Bartalotti & Bartalotti
[2025] FedCFamC1F 212
•15 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bartalotti & Bartalotti [2025] FedCFamC1F 212
File number: MLC 6128 of 2024 Judgment of: MCGUIRE J Date of judgment: 15 April 2025 Catchwords: FAMILY LAW – PARENTING – Application by mother that father spend time with the child as agreed but with stringent pre-conditions – Application opposed by the father who seeks a return to final parenting orders made by consent in August 2023 which saw the father progressing to spend time with the child for 4 nights per fortnight and school holidays in a block period – Allegation of father’s propensity for family violence and drug and alcohol abuse – Where the child suffers from various diagnoses including Autism Spectrum Disorder – Where father suffers from post-traumatic stress disorder – Where father alleges there is alienation of him to the child by the mother - Orders that child live with the mother – Orders that mother have sole parental responsibility for the child – Orders that father spend time with the child fortnightly on Saturdays between the hours of 10.00am and 5.00pm – Orders that father undertake drug and provide clean drug tests prior to such time commencing – Orders that parents communicate via a parenting App – Injunctive orders Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B and 61DAA Division: Division 1 First Instance Number of paragraphs: 82 Date of hearing: 6 and 7 March 2025 Place: Melbourne, delivered Hobart Counsel for the Applicant: Mr Weil Solicitor for the Applicant: Williams Winter Solicitors Counsel for the Respondent: Mr Jackson Solicitor for the Respondent: MMH Lawyers Pty Ltd ORDERS
MLC 6128 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BARTALOTTI
Applicant
AND: MR BARTALOTTI
Respondent
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
15 APRIL 2025
THE COURT ORDERS THAT:
1.All previous orders in respect of the child X born in 2018 (“X”) be discharged and including but not limited to the final parenting orders dated 2 August 2023.
2.Ms Bartalotti (“the mother”) be solely responsible for decision-making in relation to all major long-term issues in relation to X but conditional upon the mother:
(a)First providing her views to Mr Bartalotti (“the father”) via Our Family Wizard about any such issue regarding long-term decision-making for X;
(b)within 14 days of receiving the mother’s views about any issue regarding long-term decision-making for X, the father will provide the mother with his views about any issue via Our Family Wizard; and
(c)if no agreement is reached between the parents the mother shall make the final decision and advise the father via Our Family Wizard of such decisions.
3.X live with mother.
4.X spend time with the father fortnightly on Saturdays between the hours of 10.00am and 5.00pm, but prior to such time commencing the father shall provide to the mother clean drug tests being:
(a)carbohydrate deficient transferring (“CDT”) urine drug test and liver function test undertaken for the preceding three-month period; and
(b)one clean supervised broad screen alcohol urinalysis test.
5.For the purposes of the father’s drug testing such must occur with photographic identification at the pathology centre and noted on the results.
6.The father be responsible for the costs of the drug and alcohol testing procedures.
7.Prior to time commencing between the father and X the father will consult with Dr B of C Psychology, Suburb D for the purpose of education as to the nature of the X’s disabilities and challenges as a result of X’s Autism Spectrum Disorder diagnosis and provide to the mother by way of Our Family Wizard evidence of such appointment/consultation.
8.Forthwith, but not as a prerequisite to time commencing, the father enrol in and prudently complete a certified Autism Spectrum Disorder parenting course and will provide the mother with evidence of his enrolment in and completion of that course by way of Our Family Wizard.
9.The father at all times comply with the reasonable recommendations of his treating medical professionals regarding his medical treatment and to provide the mother, immediately upon receipt, copies of annual medical reports commissioned by the Department of Veterans Affairs.
10.The father be is hereby restrained from consuming any illicit drugs and/or alcohol for 48 hours prior to spending time with X or during any time that X is in his care.
11.The father be is hereby restrained from perpetrating violence, abusing or threatening the mother.
12.The father will strictly comply with the mother’s advice and direction as to medication and support aides prescribed for X and that the mother will forthwith provide to the father by way of Our Family Wizard details for X’s prescriptions and aides.
13.The father will at all times keep the mother informed of his residential address and telephone number.
14.The father be restrained from carrying X in any unregistered motor vehicle or any vehicle where the driver is not the holder of a valid driver’s licence and that any carriage of X be conditional upon the relevant vehicle having a proper seat by reason of X’s age, weight and height.
15.Providing however that X spend such further time or variations of the above that may be agreed between the parents from time to time in writing or by Our Family Wizard.
16.All communications, save in the case of emergency, between the parents take place by way of Our Family Wizard and that the parents immediately install the same on relevant devices.
CHANGEOVERS
17.Changeovers for X shall occur as agreed between the parties by Our Family Wizard and in default of agreement:
(a)the mother may nominate a family member or friend who is known to X so as to facilitate changeovers on her behalf;
(b)changeovers will occur at the F Contact Centre (“the Contact Centre”) on E Street, Suburb D in Victoria at the commencement and conclusion of X’s time with the father with any costs of the Contact Centre to be paid solely by the father; and
(c)each parent must be punctual and attend changeovers at the relevant times designated by the Contact Centre.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym of Bartalotti & Bartalotti has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J:
APPLICATIONS
These are parenting proceedings in respect of the parties’ one child namely X born in 2018 (age 6 years).
Ms Bartalotti is the applicant (“the mother”). At the commencement of the trial the mother’s position was that there only be time spent for X with Mr Bartalotti (“the father”) by agreement between the parties, but on stringent pre-conditions sought by her.
By the time of final submissions the mother had amended her position. She now seeks an order that she be solely responsible for long-term decision-making in relation to X and that X continue to live primarily with her. She now proposes that X spend time with the father on the second and fourth Saturday of each month from 10.00am until 3.00pm but only upon conditions including:
(i)drug and alcohol testing including both hair follicle and urine drug testing together with liver function testing and alcohol urinalysis testing;
(ii)an injunction preventing the father from consuming illicit drugs or alcohol for 48 hours prior to spending time with X and when X is in his care;
(iii)the father not perpetrate violence or abuse or threaten the mother and/or X;
(iv)the father forthwith consult with Dr B of C Psychology, in Suburb D for the purpose of him learning the nature of X’s Autism Spectrum Disorder diagnosis together with education as to responses to the child’s condition;
(v)the father forthwith enrol in and complete a certified Autism Spectrum Disorder parenting course and provide the mother with evidence of his enrolment and completion of such course;
(vi)the father comply with the mother’s advice and direction as to the application of various medications prescribed for X;
(vii)the father advise the mother by Our Family Wizard the name of his treating allied health professional or any other treating allied health professional and the address of those professionals;
(viii)the father advise the mother by Our Family Wizard of the name and address of his general practitioner and any other treating professionals and the medications prescribed for him;
(ix)the father provide to the mother by Our Family Wizard a report from his treating doctors and medical professionals, and then updated reports from his doctors and medical professionals for each six month period from the date of these orders containing a list of consultations giving the dates and times of each consultation and confirmation that he is complying with the treatment and medical recommendations;
(x)the father at all times comply with the reasonable recommendations of his treating medical professionals;
(xi)at all times when X is travelling with the father by motor vehicle the father ensure that he has a valid driver’s licence and that X is being transported in a fully registered and insured vehicle together with a properly installed seat for X’s age, weight and height;
(xii)the father at all times advise the mother of the name and contact details of any other person who will be caring for X’s during his time with the father;
(xiii)the father keep the mother informed of his residential address and changes of residence and keep the mother fully informed as to the names of any other occupants of the father’s residence from time to time; and
(xiv)the father keep the mother advised of his current telephone number.
The mother’s seeks various further injunctions and specific issues orders including as to communication, medical issues and passport/travel.
The father proposes a return to the Orders made by consent in August 2023 which provided a progression of time for X with him, but culminating as from 1 January 2025 with the father spending time with X on four nights per fortnight together with block times in school holidays. The father continues to argue for an order for joint parental responsibility in respect of long-term decision-making for X. He concedes a number of the mother’s conditions but not that they be completed prior to X’s time with him being restored at least on a progressive basis. He will agree to undertake urine tests and liver function tests. He will agree not to use alcohol or drugs when X is in his care or prior to X coming into his care. He will undertake courses. He will provide six or 12 monthly reports dependent upon the frequency required by the Department of Veterans Affairs (“DVA”). He agrees to the mother’s provision that the driver of any vehicle in which X is a passenger should have a valid license and the vehicle be registered and insured.
THE ISSUES
There is broadly an issue between the parties as to whether the mother should have sole responsibility for long-term decision-making for X and where the father requires an order for joint responsibility there are issues as to the ability of the parties to communicate where there is evidence of historical mistrust, suspicion, and family violence.
The father is more ambitious in the orders he seeks for time with X culminating in the child spending four nights per fortnight with him and presumably block times in school holidays. The mother is more conservative in the orders that she seeks and argues for day time only for X on two occasions per month and subject to stringent pre-conditions and ongoing requirements.
There is a general issue as to the capacity and insight of the father for the regime of care for X proposed by him. Specifically, there are issues as to the father’s propensity for family violence and use of drugs and alcohol.
There is an issue as to the father’s ability to attend to the various diagnoses suffered by X including Autism Spectrum Disorder.
There is an issue as to the father’s own mental health where he has been diagnosed with post-traumatic stress disorder (“PTSD”) and depression and the impact, if any, of these diagnoses on his capacity to care for X.
The mother raises an issue as to the father’s commitment to X by reason of his continued failure to meet outstanding costs orders where she says that this causes her financial impost and impacts on her financial support of X.
BACKGROUND
The father is 38 years old. He is unemployed and in receipt of a DVA pension of approximately $76,000 per annum gross.
The father is an Australian Defence Force returned soldier having served during 2007, 2009 and 2010. He was wounded during his service. He suffers diagnoses of PTSD and depression.
The father, in his evidence in cross-examination, informed the Court that he is currently re‑partnered. He refused to disclose the name or details of his partner. No affidavit was provided by his partner. The father further suggested in his evidence that his partner is the subject of violence or threats of violence from her own former partner. No further details were volunteered.
The mother is 36 years of age. She works as a manager in the public service and as a casual medical professional. She says that she is in good health except for a diagnosis of anxiety which is well managed.
The mother’s material and her evidence does not disclose whether she has re-partnered.
The parents commenced cohabitation in 2015. They married in late 2017. They separated on 26 September 2020 and are not yet divorced.
The child X was born in 2018 and is six years of age.
The mother has applied for and obtained various Family Violence Intervention Orders against the father from late 2020. She currently has an order valid in respect of both she and X until 2029.
The father has applied for at least two Intervention Orders against the mother. There is no indication that orders were granted.
The father has variously pleaded guilty or was found to be guilty of a number of breaches of Intervention Orders including in early2023, mid 2023 and early 2024.
The parents engaged in Family Court parenting litigation between 2021 and 2023 culminating in consent parenting orders on 2 August 2023 the details of which are set out above.
In January 2024 the father filed an Initiating Application seeking orders for X to live with him and a change of residence. The father’s application did not propose any time between the mother and X. The father’s application was wholly unsuccessful and a costs order was made in favour of the mother on 26 March 2024. That costs order remains outstanding.
On 26 March 2024 the father was arrested and charged with possession of illegal drugs. He is also charged with possession of a prohibited weapon. The mother says the father was arrested just some two hours prior to he being due to collect X from kindergarten.
On 23 April 2024 the mother stopped direct time between X and the father. X has not spent time with the father since that date.
On 23 May 2024 the mother commenced proceedings by an Initiating Application seeking to re-open parenting proceedings following the father’s criminal charges.
On 16 July 2024 the Applications were transferred to Division 1 of this Court. The father at that time was self-represented.
On 26 July 2024 interim orders were made inter alia suspending X’s time with the father. The father did not attend at the court hearing.
On 22 August 2024 a further interim defended hearing was listed before Senior Judicial Registrar Hayward. The father did not attend court.
In September 2024 X was diagnosed with Autism Spectrum Disorder.
On 20 November 2024 a further interim defended hearing was listed. The father attended court albeit late. He requested an adjournment. A costs order was made in the sum of $3,610.80 against the father. That costs order remains outstanding. On that day an order was made pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) for the father to be represented at the trial.
The father’s outstanding criminal drug and weapons charges were heard in early 2025. He pleaded guilty. No conviction was recorded and he was placed on an adjourned undertaking to expire early 2026.
Early 2025 Victoria police applied to the Magistrates Court to allow them to serve the Final IVO on the father via email as they had been unable to contact the father since November 2024.
On 5 February 2025 the substantive applications were listed for trial in this Court. The Father attended court. He was not ready to proceed. He had not filed documents. He had not satisfactorily engaged with Victoria Legal Aid pursuant to the s 102NA order made 20 November 2024 albeit that the father attempted to place some blame on Victoria Legal Aid. A further costs order was made against the father in a quantum of $5,010.70. That order remains outstanding.
On 21 February 2025 the father finally filed a Response to the mother’s Initiating Application filed 23 May 2024.
The trial in this matter proceeded over two days on 6 and 7 March 2025. The father had filed a trial affidavit on 21 February 2022. The father was represented by Mr Jackson of counsel pursuant to s 102NA and the Court is grateful for the assistance provided by Mr Jackson.
The mother was represented at all times by solicitors and by Mr Weil of counsel at the trial.
THE MOTHER’S CASE
The mother says that the parties do not have a cooperative or communicative relationship such that parental responsibility should be joint. She says that the father has a history of refusing to engage with her in respect of parental issues such as withholding his consent for urgent dental treatment for X and being secretive as to his personal circumstances and living arrangements.
The mother gave evidence in both her affidavit and in court that she is favourable towards X having a relationship with the father but is mindful on balance as to the serious safety issues presented by the father. She says that she herself has experienced ongoing family violence of a physical, emotional, financial, verbal and psychological nature. She has a current Intervention Order valid until late 2029.
The mother questions the father’s capacity in that he continues to be personally involved in and associated with illicit drugs. She says that the tenor of the father’s own evidence is that he associates with persons of criminal disposition.
The mother further has concerns as to whether the father properly addresses his own admitted mental health issues compounded by his use of drugs and alcohol.
The mother says that the father’s capacity is further compromised by the diagnoses suffered by X including Autism Spectrum Disorder.
THE FATHER’S CASE
Essentially the father argues that orders were made by consent as recently as 2 August 2023 providing time-with for X and the father culminating in four nights a fortnight. He argues that these orders should be resurrected after being unilaterally suspended by the mother.
The father says that his recent criminal matters have been dealt with and that the matters put to that court in mitigation have also been exposed in this Court where his participation was secondary and minimal in respect of both the possession of drugs and prohibited weapons.
Similarly, the father says that his charges and convictions for breaches of IVO orders have not involved physical violence but are more frequently issues such as the sending of text messages to the mother and he implies the mother’s propensity to make complaints of breach should he make enquiries as to X’s ongoing welfare or circumstances.
The father says that it is in X’s best interests for both parents to be involved in long term decisions for him and that he wishes to be actively involved in X’s life. He argues that the mother’s proposal for sole decision-making authority in respect of X is “another tool that she can use to alienate him from the child’s life”.
The father argues that he poses no risk to X of any physical or emotional type and that he would concede to a graduated increase in time so as to re-establish the relationship and similar to the Orders made in August 2023. He proposes changeovers in public places and for communication to be by way of a parenting App so as to attend to the mother’s asserted safety concerns.
The father says that he is willing to provide information as to his ongoing medical matters and to consult with and be educated in respect of X’s medical needs.
The father says that the mother’s cessation of the time pursuant to the Orders of 2 August 2023 is a form of alienation by her of X from the father.
THE EVIDENCE
Both parties provided affidavits, gave evidence, and were cross-examined. Neither party adduced evidence from any other witnesses.
The mother’s evidence showed her to be child focused and concerned as to the safety issues for X. Whilst she professed to be favourable towards a relationship for X with the father, it was clear that the mother emphasised her asserted safety issues for X in the father’s care and was consequently conservative in her proposals and accompanied by numerous conditions on her agreement to time being restored for X with the father. Generally, however, I found the mother to be an honest and responsive witness. It is open for me to find that her position in this matter has been influenced by her own experiences of family violence. I am not persuaded that she has embellished or exaggerated the history of family violence or its impact on her.
The father presented as intelligent and straightforward in his evidence. I accept his application for time with X to be sincere, child focused, and without any alternative agenda or motive.
The father’s evidence in cross-examination, however, was in many ways problematic. He was prone to being argumentative but defensive and deflecting in his responses in cross‑examination. I accept, however, that the father suffers some serious mental health issues not least being a PTSD and his demeanour may be explained, at least in part, accordingly. His defensive demeanour extended to being reluctant to provide details of his living circumstances or of his current partner including her name. The implication that such disclosures might somehow compromise this person or his living circumstances by intervention from the mother were illogical and without any apparent evidentiary basis. This manner and attitude of the father gave the Court little confidence that he would be able to work cooperatively, communicatively and positively engage with the mother in important decision-making issues for X.
THE RELEVANT LAW
Section 60CA of the Act provides that in deciding what parenting orders to make in respect of X, the Court must regard the child’s best interests as the paramount consideration. The Court determines those best interests by referencing the probative evidence and the parties’ proposals to the considerations set out at s 60CC of the Act with an emphasis on what arrangements would best promote the safety of the child and persons who have care of the child. The Court is to take into account the child’s views, if any, and, of course, the maturity and rationality of those views. The Court is to consider the developmental, psychological, emotional and cultural needs of the child. Importantly, the Court must consider the capacity of the parents to provide for those needs.
Section 60CC(2A) specifically mandates the Court to include consideration of any history of family violence involving the child or person caring for the child and any family violence orders applicable.
Section 61B defines “parental responsibility” as meaning all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Subject to any orders made by the Court, each parent has parental responsibility pursuant to s 61C.
Relevantly, s 61CA provides in respect of consultation between parents on major long-term issues:
If it is safe to do so, and subject to any court orders, the parents of a child who is not yet 18 are encouraged:
(a)to consult each other about major long‑term issues in relation to the child; and
(b)in doing so, to have regard to the best interests of the child as the paramount consideration.
Similarly, s 61DAA provides:
(1)If a parenting order provides for joint decision‑making by persons in relation to all or specified major long‑term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a)to consult each other person in relation to each such decision; and
(b)to make a genuine effort to come to a joint decision.
…
Section 61D(3) provides that a parenting order dealing with the allocation of responsibility about making decisions about major long-term issues in relation to the child may provide for joint or sole decision-making in relation to all or specified major long-term issues.
CONSIDERATION
X has consistently lived in the primary care of the mother since the parties’ separation in September 2020 and as evidenced by previous consent orders made 2 August 2023. The father does not now argue otherwise than X remaining living primarily with the mother. I am satisfied that such a situation is in X’s best interests.
The father seeks an order for joint parental responsibility into long-term decisions for X. The mother seeks sole responsibility. The Orders of 2 August 2023 made by consent then provided for equal shared parental responsibility.
I have had the advantage both of considering the parties’ materials filed in support of the Applications and the considerable advantage of seeing and hearing each of them give their evidence in court. Both parties conceded that they have a poor personal relationship. They do not communicate directly. Efforts by the mother to communicate with the father have often not been met with response. The father in his evidence in court showed himself to be defensive and suspicious of the mother’s motives should there be communication between them. For example, he explained his non-responses by saying he was concerned that the mother would use those communications to allege breach of the IVO. Further, the father has been reluctant to give his consent to requests for relatively innocuous medical procedures for the child such as dental attention. The mother says that she is still fearful of family violence from the father of various types including physical and emotional violence. The father is not forthcoming in his evidence to this Court as to his personal circumstances including his own current relationship. Taking all of these matters into account, and on the balance of probabilities, I am not persuaded that these parents are currently able to cooperate and communicate to a stage which would allow them to be jointly responsible for important decisions for X. Where the mother has historically taken this role, I am of the view that X’s best interests are served by the mother having sole parental responsibility for important decisions for X, but on a provision that she keep the father notified of any such decisions made by her.
The father is relatively ambitious in the spend time orders he proposes. The mother is more conservative in the orders that she seeks and notably she does not provide for overnight time in her preferred proposal.
The thrust and force of the father’s argument is that the parties themselves previously consented to orders as recently as 2 August 2023 which provided graduated time for X with the father culminating in four nights per fortnight including a block period of three nights in one weekend. These orders were made, notably by consent of the mother, where she then alleged a history of the family violence and raised matters of the father’s capacity similar to those now argued by her.
Notably, the mother herself identifies that X is happy in the company of the father and that she identifies and understands the potential benefits for X in having a full and productive relationship with his father. For his part, the father also emphasises the previous good and comfortable relationship for X with him and gives explanations as to many of the issues raised by the mother which he says, with some merit, should mitigate against both the mother’s concerns and those of the Court in respect of his capacity.
X is just six years of age and his views are not canvased as he is unlikely to have a level of maturity and rationality as to his own best interests. It is agreed between the parties, that X has previously enjoyed the company of his father. Notably, however, there has been no contact between X and the father since April 2024 which would be some considerable time in the memory retention of a six year old.
The issues raised by the mother relate to the father’s capacity and his insight both necessary to care for a child of X’s age and where X carries some diagnoses not the least being Autism Spectrum Disorder.
On the balance of probabilities, and assisted by hearing the parties give evidence in court, I am persuaded that the concerns raised by the mother have merit with some weight placed on the following:
(i)The father suffers some mental illnesses himself. He is diagnosed with PTSD and accompanying depressive issues. I have referenced above in these Reasons my observations as to his demeanour in the witness box. The father gives evidence that he addresses these conditions. Importantly, however, he adduces no evidence from a medical practitioner, psychologist or psychologist as to the current state of his conditions and opinions, if any, as to the impact on the father’s capacity to care for X. Effectively the father says that his conditions are “well-managed” but on the evidence they are managed by himself. His evidence as to continuing relationships with his medical practitioners was vague and uncertain. He takes a cocktail of various medications. The Court is left without evidence from the father’s practitioners as to his mental state generally and his capacity to care for a child with special needs.
(ii)The father is vague, uncertain, and reluctant in respect of his own circumstances. He says that he is in a new domestic relationship. He is reluctant to give details of that relationship including his partner’s name. He volunteered that his partner is perhaps herself subject to some threats from a former partner. The nature and extent of the father’s relationship with his partner is vague and short of detail. The Court does not have the benefit of an affidavit from this person in circumstances where she may reasonably be expected to have some contact with X on the orders sought by the father.
(iii)The father now advises that he lives in one bedroom accommodation. X has apparently previously stayed with the father at this venue. The mother says that X has complained that he sleeps on a couch at the father’s home. The father denies this and says that X is given the father’s bed. In any event, where X suffers from Autism Spectrum Disorder, it is generally considered that such children benefit from a strong regime of certainty and routine where provision of proper facilities and accommodation are of considerable importance.
(iv)The evidence suggests that the father is suspicious and reluctant in respect of his own education in relation to X’s special needs. The father’s evidence in respect of refusing or failing to sign an authority for dental treatment for X was unsatisfactory and served only to emphasise the father’s suspicious nature. The evidence does not persuade me that the father has been proactive in obtaining information or education in relation to X’s diagnoses. The poor and suspicious relationship between the parents does not give me confidence that the father could or would communicate with the mother in respect of such matters either for his own education or in the case of emergency. I am gladdened, however, in part in the father’s evidence that he has previously returned X to the mother when X has requested an early return.
(v)The father has, since the making of previous orders, been charged with apparent serious offences including possession of drugs and unlawful weapons. I accept the mitigating factors put by the father in his evidence to this Court which essentially puts primary responsibility in others. The fact remains, however, even accepting the father’s evidence, that he has made unwise choices in his associations. Undoubtably it would be contrary to X’s best interest to be brought into contact with such people and the father’s associations with those person give some merit to the mother’s concerns as to the father’s insight.
(vi)I accept the mother’s evidence that the father has administered medication to X other than that prescribed for the child’s eczema condition. He has failed to confirm with the mother that he has acquired proper medication for X including asthma puffers and steroids. I accept that he has failed to properly implement occupational therapy strategies for X.
Although not determinative, the father’s refusal to meet a number of outstanding costs orders in favour of the mother is also demonstrative into his attitude and lack of insight into the needs of X where his refusal to puts an unnecessary financial impost on the mother. On the balance of probabilities, I am not satisfied that the father has the current capacity or demonstrated insight into X’s needs so as to allow me to make the orders he seeks including block periods of overnight time. Importantly, I do not have evidence in proper or best form as to the father’s mental health conditions and/or his historical and current use of alcohol and illicit drugs. I have scant information as to his living and domestic arrangements. I am satisfied that he is not yet educated in attending to and addressing X’s special needs and most prominently his Autism Spectrum Disorder and asthma. The evidence concerns me as to the father’s associations including with those of criminal disposition.
The concerns harboured by the Court in respect of the father’s capacity and insight are not mitigated by there being any communicative and cooperative relationship between the parents.
In all of those circumstances, I am not persuaded that the orders sought by the father are in the best interests of X or attend to the safety concerns raised by the mother and accepted by the Court.
I am mindful, however, that X has previously enjoyed his father’s company and that the father is desirous of a relationship with X. As such, I am of the view that the maintenance and flourishing of this relationship should be continued but by time limited to day times only. Where X is at school and must also have the benefit of quality out-of-school time with the mother, I am of the view that X’s best interests are served by there being time for X fortnightly with the father on Saturdays between the hours of 10.00am and 5.00pm which is two hours longer than sought by the mother but this will allow the father to develop some understanding of X’s special needs and perhaps the opportunity to address those needs. It will, in my view, give sufficient time for the relationship between X and the father to re-establish whilst also addressing the risks concerns identified by the mother and accepted by the Court.
Given previous orders and consent between the parties, however I will order that there be such further time between X and the father as may be agreed between the parents from time to time. I make this order accepting the bona fides of the mother that she does support the relationship between X and the father and so as to give the father the motivation to prove his various assertions made to this Court and so as to ultimately again obtain trust and confidence by the mother.
It remains for me to address the conditions or prerequisites sought by the mother which she seeks as prior conditions.
The father has a history of some drug and alcohol abuse. I am mindful, however, that this history was prevalent prior to the consent orders of 2 August 2023. The father’s evidence is that he has addressed these issues. Nevertheless, where X is just six years of age and has special needs, the tenor of the safety issues in the Act is at the forefront of my consideration. In those circumstances, I am of the view that the father should be tested for drugs and alcohol recent usage prior to the commencement of such time. I accept that he cannot soon provide a hair follicle test due to him being shaven. I am satisfied that a urine test will suffice for both drugs and alcohol.
Secondly, the father should consult with the child’s specialist psychologist for some education as to X’s autism diagnosis prior to time commencing but then, in any event, should complete a certified Autism Spectrum Disorder parenting course. The latter, however, would not be a pre‑requisite requisite to time commencing.
The father says that he receives medical reports annually from DVA. In his final address, the father’s counsel indicated that the father would provide those to the mother. Consequently, and with that consent, I will order accordingly.
There will be the common injunctive orders sought by the mother that the father does not consume illicit drugs and alcohol prior to or during time spent by him with X.
There will be an injunction in the usual terms in respect of licensed drivers and registration of relevant motor vehicles. The father will keep the mother advised of his residential address, and contact details.
Where there will be an injunction in respect of the father’s use of illicit substances and alcohol, and taking into account the father’s own evidence, I am not satisfied that it is appropriate for the mother to have ongoing right of request of further drug testing.
The orders will provide for changeovers at a Children’s Contact Centre. In the circumstances of the mother’s primary financial support of X and the outstanding costs orders, I think it proper that the father meet the costs of the Contact Centres for changeovers.
I will order that communication between the parents take place by Our Family Wizard.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 15 April 2025
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