Carr & Lewis
[2025] FedCFamC2F 615
•20 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carr & Lewis [2025] FedCFamC2F 615
File number(s): CRC 271 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 20 March 2025 Catchwords: FAMILY LAW – Final hearing – where the matter was set for two days – where the mother became unrepresented in January 2025 – where the eldest child is not the biological child of the respondent – where service was dispensed with on the eldest child’s biological father – where there is a history of significant drug and alcohol use – where the court is satisfied the respondent has ceased illicit substance use – where there is concerns for the mothers mental health – where the mother did not attend court – where the mother was called in the courtroom by the Independent Children’s Lawyer and was aware of proceedings – where the matter proceeded in the absence of the mother notwithstanding she was telephoned in court – where the children began to live with the father in October 2022 – where final orders were made – children live with the father – father have sole decision making responsibility – where the children spend time with their mother in accordance with their wishes. Cases cited: Enns & Enns [2025] FedCFamC1A 21
Lainhart & Ellinson [2023] FedCFamC1A 200
Division: Division 2 Family Law Number of paragraphs: 42 Date of hearing: 20 March 2025 Place: Coffs Harbour Applicant: No appearance Counsel for the Respondent: Ms Decle Solicitor for the Respondent: Coffs Law Co Counsel for the Independent Children’s Lawyer: Mr Willoughby Solicitor for the Independent Children’s Lawyer: Burridge Harris & Flynn Solicitors ORDERS
CRC 271 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CARR
Applicant
AND: MR LEWIS
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
20 MARCH 2025
THE COURT ORDERS THAT:
1.That service on Mr C be dispensed with.
2.For the purpose of these orders Ms Carr is referred to as ‘the Mother’, Mr Lewis is referred to as ‘the Father’ and they are collectively referred to as ‘the parents’.
3.In so far as these orders refer to an obligation to do anything in writing, for the purpose of these orders the term ‘in writing’ means by email and to advise the other party by text message that an email has been sent.
Parenting Orders
4.The Father will have sole decision making responsibility for long term decisions for X (“X”) born in 2007 and Y (“Y”) born in 2009 and Z (“Z”) born in 2010 jointly referred to as ‘the children’ and have the sole decision making authority in respect of all major long-term issues (as defined in the Family Law Act 1975 (Cth)) affecting the children.
5.That the children live with the Father.
6.That the children spend time with the Mother as agreed in writing between the parents.
7.The Father will contact the Mother by email to facilitate any reasonable request made by any of the children to spend time with the Mother at a time, date and venue as can be agreed between the parties in writing.
8.That, unless otherwise agreed in writing, all time between the Mother and the children in orders 3 and 4 be supervised by the person or service nominated by the Father unless:
(a)The Mother provides to the Father the results of a five panel hair follicle test covering a continuous period of at least 3 months which is negative for illicit or non-prescribed drugs; and
(b)The Mother provides to the Father the results of a hair follicle test covering a continuous period of at least 3 months which indicate low alcohol consumption or less; and
(c)For the purpose of orders 8.1 and 8.2:
(i)the tests must be undertaken by a laboratory accredited to current Australian standards;
(ii)the Mother must provide a sample of at least 3cm of undyed, unbleached head or body hair;
(iii)the Mother must bear the costs of the testing; and
(iv)the results must record the sample as collected no more than 28 days prior to the commencement of time between the Mother and the children.
9.Changeover will occur as agreed between the parties in writing but failing agreement if a school day at school if not a school day at the Father’s residence.
10.That during all time and communication between the Mother and the children provided in these orders the Mother is restrained from:
(a)Consuming alcohol to a point in which she could not lawfully operate a motor vehicle in the state of New South Wales for the period of 12 hours prior to any of the children spending time with her, or whilst spending time with her;
(b)consuming illicit drugs, or prescription drugs not specifically prescribed for her, for the period of 24 hours prior to spending time with the children and whilst spending time with the children; and
(c)speaking negatively of the Father, his partner or other family members to the children, in the presence of any of the children or in earshot of any of the children.
11.That the parties are to communicate about the children only by email and for this purpose:
(a)All communication is to be respectful and polite;
(b)Each party shall acknowledge the communication within 24 hours of the email being received; and
(c)The parties shall keep each other informed of their email address, and should it change advise the other party by email within 24 hours of the change occurring.
12.Each party will keep the other party informed of any serious illness, serious injury or hospitalisation suffered by any of the children in their care by email at the first reasonably practicable opportunity.
13.Pursuant to section 11(1)(b) of the Australian Passport Act 2005, X (“X”) born in 2007 and Y (“Y”) born in 2009 and Z (“Z”) born in 2010 are permitted to travel internationally.
14.That pursuant to sections 7 and 11(1)(b) of the Australian Passports Act 2005, X (“X”) born in 2007 and Y (“Y”) born in 2009 and Z (“Z”) born in 2010 are to be issued with an Australian Passport notwithstanding the fact that the consent of the Applicant Mother for the issue of the passport for X, Y and Z has not been obtained.
AND THE COURT NOTES
A.That on 20 March 2025 the Court determined that Ms B is a good and proper person to be concerned with, or assisting the Father with, the parenting of the children.
B.The Mother did not attend the final hearing on 20 March 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
Judge O’Shannessy
These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
Background
The matter of Carr & Lewis comes before me on 20 March 2025 at the Coffs Harbour circuit sitting of the Court. The Applicant in the substantive proceedings is Ms Carr, born in 1976, is 48 years (‘Ms Carr’) and, on the information available, is not employed. The respondent to the original application but, in substance, the applicant before me is Mr Lewis, born in 1975, who is 49 years (‘Mr Lewis’). Ms Carr has six children. Mr D, born in 1995; Ms E, born in 2000; and Ms F, born in 2002. Apart from those three children, now all in their twenties, Ms Carr has three other children still in their minority: X, born in 2007 and 17 years; Y, born in 2009 and 16 years old; and Z, born in 2010 14 years old.
Oldest child’s Father
Mr Lewis and Ms Carr commenced cohabitation in 2007 and, in a tumultuous and conflict and substance ridden relationship, finally separated or ended their cohabitation in 2017. The older child, X, is not the biological child of Mr Lewis but for her entire life has been treated as the child of Mr Lewis and the evidence is overwhelmingly that for her entire life, he has cared for her and he regarded her as his child and she regarded him as her Father and, more importantly, her carer.
Ms Carr has alleged to Mr Lewis during their relationship that a ‘Mr C’ was the Father of X. That may or may not be so. In the affidavit that commenced these proceedings, filed in 2023, Ms Carr therein alleged that ‘Mr C’ was the Father of X. I am unable to find or presume or assume that Mr C is, in fact, X’s Father notwithstanding that because there is a significant degree of unreliability about what Ms Carr asserts about significant matters.
Based on her own assertion that Mr C was the Father of X, Ms Carr was previously ordered by the Court in interim proceedings to serve Mr C or, at least, inform him of the proceedings or, at least, attempt to join him to the proceedings. It is quite clear that that was not done. It is also clear enough that Ms Carr asserted to the Court that she knew the whereabouts of Mr C generally but neither the Court nor Mr Lewis’ lawyers were able to elicit actual, precise information of where it was said Mr C might be.
In those circumstances, it is only possible that Mr C is the Father of X but I am far from certain and I am unable to make any finding on the balance of probability in these proceedings. Nonetheless, the rules of the Court and the ordinary procedures of the Court is that where someone is alleged to be a parent of a child, the proceedings require that person to be given notice of the proceedings, if not joined to the proceedings. In this case, the evidence is overwhelming and, indeed, common ground between Mr Lewis and the that Mr C has never played any role or demonstrated any inclination to be involved in X’s life.
The absence of any inclination of the said Mr C, assuming he exists, of having any interest in X indicates that he is not the Father of X. The alternative rationale is that he is, in fact, the Father but does not know it or that he is, in fact, the Father and knows it but has, for whatever reason, determined not to be involved with Ms Carr and X, but I am unable to make any findings about those matters. But, I am satisfied that it is in the interests of justice and, more importantly, in the best interests of the children that the matter proceeds and concludes without further notice to or attempts to track down Mr C. I am satisfied that any requirement of law otherwise that Mr C be party to the proceedings or even informed of them should be dispensed with.
Post-separation
When the parties separated, the children X, Y and Z lived with Ms Carr. It is clear on the evidence that they lived with Ms Carr in tumultuous, uncertain and unsettled circumstances. It is also clear that the relationship between Ms Carr and Mr Lewis was marred by significant alcohol and illicit drug consumption.
During Mr Lewis and Ms Carr’s relationship, Y was born in 2009 and Z born about 18 months later, in 2010. The Father’s account is of the Mother verbally abusing him and simply being unbearable to live with. The Father asserts that from the time that he moved out of the former relationship home in 2017 he ceased consumption of all illicit drugs. I am satisfied that at some point after he moved out, he did cease the use of illicit drugs. I am also satisfied on the evidence that the Mother did not cease the use of illicit drugs, but continued to consume significant quantities of marijuana and illicit drugs in addition to significant consumption of alcohol.
On the evidence available, including recent business records of the New South Wales Police, child protection and health authorities, it is clear that in 2023 and 2024, Ms Carr’s mental health deteriorated significantly. It may not have been robust before then, but the evidence, including the compulsory hospitalisation, demonstrates significant and continuing poor mental health. Sadly, the evidence also points to an overwhelming inference that Ms Carr’s poor mental health, if not caused by, is related to or exacerbated by apparently her all adult life consumption of illicit drugs, including cannabis and illicit drugs, as well as heavy consumption of alcohol. Some three years after having separated from Ms Carr, Mr Lewis commenced a relationship with Ms B.
Unsurprisingly, in those circumstances, and at a time when the children moved between Mr Lewis’ house and Ms Carr’s house on an informal basis, Ms B assisted Mr Lewis in the care of the children and things like picking them up from school. It is clear on the evidence that Ms B eventually became a valued part of the household of Mr Lewis and the children. In the period after commencing a relationship with Ms B, whilst the children remained living with Ms Carr, Ms B was subject to foul language and abuse from Ms Carr, and it is apparent from the nature of the incontrovertible records of Ms Carr’s text messages that she held significant antipathy to Ms B. She held antipathy to her because Ms B was involved with Mr Lewis and involved with the children.
Nonetheless, the nature of the communications from Ms Carr to Ms B demonstrates an incapacity to deal with the reality of adult relationships and the children’s welfare. In the period of late 2021 and 2022, the children communicated with the Father and Ms B from time to time, requesting that they all be picked up and collected either from school or the Mother’s home because of her circumstances, which included being seriously affected by alcohol, seriously affected by other illicit drugs, and being disinhibited in her behaviour. It is also clear that the ordinary everyday material matters of life for the children were unable to be adequately cared for by Ms Carr in the circumstances of the personal and financial resources that she had available to her as well as the demand upon those resources of the still expensive matter of obtaining large volumes of alcohol and illicit drugs.
October 2022: Children commence living with the Father
The matters came to a head on 31 October 2022 when the Father collected the children from the Mother’s home. The children were distressed, and X, then a teenager, told him that, “We are not going back. Please, do not make us go back”. Since 31 October 2022, the children have lived with the Father and Ms B. The evidence is overwhelming that the children have thrived and prospered in the stable care of the Father and Ms B. After the Father collected the children on 31 October 2022, the Mother did not spend time with the children. She communicated with the Father her unhappiness with the circumstance that the children were now living with him, and demanded that they be returned. The Mother’s emotional distress and upset at no longer having the children living with her can be easily understood.
Notwithstanding that, the nature of her communications at that time demonstrate that she was not in an emotional condition able to cope with the demands of parenting three teenagers. In any event, the Mother then issued proceedings on 25 July 2023. She issued proceedings where she swore a short and concise affidavit and filed a notice of risk. The notice of risk and the affidavit are entirely devoid of any account of any emotional disturbance, personal unhappiness, alcohol abuse, drug abuse, violence or abuse or neglect within the home. The notice of risk in the circumstances of the overwhelming nature of the other business records, involvement of child protection authorities, police, health services and the like is significant.
Children should not have burden of decision
I am not satisfied, in the circumstances of this case, where the children, all other things being equal, would like to have an order bringing about a peaceful relationship with their Mother, should have the burden of determining what their wishes about that are. I am satisfied, notwithstanding the age of the children, that Mr Lewis would take into account what the wishes of the children generally were in determining what time he would agree with Ms Carr that she should spend with the children. The gravamen of these orders is that unless Mr Lewis has agreed in writing with Ms Carr as to any time she is to spend with the children, there will not be time.
I am unable to find that Ms Carr was intentionally misleading and deceptive by omission[1] or whether she simply fails to grasp the significance of the nature of her care for the children and the nature of her drug and alcohol consumption over many years. Nonetheless, the matters that are not dealt with in the affidavit and notice of risk are significant. And notwithstanding having commenced those proceedings, the Mother was not a keen participant in the proceedings thereafter. She did participate, and the Mother herself attended Court in person on 22 May 2024, and she was represented by her last solicitor in the proceedings from 26 July 2024 to 27 January 2025.
[1] In her Notice of Risk and Affidavit filed.
Exhibit C1, being the notice of ceasing to act from the Mother’s further prior solicitors, which includes her known email address, demonstrates that Ms Carr was represented by solicitors until 27 January 2025.
Proceed in absence of Mother?
Ms Carr has not complied with Court directions to file trial material, and the orders of 27 September 2024 included the notation, (which was really a record of what the Mother had been told), that in the event that she fails once again to comply with Court orders, that it was Mr Lewis’ intention to proceed on an undefended basis. That is, having regard to his material only.
Firstly, in this case, I have determined that it was appropriate to proceed today in the absence of Ms Carr.
Ms Carr was called outside the Court and did not answer the call. Further to that, at my request, notwithstanding the burden upon her, the Independent Children’s Lawyer from the Court room and whilst being recorded, telephoned Ms Carr to make inquiries about where she was. I was concerned that she might have been stuck somewhere on the way to the court house and prevented by something as simple as a car breakdown, a late bus, a late train, from attending Court when she had intended to. It was not expected that Ms Carr would attend, particularly in light of the compulsory hospitalisation on account of her mental health.
When telephoned, in courteously but a manner that became distressed as the call proceeded, I was able to hear the Independent Children’s Lawyer inquire of Ms Carr, whether she intended to attend court for the two day trial listed this day. Ms Carr addressed the Independent Children’s Lawyer in courteous terms, and to my mind, did not sound affected by illicit drugs or alcohol, although that is not a reliable indication on a mere telephone call. Ms Carr did not express any surprise at being contacted by the Independent Children’s Lawyer and being told that she was being recorded in court. Ms Carr was live within the court and asked that the judge wanted to know why she was not here and whether she intended to be.
Ms Carr told the Independent Children’s Lawyer and hence, all of those in the Court room, that she was “in between accommodation” at the moment and that she needed to go to hospital. She also said words to the effect that, “I am in a dangerous situation at the moment.” I am satisfied that the difficult personal circumstances that Ms Carr labours under meant she was not able to organise herself to be able to attend court this day. The proceedings have been on foot since 25 July 2023. The children have been interviewed for the purpose of a child impact report and I was satisfied that it was in the children’s best interests and in the interests of justice that the case proceed.
In those circumstances of Ms Carr having commenced the proceedings, having previously appeared in person, having been represented until recently, and having been inquired of whether there was a practical reason why she was not attending Court today, I was satisfied that it was appropriate to proceed in her absence today.
Proceed undefended
I then dealt with the question of whether it was appropriate to proceed on the basis of an undefended hearing, and whether or not I should have regard to Ms Carr’s affidavit and her Notice of Risk. Helpfully, counsel for the Independent Children’s Lawyer brough to my attention an authority that, as I understand it, asserts that I should not rely on the material of an absent party.
On my understanding that authority applied and reiterated the observations of the Full Court in an earlier authority of Lainhart & Ellinson [2023] FedCFamC1A 200 (‘Lainhart & Ellinson’), and several reasons were set out in paragraphs 28 through to 31 of Lainhart & Ellinson.
28.Courts exercising jurisdiction under the Act must decide justiciable disputes, by conventional adversarial procedure, between imperfect litigants on the available evidence according to law by making prescriptive and enforceable orders within statutory power to quell the controversy. That is the unique and essential function of judicial power (Rizeq v Western Australia (2017) 262 CLR 1 at [52]; Fencott v Muller (1983) 152 CLR 570 at 608; Harrington v Lowe (1996) 190 CLR 311 at 325). The judicial function cannot be delegated to others, apart from to registrars in limited circumstances, and only then subject to the right of de novo judicial review (Harris v Caladine (1991) 172 CLR 84 at 95, 120–122, 145, 150– 151, 160 and 163–164).
29.Courts must take the litigants as they find them when determining causes of action under Pt VII of the Act. Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences.
30.As the High Court of Australia recently said in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 at [19]:
which each party elects to tender … The adversarial system … does not permit the judge to engage in “an inquisitorial role in which [the judge] seeks … to remedy the deficiencies in the case on either side”. The judge “hear[s] and determine[s] the issues raised by the parties” and does not “conduct an investigation or examination on behalf of society at large”.
(Footnotes omitted)
31In this instance, the primary judge did not confine his role to simply deciding the case on its merits by reference to the evidence which the parties elected to adduce. His Honour tried, but failed, to formulate orders which would remedy the deficiencies in the evidence about the child’s future safety in the Father’s care and dictate via the use of an intermediary how the child would be prospectively protected from the risk of harm, undoubtedly hoping that would prove beneficial for the child and the parties. However, orders of this type have been identified and criticised by the Full Court in the past (Re David (1997) FLC 92-776 at 84,575–84,576; Rader & Rader & Ors (No 2) [2019] FamCAFC 227 at [53]).
In the circumstances where, in preparation for the hearing and anticipating that the Mother may well attend, I had read (as is the custom of judges in this jurisdiction to read the evidence-in-chief before the matter is called in court) Ms Carr’s affidavit and her Notice of Risk. Ms Carr’s notice of risk was also referred to in the helpful and detailed outline of case, sent in by counsel.
In those circumstances, and particularly because of the absence of the matters that the evidence overwhelmingly points to being referred to at all in the affidavit and the Notice of Risk and notwithstanding the Independent Children’s Lawyer counsel helpfully drawing my attention to the authority of Enns & Enns [2025] FedCFamC1A 21 (‘Enns’) at [21].
21.Since no evidence was read by the wife at trial and the husband did not rely upon any document filed by her as an admission against her interest, the primary judge’s reliance upon the wife’s financial statement and, inferentially, her affidavit when those documents were not in evidence was an error of law (Shell & Armel [2022] FedCFamC1A 83 at [42]; Berry & Andrews (2022) 65 Fam LR 183 at [55]). The wife’s solicitor did not want to be heard in the appeal in opposition to that conclusion.
I was satisfied in this case that I should consider whether I would take account of those documents.
In those circumstances, counsel for the Independent Children’s Lawyer then advised me that the Independent Children’s Lawyer relied upon those two documents, not as to the truth of the contents therein, but as to the fact that they were filed and as to the fact of what they did not cover or attempt to.
Mother’s material taken into account
I am satisfied that it was proper and in the interest of justice to take account of what Ms Carr had asserted when she commenced the court case.
I am satisfied that the solicitors for Mr Lewis had served the detailed affidavits of both Mr Lewis and a Ms H, upon the solicitors for the Mother back in 2024. I infer that the solicitors for the Mother, then on the record, would have attempted to have brought those documents to the attention of the Mother. Hence, I was satisfied that Ms Carr has had every opportunity to participate in the proceedings, if she was able to.
Parties & Court facilitated Mother’s participation
It may be that she wishes to, but is unable to organise herself to do so, because of the demands on the personal resources that she has. In this case, I am satisfied that not only has Ms Carr had the opportunity to participate in the proceedings, but that Mr Lewis and the Independent Children’s Lawyer and the Court has bent over backwards to facilitate Ms Carr’s participation in the proceedings, and to hear what her side of the story is, if there is one to be told.
In all of those circumstances, and for those reasons, I determined it was appropriate to proceed on an undefended basis.
Child Impact Report
In the course of the proceedings, and as part of the process of bending over backwards to determine the best interests of the children and in the interests of justice, at public expense, the Court ordered a child impact report.
15. When the parents would argue, the children indicated that the Mother was usually the aggressor. The children advised that they experienced similar engagement with their Mother when trying to have any conversation that did not align with her thoughts and feelings. The children’s account supports the Father’s claims of refusing to return to the Mother’s home whenever they spent time with him. According to the children, they became fearful of their Mother because of the extent of the verbal abuse towards them. They explained that the intensity and frequency of the Mother’s abuse and erratic behaviours subsequently led to their decision to live with the Father as they no longer felt safe with their Mother.
16. The children described a close bond with one another. [Y] and [Z] spoke fondly about [X] and how she has cared for them over the years. [Z] reported that [X] would stand up for them during arguments with their Mother. [X] advised that she felt the need to protect her siblings, however towards the latter years, she believes [Z] and [Y] began to stand up for themselves. [Y] explained that although they helped around the home when living with the Mother, [X] seemed to have the most responsibilities.
17. The children reported that their Father is “stern, calm, collected, helpful and kind”. They spoke positively about their relationship with their Father pre and post separation. [Y] said that he and his Father have since strengthened their relationship and now have a close connection because of their similar personality traits and shared interests. The children feel that living with the Father has given them a sense of calm, safety and stability. [X] says she is now able to do the things she enjoys without the burden of having to care for her siblings, the home and managing her Mother. The children expressed feeling free to socialise with their peers and engage in typical teenage activities, which their Mother would normally have prevented.
18. The children all expressed love for their Mother. They said they wanted to be able to see her and spend time with her provided she is sober and in an overall improved state. There was no indication that the Father was negatively influencing their perceptions of their Mother or their decision-making. They were worried about any initial contact with the Mother if unsupervised. The children said they would feel secure with another adult present as the Mother is unlikely to verbally abuse them, guilt-trip or retaliate because of their decision to live with the Father.
RISK AND HARM ASSESSMENT
Family Violence Issues
19. The Father says the Mother was verbally abusive towards him and the children. He says, she would insult him, threaten, and put him down. The Father explained that when the Mother became aggressive, she would throw items around the house. He indicated that he was never physically fearful of her. The Father seemed to deny any perpetration of domestic violence.
20. The Father reports post-separation, communication with the Mother via phone regarding the children become combative and verbally abusive. Whilst the parents co-parenting appears to be conflictual, it can be mitigated through other forms of communication that do not require verbal communication between them. Accordingly, domestic and family violence does not seem to be an ongoing risk for the Father post-separation.
21. The Father reports the children were not only exposed to the verbal abuse but were also subjected to the Mother yelling, name calling, guilt-tripping and scapegoating them. The Father says he worries about their emotional wellbeing as he has observed the children become emotionally reserved, unable to be themselves or express their thoughts freely because of the fear and unpredictability of their Mother’s abusive behaviours. The children’s account suggest that they constantly endured abuse by their Mother. Police records are indicative of the children’s exposure to domestic and family violence by a parent/caregiver.
22. It seems domestic and family violence remains an imminent risk for the children when in the Mother’s care. If exposure to the Mother’s aggressive behaviours and verbal abuse continues, this could become detrimental to their developmental, emotional and psychological wellbeing as well as their ability to learn (education). Particularly as the children have reached adolescence, further trauma may present as risk taking behaviours, mental illness (depression, anxiety and/or post-traumatic stress disorder), suicidal tendencies/self-harming and/or becoming reclusive thus impacting on their social development.
Additional Risk and Harm Issues
Mental Health
23. The Father says he has no mental health issues.
24. The Father reports the Mother informed him of having been diagnosed with post-traumatic stress disorder (PTSD). He says, she would regularly use her diagnosis as an excuse for her poor behaviour after periods of aggression. He expressed concern for her current mental health status, stating that the Mother is “very erratic” now. He says the Mother’s deteriorating mental health led to her being neglectful of the children’s needs including school attendance, food and hygiene.
25. Uncertainty about the Mother’s mental heath is echoed by [X]. [X] believes that sobriety isn’t enough for her Mother to fully recover. She suspects that there are underlying mental health issues that also need to be addressed and that the alcohol and drug use only exasperate any mental illness that may be present.
Substance Use
26. The Father reports he has no current or historical illicit drug use.
27. According to him, the Mother smokes marijuana in the home with the children present, often leaving drug paraphernalia laying around the home accessible to the children. He suspects that she is likely using other drugs. He explains that the children have contacted him on occasions due to the Mother’s inconsideration of their need to rest before school as she would go days without sleep with affected by substances. On other days, the Father says the children would report the Mother would sleep for days leaving [X] to care for herself and her younger siblings. He suspects that the Mother’s substance use has increased with time and her unknown location may be related to drug use.
System Involvement
28. The family have significant history with the criminal justice system. The records consist of primarily traffic infringements and responsible parent/victim of domestic and family violence. The Father reports that the Mother has contacted the police several times to conduct welfare checks on the children. No concerns were recorded by police in relation to the safety of the children in the Father’s care.
29. The Father reported that he is not aware of any child protection involvement. However, a perusal of the subpoenaed documents indicates that there is extensive and lengthy child protection history in relation to the family. The timeline is difficult to ascertain but it appears to have commenced from 1998. Information suggests the children have experienced tumultuous and adverse childhood due to maladaptive parenting, exposure to domestic violence and substance abuse.
…
32. Significant weight should be placed on the children’s views, mainly as they have now reached adolescence. It would be difficult for the Father to enforce any orders that do not consider their views. It seems the children have managed a difficult home environment for some time and are seeking some normality in which they have with their Father. Each child is now engaged in regular activities, work and education since living with the Father that seem of great importance to them, offers them some independence which aligns with their developmental stage and also contributes holistically to their overall development. The children have expressed wanting to have a relationship with their Mother, so their emotional and physical safety has to be prioritised for that to occur.
PARENTAL UNDERSTANDINGS OF THE CHILD/REN’S NEEDS
33. The Father did not impress intentions to breakdown the relationship between the children and the Mother. It seems he is wanting to prioritise their safety, meet their basic care needs and afford them the opportunity to have a safe and secure childhood. The children’s account demonstrated that the Father has not denigrated the Mother and is willing to support and facilitate a relationship between them if she appropriately addresses her issues of substance abuse and potential mental health issues. It seems the children are wanting to see their Mother healthy so that when they do spend time with her, there is a sense of safety and belonging rather than instability, unpredictability and fear.
KEY CONSIDERTATIONS AND PATHWAYS FOR DECISION MAKING
34. Based on the information there appears to be unknown risks pertaining to the Mother’s mental health and substance use.
…
From the unchallenged observations of the child impact report, it is self-evident and overwhelming that orders that the children live with the Father and spend time as agreed between the parents are in the best interests of the children.
The orders sought by the Independent Children’s Lawyer and Mr Lewis also set out that any time between Ms Carr and the children should be supervised as determined by Mr Lewis unless, beforehand, the Mother has provided the Father with what can be conveniently described as a hair follicle test. It would be a matter for the Mother as to where she undertook the hair follicle test and with whom, but the identity of places to obtain one are readily apparent by an Internet search. Though the cheapest hair follicle tests, and to my knowledge, undertaken by the service known as J Service is still a substantial sum of money and expense. In the circumstances of the Full Court’s observations in Lainhart & Ellison and Oberlin & Infeld [2021] FamCAFC 66, and particularly the observation at 29 recited earlier:
I accept the concepts of those observations, and, in any event, I am bound by them. Ms Decle, as counsel for the Father, submits to me that the orders in regard to the hair follicle testing and the precondition of the Mother spending time with the Father are, in fact, tethered to and qualify the orders she seeks, and I am satisfied that they do. I am satisfied it is in the best interests of the children that Mr Lewis not be plagued with requests to spend time with the children when nothing has been done to address the circumstances of Ms Carr, whether by her or anyone else.
The scheme of the orders essentially provide to Mr Lewis the burden and responsibility of determining when it is safe and appropriate for the children to spend time with their Mother, notwithstanding their relatively advanced teenage years. On the evidence, I am satisfied that Mr Lewis is an appropriate person to deal with such responsibility. I am also satisfied that Ms B is a person that assists the welfare of the children. Unless there be any doubt in anyone’s mind, including Ms Carr’s, I am satisfied that Ms B is a good and proper person to be involved with the children and to care for them or to assist Mr Lewis in their care, and the orders will recite a notation to that effect.
The fact that the orders provide a pathway for Ms Carr as to how to engage with the children as she seeks is not the central point of the orders in regard to the hair follicle testing. Implicit within the hair follicle testing was the statement that Ms Carr should cease consumption or abuse of alcohol and illicit drugs. That there is in the orders certain requirements of Ms Carr for Mr Lewis to consider and to assist him make the decision as to whether it is in the children’s best interests to spend time with Ms Carr demonstrates to me that those matters are as submitted by Ms Decle (counsel for Mr Lewis) that those matters are tethered to the central requirement of the orders. The central requirement of the orders is that the children will live with Mr Lewis, and that he will have sole decision-making responsibility for long-term decisions relating to their care.
I proposed a short difference as discussed with counsel to the orders as described in exhibit A, being the orders proposed by the Independent Children’s Lawyer and Mr Lewis, but, firstly, relating to the definition of what “in writing” was, and I am satisfied that, in this case, “in writing” should be by email of any communication relating to the children or any purported agreement about spending time, provided immediately after sending such an email, a short text message is sent alerting the other parent to the fact that an important email has been sent.
The purpose of that limitation inherent in that order is that the evidence demonstrated that, on many, if not most, occasions, Ms Carr is unable to resist the temptation to ventilate her unhappiness with Mr Lewis and Ms B, and in uninhibited terms, go on and on and on. Such communication is not in Ms Carr’s interests or Mr Lewis or the children’s interest, and the purpose of that in-writing communication required is not to encourage the repeat of such communication, but to hope that it should be lessened.
They are the reasons why the orders sought by the Independent Children’s Lawyer and the Father are otherwise in the best interests of the children.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 15 May 2025
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