Bellia & Bellia - [2022] FedCFamC2F 100

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bellia & Bellia [2022] FedCFamC2F 100

File number(s): MLC 11191 of 2019

Judgment of: JUDGE HARLAND

Date of judgment: 7 February 2022

Catchwords: FAMILY LAW – Parenting – mother not seen the children for over six years – oldest child is autistic – whether or not the mother should be reintroduced to the children – mother has longstanding drug addiction issues and mental ill health – whether or not there is an unacceptable risk.

Legislation: Family Law Act 1975 (Cth), pt.VII, ss.60B, 60CA, 60CC, 64, 65D

Cases cited: A & A (1998) FLC 92-800
Amador & Amador (2009) 43 Fam LR 268
B & B (1993) FLC 92-357
Bassler & Norton (No 2) [2010] FMCAFam 840
Blinko and Blinko [2015] FamCAFC 146
Jeffs & Marshall (No 5) [2020] FCCA 2893
Johnson & Page (2007) FLC 93-344
Keane & Keane and Another (2021) 62 Fam LR 190
M v M (1988) 166 CLR 69
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Napier & Hepburn (2006) FLC 93-303
Potter & Potter (2007) FLC 93-326
Randell & Adler [2020] FCCA 767
Re G (Children) [2006] 1 WLR 2305
Stott & Holgar [2017] FamCAFC 152
Waterford & Waterford [2013] FamCA 33

Division: Division 2 Family Law

Place: Melbourne

Number of paragraphs: 138

Date of hearing: 25 & 26 November 2021

Place: Melbourne

Counsel for the Applicant: Mr Chislett

Solicitor for the Applicant: Pentana Stanton Lawyers

Counsel for the Respondent: Mr Eley

Solicitor for the Respondent: Lander & Rodgers

Counsel for the Independent Children’s Lawyer Mr James

Solicitor for the Independent Children’s Lawyer Victoria Legal Aid
ORDERS

MLC 11191 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BELLIA

Applicant

AND:
MR BELLIA

Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

7 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The Respondent Father have sole parental responsibility for the children, X, born in 2010 and Y, born in 2013 ('the Children').
2.The Children live with the Respondent Father.
3.The Children spend no time with the Applicant Mother.
4.The Applicant Mother be permitted to send letters, cards and gifts no more than 4 times per year to an address/PO Box nominated by the Respondent Father. The Respondent Father may pass these on to the children at his discretion.

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).
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 by this Court under a pseudonym Bellia & Bellia has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:
INTRODUCTION

X last saw her mother when she was 4 years old and when Y was 18 months old. X born in 2010, is now aged 11 and Y, born in 2013, is now aged 8. Ms Bellia, the mother, is seeking to re-establish a relationship with her children.
The mother commenced proceedings on the basis she is no longer a risk to the children and that she has gained insight into her drug addiction and mental ill health. She places much on the significance on the children being denied a meaningful relationship with one of their parents. The mother accepts that initially any time she spends with the children would have to be supervised. She says if the children do not want to see her she would respect their wishes.
Mr Bellia, the father, opposes the mother’s application. He is concerned that the mother remains a risk to the children. He says the children are settled in a loving environment and that this should not be disturbed. The father is concerned about the possibility of the children being reintroduced to the mother and the mother then being absent again due to a drug relapse or her mental health deteriorating. He is particularly concerned that X will not cope with a reintroduction given her special needs and her diagnosis of Autism Spectrum Disorder, as well as the evidence from her occupational therapist.
The trial was originally scheduled to commence on January 2021, but was adjourned to 25 November 2021. Part of the delay in these proceedings is due to the mother’s former lawyers failing to pass on requests for drug screens and to take instructions to advance her case. The principal lawyer at the former law firm the mother had engaged blamed a series of administrative errors after the lawyer with carriage of the mother’s case left the firm, and agreed to pay the costs of the Independent Children’s Lawyer (“ICL”) and also the father’s costs that were thrown away. I want to reassure the mother that those delays caused by the former lawyers has no bearing on the outcome of this case and has not prejudiced her case.
The mother relied upon the following documents:
(1)Amended Initiating Application filed on 18 November 2021;
(2)Affidavit of the mother filed on 16 April 2021;
(3)Affidavit of the mother filed on 1 October 2019;
(4)Affidavit of Ms C (the maternal grandmother) filed on 18 June 2021;
(5)Affidavit of Dr D filed on 29 October 2021;
(6)Affidavit of Ms R filed on 14 October 2021.
The father relied upon the following documents:
(1)Amended Response to Initiating Application filed on 21 January 2021;
(2)Affidavit of the father filed on 23 June 2021;
(3)Affidavit of Dr F filed on 19 January 2021.
The mother stresses the importance of the children’s rights to a meaningful relationship with both parents. The father acknowledged that the mother has made progress but remains of the view that the is an unacceptable risk of harm to the children if the mother is reintroduced to the children given that she has been unable to demonstrate that she has successfully addressed her mental health and drug issues. Whether or not it is the children’s best interests to be reintroduced to their mother or whether there is an unacceptable risk due to the mother’s drug use and mental health are issues I will need to determine.
Both parties were sincere and forthright in their evidence. This case is about risk and whether or not the risks can be sufficiently ameliorated. My impression of the mother was that she was well intentioned but somewhat lacking in insight. She is to be commended for the progress she has made.
After hearing from the lay witnesses, I indicated to the parties that based on the evidence thus far, I could not make final orders that progressed the mother’s time from supervised time to unsupervised time. The mother’s counsel submitted at the final hearing, the mother could not propose that she have supervised time indefinitely and highlighted further to the fact there is no family report. As I pointed out at the time, the first proposition is simply not correct. Cases of this type can result in the Court finding it in the children’s best interests to make interim orders rather than final orders after testing of all the evidence, particularly in a case like this, where the children currently do not have a meaningful relationship with the mother. Further consideration must be had as to whether the mother’s time should progress from supervised time and what that time should look like.
The absence of a family report is not a gap in this case but a deliberate decision as what needs to be determined first is whether or not the mother continues to be a risk to the children due to her drug use and mental health issues, and whether or not that can be ameliorated. It would not be in the children’s best interests to have to attend upon a family report writer for interviews exploring, amongst other matters their views about being reintroduced to their mother after six years, only for the Court to determine that it is not in the children’s best interests to reintroduce the mother to the children at this stage of their lives. The fact that the parties had entered into negotiations to obtain a private family report before the proceedings does not alter this.
BACKGROUND
The parties met in or about 2009 and commenced cohabitation in or about July 2009. They were married in 2010. They separated on 9 March 2015 and a divorce order was granted on 26 November 2016. The mother has not spent time with the children for over six years, following an incident on 5 April 2015.
The father says that at the time of meeting the mother, he was at a low point in his life. His friend was dying of cancer and he was depressed and using marijuana as a means of coping with his depression. The mother was dependent on alcohol and marijuana and also used other drugs including cocaine, speed, ice and methamphetamines. The father says the mother continued to consume alcohol and marijuana during her pregnancy with X. The mother says they both used drugs during their relationship. She also says the father was violent.
The mother says her drug and alcohol dependency, as well as her past behaviours, have stemmed from complex childhood trauma. The mother says she has had a history of childhood abuse, parental neglect and sexual abuse. She now has stable employment and is in a stable and loving relationship.
LEGAL PRINCIPLES
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law 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, the best interests of the child 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 and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3). These considerations include the views of the child, the nature of the child’s relationship with their parents and significant others, the extent to which the parents have or failed to take opportunities to participate in decision-making, spending time with and communicating with the child, the likely effect of separation on the children, the attitude of the parents to the responsibilities of parenthood and the capacity of the parents and significant other persons to provide for a child’s needs.
Unacceptable risk
With respect to the assessment of unacceptable risk in Stott & Holgar [2017] FamCAFC 152 the Full Family Court conveniently summarised the issues at paragraphs 34 to 38 as follows:
34. The “unacceptable risk” test articulated by the High Court, in the context of disputed allegations of sexual abuse, is expressed as follows in M v M (1988) 166 CLR 69 where the High Court said at 78:
In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
35. The “unacceptable risk” test applies also to other forms of risk, including risks to children associated with exposure to family violence: A & A (1998) FLC 92-800 at 3.15 and 3.25; Amador & Amador (2009) 43 Fam LR 268 at [89].
36. In B & B (1993) FLC 92-357 at 79,778, the Full Court described the test as:
the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
37. As an eminent former judge of this Court has said (emphasis added):
… unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …
38. We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N & S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier & Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter & Potter (2007) FLC 93-326 at [124] and [125]; Johnson & Page (2007) FLC 93-344 at [66] and [67]).
The mother agrees that the father should continue to exercise sole parental responsibility for the children. The Court is therefore not obliged to consider an equal time or a substantial and significant time arrangement is in the children’s best interests. The focus of the dispute in this case is the risk issues and whether those risk issues can be ameliorated, and weighing the risk issues against the importance of the children having a meaningful relationship with their mother.
No risk issues are raised with respect to the father’s parenting. This is important because it means the Court is not faced with balancing competing risks in the parents’ household. The risks to the children stem from the mother’s drug use and mental health arising out of her complex post-traumatic stress. In addition it is necessary to consider the particular vulnerabilities X has and her ability to cope with a reintroduction. Another relevant factor is whether or not the mother is likely to remain in the children’s lives. Inevitably this exercise involves trying to predict what may happen in the future, that is in part informed by past and current circumstances.
THE PARTIES’ CASES
The mother set out several cases in her case outline which discuss the concept of a meaningful relationship and drew attention to particular paragraphs. Lawyers should take particular care when referring to single judge decisions as each case turns on its own facts. Furthermore relying on a particular paragraph without context can be unintentionally misleading. I particularly refer to Re G (Children) [2006] 1 WLR 2305, Randell & Adler [2020] FCCA 767 and Bassler & Norton (No 2) [2010] FMCAFam 840. The description of what was said in that case at [12] is incorrect. The case I decided of Jeffs & Marshall (No 5) [2020] FCCA 2893 also relied on vastly different circumstances where there were very sensitive issues of risk to the children in the mother’s care with whom the children lived.
The mother draws attention to the comments of the Full Court of the Family Court in in Keane & Keane and Another (2021) 62 Fam LR 190 at paragraph 84 which states:
A recent analysis of “unacceptable risk” was undertaken in In Keane & Keane and Another (2021) 62 Fam LR 190 [84] (Keane), where their honours make clear the Blinko and Blinko [2015] FamCAFC 146 interpretation is correct:
[84] “In undertaking the task of considering what steps are “proportionate to the degree of risk”, the decision of Blinko makes it clear that the mere finding that a child may be at an unacceptable risk as a result of spending time in the care of another parent does not conclude the task before the primary judge. A necessary consequence of that finding, having regard to the totality of matters that the court is required to consider pursuant to s 60CC of the Act, is for the court to contemplate whether steps can be taken to ameliorate or mitigate against that risk such that the child can maintain a meaningful relationship with the other parent.”
I accept those comments. The assessment of risk is a nuanced task. It is necessary to consider in what ways the risks can be ameliorated. If the risks can be ameliorated the children will have the opportunity to form a meaningful relationship with their mother. As children become older their sense of identity can be important. One or both children might develop a sense of loss with respect to their mother.
The father stresses in his case outline that the risks to the children due to the mother’s drug use and mental health are both physical and psychological. He also refers to the mother’s violence and aggression. He says reintroducing the mother to the children will be destabilising and particularly damaging for X given her special needs. This includes the result of the mother being reintroduced to the children only to disappear again either because she relapses or her mental health deteriorates.
I observe that in contrast to several of the cases the mother relied on in her case outline, there is no suggestion that the children are at risk in the father’s care. The ICL says a very cautious approach should be taken. In her case outline, she refers to the mother’s mental health, drug use and complex trauma. She says the mother has failed to produce evidence showing she has successfully addressed these issues. These factors, combined with X’s special needs, leads to the ICL’s view that the need to protect the children from harm outweighs the potential benefit to the children having a relationship with their mother. The ICL points out that the children appear to be well-cared for by the father. The ICL has previously expressed these concerns to the parties so this would not come as a surprise to the mother.
The mother filed an amended initiating application a week before the trial. In that application, she proposes a graduated spend time regime as follows:
(1)a three month period of supervised time at a contact centre for two hours a fortnight;
(2)at the conclusion of that period mother is to undergo a hair follicle test;
(3)for a month the mother is to spend four hour period with the children once a fortnight, from 11AM until 3PM ;
(4)mother’s time increased by an hour from 11AM until 4PM for another month;
(5)the mother is to undergo a further hair follicle test after that;
(6)then the mother to have overnight time from 4PM Saturday until 4PM Sunday, for three months and then from 11AM Saturday until 4PM Sunday week.

Importantly, her orders provide that if she tests positive for illicit substances or does not produce a result then it will be treated as a failed result, and her time would be immediately suspended. Her orders do not provide a mechanism for her time to resume. The mother confirmed in cross-examination that her understanding is that her time would not resume. This would be her last chance.
The mother annexes a series of colour photographs to show the bedroom that she has set up for the children. The photos show various toys in the bedroom and also her backyard and video games. The mother clarified when cross-examined that the photos she has taken of the games includes games that she plays and that she does not suggest that these would be suitable for the children. The photo includes G rated and PG rated games.
TIMES MOTHER HAS SEEN THE CHILDREN SINCE SEPARATION
Incident on 5 April 2015
On 5 April 2015, the parties agreed to spend Easter Sunday together so that the mother could see the children. The parties give different versions of what took place in their trial affidavits.
The father collected the mother in his car from where she was staying. The father says he was hopeful the girls would have a positive experience seeing their mother again for the first time in six weeks. After waiting 30 minutes, she appeared from the door in what he describes as an agitated state. He said he “implored” the mother to behave appropriately, saying words to the effect of, “please just be calm and come visit the girls.”
The father describes that upon arrival at his home, the mother spent approximately five minutes with the girls and started “raiding the home for belongings she said were hers.” He said the mother yelled loudly and made noises pulling items of shelves. The father recalls the mother threatening to kill him. He said he feared for the safety of the girls and called the police who arrived quickly and detained the mother. The father applied for an Intervention Order listing himself and the girls as Affected Family Members. The mother cross-applied for an Intervention Order against the father and on 1 May 2015, they consented on a without-admission basis to orders against one another, save that the mother’s Intervention Order listed her alone as the Affected Family Member and the Intervention Order against the mother listed the girls and the father as Affected Family Members.
In her affidavit, the mother describes the incident that occurred on about 5 April 2015 at the former matrimonial home. She says the parties agreed via text message that the mother could collect some belongings from the property. At the time, there was an intervention order in place, however the parties had agreed to this in writing. The father agreed to drive her to the property.
At the time, the mother was not on good terms with the maternal grandmother due to her childhood trauma. The mother says the father told the mother that the maternal grandmother would not be at the property while she was there, however the mother recalls seeing her mother waiting in the doorway which caused her distress. When the mother went inside to collect her belongings, she saw the father had left out a photograph of himself with his ex-wife. She then opened a drawer to collect some items and saw some credit cards which she did not know about. The mother recalls being at the bank only shortly before to open up her own bank account and close the joint bank account. In doing so, she noticed large amounts of money had been transferred in and out of the joint account without her knowledge. The mother became overwhelmed with emotion and told her mother “I hope you rot in hell.” The father called the police, the police attended and removed the mother.
In cross-examination, the father was asked about the mother’s evidence with respect to the incident on 5 April 2015. The father said it was ludicrous and that he does not have photos with his ex-wife nor were there any credit cards. He says the mother was in a bad way, using cannabis, and almost decided to end the visit, but said he promised the girls they will see their mother. They both agree the mother became upset, the police attended and removed the mother.
The mother was cross-examined about the incident on 5 April 2015. She said that the reason the father drove to pick her up to facilitate the visit was because he had taken her car. In relation to the question about her becoming angry and enraged, she responded saying she was upset, not enraged, when she saw the photo of the father with his ex-wife. She said she was not angry at that point, however she became angry later. The mother was asked about the joint bank account and she said this happened later in the dining room area. She said she had only just closed the joint bank account and noticed the father had been putting money in other accounts. She said she “just snapped.” Counsel for the father questioned her and said she already knew about the bank account. The mother responded saying she did not know until a week beforehand when she closed the joint account. The mother was also questioned about what she told her mother during this incident, “to rot in hell.” The mother said “yes and I called her the devil’s spawn.”
Ultimately, whether or not the mother saw a photo of the father’s ex-wife and credit cards does not matter. The mother conceded the children were present and witnessed this incident. The mother accepted her behaviour was inappropriate and acknowledged that it was the last memory the children would have of their mother. It would have been frightening for them.
The maternal grandmother was called as a witness. She agreed that she was present during this incident on 5 April 2015 and that the mother raised her voice, was calling the father and her names, acting aggressively, making threats to kill and that she left the home after the father called the police. She said the father asked her to come back and stay with the girls in the bedroom until the police came. She says the father asked her to make sure the girls did not see the mother being arrested by police and she focussed on trying to keep the girls calm. The maternal grandmother was asked what she meant by being hesitant to swear an affidavit, to which she said she thought it would go against her daughter and said she was under the impression that she would be asked about the mother’s childhood and did not want have to revisit the past.
Incident on 26 March 2016
The last time the mother saw the children was on 26 March 2016. The father took the children to a park in Suburb E. Upon returning home, the mother and her then partner were waiting outside the front of the father’s house. The father says he noticed them out the front before driving into the driveway. He drove past his house in an effort to avoid them and made a U-turn at the roundabout and headed back the way they came towards a friend’s house. The mother’s partner ran towards the car and attempted to jump onto the bonnet. The father says both the mother and her partner were screaming and yelling. The children were asleep in the car seat. Hours after the incident, the father says he received numerous text messages from the mother and her partner which he described as aggressive and threatening. He is of the view they were drug or alcohol affected.
In cross-examination, the mother conceded that she attended the home of the father with her then partner and said that she “really needed to see my kids, I needed them to know I was alive.” The mother said she had spoken with the children on a couple of occasions over the phone when the father would allow them to call her.
In response to the time between the first incident on 5 April 2015 and this one, being 11 months, she said it was because she finally had an address for the children from her mother. The mother was cross-examined further about her actions resulting in the altercation. She said she did not expect an incident to occur. The mother said she knocked on the door and no one was home so she waited. She said she did not yell and was asking if she could speak to the father and the children. The mother also disagreed with the father saying that her partner jumped on the bonnet of the car.
Even if I accepted the mother’s version, the mother’s lack of judgement is concerning. I do not see how she could expect turning up with her then partner unannounced would go well for her and the children. This is particularly so where she had to obtain the father’s address from her mother. That should have been an indication to her that turning up unannounced would not be welcomed. The father’s lack of trust in the maternal grandmother for a period of time after this incident is understandable.
PARENTING PLANS
This is not a case where the father has simply rejected any attempt by the mother to rekindle her relationship with the children. The father relies on the parenting plans the parties have entered into by agreement. In essence, his case is that the mother has not adequately addressed the risk issues clearly outlined in each of those parenting plans.
Part of the father’s case is that the mother has had the benefit of a very clear roadmap being set out for her again and again from at least August 2017. In this regard, he refers to the three parenting plans the parties entered into between 2017 and 2019. I will outline the details of the parenting plans below:
First parenting plan
(1)On 2 August 2017, the parties attended a Family Dispute Resolution (FDR) conference and agreed to the first parenting plan. The content of the parenting plan is as follows:
1.That the children X DOB 2010 and Y DOB 2013 live with the father.
2.That the mother undertake the following:
a.Therapeutic counselling with the purpose of:
i.Acknowledging and understanding her past behaviours and their effect on the children;
ii.Obtaining a letter from the treating counsellor regarding compliance with 2(a)(i) above.
b.A psychiatric evaluation for the purpose of assessing parental capacity;
c.Supervised urine drug screens or hair follicle testing (if the mother can afford it or the father is willing to pay) upon the written request from the father to the mother’s solicitor. That such a screen be conducted within 48 hours of such a request, and such request be limited to no more than once per calendar month.
d.Endeavour to obtain stable employment and living conditions.
Second parenting plan
(2)The parties attended a further FDR conference where they entered into a second parenting plan on 7 September 2018. They saw the same mediator. The plan was similar to the first one and the terms are set out as follows:
1.   That the children X DOB 2010 and Y DOB 2013 live with the father.
2.   That the mother continue to see Ms G (psychologist) in relation to Therapeutic Counselling with the purpose of:
i.Acknowledging and understand her past behaviours and their effect on the children;
ii.Obtaining an updated letter from Ms G in regard to compliance with 2(a)(i) of this plan.
3.   A psychiatric evaluation to establish parental capacity, professional diagnosis (i.e. Asperger’s or any other psychiatric illness) and the mother’s acknowledgement of said issues.
4.   Supervised urine drug screens or hair follicle testing (if the mother can afford it or if the father is willing to pay) upon the written request from the father to the mother’s solicitor. That such a request be conducted within 48 hours of such a request and such requests be limited to no more than once per calendar month;
5.   That should a treating professional recommend that the mother take medication, the mother be complaint [compliant] with such medication.
6.   Once the mother is able to obtain a written psychiatric evaluation with the parties to agree to attend another FDRS conference to discuss progressing the mother’s time with the children.
Third parenting plan
(3)On 30 January 2019, the parties attended their third FDR conference and the contents of their agreement is as follows:
1.   The children, X and Y are to attend upon an agreed Child Psychologist for formal evaluation of the following:
a.   How contact between the children and the mother would impact upon their emotional health;
b.   If deemed appropriate what strategies would need to be implemented to support reunification; and
c.   Any other issues that the Child Psychologist deems relevant.
2.   The Child Psychologist is to be agreed upon between the mother and father no later than 15 February 2019. The mother’s solicitor to provide recommendations to the father as soon as practicable.
3.   The mother’s report prepared by Dr H dated 15 November 2018 and the mother’s letter from Ms G dated 29 August 2018 be released to the agreed upon Child Psychologist.
4.   At the discretion of the Child Psychologist, either parent may provide further information to the Psychologist for the undertaking of the evaluations.
5.   The parents to share the cost of the evaluations.
6.   The children’s evaluations are to be released to the mother, father and Legal Aid.
Thus, the mother has been on notice since at least August 2017 about the father’s concern that the mother’s drug use and mental health continued to present real concerns to the children. The father has facilitated the maternal grandmother having a relationship with the children. The father also pointed to the fact that when pressed, the mother said she had not understood her obligations in the parenting plans. This was a common theme throughout the mother’s evidence and was not limited to the parenting plans. For example she also raised not understanding her obligations with respect to not paying child support.
In her trial affidavit, the mother says she is deeply regretful of her previously unacceptable behaviour and the impact it has had on the children and expresses her concern that it is not fair that the children do not have a mother because of this. In her affidavit she refers to her attempts to mediate with the father in August 2017 and again in 2018 and 2019. She complains that the father was firm that she would need to complete hair follicle drug tests and see a psychologist before he would consider her having even supervised time in the circumstances. The father’s position was reasonable. The two psychiatric reports confirm this. The mother does not really engage with the concerns and recommendations made in the reports. She disagreed with the father’s portrayal of the relationship which she complained characterised her as having all of the problems. The mother said he would also drink alcohol, use drugs and was controlling. She said in spite of all of the issues, she is grateful for the care he has provided the children. The mother referred to both of them having addictions throughout the relationship. She also referred to her traumatic childhood. The mother maintained her belief when cross-examined that the father is a member of the Calabrian mafia. Unsurprisingly, this is very troubling to the father.
When asked about the 2017 parenting plan, the mother claims that she did not understand it. She agreed that she signed it, and whilst she did not fully agree, felt she had no choice. The mother acknowledged that she had a lawyer “of sorts” and continued to claim that she did not understand the requirements. She blames the father for lack of time spent with the children and complained about the father not allowing phone calls to occur over the years nor for phone calls to occur now. The father’s counsel suggested again to the mother that she had not complied with the two requirements in the August 2017 parenting plan. She said she had never been formally asked for a drug screen and did not understand the psychiatric assessment requirement. She thought the counselling complied with that. When it was suggested to her that in 2021 she still had not addressed those concerns, nor provided clean drug screen results and has also not provided a report from Ms J, the mother’s psychologist, she said Ms J did not know why a report was not prepared. She then blamed her former lawyer saying they spoke to her in a confusing way. In comparison, her current lawyer communicates to her differently. She continued to say that despite being legally represented, she did not understand the parenting plans. An alternate explanation could be that she was unwell at that time. This gives me little confidence as to the mother’s engagement and insight.
There was an agreement to engage Dr K to prepare a family report with respect to the third parenting plan in January 2019. When it was suggested to the mother that she did not follow through with the agreement, she blamed her lawyers and said she could not afford it and did not understand her obligations. It was suggested that in spite of all of this, she continues to blame the father for the fact that she has not seen the children. During this part of the cross-examination, she said it would be good to at least speak to them by phone. This does not show any insight as to how confusing and possibly distressing the girls would find talking to their mother by phone but not seeing her. When asked what confidence the Court can have that she will comply in the future, she said that it has taken her a long time to get on her feet to now, where she has stability, a full-time job and will continue to see her psychologist. She works as a cleaner and says that through that work, she has worked with children with Asperger’s syndrome. The mother says she accepts the diagnosis of X and also that Asperger’s has had a negative impact on her ability to readjust and handle change. The mother also accepts that going through puberty and starting high school can be further significant adjustments for X to deal with. The mother said that she will not force her reintegration and she had really hoped the father and his psychologist would have been preparing X for the potential reintroduction. This strikes me as somewhat naïve.
PSYCHIATRIC ASSESSMENTS OF THE MOTHER
Dr H’s Psychiatric Assessment
Dr H assessed the mother in November 2018. He explicitly stated that his report was not prepared for Court proceedings. He was not provided with any documents and says he was asked to prepare a report to “establish parental capacity, professional diagnosis and the mother’s acknowledgement of said issues.” The mother annexes Dr H’s report to her trial affidavit. Dr H did not swear an affidavit and was not available for cross-examination. The mother relies on this report as it highlights the evidence of what she has done to address her parenting capacity and the risk issues.
The mother told Dr H she was currently employed as a hospitality worker and was also training to be a manager at a restaurant. In addition, she worked at a friend’s club as an entertainer. She is building up her arts portfolio and also acting in a movie production produced by students at University. She had also been in a new relationship for 8 months.
The mother explained her relationship with the father, saying that they first met in 2008 when she was employed at a club in Melbourne. She later met him again in 2009 when she was 21, and they started talking. She described the father as a man connected to dangerous people, including dangerous drug people and the Calabrian mafia. She refers to the significant age difference between them and she described the father as always working and returning home intoxicated, that he was never there for the children, and he was constantly belittling and picking on her, and “sent her nutty.” She said that their communication was very poor during the relationship and that he basically ignored her. The mother said that he had lashed out on a couple of occasions but that she had also pushed him. She further said that he manipulated her to keep her “blindsided” and that he took advantage of her early life tragedies as well as her role as a mother. She said she left him as she could not stand to be near him, his family and the corruption, and could not do it anymore.

The mother further told Dr H she entered into an abusive relationship not long after her marriage ended, and that it lasted for two years. She said when she finally left that relationship, she “went bush” in NSW for three months and cleared her head. She said after this, she began making changes in her life, including changing her friends, addressing her drug and alcohol abuse issues, and she began seeing a psychologist, Ms G. The mother said Ms G has helped her understand that many of her problematic behaviours are a re-enactment of the child sexual abuse she has suffered.
The mother said that she started using alcohol and marijuana at the age of 12. She said she became a binge drinker to deal with her emotional pain, and stated she had extensively used cannabis, speed, ketamine, acid, mushrooms and pills in the past. She said cannabis was her primary illicit substance, and that she currently used about half a gram a day. She said in 2018 she stopped for about five months, but it led to re-emergence of horrific nightmares and so she relapsed.
The mother described a traumatic upbringing with a hostile home environment with violence and drugs, and that she was sexually abused and wound up on the streets at age 11 or 12 and spent three years in foster care.
The mother told Dr H that “she feels good inside herself”, is not depressed and works hard to be motivated. She said that she has “major anxiety” particularly when under stress, and that seeing people from her past brings up her anxiety. She said that her mind was thinking less and less of the traumatic events in her life, although she does occasionally have flashbacks lasting between one and five minutes.
Dr H asked the mother about her parenting abilities. The mother said that she did not think there would be any trouble in her capacity as a mother, as she had done a parenting course, is settling down, and has the support of her psychologist. She did not identify any potential problems in regaining parental access. She said she did not lack skills and that her own psychological issues would not get in the way of her parenting. She said the fact that she had a disturbed life should not be held against her.
Dr H assessed the mother as readily engaging, being very forthright in her views and account of her life’s difficulties. He noted she did not try to manipulate him and had the attitude that “it was self-evident he would judge her as being psychologically stable and having parental capacity”. He notes that, although the mother was able to explain her difficulties in context of her life events, her information tended to be superficial and she lacked insight into the deeper psychological structures causing her difficulties. Significantly, he noted that there was “intense demonisation” of the father, with a quite dramatically different appraisal of herself with respect to handling parenting tasks. He also commented the following:
Perhaps the most notable aspect of the presentation was that despite her horrific history of abuse, she was able to talk quite openly and with no outward display of emotion visible or anxiety. This indicates that she is substantially dissociated (disconnected) from these inner psychic phenomena with the only time that such troubled memories and feelings can surface is during dream activity, but she has now suppressed that with cannabis.”
Dr H diagnosed the mother as having complex Post Traumatic Stress Disorder/Borderline Personality Disorder in the context of her “disastrous developmental history”. He also said there are antisocial and narcissistic personality traits.
He described it as a “tragic case”, and stressed that he was not judging the mother, but rather he seeks to explain, “how terrible childhood and then adult circumstances lead to psychological impairment and problematic behaviours that have substantial consequences on parental responsibilities and children’s welfare.” Significantly, Dr H noted that the mother was unable to recognise that she may face difficulties if she would try to parent her children. He noted that a common theme of the mother’s narrative was an inability to take responsibility for negative events in her adult life and a tendency to blame others. He concluded the following:
People who are disconnected from trauma in her manner are equally disconnected from their other emotions, which makes it difficult to negotiate life, and there is tendency for sudden emergence of negative emotions in a chaotic fashion when under stress. It is the examiner’s opinion that unfortunately the deep and substantial psychological issues will be quiescent in a stable and supportive environment but that stress or complex interpersonal situations will quickly overwhelm her coping mechanisms, leading to emotional incontinence. Parenting is a very complex task. She does not have her own experience to build on, is likely to not have learnt these functions, given the problems and substance use she had at the time when she was parenting the girls, and has not been able to obtain further skills in the last three and a half years. Children are “high maintenance”; communication is often non-verbal and intensely emotional, with requirement of immediate gratification and self-centred behaviours. It is likely that [the mother] would struggle to deal with such complexities.
Dr H recommended that the mother have professionally supervised time with the children, no more than on a weekly basis. He noted she requires a supportive structure from external agents to assist her in managing “what will for her be a complex task”. He did not recommend informal supervision, or unsupervised time with the children. He also recommended that the mother continue to engage with her psychologist and attend on further parenting courses, enrolling drug and alcohol programs, and a review with a psychiatrist regarding her prescription of medications to help with her sleep and anxiety, which may enable her to control her cannabis use.
Dr H stated he had “no knowledge as to the emotional state of the girls” and as such, was unlikely aware of X being on the Autism spectrum which is an additional consideration. Dr H identified several significant issues for the mother to address which Dr F confirmed.
Dr F’s Psychiatric Assessment
Dr F assessed the mother in February 2020. The assessment included a review of the concerns raised by Dr H assessment.
Dr F noted that the mother was notably anxious and her high anxiety did not change over the course of the interview. He noted the mother spoke clearly and relevantly, and was pleased to have her story heard. He also noted that there was a “child-like excited quality to her narrative: it was factually detailed, but without reflection.” He set out the history the mother provided of her childhood and her relationship with the father and others.
The mother told Dr F she had been in a relationship with her current partner for two years, and that her partner was an ex-alcoholic. She said she was not currently on any medication, but continues to use marijuana daily to “prevent horrific nightmares.” She said that she had been a binge-drinker since 12 years old, and that her and the father had used LSD together early in their relationship.
Dr F also interviewed the mother’s psychologist, Ms G, over telephone. She confirmed she had met with the mother a total of twelve times and she was “impressed that in contrast to the extreme agitation when first seen, [the mother] was now sensible although still distractible.” Ms G understood that the mother needed marijuana to prevent nightmares.
Dr F concluded by saying that he was in “complete agreement with Dr H primary diagnosis of complex post-traumatic stress disorder as a result of her developmental history.” He stated a return to binge-drinking “may always remain a hazard” for the mother. He noted that her current partner sounds “nourishing” as he has recovered from alcoholism himself, but that regular cannabis use was entrenched and may be affecting her motivation and drive.
Dr F agreed with Dr H recommendation that only supervised time should be arranged at this stage. He recommended that, as she now lives some distance from Ms G, the mother would benefit from regular, informal counselling from an older woman near her home and that such a person may be suitable for supervising access.
Dr F was not required for cross-examination. The references to supervised time in both reports needs to be seen in the context of the scope of their engagement; neither saw the father or the children.
The mother said that she did not have any family support at the time when she spoke with Dr F, which was true. She agreed that she blamed her mother for the abuse she suffered and that neither of them were proud of it. She also agreed that her mother has only been stable for the past 10 years. She says that at around the time of Dr F’s report, her mother was afraid to speak to her because she thought the father would terminate her time with the girls. She says since then she and her mother have visited each other a few times. She also visited her mother when she had a lung operation. The mother says she has told her mother about her drug use and her recent positive test and says that her mother has seen her progress and is proud of her.
THE MOTHER’S EVIDENCE
The mother has been in stable employment since about February 2020 and is in a loving and supporting relationship. She annexes several personal references, including from her employer. The mother says the references support her genuine efforts and progress that she has made. As I have indicated I accept the mother has made significant progress. The references do not assist as they are not sworn documents and the authors are not available for cross-examination. Even if they were, it would not address the core issues of risk due to the mother’s mental health and drug use. It would have been of assistance to have her partner on affidavit and available for cross-examination during the trial, given that he lives with her and would be able to comment on his observations of her mental health and drug use.
The mother confirmed that she does not pay child support and again claimed that she did not know how to despite now having new lawyers. To this point, she responded saying it has not been a focus during these proceedings and that she has been putting money aside but that she does not know how to pay child support. Her answers in this regard reflect the mother’s lack of insight and naïveté. Rather than engaging in practical supports and taking an opportunity to show the father that she has addressed issues and can be a stable support in the children’s lives and provide financial support, she has engaged in activities which have not provided the father with any confidence that she has successfully addressed her addictions and ill mental health.
The ICL cross-examined the mother about her proposal and suggested that she has had over two years to consider properly what proposals she thought would be in the children’s best interests. The mother thought that her proposal, including the 30 minute phone call on the first Wednesday after her first visit, is in her view a gentle way to reintroduce X. However she further said that if X did not want to speak to her for 30 minutes, she would not have to. She says she accepts that she is largely a stranger to the children. The mother says she has spoken at length about being reintroduced to the children with her psychologist.
The ICL also asked the mother if her proposal is what she thinks is in the children’s best interests or whether it is a “wish list”. The mother said that she believes it is a way to start the reconnection with her children, (which is what is best for them) so that they have a chance to have both parents in their lives. She said her proposal for three months of supervision is to assess her behaviour and how X is handling the changes. When asked what would happen if she did not attend every session, she said that she thought it would be the same if she returned a positive test or did not see Dr J, and that her time would ultimately come to an end. The mother said she did not know how contact centres would report on things and imagined that they have their own ways of recording information about sessions. She was asked how she would deal with a scenario where one or both girls refused to see the mother, and she said that it would be up to the girls. She said she would not want to force them to be in an uncomfortable situation so that the orders should be subject to the children’s wishes. It was put forward by the ICL’s counsel that the mother could be reintroduced to the children and then the time stopped after a short period if she uses drugs again rather than a permanent end to her time with them. The mother said that would be the case if she did not comply with the orders, however that she “plans to abide by everything.”
The mother agreed with the ICL’s proposition that the father’s position in the three parenting plans is not that the mother should not have time, rather that there needed to be safeguards in place for the children’s safety. The ICL’s counsel also suggested that the mother was asking the Court to take her word the claims she is making, particularly in relation to her mental health, where she has not provided any evidence as to her current mental health status. The mother again, claimed not to have known that she had to show any evidence and that she could ask Ms J for something at her next session.
Drug and alcohol use
The mother confirmed in cross-examination her proposal as outlined in her amended initiating application and that the increases in time are contingent upon her passing hair follicle testing. She was asked how long she anticipated her time being suspended if she produced a positive test. She said, “I guess it will be permanent. I am not too sure on the actual answer”.
The mother concedes that it is inappropriate for her to spend time with the children whilst she continues to take illicit substances. She said she has not smoked cannabis for some time and that the tests show the amount of THC in her system has reduced by half. The mother agreed that she started using cannabis when she was 12 years old. She also started binge drinking at that age and has used drugs and alcohol consistently since then. She says she has stopped many times, but not for long periods of time. The mother agreed that she used cannabis to manage the nightmares she was experiencing and says she now uses grounding techniques to help her sleep. She was cross-examined about the test results that she has provided. Whilst the test results show a steady decrease in use of cannabis, it does not show that she has stopped using altogether.
The mother was cross-examined about her drug use and she said that cannabis is still present in her hair, however not in her system and that she has stopped smoking and will never smoke again. She was asked what would happen if she relapsed and the mother responded that she will never smoke again and will not relapse as she was in a place where she has stability, that therapy is working well and assisting her with nightmares and she has a supportive partner to help her focus.
The mother says she last used cannabis about two months before the trial. She said she did not know she could have obtained a urine screen just prior to the trial as part of her evidence to show she is clear. She also claimed not to know that she could have asked her partner to swear an affidavit.
The mother had to concede that, as referred to in her mother’s affidavit, she told her mother that she had stopped cannabis, however had relapsed in June 2021. The mother said that she tried to quit but continued to relapse. She has not used for two months and does not contemplate relapsing. The ICL’s counsel suggested to the mother that what she told her mother was no different to what she is now telling the Court. The mother said that in the past it was true, she had said she had stopped but was not able to sustain that, however that now she had completely stopped. Two months is not a lengthy period, particularly in the context of the mother’s history. I accept the mother is sincere but I do not share her confidence that she will be able to abstain.
The mother conceded that she lost her license due to binge drinking in either November 2017 or 2018. She says she is still required to use an interlock on her car. She has stopped drinking alcohol. The mother was cross-examined about the recommendation from Dr H about participating in an alcohol support group. She responded saying she must have missed the recommendation. The mother has not undergone any alcohol treatment.
Treatments the mother has received
The mother refers to the psychological treatment she has received over the past four years:
(1)She saw psychologist called Ms G from 2017 until 2018.
(2)From December 2017 until February 2018 she attended an L Counselling in New South Wales where she says she received psychological counselling. After staying there, she was able to stop using cannabis for five months. However, when she stopped using cannabis, her horrific nightmares returned. Although she uses cannabis, she says that she is also using various grounding techniques with the assistance of her psychologist. She says that she has achieved a greater understanding of the connection between her trauma and her addictions and how they impact her, including those around her. The mother does not expand upon what she means by this.
(3)She currently sees Ms J at the M Clinic and at the time of swearing her trial affidavit on 16 April 2021, she had attended upon her on three occasions. She says obtaining appointments can be difficult but she is seeking to be notified of cancellations and says Ms J is an expert in working with trauma and grief and family separation.
The mother conceded that she attempted suicide in 2016 or 2017 and also conceded that she has had two mental health assessments which referred to her experiencing complex trauma. She acknowledges that her mental health is one of the key issues in this case. However, she does not think it is a serious issue concerning her anymore and believes she is in good mental health. In cross-examination, she said she has now seen her psychologist Ms J on 13 occasions and has found that to be a fantastic support and intends to continue to see her.
She said she has not completed drug and alcohol programs as recommended, and says she has been attempting to overcome this on her own. The mother says that if she had known there was an avenue or other supports available she would have reached out. She also said that she understands there are programs such as Alcoholics Anonymous from the time when she was 14 years old. When it was put to her that one of the recommendations was that she be reviewed by a psychiatrist who could prescribe something to assist her with sleep and anxiety to replace cannabis, the mother said that replacing a drug with another drug can cause more problems in the future and can cause relapse, and that she had spoken to a doctor and psychologist who did not recommend her medication. She does not provide any evidence with respect to this.
THE MATERNAL GRANDMOTHER
The mother and maternal grandmother have reconciled in recent years. The maternal grandmother swore an affidavit dated 18 June 2021 and was cross-examined during the trial. She made it clear in her affidavit, whilst it was prepared and filed by the mother’s lawyers, she sought to give evidence without bias towards either party and to refer to what she has observed of the children. The maternal grandmother is 63 years old and is in poor health having been diagnosed with two forms of cancer, which at the time of swearing her affidavit, she was in remission. The maternal grandmother said that she had previously prepared a statement at the father’s request but was unsure what had happened to the statement. She says with respect to the current proceedings, both parties asked her to prepare an affidavit and that she was hesitant because she was concerned that what she would say, “will go against my daughter, who despite our past troubles, I love and hope the best for.”

After the 26 March 2016 incident, where the maternal grandmother gave the mother the father’s home address, the father did not facilitate her spending time with the children for about 12 months. The maternal grandmother and the father went to mediation and she agreed not to speak of the mother to the children or pass on any gifts or messages from or to the mother. She says she does her best to adhere to this condition, although it comes under considerable pressure from the mother, both with respect to passing on messages and also with respect to requests for information.
She usually spends time with the girls every, six weeks or so and has done so since the parties separated. The COVID-19 pandemic has also impacted her ability to spend time with the girls and she has seen them on about three occasions in the past 18 months. It is clear that this was not due to the father not making the girls available but really circumstances outside of everyone’s control. The father acknowledges that there was a period where his relationship with the maternal grandmother broke down. He says they now have a good relationship and she has a good relationship with the girls. He says that whenever she comes to the home, he cooks a special dinner for her.
The maternal grandmother said that recently Y asked her “are you my mummy’s mummy?” She replied “yes, I am” but did not say anything more.
It is apparent both from what she says in her affidavit and also from cross-examination that the pressure from the mother to pass on things to the girls and to give her information about them places enormous stress on her. This is because she is fearful that the father might prevent her from seeing the girls if she breaches the conditions he has placed on her. She provides an important connection for the girls to the maternal side of their family.
She says that the mother has made great progress, particularly in the last 18 months to show that she has obtained stability and has stopped using drugs. She is proud of her daughter for her achievements, including holding her current employment. She says she has also seen the mother make a change to her homemaking skills, and now keeps a clean and tidy home that she feels comfortable visiting.
The maternal grandmother was briefly cross-examined. She was in hospital at the time. She said, apart from the eight month period from April 2016 to October 2016 where the father did not allow her to see the children, she has seen the children regularly although because of COVID-19 lockdowns and her own ill-health, the visits have not been as regular. She does not speak to the mother on the phone as she has difficulty hearing her.
When the mother’s descriptions of her childhood was put to the maternal grandmother, she said the accusations about drug use were correct but not about the sexual assault. The maternal grandmother says that she recalls the incident and has attempted to explain to the mother what actually took place. She recalled in cross-examination that when the mother was 3 years old she was “accidentally kicked in the private parts running in front of a swing.” The maternal grandmother said the carer at the time told the Department that it was abuse. She says the Department investigated the allegation and found there was abuse and says there was no sexual assault by either the mother’s brother or father. She says she did not have a relationship with her daughter until a couple of years ago, and that they are both working on the relationship. She says they speak with each other 1 to 3 times a week and are not seeing each other as much because the mother is working full-time and also her own ill-health.
In cross-examination, the maternal grandmother confirmed that she has seen a remarkable turnaround in her daughter since early 2020 and that she has given up all drugs except for cannabis which she says the mother has slowly been reducing. She said that the mother told her that she has had a couple of “slipups”. The maternal grandmother says it is to the mother’s credit that she has been honest and upfront about that period. The maternal grandmother said that she believed the last slipup was 2 or 3 months ago. She has no complaints about the father’s care of the girls and that he is a loving father who looks after the girls well. The maternal grandmother agreed that since she and the father attended mediation after he stopped her from seeing the girls, he has not prevented her from seeing the children since. She spends time with the children at the father’s house. She says this is because the father is uncomfortable about the girls spending time in her home as he is afraid that the mother might turn up.
The maternal grandmother became tearful when saying that she has not been the best mother and she is happy for all of her daughter’s achievements.
The maternal grandmother says that she spends 2 nights at the father’s home with the children. The first night they are altogether and during the second night, she looks after the girls by herself while the father spends the night at his girlfriend’s house. During this part of the cross-examination, when the grandmother describes the girls always running up to see her, I observed the father nodding his head in agreement.
Insightfully, she said she thought that if she was to supervise the mother’s time, she thought that in the beginning the girls would gravitate to her rather than the mother, which means this supervision arrangement would not be a good idea until their relationship had been re-established with the mother. At this point in her evidence, it was necessary to take a break as she was unwell. She was too unwell to continue to be cross-examined. I found the maternal grandmother to be a forthright and honest witness who is clearly sensitive to the parents’ respective positions and very much wanting to focus on the best interests of her granddaughters.
THE FATHER’S EVIDENCE
The father says that the mother drank alcohol to excess and consumed drugs when they met and that she continued to do so during her pregnancies. The father says he used recreational drugs in the past but stopped once they found out the mother was pregnant. He denies ever being violent to the mother.
The father is resolute in his belief that the mother is a risk to the children. His case is that the children are well loved and cared for and have good relationships with the maternal grandmother, the paternal grandmother and other members of his family. He also refers to the fact that X has struggled already with the changes brought about by the COVID-19 pandemic and his fear is that she would not cope if the mother was introduced to her. The father also does not believe that the mother has shown that she can sustain change. He referred to the mother failing to comply with the three previous parenting plans.
Since the proceedings have been on foot, the ICL has requested the mother undergo several supervised drug screens and alcohol testing and says that the mother did not comply with those requests. This is complicated by the fact that for a period of time, her former solicitors were not properly representing her and that I cannot be satisfied that she was aware of these requests. However, there are other periods where the mother was on notice and did not comply with requests or the tests were not clean. The various requests were made as follows:
(1)On 20 January 2020, a hair follicle test was provided alongside a letter from the mother’s previous lawyers relating to a hair sample collected on 8 January 2020. This test had incomplete chain of custody and only covered 3 months of hair growth. It detected THC.
(2)On 31 January 2020, a urine test from a sample collected on 30 January 2020 was provided in the letter from the mother’s previous lawyers and the test failed to demonstrate chain of custody. It also detected cannabinoids and elevated levels of creatinine.
(3)On 8 February 2021, the father’s lawyers received the results from the mother’s then lawyers of a hair follicle test undertaken by the mother on 28 January 2021. The test detected carboxyl THC but appeared to have complied with chain of custody.
(4)On 2 February 2021, the ICL made a request for the mother to present for hair follicle testing and to provide the results of same. The mother’s then solicitors responded by email on the same day asserting that the mother had already presented for hair follicle testing and that her results were pending.
(5)On 31 December 2021, a hair follicle test was provided alongside a letter from the mother’s previous lawyers relating to a hair sample collected on 10 December 2019. This test had incomplete chain of custody and only covered 3 months of hair growth. It detected THC.
The father says that his position of requiring the mother to undergo psychiatric assessments and to address her drug use before reintroducing her to the girls is a reasonable one. The father says that the psychiatric assessment the mother obtained by Dr H caused him great concern, making him more resolved of the need to protect the girls. The father says that he does not think it would be in the girls’ best interest to be reintroduced to the mother, even on a supervised basis, as one of his concerns is the negative impact on them if the mother was to be reintroduced only to disappear from their lives again. This is a very real concern. The mother acknowledges that that would not be in the girl’s best interests.
The father was cross-examined and says that he finds the allegations by the mother that he is part of the Calabrian mafia are ludicrous and delusional. As a result, it further causes him real concern about the girls’ safety being in her care. He denied the mother’s version of events about the incident on 5 April 2015 and said that he did not have any photos of an ex-wife and there were no credit cards.
He said the negotiations with Dr K preparing a report ended when the mother’s lawyers did not respond. The father says the purpose of the parenting plan was to protect the children and challenged as to why would he needed to ask her repeatedly for psychiatric assessment and drug screens. When they went back to the same mediator, he says he heard nothing from her in 12 months. His conditions had not changed and was waiting for her to provide those two things. The father’s position in this regard is perfectly reasonable. It was the mother’s responsibility to be proactive and show that she has addressed the concerns.
The mother’s counsel suggested to the father that his position has hardened since receiving the two psychiatric reports. The father said that unfortunately the mother has severe mental health problems and he is scared for the children. He also says that the length of time since the girls have seen her is worrying. He says that X told him she does not want to see someone who has abandoned her. The father gives the mother credit for getting off drugs and reducing her cannabis use however, says he is really worried that the mother in both reports accuses him of things like being in the mafia, which is not true. He says these allegations are ludicrous and delusional. He said she is happy that she has been able to make progress, but the very fact that she referred to him being in the mafia during cross-examination is very concerning.
The father has re-partnered but lives alone and says he is very protective of the girls. The girls are close to the nanny, Ms N, who spends two nights a week looking after them and has done so for the last five years. He says that the children also get on very well with his partner Ms O.
I asked the father what he says when the children ask about the mother. He says he needs to be careful, gentle and tells them that the mother has gone away and that she has some mental issues but stresses to them that it is not their fault.
The father disagreed with the mother’s statement that X’s dysregulation is due to not seeing her mother and said that was not the case and that there was trauma and her being on the spectrum. It could well be that it is due to a combination of all of those aspects.
The father does not think that an 11 year old and 8 year old should be responsible for making a decision to see their mother. He says that the mother’s suggestion does not give him comfort and his big concern about the mother is firstly her delusion, but also the fact that she continues not to take responsibility and blaming others and that she will not be able to maintain her progress. The father said during the parties had the best intentions during the first two mediations and he was hopeful, but that he just wants to protect his children. He says the two psychiatric assessments scared him a great deal. The father’s position is understandable. The father said that whilst the mother has these delusions he is not prepared to have the mother spend time in his home supervised by either himself or her mother, but he would comply with any Court order. The ICL asked the father about whether he thought it was appropriate that the mother send cards and letters and gifts, which the ICL noted had not been raised by the parties. This is something I also raised the possibility of. In answer to the ICL, the father said, “no, that’s not something I had considered” and then reiterated that he did not want the children seeing the mother, saying, “not until these girls are older, and one day when they are older they can go and see their mum. But [the mother] is just too unstable.” The ICL then clarified, differentiating between the children seeing the mother and the mother sending a birthday card saying, for example, “Dear Y, I love you I know I haven’t seen you for a long time but I hope some time in the future to see you, know that I love you.”, to which the father said, “Of course that’s fine, why would I object to that.” The ICL further said that if the mother was to send something inappropriate or derogatory towards the father, he would have some control over the children seeing that, and asked “but if it was simply sending messages of acknowledging she loves them and hopes to be a part of their lives in the future, there’s nothing wrong with that is there”. The father again replied, “of course not. Absolutely of course not”.
THE CHILDREN
X is in year 5 at school. X had some social difficulties after the mother left the home. She underwent various assessments and on 15 April 2016, Dr D, paediatrian, diagnosed her with Autism Spectrum Disorder. She undergoes occupational therapy. This has helped her improve her understanding of social cues and behave appropriately in social settings. The father says that since the onset of the pandemic, X has struggled with her mental health and her ability to process and manage changes to her environment. This is not surprising as the pandemic has been challenging for those even without conditions such as ASD. The father says she has become more irritable and aggressive. Much of her occupational health and safety focussed on strategies to help her regulate her emotions. The father has also observed that since remote learning began she has become more introverted. She has a circle of friends who know about her ASD and have accepted her but says that X has become increasingly concerned about how she may be perceived and has regressed somewhat.
Y is in year 2 at school. She is healthy and happy. She and her sister have a close relationship. I am mindful that there has been little focus on Y in the parents’ submissions and evidence. This is not because her welfare is any less important than X’s. Given X’s special needs, difficulty coping with change and emotional dysregulation, the focus has been on her. None of the parties propose that Y should be reintroduced to her mother, who she has no memory of, without her sister. The mother suggested the same spend time with arrangements for the girls, as it would be good for them to have each other there for support. She was asked to consider the scenario where X refused to see her, but Y continued to see her and whether there would be any potential issues in the relationship between the sisters and the father if there is a difference in arrangements. The mother said she did not think that there should be and hoped there would not be any issues. She could not see why it would cause any issues between the sisters or issues with the father and says she would be happy to see them individually but just thought they would feel safer and more secure together. The mother’s answer impressed me as being naïvely optimistic and ill prepared for the potential of time not going well and the girls being potentially distressed.
X’s occupational therapist
The father annexes a Q Counselling Report with respect to X by the preschool field officer dated 8 May 2015. The report details observations of X’s interactions with other children and the difficulties she has in managing her emotions, expressing herself and managing some interactions. The report noted that the mother had recently left the home and that the kinder teachers had noted that X’s outbursts had lessened since then. They referred to the mother’s use of drugs and neglecting, both girls missing kindergarten and that they had not been taken to Maternal & Child Health services for check-ups. The report refers to both the maternal and paternal grandmother assisting with care for children while the father worked during week. The report recommends strategies to assist X manage her emotions, noting that X can become angry very quickly. The report suggests strategies that can be used to help her calm down and strategies to assist when the X becomes overwhelmed.
X has NDIS funding for fortnightly occupational therapy. Her NDIS progress report dated 2 June 2021 notes that X is developing a good understanding of her strengths and vulnerabilities, and being able to recognise some of the triggers that caused her emotional dysregulation, and that she is working on strategies to assist with that. She avoids dealing with strong emotions and finds it painful and uncomfortable to work through those feelings of anger and aggression. When engaged in a self-reflection assessment, X showed “her strong tendency to avoid conflict, stress or arguments with others, which results in maintenance of a hypervigilant state. She finds it difficult to assert herself in social situations, preferring to be a listener rather than a talker. X was able to reflect on the assessment and agreed with these findings.” The goals for X’s NDIS plan includes being able to manage her emotional regulation and improve how she responds to situations at home and at school, to develop her social participation and skills in play activities with others and to increase her independence and ability to manage all areas of self-care and personal tasks.
The plan notes that the barriers to achieving these goals include service interruptions, staff changes and long gaps between services being available, adjusting to using zoom in lockdown periods and coping with changes to regular routines as a result of the pandemic. X’s anger, aggressive outbursts and difficult behaviours are therefore increased as a result of these barriers. The recommendations include fortnightly occupational therapy, psychotherapy or similar. Further, it is recommended that provision of funds for counselling services to assist with any significant family changes pending Court outcomes. X is also recommended to engage in regular social skills or girls group sessions. Ms R is X’s occupational therapist. Ms R noted the following:
The above supports are needed for X to develop the skills required to enable functional participation in all home, community and school activities, and to develop social relationships with peers that are meaningful. X is entering a vulnerable period of life, with unavoidable transitions which will provoke emotional distress and challenging behaviour. Her family, carers and teachers will need support to assist X through these difficult phases to prevent escalation of aggressive behaviours and negative outcomes. Increasing X’s ability to self-reflect and monitor, to predict and prevent unwanted emotional meltdowns will be skills that will serve during her teenage years and into adulthood. Without intervention X will continue to struggle to understand and manage her emotional responses, placing herself and others in danger, and will place her at risk of mental health breakdown which will impact all areas of her future. Supporting X at this time of need, when the impact of her disability is at its most intense during change and uncertainty in both home and school environments, will be critical. The benefits to X now and in her future, make this cost effective and support her rights to be able to develop and confidently participate in all of life’s choices that girls of her age are typically provided with.

Ms R swore an affidavit annexing the report she was asked to undertake addressing X’s health and development and the effect of any in reintroduction of the mother and in the event that it is decided that the mother should be reintroduced to X, how that should be implemented. In her letter dated 24 September 2021, Ms R records that X started receiving occupational therapy in 2016. She had a break from therapy in 2018 but recommenced therapy in 2020 after she experienced an escalation in her behavioural difficulties during the initial stages of the pandemic and the subsequent lockdowns. The father was able to obtain NDIS funding. She observed X to have difficulty with unexpected and expected changes and has significant emotional dysregulation which may be displayed through aggressive outbursts, meltdowns, disengagement and withdrawal. Triggers include changes to her routines at home or at school, conflict and discussions about emotions and behaviours. She says additional therapies have been sought to support X and her family to work through those issues and also manage the possibility of her mother being reintroduced to her. She says the following:
It will be important to consider the ways that contact arrangements will be beneficial to X and what the perceived benefits of future contact will be. The emotional impact of this contact may or may not currently be manageable for X or in the interests of X’s longer-term wellbeing, given that she has not had contact with her mother for more than six years and given the significant experiences of developmental trauma endured by X while in her mother’s care. If contact was to occur between X and her mother, it will be important for the contact to be consistent and predictable and for X’s mother to show that she is able to reliably attend every organised visit. It can be helpful to begin with contact via telephone, with the goal of face-to-face contact if X’s mother can demonstrate an ability to commit to the organised appointments and so that the impact of this contact on X can be monitored.
It has been advised that while assessing the nature of possible contact, the purpose of contact in the context of X’s well-being, development and care plan should be focussed on. It should examine carefully how and why X’s mother should be involved in X’s life. This analysis will help determine where and how often contact should take place. Assessment of the risks and benefits of contact is a process and decisions need to be reviewed regularly to take account of changes in circumstances and consider X’s needs and wishes. Generally speaking, although contact with birth parents can be beneficial for children, contact is also associated with disruption to a child’s current living environment and further abuse for some children when it is of poor quality or problematic, such as being unsupervised if safety is a concern or inconsistent in nature. It will also be important to take into consideration X’s wishes in regard to contact with her mother and to use this information in the decision-making process.
Ms R spoke about the importance of focussing on the benefits and risks of contact taking place, and that it would need to be reviewed regularly to take into account the change of circumstances. She noted that generally, contact with birth parents can be beneficial for children, however it can also disrupt children’s current living arrangements and can result in further trauma if not well-managed, such as being unsupervised or if the contact is inconsistent.
She noted that X has only just started to receive therapeutic assistance from a clinical psychotherapist in the same practice, who has expertise in trauma informed therapy to help X for the problems she is experiencing in her daily life. Ms R noted that this therapy is only just starting and that X requires a greater therapeutic input than what she can offer with occupational therapy. Ms R says that this is without adding the complexity of reintroducing her mother and concludes with the following:
Mental health specialists and childhood trauma clinicians will need time to work further with X to determine what is in her best interests as outlined above, before considering reintroduction to her mother. Collaboration will need to occur with mental health experts who work with X’s mother to determine her capabilities and skills and to ensure that X is protected from further stress and trauma, at all costs.
X has enjoyed and continues to enjoy a very stable and loving home life and in the current climate this is the only reliable and consistent part of her life, as school and community access are significantly affected by Covid 19 and repeated lengthy lockdown periods. X is vulnerable to and often triggered by any change and has frequent challenges with emotional regulation, impulsivity and aggressive outbursts as a result. A significant change such as reintroduction to her mother, even when done with the utmost of care and consideration would be likely to intensify X’s emotional dysregulation resulting in more significant behavioural responses.
Ms R was cross-examined at trial. She sees X face-to-face at school. She referred X to the psychotherapist because X’s emotional regulation was extreme and was beyond her expertise. She believes that her emotional dysregulation would be magnified if she was reintroduced to her mother. She is of the view that would happen more frequently throughout the day and that she does not know that X has the capacity to cope in an appropriate way, as X struggles to deal with anything emotional and either shuts down, withdraws, or becomes aggressive. Year 6 is a significant period of transition for X as she prepares for high school. Her focus is to help X regulate and manage her meltdowns which embarrass her, particularly when they occur in front of her peers. Ms R confirmed that she had had no contact from the mother.
When cross-examined by the mother’s counsel, Ms R said that X never mentions her mother. She was asked whether she thought, given X will be going through puberty and starting high school, that reintroducing the mother could be a positive thing. Ms R said that she feels that there is some work that would need to be done before X could engage with her mother and that she cannot tell what X’s reaction would be if this occurred. Ms R said further that she knows X does not handle strong emotions well. She did not think it was because of an absence of the mother from her observations whilst working with her. She said that she does not know what the cause is and this is why she referred X to a psychotherapist to try and get to the bottom of that period of time in her life as it is beyond her expertise.
Ms R said her understanding was that the father reported that X had made substantial improvements between 2018 and 2020 but regressed due to the COVID-19 pandemic. Ms R was on long service leave in 2020 and so was not her therapist during those first lockdowns. Ms R said that anything new puts X on high alert and is distressing for her, so it is likely that an unfamiliar environment such as a supervised Contact Centre will also cause distress. She thought that receiving a letter from her mother could be a nice introduction whether she chooses to become involved or not, but it would probably need the support of her psychotherapist. She thinks the mother’s proposal would be disastrous for her if X does not have the capacity to deal with it.
It was suggested to the mother that her affidavit is silent about what she has done to increase her skills in understanding ASD. She referred to a job where she cleaned for a lady who has a 14 year old son with Asperger’s syndrome. She also said she read a book on Asperger’s and has done her own research through the internet. She has not ever sought to speak to X’s treaters or speak to anyone else with expertise in ASD.
The mother has read Ms R’s report and the difficulties X has in managing her emotions and dealing with change in her environment is to be expected and that if the mother spends time with the girls she would need to be equipped to address those behaviours. The mother refuted this and said that she hopes that she would be able to assist the father calm X down and that we know one reason why she is upset all the time is because she is not seeing her mother. Rather than contacting any professional groups to learn about strategies she can use to assist managing that behaviour, the mother spoke about joining a mother’s group for mothers of children with Asperger’s and says she would try and manage as best she could in the circumstances. She said she would help X ground herself and says she has learnt those techniques from her own psychologists. She said if the father would communicate with her, she would be happy to learn from him and also speak to her teachers and psychologists. Again she claimed not to have been aware that she could have spoken to them directly herself.
Dr D
Dr D started seeing X in April 2016. The father annexes a letter from Dr D dated 15 April 2016. He notes that one of the difficulties X had was with respect to managing anger and anxiety, developing peer relationships and struggling with sharing and in turn taking and missing social cues. X was born prematurely and had some health issues as a result her birth. Dr D refers to X having some flattening of the skull which could be due to being born prematurely, but also can be a result of spending lengthy periods of time laying in a cot. The father says when the mother was looking after X as a baby, he was working full-time and as such, is not certain as to what happened in his absence.
Dr D said that X was seeing a psychologist, Ms S, who formally diagnosed her with autism spectrum disorder. He notes that that was consistent with his own impressions of X, particularly considering her problems with social skills, attention seeking behaviour and emotional volatility as well as ritualistic behaviour patterns and some sensory issues like being sensitive to loud noises.
He reviewed X in the context of the potential reintroduction of the mother and refers to the father’s reports of the difficulties X has had in managing the pandemic and lockdowns. Dr D further notes that as X enters puberty and high school, those changes may cause significant emotional upheaval for her. In his view, X has continued to have issues with emotional regulation, anxiety and managing change that has been exacerbated by the pandemic and the lockdowns. In his view, it is an inappropriate time to introduce the mother to her and that if the mother is reintroduced to spend supervised time in a setting with the father present it would need to be at limited length of time based on X’s ability to cope with the situation.
Dr D was also cross-examined. He has seen X twice for about 40 minutes on each occasion. He said it was hard to say to whether or not the absence of her mother contributed to X’s difficulties with emotional regulation. He said it could be a contributor as mothers are important to children’s development. He thinks any supervised time would need to be carefully managed so that X feels comfortable. When it was put to him that Ms R is of the view that much work would have to be completed before reintroduction could be considered, he said that he thought might take 3 to 6 months and that Zoom or FaceTime might be reasonable before face-to-face time takes place. He said that receiving a letter or card could be a good way to break ground. My impression is that Dr D was not nearly as familiar with X as Ms R, which is not surprising given their respective involvement in X’s care. I prefer Ms R’s evidence with respect to the work needed to be done and potential difficulties with respect to reintroducing the mother to X.
CLOSING SUBMISSIONS
The ICL submitted in closing submissions that the leading case on meaningful relationships of McCall & Clark (2009) FLC 93-405 prefers the prospective approach, which necessarily involves some crystal ball gazing, but also needs to be examined in the context of the fact that the mother does not have a relationship currently with the children and the evidence of the past behaviour of the parties also needs to be considered. In this case, there is no dispute that the children have a close and loving relationship with their father. There is also no dispute that the father should continue to exercise sole parental responsibility for the children.
The ICL submits that, particularly given the evidence from the experts with respect to X, the perceived advantages to the children being reintroduced to their mother is outweighed by the disadvantages and that even with the utmost care, the reintroduction is likely to cause X significant emotional dysregulation.
The other aspect of the risk is with respect to the mother’s drug use. The mother has a long history of drug use and certainly to her credit, has reduced her drug use. First, the ICL points out the mother’s tests for cannabis during the course of these proceedings, including as recently as a month ago, have all returned positive for cannabis. The mother’s own evidence is that she has abstained previously but only for short periods. She now says that she stopped using cannabis two months ago but provides no corroborative evidence with respect to that. Her partner is not a witness before the Court and she has not provided a urine screen. Considering the totality of the evidence, the Court would not be confident that the mother will be able to sustain abstinence for any lengthy period of time and if the Court makes the orders that she seeks and she is reintroduced to the children but later fails a test, her own case is that she would disappear from the children’s lives again. This could only have a detrimental effect on them.
There is also an absence of corroborative evidence with respect to the mother’s mental health which is the other significant risk factor in this case. It is understandable and appropriate as to why the mother’s psychologist, Ms J wants to preserve her therapeutic relationship with the mother, which would not be possible if she was called as a witness. However, it leaves the Court with the reports of Dr H and Dr F. The ICL submits that both those reports conclude that the mother suffers from PTSD and borderline personality disorder. The ICL also referred to Dr H comments in his reports about the mother’s propensity to blame others for negative events and said that it was the theme throughout her evidence where she tended to blame either the father or her lawyers for not taking certain actions.
The father supported the ICL’s closing submissions. He stressed the risks are too great and outweigh any perceived benefits as the mother has not addressed her very serious risk concerns with respect to her mental health and drug use and the detrimental impact the reintroduction could have, particularly on X. The father stresses that the mother’s cannabis use has been entrenched since she was aged 12 and she is now 34 years old.
The mother was clearly on notice that this was one of the father’s major concerns as it is reflected in the various parenting plans that the parties have entered into. The mother has failed to produce evidence from her partner to support her contention that she stopped taking cannabis completely a couple of months before the trial. She has not been able to produce a negative hair follicle test and has also not produced a negative urine screen result at trial. Her recent positive hair follicle test is significant as it shows a reduction in her cannabis use. The father urges the Court draw an inference that the mother failed to do produce evidence from her partner and a negative urine screen because it would not assist her case. The mother asks the Court to accept that she has conquered her addiction of over 20 years and will not relapse again, despite even on her own evidence she relapsed previously on more than one occasion. The Court cannot be confident that the mother will be able to sustain abstinence from cannabis use which is critical to her case. Particularly given that her proposal to spend time with the children is that if she produces a positive test at the 3 month mark and at the 7 month mark, her time is terminated. The father also points to the fact that the mother has a significant history of alcohol misuse, and has lost her driver’s license. The mother’s use of alcohol is referred to by both Dr H and Dr F in their reports. Dr F said there will always be a risk that the mother will return to binge drinking. He notes the mother has not completed any drug and alcohol courses and has not provided any evidence that she has addressed this issue. The mother merely says that she was aware of those alcohol addiction support courses from her teenage years and wanted to overcome her addictions on her own. The father also highlighted that the mother has had little by way of mental health interventions and has not received consistent mental health treatment from the same practitioner for lengthy periods of time. The orders permitted the mother to provide evidence from her treaters, which she has not done. This failure also needs to be seen in the context of the three parenting plans that make very clear what was required by the mother.
The father acknowledges that she has taken some steps to turn her life around, including being able to secure and maintain full-time employment and be in a seemingly long-term stable relationship. However, he maintains that the mother simply has not put enough evidence forward before the Court. This needs to be seen particularly in light of Ms R’s evidence regarding the potential impact of reintroduction on X. Whilst the mother has bought a car similar to that of the father’s, searched autism spectrum disorder using the Internet, she has not taken any practical steps to upskill her knowledge about X’s condition and has not made any attempt to speak to X’s treaters. The father also points out that the mother says she has thought long and hard about her proposal. She filed her amended initiating application a week before the trial and on her own proposal says that she should not see the children again if she keeps a positive drug screen. The damage would have occurred if the mother has already been reintroduced to the children.
CONCLUSION
I accept that both parents are genuine in their positions, which are based on their love and concern for X and Y. This is a sad case. The mother will find this decision difficult to accept. The mother continues to deal with complex trauma and has made real improvements in her life in the last couple of years. She desperately wants to re-establish a relationship with the children. The father is clearly very protective of the children. His position has not been to refuse to engage with the possibility of the mother re-establishing a relationship with the children. His concern is that it be safe for them physically and emotionally. The three parenting plans gave the mother a clear road map. The mother’s approach has been somewhat naïve and superficial. She asks the Court and the father to trust her that her problems are behind her, but has not taken the opportunity to demonstrate that she is able to commit to sustained change. She has not provided evidence addressing the concerns raised in the psychiatric assessments, and has not been able to stop her cannabis use for a sustained period.
The reality is that X has particular vulnerabilities and needs that means a reintroduction as proposed represents additional and significant challenges and risks for X’s emotional regulation. The mother has not been able to demonstrate that she has an understanding of this. It is unfortunate that she has not sought to speak to X’s treaters. I have the impression that the mother assumes that she will be able to manage X’s distress and challenging behaviour and quickly overcome it, but the evidence of the father and Ms R does not support such an optimistic view. The mother has her own vulnerabilities and it could be that if one or both girls rejected her or found the supervised visits too distressing, this could also have a negative impact on the mother’s mental health and resolve to cease cannabis use. Unfortunately, in the particular circumstances of this case, I am satisfied that the risks outweigh the benefit of the children being reintroduced to the mother and having a chance to develop a meaningful relationship with her.

All the parties agree that the father should exercise sole parental responsibility for the children. All the parties agree that currently the children do not have a meaningful relationship with the mother. Y probably does not remember her mother. There are no issues of risk raised for the children in the father’s care. The other significant feature in this case is the issues of risk relate to the mother’s longstanding mental health and drug issues. This is very much a case where the mother has long been on notice as to what risk issues she needed to address. The Court accepts that generally it is important that children have the opportunity to have meaningful relationships with both parents so long as it is safe to do so. Generalised statements are of limited practical utility as cases of this nature very much turn on their own facts.
Neither party sought an order for the mother to be permitted to send letters, cards and gifts to the children. The father admitted in cross-examination that the idea had not occurred to him, however he said he would not oppose the mother doing so. I will make an order allowing the mother to send gifts, cards and letters to the children no more than 4 times per year, via an address or PO Box nominated by the father. I will also include that the father may exercise his discretion as to whether the he passes on the letters, cards and gifts to the children. The father may confer with Ms R or any psychologist with respect to introducing the letters, cards and gifts to X. He will also need to consider whether if it is not in X’s interests to be told about these, if it would be in Y’s.
It is clear that the mother wants to be involved in the children’s lives and there is no denying that she has made efforts and significant progress to do so. However, it is also clear that the risks associated with the mother being reintroduced to the children cannot be sufficiently ameliorated. Sending letters and gifts to the children will allow the children to have some connection with the mother and for them to know that she exists and loves them, whilst also protecting them from the risks associated with her reintroduction into their lives. The father’s discretion to pass on the letters, cards and gifts will add a further layer of protection for the children, ensuring that what is sent is appropriate for them. Receiving letters, cards and gifts from their mother could be a positive thing for the girls, it may be, particularly as they get older that one or both girls express an interest in knowing more about their mother and possibly connecting with her. This leaves a thread of connection open.
For these reasons I am satisfied that the orders I shall make as proposed are in the children’s best interests.

I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland.
Dated: 7 February 2022

File number(s):	MLC 11191 of 2019
Judgment of:	JUDGE HARLAND
Date of judgment:	7 February 2022
Catchwords:	FAMILY LAW – Parenting – mother not seen the children for over six years – oldest child is autistic – whether or not the mother should be reintroduced to the children – mother has longstanding drug addiction issues and mental ill health – whether or not there is an unacceptable risk.
Legislation:	Family Law Act 1975 (Cth), pt.VII, ss.60B, 60CA, 60CC, 64, 65D
Cases cited:	A & A (1998) FLC 92-800 Amador & Amador (2009) 43 Fam LR 268 B & B (1993) FLC 92-357 Bassler & Norton (No 2) [2010] FMCAFam 840 Blinko and Blinko [2015] FamCAFC 146 Jeffs & Marshall (No 5) [2020] FCCA 2893 Johnson & Page (2007) FLC 93-344 Keane & Keane and Another (2021) 62 Fam LR 190 M v M (1988) 166 CLR 69 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 Napier & Hepburn (2006) FLC 93-303 Potter & Potter (2007) FLC 93-326 Randell & Adler [2020] FCCA 767 Re G (Children) [2006] 1 WLR 2305 Stott & Holgar [2017] FamCAFC 152 Waterford & Waterford [2013] FamCA 33
Division:	Division 2 Family Law
Place:	Melbourne
Number of paragraphs:	138
Date of hearing:	25 & 26 November 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Chislett
Solicitor for the Applicant:	Pentana Stanton Lawyers
Counsel for the Respondent:	Mr Eley
Solicitor for the Respondent:	Lander & Rodgers
Counsel for the Independent Children’s Lawyer	Mr James
Solicitor for the Independent Children’s Lawyer	Victoria Legal Aid

MLC 11191 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS BELLIA Applicant
AND:	MR BELLIA Respondent
AND:	INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JUDGE HARLAND
DATE OF ORDER:	7 FEBRUARY 2022