Carter & Shahid (No 3)
[2025] FedCFamC1F 276
•1 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carter & Shahid (No 3) [2025] FedCFamC1F 276
File number(s): WOC 705 of 2019 Judgment of: ALTOBELLI J Date of judgment: 1 May 2025 Catchwords: FAMILY LAW – PARENTING – Interim hearing – Where the matter is part-heard – Where the applicant sought to remove the requirement for professionally supervised time – Where the applicant failed to disclose mental health concerns – Where the respondent contended that professionally supervised time is still warranted – Where the applicant proposed the two paternal aunts as alternate private supervisors – Where the paternal aunts fail to address or acknowledge the father’s mental health conditions – Where the respondent opposed the paternal aunts as alternate private supervisors – Where the applicant sought a video communication order – Where the Court made orders for video communication between the applicant and the child – Where the Court otherwise dismissed the applicant’s interim application. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61D, 61DAA, 61DAB, 65DAA
Family Law Amendment Act 2024 (Cth)
Marriage Act 1961 (Cth)
Cases cited: Carter & Shahid [2024] FedCFamC1F 874
Franklyn & Franklyn [2019] FamCAFC 256
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Marvel & Marvel (No 2) (2010) 43 Fam LR 348;[2010] FamCAFC 101
Melounis & Melounis (No 4) [2024] FedCFamC1F 778
Pickford & Pickford [2024] FedCFamC1A 249
Rasheem & Rasheem [2024] FedCFamC1F 595
SS v AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 83 Date of hearing: 4 April 2025 Place: Sydney Counsel for the Applicant: Mr Spicer Solicitor for the Applicant: Vaikom Law Solicitor for the Respondent: Ms Taheri of Ark Law Lawyers Solicitor for the Independent Children's Lawyer: Mr Walkden of Walkden Law and Mediation ORDERS
WOC 705 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SHAHID
Applicant
AND: MR CARTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
1 MAY 2025
THE COURT ORDERS THAT:
Video communication
1.The applicant father (“the father”) be permitted to communicate with the child, X born 2018 (“the child”) by way of video call twice weekly, on Mondays and Wednesdays at 5:00 pm, or at any other mutually agreed time, for up to 15 minutes per video call.
2.Within 72 hours of the publication of these orders, the mother shall provide the father with all necessary contact details to facilitate the ordered video calls.
3.The respondent mother (“the mother”) shall initiate the video call between the father and the child at the designated times.
Dismissal
4.The remaining orders sought by the father in his Application in a Proceeding filed 30 January 2025 are hereby dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carter & Shahid (No 3) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders that the Court has made regarding X, born 2018 (“the child”) in interim proceedings between the Mr Shahid (“the father”) and Ms Carter (“the mother”) (collectively “the parties”). On 30 January 2025 the father filed an Application in a Proceeding (“the father’s application”) in which he sought orders, amongst other things, for an updated Expert Report and to remove the requirement of professional supervision when spending time with the child.
BACKGROUND
The father is currently unemployed and aged forty-one. The mother is employed in public service and is presently on leave. She is thirty-five years old. The parties commenced a relationship in early 2017, commenced cohabitation in mid-2017 and separated on a final basis on 21 May 2019.
The parties married under Islamic Law in late 2017, however this was never finalised under the Marriage Act 1961 (Cth) as the father was still legally married to Ms B at the time. Ms B and the father formally remarried after the termination of the relationship between the mother and the father. The father and Ms B share four children together, namely, G, F, H, and J. The mother has also since re-partnered and shares a child with her current partner, Mr K.
Procedural history
Regrettably, this matter has been on foot since July 2019. Thirty-seven orders have been made during the course of the matter, many arising from adjournments and delay. By virtue of the length and complexity of these proceedings, these reasons for judgment will only traverse materially relevant orders and determinations.
On 25 February 2020, the Court made interim orders (“the interim orders”) for the child to live with the mother and spend professionally supervised time with the father for two hours per fortnight. The child’s time with the father was to progress to six hours per fortnight after spending gradually increasing intervals of consecutive time with the child. At all times that the father was to spend unsupervised time with the child, changeover was facilitated through a professional service. Further, orders were made restraining the father from allowing the child to be left in the sole care of Ms B and from coming into contact with the mother or within 100 metres of the child’s school or the mother’s residence.
On 19 January 2021, Judge Morley imposed a restraint on the father from allowing the child to come into contact with or have any communication with Ms B, on a without prejudice basis.
On 17 August 2022, Deputy Registrar Magee transferred the matter to Division 1 of this Court.
On 10 July 2023, Judicial Registrar Tomasetti included a notation which detailed that time between the father and child ceased approximately eight weeks prior, and that the mother had filed an Application in a Proceeding on 2 June 2023 that sought for all future time between the father and child be supervised.
On 3 August 2023, Senior Judicial Registrar Jenkinson dismissed the mother’s Application in a Proceeding filed 2 June 2023 and ordered that the interim orders remain in force.
The final hearing of this matter commenced on 9 December 2024 and was adjourned part heard on 11 December 2024 to 5 May 2025 in circumstances where the father had not made full and frank disclosures pertaining to his mental health. Orders were made which required any time in the intervening period between the father and child to be professionally supervised.
On 30 January 2025 the father’s application was filed, which became the subject of the interim hearing conducted on 4 April 2025. The balance of submissions were provided on that day, and judgement was formally reserved pending written submissions about any proposed private supervisor. An updated Expert Report was ordered, and the final hearing dates were adjourned to 8 December 2025 for a further four days (“the impending final hearing”).
COMPETING PROPOSALS
The father
The father’s Outline of Case Document filed 2 April 2025 (“the father’s case outline”) sought orders that professionally supervised time be suspended. In the alternative, the father sought that if the Court deemed supervision necessary, that Ms B be permitted to be the supervisor, and that the child spend six hours with the father on a fortnightly basis, for half of the school holidays, and one overnight during Eid Al-Fitr and Eid Al-Adha. In addition, the father sought video communication between himself and the child twice weekly for up to 15 minutes, and for the Expert Report of Dr L (“the Single Joint Expert”) dated 4 September 2021 (“the Expert Report”) to be updated.
The mother
The mother’s Outline of Case Document filed 3 April 2025 (“the mother’s case outline”) sought that the father’s application be dismissed.
The Independent Children’s Lawyer
The Independent Children’s Lawyer’s Outline of Case Document filed 31 March 2025 (“the Independent Children’s Lawyer’s case outline”) aligned with the mother’s position. Both sought that the current spend time conditions pursuant to the orders made on 11 December 2024, between the father and the child remain in place. Further, an order for an updated Expert Report was also sought.
THE EVIDENCE BEFORE THE COURT
In support of his case, the father relied upon the following material:
(a)Outline of Case Document filed 2 April 2025;
(b)Application in a Proceeding filed 3 February 2025;
(c)Amended Response to Final Orders filed 31 January 2025;
(d)His affidavit filed 30 January 2025;
(e)His affidavit filed 31 January 2025, including annexures (marked exhibits C2 – C5);
(f)His affidavit filed 9 April 2025;
(g)Affidavit of Ms M filed 9 April 2025;
(h)Affidavit of Ms N filed 9 April 2025; and
(i)Supervised contact reports as attached to the father’s Outline of Case Document filed 2 April 2025, marked Exhibit C1.
In support of her case, the mother relied upon the following material:
(a)Outline of Case Document filed 3 April 2025;
(b)Response to an Application in a Proceeding filed 26 March 2025;
(c)Her affidavit filed 9 April 2024;
(d)Her affidavit filed 18 February 2025;
(e)Her affidavit filed 18 February 2025; and
(f)Her affidavit filed 14 April 2025.
In support of his case, the Independent Children’s Lawyer relied on the following material:
(a)Outline of Case Document filed 31 March 2025;
(b)Expert Report of Dr L dated 4 September 2021; and
(c)Written submissions filed 16 April 2025.
THE APPLICABLE LAW
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”). The Family Law Amendment Act 2024 (Cth) (“the Amendment Act”) came into effect on 6 May 2024 and made substantive amendments to the previous Act which apply to these proceedings. In determining parenting matters under Part VII of the Act the Court must still regard the best interests of the child as the paramount consideration: s 60CA.
The objects of Part VII are set out at s 60B:
60B Objects of Part
The objects of this Part are:
(a) to ensure that the best interests of children are met, including by ensuring their safety; and
(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
In regard to parental responsibility, the presumption of equal shared parental responsibility as created by the previous s 61DA of the Act has been abolished. Instead, s 61D(3) of the Act provides the Court with the ability to deal with the allocation of responsibility for making decisions in relation to children as follows:
61D Parenting orders and parental responsibility
…
(3)A parenting order that deals with the allocation of responsibility for making decisions about major long-term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision-making in relation to all or specified major long-term issues.
Section 61DAA of the Act provides the Court with an understanding of what joint decision-making about major long-term issues entails:
61DAA Effect of parenting order that provides for joint decision-making about major long-term issues
(1) If a parenting order provides for joint decision-making by persons in relation to all or specified major long-term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a) to consult each other person in relation to each such decision; and
(b) to make a genuine effort to come to a joint decision.
(2) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Subject to any order to the contrary, s 61DAB clarifies that if a child is spending time with a person under a parenting order, the order is not taken to require that person to consult with a person who has parental responsibility about decisions that are made in relation to the child that are not major long-term issues.
Because s 60CA and s 60B refer to the best interests of the child, the Court must consider s 60CC which specifies how the Court determines what is in a child’s best interests:
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
(Emphasis in original)
It should further be noted that due to the repeal of the former s 65DAA of the Act, there is no longer the statutory requirement for the Court consider equal time or substantial and significant time. Cases that refer to this section will need to be carefully considered as to whether they still apply in limited ways, if at all.
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The recent amendments to the Act
The new legislative focus is on promoting the safety of children and carers, whereas the former provisions focused on protection from harm. The legislature must have intended there to be a distinction between the former provisions, which focused on protection from harm, and the current provisions which focus on the promotion of safety, otherwise the amendments would lack utility (Melounis & Melounis (No 4) [2024] FedCFamC1F 778). Pending guidance from the Full Court, this Court believes that the amendments require a more nuanced, proactive and future-focused approach to considering the safety of children and those who care for them. This will be guided by historical risk assessment.
Acknowledging this, the Court cautions against lapsing into simplistic binaries such as contending that promoting safety is always different from protection from harm. The reality is much more nuanced. Every case is different. Perhaps in many cases it will make no difference which approach is adopted, but in other cases the nuanced, proactive and future-focused difference is very important to the child and carer.
It should further be noted that due to the repeal of the former s 65DAA of the Act, there is no longer the statutory requirement for the Court consider equal time or substantial and significant time. Cases that refer to this section will need to be carefully considered as to whether they still apply in limited ways, if at all.
The case law
The Full Court’s decision in Goode & Goode (2006) FLC 93-286 at [68] provides some guidance as to the procedure of interim parenting hearings:
…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
An interim hearing proceeds on evidence that is yet to be tested. There is no cross-examination to establish the veracity of the evidence before the Court. Where facts are in dispute the Court cannot make conclusive findings about those matters. As the Full Court observed in Franklyn & Franklyn [2019] FamCAFC 256 at [73]:
In interlocutory hearings, to the extent it is possible, judges are enjoined to make decisions about interim orders based on agreed facts, less contentious evidence, and inferences which fairly arise (citation omitted), but decisions must still be made despite contentious evidence. Judges are obliged to act on the strength of the evidence presented and, if it is relatively weak, are entitled to treat it so.
Nonetheless, any such findings made at an interim hearing “should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence” (SS v AH [2010] FamCAFC 13 at [88]).
As explained by the Full Court in Marvel & Marvel (No 2) (2010) 43 Fam LR 348 at [120], it is important to recognise that interim orders are only a waypoint on the road to a final solution for the family unit.
As has been frequently emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires or thinks to be in the best interests of their child or children.
SUBMISSIONS SUMMARISED
During the course of the hearing, the parties focused their oral submissions on the necessity, or lack thereof, for professional supervised time. The summary provided below also explores the additional aspects of the father’s interim application.
Updated Expert Report
The Independent Children’s Lawyer
The Independent Children’s Lawyer sought to adjourn the final hearing listed to commence on 5 May 2025 on the basis that the matter required an updated Expert Report.
Numerous subpoenas have been issued since the Expert Report was published. A significant number of these subpoena relate to the father’s mental health. The Independent Children’s Lawyer contended that the matter required an updated Expert Report which takes into consideration the potentially informative updated material. Given the voluminous nature of the material produced under subpoena the Court was informed that it was unlikely that any updated Expert Report could be finalised before May 2025.
Further, the Independent Children’s Lawyer brought to the Court’s attention that the father is expected to complete an outpatient program called “Dealing with Distress” halfway through April 2025, and that any prognosis or diagnosis would not be available to the Expert, or the Court, until after this time. It was submitted that any paucity in this evidence would create an issue for the Court on the current hearing dates.
The mother
The mother opposed both an adjournment of the final hearing listed to commence on 5 May 2025, and any order to update the Expert Report. Her reasons included:
·An informal agreement was struck between the parties on 7 September 2023 that an updated Expert Report would not be prepared for the final hearing;
·The mother has completed her cross examination in the proceedings and was cross examined based on the existing Expert Report;
·The updated subpoena material can be supplied to the Single Joint Expert without the need for an updated Expert Report;
·The mother’s recent medical experience would make participation in further interviews challenging; and
·The cost associated with an updated Expert Report would cause the mother to suffer financial hardship; and
·The mother does not consent to entering into any payment plans to facilitate an updated Expert Report.
During oral submissions the mother contended that it would be more appropriate for a Single Joint Expert Report to be produced solely in relation to the father’s mental health. She asserted that the father’s engaged mental health professionals have qualifications which exceed that of the Single Joint Expert, and that therefore it would be most appropriate to obtain a Report written by a professional of equivalent qualification to the father’s treaters. In support of this position, the mother noted that the most significant change in circumstance since the previous hearing date did not relate to the child, but rather to disclosures surrounding the father’s mental health.
The father
The father supported the view of the Independent Children’s Lawyer regarding the issue of an updated Expert Report as both viewed the current Expert Report as out of date. Further, the father noted in his affidavit filed 30 January 2025 (“the father’s affidavit”) at paragraph 18, that an updated Expert Report is necessary because:
·The child now attends school;
·The mother has re-partnered and is expecting a baby with Mr C (the Court notes the mother has now given birth);
·The father has had another child with Ms B; and
·The child has since commenced attending upon a counsellor for emotional dysregulation.
The father suggested that he could obtain a report pertaining to his mental health from one of his treaters, in addition to any updated Expert Report.
Spend time with arrangements
The father
In support of his application to remove professionally supervised time, the father contended that he has experienced significant barriers in arranging a professional supervision organisation for his existing time with the child. He contended that circumstances such as the mother’s travel plans, holiday closures of supervising agencies, and the mother’s lawyers, have also contributed to him not seeing the child (the father’s affidavit, paragraph 9). Additionally, he raised a cost barrier to ongoing professionally supervised time. He asserted that he pays “$700 for each six-hour supervised visit” (the father’s affidavit, paragraph 22), in circumstances where he is currently unemployed and has significant debts. At least in part, this has resulted in the father not having spent time with the child since 23 November 2024 (the father’s affidavit, paragraph 9).
This Court made orders on 11 December 2024 which provided leave to relist the proceedings on 48-hours’ notice. The reasons for judgment delivered to accompany the same; Carter & Shahid (No 2) [2024] FedCFamC1F 874 (“Carter & Shahid (No 2)”), noted that liberty to relist may act as a “springboard from which the father seeks to ask the Court to revisit the issue of whether his time with [the child] should be supervised. In short, it may not be necessary to wait six months” (Carter & Shahid (No 2) at [22]). The father has in fact accessed this springboard and led evidence from his treating mental health professionals.
The father’s affidavit annexed a letter from Dr O dated December 2024 (“letter from Dr O”) (Exhibit C2) which noted that the father has been regularly attending upon Dr O since early 2019. The letter from Dr O indicated that the father suffers from “PTSD and major depression secondary to trauma and bullying while working for the [public service]”, and as a result of this he “experiences nightmares and has fear of places where he previously experienced trauma. He also has hypervigilance and low mood”. Despite what the father experiences with his mental health Dr O has stated that the father “appears to have insight into how he feels at different times and has insight into his mental state” and the father’s ability to care for his children is “not significantly impacted by his mental health, which is gradually improving”.
Further annexed to the father’s affidavit was a letter from Dr P (“Dr P”) (Exhibit C3) dated January 2025. Dr P confirmed that the father has been attending upon him since mid-2023 as frequently as two-to-four times per week and has been compliant with all treatment. It was noted that the father “is likely to have ongoing PTSD symptoms although hopefully over time these reduce in severity and frequency”, however Dr P is “supportive of [the father] having unsupervised access to his 6-year-old son”.
A further undated letter was annexed to the father’s affidavit from Ms Q, (“Ms Q”) (Exhibit C4). This letter noted that the father has attended upon Ms Q for psychology appointments between August 2023 and December 2024. These appointments primarily consisted of Cognitive Behavioural Therapy. Ms Q opined that the father will not “be able to return to work in the near future, but [is] hopeful that with time his PTSD and MDD symptoms will improve with further treatment”. Ms Q recommended that an independent assessing psychologist or psychiatrist complete a comprehensive report on the father and his parental capacity.
The Court also had regard to a discharge summary of Dr R dated mid-2024 (“the discharge summary”) (Exhibit C5) produced following the father’s admission to the T Hospital between two dates in mid-2024. It appears that the father was unable to complete the inpatient program due to “intolerable anxiety and intrusive thoughts and images of past trauma” and was said to be unable to derive benefit from the program at the time.
The Independent Children’s Lawyer
The Independent Children’s Lawyer submitted that any risk to the child in spending unsupervised time with the father could be minimised by the time taking place in public spaces, such as a shopping mall or a soft play centre. As a caveat to this suggestion, the Independent Children’s Lawyer conceded that there may be additional issues arising from changeovers in circumstances where all previous instances had been supervised by a professional contact agency.
The Independent Children’s Lawyer contended that a potential solution to any such issues may be for Ms B to facilitate changeover. The Independent Children’s Lawyer relied on the views of the Single Joint Expert in making this submission. The Court notes that the Single Joint Expert opined that Ms B’s “acceptance of [the child] was child focused, respectful and unremarkable” (Expert Report, paragraph 178) and that “unless further material comes before the Court, there is little to suggest that [the child] would be at risk if he was to have contact with [Ms B]” (Expert Report, paragraph 180).
The mother
The mother places significant weight on paragraphs [17]-[18] of Carter & Shahid (No 2) which read:
It seems that for the first time the Court has a clearer picture of what may be the current medication that the father has been prescribed for his mental health condition. We do not know whether he is medication compliant, something that can only be informed by the medical records, as well as the father’s own records. That, in itself, means that [X’s] safety cannot presently be promoted by leaving the current order in its present form. There are too many things not known about the father’s mental health and its impact on his daily life.
There are other concerns the Court has that have not been directly raised in submissions today. It seems implausible, given the nature and extent of the father’s engagement with his mental health treaters for a number of years, that his wife would be unaware of it, but she too provides no evidence about the same. I raise that, because in my mind, I had considered the possibility of his wife being the supervisor, even though it was not proposed by any of the parties. The absence of any reference to this in her evidence is of concern to me, and again leads me to the conclusion that the only order in the circumstances that promotes [X’s] safety, is one that imposes the need for supervision.
The mother contended that the circumstances of the matter have not changed, and that too many unknowns remain in relation to the father’s mental health. Further, it was contended that Ms B is not a suitable supervisor in circumstances where she neglected to include any information about the father’s mental health in her sworn evidence. The mother held significant concerns that Ms B would fail to disclose any adverse behaviour that may arise during the father’s time with the child.
The mother’s case outline set out various contentions as to why she opposed the father’s application. She held reservations about the father’s “ability to comply with unfavourable Court orders” (the mother’s affidavit filed 18 February 2025 (“the mother’s affidavit), paragraph 10). This stemmed from statements the father allegedly made on 11 December 2024; “I am not going to do what the orders say, I am going to teach my son my religion it's my human right” and “if I have to see my son supervised, I won’t see him at all” (the mother’s affidavit, paragraph 9). These remarks, combined with the father’s previous non-disclosure of his mental health issues, heightened the mother’s concerns about the safety of the children and herself.
The mother held further concerns in relation to the medication that the father has been prescribed, which includes; Valium and other drugs (the father’s affidavit filed 31 January 2025, paragraph 25). The mother was troubled as to how this the medication may affect the father’s capacity to care for the child (the mother’s affidavit, paragraph 39).
The mother ultimately supported the current professionally supervised spend time arrangements until such time as all the material can be properly assessed and an informed decision can be made as to what is the child’s best interests.
Proposal of private supervisors
The father
At the direction of the Court, on 9 April 2025, the father filed further affidavits which propose alternate private supervisors which he contends will mitigate any identified risks (see procedure outlined in Pickford & Pickford [2024] FedCFamC1A 249 at [68] – [69])
The father proposes the two paternal aunts: Ms N and Ms M (collectively “the paternal aunts”). In support of his proposal, the father confirmed that both of the paternal aunts live within close proximity to him and have a good relationship with the child and the mother.
Both of the paternal aunts confirmed in their affidavit’s filed 9 April 2025, that they live within a close proximity to the father, have experience with children, understand their role as a supervisor, and assert that they maintained a positive relationship with the mother during the parties relationship.
The mother
On 14 April 2025, the mother filed an affidavit in response to the father’s and the paternal aunts affidavit’s filed 9 April 2025. She rejected the assertion that she maintained a good relationship with the paternal aunts and contended that their interactions were limited during the relationship (the mother’s affidavit filed 14 April 2025, paragraph 5 and 8).
The mother highlighted the fact that both paternal aunts failed to indicate that they were aware of the father’s mental health issues and the seriousness of the same. The Court notes that no evidence is before the Court on how the paternal aunts may be equipped to respond to a deterioration of the father during a visit (the mother’s affidavit filed 14 April 2025, paragraph 6).
In addition, the mother opposed any orders that directly or indirectly cause her to communicate with the paternal aunts due to a reluctance to disclose her phone number to members of the paternal family (the mother’s affidavit filed 14 April 2025, paragraph 11).
Further, the mother submitted that one of the practical benefits to professionally supervised services is the comprehensive and independently written report that may form a base of evidence in the final hearing (the mother’s affidavit filed 14 April 2025, paragraph 8).
In line with both of these contentions, the mother opposed the paternal aunts as private supervisors for the father’s time with the child.
The Independent Children’s Lawyer
The Independent Children’s Lawyer provided brief written submissions on 16 April 2025 (“Independent Children’s Lawyer’s written submissions”), in relation to the father’s proposed private supervisors.
The Independent Children’s Lawyer “understands that a private supervised service is the best option available, but this must be balanced with the risks to the child, the child’s need to maintain a relationship with his father, and the costs involved for both parties” (Independent Children’s Lawyer’s written submissions, paragraph 11). Additionally, it is noted that “all reports have been positive” in reference to all reports received thus far in the matter from the professional supervision service (Independent Children’s Lawyer’s written submissions, paragraph 12).
The Independent Children’s Lawyer proposed that he would support the paternal aunts being appointed as private supervisors if they have:
(a) have no criminal history;
(b) have no current or past involvement with the Department of Justice and Community Services;
(c) have a Working With Children’s Check certification;
(d) does not pose a risk in the mother’s view;
(e) sign undertakings; and
(f) supervise time at a public venue.
(Independent Children’s Lawyer’s written submissions, paragraph 15).
These conditions would reduce any risk to the child of spending time with the father without professional supervision. The Indepdendent Children’s Lawyer also commented that, if appointed, the paternal aunts should complete an information session for supervisors offered by S Family Services (Independent Children’s Lawyer’s written submissions, paragraph 16). Ultimately, the Independent Children’s Lawyer could only offer a limited, contingent opinion.
Alteration of restraint’s imposed on the father
The father
The father submitted that there is no safety risk to justify the restraints imposed by Order 13 of those made 25 February 2020; a restriction on him approaching within 100 metres of the child’s school.
He sought to join the schools “Father’s group” which “hosts regular student inclusive events” (the father’s affidavit, paragraph 32). The father believes that the child’s “emotional well-being and sense of belonging would benefit significantly from [his] attendance” (the father’s affidavit, paragraph 32).
Additionally, the father sought the restraint preventing him from coming within 100 metres of the mother’s residence also be removed. The father contended that he is agreeable to a substitute restraint which prevents him from approaching the mother, as on the father’s view the current restraint is an “overreach that risks unintentional breach” (the father’s affidavit, paragraph 34).
The mother
The mother opposed any amendment to the current restraints imposed on the father. She asserted that she still has ongoing safety concerns which have been exacerbated due to the lack of truthfulness displayed by the father during the course of the proceedings. The mother contended that where the extent of the father’s mental health condition is unknown, that it is not in the child’s best interests to permit the father to attend the child’s school.
Introduction of video communication time
The father
The father’s affidavit detailed a history of the parties being unable to agree on an arrangement for the father to communicate by way of electronic means with the child since late 2023 (the father’s affidavit, paragraphs 42-48). The father contends that the child’s should have regular video communication to maintain a relationship with not only the father, but his siblings which reside in the father’s household.
The mother
The mother’s evidence does not specifically address any electronic communication issue, however given the mother’s proposed dismissal of the father’s application in its entirety, the Court can only assume that the mother opposed any order for video communication.
DISCUSSION AND ORDERS MADE
Updated Expert Report
The final hearing commencing 5 May 2025 was vacated in circumstances where the volume of previously undisclosed updating material sought to be put to the Single Expert would prevent an updating Expert Report being produced in time.
The Court acknowledges that the father submitted that he could obtain a report relating to his mental health from one of his treaters. It is a matter for the father whether he does so or not. From the Court’s perspective and experience, however, a report from treating doctors is often unhelpful as to the ultimate issue of what orders are in the best interests of the child. This is self-evidently the case when the treating doctor or medical health professional is not privy to all the information before the Court and has not met the mother and the child (see e.g. Rasheem & Rasheem [2024] FedCFamC1F 595 at [115]-[123]). The limitations of expert opinions based entirely on self-report of the father is obvious. That is not to say that such evidence would not assist the Court on relevant issues such as that state of the father’s mental health. Indeed, that evidence may well assist the Single Joint Expert to form an opinion as to what orders are in the best interests of the child.
The Court understands why the mother would oppose obtaining an updated Single Joint Expert Report but concludes that updated evidence is more likely to lead to the making of an order that promotes their safety. There is a significant new body of evidence which was not before the expert when she prepared her earlier report.
Removal of supervised time
The Court acknowledges that the father has now disclosed information relating to the treatment of his mental health. The Court also recognises that, in effect, it offered the father the opportunity to re-agitate the issue of his time with the child once he had further evidence.
The letters of Dr O, Dr P, Ms Q and the discharge report depict a prolonged history of mental health issues faced by the father, but also, an equally long commitment to therapy. Whilst the father’s commitment to therapy is commendable, the reports relied on by the father are problematic. Those experts assisting the father are unable to give cogent evidence to the Court about his parenting capacity. Nothing is said by the father, or his treaters, about why he didn’t disclose any of this highly relevant evidence to the Court, and the significance of this in terms of his attitude about the treatment he is receiving, let alone his attitude towards the responsibilities of parenthood. Dr P offers an opinion about the ultimate issue of the father’s time with his child based entirely on the father’s self-report, and with no transparent reasoning process. Moreover, some of the reports indicate that the father’s therapy and recovery is very much a work in progress.
In no way does the Court minimise the potential significance of all of this evidence, but to rely on it in the present circumstances of a further interim hearing would be unwise. It is untested. The history of this matter suggests that it may be incomplete. An updated Single Joint Expert Report will assist the Court in interpreting this evidence in the context of the father’s parenting capacity and crafting orders that are likely to be promoting of the child’s, and the mother’s, safety.
As mentioned above, the Court gave the father the opportunity to nominate further potential supervisors of his time with the child. He proposed the paternal aunts. The Independent Children’s Lawyer, no doubt appropriately cognisant of the importance of the parent or relationship for the child, and the practical issues associated with expensive private supervised contact, offered tentative support for the father’s proposal. The mother is staunchly opposed to the paternal aunts. The Court is concerned, and the prime reason for not allowing the private supervision application is that the paternal aunts make no mention of the father’s mental health issues. It is the same problem that was identified in the Courts earlier reasons for judgement about Ms B.
On the evidence presently available, the Court cannot be satisfied that the removal of professional supervision would promote the safety of the child. The Court does not have confidence that the private supervisors proposed by the father would mitigate the risk imposed by his mental health, particularly in circumstances where there has been such a lack of transparency from the father.
Naturally, given the continued imposition of professional supervision, the Court has declined to amend any of the restraints imposed on the father pursuant to orders made either 25 February 2020 or 19 January 2021.
Video communication
The Court is satisfied that it is in the child’s best interests to engage in regular video communications with the father. The parties did not provide oral submissions on this issue, nonetheless it remains for determination by the Court. It is particularly important that the parties facilitate regular video communication in circumstances where the pending final hearing now does not commence until 8 December 2025.
It would be detrimental for the child to continue any existing lull in his relationship with the father. The Court adopts the order as proposed by the father. The Court equally acknowledges the mother’s hesitance to provide her contact details to the paternal family. The mother may wish to consider making an email address for the sole purpose of facilitating the child’s video communication with the father and thereafter opt to use a platform such as Microsoft Teams, Webex or Zoom, so as to protect any of her personal details.
CONCLUSION
The Court has done the best it can to formulate orders which will both promote the child’s safety and afford the child the opportunity to rebuild his relationship with the father.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 1 May 2025
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