Daltrey & Haddow - [2022] FedCFamC2F 235

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Daltrey & Haddow [2022] FedCFamC2F 235

File number(s): NCC 1061 of 2017

Judgment of: JUDGE KEARNEY

Date of judgment: 9 March 2022

Catchwords: FAMILY LAW - parenting – two children aged 6 & 7 – where the father sought defined supervised “time with” orders some 26 months after final parenting orders made - sole parental responsibility to mother – time with father to be at mother’s sole discretion due to ongoing mental health and illicit drug use issues by the father – twice weekly telephone communication

Legislation: Family Law Act 1975

Cases cited:
Aldridge & Keaton [2009] FamCAFC 229

Johnson and Page [2007] Fam CA 1235

Marsden & Winch [2009] FamCAFC 152

Orwell & Watson [2008] FamCAFC 62

Rice and Asplund [1978] FamCA 84

Rice v Miller (1993) FLC 92-415

Slater v Light [2011] FamCAFC 1

SPS & PLS [2008] FamCAFC 16

Division: Division 2 Family Law

Number of paragraphs: 298

Date of last submission/s: 16 February 2022

Date of hearing: 14-16 February 2022

Place: Newcastle

Counsel for the Applicant: Mr Gallimore

Solicitor for the Applicant: Gianacas Argiris McDonald

Counsel for the Respondent: Mr Antill

Solicitor for the Respondent: Toronto Legal
ORDERS

NCC 1061 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR DALTREY

Applicant

AND:
MS HADDOW

Respondent

ORDER MADE BY:

JUDGE KEARNEY

DATE OF ORDER:

9 MARCH 2022

THE COURT ORDERS THAT:
1.The mother’s application for summary dismissal arising from the principle in Rice and Asplund [1978] FamCA 84 is dismissed.
2.All existing parenting orders are discharged.
3.MS HADDOW (‘the mother’) shall have sole parental responsibility for the children:-
(a)X born in 2014 (‘X’);
(b)Y born in 2015 (‘Y’),

collectively referred to as ‘the children’.
4.The children shall live with the mother.
5.The children shall spend time with MR DALTREY (‘the father’) at the sole discretion of the mother.
6.For a period of 12 months, the children shall communicate with the father each Tuesday and Thursday between 4:00pm and 4:15pm via telephone.
7.If, at the conclusion of 12 months, and during any periods when the children are spending time with the father (supervised or unsupervised) in the future, the communication at Order 6 shall endure FAILING WHICH, the children shall communicate with the father by telephone between 4:00pm and 4:15pm on the children’s birthdays, Father’s Day and Christmas Day and at other times and days at the sole discretion of the mother.
8.To facilitate Orders 6 and 7:-
(a)the father shall call the children using the paternal grandmother’s telephone/mobile telephone; and
(b)the mother or her nominee shall ensure the children are available to take the father’s call; and
(c)the mother shall have the sole discretion to terminate the communication in the event that the child/children become distressed.

9.The mother will notify the father by email of any decision of a long-term nature that she has made about the children.
10.Within seven (7) days, the mother shall provide such consents and authorities so as to allow the children’s treating medical practitioner(s) to provide to the father any medical report(s) related to the children and to discuss with the father any treatment plan(s) related to the children provided that any costs of the treating medical practitioner(s) in responding to any requests of the father shall be borne by the father.
11.To facilitate Order 10, the mother shall within seven (7) days notify the father of the children’s medical practitioner(s).
12.The mother (or her nominee) and, if applicable, the father (or his nominee) shall notify the other party in writing or by telephone call as soon as practicable after the occurrence of any of the following:-
(a)X or Y becoming seriously ill;
(b)The hospitalisation of X or Y;
(c)X or Y being involved in an accident requiring medical attention.

13.Within seven (7) days, the mother shall provide such requisite consents and/or authorities that may be required by the children’s school to enable the father to receive (at his expense) any school reports, photographs, order forms, newsletters or other material that is normally communicated to parents of children attending such institutions or activities.
14.Pursuant to section 11(1)(b) of the Australian Passports Act 2005, the mother is authorised to apply for, renew and/or retain a passport for the children X born in 2014 and Y born in 2015, without the father’s written consent or approval and without him having to sign any documents.
15.In the event that the mother intends to travel outside the Commonwealth of Australia with either or both of the children, she will, at least sixty days prior to the intended departure date, write to the father and include the following details:-
(a)the proposed departure and return dates;
(b)the flight details, including airline(s), forward and return flight details;
(c)the itinerary of where the children will be staying and the name(s) of any other person(s) who will be travelling with them;
(d)the contact details for all accommodation providers; and
(e)the proof of travel insurance with medical and medivac cover for the children and the mother.

16.Pursuant to s 68B of the Family Law Act 1975 (Cth) (‘the Act’), the mother and the father are restrained and an injunction shall issue prohibiting them from:-
(a)denigrating each other, members of their household or any member of their families in the presence or hearing of the children;
(b)permitting the children to remain in the presence or hearing of another person seeking to do any of the acts set out in the preceding sub-paragraph to this Order.

17.Pursuant to s 68B of the Act, the father is restrained and an injunction shall issue prohibiting him from approaching, entering or remaining within 100 metres of the mother and children’s residence.

18.Within seven (7) days, the mother and the father will each provide to the other, their contact telephone number and email address and advise the other parent in writing of any change to same as soon as practicable or within forty-eight (48) hours of such change occurring.
19.Within seven (7) days, the mother is to notify the father of an address to which the father may send cards and presents for the children.
20.Other than in an emergency or to communicate matters of an urgent nature or regarding delays in changeover (if applicable), the mother and the father shall communicate regarding arrangements for the children by SMS. To that effect, the mother and the father shall ensure that:-
(a)their mobile telephone number is accessible to the other and not blocked; and
(b)their communications to each other are reasonable and polite.

21.Unless otherwise specified, any reference to the mother and father communicating or reaching agreement “in writing” shall include but not be limited to communications via text message.
22.The father is permitted to provide a copy of the judgment to his treating general physician, his treating health professionals (if any) and his NDIS co-ordinator of supports.
23.If the father decides that it is appropriate for the judgment to be read aloud to him THEN he is permitted to provide a copy of the document to the paternal grandmother provided that he ensures that such copy is returned to him after the paternal grandmother has finished reading it to him.
24.Within seven (7) days, a registry staff member is to provide a copy of these orders and judgment to an authorised officer of the Department of Communities and Justice.
25.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Daltrey & Haddow has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KEARNEY
INTRODUCTION

These proceedings involve a parenting dispute invoking Part VII of the Family Law Act 1975 (Cth) (‘the Act’) between the Applicant, MR DALTREY (‘the father’) and the Respondent MS HADDOW (‘the mother’).
There are two children who are the subject of the dispute namely:-
(a)X (‘X’) who is seven (7) years old;
(b)Y (‘Y’) who is six (6) years old,
collectively referred to as the children.
The main issues to be determined by the Court were:-
(a)whether it was open to the Court to hear the mother’s application to dismiss the proceedings in reliance of the principle espoused in the decision of Rice and Asplund[1] and if so, what determination the Court should make;
(b)in the event that the mother’s application was unsuccessful, then what time (if any) the children should spend with the father and under what conditions it should occur; and
(c)whether passports should issue for the children and under what circumstances the children should be permitted to travel overseas.
This is the second time that this family has been before the Court, with the genesis being that, despite a final order of the court giving the mother sole discretion to decide if and under what circumstances the children should spend time with him, the father considers that she is not acting in their best interests and regularised time should be ordered (subject to various conditions).
For the reasons which follow, I have adopted some of the mutual proposals sought by the parties and have made additional parenting orders including giving the mother sole discretion as to what time the children shall spend with the father and a deadline for when telephone communication will revert to her discretion in the event that the father does not take up the opportunities to improve his circumstances. To help him in his journey of self-improvement, I have made orders permitting the father to provide a copy of the judgment to various professionals with whom the Court anticipates he will now formally engage with if he is committed to addressing his mental health issues and illicit substance use. Because of the risk factors identified during the trial and the father’s unsupervised time with his son B, I have also ordered that a copy of the judgment be forwarded to an authorised officer of the Department of Communities and Justice.
THE EVIDENCE
The father read and/or relied upon the following documents:-
(a)Affidavit of Mr Daltrey filed 20 January 2022;
(b)Affidavit in reply of Mr Daltrey filed 11 February 2022;
(c)Affidavit of Ms C filed 20 January 2022;
(d)Affidavit in reply of Ms C filed 11 February 2022;
(e)Affidavit of Ms D filed 21 January 2022;
(f)Notice of Risk filed 20 August 2020;
(g)Section 60I Certificate filed 20 August 2020;
(h)Outline of Case document filed 11 February 2022 – marked Exhibit “F1”;
(i)Final Orders of the Court made 29 June 2018 – marked Exhibit “F2”;
(j)Orders of the Court made 18 January 2021 – marked “Exhibit F3”;
(k)Email from Region E Children’s Contact Service to Ms C dated 11 February 2022 – marked Exhibit “F4”;
(l)Proposed Minute of Order tendered on 16 February 2022 – marked Exhibit “F5”
The mother read and/or relied upon the following documents:-
(a)Affidavit of Ms Haddow filed 2 November 2020;
(b)Affidavit of Mr F filed 8 February 2021;
(c)Notice of Risk filed 5 November 2020;
(d)Outline of Case document filed 11 February 2022 – marked Exhibit “M1”.
In addition all parties asked me to read:-
(a)the family report dated 3 September 2021 - marked Exhibit “A”[2]; and
(b)the transcript of the proceedings before the Court on 29 June 2018 when the final parenting orders were made - marked Exhibit “B”.
The father’s evidence was confusing at times. He explained that he was dyslexic and this was apparent when he was asked to read and interpret a paragraph in his affidavit in reply regarding his current drug use. He appeared to struggle with the concept that the evidence in his earlier trial affidavit was different, but when I intervened he was clear to say that he had resumed using marijuana in July 2021. Counsel was directed to ensure that the requirement for the father to read slabs of text should be avoided. My assessment of the father’s ability to comprehend the questions put to him and then appropriately answer them, was consistent with the child expert’s view and I was satisfied that he clearly understood the questions being put to him and when he did not - either he would indicate that he was unsure, or his counsel or myself would ask that the question be re-framed.
Through that prism, I remained concerned that the father’s evidence was unreliable, particularly insofar as it related to the circumstances of his recent drug use and his recollections of the conversations he had during the family report interviews.
It seemed to me that where events had occurred that he was uncomfortable with, he either genuinely did not appear to recall what actually happened (which may be a by-product of his various diagnoses) or he was deliberately avoidant. The father did not present in the heightened emotional state that he did when he spoke to the child expert.
When presented with a conflict between, on the one hand, the evidence of the father, and on the other, the evidence of another witness on these topics such as Ms D or the child expert or that contained within any document compiled from an apparently reliable and independent source, I prefer all other evidence over that of the father.
Counsel for the father diligently challenged the court child expert who prepared the family report (‘the child expert’) about inconsistencies within her report as opposed to what either the father had instructed or the mother had said in cross-examination. In my view the child expert made appropriate concessions but where there was a conflict between the recollections of the child expert and the evidence of the father, for the reasons above I prefer the child expert.
BACKGROUND
The father was born in 1992 and he is now 29 years of age. He has a sister, Ms H who is married with two children aged four (4) years and eighteen months.
The mother was born in 1995 and she is now 27 years of age.
In 2013, the parties commenced their relationship. That same year the paternal grandmother, Ms C (‘Ms C’) commenced attending a stimulant treatment program (‘STP’) through the Region E Health District.
In February 2014, Ms C commenced dexamphetamine treatment and since then has been compliant in meeting the program’s requirements including attending monthly medical reviews, submitting to urine drug screening and attending fortnightly counselling sessions.
In 2014, X was born. He is the mother’s son. It was unchallenged that X’s biological father is not known.
In 2015, Y was born and she is the child of the parties.
In June 2016, the parties separated with the children remaining with the mother. At that time, X was about 22 months old and Y was about 10 months old.
The father says that for the six (6) months post-separation he was spending unsupervised time with the children on most weekends and sometimes on a Wednesday.
On 16 August 2016, the father was arrested by NSW Police as a result of damage caused to the mother’s property in her home. The mother says that as a result, NSW Police initiated apprehended domestic violence proceedings.
In his trial affidavit, the father makes no mention of damaging the mother’s property and instead says this:-
14.In November 2016 I had the children for a couple of days at the request of Ms Haddow without incident. This was the last unsupervised visit I had with the children.
15.It was shortly after this visit than (sic) an application for an Apprehended Domestic Violence Order was made against me.
16.On 21 February 2017 I consented to the AVO on a final basis without admissions…
On 21 February 2017, a final apprehended domestic violence order (‘the 2017 AVO’) was issued for 12 months by the City J Local Court of NSW for the protection of the mother. The father was the defendant. It was put to the mother in cross-examination that the Court didn’t make any findings before making the order and she replied “I suppose so”.
In cross-examination of the child expert, it was put to her by the father’s counsel that the criminal charges relating to the property damage were dismissed on the grounds of the father’s impaired capacity to form an intention based on his mental health at the time. As a result of this questioning, and in the absence of any evidence from the father, I infer that the father was also charged with at least one criminal charge relating to property damage but that no conviction was recorded.
The father says that from November 2016, the mother stopped the children from seeing him which resulted in him commencing parenting proceedings in this Court on 11 April 2017.
The same year, MS D says she and the father commenced a relationship. The father gave no written evidence about the details of the relationship save to say that she is the mother of his son B (‘B’). B has cerebral palsy and the father says that he assists him with his physiotherapy and his activities of daily living.
On 6 June 2017, interlocutory orders were made providing for the children to live with the mother and spend time with the father, supervised by the K Contact Service (‘K’).
In 2017, the mother commenced a relationship with Mr F (‘Mr F’).
Between 10 November 2017 and 31 August 2018, the children spent supervised time with the father at K Contact Service.
In 2018, B was born.
On 10 June 2018, the father submitted to a hair follicle test (‘HFT’) which tested positive to cannabis at a level of 173 picograms/10 milligrams. The results were not released until 20 June 2018.
On 29 June 2018, the Court made final parenting orders by consent (‘the 2018 Orders’). In summary, the 2018 Orders provided for:-
(a)The children to live with the mother;
(b)The mother to have sole parental responsibility;
(c)The mother to give the father notice of any decision she makes about the children’s long term care, welfare and development;
(d)The parties to have responsibility for decisions about the children’s day-to-day care, welfare and development when the children are in their respective care;
(e)The children to spend time with the father as determined by the mother and under such conditions as specified by her;
(f)The children to have communication each Tuesday with the parent in whose care they are not in and otherwise the parents were to facilitate additional communication between the children and each other at the request of either or both the children;
(g)The facilitation of the father being able to obtain information from and otherwise engage with the children’s medical, educational and extra-curricular providers despite the mother having sole decision-making power about such matters;
(h)The parties communicating with each other on the happening of various unexpected events which would adversely affect the children’s health;
(i)The parties to keep each other informed of their contact details including the father advising the mother where he spends time with the children and the mother advising the father of an address to which he can forward the children’s presents;
(j)The imposition of various restraints on both of the parties to support their parenting relationship with the children and avoid the children being exposed to any parenting conflict;
(k)A restraint on each of the parties from consuming illicit substances and excessive alcohol at times when the children were shortly to come into their care and during periods of such care;
(l)The mother being permitted to change Y’s name; and finally
(m)A notation to the effect that if a dispute arises between them over the Orders then they will act with good will and attempt to resolve issues through professional mediation prior to taking legal action.
(my emphasis)

When making the 2018 Orders, the Court included a notation that read as follows:-
A.The father may bring another application to the court once he has dealt with his drug issues without being restricted from doing so pursuant to the rule in Rice & Asplund.
(my emphasis)
The parties had the benefit of the transcript of the findings made by the Court at the time the Orders were made.[3] The transcript adds context to the additional notation made by the Court at that time. For that reason, the transcript is recorded here:-
HER HONOUR: Yes. So what are we going to do?
MS ROBERTS: Thank you, your Honour. Your Honour, the parties have had some discussions and we’ve reached some final terms, essentially providing for the mother to have sole parental responsibility, the children live with her and the father spend time on conditions as determined – and times and conditions as determined by the mother. There’s a whole bunch of other orders in relation to the mother keeping the father notified, the ability to go to school events and medical information and things like that. So that’s all contained in the document we’ve just handed up.
HER HONOUR: And if the father at some point, Mr Dilley, gets his act into gear, to use the vernacular, he can always bring another application and demonstrate to the court that he has done some rehab and that he’s in a different position in his life.
MR DALTREY: That’s what I’m planning on doing, your Honour.
HER HONOUR: Well, I hope you do, Mr Daltrey, because it’s actually a very sad thing if children don’t have a father in their lives.
MR DALTREY: Yes, I know.
HER HONOUR: It’s sad.
MR DALTREY: I didn’t have one so I was pretty sad.
HER HONOUR: I will make those orders. I might just slightly redraft the births, deaths and marriages order because there’s a form of order we use which seems to work with births, deaths and marriages.
MS ROBERTS: Okay.
HER HONOUR: Look, I think this is entirely sensible. And to be honest, I’ve heard family consultants say more than once, Mr Dilley, that sometimes it’s better to rule a line under the court proceedings and say to people you’re not going to see – you’re probably not going to see your children till you do make some changes because it motivates people to change. If they get a little bit of time or if the matter drags on through the court system there’s no motivation for them to do anything about their problems. So, Mr Daltrey, you didn’t have a father in your life. You don’t want that to happen to your children. Step up and things will be different.
MR DALTREY: Yes.
HER HONOUR: So I will make orders in this matter in terms of the minute of order marked A and I will need somebody to send in a Word version of the document.
MR DILLEY: I will take that, your Honour.
HER HONOUR: Yes. Thank you. And no application for costs, Ms Roberts.
MS ROBERTS: Both parties are legally aided, your Honour.
HER HONOUR: These matters are very sad, Ms Daltrey, because children do suffer a huge loss if they don’t see their father. They don’t always understand that it isn’t their fault - - -
MS DALTREY: Yes.
HER HONOUR: - - - and they can grow up like Mr Daltrey, strongly regretting that they haven’t had a dad in their life. So it’s sad but I don’t have any other solution in it at the moment. The future is in your hands, Mr Daltrey.
MR DILLEY: My client is very supportive of that relationship, your Honour.
HER HONOUR: I understand that. I absolutely understand that and that’s why - - -
MR DILLEY: It’s so sad.
HER HONOUR: - - - if Mr Daltrey is able to do something, he has got a chance to step back in. Yes. Thank you.
MR DILLEY: Thank you.
MS ROBERTS: Thank you, your Honour.
(my emphasis)
So, it would appear that at the time the 2018 Orders were made, the father had submitted to a HFT although the evidence was unclear about whether he (or the mother) had the results by the time they next appeared in court.
Notwithstanding this, it is evident from the transcript that the father acknowledged he was going to attend rehabilitation for a drug issue.
There is no evidence that the father provided to the mother any independent records to support that he had successfully completed a rehabilitation program and/or was drug free before he re-commenced these proceedings.
Ms D says that the relationship with the Father ended in early 2019 and at that time an ADVO was taken out (‘the 2019 AVO’). I have only Ms D’s evidence about this. The 2019 AVO was issued for the protection of Ms D and once again the father was the defendant. In his two affidavits prepared for the trial, the father made no disclosure about the existence of the 2019 AVO nor of the events which caused the NSW Police to make the application.
I pause here to note, that in a subsequent report prepared by Dr L, he records that the father’s treating general physician Dr M wrote to say that on 21 November 2018, the relationship between the father and Ms D had deteriorated to the point where the police intervened with an AVO.
In cross-examination, the father was asked what the 2019 AVO was about and said, in effect that - I had a re-lapse. I had a mental breakdown…I was suicidal…I was threatening self-harm…Ms D called the ambulance and the cops got called. In cross-examination Ms D was asked about the 2019 AVO and said, in effect that - …the Police took it out, I don’t remember what happened as to why it was taken out…they could hear us yelling and clarified that it was her parents who called the police because they could hear them yelling.
Ms D says that the 2019 AVO has lapsed and there have been no breaches or further police involvement.
Other than to record the birth of their son B, it is unclear to me why the father gives no evidence of his relationship with Ms D and the circumstances in which it ended, which post-dated the 2018 final orders.
On 7 February 2019, the father first sees Dr L, clinical psychologist.
On 18 April 2019, the father asked the mother if he could come and give the children Easter presents that year. The mother refused.
On 11 June 2019, the father caused his solicitor to write to the mother’s lawyer making complaints including about how the children’s electronic communication was occurring, her interventions in such communications and the children’s use of the word “Dad” to describe Mr F, whilst referring to the father as “Mr Daltrey”. The letter also rejected the mother’s request for the father to do “drug testing”. At no point does the letter complain about the mother’s decision not to permit the children to spend time with the father.
On 25 September 2019, the mother’s solicitor wrote to the father’s solicitor requesting the father sign the children’s passport applications. The father says that he received advice that he did not need to because the mother held sole parental responsibility for the children.
On 16 December 2019, the father was convicted for cultivating two “small” cannabis plants pursuant to s23(1)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). Upon pleading guilty at the first court event, the father was referred to the MERIT Program through the Region E Local Health District. The father says he was also placed on a two-year good behaviour bond which has now expired without incident.
It is unclear, when the charges arose or how old the plants were at the time of the offences, and it may be that this was why the father’s solicitor did not raise the issue of the children’s time with the father in June 2019, I simply do not know. It is also unclear if the father informed the mother of the circumstances surrounding his conviction or indeed about the conviction itself.
On 3 February 2020, the mother says she sent the father a photo of X on his first day of school.
On 11 February 2020, the mother and Ms C (‘the paternal grandmother’) participated in family dispute resolution which resulted in a parenting plan enabling the children to spend supervised time with the paternal grandmother at the home of the maternal grandmother on the first Friday of each month for a period of four months. It is uncontroversial that the children continue to spend time with the paternal grandmother in the same pattern and under the same circumstances. In addition, the parenting plan enabled the children to also speak to the paternal grandmother at the same time as the father each Tuesday afternoon.
On 10 March 2020 the father says he asked the mother if she would permit the children to spend supervised time with him, if he paid for the “family centre” to do so. He says he received no response. There is no evidence that he informed the mother of his recent conviction for a drug-related offence.
On 18 April 2020, the mother sent the father a photo of the children with the Easter presents he mailed to the maternal grandmother’s home.
On 28 July 2020, the parties participated in family dispute resolution. There is no evidence that the father informed the mother prior to the event that he was on a good behaviour bond for a drug-related offence. Whilst it would be improper of me to make a finding on this issue, in the absence of such evidence, I was left wondering as to whether the father was acting in goodwill when he participated in the family dispute resolution event (as identified within the notation to the 2018 Orders set out above).
On 6 August 2020, the father instructed his solicitor to express his intention to spend supervised time with the children at K. I note that there are no attachments to the letter addressing the father’s rehabilitation or abstinence from drugs, nor any information about the father being on a good behaviour bond. The letter is completely silent about the issue of the father’s drug use which it appears from Exhibit “B”, was the reason why the children’s time with the father was to be at the mother’s discretion and on her terms.
On 10 August 2020, the mother declined the father’s request for supervised visits “at this stage”.
On 20 August 2020, the father commenced parenting proceedings seeking interim and final parenting orders which in effect would discharge the 2018 Orders and permit the children to spend time with him, initially on a supervised basis but then moving to unsupervised time provided he submits to two HFTs that are negative for illicit substances. To-date the father has never provided two negative HFT results. In addition, various orders were sought including an increase in the telephone calls to twice per week on Tuesdays and Thursdays and for the provision of passports for the children and notice to be given about any overseas travel they may have.
On 28 August 2020, the mother caused her solicitor to send a letter to the father’s solicitor saying that she had fears for her safety and the children because of questions and comments that she alleged the father was making to the children during phone calls, which on its face appeared to be inconsistent with various restraints contained within the 2018 Orders.
On 19 October 2020, a report was produced by Mr N, a social worker – MERIT Counsellor regarding the father’s participation in the program (‘the MERIT report’). The report acknowledges that the father was referred on 8 July 2020 and that the father had been contacted for all of his requested weekly counselling sessions. So, it would seem that the father had the benefit of about 12 weekly counselling sessions. During his assessment, it was recorded that the father had reported an –
…extensive history of substance use, most recently regular use of cannabis. Mr Daltrey described a pattern of regular cannabis use which eventuated to problematic behaviour, negative impacts on his mental health, his current court matters and other negative impacts on his life.
(my emphasis)
Having received the MERIT report the father should have been under no illusion that his ongoing use of marijuana was detrimental to his behaviours and mental health.
As part of the father’s treatment recommendations and plan, the MERIT report observed that the father was –
…highly motivated to engage in weekly phone counselling for his treatment plan, expressing his need for help and support for him to address difficulties in his life. Mr Daltrey acknowledged he would explore other community based services or referrals to necessary services if difficulty was had with the reduction of his substance use.
(my emphasis)
In terms of implementation of the treatment plan, the MERIT report observed that:-
…Mr Daltrey was able to manage periods of abstinence from all illicit substances during his program but did struggle at times due to ongoing contact issues with his children, being a major stressor for Mr Daltrey throughout his program engagement…Mr Daltrey appeared to receive great benefit from regular personal reflection and his need to focus on the necessary adoption of a positive mindset…and to manage problematic rumination regarding stressors about his children and his lack of contact with them.
Mr Daltrey did not wish to receive any referrals or continue care with any AOD services at this time, but has the knowledge of how to contact relevant services and professionals if he wishes to re-engage in the future. Mr Daltrey is continuing to be engaged with his GP to manage his currently prescribed medications, also awaiting a referral to commence engagement with a psychologist after accessing a mental health care plan to assist with his mental health.
(my emphasis)
In summary the MERIT report said that:-
Mr Daltrey was able to fully engage in his MERIT program, demonstrating a significantly reduced level of cannabis use and achieving periods of abstinence from illicit substances by completion of his MERIT program. Mr Daltrey fully engaged in his treatment, developing better strategies and understanding of his now previous problematic illicit substance use and the consequential psychological difficulties. Mr Daltrey demonstrated significant insight into the impacts of substance use on his life and how addressing this has given him further stability in all aspects of his life…
(my emphasis)
In his affidavit, the father does not say what he learnt from the MERIT program.
On 2 November 2020, the mother filed her material in response to the father’s parenting application. Although not drafted that way, her relief was prefaced by asking that the Court make a finding that the father had not dealt with his drug addiction. She then sought final orders regarding:-
(a)the provision of passports for the children;
(b)notification being given if the children were to travel overseas;
(c)the discharge of Order 12 of the 2018 Orders which required the parties to give consent and authority to the children’s school and extra-curricular activity providers so that the usual parental information could be accessed by both parties;
(d)the father to pay the mother’s costs; and
(e)the dismissal of the father’s application pursuant to the “rule” in Rice and Asplund; failing which she sought that -
(i)Order 12 of the 2018 Orders be suspended until further order;
(ii)the father undergo three HFTs which produced negative results for illicit substances before the children were to spend time with him and that in that eventuality, the supervised time endure for not less than six months with any time suspended if a further drug screen produced a positive result for illicit substances; and
(iii)additional restraints be included within Order 17 of the 2018 Orders applicable only to the father or his agents and related to preventing the children being questioned about their living arrangements, removing the children from school and permitting the children to spend time with the father without the mother’s consent.
Annexed to the father’s trial affidavit is a letter from his treating general physician, Dr M of O Medical Clinic dated 23 November 2020. In that report, Dr M described the father as having an intellectual disability. Although the report does not say how often Dr M sees the father, she says that she has been his treating physician for 21 years. The father gave evidence that he sees his doctor once a month.
Dr M says in her report that in the past twelve months (that is from November 2019 to November 2020), the father had made significant progress in his ability to regulate his emotions. She says that he had worked with his psychologist (Dr L) and had developed insight into his reactions to challenging situations, as well as skills in how to better respond in a calm and considered manner. The father gave evidence about his doctor being “on to it” in terms of her concerns around his use of cannabis and this is supported by the last paragraph of her report where says this:-
His cannabis use has long been a “crutch” or attempt at self-medication of his anxiety which develops when he is unable to process the complexities of life and relationships. As a result of his work with his psychologist his cannabis use has significantly decreased, as this anxiety has lessened.
Just under two months after the MERIT report and just over two weeks after Dr M’s report, the father submits to a HFT on 9 December 2020. On 19 December 2020, the HFT results record positive readings for:-
(a)cannabis at over 80 picograms/10 milligrams;
(b)methamphetamine at 38.9 nanograms/10 milligrams; and
(c)amphetamine at 24.9 nanograms/10 milligrams.
On the same date as the above HFT report is released, Dr L produces a report about the father, based on six (6) clinical interventions spanning 22 months. In the report, the father is recorded by Dr L as saying that he realised that he needed help with managing his emotions (and) that he didn’t use … recreational drugs apart from marijuana, which helped him keep calm. He believed that prescribed medication had been helpful. This entry is recorded in Dr L’s report after the first session on 7 February 2019 and before the third meeting on 14 June 2019.
In summary Dr L expressed his hope that his report would assist the court in coming to a fair resolution of the father’s case and observed that as at 19 December 2020 (when the father was last seen by Dr L), there was no indication of psychosis or any impulse control problem, which might make the father a risk to himself or others. He says that the father’s prognosis points to recovering anxiety and depression as he consciously attempts to practice a less confrontational, more co-operative way of dealing with the frustrations, injustices and disagreements in his daily life.
The father’s evidence was that he continues to informally access Dr L by telephone because Dr L has retired and he is yet to receive a referral to see another clinical psychologist. There was nothing more recent from Dr M that could explain why such a referral (or mental health care plan) had not been made, developed or even discussed. There was no evidence that the father had sought a referral for drug rehabilitation or drug and alcohol counselling.
It is common ground that on 18 January 2021, Judge Terry heard the mother’s application for the father’s application to be dismissed pursuant to the principle within Rice and Asplund. On that date, the Court directed that the parties issue various subpoenae, failing which the proceedings would be re-listed by the court’s own motion. The Court also ordered that a family report be prepared noting that the issue in dispute is the time the father should spend with the children. The other issue of concern to the court is that orders are made on the next occasion which are workable and do not cause ongoing stress and difficulty for the parties and the children.
(my emphasis)
The proceedings were given a future court date and various notations were made which are set out below:-
THE COURT NOTES THAT:
A.It has been provided today with a drug test result by the father which is positive for methamphetamine and cannabis.
B.The mother’s application to the court was for the father’s application for orders for defined time with the children to be dismissed and in light of the father’s drug test results if the only issue in the matter has been whether the father should be able to spend defined time with the children it is likely that the court would have dismissed the father’s application pursuant to the Rule in Rice & Asplund.
C.The mother’s affidavit makes clear however that the order which provides for the children to spend time with the father as determined by the mother is causing ongoing stress and difficulty for the mother and that the mother does not wish the father to know the identity of the school the children are attending with the result that orders 12 and 13 of the existing orders are not being complied with leading to a risk of contravention proceedings. The mother also asserts that the telephone communication order is not working for the children.
D.As a result notwithstanding that the father has not demonstrated that he has dealt with his drug problem, the court is of the view that the parenting orders need to be considered afresh so that orders are made which are workable and do not cause stress and difficulty for the mother, the father and the children.

On 28 July 2021, the father submitted to a HFT which tested a 3cm strand of hair which subsequently showed no illicit substances were present.
On 29 July 2021 and 4 August 2021, the child expert conducted family report interviews with the father and the mother, with Ms C being present for some of the discussions with the father. Because of the health pandemic, the children were not interviewed nor observed with either party. Further limitations were identified by the child expert, namely that the father did not complete either interview and the NSW Police records were not available for inspection.
Sometime in 2021, the father was approved for the NDIS and he has a co-ordinator of supports employed by Empowered Community Services. He says that the NDIS support plan includes access to psychological and occupational therapy assistance but there was no evidence of when these services would be accessed by the father.
On 19 January 2022, the father said in his trial affidavit that since the last positive HFT report on 19 December 2020, he has used his “best endeavours to become drug free” and is “now drug free”. In the same affidavit, he says that he takes 300mg of Seroquel a day and 160mg of Efexor a day. He says that his current diagnoses are:-
(a)Attention deficit hyperactivity disorder;
(b)Post-traumatic stress disorder;
(c)Borderline personality disorder;
(d)Depression; and
(e)Anxiety.
On 19 January 2022, Ms C signed an affidavit which said this:-
8. I have observed in the last 12 months a significant turn around in Mr Daltrey’s behaviour. His mood has stabilised, and he has become drug free as far as I am aware.
In addition, Ms C says in her affidavit that she continues to spend monthly time with the children at the home of the maternal grandparents.
On 21 January 2022, Ms D signed an affidavit in which she said:-
5. In the time that I have known Mr Daltrey I have seen a great change in his mental health and anger management especially over the past 18 months. I have seen Mr Daltrey deal with his emotions a lot better than when we had first met. He is calmer in his mannerism and seems to be a lot happier in himself despite what he has been going through.
6. Mr Daltrey had a cannabis issue which I believe he has overcome.
In cross-examination Ms D was asked about her knowledge of the father’s drug use at about the time he tested positive for illicit substances in 2018. She said that she was aware he was using marijuana and methamphetamine. She said that when he was taking those drugs, his mental health wasn’t as good as it was now. She said that she was “pretty sure” that he stopped taking methamphetamine sometime in 2018/2019.
In response to questions from the mother’s counsel, Ms D said that she was unaware that the father had tested positive for illicit substances in 2019 and in particular methamphetamine during a period when he was spending time with B. When asked for her response to that information, she said, “I don’t really know how to answer that question – I know everyone has their stuff ups along the way.”
When asked whether she was aware that since July 2021, the father was regularly consuming marijuana she said yes. This evidence appeared to the Court to be inconsistent with paragraph [6] of her trial affidavit as set out above. In re-examination she was asked whether the new information she had now been told had changed her mind about the father. She said words to the effect of the father being a “great dad” and that “he doesn’t smoke whilst he is with my son.”
On 8 February 2022, Ms P from the STP said that Ms C’s current treatment plan would be reviewed in May 2022 and that relapse prevention counselling would continue on a fortnightly basis for so long as Ms C continued to work on her goals and until her drug and alcohol treatment was complete
On 10 February 2022, the father signed an affidavit in reply which in part is set out below:-
14. With regard to my drug use, in 2021 I did not take any form of illicit drugs for the first half of the year.
15. Since about July 2021, I have again begun using marijuana on a social basis.
16. I have become anxious about these proceedings and that I am not seeing the children Y and X.
17. I have used marijuana socially at night on two or three nights per week. I have not smoked or taken any form of marijuana on the night before or during any periods that my son B is with me.
18. My proposal to spend time with Y and X, initially supervised and then day-only, I would ensure that I am not affected by any form of drug.
In cross-examination the father was not asked how much marijuana he consumes or how much it costs him, nor what the phrase “socially” means. He did say that he usually consumes marijuana on Tuesdays and Wednesday nights and that he consumes marijuana two to three times per week.
On 10 February 2022, Ms C signed an affidavit in reply and repeated that she was willing to supervise her son’s time with the children. She said that she was aware that her son had a long history of smoking marijuana and that for a period of time in 2021, he had stopped taking any form of illicit drugs. She said that leading up to the trial, the father had been quite anxious about beginning to re-commence spending time with the children. She then said:-
15. I am aware that Mr Daltrey on occasions does smoke marijuana.
16. When Mr Daltrey smokes marijuana, he usually appears more relaxed, and this usually only occurs at night.
In cross-examination, Ms C agreed that she works outside of the home on week days leaving at 4.00am and returning at about 11.30am. She said that she was aware that her son smokes marijuana two to three nights per week but properly agreed that when she is not in the home she cannot say whether he smokes marijuana or not.
On 21 February 2022 the trial commenced and concluded two days later.
Currently, the father cares for B two to three nights per week, from about 2.00pm Friday to either Sunday afternoon or Monday mornings.
X has commenced year 2 at Q School and Y has commenced year 1 at the same school.
The children have telephone calls with the father each Tuesday and Thursday afternoon and see Ms C on the first Friday of each month for two (2) hours.
THE PROPOSALS OF THE PARTIES
Exhibit “F5” records the father’s proposal for interlocutory parenting orders to be made with the following effect:-
(a)Order 5 of the 2018 Orders is suspended;
(b)the father agrees to the passport and overseas holiday orders sought by the mother;
(c)the parties should engage R Contact Service to be the supervisor of the children’s time with him forthwith;
(d)the children should spend supervised time with the father once per month for two hours with the father to pay the costs and the father being at liberty to bring B;
(e)within four (4) months the father is to submit and produce a HFT for illicit drug use;
(f)within four (4) months the father is to obtain a referral to a clinical psychologist;
(g)the proceedings be adjourned for six (6) months.
In addition, exhibit “F5” records by way of notation, the father’s intention to seek final parenting orders for unsupervised time in a graduated regime on the basis that he produces two HFTs that are negative for illicit substances. The regime of time starts off with six months of monthly Saturday visits between 11.00am and 1.00pm and then progresses to fortnightly Saturdays between 10.00am and 5.00pm and that otherwise, the balance of the 2018 Orders be confirmed.
I repeat here that the father has never provided two HFTs showing a negative result for illicit substances. For this reason I am concerned about the practicality of the father’s final orders proposal which in my view runs the risk of the children commencing to spend time with their father in a supervised setting and either, that being the final outcome because he hasn’t provided the requisite test results, or their time suddenly coming to end, causing them confusion and possible grief at the sudden loss of time with the father (if such time was otherwise proceeding in an appropriate manner).
The mother’s proposal changed substantially during the course of the trial so that in closing submissions the Court heard that she now sought:-
(a)the passport and overseas holiday orders set out within her Response filed 2 November 2020;
(b)the dismissal of the father’s application pursuant to Rice & Asplund; or in the alternative to suspend order 5 of the 2018 Orders and in lieu thereof, the children to have professionally supervised time with the father for a period of 12 months, which shall commence once the father produces two consecutive HFTs that are negative for illicit substances (no less than three (3) months apart) and is compliant with a mental health care plan and continues to submit to drug screens throughout the 12 month period.
I queried the mother’s alternate proposal on two fronts, firstly it did not sound like a final order that I could make because the prospect of ongoing paid supervision is unlikely to remain practicable for either the parties or the children in the long-term, and secondly whether the mother would support R Contact Services. Quite properly, counsel for the mother conceded that a supervised time order could only be made on an interlocutory basis. I also heard that the mother supported the engagement of R Contact Services should the Court decide not to dismiss the father’s application.
THE APPLICABLE LAW – Rice and Asplund
The mother submitted that despite the orders and notations made by Judge Terry on 18 January 2021, her application for summary dismissal of the father’s application remained extant. The submission was that because Judge Terry had not made a substantive order dismissing the mother’s application for summary dismissal, but rather a series of procedural orders, the application remained undetermined.
Although often referred to as “the rule” in Rice and Asplund, the Full Court’s decision is rather a legal principle upon which the Court has relied upon when considering applications to re-open a parenting case which has already been determined on a final basis.
Before reflecting on the Orders of 18 January 2021, it is important to remind myself of what Chief Justice Evatt said in Rice and Asplund:-
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation... Change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that... there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.
The Full Court in Marsden & Winch [2009] FamCAFC 152 said -
58.Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
As observed in SPS & PLS [2008] FamCAFC 16, it is open for a court not to determine a Rice and Asplund application as a preliminary matter but if that occurs, the weight is likely to be less and correspondingly, factors that commonly point to what is in a child’s best interests will likely deserve greater attention.[4] Warnick J went on to say that –
43.Moreover, the force of the rule will likely vary according to the nature and degree of change sought to a previous order. At one of the parameters in the instant case, the father sought only a relatively small increase in time with the children. Again, the factors that bore upon whether that increase was or was not in the children’s best interests at least deserved discussion.
48.In my view, reflection on the rule shows that:
(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
(iv) Discussion in terms that the rule may be applied as a “preliminary matter” or the primary application be first heard “on the merits” may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with “on the merits”.
(v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi) “Shorthand” statements of the rule may contribute to its misapplication.
(vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
DISCUSSION – Rice and Asplund
As part of her Orders, it is evident from the notations, that Judge Terry had considered the Rice and Asplund principle - she said as much at Notation B which I have set out earlier in this judgment. Her Honour’s notations are a clear expression of the weighing up process that she embarked upon in doing so.
At Notations A and B she assessed the father’s positive drug test result (which weighed against him being able to successfully resist the summary dismissal of his application because he had self-evidently not “dealt with his drug issues”[5]).
At Notation C she considered the mother’s evidence about her not complying with Orders 12 and 13 of the 2018 Orders (and consequently the risk of future contravention proceedings) as well as the existing telephone communications not “working for the children”. It was apparent from the notation that Her Honour considered these two changed circumstances were significant.
Finally, at Notation D, Judge Terry resolved the parties’ evidence by expressing her view that the parenting orders need to be considered afresh so that orders are made which are workable and do not cause stress and difficulty for the mother, the father and the children.
True it is that there is no order of the Court dismissing the mother’s application pursuant to Rice and Asplund. It is also true that neither party sought to clarify the issue via a “slip rule” application and similarly neither party sought to file an appeal because of either the procedural orders the Court did make or the absence of an order positively addressing the mother’s application.
I am reluctant to step into the “vacuum” created by this impasse and reflecting on such decisions as SPS & PLS, I will treat Her Honour’s decision as being a decision not to decide the mother’s application on a preliminary basis but rather to leave the application open for further consideration at an unspecified date. As it turns out, such consideration did not occur until the trial.
In accordance with SPS & PLS, the mother’s extant Rice and Asplund application requires me to consider the application “on its merits” as a manifestation of the “the best interests principles”.
THE APPLICABLE LAW – Parenting Proceedings
In these proceedings, the parties invite me to make a “parenting order” (s 64B of the Act) which I can, provided I think it is “proper” to do so in light of the objects of the Act and the underpinning principles of those objects (s 60B of the Act). Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and s 60CC (2) and (3) of the Act set out the matters to which I must have regard to in doing so. This consideration of the children’s best interests is also mandated within s 65DAA of the Act.
The legislation makes clear that s 60CC(2)(a) of the Act is not intended to elevate the paramount consideration as to the benefit of a meaningful relationship for the benefit of the parent, but rather for the benefit of the child. For example, see the preamble within s 60B of the Act which specifies that the specified objects of Part VII are to ensure that the best interests of children are met.
In Aldridge & Keaton [2009] FamCAFC 229 (‘Aldridge’) at [25], Brown J concluded that a meaningful relationship or meaningful involvement is one which is important, significant and valuable to the child with the word meaningful being a qualitative adjective and not a strictly quantitative one.
Put another way, s 60CC(2)(a) of the Act does not invite a Court to act on an artificial view that any circumstance which would increase a parent’s involvement with a child must be in that child’s best interests. It may be that to do so would simply increase the child’s potential (if not real) exposure to parental conflict between two people they dearly love and for whom the child would have adverse feelings including sadness, distress or anger by seeing one parent upset, angry or frustrated by actions or decisions taken by the other parent for whom they share similar feelings.
The other paramount consideration (which takes precedence over the benefit to the child arising from a meaningful relationship with parents) is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b) of the Act). The ambit of this paramount consideration is affected by the definitions of “abuse” and “family violence” (ss 4 and 4AB of the Act). There is no formal definition of “neglect” although the term has been considered by the Full Court in Slater v Light [2011] FamCAFC 1 where it was observed at [37] that:-
The term “neglect”, will have a similar meaning to its use in State and Territory child protection legislation. It is intended to be limited to situations where a lack of reasonable care is likely to cause unnecessary suffering or injury to the health of the child.
In protecting children from the harm identified at s 60CC(2)(b) of the Act, the Court has considered whether the child would be placed at “unacceptable risk” which was explored by the High Court in M v M 12 Fam LR 606 (in the context of allegations of sexual abuse). There the High Court said that the task is not to determine the veracity of the allegation in the manner required in the criminal jurisdiction, but rather to treat the best interests of the child as the paramount consideration and in the context of a parenting order, this means that an Order should not be made about the child’s living arrangements that would expose the child to an unacceptable risk of harm.

In Johnson and Page [2007] Fam CA 1235, the Full Court endorsed comments made by the Hon John Fogarty AM as follows:-
68. In his recent paper entitled ‘Unacceptable risk – A return to basics’ the Hon. John Fogarty A.M. set out his summary of the principles emerging from M and M as follows:
1     The decisive issue is and always remains the best interests of that child. All other issues are subservient.
2     The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
3     Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
4     The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
5     The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
6     The onus of proof in reaching that conclusion is the ordinary civil standard.
7     But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
and thereafter expanded some points contained in the summary.
69. Relevantly for the issues raised in this appeal, he noted that rather than referring to “the Briginshaw test” it was now more appropriate to refer to s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”). Section 140 provides as follows:
Section 140
(1)     In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)     Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
A consideration of “unacceptable risk” can apply to other allegations, see for example the decision in Orwell & Watson [2008] FamCAFC 62 where the Court rejected the proposition that the child was at unacceptable risk of sexual abuse in the care of the father but was at unacceptable risk of psychological abuse by the father due to his manipulative and over-bearing behaviour and disrespect for boundaries.
There are many decisions of the Court regarding a parent’s use of marijuana in parenting proceedings[6]. There a number of themes that arise from such use, which were supported by the child expert in both her written and oral evidence including:-
(a)depending on the amount consumed and regularity of consumption, marijuana (like any illicit substance) can adversely affect a parent’s capacity to provide for the needs of a child;
(b)withdrawal from marijuana use can cause adverse behaviours arising from having “cravings”; and
(c)using illicit drugs is a poor reflection on a person’s responsibilities towards parenthood and should not be “condoned” by the Court.
Whenever the Court is asked to make a parenting order (even in circumstances where there is no contest about the allocation of parental responsibility), the Court is required to apply a rebuttable presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility (s 61DA of the Act). Section 61B of the Act defines “parental responsibility” encompassing all duties, powers, responsibilities and authority conferred by law upon parents.
Section 64C of the Act permits a parenting order to be made in favour of a parent or some other person.
Section 65C of the Act prescribes who may apply for a parenting order as including either or both of a child’s parents or “any other person concerned with the care, welfare and development of the child.”
Where certain circumstances are made out, the presumption of equal shared parental responsibility does not apply, including for example instances of child abuse and family violence (s 61DA(2) of the Act). If the court finds that it is not in a child’s best interests for the parents to have equal shared parental responsibility then the presumption can be rebutted (s 61DA(4) of the Act). The presumption does not speak to the periods of time that a child should either live or spend with their parents, however how parental responsibility for a child is allocated by the Court may have a bearing on these issues.
Where an order allocates equal shared parental responsibility to a child’s parents, then the Court is obliged to consider both whether it is advisable and practical for a child to live equally with each of their parents, or alternatively, to live with one parent and spend substantial and significant time with the other parent (s 65DAA of the Act). If parental responsibility for the child is allocated in some other way, for example to someone who is not a “parent”, then how the Court exercises its discretion about a child’s care arrangements is at large, though the exercise of discretion must be in the context of the paramount consideration being the child’s best interests.
Despite the allocation of sole parental responsibility, it is not unusual for the Court to have to make specific orders pursuant to the Australian Passports Act 2005 (Cth).[7]
In Aldridge the Full Court held that while parenthood was a relevant fact in determining the best interests of a child, there was no presumption in favour of a parent, citing at [59], the Full Court decision of Rice v Miller (1993) FLC 92-415 that:-
…the fact of parenthood is to be regarded as an important and significant factor in considering which of the proposals best advances the welfare of the child. We would reiterate, however, that the fact of parenthood does not establish a presumption in favour of the natural parent nor generate a preferential position in favour of that parent from which the Court commences its decision making process. Each case must be determined according to its own facts, the paramount consideration always being the welfare of the child whose custody is in question. (My emphasis)
In Aldridge at [79] the Full Court concluded that:-
In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Pt VII to determine whether making (or not making) a parenting order would be in the child’s best interests.
Having regard to Aldridge at [83], and noting that the father is not the biological father of X, I must firstly determine whether the father is a person concerned with the care, welfare or development of X and secondly, what order should be made in X’s best interests.
Section 65C - Is the father a person concerned with the care, welfare and development of X such that he can make an application for parenting orders?
Both parties submitted that the father is a person concerned with the care, welfare and development of X.
Having regard to their submissions and the evidence, I am satisfied that the father has played a role in X’s life given that he was born whilst the parties were living together and there have been previous parenting orders made which have enabled the father to continue communicating with X on a weekly basis. In the family report, the child expert concludes that the father undoubtedly loves and cares about his children.
On the basis of the above, I am satisfied that for the purposes of s 65C of the Act, the father is a person concerned with the care, welfare or development of X and is able to make an application for a parenting order.
Section 60CC - The primary considerations
Section 60CC (2)(a)
Section 60CC (2)(a) mandates that I consider the benefit of the children having a meaningful relationship with both their parents.
I have already recorded the Mother’s evidence that the biological father of X is not known.
It was uncontroversial that the children enjoy and have benefited from having a meaningful relationship with both parties, the difference being how to best promote those relationships in the future.
By way of example, the mother was recorded by the child expert to acknowledge the importance of the children having a relationship with the father (FR-102). The father gives no evidence about this issue, but as he does not seek to disturb the children’s post-separation living arrangements with the mother, I infer that he says that they have benefitted and will continue to benefit from having a meaningful relationship with her. It was uncontroversial that the children have received photos of the father and that they currently speak to him on Tuesdays and Thursdays of each week.
Given the evidence and the submissions of the parties, I am satisfied that X has a meaningful relationship with the father and the mother and will benefit from a continuation of those relationships.
In relation to Y and the mother, the father’s position is the same as recorded above in relation to X.
In relation to Y and the father, the mother’s position is the same as recorded above in relation to X.
The parties’ positions are supported by what I heard from Mr F during the course of his oral evidence when he said that the father has told the children that they “they are special because they have two dads”.
The father contends that without a change to the 2018 Orders, the mother will not countenance, on any terms, the children spending time with him (supervised or unsupervised) and that her attitude will serve only to diminish the children’s relationship with him (and inferentially their relationship with members of his family). As I understand it, there is consensus between the parties that:-
(a)The mother has informally agreed to facilitate time between the children and Ms C each month for the past two (2) years without significant incident;
(b)The mother has informally agreed to doubling the number of weekly phone calls the children have with the father in accordance with the 2018 Orders;
(c)The mother’s concerns about the children spending time with the father are to a large extent based on his long history of illicit drug use, his inability to consistently engage with mental health treators and the impacts these two factors have on his ability to properly care for the children and regulate his emotions in the event that events “don’t go to plan” when the children are with him;
(d)The father has a “good relationship” with each of the children[8];
Whether that means that I should alter the 2018 Orders and if so, to what degree, will be explored further.
I pause here to record that there is no evidence that the father has informed the mother of significant events post-dating the 2018 Orders including his conviction for a drug-related offence, his attendance at the MERIT program, his good behaviour bond or the 2019 AVO. If she was aware, then perhaps that is why she was reluctant to facilitate any time between him or the children. If she wasn’t aware, but had asked for (and not received a direct response) then again, this may have been a reason for her reluctance.
In the meantime, I am satisfied that despite the inherent limitations within the 2018 Orders, X and Y have a meaningful relationship with the mother and the father. There is no dispute that the children will benefit from a continuation of their relationship with the mother. The benefit the children may derive in the future from the relationship they have with the father is at large.
Section 60CC (2)(b)
Section 60CC (2)(b) mandates that I consider the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The last time that the father was able to have unsupervised care of the children was before the 2018 Orders when, if I accept what the child expert records, the mother ceased time because of concerns she had about the children being at risk of neglect of their physical care[9]. Since then a period of professionally supervised time occurred which concluded on 31 August 2018.
The last time that any allegation of family violence arose was when Ms D was named as the protected person in the 2019 AVO. There was no evidence about whether specific findings were made at the time the 2019 AVO was made or whether, as was the case with the 2017 AVO, the order was made “without admissions” on the part of the father. The evidence is that the father lives in Ms C’s home and there is no evidence of any family violence occurring between them or that the father has re-partnered.
There was no submission made about the children being in need of protection from abuse.
Both parties have agreed to the retention of various safeguards contained within the 2018 Orders which would restrain the children from being exposed to various adverse behaviours in each party’s household. Inferentially they must consider that at least one if not all of the restraints address risk factors they identify within their households.
Given these circumstances, and having regarding to the requisite standard of proof, when I weigh up the nature and degree of the risk of neglect or family violence and having regard to the safeguards mentioned above, I am satisfied that the children are not at unacceptable risk in either household insofar as neglect and family violence are concerned. This is because:-
(a)The children presently spend no time with the father;
(b)The mother agreed with the proposition that over the past 12 months, the phone calls between the father and the children have been occurring “fairly religiously” which would suggest that despite the father’s complaints about the mother’s attitude towards him, and the 2018 Orders only specifying one call per week, the children are speaking with the father twice per week;
(c)For about the last three years, there has been no incidents of family violence involving the children or members of the children’s family.
Child’s best interests - The additional considerations
Section 60CC (3)(a)
Quite properly neither party made submissions about the views of the children given that X is seven (7) years old and Y is aged six (6) years. The children were not interviewed as part of the family report process and in any event, no independent evidence of their views was before the Court.
Section 60CC (3)(b)
I have already addressed (in part) the children’s relationships with their parents.
In his affidavit, Mr F described Y as a beautiful, loving young girl and X as being a very smart boy and kind-hearted. The child expert did not observe the children with the father but reported that he undoubtedly loves and cares about his children.
At its highest, the father’s case was that the children’s relationships with him were at risk of erosion because they were at risk of psychological harm in the mother’s household based on:-
(a)them referring to him as “Mr Daltrey” and Mr F as “Dad”;
(b)the mother’s unnecessary interventions in telephone calls between the children and the father; and
(c)the mother’s general attitude towards the father by either speaking badly of him in the presence of the children and/or refusing to permit him to spend any time with the children (either supervised or not).
There was some controversy between the parties about some of the children’s reactions to what happens during the telephone calls with the father that I will return to, but overall, my view was that the children know and love their father and, as put most frankly by Mr F, they understand the difference between Mr Daltrey and I and they are not confused when they call both of us dad because they think they are special and have two dads. Mr Daltrey is their dad and I am a Step Dad.
It was submitted by the father that I should have regard to the lack of a relationship between the children and B and that without the court’s intervention, this would not be promoted. The father raises a similar concern about the children’s extended family. It was uncontroversial that the children have not met or spoken to B.
I was reminded about the child expert’s response to the contention that the children would be excited at the prospect of meeting B. She agreed, saying that like most children, X and Y would be excited at the prospect. I will return to the issue of whether the court needs to intervene to ensure the promotion of this relationship.
There was no controversy about the children’s ongoing relationship with Ms C which appears to have been supported by the monthly visits she has with the children at the maternal grandparents’ home. Similarly, based on Mr F having lived with the children since mid-2017, there was no controversy about the warm relationship the children appear to have with Mr F.
For the reasons above and noting the identified limitations, I accept that the children have loving relationships with all adult members of each party’s household and no relationship with B.
Section 60CC (3)(c)
I heard no compelling submissions about the opportunities (or lack thereof) for the father to communicate with the children. It was uncontroversial that for over two years the father has been agitating (formally and informally) to spend time with the children, which the mother has been resisting.
Pursuant to the 2018 Orders the mother had sole parental responsibility for the children and the father had little opportunity to participate in those decisions.
The father says that he has been reluctant to exercise his authority (pursuant to the 2018 Orders) to seek out information about the children’s education because of the statements made by the mother. In my assessment, the mother’s evidence corroborated this view, so much so that it was not until final submissions that she withdrew her relief for the discharge of the relevant “authorisation” order contained with the 2018 Orders.
Section 60CC (3)(ca)
The father is not the parent of X.
The father says (and it was uncontested) that he has met his child support obligations for Y.
Post-separation it would appear that for the main, the father has been unemployed and/or on some form of Commonwealth pension and on that basis, the father’s financial support of the children would inevitably be limited.
The mother has re-partnered and both she and Mr F are employed, with the children living with them on a full-time basis.
On the basis of their uncontested evidence, I am satisfied that the mother and father have fulfilled their obligations to maintain the children (to the extent that each of them can).
Section 60CC (3)(d)
The children’s lived experience has not changed significantly since the 2018 Orders albeit they are now both in primary school.
The father submits that there have been significant changes in the children’s circumstances because following the separation of himself and Ms D, B is now spending substantial and significant time with him in an unsupervised setting.
I identified that another change is that despite the 2018 Orders enabling the father to make decisions about the children on a day-to-day basis when in his care and their regular telephone calls with the father, there appears (as at the start of the trial) no expectation that the father will have face-to-face time with them any time soon.
Having regard to those circumstances, the father seeks the children’s current circumstances change insofar as he asks the court to make interlocutory orders that would immediately introduce them to supervised time with him and that he be required to submit to drug testing for illicit substances and to obtaining a referral to a mental health treator. Of note, the supervised time is not co-dependent on the results of any drug tests or the mental health referral.

In cross-examination the father disputed that he was yelling or ranting.
The child expert was cross-examined about the impacts of the father’s current alleged drug use both on his parenting and his existing regime of prescribed medications. In the context of the father’s historical use of marijuana, the child expert expressed scepticism about his evidence that he only consumes marijuana two to three nights a week. In the absence of knowing how much marijuana the father consumes, her evidence about its effect on his capacity to care for the children was limited. She frankly said that his marijuana use may not affect his capacity but given her reservations about his evidence as to the regularity of his use and the lack of evidence about the amount consumed (which could have been illuminated by perhaps the provision of a HFT), her view has limited weight. Superficially, (based on the limited evidence) the child expert could see no adverse impacts from the father ingesting both marijuana and his prescribed medications.
The father deposed an affidavit in January 2022 which stated that he was now drug-free. Less than a month later he contradicted himself (without explanation) and said that he had been smoking marijuana since July 2021. He says that he had resumed consuming marijuana to alleviate his stress and anxiety about these proceedings and the lack of time he spends with the children. This evidence corroborates the father’s historical reasons for using marijuana where for example, the MERIT report opined about his lack of contact with the children being a cause for past use and Dr M describing it as his crutch saying that his exposure to psychological support had seen a reduction in his consumption.
The father’s written evidence was unspecific about how much marijuana he consumes over what time period and at what cost. This last issue was particularly important because the father also cites that he cannot afford HFTs. Instead, the court had conflicting evidence about the length of the father’s abstinence from drugs in early 2021 and his drug-free status from July 2021 onwards and, in tandem, no independent evidence about the type and/or amount of any illicit substances currently affecting him. In addition, the conflicting evidence of Ms C and Ms D (as referred to earlier) about his abstinence and/or use of illicit substances, gave the impression of the father’s consumption being minimised.
For the reasons above, I am not willing to accept the father’s evidence that his drug use is confined to just two to three nights per week or may be limited to marijuana. This is because he appears to have a somewhat cavalier attitude towards even casual consumption of substances such as methamphetamine and amphetamine[10]and despite having the opportunity to do so, since July 2021, he has not provided the results from any sort of drug test which would establish the veracity of what he tells the Court now.
Surely if the father was serious about prosecuting his case, he would have found the funds to pay for a HFT rather than use his limited resources for his personal benefit on an illicit pastime?
The child expert considered the father’s mental health as a significant issue given his multiple diagnoses including an intellectual delay. The child expert frankly observed that she could not know the level of the father’s intellectual functioning or to what degree it was impacting on his ability to participate in the interviews but that he did seem to understand questions, responding negatively if he did not like a question or the information being sought[11].
The child expert noted that Dr L had seen the father for six sessions over 22 months. The last recorded session was in December 2020, some seven months before the family report interviews. In the context of Dr M’s observations of the father’s emotional dysregulation when referring him to Dr L, the positive report from Dr L, the lack of any record of professional support for the father since December 2020 and his behaviours over two interviews with her, I accept the child expert’s view that –
It would seem when the father is supported by a person with professional skills, he can manage himself. However, it would appear the father would have benefitted from ongoing counselling because he was unable to regulate himself during the family interview and his conduct during the family interview raised serious doubts as to his capacity to provide consistent child-focused care to his children unsupervised.[12]
I acknowledge that the father was not observed with the children and so the limited evidence that could have been obtained about his capacity to regulate his emotions and otherwise meet the needs of the children was unavailable to the court.
What I have though, is his reported behaviours by the child expert including towards his mother, someone who undoubtedly was trying to help him through the interview process. He demonstrated no capacity to regulate his emotions or manage his frustrations to either of them and this behaviour was on a background of being “drug-free” for about three months and having access to formal and informal professional supports via Dr M and Dr L. His answer was simply to end the conversation by hanging up. Obviously this is not an easily available option if he becomes agitated or frustrated and the children are in his physical presence.
Clearly, the prospect of the father spending time with the children remains in issue because I have serious doubts about how he would react if the children said something to him that he disagreed with, such as positive statements about either the mother or Mr F, both of whom he evidently does not like or trust.
The father’s capacity to manage himself with B is different because he and Ms D appear to have mutual respect for each other and she is not seen by the father as posing a risk. In essence, she is complying with his demands and not imposing any strong views upon him about how he should be caring for their son.
The child expert expressed in cross-examination that the father’s evidence gave her pause for thought about making a mandatory notification of him posing a risk of harm to B but that she did not do so. Ms D said in her affidavit that the father had a cannabis issue which I believe he has overcome.
In light of the clear conflict between the father’s evidence about his drug use and Ms D’s above statement, Ms D was cross-examined and said she had no concerns about either the father testing positive for a variety of illicit substances in 2019 nor that he had resumed taking marijuana. She appeared to accept the truth of what the father had told her about him ensuring that he is not under the influence of marijuana when caring for B.
I was left with the impression that Ms D was obtaining a mutual benefit from B spending time with the father which may be distorting her responsibility to act protectively about their son. With that concern in mind I intend to direct that an authorised officer of the Court provide a copy of the family report and this judgment to the Department of Communities and Justice.
The father has access to a professional NDIS co-ordinator of supports and yet, months on from an approved NDIS Plan, he remains unconnected to any psychological support. Ms C says that she has been encouraging the father to continue to see Dr L and she is currently arranging a referral for the father to see another psychologist recommended by Dr L. No evidence was given of the name of this professional and no timeframe offered.
Exhibit “F5” stated that the father be given four months to obtain a referral, albeit his counsel submitted that it was likely the father could secure this more quickly. The father has not had formal professional psychological support for over 12 months and despite seeing Dr M every month, he still does not have a referral for psychological support. I am left wondering about how serious the father takes the management of his mental health and the evident emotional dysregulation it can cause when he is not properly supported.
The father has been on notice about at least the issue of his drug use since the making of the 2018 Orders. The father has been on notice about the child expert’s concerns regarding his mental health treatment since the middle of last year. The independent evidence able to be obtained by the father to address these issues is either historical or non-existent.
The Court finds that the father’s behaviour shows no self-reflection, something that the MERIT report said the father had in 2019 and from which he benefited greatly. The father has the ongoing support of Dr M and it remains unknown why there was no evidence of him seeking a referral for drug rehabilitation or drug and alcohol counselling following his recent re-lapse or a referral for further psychological support after the retirement of Dr L.
Taking the above circumstances into consideration, I am satisfied that the father has not only a limited capacity to provide for the emotional and psychological needs of the children but that he poses an unacceptable risk of psychological harm to them whilst ever those issues remain unaddressed.
The father invited the court to make interlocutory (as opposed to final) orders to address these twin concerns related to his drug use and mental health. I make no criticism of the father for this because it probably arose from a line of questioning I put to the child expert about the benefits of the Court possibly adjourning the proceedings so that further evidence could be secured and the children being subsequently observed with their father to consider the nature of their relationships and to re-assess his parental capacity and risk in light of whatever new information came to hand.
When I asked those questions of the child expert I qualified them by saying that of course, if that pathway was adopted it would leave the family in further limbo and exposed to more litigation. I will return to this topic further on.
There was criticism of the mother for not having the capacity to support the children’s relationship with the father, including because of her obstructive behaviour during telephone calls or to authorise the children’s school to provide information to the father and/or her unwillingness to have the children call the father “Dad” rather than “Mr Daltrey”.
She was cross-examined on all three issues and I accept her evidence that in summary, she had done what she thought was appropriate to quarantine the children from the parental conflict. There was no compelling evidence that the children’s emotional attachment to the father had been damaged either by the manner in which the telephone calls were being monitored or by them referring to either the father and/or Mr F as “Dad”. They clearly know who their father is and that he loves them. The mother should have complied with the June 2018 orders and provided authorisation to Q Public School. This must be accepted by the mother given that her final proposal resiled from her previous position of having the relevant authorisation order discharged.
As I indicated to the parties during closing submissions, the evidence does not demonstrate to me that the mother has done anything to undermine the children’s relationship with the father or Ms C. Nor does the evidence before me cause me to find that she has deliberately hindered the children from having a relationship with B or the father’s extended family. If the father wants the children to have a relationship with B and his extended family then it will be his actions, following the making of these orders that will count.
I am satisfied that the mother will not unnecessarily interfere and indeed it may be that she is able to communicate directly with Ms D or Ms C (for example) to arrange a mutually convenient occasion for the children to meet B which may not include the father being present.
In circumstances where the evidence before the Court justifies the mother’s historical and current concerns about the father’s mental health status, his drug-free status, and the possible consequences those circumstances have on his behaviours, I do not intend to make any adverse finding about the mother’s capacity to foster a meaningful relationship and/or to support the children’s needs. This finding is also supported by the views of the child expert who interviewed the mother.
Section 60CC (3)(g)
This factor was not identified by any of the parties as being significant.
Section 60CC (3)(h)
This factor was not identified by any of the parties as being significant.
Section 60CC (3)(i)
To a degree, the mother and father’s attitude towards the responsibilities of parenthood have already been discussed.
Given that ultimately the father acceded to the mother’s request for orders to be made about passports and overseas travel, I will not make further comment about the circumstances surrounding why he didn’t do so much earlier than the trial.
The Court should be cautious in making any statement that would be seen as condoning illegal activities such as the consumption of illicit substances. The child expert gave oral evidence about the poor role model the father presents to the children, not only from his continued use of illicit drugs but his reliance on such use to alleviate mental health symptoms (such as anxiety) for which there are many other medical or therapeutic alternatives.
I am satisfied that the father’s attitude towards the responsibilities of parenthood are less than satisfactory.
The mother gave evidence about her attempts to dissuade the children from calling Mr F, “Dad”. She gave evidence about Ms C not responding to the children when they call her “nan”. Despite concerns raised by the father and Ms C, I was not satisfied that the children’s relationships with the father or the paternal grandmother have been diminished because they both continue to have regular communication and/or time with them. In addition, there was no expert evidence on this point, something that could have been cured if the father had been able to restrain himself and complete a full interview with the child expert.
On that basis I make no adverse finding regarding the mother’s attitude towards her role as a parent.
Section 60CC (3) (j), (k)
I have already discussed this issue. There are no current family violence orders. The father has not re-partnered and lives with his mother. The mother and Mr F have lived together for over four years. Neither party sought the making of any restraints reflective of concerns they may hold about each other’s households. For all these reasons I don’t intend to explore this consideration further.
Section 60CC 3 (l)
I have had regard to the submissions of the parties and to the oral and written views and recommendations of the child expert.
This is the second time the children have become the subject of proceedings. With the first tranche resolving in June 2018 and the second tranche commencing just over two years later in August 2020.
Relevantly to this consideration, in his affidavit, Mr F said:-
30.I can tell that all of this court and issues with Mr Daltrey is starting to affect Ms Haddow as she shuts down and is getting upset and stressed but she never shows it in front of the children.
By way of some explanation for the resumption of his drug use, in his affidavit in reply the father said that he had become anxious about these proceedings.
It is uncontroversial that litigation is an emotionally draining exercise that causes parties anxiety, stress and worry. None of these feelings help them be the best parents they can be for their children and so even if the children are blissfully unaware of the litigation, they can indirectly feel the effects of it through the reactions and behaviours of those they love.
I pause here to reflect on part of the discussion Judge Terry had with the father some three and a half years ago:-
HER HONOUR ….If they get a little bit of time or if the matter drags on through the court system there’s no motivation for them to do anything about their problems. So, Mr Daltrey, you didn’t have a father in your life. You don’t want that to happen to your children. Step up and things will be different.
MR DALTREY Yes
The father has had almost 18 months to demonstrate to the Court that he has improved his circumstances. The medical and therapeutic evidence before the court was over 12 months old. The lay and/or oral evidence of the father and his witnesses was inconsistent insofar as his drug use was concerned and not compelling insofar as how he had or intended to address his mental health issues.
Although the court recognises the importance of the children having a meaningful relationship with their father, why should the mother (and indirectly the children) have to endure these proceedings further? Even the father’s evidence suggests that in part, he has returned to illicit substance use as a result of the ongoing litigation.
I accept that both parties have made cross-allegations against each other about alleged non-compliance with the 2018 Orders. For this reason any orders I make should be framed with a view to avoiding contravention proceedings. In doing so I am mindful of the notations made by the Court on 18 January 2021.
There is a risk that fresh proceedings will be instituted because of a party’s unhappiness with how the other party is implementing the orders, but in my view, there is less chance for that to occur if the mother has the discretion to monitor and end telephone calls between the father and the children that are causing them distress and the mother has the discretion to implement time between the children and the father.
I am confident that just like she has in the past, the mother will act protectively but yet continue to promote the father’s relationship with the children as best she can. The parties and the Court trusted her to do so in 2018 and I have heard nothing to dissuade me otherwise.
I will however provide some signposts for the parties to avoid further litigation between them.
These are, firstly that the Court would expect that before the children spend any time with the father he should provide to the mother:-
(a)the results of two HFTs showing that over a period of six (6) consecutive months he has been free of illicit substances;
(b)a mental health assessment that identifies the father’s current diagnoses, his mental health care plan, his full compliance with the mental health care plan until its completion, his prognosis and an assessment that he is capable of appropriately regulating his emotions at times of frustration and/or stress; and
(c)a report from a qualified person attesting to the father having successfully engaged in trauma-focused counselling addressing (at least) issues of parenting and co-morbid drug use including information about the outcomes achieved from his therapy and future recommendations (if any).
The above “signpost” reflects the written and oral evidence of the child expert.
Secondly, within seven (7) days of the mother receiving the above documents and satisfying herself that it is appropriate to do so, the parties should engage R Contact Services (or another service if R Contact Centre is no longer available) to commence supervised time between the children and the father at least once a month.
Finally, if the children spend supervised time with the father on at least six (6) occasions, then the mother should (at her sole discretion) implement a graduated regime of unsupervised time between the father and the children starting at say two hours per fortnight and building up to day-time only visits.
Rather than the court ordering the father to take steps to address his deficits, my view is that the Court should step away and see if the father is serious enough about improving himself without its overwatch. This view is informed by the father’s referral to the MERIT program. Despite the criminal system being involved through his referral, I have no particularised evidence about what he learnt from his engagement nor of the success or otherwise of any strategies he may have implemented as a result. Instead, shortly afterwards, the father resumed the consumption of illicit substances, then stopped and then started this drug use again and is currently managing his various diagnoses without formal psychological support.

Rather than rely on the Court to mandate his next steps, it is up to the father to voluntarily address the concerns this Court (and the mother) have because in doing so, it is more likely that he will be open and accepting of any changes to his circumstances that such support may bring, which will promote longevity in the outcomes.
Section 60CC (3)(m)
This factor was not identified by any of the parties as being significant.
There are various provisions within section 60CC which do not apply to the father because he is not the parent of X. One option is to go through those circumstances, as they apply to the father and X under a consideration of s60CC (3)(m) of the Act. No one addressed me on that particular issue.
Rather than pointing that out at each stage and then having to address some of those considerations here, given that the children share the same household and treat the mother and the father as their parents, I have referred to both the mother and father in my above considerations irrespective of their biological connection to the children.
CONCLUSION
Having regard to the best interests principles reflected within the legislative pathway set out earlier, in my view the mother’s application to have the proceedings dismissed pursuant to the principle in Rice and Asplund must fail.
There are a number of reasons for this conclusion, including that the outcomes to be achieved now, at the end of the trial are very different to what could have been achieved at a preliminary stage. The parties have endured over a year of litigation and the children may have been exposed to their parents’ anxiety or worry about the proceedings.
Secondly, there have been significant changes given the children still have not had contact with the father other than via telephone and if the current regime continues, in my view it will lead to confusion and distress for them.
Thirdly, the father is having unsupervised time with B which (on its face) would suggest that (at least) an enquiry has to be made about his capacity to parent X and Y.
For the reasons set out above, I will dismiss the mother’s application for summary dismissal of the father’s application.
Pursuant to s 61DA of the Act when asked to make a parenting order, I am required to apply a presumption that it is in a child’s best interests that the parents have equal shared parental responsibility, absent a finding that one of the parents has engaged in abuse of the child, family violence or it is not otherwise in a child’s best interests. The father is not the parent of X.
The mother and father were united in submitting that the mother be afforded sole parental responsibility in the same terms as the existing 2018 Orders. The child expert agrees.
In my view, the mother has and remains capable of exercising this role. The mistrust between the mother and the father is too pronounced and the father’s inability to regulate his emotions at times of stress and frustration warrant that they cannot equally share in the exercise of parental responsibility. Accordingly I find that it is not in the best interests of the children for an order to be made allocating equal shared parental responsibility (s 61DA (4) of the Act).
One party should have sole parental responsibility for the children, which should be the party with whom the children live. I am satisfied that it is in the best interests of the children that the presumption be rebutted and that the mother be allocated sole responsibility for the children.
Given an order for equal shared parental responsibility cannot be made, s 65DAA of the Act is not enlivened. In any event, none of the parties advocated for an “equal time” residential order.
There was no contest that the children should live with the mother and I have reached the same conclusion because:
(a)the mother is their primary carer and they have lived exclusively lived in her home since the 2018 Orders were made;
(b)there were no risks identified in the mother’s household;
(c)despite the parents’ mistrust of each other, the children continue to have a meaningful relationship with the father, facilitated by the mother complying with existing orders for them to have regular telephone communication with him and supported by each party seeking an appropriate restraint to prohibit them from exposure to their parents’ negative attitudes about each other.
Insofar as the children’s future arrangements with the father, neither party presented a persuasive proposal, with the Court being concerned that each proposal was likely to either lead to more conflict or an extension of the litigation.
The family report included the following recommendations:-
(a)That the children should not spend time with the father until he has submitted to two HFTs which produce negative results for illicit substances and addressed his mental health issues appropriately;
(b)That if the father met the above criteria then the children should spend limited and supervised time with him facilitated by the mother or her delegate with no additional time beyond this regime;
(c)That telephone communication be scheduled and time-limited; and
(d)That the father undertake trauma-focused counselling to address issues of parenting and co-morbid drug use.
During closing submissions, I said to the father that he needed to look at himself in the mirror or in other words, to develop some self-reflection. When the 2018 orders were made, he and the Court agreed that the mother was best placed to use her discretion in the time the children should spend with him.
At that time, the Court urged him to “step up” and things would be different so that the children would have a father in their lives. He could not have been under any doubt at the time those orders were made that the mother had concerns about his drug use. With that knowledge the evidence before me clearly demonstrates that:-
(a)Before the end of 2019 the father was convicted of growing cannabis and was referred to a compulsory MERIT program;
(b)Less than eight (8) weeks after successfully completing the MERIT program, the father tested positive for illicit substances including not only marijuana (a drug his mother observes him to have had a longstanding relationship with) but also to amphetamine and methamphetamine;
(c)The father submitted to a HFT on 28 July 2021, that showed his abstinence from illicit substances for about three months;
(d)The father said in his trial affidavit that he was drug free but less than a month later, contradicted his evidence by saying in his affidavit in reply that he had resumed consuming marijuana in July 2021, which must have been within days of his hair strand sample being taken on 28 July 2021;
(e)Despite the production of the family report, there is no evidence from him nor any current independent documentary evidence before the Court to satisfy it that the father has taken any steps to appropriately address his mental health issues or to try and recognise how the use of illicit drugs can adversely affect his parenting capacity.
On balance, the children should spend time with the father at the mother’s discretion noting my “signpost” expectations about what that may look like. Ultimately it is a matter for the mother, who knows the children’s needs best.
Both parties and the child expert supported the continuation of regular telephone calls between the father and the children and I will adopt their proposals but include a time-limit as suggested by the child expert so that everyone has a clear expectation. For the same reason as to why I am giving the mother sole discretion on the time the children spend with the father, I am going to remove the majority of the restraints set out with Order 17 of the 2018 Orders and simply rely on the mother to intervene if the children become distressed by whatever the father says to them.
To ensure that these orders remain practicable into the future and to remove any air of artificiality about the nature of the children’s relationship with the father in the long-term (in the event that he does not spend face-to-face time with them and/or whilst such time may be suspended), the pattern of telephone calls will reduce after twelve (12) months to coincide with special occasions only (at which times it would ordinarily be expected that there would be an exchange of gifts).
In my view, as the children mature, if the only contact they have with the father is by telephone because he has failed to address his own deficits, then there will come a point in time where the regime takes on an unhelpful air of artificiality for all concerned. If the calls have been going well, the children will increasingly be wondering why they can’t see their dad, placing pressure on both parents to come up with an appropriate child-focused answer. This will then heighten the risk of the children being exposed to parental conflict and cause them unnecessary distress. Put simply, the time for the father to “step up” is now.
The child expert recommended the father take steps to address his mental health issues and his attitude towards illicit drug use and parenting. To help the father in his journey ahead, I am giving him permission to provide a copy of this judgment to his treating general physician, any other treating health professionals and his NDIS co-ordinator of supports. Because of the father’s dyslexia, I am also giving him permission to allow his mother to read the judgment (but not retain a copy). In allowing this limited publication of an otherwise confidential document, I am hopeful it will allow the father to better process my decision and its longstanding consequences.
In support of the living arrangements for the children, the parents are restrained from denigrating each other or permitting the children to remain in the presence of someone doing so. The lack of trust between the parties and the inconsistencies in the father’s evidence has caused me to restrain both parties from releasing or showing any Court documents to any other person including the children unless otherwise provided for in these orders.
In the event that the children ultimately spend unsupervised time with the father, and to ensure that all their medical needs are properly addressed I will order that the mother and father keep the other informed of any significant trauma, illness or injury suffered by the children that requires medical treatment or hospitalisation or other treatment that occurs when the children are in their respective care.
To support the father being able to remain informed about the children’s educational progress the mother is to provide these Orders to the children’s educational institutions so that the father has access to the children’s school reports (as applicable), the children’s school photographs and any notices sent out. To be clear though, the order does not enable him to attend upon the school at times when the children are likely to be present, nor for him to participate in any educational or extra-curricular activities to which parents are usually invited (including for example, parent/teacher nights). Such matters shall remain at the sole discretion of the mother to decide whether he should be able to attend or not.
The mother has given evidence of her fear and worry about what the father may do if he is aware of where she lives, particularly given his inability to appropriately regulate his emotions. As such, the parties are required to keep one another informed of their current contact telephone number and email address only and it is why any communication will be by way of telephone (unless the mother permits the communication to occur via another means).
If the children accidentally inform the father of where they live or if he secures that information himself, then to ensure the mother’s parenting capacity is not impinged by feelings of worry or anxiety, and to give longevity to the practicability of these orders, a restraint will be imposed upon him from coming within 100 metres of the residence where the mother and children live. The parties will see that I have discharged the restraint upon the father from asking questions which had the potential to identify their home as well as other specified restraints.
As I indicated earlier, the interruptions caused to the calls because of fairly inane questions would likely lead to more conflict between the parents and confusion for the children. The above restraint in tandem with the mother’s sole discretion to end calls that are causing distress to the children are what I see as an alternative to the proposal both parties sought because it removes any potential exposure of the children to their parents’ conflict.
Orders are made to give structure to the manner in which the mother and the father are to communicate with each other.
Over 200 years ago, and in the final stages of The Old Curiosity Shop, Charles Dickens reminded us to “to keep the child in view”. This sage advice remains as true today as it did back then and is reflective in the legislative pathway that I have followed.
I have to keep X and Y in view and not the father. By that I mean that I should not rely on the prospect of them seeing the father to ensure the father addresses his deficits. It is up to the father to improve himself to the satisfaction of the mother. It may be his last chance to keep a relationship with his children and I am confident that armed with this judgment and the ongoing support of Ms C and his treating professionals, the father will “step up” and accept the advice and the professional support that it appears he has the opportunity to access.
For the reasons above, I am satisfied that the Orders I have made are in the bests interests of the children.

I certify that the preceding two hundred and ninety-eight (298) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney.
Associate:
Dated: 9 March 2022

[1] [1978] FamCA 84
[2] Referred to as “FR” from hereon
[3] Exhibit “B”
[4] See SPS & PLS at [42]
[5] Notation A of the Orders made by the Court on 29 June 2018
[6] See for example Horan & Beckett [2010] FamCAFC 200 and Milano & Milano [2016] FamCA 271.
[7] See for example Nathanson & Younge [2021] FedCFamC2F 146 and Guerra & Geurra [2021] FedCFamC1F 73
[8] Exhibit FXX at item 1, page 5
[9] See FR-36
[10] See FR-68
[11] Ibid at 70
[12] Ibid at 71

File number(s):	NCC 1061 of 2017
Judgment of:	JUDGE KEARNEY
Date of judgment:	9 March 2022
Catchwords:	FAMILY LAW - parenting – two children aged 6 & 7 – where the father sought defined supervised “time with” orders some 26 months after final parenting orders made - sole parental responsibility to mother – time with father to be at mother’s sole discretion due to ongoing mental health and illicit drug use issues by the father – twice weekly telephone communication
Legislation:	Family Law Act 1975
Cases cited:	Aldridge & Keaton [2009] FamCAFC 229 Johnson and Page [2007] Fam CA 1235 Marsden & Winch [2009] FamCAFC 152 Orwell & Watson [2008] FamCAFC 62 Rice and Asplund [1978] FamCA 84 Rice v Miller (1993) FLC 92-415 Slater v Light [2011] FamCAFC 1 SPS & PLS [2008] FamCAFC 16
Division:	Division 2 Family Law
Number of paragraphs:	298
Date of last submission/s:	16 February 2022
Date of hearing:	14-16 February 2022
Place:	Newcastle
Counsel for the Applicant:	Mr Gallimore
Solicitor for the Applicant:	Gianacas Argiris McDonald
Counsel for the Respondent:	Mr Antill
Solicitor for the Respondent:	Toronto Legal

NCC 1061 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR DALTREY Applicant
AND:	MS HADDOW Respondent

ORDER MADE BY:	JUDGE KEARNEY
DATE OF ORDER:	9 MARCH 2022