weeks, I helped Mr Arnetts come down off the drugs. It was a very unpleasant time. Mr Arnetts slept for most of the time, would cry often and kept saying words to the effect that he loved me and needed help. He also spoke constantly about the Matrix and his "experiences".
[21] Affidavit of Ms Arnetts filed 4 May 2021 at paragraphs 40-43.
On 30 October 2018 the mother and father went camping with the father’s brother. The mother admitted taking drugs on that occasion. The father admitted to the Family Report Writer that the parents used ice on that occasion.
On 31 December 2018 the mother discovered the father, his brother and the mother’s sister were injecting drugs.
On 21 March 2019 the father attended upon his General Practitioner. The subpoenaed notes record:[22]
[22] Subpoena Tender Bundle prepared by the Independent Children’s Lawyer marked exhibit 1 in the proceedings at page 97.
Surgery consultation recorded by Dr BB on 21/03/2019
Hhx (Sic)
used drugs z in last 3 months
1^st jan and last night
(…)
did use a lot for 5 months
never bought any himself
last night was drunk and pipe passed round (sic)
wondering if need to do anything as pressured by wife
is an occ (sic) recreational drug user not drug addict
On 6 December 2019 the father undertook a hair follicle drug test. The result was positive for Methamphetamine.
On 20 February 2020 the Court ordered the father not to use illicit drugs.
On 6 March 2020 the ICL requested that the father undertake hair follicle drug testing in accordance with the Orders. No results were provided.
15 April 2020 was the date by which the father was required to undertake hair follicle drug testing pursuant to a Court Order of 1 April 2020. The father has not provided any results from this drug test.
The paternal grandmother raised a concern about the father’s increased drug use when she called triple zero on 13 May 2020.
On 13 May 2020 when the father was taken to hospital, the Mental Health Services Triage and Rapid Assessment report recorded as follows:[23]
(…)
Mr Arnetts reported regular ICE use via smoking, and drinks alcohol daily (…)
[23] Subpoena Tender Bundle prepared by the Independent Children’s Lawyer marked exhibit 1 in the proceedings at pages 127.
While at the hospital, the father reported that he did not believe his substance use was an issue.
On 15 May 2020 the hospital psychiatrist conducted an unannounced home visit with the father. The chronology provided by counsel for the ICL summarises the notes from this visit:[24]
[24] Chronology of Independent Children’s Lawyer handed up on 11 June 2021 at pages 18-19.
Hospital psychiatrist conducted unannounced home visit of the father.
Subpoenaed records state the father reported to the psychiatrist:
·     Conditions have been put in place for hair follicle tests…that he will not comply but hopes his children will come back one day.
·     The father misses his wife but he has quite emotionally attached to her sister and he has brought a $2,000 diamond ring for her.
·     The father reported using methamphetamines 4-5 times a week, 17 points ‘on a happy week’ as well as several standard drinks most nights.
·     Last used last night.
·     “He doesn’t want to see anyone from drug and alcohol services, he says the way to give up is a ‘fuck off” approach to drugs and he is not quite ready ‘but I can feel the fuck coming’”.
Psychiatrist observations note:
·     Insight and judgment poor in context of amphetamine use, otherwise fair.
·     Impression: methamphetamine use disorder + narcissistic personality traits, not meeting criteria for MHA… further deterioration unless he addresses amphetamine use and significant grief/loss he has experienced by losing his family.
·     Father did not wish for any help from our service.
I note that in July 2020 Dr G assessed the father and made a provisional diagnosis of Drug Induced Psychosis triggered by Methamphetamine.
On 27 July 2020 the father attended his General Practitioner. The General Practitioner had a copy of Dr G’s report. The note from the doctor reads:[25]
[25] Subpoena Tender Bundle prepared by the Independent Children’s Lawyer marked exhibit 1 in the proceedings at pages 102.
Recorded by: Dr BB Visit date: 27/07/2020
Recorded on: 27/07/2020
History:
discussed summary of Dr Gs (sic) report
essentially diagnosed as having psychosis
advised to see psychiatrist
advised drug test
pt wills (sic) see psychiatrist
declines drug test
says not taken speed for several months
explained these are court Orders
if not complied to then his ‘case’ is weakened
encouraged to comply to the Orders
(…)
also explained in the report that it states that i (sic) rang Dr G ‘very’ concerned about him, but that was not the context or the case.
I returned his call as per note scanned
as I was concerned the report puts me as his GP in a poor light!
I forgot to mention thgis (sic) to pt and rang pt to inform him of this
for noting
I discussed Dr Gs (sic) observations and concerns, and he was concerned he was manic and was ‘going to burn himself out’
I did discuss his desire to start singing also, and theere (sic) were some manic features
Dr G said he made him sing a robbie williams song and that he felt it wasnt (sic) good at all
at no point was ‘psychosis’ specifically mentioned.
pt agrees to referral
referred to Dr CC as he is also independent medical examiner
pt repeatedly declined drug test
(…)
On 8 August 2020 there was an altercation between the father and his brother, Mr H, at 3:30am. The father was pinned against the garage wall and run over by his brother. The father’s injuries included a crushed pelvis and hip and fractured vertebrae.
The DD Hospital notes record on 8 August 2020 at 7:10am:[26]
Argument w brother last night
Pinned by bro against wall w car
Complex SHx – recent divorce – living w mother
Functioning meth user – performer – uses prior to performing
[26] Ibid at page 145
The note at 6:01am records:[27]
Used meth yesterday afternoon, reports uses regularly to ‘perform’, levels him out for performance at gigs – performed gig last night 4 standard drinks also
Does not appear intoxicated despite above
[27] Ibid at page 144.
The note on 9 August 2020 at 4:00pm records:[28]
[28] Ibid at page 147.
(…) with methamphetamine use
(…)
Regular use of ICE weekly
(…) smoke only
Last use, late night 7/8/20
Pt denies any other substance use.
Experiencing withdrawal symptoms
(…)
Appears still under the influence of ice.
Very focus on ex partner
-Ongoing DVO
-Pending court re breaching DVO
-4 children on the care of ex partner not allowed to talk/meet
The father was not willing to make a complaint against his brother. It appears the incident was a deliberate act by the brother. The police have charged Mr H with the dangerous operation of a motor vehicle.
The police have taken out a Protection Order against Mr H that has a ‘no contact’ provision.
On 24 August 2020 and 23 November 2020 the ICL again asked the father to undertake a hair follicle drug test. No results have been provided for either request.
On 8 February 2021 and 8 April 2021 the ICL requested the father undertake hair follicle drug testing. No results have been provided from either request.
The father’s repeated failure to provide a drug test at the request of the ICL allows me to draw an adverse inference that he refuses to test because the result would be positive.
This in turn, as a matter of logic, allows me to find that the children would be at risk in the father’s care because of drug use. This is despite the father’s evidence to the Court that he has been clean for six months.
The Mother’s Drug Use
The mother has admitted to drug use in the past. However, the drug tests she has done at the request of the ICL have all been clean.
The mother undertook a urine drug screen on 28 November 2019. The hair follicle test on 8 January 2020 was negative. There were further urine drug screens on 28 April 2020 and 28 April 2021, produced at the request of the ICL.
I do not consider the mother presents a risk to the children on the basis of her past drug use.
The Paternal Grandfather
The paternal grandfather was a very credible witness. He showed real commitment to his grandchildren. He also gave evidence that if the father and/or the paternal grandmother could not have contact with the children, he would ensure they did not come into contact with the children while the children were in his care.
I accept that the paternal grandfather would be sure to comply with any order this Court makes.
The paternal grandparents played a very significant role in caring for their grandchildren. This was particularly so when they were living on the same property as the children.
The Paternal Grandmother
The paternal grandmother is in a very difficult position. It is very clear she wishes to support her son. However, in doing so I consider it would be very difficult, if not impossible, to comply with an order that the father have no contact with the children other than at a supervised contact centre.
It is also apparent from the paternal grandmother’s evidence and actions that she blames all of the difficulties the family have faced on the mother. The paternal grandmother could not be relied on to ensure she did not denigrate the mother to or in the presence of the children.
In one of the charges of breach of Protection Orders, the paternal grandmother left voice messages on the mother’s phone accusing her of causing harm to herself and her son. The paternal grandmother also left messages that the mother is the reason for sending her son to prison and the reason the father is in hospital with his injuries.
LEGAL PRINCIPLES
I accept the summary of the applicable law set out in the submissions of counsel for the ICL:[29]
[29] Outline of Submissions of the Independent Children’s Lawyer handed up on 11 June 2021 at pages 2-4.
Unacceptable risk
8. In M v M[30], the High Court held at 77,081:
[30] M v M [1988] FLC 91-979.
“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 … (and) 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 abuse.”
9. It is not the function of the Court to determine the guilt or innocence of the accused perpetrator of sexual abuse [31] or physical abuse.
[31] B & B [1988] FLC 91-957 at pp 76,923 - 76,924.
10. It is submitted that the Court should refrain from making a positive finding that an allegation of sexual abuse or physical abuse is true unless it is:
10.1. impelled by the particular circumstances to do so[32]; and
[32] M v M (supra).
10.2. satisfied according to the civil standard of proof, having due regard to the factors mentioned in Briginshaw v Briginshaw[33]. The more serious the allegations and consequences of them being proven, the more convinced a Court needs to be that such allegations are proven, albeit on the balance of probabilities [34].
[33] Briginshaw v Briginshaw (1938) 60 CLE 336.
[34] S v R [1999] FLC 92-834 at 85,681.
11. In Donaghey & Donaghey [2011] FamCA 13, the Honourable Justice Murphy reviewed a number of authorities relative to this area and also some academic writings at paragraphs 26 – 32.
12. The Court also considered the issue of unacceptable risk in George & Nichols [2016] FamCA 519.
13. The Court’s function, it is submitted, is to determine whether live with or time/communication Orders would expose the children to an unacceptable risk of family violence and/or abuse and to act accordingly[35].
[35] M v M (supra).
Long term supervision
14. The Orders sought by the ICL include an order for indefinite supervision for the father if he fails to undertake certain steps. If the Court makes such an order, it must have cogent reasons for doing so.[36]
[36] e.g. See Moose & Moose [2008] FamCAFC 108; (2008) FLC 93-375, H v K [2001] FamCA 687, and Slater v Light [2013] FamCAFC 4; (2013) 48 FamLR 573).
15. In Moose & Moose[2008] FamCAFC 108; (2008) FLC 93-375, Boland J commented on the general undesirability of long term supervised contact and expressed concern about Orders not providing for their own review. His Honour referred to Justice May’s comments in TF & JF [2005] FamCA 394; (2005) FLC 93-227, where Her Honour having found that the evidence in the case “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...”, then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then explained “[w]hilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored”.
16. In Betros & Betros [2017] FamCAFC 90, Thackray, Murphy & Austin JJ
13. It has long been recognised that the permanent imposition of supervision upon the interaction between children and a parent is undesirable, though sometimes warranted (see Slater & Light (2013) 48 Fam LR 573 at 583–584; Champness & Hanson (2009) FLC 93-407 at [209]–[215]; Moose & Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40]–[41]; B and B (1993) FLC 92-357 at [79,780]). Consideration should usually be given to whether Orders can be created to avoid the permanence of the supervision or, if that is not practicable in the circumstances of the case, whether the Orders for permanent supervision are instead best made unconditionally, leaving the supervised party to decide if and when he or she might bring fresh proceedings to vary the Orders upon proof of changed circumstances, in the manner envisaged by Rice and Asplund (1979) FLC 90-725, as s 65D(2) of the Act ordinarily allows (see Gorman & Huffman and Anor [2016] FamCAFC 174).
Meaningful Relationship
17. The Full Court in Sigley v Evor (2011) 44 Fam LR 439 considered what is required by the term “meaningful relationship” in s 60CC(2)(a). The Honourable Justice Kent at paragraph 104 of his judgment in Heath & Hemming (No. 2) [2011] FamCA 749 opined that the Full Court in Sigley (supra):
·     approved the interpretation that a “meaningful relationship” is one which is important, significant and valuable to the child (citing Mazorski v Albright (2007) 37 Fam LR 518 per Brown J and McCall v Clark (2009) FLC 93-405 per the Full Court);
· concluded that the preferred interpretation of “benefit to the child of having a meaningful relationship” in s 60CC(2)(a) is that the Court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, Orders can be framed to ensure the particular child has a meaningful relationship with both parents (referred to by the Full Court as “the prospective approach”). However, the Full Court noted that s 60CC(3)(b) requires a Court to explore existing relationships between a child and the child’s parents and other persons and thus, depending upon the factual circumstances, examination of the evidence as to the nature of the child’s relationships at the date of hearing (referred to by the Full Court as “the present relationship approach”) may also be relevant, for example where a significant relationship had not been established between a child and a parent at the date of trial;
·     confirmed that the legislation aspires to promote a meaningful relationship, not an optimal relationship. (Citing M v S (2007) FLC 93-313 per Dessau J at [38]-[39]; Godfrey v Sanders [2007] FamCA 102 per Kay J at [33]-[36] and Champness v Hanson (2009) FLC 93-407 per the Full Court at [103]);
·     concluded that “meaningful relationship” is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a meaningful relationship.”
18. In terms of the benefit to the child of having a meaningful relationship, this was dealt with by the Court in McCall & Clark [2009]. The Act does not define what a meaningful relationship is and the Full Court preferred a “prospective approach” in terms of interpreting that term. The Court also commented that depended upon the factual circumstances of the present relationship may also be relevant [at para 119]. However, the Court was clear that the focus had to be on the “benefit” to the child [at para 122].
Drugs
19. The Court is entitled to make an adverse presumption or inference pursuant to Jones v Dunkel on basis of a parties failure to comply with drug testing Orders. The Father has failed to comply with various requests made by the ICL.
20. Observations made in T and N (2003) FLC 93-172 at 78,761 per Moore J as to a drug-using parent:
20.1. If a drug-using parent cannot be free and alert from substance abuse, they cannot properly care for young children who would rely upon them to have their needs met.
21. Whilst the children are not babies, the girls and X are still reliant upon their care providers. Observations were made in Horan & Beckett [2010] FamCAFC 200 and Barrett & Barrett and Anor [2017] FamCAFC 4 concerning marijuana/cannabis, but arguably the same sentiments would apply to ICE use.
When you have a dependency often when you are coming down and people can genuinely crave marijuana... it is not as innocent as we thought 30 years ago... People can often experience irritability… and frustration, short temperedness… these things can have an impact on the capacity of the parent, particularly young children... And the other concern is that if you have a dependency you are spending a lot of money on drugs and other aspects of looking after the family, paying the rent buying groceries, attending to medical needs, are being compromised...
And:
A parent who consumes cannabis and has the responsibility of looking after children, whether or not the children are asleep when the cannabis is consumed, is placing children at risk given the parents diminished ability to respond to medical or other emergencies such as a fire, that could arise with their children... What the father fails to realise is that there are children of a very young age who engage in smoking cannabis because of the role modelling of their parents.

The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975 (hereafter “the Act”).
In deciding whether to make a particular parenting order, s 60CA requires that I must have regard to the best interests of the children as my paramount consideration.
In determining what is in children’s best interests I must consider the matters set out in s 60CC(2), the “primary considerations”, and s 60CC(3), the “additional considerations”.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary” and as a note to s 60CC indicates, are consistent with the first two “objects” of Part VII, as stated in s 60B that the best interests of children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
There are 13 “additional considerations” set out in s 60CC(3) which I will refer to later in detail in these reasons.
I must also consider (to summarise) the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount (s 60CG).
I will also be guided by s 60B which sets out the objects of Part VII of the Act and the principles underlying it.
Primary Considerations
Turning firstly to the application of the primary considerations set out under ss 60CC(2) and (2A):
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
I consider there would be a real benefit to these children in having a meaningful relationship with both of their parents.
However, for the reasons discussed above, I consider there is an unacceptable risk of harm to these children being in the unsupervised care of the father because of his history of drug use and his failure to provide test results to the ICL on her request.
I also have concerns about the father’s capacity to care for the children because of his mental health problems and his failure to provide any evidence that he has been seeking treatment from a psychiatrist.
I also consider that the father’s history of domestic violence and the number of times he has breached the Protection Order potentially exposes the children to a risk of domestic violence, should the father have unsupervised time with the children.
Obtaining assistance from a psychiatrist for his mental health issue, getting treatment for his drug addiction and attending relevant courses to educate himself about issues of domestic violence would mitigate the risks discussed above.
Additional Considerations
The Children’s Views
This consideration is set out in s.60CC(3)(a) as follows:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
The submissions of the counsel for the ICL contain an accurate summary of the views expressed by the children to the Family Report Writer:[37]
66. All of the children except for Mr K have indicated to Ms V that they want to spend time with their father.
Mr K
67. Whilst Mr K is now 18 years old and no longer subject to these proceedings, Mr K reported in the family report interviews to:
67.1. Intending to remain in contact with the paternal grandfather.
67.2. Being indecisive about resuming contact with his paternal grandmother due to her support of the father when it was not the right decision.
67.3. That any future time with his father would depending on how he is and that he would need to “get off the drugs and clean up his act”.
[37] Outline of Submissions of the Independent Children’s Lawyer handed up on 11 June 2021 at pages 13-15.
W
68. W is 16 years of age.
69. W reported to the family report writer that he wants to have a relationship and live with both parents and that the ideal arrangement would be 50/50. W stated he may end up mostly living at Suburb F given most of his belongings and friends are there .
70. W reported a message for the court that his father is not a bad person around the kids.
71. W reported an intention to comply with the Orders of the court .
72. The family report writer Ms V was of the view that W is reaching a developmental stage of self-reliance in his decision making which will go some way to protecting him from future attempts to draw him into the perspective of others. Ms V opined that W would be best protected from the pressures and influence of the praties if he was included in the future parenting order for the children rather than to make his own decision.
X
73. X is 12 years of age.
74. X reported that he “really wants to” spend time with his father and grandparents and he would like to spend 50/50 time because this is “fair” and that he will comply with any conditions to ensure time commenced as soon as possible .
75. Ms V opined that X is craving a higher level of independence but is not yet emotionally required to manage it. Ms V further opined that X’s views and wishes should be taken into account but he should be directed to comply with Orders rather than permitted to make his own decisions .
76. X reported that he would very much like to have contact with his cousins EE, FF and GG and requested permission to chat with them via his PlayStation.
Y
77. Y is nine years of age.
78. Y reported it was “kinda good, but really boring” living with her Mother (it was noted that at that time they were living in a smaller house compared to their old house although they have now resumed living in the old house). Y reported that she “really missed” the boys when they live with their Father.
79. Y reported to the family report writer that the Judge should make the decision about where the children live but if she could choose, she would choose to live with both parents .
80. Y stated all she wanted for her birthday was to see her dad but that she didn’t tell anyone her wish.
81. Ms V in the family report noted that at her age, Y is expected to thrive on structure and routine and that Y needs the support of care-providers who are able to consistently put her needs above their own, and protect her from any further details of the adult dispute.
Z
82. Z is five years of age.
83. Ms V noted that Z is at an age where she remains primarily reliant upon her care providers to meet her needs and protect her from further details about the adult dispute.
84. In relation to Z, she reported that she likes living with her Dad but she likes living with her Mum more. [FR240]
85. She went on to say “I love her so much, but I love my Dad more”. She then went on to say “I love them the same”. [FR240]
General
86. The children’s views are not definitive. The Court is simply required to give the views such weight as the Court considers appropriate in the circumstances of this case. Views might be discounted in the event that there are other reasons in the child’s best interests that they should not be followed.
87. Ms V spends some time in the evaluation section of her report talking about the age and maturity of the children and cautions against the children’s views being definitive. For example, with respect to X she opines that he is at a biological age at which his views and wishes could be afforded some weight but it is her concern that he (sic) lack of maturity finds him poorly placed to make his own decisions about future parenting arrangements. It was her further concern that X’s current developmental stage of concrete thinking and fairness find him with an ongoing vulnerability to the influence of others. [FR277]
88. The ICL submits, in light of the concerns which Ms V outlines in her report in relation to each of the children’s views, that whilst the children’s views be considered, other factors may outweigh those views.
I note Mr K is now an adult but I have considered his views when he was under 18 as I believe they are relevant.
I accept the ICL’s submission that while the views of the children are relevant, other factors in this matter do outweigh their views.
Children’s Relationship with Significant Persons
This consideration is set out in s.60CC(3)(b) as follows:
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
I consider the children have a warm and loving relationship with each of their parents and their grandparents.
The father was a person who played a very significant role in the children’s lives. This diminished from 2018 onwards, where the father’s drug use increased and his mental health deteriorated.
The grandparents played a very significant role in these children’s lives. This became even greater when they took a big part in caring for these children while both parents worked. They lived on the same property as the children from 2012.
The Parenting and the Discharge of Parenting Responsibilities
In the circumstances of this case, it is convenient to deal under this heading with a number of considerations listed in s 60CC. I consider, under this heading, the following paragraphs of s 60CC(3):
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(…)
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The father attended his first visit with Y and Z on 24 November 2019 at P Contact Centre.
On 30 November 2019 the contact centre emailed the father to notify him of serious breaches of the Service Agreement.
On 8 December 2019 there was a further contact visit and again the father was notified of serious breaches.
On 5 January 2020 a supervised visit was arranged at the contact centre, however, the father failed to attend.
On 26 March 2020 the contact centre emailed the ICL to say, as set out in the ICL’s chronology:[38]
·     They do have the ability to facilitate changeover for the older boys X and W but not that weekend.
·     Father would be required to repeat his intake due to his previous behaviour. He is to abide by their rules.
·     Father has proven he is incapable of following direction and has no care for others around him.
·     Happy for him to use the service however he must abide by our rules
[38] Chronology of Independent Children’s Lawyer handed up on 11 June 2021 at page 14.
There were no more visits before the children’s time with the father and the paternal grandparents was suspended by Order of the Court on 12 May 2020.
The father indicated he was not happy to see the children at a contact centre.
The parents both worked during the relationship and maintained the children. The father stopped work in 2018. Since all the children have been living with the mother, she has continued to maintain the children.
The mother is able to provide for the emotional and intellectual needs of the children.
I have concerns the father would not be able to provide for the children’s emotional needs because of his drug use and mental health issues. Furthermore, his attitude to the mother, as evidenced by his repeated breaches of the Protection Order, could also place the children in a position of emotional harm if the father denigrates the mother in the presence of the children.
I also note the father did not ensure W and X attended school regularly while they were living with him.
The paternal grandmother also puts the children at risk of emotional harm because of her attitude to the mother. This attitude is evidenced by the six breaches of the Protection Order that the paternal grandmother pleaded guilty to.
The paternal grandfather is, in my view, very child focused and poses no risk of emotional harm to the children.
I consider the position of the paternal grandparents under s 60CC(3)(m).
Effect of Any Changes in the Children’s Circumstances
Section 60CC(3)(d) of the Act requires the Court to consider:
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The children have spent no time with the father or the paternal grandparents since May 2020. The father, in his oral evidence, seemed to suggest he would not see the children until they were older. This would be no change from the current arrangements.
However, if the father elects to participate in the staged reintroduction I intend to put in place, he would ultimately be spending alternate weekends with the children.
The paternal grandmother has not seen the children since May 2020. I intend to put in place supervised time with her.
The paternal grandfather will be seeing the children in an unsupervised environment with the orders I intend to make. Thus, he would return to something like the arrangement before the parents separated, albeit for a much shorter time with the children.
Parental Responsibility
Under s 61DA(1) of the Act, when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them. The presumption does not apply however if there are reasonable grounds to believe that a parent has engaged in abuse of the child, or family violence.
This is a case where the domestic violence and the breaches of DVO by the father preclude an order for equal shared parental responsibility.
I intend to make an order that the mother have sole parental responsibility.
I therefore do not intend to consider equal time or substantial and significant time.
CONCLUSION
The Father
I note Ms V recommended, as set out in the ICL’s Outline of Submissions:[39]
[39] Outline of Submissions of the Independent Children’s Lawyer handed up on 11 June 2021 at pages 7-8.
29. Ms V also recommended that:
29.1. Both parents attend a parenting Orders program,
29.2. Both parents refrain from any drug use when caring for the children,
29.3. The Father undertake hair follicle testing for drug use and an updated psychiatric assessment,
29.4. The Father complete a men’s behavioural change program,
29.5. All parties be restrained from denigrating the other parties or speaking with the children about adult matters,
29.6. Both parents abstain from alcohol as much as possible when caring for the children and remain below the legal driving limit at all times the children are in their care, and
29.7. The Mother be permitted to cease time between the children and the Father or paternal grandmother in the event of future breaches of the protection order between them. [357]
I consider the father’s failure to provide drug tests as required by the ICL, and his failure to place any evidence before me from a treating psychiatrist mean that I should order supervised contact between the father and the children.
The ICL proposes a staged reintroduction of the children to the father, which is conditional as follows:[40]
7. Upon the father providing to the mother by email:
a. Evidence of completion of the E Community Centre Men Choosing Change Program, or similar program;
b. Evidence of completion of the Parenting Orders Program;
c. Hair follicle drug and alcohol test results that are negative for illicit substances, prescription medication the father does not have a prescription for and demonstrate no use to low range alcohol use;
d. A report/letter from the father’s treating psychiatrist setting out the father’s diagnosis, if any, treatment recommended and compliance with treatment;
(…)
[40] Proposed Orders of the Independent Children’s Lawyer handed up on 11 June 2021 at page 3.
I intend to put that staged increase in time into the Orders.
The mother seeks an order that allows her to holiday with the children and provide make up time. I will make that order.
The Paternal Grandmother
I consider the paternal grandmother’s time needs to be supervised until such time as the father’s time progresses to unsupervised time.
This is because I consider the paternal grandmother:
(1)would not be able to resist a request from the father to see the children in an unsupervised setting;
(2)is a risk of denigrating the mother to or in the presence of the children; and
(3)does not understand the risks the father potentially poses to the children from drug use and untreated mental illness.
The Paternal Grandfather
The paternal grandfather impressed me as someone who would ensure the father and paternal grandmother would not come into contact with the children while in his care. For that reason, it is appropriate for the children to spend unsupervised time with him.
I will therefore make the orders proposed by the ICL with the additional order proposed by the mother.
I also intend to order the parties have a liberty to release the experts reports and this judgment to any treating professionals they or the children might attend.

I certify that the preceding one hundred and seventy-nine (179) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cassidy.
Associate:
Dated: 8 July 2021

File number(s):	BRC 13616 of 2019
Judgment of:	JUDGE CASSIDY
Date of judgment:	8 July 2021
Catchwords:	FAMILY LAW – drug and alcohol misuse – history of domestic violence – mental health problems – where the paternal grandmother and paternal grandfather are interveners – where the father sought that two children live with him and there be an equal time arrangement with the other two children – where the mother adopts the ICL’s proposal – where the ICL proposes that the mother have sole parental responsibility and that the children live with the mother
Legislation:	Family Law Act 1975, ss 60B, 60CA, 60CC(2), (2)(a), (2A), (3), (3)(a)-(c), (3)(f), 60CG, 61DA(1).
Cases cited:	Barrett & Barrett and Anor [2017] FamCAFC 4 Betros & Betros [2017] FamCAFC 90 Briginshaw v Briginshaw [1988] FLC 91-957 Donaghey & Donaghey [2011] FamCA 13 TF & JF [2005] FamCA 394 George & Nichols [2016] FamCA 519 Heath & Hemming (No. 2) [2011] FamCA 749 Horan & Beckett [2010] FamCAFC 200 Jones v Dunkel 101 CLR 298 M v M [1988] FLC 91-979 McCall & Clark [2009] FamCAFC 92 Moose & Moose(2008) FLC 93-375 Sigley v Evor (2011) 44 Fam LR 439 T and N (2003) FLC 93-172
Number of paragraphs:	179
Date of last submission/s:	11 June 2021
Date of hearing:	3, 4 and 11 June 2021
Place:	Brisbane
Solicitor for the Applicant	McCarthy Durie Lawyers – Brisbane Office
Counsel for the Applicant	Ms Hillard
Solicitor for the First Respondent	Self-Represented
Solicitor for the Second Respondent	Self-Represented
Solicitor for the Third Respondent	Gary Rolfe Solicitors
Counsel for the Third Respondent	Mr Trost
Solicitor for the Independent Children’s Lawyer	Legal Aid Queensland
Counsel for the Independent Children’s Lawyer	Ms Dart

BRC 13616 of 2019
BETWEEN:	MS ARNETTS Applicant
AND:	MR ARNETTS First Respondent MR B ARNETTS Second Respondent MS C ARNETTS Third Respondent
LEGAL AID QUEENSLAND Independent Children’s Lawyer

ORDER MADE BY:	JUDGE CASSIDY
DATE OF ORDER:	8 JULY 2021