Colman & Booth
[2025] FedCFamC2F 812
•13 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Colman & Booth [2025] FedCFamC2F 812
File number(s): SYC 4385 of 2023 Judgment of: JUDGE STREET Date of judgment: 13 June 2025 Catchwords: FAMILY LAW – No appearance by the father – undefended hearing - deliberate failure by the father to comply with the Court's orders for drug testing and refrain from attending the children’s daycare centres and sending inappropriate communications to the mother and improper threats - the father continues to struggle with addiction to methamphetamine and marijuana – father convicted of driving under the influence of methamphetamine and breaching ADVOs protecting the mother and children– father continues to have no insight as to his own conduct – not safe for children to have a relationship with the father - risk to the children is sufficiently real and has a catastrophic consequence for the children unless arrangements as identified in these parenting orders were made. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: A v A [1998] FamCA 25; (1998) FLC 92-800
Chiles & Petrenko [2024] FedCFamC1A 112
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Hickson & Matthew [2022] FedCFamC1A 161
Kapoor & Kapoor [2024] FedCFamC2F 605
M v M (1988) 166 CLR 69
Division: Division 2 Family Law Number of paragraphs: 49 Date of hearing: 26 May 2025 Place: Sydney Counsel for the Applicant: Ms C Cantrall Solicitor for the Applicant: Swabb Attorneys For the Respondent: The Respondent did not appear Counsel for the Independent Children's Lawyer: Ms M Yu Solicitor for the Independent Children's Lawyer: Russell Kennedy Lawyers NSW ORDERS
SYC 4385 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS COLMAN
Applicant
AND: MR BOOTH
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
26 MAY 2025
THE COURT ORDERS THAT:
1.The Court is satisfied that the requirements of r 10.27(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and that the proceedings should proceed as an undefended hearing without hearing from the defaulting party.
2.The Court dispenses with any need for the Independent Children’s lawyer to meet with either of the two children, the subject of these proceedings.
3.All earlier parenting orders are vacated.
4.That the mother have sole decision making responsibility for the children X (born in 2020) and Y (born in 2022) ("the children").
Living arrangements
5.That the children live with the mother.
6.That the children spend time with the father as agreed between the parties in writing.
Communication
7.That the father be permitted to communicate with the children by FaceTime on the first Thursday of each month between 6:00pm and 6:30pm, or as agreed otherwise in writing, with the father to contact the mother's mobile … (or such other mobile number as nominated by the mother in writing) and the mother to facilitate the call.
8.That the father be permitted to send the children presents on their birthdays and Christmases to a PO box or address nominated by the mother.
9.That the father download the OurFamilyWizard app within 48 hours and to pay his share of the costs of that app, and subject to order 4 and 5, is to only communicate with the mother through that app in regard to parenting matters relating to the children. That the mother has already downloaded the app and paid her share of the costs of that app when it was ordered on 28 August 2024 to facilitate the communication with the children.
Restraints
10.That pursuant to Section 68B(1) the father be restrained by injunction from:
10.1 Attending the mother’s place of residence;
10.2 Attending the mother's place of employment;
10.3 From removing the children from the care of the mother, other than as provided for in these Orders;
10.4 Contacting or approaching the mother or the children, other than as provided for in these Orders;
10.5 Consuming any illicit drugs 24 hours prior to and during times that the children are in his care;
10.6 Contacting or approaching within 100 metres of the children's daycare centres and/or schools as the children shall attend from time to time, and/or vacation care programme, before and after school provider and any extracurricular, or co-curricular and sporting or other activities attended by the children, whether at the time the children are present or not, or removing or causing the removal of the children from the daycare centre/ school/ vacation care/ before and after school care/extracurricular/cocurricular/sporting and/or other activity attended by the children, other than as provided for in these Orders;
11.That each party be and hereby is restrained from:
11.1 Denigrating the other parent or their family in the presence or hearing of the children or permitting any other person to do so;
11.2 Discussing these proceedings in the presence or hearing of the children or permitting any other person to do so;
11.3 Posting photographs of the children on social media.
Family Law Watchlist and Passport
12.Pursuant to s 68B of the Family Law Act 1975 (Cth), Mr Booth (born in 1979), his servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the children X (date of birth 2020) and Y (date of birth 2022) from the Commonwealth of Australia for a period of 17 years or until the Court orders its removal and it is requested that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure and the Commonwealth of Australia and maintain the children's names on the watchlist for the said period or until the Court orders its removal.
13.That pursuant to section 11 of the Passports Act 2005 the mother shall be authorised to do all acts and things necessary to apply for and maintain and keep updated an Australian passport for the children without the consent of the father.
14.That the father be restrained from applying for a passport in the name of either of the children.
15.That the mother be permitted to travel with the children outside the Commonwealth of Australia without the consent of the father and that provisions of this Order shall be authority for the mother to travel outside the Commonwealth of Australia with the children.
General
16.The mother shall not be required to provide her address to the father.
17.The mother shall be at liberty to provide a copy of these Orders to the children's daycare, school, vacation care programme, before and after school provider and to the providers of any co-curricular, extracurricular, sporting or other activity provider, and to any doctor, hospital, counsellor or other medical practitioner providing care and/or treatment to either of the children, the New South Wales Police, the Australian Federal Police and the Australian Border Force.
18.Pursuant to s 117 of the Family Law Act 1975 (Cth) the whole of the Independent Children's Lawyer’s costs fixed in the amount of $10,615.00 is to be paid by the respondent father.
19.Pursuant to s 117 of the Family Law Act 1975 (Cth) the respondent husband pay the mother’s costs fixed in the amount of $108,414.00.
20.The Court reserves its written reasons.
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 JUDGMENT
JUDGE STREET
INTRODUCTION
These proceedings were commenced by the applicant mother (“the mother”) on 21 of June 2023, and on 7 July 2023, an amended application for final orders was filed seeking parenting orders by the mother against the respondent father (“the father”). The parties were married in 2018 and divorced in late 2023. There are two children to the marriage, X, born in 2020, now being 5 years old, and Y, born in 2022, now being three years old. The proceedings were originally fixed for a final property hearing by Deputy Chief Judge McClelland on 12 June 2024.
On 21 August 2024, this Court fixed a matter for a directions hearing on 28 August 2024. At the directions hearing on 28 August 2024, the mother appeared by her solicitor and the father appeared in person via video/audio-link. On that occasion the Court appointed an independent children's lawyer pursuant to section 68L of the Family Law Act 1975 (Cth) (“the Act”). The Court made procedural orders in relation to a hearing date to commence on 26 May 2025 and continue on 27 May 2025. The Court made interim parenting orders requiring the use of OurFamilyWizard and permitting communication via FaceTime by the father and requiring a 12 panel hair follicle test by the father. The Court extended the time for the father to undertake courses that had been ordered on 26 July 2023. The directions included the father filing and serving a consolidated trial affidavit on or before 25 April 2025, and the father filing and serving a case outline.
On 9 October 2024, this Court made orders releasing a child impact report dated 4 October 2024. That report indicated that the two children have a close relationship with their mother and that their mother has been able to provide a safe environment for both children to thrive and reach their full potential. The report indicated a preliminary assessment of being unable to support the children spending time with their father, at least on an interim basis, given the safety concerns raised in the report. Those safety concerns referred to the need for the father, because of alleged drug abuse, to undertake hair drug testing and the potential need for that over a period of time. It was also identified that the father needed to undertake mental health support or engage in counselling via a mental health plan, and it was recommended that the father undertake a behaviour change program. It was also noted that the father's experience in providing care to young children is likely to be limited and that he may benefit from support to help him develop his knowledge of skills in the caring of young children. There is a recommendation for the use of OurFamilyWizard for communications between the parents and recommendations, if the father successfully complied with current orders, giving rise to the potential for the children spending supervised time with the father.
When the matter was called this morning, the father failed to appear. The order fixing the matter for a final parenting hearing identified that it was to be by video and/or audio link pursuant to Part 6, Division 6 of the Act. The father was present at the time of the making of those orders on 28 August 2024. Further, there are a number of notes to the orders, paragraph (c) of which identified:
C. The Court had explained to the respondent father the importance of undertaking the hair follicle test that he is now able to undertake and commencing supervised time with the children as soon as he is able to in accordance with these orders.
The Court also had at paragraph (d), explaining the consequences of a section 102NA order to the father, and note (e) identified:
E. Failure to comply with the Court's orders may result in the matter proceeding as an undefended hearing upon the final hearing on 26 May 2025.
At the commencement of the hearing today, both the mother and the ICL moved for the matter to proceed as an undefended hearing. The mother tendered communications sent to the father’s email address confirming the video and/or audio listing for today's hearing being sent to the father.
The Court is satisfied that the father is in default of the orders made by this Court not just procedurally for the hearing, but also in relation to the undertaking of hair follicle tests and courses within the meaning of r20.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the rules”). The Court is cognisant of the requirements of r10.27(1)(h) of the rules given the procedural history identified by the Court and, the Court is satisfied that there are exceptional circumstances that warrant the matter proceeding, without hearing from the defaulting party, effectively as an undefended hearing.
The Court has also taken into account the objects in s60B of the Act and the principles in s 69ZN of the Act, and is satisfied that it is in the best interests of the two children for the Court to make an order that the matter proceed as an undefended hearing, and that the requirements of r 10.27(1)(h) of the rules have been met.
The Court is satisfied that the father has been afforded procedural fairness in respect of the proposed undefended hearing. First, the father was on notice from the express note at the directions which he had attended on 28 August 2024 that the matter may proceed as an undefended hearing if there has been a failure to comply with the Court's orders. Secondly, the Court is satisfied that the respondent was aware of the final hearing date, both from his attendance on 28 August 2024 and a result of the more recent communications sent to the father and marked exhibit A, which included the invitation to attend the electronic hearing by video and/or audio link pursuant to Part 6, Division 6 of the Act. It was in these circumstances that the Court was satisfied that there were exceptional circumstances that warranted the Court making an order that the matter proceed as an undefended hearing, and that the father had been afforded procedural fairness in respect of the potential of the making of that order, and that, in all the circumstances, such an order is in the best interests of the two children.
EVIDENCE
The following affidavits were read, with annexures treated as being in evidence:
(1)Affidavit of Ms B dated 28 March 2025; and
(2)Affidavit of Ms Colman dated 28 March 2025.
EXHIBITS
The following exhibits were tended as evidence in the proceeding:
(1)Exhibit A: Notification of hearing correspondence dated 19 May 2025;
(2)Exhibit B: Notice of child abuse, family violence or risk dated 7 July 2023;
(3)Exhibit C: Child Impact Report dated 4 October 2024;
(4)Exhibit D: Independent Child Lawyer’s tender bundle; and
(5)Exhibit C: Applicant’s tender bundle.
The Court notes that both the ICL and counsel for the mother supported the making of orders in the form of the further amended initiating application filed on 25 March 2025. The Court is satisfied that the father was on notice of the orders being sought in the amended application filed on 28 March 2025, and, effectively, the orders sought by the mother were in substance as identified in that amended application. The ICL, in the course of submissions to the Court, identified that no step had been taken to interview the two young children, given their young age, and the Court, to the extent necessary, made an order dispensing with the need for the ICL to do so.
The Court notes at the outset that these are proceedings where there have been breaches of ADVOs by the father, and that there is still an outstanding ADVO that will expire in early 2026, and that the ADVOs were for the protection of both the mother and the children. Those breaches of the ADVO were addressed in more detail in exhibit E in particular, the Court was taken to pages 35, 60, 62, 66 and 12 to 19. That exhibit identifies that the father had been driving under the influence of methamphetamine as well as identifying the breaches of ADVOs, for the protection of both the mother and the children, for which the father was convicted. Exhibit D of the ICL also identified that history in respect of ADVOs, which impacts on the assessment of the safety of the children. The mother's affidavit also identified the history of the relationship between the parties and that the respondent is suffering from mental health issues, drug addiction, including consumption of methamphetamine and marijuana, and that he was often aggressive.
The affidavit identified the failure of the father to comply with orders made by this Court and that he was found guilty on two separate occasions of breaching ADVOs put in place to protect both the mother and the children. The mother identified the existing ADVO which expires in early 2026, and her extreme concern for the safety and well-being of the children if they're to spend time with the father. The mother also identified being concerned as to her own safety and well-being and alleged a threat by the father to kill the mother and to abduct the elder child.
The mother set out the history of the proceedings and set out at length the father’s failure to comply with her follicle test requirements and the undertaking of courses. From the material tendered by the mother, it is apparent that the father told police that the mother was preventing him from seeing the children. Whilst this was reflected in a more colourful statement by the father, the substance of it reflects a complete failure of the father to have any insight as to the fact that the existing parenting orders are due to his own conduct and behaviour.
That observation as to the lack of insight by the father as to the existing parenting orders in essence being due to his failures and his conduct and not that of the mother is of significance in relation to considering the statutory factors that the Court must take into account.
There were positive tests to methamphetamine on 29 November 2021, and the father's licence was cancelled due to driving in excess of 30 kilometres an hour and he was found to be driving on a suspended licence. The affidavit identifies an earlier history of abuse of drugs by the father as well as an incident involving domestic violence in 2007 with his former girlfriend for which he was found guilty of common assault. The affidavit identified the nature of the relationship and the unfulfilled promises by the father to stop drug using. There were tendered texts from the father that were correctly characterised as being threatening and caused distress to the mother. The texts referred to in the mother's affidavit identify no insight by the father as to the circumstances for which he was responsible. The affidavit deposed to communications by the father following the birth of the first child that were disparaging of the mother, controlling and inappropriate, and which caused the mother distress. The mother identified the father’s family history of bipolar disorder and her increasing concern about the father's drug use, mood swings and irrational views. The mother identified that the father's drug use and mental health problems were a significant cause of the breakdown of the relationship and that the father's behaviour became increasingly erratic, unpredictable and aggressive. The mother observed that the father didn't appear to understand the care needs or vulnerability of a young child, and the mother expressed concern for the safety of the elder child in relation to supervision by the father. The mother identified communicating to the father his need to address his drug and mental health issues.
The mother identified the frequent verbal abuse which is corroborated by the information in the police records tendered into evidence. The mother also identified the father becoming aggressive and wanting money. The mother identified communicating concerns about the father driving and refusing to let him drive the older child. The mother identified conflict that occurred with the father chanting an inappropriate obscenity in front of the young elder child. The mother identified a statement by the father on 28 December 2021 which implicitly contained a threat to kill her.
The mother identified circumstances where the father failed to comply with her request to leave the premises when she was eight months pregnant. The mother identified conflict from the father in relation to the naming of the child, demanding money and receiving a barrage of argumentative texts. The mother identified that she was petrified of the father. The mother identified that the father failed to turn up for potential visits and that, when the children were spending time with the father in 2022, she was extremely concerned as to their behaviour. The mother identified behaviour on 17 April 2022, which reflected lack of parenting capacity by the father, the failure to show up on 30 April 2022, turning up uninvited on 1 May 2022, turning up again uninvited on 20 May 2022, and the sending of threatening texts. The mother moved to a rented premises in June 2022 so that she and the children could get some distance from the traumatic situation being created by the father's visits and that any visits should take place away from the mother's home. The father removed the elder child from a daycare centre on 17 June 2022 without the mother's consent. The father's removal of the child and communication with the elder child on 18 June 2022 again reflected no insight as to his behaviour and reflects a want of parenting capacity.
The mother deposed to a visit with the elder child and the father on 19 June 2022, which again reflected a want of parenting capacity by the father. It is apparent that on 17 July 2022 the father endeavoured to intimidate the mother by requiring a welfare check by the police on the two children, trying to obtain her address. A further abusive message was sent by the father to the mother on 17 July 2022, and the texts became increasingly aggressive and demanding by 24 June 2022. By February 2022, the mother was of the view that spending time with the father required a structured parenting arrangement. The father sent a further email on 23 September 2022 that showed, again, a complete lack of insight in relation to his own behaviour and a want of parenting capacity. The father sent a threat to go to the older child's daycare centre, which again reflected a want of insight and parenting capacity by the father. The mother was extremely concerned that the father would remove the elder child from the daycare centre and drive him whilst under the influence of illicit drugs. The father attended the daycare centre despite an undertaking to the contrary on 19 September 2022.
On 19 January 2023, the mother received a threat from the father to kidnap the older child, which again revealed a lack of insight by the father and a want of parenting capacity. On 7 July 2023, it appears the father caused his brother to attend the daycare centre and then publish the next day pictures of his elder child at the daycare centre, again reflecting a want of insight by the father, breach of the undertaking in place and a want of parenting capacity. The mother then approached the Court for urgent orders, which were made on 26 July 2023 to the effect that the children live with the mother and spend time with the father, with the father to undertake certain steps.
The father has failed to comply with those orders of 26 July 2023, and the children have not spent any time with the father since that date. The mother's affidavit identified a breach of the orders in place restraining attendance at the daycare by the father on 30 October 2023. The mother identified feeling fearful and scared and that she was shocked and worried that even Court orders could not protect her and the children. The mother identified a breach of the ADVO orders by the father in early 2024, for which he was found guilty, and identified a final ADVO being put in place in early 2024. The mother identified since July 2023 the father has continued to be irregular with his calls to the children and the making of inappropriate remarks by the father that show a lack of insight as to his own behaviour and a want of parenting capacity by the father. The mother identified the father had not been interested in making important decisions regarding the children and that communications with the father had been very challenging and stressful, often with threats and intimidation. The mother identified attempts by the father to use the paternal grandparents to obtain information about the children and their location, which was clearly inappropriate conduct by the grandparents but also revealed a continuing lack of insight by the father and a want of parenting capacity by the father.
The mother explained her fear of the father if he were to become aware of her current home address and being extremely concerned about the safety and welfare of the children if they were to be in the care of the father. The mother referred to the need for ongoing counselling in relation to the domestic violence she had been exposed to with the father and that the father does not meet his child support obligations. The mother identified that she was concerned the father is a flight risk with the children and the adverse impact it would have on the psychological well-being of the children if that risk were to manifest.
The mother identified a concern that the father would not comply with the orders of this Court or an ADVO.
CHRONOLOGY
The Court finds the history of the matter is adequately identified in the chronology from the mother's case outline which is set out as follows:
Date: Event: 1979 Date of birth of Ms Colman (the mother). 1979 Date of birth of Mr Booth (the father). 2001 The father was found guilty of supplying a prohibited drug (police records). August 2007 Domestic violence incident where the father was found guilty of common assault after physically assaulting his former girlfriend. The police entry records, Mr Booth had entered his former girlfriend's home after they had separated, demanded money, broke her mobile, verbally and physically assaulted her and that there had been previous domestic violence incidents. (police records). Mid 2007 The father assaulted his former girlfriend's new partner and an AVO was taken for the protection of the former girlfriend and her new partner. (police records) Mid 2008 The father found guilty of possessing a prohibited drug. The police entry records Mr Booth stated, "What I'm going to be arrested for a bit of stick". (police records) Mid 2008 Incident in which the father was in the company of his associates who were in a car found to have ecstasy. (police records) Late 2008 An incident in which the father was in the company of his associates who were bringing balloons with suspected illicit drugs in Gaol. (police records) June 2015 Parties cohabit for a period of about 6 months at C Street, Suburb D. December 2015 Parties separate (first separation). Late 2016 Parties recommence dating (living separately). 2016/2017/2018 The father makes promises to stop drugs and tells the mother he had been previously charged by police with drug office and a DV offence. 2018 Parties marry and commence cohabitation. 26 November 2018 A domestic violence incident in which the father was the aggressor towards his own father. The police entry records that the father's parent's observed "[Mr Booth] was rude and abusive, demanding they sign their house over to him, smokes marijuana and drives a van filled with paint fumes". (Police records) 2019 Parties purchase and move into E Street, Suburb F. Parties conceive X via IVF. December 2019 The mother finds the father smoking bong. DV incident- the father became angry, pinned the mother to wall and pushed her to floor. December 2019 The mother commences counselling with Ms G at H Centre. March 2020 The father makes promises to stop drug usage. March 2020 Parties separate under same roof after the mother finds the father in a shed smoking marijuana with an employee. The father's mood swings and aggression increase. 2020 Date of birth of X (X) born via IVF, the mother fearful to return home and leaves hospital with X and moves to her parents' house for first few weeks. Mid-May 2020 The mother returns to family home at Suburb F with X, separated under the same roof from the father. The father's aggression continues. Incident during phone call the father states "are you fucking serious how dare you call him by your fucking name". The mother observes the father's gambling and discusses mental health issues with the father (noting 4 of the father's family members have bipolar). Parties counselling with Ms J – referral made for the father to addiction counsellor. 20 October 2018 to 21 October 2021 The father's bank statements show gambling behaviours. May 2021 The father in Perth comes home early hours of morning disorientated. 2021 Parties agree to sell Suburb F property and, whilst separated, agree to undertake IVF so X could have a genetic sibling. June 2021 Ms K (the father's sister) stays and has conversation with the mother about not being safe and needing to live in separate homes. The father needs to get help for his mental health. August 2021 Physical separation following DV incident in which the father states he will not stop taking drugs, threw a sneaker at the mother causing her bruising. August 2021 The mother moves with X to Suburb L. August 2021 to
30 July 2022The father pays child support for X. No child support paid for Y and the father stops and child support for X on 20 July 2022. Late 2021 Parties sell E Street, Suburb F. September 2021 The mother finds rat poison on the father's floor during a visit with X. September 2021 The father was speeding in excess of 22Km over the speed limit and driving on an expired license. The police entry records that Mr Booth’s license on this occasion expired in December 2016. (police records) 22 September 2021 X commences daycare at M Child Care. October 2021 The father was speeding in excess of 30KM over the speed limit. (police records) October 2021 The father was driving whilst on a suspended license. The police entry records that Mr Booth's license on this occasion was suspended between September 2021 to March 2022. (police records) 6 October 2021 The mother's lawyers write to the father. 19 November 2021 The father removes X from daycare without the mother's knowledge or consent. 21 November 2021 The father tested positive to methylamphetamine and delta-9- tetrahydrocannabiniol. (police record) 26 November 2021 The father states I wish the boys were never conceived. 27 November 2021 The father demands money from the mother in presence of X. The mother scared and transfers $15,000 to the father. 29 November 2021 The father tested positive to methylamphetamine, delta-9- tetrahydrocannabiniol and alcohol when was driving. The police record that Mr Booth advised the police that he has "smoked cannabis this morning, smoked ice the night before" and "had 3x375ml cans of Jack Daniels between 11am to 12:30pm". (police records) 1 December 2021 The father states he is no longer going to see [X]. Fuck u for making me do this you greedy cunt. 3 December 2021 The mother's lawyer writes to the father. 4 December 2021 The father was speeding, tested positive to methylamphetamine and delta-9-tetrahydrocannabiniol. The police record that Mr Booth stated "I work around people that are under the influence, I never consume it". (police records) 4 December 2021 The father wants to drive child and upon a request by the mother for a drug test the father admits to using drugs. 8, 17, 24 and 25
December 2021The father repeatedly falls asleep during visits with X. 28 December 2021 The father chants repeatedly "mummy's a cunt" encouraging X to repeat. The father threatens to kill the mother.
The father says to the mother "I understand why men kill their wives".
The father says to the mother "greedy cunt".19 January 2022 The father makes carers wake X at daycare. The father tests positive to marijuana after driving X in car. 23 January 2022 The mother observes marijuana plant growing at the father's premises. 1 February 2022 The mother's mediation scheduled – the father refuses to attend. 2 February 2022 The father turns up unannounced at the mother's home at midnight. 3 February 2022 The father leaves X in highchair whilst feeding him and the father goes to sleep in another room. 7 February 2022 S60ICT issued. 2022 Date of birth of Y (Y) via IVF. The father attends birth and yells and swears at the mother whilst on operating table. On ward, the father yells at the mother about finances and the mother asks the father to leave hospital. The father posts a photo announcing birth of child without the mother's consent and crowd surfs a new name as he does not like the name Y. 2022 The father attends hospital smelling of cigarettes and refuses to wash hands before holding Y and leaves aggressively. 17 April 2022 The father places X on dirt bike and speeds off, child crying and father calls child 'mumma's boy’. The father becomes aggressive during the visit and yells at the mother in presence of the children to leave. The mother leaves with the children. 2022 The father fails to show up to X's birthday party. 1 May 2022 The father turns up uninvited at 4am. Falls asleep during visit and the mother has to force him to wake up. The father takes child to games venue – a location the mother had not consented to. 13 May 2022 The father collects X from daycare without consent of the mother and drives child. The father refuses a drug test. 14 May 2022 The father falls asleep at night leaving X awake in cubbyhouse. 20 May 2022 The father turns up uninvited at 6am. The father swearing and aggressive towards the mother and threatens to burn her personal possessions and to cancel her mobile number. 30 May 2022 The father cuts off the mother's mobile. 16 June 2022 The father's lawyers send letter seeking parenting arrangements. 17 June 2022 The father removes X from daycare centre and provides the mother with false locations. The mother calls police. 19 June 2022 The father runs off with X during a visit in Suburb N and provides the mother with false locations. The mother calls police. 24 June 2022 The mother, through lawyer, requests that the father undertakes hair follicle test. 30 June 2022 The father, via lawyers – admission of marijuana usage and hair follicle test likely to be positive, promising not to consume in the future and will seek help from O Centre service if needs assistance. 1 August 2022 The father texts the mother – he is going to daycare to see X. 2 August 2022 Y commences day care at M Child Care. 2 August 2022 The mother, through her lawyer, seeks undertaking the father will not attend the daycare centre, remove the children from the daycare centre or remove the children from the mother's care, places the father on notice of intention to commence proceedings. 3 August 2022 The father through his lawyer confirms he will not attend the daycare or remove the children. 10 August 2022 The mother, through lawyer, proposes parenting arrangements in contact centre, supervised and subject to hair follicle testing. 23 August 2022 The mother, through lawyer, again proposes parenting arrangements in contact centre, supervised and subject to hair follicle testing. 19 September 2022 The father attends daycare centre despite agreement not to attend. 23 September 2022 The father sends email to the mother that he used marijuana one month ago. 26 - 28 September
2022The father, through lawyer, confirms agreement for parenting Arrangements. 27 September 2022 The father lights up a cigarette on screen in front of X. 15 December 2022 The mother, through lawyer, requests hair follicle test results. 16 December 2022 The father, through lawyer, requests contact take place without hair follicle test. 16 December 2022 The mother, through lawyer, confirms contact commencing subject to hair follicle test results. 19 January 2023 The father threatens to Kidnap X. During phone call he states "I better see you soon, otherwise daddy's going to have to kidnap you". 21 January 2023 P Contact Centre able to provide first visit with the father but vacated as the father fails to provide hair follicle test. 28 June 2023 The father attends daycare centre. Sees X. The father leaves when the mother arrives. The father posts picture of X on social media stating that he snuck into see u today before the fun police came to chase me away. Social media followers encourage the father to keep sneaking in. 7 July 2023 The father attends daycare centre with another man. The mother later finds out to be the father's brother. 7 July 2023 The mother files for parenting proceedings. 8 July 2023 The father publishes on social media a picture of him with the child X at the daycare centre on 7 July 2023. 21 July 2023 The father again attends the children's daycare centre carrying a bag for the child X. The mother receives a telephone call from Suburb Q police with a welfare check that had been requested by the father. 26 July 2023 Interim Hearing. Interim Orders made by consent for children to spend time with the father in a contact Centre following the father undertaking hair follicle test. The children have not spent time with the father as he has refused to comply with the Orders of 26 July 2023. 14 August 2023 The father sends an email to the mother. "Why are you spending money on lawyer to fuck me up I said you when I'm done fighting stop wasting money on lawyers and buy the boys a house I'm sorry I really think I'm a bad person and the boys don't need me…" 7 September 2023 The father's lawyers Matthews Folbigg filed Notice of Ceasing to Act. 15 October 2023 The mother send email to the father updating him on the medical matters relating to X and details of the new daycare centre 30 October 2023 The father approaches the mother and children at the daycare in breach of orders 26 July 2023. Late 2023 The father served with an interim apprehended violence order listing the mother and children on the order. 11 December 2023 Directions hearing before Senior Judicial Registrar Maitland. The father appeared self-represented. The father advises the Court he did not comply with the orders "because he does not believe in them". 5 January 2024 The father breaches the interim apprehended violence order when he rang the mother and said aggressively "you bitch" and sends text message “I don’t see your logic in denying me a photo of my boys ok you don’t like me I understand feelings mutual I know it sucks for you but I’m still there daddy I’m the only man that’s going to love those boys the same as I it’s just mean u have all the power and control your dodgey avo worked a treat in family court hopefully will get thrown on the 11th I’m sorry I have to be so spiteful and can’t move on”. Early 2024 Final apprehended domestic violence order made for the protection of the mother and the children. April 2024 The father breaches terms of AVO again by sending a number of text messages to the mother. 12 June 2024 Matter listed before Deputy Chief Judge McClelland for readiness and compliance hearing. The father failed to appear. 28 August 2024 Matter listed before the Judge Street. Matter set down for a two-day final hearing commencing 26 May 2025 and further orders made for the parenting/procedural orders made. The father continues to breach those orders. 4 October 2024 Child impact report prepared by Ms R. 13 February 2025 The father's states to the children during a telephone call "Don't hit your brother and definitely don't throw an [shoe] at him. Apparently it's no good to throw an [shoe] at someone." 3 March 2025 During telephone call with paternal grandfather – the father is present, and information was being requested about the location of the children. 16 March 2025 During a telephone call with the paternal grandfather, the children were asked where they live. 28 March 2025 The mother files and serves on the father and Independent Children's Lawyer her final hearing affidavit evidence in accordance with Court Orders of 28 August 2025. 25 April 2025 The father fails to file and evidence in accordance with orders of 28 August 2025. 5 May 2025 The mother's solicitors write to the father advising the father that the mother will seek that the matter proceed on an undefended basis. 19 May 2025 The father was notified of the hearing on 26 May 2025 by an associate to His Honour Judge Street’s via email. 19 May 2025 The father was notified of the mode and date of the hearing on 26 May 2025, via Microsoft Teams, by an associate to His Honour Judge Street.
PARENTING LAW
The parenting law is adequately set out in Kapoor & Kapoor [2024] FedCFamC2F 605.
The Court has taken into account, in addition to the evidence referred to, the case outlined by the mother and the case outlined by the ICL.
The Court also sets out from the mother's case outline the following:
11. From the outset, the mother contends that the father poses an unacceptable risk to the children.
12. In Chiles & Petrenko [2024] FedCFamC1A 112, it was said:
[32] Orthodox risk assessment and management in parenting proceedings has been the subject of explanation in several full court authorities, most notably in Isles &
Nelissen (2022) FLC 94-092). It bears repeating that the usual course in undertaking the assessment is to identify the contended risk event, gauge the likelihood of it occurring, and then consider the magnitude of harm which might ensue if the risk event does occur. One then considers whether in the light of those matters the risk of harm is acceptable or not.
[33] The purpose of ameliorative conditions is to mitigate a risk of harm from unacceptable to acceptable, such that when the risk analysis is repeated with the ameliorative condition in place, the relevant risk is assessed as acceptable.
13. In Hickson & Matthew [2022] FedCFamC1A 161, Deputy Chief Justice McClelland said this of Justice Austin’s analysis at [39]:
Additionally and relevantly for the purpose of this appeal, I would expand upon that insightful analysis by Austin J with the following guidance that emerges from authorities: (1) It is now well established that “unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm: see A v A [1998] FamCA 25; (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77.
(2) Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146] – [148]. …
FINDINGS AND CONCLUSIONS
In relation to s 60CC(2)(a) the Court finds that there were orders made on 26 July 2023 and 28 August 2024 to facilitate a pathway for re-establishing the children's time with the father. The father has not complied with the orders to undertake hair follicle testing and has continued to spend no face to face time with the children since June 2022. The Court finds the main risk to the children spending face to face time with father is exposure to the father's illicit substance use and the real potential negative consequence of the same. The Court finds on the evidence before the Court the father continues to struggle with addiction to methamphetamine and marijuana. The failure to undertake the Court's orders in respect of drug testing ineluctably support this conclusion. The Court has also taken into account the final ADVO that is in place to protect the mother and the children against the father, which is due to expire in early 2026. The Court is satisfied that orders need to be made under s 68B of the Act preventing the father from approaching the mother's home, workplace, or the children's daycare or school, or from contacting the mother or children, unless it is through a lawyer or as agreed in writing between the parents about the children. Despite orders of this Court, the father has not downloaded the parenting application for the purpose of communication, which has caused further conflict and tension. The Court finds that the father has intentionally failed to comply with the Court's orders and continues to have no insight as to his own conduct and it being his own conduct that is the reason for the parenting orders being made by the Court today.
Further, the ongoing failure by the father to comply with the earlier orders of the Court, as well as the conduct referred to above in the mother's evidence, shows a real want of parenting capacity by the father. The Court is satisfied that the proposed orders would be most likely to promote the safety of the mother and children and prevent the mother and children being subjected to future family violence or harm. The Court finds that the father has engaged in a deliberate failure to comply with the Court's orders for drug testing and in relation to his conduct in attending daycare centres and in his inappropriate communications to the mother and improper threats. That means there is a real risk of significant harm to the mother and children if the arrangements in these parenting orders were not put in place. The nature of that risk, the Court finds, is not just psychological and emotional harm to the children and the mother, but a real risk of physical harm to the mother, reflected in the threats made by the father.
Given the father's conduct and behaviour to which the Court has referred, the Court finds that risk is sufficiently real and has a catastrophic consequence for the children unless arrangements as identified in these parenting orders are made. The Court expressly finds that that risk is not remote or fanciful and that the history of the conduct of the father reflects a real risk of a catastrophic kind to the mother and children if orders as proposed by the ICL and the mother are not put in place.
In relation to s 60CC(2)(b) of the Act, the children are too young to express views, and the Court expressly dispensed with the need for the ICL to obtain the children's views. In relation to s 60CC(2)(c) of the Act, the Court finds that the mother has proper parenting capacity to advance the development, psychological, emotional, and cultural needs of the two children. The Court finds on the evidence before it that the risk of the father engaging with the children while affected by drugs has a sufficiently high likelihood so as to be a real and substantial risk which could significantly adversely affect the developmental, psychological and emotional needs of the children as well as potentially causing physical harm because of his drug addiction and/or likely disparaging abuse of the mother in the presence of the children and/or potential harm to the children physically including if the father were behind the wheel and affected by drugs.
In relation to s 60CC(2)(d) of the Act, the Court is satisfied the mother has proper parenting capacity to discharge her parental responsibility to the children and to make the major long-term decisions for the children on her own so as to best advance the children's development, psychological, emotional and cultural needs. The Court finds the father lacks parenting capacity to participate in the long-term decision-making to advance the children's development, psychological, emotional and cultural needs.
In relation to s 60CC(2)(e) of the Act, the Court recognises that the orders being made are likely to mean that the children have no relationship with their father, which is completely due to the conduct of the father and his lack of insight as to his own conduct. The Court finds that it is not safe because of the father's drug addiction for the children to have a relationship with the father. The Court notes that the ICL did identify this was a potential case where the Court might order no time, albeit the ICL was willing to support the orders by the mother that potentially facilitate an agreement of the parties for the children to spend time with their father where it is safe to do so. The Court is satisfied the mother will not permit any such agreement to be put in place that will endanger the children either from unsupervised access by the father to the children without proper demonstration that he has undergone appropriate drug testing and appropriate counselling programs, as well as to prevent the children being exposed to the risk of being driven by the father when affected by drugs.
The Court is satisfied that it is appropriate for the mother to be able to agree upon arrangements with the father if she sees fit and is satisfied it is safe to do so for the children. The Court appreciates that the orders in place may also adversely impact on the paternal grandparents, however the Court adds that the conduct of the paternal grandparents, in trying to obtain the address of the children, was entirely inappropriate. It will be for the mother to determine if and when the paternal grandparents spend time or communicate with the two children. It is essential that the paternal grandparents do not use any such opportunity to circumvent the Court orders that have now been put in place, or in any way endeavour to obtain information, contrary to the Court's orders now made.
The conduct of the paternal grandparents identified by the mother was a potential danger to both the mother and the children, and, in the future, it will be for the mother to decide if and when there is any communication between the paternal grandparents and the children.
In relation to s 60CC(2)(f) of the Act, the other particular circumstances that the Court has taken into account are the real and significant adverse effect upon the children of the father failing to undergo steps to regularly communicate with them when given the chance to do so and failing to undertake steps that could have increased his meaningful time with the children. Those failures reflect a real and substantial want of parenting capacity by the father. Raising the expectations of young children that they will have communications from the other parent and then not following through can potentially cause real emotional and psychological harm to the children. The father’s failure to engage in the pathways that were open to him to progress meaningful time with the children reflects an ongoing want of parenting capacity by the father.
In relation to s 60CC(2A) of the Act, the Court has identified above the history of family violence that has impacted upon the mother. The Court takes very seriously the threats made in the past by the father to kill the mother and the breaches of ADVOs. This history of family violence by the father in this case was not isolated and strongly supports the making of the parenting orders that the Court is putting in place. The Court has also taken into account in that regard the existing ADVO in place that continues to early 2026 and was put in place to protect both the mother and the two children.
The Court is satisfied that the proposed parenting orders meet the paramount consideration in s 60CA of the Act and are in the best interests of the children. The Court notes that it has also had regard to the principles referred to above in s 60B of the Act and that the proposed orders will ensure the best interests of the children are met, including ensuring the safety of the children. The Court has also had regard to the principles in the Convention on the Rights of the Children 1989.
It is for these reasons the Court makes the parenting orders identified above.
ICL COSTS
The ICL asked for a cost order against both parties. This is a case where the ICL was appointed by reason of the ongoing failure by the father to comply with Court orders. The Court has taken into account the requirements of s 117(2A) of the Act and finds the mother's financial circumstances are such that no order should be made in respect of half the ICLs costs against the mother.
The Court is, however, of the view that this is the type of case where, effectively, a Bullock order should be made in relation to the costs of the ICL and that the father should be ordered to meet the whole of the costs that have been incurred by the ICL. The Court has limited information in relation to the father's financial circumstances but has taken into account that there was a property settlement. The Court is not persuaded on the material before it that the father lacks financial capacity to meet the cost order sought by the ICL.
The Court has taken into account that it does propose to make an order in relation to the costs of the mother, which will have an impact on the financial circumstances of the father. However, the Court is not satisfied that the financial circumstances of the father are such that he cannot reasonably meet the costs of the ICL. The Court notes the father has not been in receipt of Legal Aid, although he had the benefit of a s 102NA order that he did not use. The Court notes that the conduct of the father in these proceedings has been a continual failure to comply with the Court's orders and strongly warrants the making of a cost order in favour of the ICL. The Court notes that the appointment of the ICL was necessitated by the failure of the father to comply with the previous Court's orders.
The Court finds in all the circumstances that it is of the opinion that these are circumstances that justify the Court ordering the father to meet the costs of the ICL and that such an order is considered by the Court to be just.
The mother also sought a costs order under s 117 of the Act and identified her costs in the parenting proceedings, untaxed, to be in the order of $180,690. For the same reasons as identified above, the Court is not satisfied that the father lacks financial circumstances by reason of which he could not meet an adverse costs order in favour of the mother. The Court has taken into account that it is making a costs order in relation to the costs of the ICL against the father.
The Court has taken into account that the father was able to seek, if he wished, legal assistance pursuant to the s 102NA order, and that he declined to do so. The Court has taken into account the conduct of the father in these proceedings and his continuing failure to comply with Court orders identified above. The Court is satisfied that these proceedings were, at least in part, necessitated by the failure of the father to comply with previous orders of the Court. The Court is satisfied that the mother has been wholly successful in these proceedings.
Taking into account all the circumstances, the Court is of the opinion that there are circumstances that justify the Court in ordering the father to pay the mother's costs, fixed in the amount of $108,414. The Court considers it just to make that order.
The Court notes that it had the evidence of the costs notice of the mother before it and took into account the costs identified in item 3, effectively being from 1 July 2023 to date, and that the amended application was filed in relation to parenting matter by the mother on 7 July 2023. The Court has also taken into account a lesser amount identified than that in item 4, given the orders being made on the first day of the hearing and being allowed 60% of the cost estimate as reflecting the reasonable party-party costs incurred in the conduct of the crediting proceedings by the mother.
It is for these reasons the Court made the above orders.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 13 June 2025
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