Fleming & Burnett - [2022] FedCFamC2F 276

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Fleming & Burnett [2022] FedCFamC2F 276

File number(s): ADC 1787 of 2021

Judgment of: MCCLELLAND DCJ

Date of judgment: 15 March 2022

Catchwords: FAMILY LAW – PARENTING – Review of a registrar’s decision – Where the child resides with the mother and spends time with the father – Where the father retained the child beyond the agreed period – Changed circumstances – Absence of evidence regarding the extent to which the father suffers with alcohol and substance abuse challenges – Registrar’s orders in the best interests of the child – Application for review dismissed – Father to spend supervised time with the child – Injunction against the father removing the child from his school or his mother’s care – Written submissions as to costs.

Legislation:
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2A), 61DA, 65DAA, 69ZW

Federal Circuit and Family Court of Australia Act 2021 s 256(1)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 14.05, 14.07

Evidence Act 1995 (Cth) s 140(2)

Cases cited:
A v A (1998) FLC 92–800

B & B (1993) FLC 92–357

Banks & Banks (2015) FLC 93–637; [2015] FamCAFC 36

Bant & Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222

Blinko & Blinko [2015] FamCAFC 146

Cowling v Cowling (1998) FLC 92–801; [1998] FamCA 19

Deiter & Deiter [2011] FamCAFC 82

Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5

Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Enmore & Smoothe [2014] FamCAFC 131

Feiteiro & Feiteiro [2019] FamCA 647

Fogarty, John, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249

Henley & Henley [2019] FamCA 101

Chisholm, Richard, “Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions” Children’s Court Conference, Parramatta, 1 September 2010 15

Johnson & Page (2007) FLC 93–344; [2007] FamCA 1235

Mand M (1998) 166 CLR 69; [1988] HCA 68

Marvel& Marvel (No 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520

N v S (1996) FLC 92–655

Napier & Hepburn (2006) FLC 93–303; [2006] FamCA 1316

Nikolakis & Nikolakis [2010] FamCAFC 52

Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935

R & C [1993] FamCA 62

Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84

Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100

Sigley v Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22

SS & AH [2010] FamCAFC 13

Stott & Holgar& Anor [2017] FamCAFC 152

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Zawadzki & Zawadzki (No 2) [2020] FamCAFC 131

Division: Division 2 Family Law

Number of paragraphs: 135

Date of hearing: 11 February 2022

Place: Sydney (via videolink)

Counsel for the Applicant: The Applicant appeared in person

Solicitor for the Respondent: Mr Anderson of Adelaide Family Law

Counsel for the Independent Children's Lawyer: Ms Boyle

Solicitor for the Independent Children's Lawyer: Legal Services Commission
ORDERS

ADC 1787 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR FLEMING

Applicant

AND:
MS BURNETT

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

15 MARCH 2022

THE COURT ORDERS THAT:
1.The father’s Application for Review filed on 18 January 2022 and the father’s Application in a Proceeding filed on 14 January 2022 are dismissed.
2.Save for Order 17, the orders made by Senior Judicial Registrar Heuer on 3 December 2021 remain in force.
3.Order 17 of the orders made by Senior Judicial Registrar Heuer on 3 December 2021 is suspended and, in its place, it is ordered that:
The child is to spend supervised time with the father as agreed by the parties or, in the absence of agreement, at a professionally supervised contact centre located in the vicinity of the mother’s residence as selected by the mother and at such times as agreed by the parties or, in the absence of agreement, for a period of two hours per week on such day of the week as determined by the mother.

4.The father is to meet the cost of the supervision.
5.The father be restrained by injunction from removing the child from the mother’s care or from the child’s school.
6.In the event that the mother seeks an order for costs, she is to file and serve written submissions of no more than three pages within 14 days of the date of these orders.
7.In the event of the mother filing such written submissions as referred to in Order (6) above, the father has leave to file any submissions in reply, of no more than three pages, within 14 days of receipt of the mother’s submissions.

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 Fleming & Burnett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION

This matter concerns an application for review of orders made by a senior judicial registrar on 3 December 2021, which amended parenting arrangements that had previously been agreed to by the parties consequent upon a decision of the Magistrates Court of Western Australia on 29 January 2021. Those orders were informed by the decision of the magistrate. The consent orders made on 11 February 2021 permitted the mother to relocate with the child, X, born in 2014 (“the child”), from City C in Western Australia to Adelaide in South Australia. The orders also provided for the possibility of the father relocating to Adelaide, in which event the parties agreed that the child would spend equal week about time with each parent. In March 2021, the father did, in fact, relocate from City C to Adelaide however, in the following month, the mother relocated back to City C.
In the decision of the senior judicial registrar dated 3 December 2021, it was determined that the mother’s relocation back to City C constituted a change in circumstances of such significance that it was appropriate to revisit and amend the previous parenting orders. The father contends that the orders of the senior judicial registrar should be set aside and replaced with the 11 February 2021 orders, which were made consequent to the decision of the Magistrates Court of Western Australia on 29 January 2021.
Comparatively, the mother contends that the father’s conduct in retaining the child in the period between 27 December 2021 and 10 February 2022, after she had brought the child from City C to spend some time with the father in Adelaide, is a further change in the parties’ circumstances such that the child should spend no time with the father or, alternatively, the child’s time with the father should be supervised.
I have determined that the father’s conduct in retaining the child beyond the agreed time that the child was due to spend with him in the holiday period was grossly irresponsible and contrary to the child’s fundamental right to spend time with both parents, particularly in circumstances where it was not disputed that the mother had been the child’s primary carer throughout his life and the child’s sole carer in the period from April 2021 until 27 December 2021.
The father’s conduct in that respect, together with, firstly, his reluctance to acknowledge the fact that he had so retained the child for that period and, secondly, to seek to justify his conduct in doing so, has satisfied me that there is an unacceptable risk that, if orders are made for the child to spend unsupervised time with the father, he will again retain the child and not return the child to the care of his mother. In those circumstances, I have determined that, until further order, the child should spend only supervised time with the father.
DOCUMENTS RELIED UPON
The applicant father relied upon the following documents:
·     Case Outline of father filed 29 October 2021
·     Affidavits of the mother filed on 14 May 2021;
·     Affidavits of the father filed on 29 October 2021;
·     Freedom of Information determination and documents (marked Exhibit B); and
·     Cancellation of restraining order dated 18 January 2022 (marked Exhibit C).
During the proceedings, the father sought to rely upon a number of affidavits that were originally before the Magistrates Court of Western Australia and had not been filed in these proceedings. Consequently, I made the following determination on the day of hearing:
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provide that a party to interim proceedings is to rely on one affidavit of themselves and one affidavit from an additional witness in circumstances where that evidence can’t be given by the party themselves.
In this matter, the father sought to rely on a number of documents that I earlier outlined in the proceedings. Not withstanding the relevant rule to which I have referred, I have given leave for the father to seek to rely on contents of other affidavits only to the extent to which he takes me to a specific paragraph or paragraphs at such affidavit.
I have also given the father leave to seek to tender in the proceedings such other document that he desires subject to of course the responses of the other parties in respect to the admissibility and/or relevance of that other documentation.
The mother relied upon the following documents:
·Affidavits of the mother filed on 14 May 2021, 23 July 2021 and 1 February 2022; and
·Affidavit of Mr D filed on 27 October 2021.
The Independent Children’s Lawyer (“ICL”) relied upon the child inclusive conference memorandum dated 21 October 2021 (marked Exhibit E).
ORDERS SUBJECT TO THE REVIEW APPLICATION
The orders that are the subject of this review were made by a senior judicial registrar on 3 December 2021, and are as follows:
Property Matters
1.That order 2 of the orders dated 5 May 2021 in related proceedings … be suspended.
2.That within (7) days the parties are to jointly engage Company E at the joint and equal expense of the parties to attend at the shipping containers, itemise and value all the items therein.
3.That within (7) days after receiving the valuation report from Company E, the applicant is to provide a written list of items to the respondent’s solicitors of the items he wishes to retain.
4.That within (7) days thereafter, the respondent is to provide a response in respect of the applicant’s proposal.
5.That if an agreement is reached in respect of the division of the furniture and effects:
5.1.Forthwith, the solicitors for the Respondent shall do all things necessary to cause the payment of the outstanding account in full satisfaction with Company F from the sale proceeds of G Street held in the Trust Account of Adelaide Family Law and any further accounts that may arise;
5.2.Within (14) days the respondent (or her agents) are to collect all the items it is agreed that she retain noting that any costs associated with the transport of the items to City C that cannot be met by her employer are to be paid from the sale proceeds held in the Trust Account of Adelaide Family Law; and thereafter
5.3.The applicant be at liberty to collect the balance of the items.
6.In the event that no agreement (or a partial agreement is reached) in respect of the division of the furniture and effects:
6.1.Any items that are not agreed, the remainder be divided as follows:
6.1.1.The respondent nominate 50% of the remaining items (rounded down if an odd number of items) she wishes to retain; and
6.1.2.The applicant retain the balance.
6.2.Forthwith, the solicitors for the Respondent shall do all things necessary to cause the payment of the outstanding account in full satisfaction with Company F from the sale proceeds of G Street held in the Trust Account of Adelaide Family Law and any further accounts that may arise;
6.3.Within 14 days the respondent (or her agents) are to collect all the items it is agreed that she will retain noting that any costs associated with the transport of the items to City C that cannot be met by her employer are to be paid from the sale proceeds held in the Trust Account of Adelaide Family Law; and
6.4. Thereafter, the applicant be at liberty to collect the balance of the items.
7.That the applicant be restrained and an injunction is granted restraining him from attending to collect his items at Company F until such time as the respondent has collected her items pursuant to orders 5.2 and/or 6.3 of these orders.
8.That a copy of these orders be provided to the solicitors for Company F as soon as possible.
9.That the respondent’s costs of her property applications be reserved.
Parenting Matters
10.That pursuant to s.68L of the Family Law Act 1975, an Independent Children’s Lawyer be appointed to represent the interests of the child X born in 2014 (the child) and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to the Legal Services Commission of South Australia at [email protected] within seven (7) days of today’s date.
11.That the parties forthwith provide to the Independent Children’s Lawyer the names and addresses of any medical practitioners, counsellors or other professional people or agencies they have attended within the last twelve (12) months together with the names and addresses of all medical practitioners, schools, day care centres and/or agencies whom the children may have seen or attended in the last twelve (12) months and provide to the Independent Children’s Lawyer authorities for the release of information concerning themselves and the children from such person or agency.
12.The Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
13.That on an interim basis the mother be permitted to relocate the child’s place of residence to City C.
14.That order 3 of the orders made 11 February 2021 be discharged and the following order be made in lieu:
14.1.That the mother facilitate one phone call/facetime between the child and father every third day between 6.00pm until 7.00pm AWST.
15.That order 6 of the orders made 11 February 2021 be suspended.
16.That the child live with the mother.
17.That the child spend time with the father during the first half of all Western Australian mid-term school holidays and for ten days in the Christmas School holidays, PROVIDED THAT such time shall take place:
17.1.In City C in the December school holidays and holidays at the end of term 2; and
17.2.South Australia for the holidays at the end of terms 1 and 3, with the father to meet the child’s costs of travel to South Australia.
18.That pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and the child attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 31 May 2022 and that the family report address:
17.1 any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
17.2 the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
17.3 the impact upon the child and upon the child’s relationship with the mother if the Court made orders as sought by the father;
17.4 the impact upon the child and upon the child’s relationship with the father if the Court made orders as sought by the mother;
17.5 the impact of the parties’ competing applications for the permanent relocation of the child; and
17.6 any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child.
19.That not later than 4:00pm on 10 December 2021 the parties must provide their contact telephone numbers and email addresses to [email protected].
20.That each party will do all things necessary to ensure the child attend upon the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
21.That the parties and the child shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
22.That the Family Consultant shall be at liberty to inspect any material filed by the parties, together with any s.69ZW material or information from the Court’s co-located South Australia Police and Department for Child Protection officials.
23.That the mother and the child are to attend South Australia for the purposes of conducting the interviews for the Family Assessment Report, such interviews to coincide if possible with Western Australian term 1 school holidays (being between Saturday 9 April 2022 to Monday 25 April 2022).
24.That each party be restrained and an injunction is hereby granted restraining each party from:
23.1 Using or consuming any illegal substance for a period of 48 hours prior to and during any time the child is in their care or allowing any other person to use or be under the influence of any illegal substances in the child’s presence;
23.2 Consuming alcohol to excess for a period of 24 hours prior to and during any time the child is in their care;
23.3 Allowing the child to be exposed to any illegal drug use or related paraphernalia at any time;
23.4 Discussing these proceedings with the child or in their presence or permitting any other person to do so.
25.That there be liberty to the Independent Children’s Lawyer to relist at short notice.
26.That all interim applications be otherwise dismissed.
27.That the matter be adjourned for mention on 15 June 2022 at 9.30am.
(As per the original)
THE FATHER’S APPLICATION FOR REVIEW
By way of an application for review filed in Division 2 of the Federal Circuit and Family Court of Australia on 18 January 2022, the father sought a review of all the orders made by the senior judicial registrar. However, in that application for review, the father did not set out the orders that he sought in place of those made by the senior judicial registrar.
Nevertheless, by way of an application in a proceeding filed on 14 January 2022, in addition to seeking a stay of the orders made by the senior judicial registrar, the father sought an order to “uphold and enforce Final Orders on file …, WA Family Court Dated 11 February 2021”.
Those orders are marked Exhibit F in these proceedings and, by way of summary, provided for the parties to have equal shared parental responsibility, for the mother to relocate to South Australia with the child and, if the father relocated to Adelaide, for the child to live week about with both parents. Alternatively, if the father did not relocate to South Australia, the orders provided for the child to live with the mother and spend time with the father during school holidays.

By way of an application in a proceeding filed on 1 February 2022, the mother seeks the following orders:
1.That this matter be listed on an urgent basis before Senior Registrar Heuer or a Judicial Officer.
2.That within (24) hours the Respondent Father do cause to purchase a return flight for the child X from Adelaide to Perth (unaccompanied) at his sole expense noting that the flight shall not be any later than (48) hours from the date of the Orders and the Father shall provide evidence of same to the Mother's solicitor.
3.That the Respondent Father do all things necessary to ensure that the child boards the flight from Adelaide to Perth.
4.That the Respondent Father be restrained, and an injunction be granted restraining him from travelling with the child on the abovementioned flight.
5. That paragraph 17 of the Orders dated 3 December 2021 be suspended.
6.That the Respondent Father otherwise be restrained, and an injunction be granted restraining him from removing the child from the Mother's care or from the child's school.
7.In the event the Father fails to comply with paragraph 2 and 3 of the Orders herein, The Marshal of the Court, all officers of the Australian Federal Police and all state and territory police officers are requested to find and recover the child X born in 2014 ("X") and deliver the child to the Mother and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the child may be found.
8.The Father do pay the Mother's costs of and incidental to this Application on an indemnity basis.
(Emphasis in original)
In circumstances where, on the day prior to the hearing, the mother had secured the return of the child to her care, the mother indicated that she pressed only for proposed orders 5, 6 and 8.
BACKGROUND
The relevant background facts up until January 2021 are helpfully summarised in the decision of the Magistrates Court of Western Australia dated 29 January 2021, Fleming and Burnett. The decision was not the subject of appeal and summarises the background facts at [26]–[39] as follows:
The father is 39 years old and is a supervisor. He is in full-time employment. The mother is 36 years old and is a health care worker. She has indicated she is likely to be in full-time employment in the near future.
X was born in 2014. He is 6 years old. The mother has another child, H, born in 2010. H’s father lives in South Australia and H spends time with him.
The parties commenced a relationship in or around 2012. The parties disagree as to when they commenced a de facto relationship - the father said 201 7 and the mother 2013. They finally separated in October 2020.
There have been several periods of prior separations between the parties. They lived separately between September and November 2018 (2 to 3 months) and between November 2019 and September 2020 (9 to 10 months). They reconciled only for a period of about 5 to 6 weeks from September 2020 to October 2020.
Until 2018 the parties lived in South Australia. They both have family there, including X's maternal and paternal grandparents and aunt. When living in SA the father worked FIFO and would fly in and out of Adelaide, I believe, into Western Australia. During the time he was working away the mother would care for X.
The parties decided to move to Western Australia, to where the father worked in City C. The father first moved in January 2018 and the mother had followed by mid-2018.
The mother had issues with H’s father regarding her proposed relocation to City C in 2018. There were proceedings in the Federal Circuit Court between them. Those proceedings culminated in consent orders which permitted the relocation and for H to fly back regularly to South Australia to see his father. The frequency of these visits reduced as the mother said that H was not coping well with them. H has been diagnosed as being on the autism spectrum and often displays challenging behaviour. He not faring well with the number of visits between Western Australia and South Australia. The mother had accessed considerable support for H in City C and now in doing so in Adelaide.
During the parties' separation, they generally shared the care of X. For most of the period from November 2019 to September 2020 X was living week about between his parents.
The parties entered into what they described as a parenting plan in January 2020 after the father had commenced prior proceedings in the Family Court of Western Australia seeking an injunction against the mother removing X from City C. Part of that plan was for the parents to agree on any relocation prior to any move.
In September 2018, the father was the subject of a 72 hour police order and was removed from the parties' residence.
The father has been the subject of an interim family violence order taken out by the mother in December 2019. This was dismissed by consent or withdrawn in January 2020.
In October 2020, during the parties attempted reconciliation. They travelled together with the children to City J, 800 km from City C, on a holiday. The parties argued and the father flew back to City C. He told the mother she should not move back into his home. The mother alleges the father abandoned her and the children and she sought assistance from the police. This is disputed by the father who said he wanted to take X back with him but the mother refused and wanted to stay on for a while.
After these events in City J, the mother arranged for X and H to be sent to Darwin and she eventually followed them there. She made these arrangements without notice to the father.
Orders were made in November 2020 for the father to have significant telephone/video communication with X, and in December consent orders were made for X to spend 4 weeks with the father from 27 December 2020, just after Christmas. Contrary to that order, the father has not returned X to the mother. He has [not] done so as he is awaiting the outcome of this hearing, amongst other reasons.
Drawing upon the summary of relevant facts as outlined by the senior judicial registrar, it does not appear to be in controversy that the following has occurred in the period subsequent to mid-January 2021.
On 15 January 2021, the mother filed an amended response in in the Magistrates Court of Western Australia which she also sought an adjustment of the parties’ property. In that amended response, the mother sought final orders that she be permitted to relocate the child’s place of residence to South Australia, an order for equal shared parental responsibility and for the child to live with each parent on a week about basis.
On 27 January 2021, the Magistrates Court of Western Australia ordered that “by no later than 31 January 2021, the Applicant [father] cause the child X, be returned into the care of the Respondent [mother]”. The proceeding was otherwise adjourned until 4 February 2021. I will subsequently set out in greater detail the relevant findings of the magistrate.
On 8 February 2021, final parenting orders were made by consent, but as informed by the decision of the magistrate, as follows:
Parental Responsibility
1.The parties have equal shared parental responsibility for X (the 'Child') born in 2014.
2.Unless contrary to the child's immediate welfare, the parties shall, before making any major long term decision about the child:
a)   Consult with each other in writing setting out any major long term decision making proposal and the reasons for that proposal;
b)   Give proper consideration to the proposal and respond in writing in a timely manner, making a genuine effort to resolve any issues and;
c)   In the event any dispute is unable to be resolved, the parent making the proposal shall consult with a family dispute resolution practitioner and invite the other parent to attend in an effort to resolve the dispute.
LIVING & COMMUNICATION ARRANGEMENTS
3.That the parent caring for the child facilitate one phone call or Facetime call at least once every two days at 4pm AWST or such other time as agreed by the parties in writing.
4.That the mother immediately provide the residential address of the child and details as to the school he has been enrolled in.
5.In the event, the Father remains in City C:
(A) The child live with the Mother.
(B) The child spend time with Father during all mid term school holidays as agreed between the parties in writing and in default of agreement, the first day after the end of the school term until two days before the commencement of the following school term. The costs of travel are to be covered equally by the parties;
(C) For one half of the long school summer holidays, with the Father spending the first half of the long holidays with the child in odd numbered years and the second half in even years;
(D) The child spend time with the paternal family every second weekend, from the end of school Friday to Sunday 4pm. The father to provide the mother with seven days' notice of paternal family member to care for X and provide relevant phone numbers and address;
(E) In the event, the Father attends South Australia, the parties use their best endeavours to reach agreement regarding additional time with X on these occasions.
6.In the event the Father relocates to South Australia:
(A) The child live with the parents on an equal basis.
(B) The child live with the parents on a week about basis should the Father's work roster permit.
(C) In the event the father is working a FIFO role, the child live with the Father during all of his rostered time off provided this is no more than 50% of the year.
(D) If Father's day falls on a weekend when the child is to be spending time with the mother, the Father spend time with the child as agreed and In default of agreement from 5:00 p.m. on the Saturday before Father's day until 5:00p.m. Father's day;
(E) On the child's and the Father's birthday for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non school day.
(F) At Christmas:
(ii) In even years, from 5:00 p.m. on Christmas eve until 12:00 noon Christmas day; and
(iii) In odd years, from 12:00 noon Christmas day until 5:00 p.m. Boxing day.
(G) Such further and other times as may be agreed between the parties.
7.In the event the Father relocates to South Australia, the father's time with the child be suspended:
(a) If Mother's day falls on a weekend when the child is to be spending time with the father, from 5:00 p.m. on the Saturday before Mother's day until 5:00 p.m. Mother's day;
(b) On the child's and the mother's birthday, if the children are to be spending time with the father on those occasions, for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non school day.
EDUCATION & EXTRA CURRICULAR ACTIVITIES
8.That both parents be permitted to liaise directly with the child's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the child's progress.
9.That each party is at liberty to attend at the said child's school for the purposes of any function or activity normally attended by parents.
10.That the parent with whom the child are [sic] living at the time will ensure the child attend school and any extra curricular activities and social activities that occur when the child are [sic] in their care.
MEDICAL CONDITION AND EMERGENCY
11.The parties keep each other informed in relation to the child's treating medical practitioners and contact details, with the parties being at liberty to contact the medical practitioners directly.
12.The parties authorise the child's medical practitioners to provide duplicate copies of all medical records and information upon the other parent's request.
13.In the event the child requires any medical attention, at a hospital, emergency department, general practitioner or the like, the parent whose care the child is in at the time shall take the child to the appropriate care facility and shall provide the other parent with all relevant information such as diagnosis, medical certificate/discharge summary and proposed medical treatment, by SMS text message as soon as practicable.
14.The parties be permitted to be present together in an emergency department, hospital or medical practitioner's rooms or the like, in the case of an emergency.
15.The parties shall agree on any significant medical decisions to be made in respect of the child, with the parties to keep each another fully and properly informed of significant medical decisions required to be made in respect of the child, and each parent be at liberty to communicate directly with any health care professional involved in the care of the child.
(As per the original)
At the time those consent orders were made, the mother was residing in Adelaide and the father was in City C.
On 22 February 2021, the father relocated to Adelaide.
On 12 April 2021, the mother relocated with the child to City C.
On 15 April 2021, the father commenced these proceedings when he filed an application in the then Federal Circuit Court of Australia (as it was then known) seeking, amongst other proposed orders, an order that the child be returned to Adelaide.
On 21 April 2021, the parties attended a conciliation conference in respect to the financial aspect of their dispute.
On 17 May 2021, the father’s application filed in the Federal Circuit Court seeking a recovery order was listed for a first court event.
On 29 April 2021, the mother filed an application in a case in the Western Australian proceedings seeking to injunct the father from dealing with certain items contained in a shipping container.
On 5 May 2021, the Magistrates Court of Western Australia made interim injunctions in respect to the contents of the shipping container and adjourned the proceedings until 3 June 2021.
On 2 May 2021, the mother succeeded in obtaining an interim intervention order in City C naming herself as the protected person and the father as the defendant.
On 14 May 2021, the mother filed a response to the father’s application, which had been filed in the Federal Circuit Court, seeking to suspend the parenting orders made on 11 February 2021.
On 27 May 2021, the mother filed an amended application in a case in the Western Australian proceedings seeking an order for those proceedings to be transferred to the Federal Circuit Court of Australia and consolidated with the proceedings commenced by the father. On 3 June 2021, an order to that effect was made by the Magistrates Court of Western Australia.
Also on 27 May 2021, the father filed a notice of discontinuance of his application that he had filed in the Federal Circuit Court on 15 April 2021.
On 16 June 2021, the proceedings were listed before the senior judicial registrar whose orders are the subject of this application for review. There was no appearance by the father on that day and the proceedings were adjourned until 27 July 2021.
On 27 July 2021, orders were made for the father to file an affidavit within 14 days and for the parties to attend a child dispute conference, which was to occur on 21 October 2021. The matter was also listed for an interim hearing on 28 October 2021. The financial aspect of the proceedings was referred to a conciliation conference, which was to take place on 20 September 2021.
On 17 September 2021, the mother filed an application in a case in respect of financial matters.
On 11 October 2021, the father filed his affidavit which, pursuant to the orders made on 27 July 2021, he had been required to file by 10 August 2021.
A memorandum from a family consultant was issued on 21 October 2021. That memorandum indicates that the father attended only for a portion of the interviews which the family consultant undertook on that day, leaving in circumstances where he was unhappy with how the interview was being conducted.
Also on 21 October 2021, the father’s then solicitor filed a notice of withdrawal from acting on behalf of the father.
Subsequently, on 22 October 2021, the father filed affidavits by the paternal grandmother and his niece, together with an address for service.
On 27 October 2021, the mother filed material annexing documents produced under s 69ZW of the Family Law Act 1975 (Cth) (“the Act”) in respect to matters relating to the welfare of the child.
On 28 October 2021, the senior judicial registrar received oral submissions from the parties.
On 3 December 2021, the senior judicial registrar made orders which are the subject of the father’s review application. Those orders were supported by a judgment explaining the senior judicial registrar’s reasoning.
While the orders provided for the father to spend time with the child in City C, as result of various circumstances, the mother offered to travel from City C to Adelaide so that the child could spend time with his father in Adelaide. The mother’s affidavit filed on 1 February 2022 refers to various exchanges between the parties regarding arrangements for the child to spend time with his father. The mother was not challenged on her evidence that the agreement finally reached allowed for the child to spend time with his father in Adelaide from 27 December 2021 until 6 January 2022, at which time he would be placed on a flight to return to the mother, who would wait to collect the child from the plane in Perth.
On 12 January 2022, to the mother’s solicitors wrote to the father as follows:
I refer to previous correspondence in this matter.
I am instructed by my client that you did not facilitate the return of X on 6 January 2022 as agreed between you and my client. We seek that X be returned immediately to my client's care.
If you do not confirm that you will book a return flight for X by 4:00pm on Friday 14 January 2022, then my client will instruct me to file an urgent application seeking Orders for the recovery of X without further notice to you.
On Friday, 14 January 2022, the father sent an email to the mother’s solicitors which read as follows:
Please find attached by way of service;
- Application to stay interim orders made 3 December 2021 & supporting affidavit
- Application for Review of Decision 3 December 2021 (please refer to portal)
Please note, we have been unable to reach your client since X arrived including unsuccessful welfare checks.
H and his Dad confirmed they corresponded through text and with your letter it's a relief for both family's [sic] knowing she is OK.
(As per the original)
The child remained in the father’s care from 27 December 2021 until 10 February 2022.
On 10 February 2022, after travelling to Adelaide, the mother attended the school where the child had been enrolled by the father and collected the child.
CONSIDERATION
Section 256(1) of the Federal Circuit and Family Court of Australia Act 2021 (“the FCFCOA Act”) provides for judicial supervision of orders made by registrars under delegated authority by enabling a party to seek the review of a power exercised by a delegate of Division 2 of the Court, namely, a registrar. Therefore, the decision of a senior judicial registrar is a reviewable decision pursuant to s 256(1) of the FCFCOA Act.
Rule 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Family Law Rules 2021”) sets out when a party may apply for a review as follows:
14.05 Application for review of order or decision
(1)A party may apply for a review of an exercise of a power referred to in the table in clause 2 of Schedule 4 by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made.
(2)A party may apply for a review of any other exercise of a power under these Rules by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made.
…

Further, r 14.07 of the Family Law Rules 2021 provides:
14.07 Procedure for review
(1)A court must hear an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar as an original hearing.
Note: In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
(2)      The court may receive as evidence:
(a)       any affidavit or exhibit tendered in the first hearing; or
(b)       any further affidavit or exhibit; or
(c)       the transcript (if any) of the first hearing; or
(d)if a transcript is not available—an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
…
The effect of these rules is that the review of a registrar’s determination is an original hearing, in the sense that error does not need to be established: see Feiteiro & Feiteiro [2019] FamCA 647 at [17] referring to Henley & Henley [2019] FamCA 101 at [7]. Thus, the review is taken to mean a re-examination of the matter afresh: see Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [43].
As Hallen J observed in Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935 at [39]:
(e)Although on review, the Court should consider the matter afresh, it does not follow that the reasoning of the registrar should be ignored, or that variations in the material presented to her, or him, and the evidence that was adduced are irrelevant. The starting point is, therefore, the decision that is to be reviewed. The court does not merely cast that decision to one side and proceed as if it had never been made. The court will have regard to the basis on which the decision was made and the material placed before the court itself on the application for review: Wily re LED (South Coast) Pty Ltd [2009] NSWSC 946 at [24] – [26].
Having regard to the basis upon which the decision of the senior judicial registrar was made, it is my view that the senior judicial registrar appropriately gave consideration to the decision of the Magistrates Court of Western Australia and relevant unchallenged findings. In that respect, in Zawadzki & Zawadzki (No 2) [2020] FamCAFC 131, the Full Court said, at [27]:
Issue estoppel has no role to play in parenting proceedings, as is explained in Elmi & Munro [2019] FamCAFC 138; (2019) FLC 93-912 at [27]–[36]. Nonetheless, that does not necessarily give free rein for every earlier finding to be revisited at any subsequent hearing. Section 69ZX(3)(b) of the Act permits the Court, to “adopt any recommendation, finding, decision, or judgment of any court” in child related proceedings. This obviously permitted her Honour to rely on the findings in the 2014 reasons for judgment.
Relevant findings of the Magistrates Court of Western Australia include the following, which were identified by the magistrate as noncontroversial considerations at [42]–[53]:
X has a close and loving relationship with each parent. Again, the parties' proposals reflect the fact of X's close relationship with each parent.
I find historically X has spent more time with the mother than the father. Until 2018, the father worked FIFO and his usual roster was eight days on and six days off. During his eight days on the mother would care for X and when the father returned from his shift he would take over X's care but the mother would still be a presence. Further the father moved to City C in January 2018 whilst the mother remained in Adelaide until around May 2018.
X has a close relationship with his sibling, H. On the mother's proposals he would be able to spend time with his brother more readily than he would on the father's proposals. He would go to school with H. X has lived with H for all of his life. The Family Consultant commented on the importance of a sibling relationship by saying this:
... a further concerning issue is the possible separation of X and H. From the parties' narratives X and H have grown up together and have shared many life events. I am of the view the sibling relationship is a most long lasting relationship of an individual and therefore holds high importance in a person's life ...
X appears to also have a good relationship with the father 's family in Adelaide. The mother's evidence shows this involvement.
Both parents have taken all opportunities to be with X and to be part of his life. The father is involved in extracurricular activities with X and the mother has looked after X's needs. Each described the other quite favourably as a parent to the Family Consultant. The father said the mother was a good mother and had the best intentions at heart. The mother said the father was not a bad parent and is a playful dad, is jovial and fun. Both criticised the others ability to be structured in their parenting.
X has been appropriately supported financially by each parent.
If X was to live in Adelaide and his father lived in City C or if X lived in City C and his mother lived in Adelaide there would be significant practical difficulties in the parents spending time with X, including two flights each way and considerable expense.
Both parents have proposed regular time with the other parent during holiday times. Clearly that type of time spent with a child is not the same as regular time spent when living in close proximity. However, I find the relationship between each parent and X would survive and continue despite long gaps between spending time as X has such a close bond with each parent.
The parents challenge each other's capacity to provide for all of X's needs. Again, on both parties proposals X would spend equal time with each parent. The weight given to any concern raised about the general capacity to provide for X's needs must be tempered by the knowledge of those proposals and the fact the child has been left for long periods in each parent's care in the past.
X is a happy child. His school report suggests he is respectful, motivated and energetic and has good social skills - he has made friends and has a kind nature. His parents are to be commended for these traits of Xs which reflect their nurturing of him.
The mother has indicated X may have autism and has been referred for assessment. The father doubts this but no diagnosis has currently been given.
The mother says X is of Aboriginal descent, one of the K people from South Australia. The parenting orders the parties propose I find would not impact on his right to enjoy that culture.
Additionally, at [12], the learned magistrate found that the mother has been “the person who has carried out the main caregiver role for X for the majority of his life, particularly his early years”.
From [55] to [66], the learned magistrate set out his findings in respect to what he described as “the more controversial considerations” as follows:
The father has been the subject of family violence orders. He was issued with a 72 hour police order in September 2018 following a violent outburst. The father acknowledges this occurred but has no recollection of the incident.
A report was obtained from the Department of Communities in relation to any history they may have had with the parties. The report is dated 30 November 2020 and indicates the following in relation to this incident:
in September 2018 the Department investigated emotional abuse – FDV after concerns were reported by Western Australian police that the mother, Ms Burnett was trying to leave the father, Mr Fleming however he was intoxicated and refusing to let her leave. Police attended the home and found Ms Burnett, X and another child cowering and crying in the bedroom. Mr Fleming was heavily intoxicated with bloody knuckles and there were several holes in the wall of the hallway in the home. Ms Burnett reported Mr Fleming had been drinking continuously for three days and that he had driven his car heavily intoxicated with X in it. Ms Burnett stated that she and Mr Fleming had almost separated previously because of Mr Fleming's drinking. The Department completed the investigation which included liaison with police and other involved services, sighting of the home environment, and discussion with Mr Fleming. The Depa1iment did not substantiate emotional harm and the case was closed with no further action.
In 2019 a police order was issued against the father. The mother obtained an interim family violence restraining order against him after, she says, the father acted aggressively towards her and his behaviour escalated. The mother withdrew the application and the order was discharged in January 2020.
The mother says the father has had alcohol abuse issues for many years and becomes aggressive and abusive when he is drunk. She also says he abuses substances from time to time, including H’s ADHD medication. ·
The mother also alleges the father has a gambling problem.
The mother told the Family Consultant she had suffered bruises from the father. Further, the father has quite recently acted violently and aggressively towards his mother's partner.
In response, the father says he has taken steps to address his alcohol abuse and has been sober for a year, corroborated by friends who have sworn affidavits in support of his case. He denies the other allegations.
The report from the Department of Communities also indicated that on 20 October 2020 the Women's Domestic Violence Helpline received a telephone contact from the mother seeking support, with the mother stating the father had left her, X, and H stranded in City J and that the father had stated she was not welcome at their home.
I find on these facts there has been family violence perpetrated by the father in the past and, in particular, I refer to the description given by the WA Police to the Department of the incident in 2018, and the existence of a past family violence restraining order and a 72 hour police order. I find that X has observed some of the father1s violent behaviours. The father's behaviour towards the mother is likely to have left lingering fears in the mother's attitudes toward the father. This history of family violence displayed by the father favours X living with the mother so as not to be exposed to this behaviour.
I accept the family violence has not been directed towards X but there is a risk if the father does not continue to control his alcohol consumption, X may be exposed to this behaviour in the future.
There exists a family violence restraining order against the mother in relation to members of the family of H’s father. I do not have any detail in relation to those orders.
Otherwise, both parties raise the risk of harm to X by being exposed to each party's mental health issues and the behaviours that result from those issues. The mother admits she was diagnosed as having high functioning autism and ADHD and the father admits to suffering from anxiety and depression. The evidence is so conflictual around these points I cannot reach any conclusion about the effect of the parties ' mental health on their ability to care for X.
Having regard to those considerations, the learned magistrate found that:
Both parents have a meaningful relationship with [the child] and [the child] has a close relationship with them both. Both are generally capable and loving parents. Both parents can provide appropriate accommodation and appropriate supervision and can generally provide for X’s needs.
That conclusion, the magistrate noted, would have supported an order for “equal time with each parent” however, the magistrate found that such an order was not practical in circumstances where the mother proposed to relocate to Adelaide.
The magistrate stated that, while he considered the issue to be a fine call “on balance”, he favoured the mother’s proposal which he considered would enable the child to “be able to maintain a meaningful relationship with the father, and … continue his relationship with his brother H day-to-day.” The magistrate further found that, on the basis of the mother’s proposals, “there is no likelihood of X being exposed to family violence, nor abuse of alcohol.”
As noted, the magistrate ordered that the father return the child to the care of his mother with a view to the mother relocating, at that stage, to Adelaide.
Consistent with authority to which I have referred, while this review application is conducted as a rehearing, that does not mean that the reasoning of the senior judicial registrar should be ignored.
At [36] of her decision, the senior judicial registrar found that the mother’s relocation from Adelaide to City C with the child constituted “a material or significant change which warrants the court giving consideration as to whether the parenting order should be varied to address as a paramount concern the best interests of X”. Her decision in that respect was, in my view, consistent with the authority of Rice and Asplund (1979) FLC 90-725, to which reference had earlier been made by the senior judicial registrar. Considering the matter afresh, as I am required to do, I am satisfied that there was such a material and significant change that justified revisiting the consent orders entered into by the parties in February 2021. Further, I am satisfied that the father’s conduct in retaining the child in his care in the period between 27 December 2021 and 10 February 2022 constitutes a further change in circumstances of such significance that it justifies revisiting all previous parenting orders.
After summarising the parties’ respective contentions, the senior judicial registrar concluded at [58]:
On balance, given it has been seven months since the mother moved and her evidence is [the child] is established at school with supports in City C, I do not propose to order the mother to return [the child] to Adelaide on an interim basis, as I am concerned that the risk of further disruption to [the child] on an interim basis is not in his best interests.
RELEVANT PRINCIPLES
DETERMINING THE BEST INTERESTS OF THE CHILDREN
The law – concepts and principles
Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act in turn sets out the objects and principles of Part VII. These are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
However, the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or family violence.
Further, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
·the benefit to the child of having a meaningful relationship with both of the child’s parents; and
·the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: ss 60CC(2)(b) of the Act.
Meaningful relationship
Section 60CC(2)(a) of the Act requires me to consider the “the benefit of the child having a meaningful relationship” with each of the parties. On the other hand, I must consider the issue of the risk associated with the child possibly being subject to physical or psychological harm, neglect or abuse in the care of either of the parties.
In Sigley v Evor (2011) 44 Fam LR 439 at [132], the Full Court, quoting Brown J in Mazorski & Albright (2007) 37 Fam LR 518, confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child”.
Protection from harm
In Stott & Holgar & Anor [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, the Court must give consideration to the facts of the case to decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm.
Despite the Court’s limited ability to make findings in respect of controversial facts in interim proceedings, the Court is not relieved of that responsibility.
Additional considerations
Section 60CC(3) of the Act sets out additional considerations in determining what is in the child’s best interests. To assist analysis, those considerations can conveniently be grouped under the following headings:
(a)Issues relating to the children – their views, level of maturity, culture and relationships:
·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
(b)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
·Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
·Sub-section (3)(i) – the attitude towards the child and parental responsibilities, of each of the child’s parents.
(c)Issues of family violence:
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and, if applicable, taking into account a number of stated matters.
(d)Effect of change:
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
(e)Practical difficulty of implementation:
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(f)Avoiding further proceedings:
·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
(g)Other relevant matters:
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.

In Banks & Banks (2015) FLC 93–637 at [48]–[50], the Full Court stated, that, in the context of interim proceedings the court should adopt a practical approach which was described in the following terms;
48.It should also be said that in parenting proceedings as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim proceedings should be confined to those issues which, in the best interests of the children, require determination prior to a proper determination at trial…
49.… there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
50.When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
For reasons which I explain, I am satisfied that there is an unacceptable risk that, if the child is returned to the unsupervised care of the father, he will be retained by the father and not be able to return to the mother. It can reasonably be inferred that this would be highly distressing and potentially cause psychological harm to the child, which would not be in the child’s best interests. It would also dislocate the child’s relationship with his mother and, through her, his connection to his Aboriginal culture. Further, it would also dislocate the child’s relationship with his brother.
Section 60CC(3) considerations
Before addressing the issue of unacceptable risk, I will, however, to the extent that it is reasonably possible in the context of these interim proceedings, outline the major issues that the Court will be required to determine at final hearing in respect to the considerations set out in s 60CC(3) of the Act.
In terms of issues relating to the child, there is no evidence before the Court as to the wishes of the child although, given his age, this would not be a major consideration.
In circumstances where there was no challenge to the findings of the learned magistrate, I am satisfied that the mother has been the child’s primary carer and certainly, aside from the period that he had been retained by the father between 27 December 2021 and 10 February 2022, the child has been in the exclusive care of his mother in the period between April 2021 and December 2021.
During that period, the child has also lived with his elder brother H on a daily basis. Together with his mother and his father, the relationship with his brother is clearly one of the most significant relationships that the child has in his life.
I am satisfied that the child has a close relationship with both his mother and his father and also, it appears, members of his extended paternal and maternal families, although the closeness of that relationship would inevitably have been impacted by the fact that the child has been living in City C since April 2021, away from those family members who live in Adelaide.
Section 60CC(3)(h) requires the Court to consider issues pertaining to the culture of the child. In circumstances where the child is Aboriginal, this will be a factor to be considered at final hearing. The Court would be concerned that, in the event of the child being retained by the father, it would hold the prospect of breaking the child’s connection with his Aboriginal culture that he experiences through and with his mother. This is, however, a secondary consideration in the context of the very real concerns regarding the emotional and psychological impact upon the child if the father unilaterally retained him in his care.
In terms of issues relating to the parents, having regard to the unchallenged findings of the magistrate, I am satisfied that each parent has taken the opportunity to: participate in making decisions about major long-term issues in relation to the child, spend time and communicate with the child.
Similarly, having regard to those unchallenged findings, I am satisfied that each parent has fulfilled their obligation to maintain the child.
In terms of parenting capacity, I note that each party makes allegations against the other that they respectively suffer from various mental health challenges. In that respect, in the child inclusive conference memorandum dated 21 October 2021 under the subheading “Mental health”, the family consultant stated:
25.The mother reports that she has been diagnosed with high functioning Autism and ADD, and takes daily medication for ADHD with these conditions not impacting on either her parenting or work commitments.
26.The father denied having been diagnosed with Borderline Personality Disorder and Depression, as claimed by the mother. However, he said he had been diagnosed with “severe anxiety” for which he saw a “psychiatrist” in WA. The father said that he had received telephone counselling since being in Adelaide from “a mental health professional”. The father said that his mental instability in WA was due to his high pressured work, and was exacerbated by the mother’s repeated infidelity. [The mother denied having ever been unfaithful during the relationship with the father and that the father ‘gas-lighted’ the mother with such accusations in order to rationalise/justifyy [sic] his excess alcohol use and his violence.
(As per the original)
The mother also contends that the father experiences challenges with substance abuse. The father acknowledges taking illicit substances in his twenties, but denies doing so since the child was born. It is not possible to make a determination in respect to that issue in the absence of further evidence. There does, however, appear to be some substance in the concerns of the mother that the father has abused alcohol. Most relevantly, the father was involved in quite a serious motorcycle accident in March 2021 and, even in the context of these interim proceedings, it appears that alcohol was a factor.
In terms of the issue of parental responsibility, the Court is concerned that there have been occasions where each parent has ignored and/or failed to comply with relevant Court orders. The extent to which the mother has relocated her residence is also a potential concern that will inevitably be more closely examined at final hearing. That consideration will occur in the context of the Court also giving further consideration to the mother’s allegations regarding the impact of family violence, including coercive and controlling conduct, on the part of the father. In those circumstances, it is not possible in these interim proceedings to make a final determination in respect to that issue.
What is clear, however, is the grossly irresponsible conduct on the part of the father in retaining the child in his care beyond the agreed date that he would be returned to the care of his mother. This is in the context of there being existing proceedings before the Court concerning the appropriate location where the child should live. I will expand upon this concern in addressing the issue of risk.
As noted in the child inclusive conference memorandum dated 21 October 2021, the mother makes serious allegations that the father has perpetrated acts of physical violence against her and that he has engaged in coercive and controlling conduct. Again, it is not possible in the context of these interim proceedings to make positive findings in respect to the mother’s allegations to the standard required by s 140 (2) of the Evidence Act 1995 (Cth) (“Evidence Act”). Nevertheless, those allegations cannot be ignored in the assessment of risk, which will subsequently be discussed in greater detail.
A significant factor in the decision of the senior judicial registrar was the potential effect of change. This was in circumstances where the child had been living with his mother and his brother in City C from April 2021. I am satisfied, even in these interim proceedings that requiring the child to return to live in Adelaide would represent a further significant change, particularly in circumstances where, ultimately, the issue of the location where the child should live is a matter that requires determination at final hearing. In other words, the Court is reluctant to make orders in these interim proceedings that would result in the child once again changing locations in circumstances where that is a matter that will clearly require close consideration at final hearing.
These are interim proceedings and, unfortunately, given the history of litigation between these parties, it can be anticipated that a final hearing will be required.
In terms of s 60CC(3)(m), it is relevant that, in retaining the child from December 2021 to February 2022, the father acted in a manner contrary to the child’s right to be cared for by his mother and spend time on a regular basis with his mother, as provided for in s 60B(2)(a) and (b) of the Act.
PRIMARY CONSIDERATIONS
Desirability of the child maintaining a meaningful relationship with both parents
While each parent has concerns regarding the mother’s parenting capacity, it did not appear to be disputed that each parent recognises that it is in the child’s best interests to have a meaningful relationship with each parent. The mother, however, contends that a precondition to that occurring is the father addressing his alleged alcohol and substance abuse issues. As previously noted, the Court is not in a position, in the context of these interim proceedings, to determine the extent to which the father suffers from substance abuse challenges and the extent to which that may present a risk to the child.
As earlier indicated, I am, however, satisfied that there is an unacceptable risk to the child in being in the unsupervised care of the father, primarily as a result of the father’s conduct in wrongfully retaining the child in his care in the period subsequent to 27 December 2021 until the child was recovered by his mother from his school on 10 February 2022.
Assessment of risk
In Cowling v Cowling (1998) FLC 92-801 at [18], the Full Court said in respect to interim proceedings that:
… Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.
Despite the Court’s limited ability to make findings in respect of controversial facts in interim proceedings, the Court is not relieved of the responsibility to determine risk. In SS & AH [2010] FamCAFC 13 at [100], Boland and Thackray JJ said:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible, when dealing with the immediate welfare of children, simply to ignore an assertion because its accuracy has been put in issue.
In Enmore & Smoothe [2014] FamCAFC 131 at [39], the Full Court stated that a determination that there is a risk of abuse may be made “on the basis of evidence which falls short of that required for a finding that abuse has occurred”.
It is to be observed that this reference to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect children from that risk. It is clear that, in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”: Bant & Clayton (2015) 53 Fam LR 621 at [99].
Where risk is alleged in interim parenting proceedings, a conservative approach is warranted that is “likely to avoid harm to a child”: Marvel& Marvel (No 2) (2010) 43 Fam LR 348.
In a similar regard, evidence of family violence should not be ignored simply because it is not corroborated: Eaby & Speelman (2015) FLC 93-654 at [18] and Salah & Salah (2016) FLC 93-713.
The task of determining whether an unacceptable risk, in terms of s 60CC(2)(b) of the Act, exists is assisted by having regard to the following principles:
1)Per Mand M (1988) 166 CLR 69 (“M and M”) at 78:
In devising these tests to determine whether unacceptable risk exists, the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from…abuse and the possibility of benefit to the child from parental access.
See also B & B (1993) FLC 92-357 at 79,778.
2)It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: see A v A (1998) FLC 92-800 at 84,996; M and M at 78.
3)Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[149].
4)Determining the issue of risk essentially involves applying a risk matrix, whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N v S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303, Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96] and Deiter & Deiter [2011] FamCAFC 82 at [54].
5)The components which lead to a conclusion that an unacceptable risk exists 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 only some of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 (“Johnson & Page”) at 81,890–81,891, endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM titled ‘Unacceptable Risk: A Return to Basics’ (2006) 20 Australian Journal of Family Law 249.
6)While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act, insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact, “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”: see the Hon Richard Chisholm ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010) 15.
7)Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 at [83] referring to R & C [1993] FamCA 62.
Police records attached to an affidavit of the mother’s solicitor dated 27 October 2021 confirm that, in 2008, the father was convicted of the offence of driving with excessive blood alcohol content on 6 June 2008.
Those police records further confirm that the father was charged with driving with excessive blood alcohol content on 17 March 2021. In his affidavit filed 29 October 2021, the father acknowledges being involved in a motorcycle accident on 17 March 2021 and stated that, as a result of injuries sustained, he was airlifted to the hospital to receive treatment for several fractures, a torn tendon and severe bruising. He stated at paragraph 41 of that affidavit that he was released from the hospital on 20 March 2021.
Attached to the affidavit of the mother’s solicitor dated 27 October 2021 is a copy of a letter dated 6 October 2021 addressed to the father, noting that the police record indicated that there would be a hearing on 20 July 2021 in respect to charges relating to “due care – aggravated offence” and driving under the influence in relation to the 17 March 2021 motorcycle accident. It does not appear that the father has responded to the request by those solicitors as to the disclosure of the outcome of those proceedings. This is a concern in circumstances where the father has an obligation to disclose all material facts relevant to the Court’s consideration of the parties’ respective applications for parenting orders.
The absence of a complete picture of the extent to which the father may be impacted by possible misuse of alcohol is a concern.
In that respect, at paragraphs 31 to 33 of her report, the family consultant states:
This preliminary assessment raises concerns for [the child]’s safety in the father’s care including the significant alleged risk factors, as detailed above, in the context of a relocation issue, all of which were not able to be fully explored with the father due to the father being unavailable (twice) after the writer spoke to the mother.
More information is needed about the mother’s allegations of family violence, mental health issues and alcohol/drug use by the father, notwithstanding the father’s denial of any current concerns in this regard.
The mother’s report of the father facing charges in relation to his motorbike accident in March 2021 would seem to suggest that the father has relapsed with respect to his alcohol and/or drug use.
The father’s failure to disclose the extent to which he was impacted by alcohol in respect to the 17 March 2021 motorcycle accident and the outcome of criminal charges against him in respect to that accident is a matter that I have taken into consideration in having regard to the mother’s concerns that the father continues to suffer from challenges with alcohol abuse. There is clearly a risk that he does have that continuing problem.
Further, while the father denies that he is continuing to experience mental health concerns, there is an unfortunate absence of evidence regarding the state of the father’s mental health in circumstances where he acknowledges that he currently has the benefit of a mental health plan and that, whilst living in City C, he had been “regularly seeing mental health professionals.” There is no indication that the father is continuing to receive such professional assistance now that he has moved to Adelaide. The absence of expert evidence regarding the father’s mental health does not, of course, justify the Court in reaching the conclusion that, as a matter of probability, the father continues to suffer from mental health issues. However, in the context where the mother has given evidence of the father engaging in dysregulated conduct, where the father abandoned dialogue with the family consultant after her initial interview with him, and in circumstances where one would ordinarily expect that, as a litigant, he would seek to be on his best behaviour, the evidence suggests that there is at least an issue to explore in respect to the state of the father’s mental health.

If it were the case that the child was spending regular time with both parents such that the mother was in a position to receive regular reports from the child regarding any dysregulated and/or dangerous behaviour engaged in by the father as a result of alcohol abuse and, potentially, mental health concerns, then perhaps the risk of the child spending time with the father as a result of those concerns would not rise to an unacceptable risk. In my view, however, if the father were to, once again, retain the child in his care for an extended period such that the mother does not receive that regular report from the child, then there is, in the context of my obligation to take a conservative approach in these interim proceedings, an unacceptable risk to the child. The identification of that risk is very much connected with the primary risk in these proceedings that I have identified, that being the risk of the father retaining the child in his care and not returning the child to the care of his mother.
In that respect, the father’s response to several questions I asked of him as to whether he acknowledged that he retained the child in his care in the period subsequent to 27 December 2021 were most unsatisfactory. The father’s response can only be described as one where he prevaricated rather than directly answering the question and, rather than responding to that question, made a leap to another matter, namely, seeking to explain why he retained the child in his care. That explanation, in itself, was all but incomprehensible, save to the extent that it appeared to relate to the same issues traversed in the father’s email to the mother’s solicitors dated 14 January 2022, which has been extracted above.
In circumstances where the father had been in regular contact with the mother’s solicitors, his explanation as to his difficulty in contacting the mother is implausible. The father’s apparent reliance upon the fact that he sought a stay of the orders made by the senior judicial registrar did not, of course, justify his actions in retaining the child in his care.
In circumstances where the evidence satisfies me that the mother has been the child’s primary carer throughout his life and she was the exclusive carer of the child in the period from April 2021 until 27 December 2021, based on ordinary human experience and common sense, I conclude that it would have been incredibly distressing for the child to have been deprived of the opportunity to spend time with his mother during the period that he was retained by the father. The father’s conduct in doing so, in my view, constituted child abuse.
As noted in the paper to which I have referred by the Hon Richard Chisholm, insofar as determining whether an unacceptable risk exists involves a prediction of the future, that prediction can be more reliable when it is based upon clear evidence of past conduct.
In this matter, I note that the orders made by the Magistrates Court of Western Australia in January 2021 required the father to return the child to the mother’s care. I further note the father’s evasive answers in responding to direct questions as to whether he acknowledged that he retained the child in his care from 27 December 2021 until 10 February 2022. I further note that the child was returned to the care of the mother only as a result of her conduct in ascertaining whether child had been placed at school and collecting the child directly from school, rather than any action undertaken on the father’s part. Finally, I note the father’s all but incomprehensible and implausible explanations as to why he retained the child in his care, which were explanations in the absence of contrition.
Having regard to those facts, I am comfortably satisfied that there is an unacceptable risk that, if the child is returned to the unsupervised care of the father, the father is likely to retain the child in his care to the exclusion of the mother. In terms of the consequence for the child, this would be emotionally distressing and potentially give rise to psychological harm. In assessing the extent of the possible harm, I give some weight to the mother’s evidence, even in these interim proceedings, that the child has been exposed to family violence perpetrated by the father against the mother. If that is the case, as noted by the family consultant at paragraph 20 of her report, the child would likely have a heightened state of anxiety as a result of observing that conduct and “experiencing his father’s unpredictable and violent behaviours.” Again, based on ordinary human experience and common sense, this would increase the potential for the child to be adversely impacted by any repetition of his father wrongfully retaining the child in his care. The possibility of that being the case is a matter that I have also considered in determining that there is an unacceptable risk to the child of suffering emotional and psychological harm if he is returned to the unsupervised care of his father.
EVALUATION OF SECTION 60CC CONSIDERATIONS
For the reasons which I have set out above, I am satisfied that there is an unacceptable risk of the father retaining the child in his care in the event that orders are made for the child to spend unsupervised time with the father.
In those circumstances, other than Order 17, the parenting orders made by the senior judicial registrar are entirely appropriate in providing for the child to live with the mother and the associated matters addressed in those orders.
For similar reasons, I dismiss the father’s application in a proceeding filed 18 January 2022.
The question then becomes what orders, if any, should be made in place of Order 17 of the orders made by the senior judicial registrar, which sets out spend time arrangements for the child with the father.
In that respect, I note that the orders made by the senior judicial registrar provide for the parents to have equal shared parental responsibility. In those circumstances, the Court is required to give consideration to whether the child should spend equal or substantial and significant time with each parent in accordance with the provisions of s 65DAA of the Act. For reasons which I have set out in respect to the question of risk, I have determined that equal or substantial and significant time is not appropriate in the circumstances of this case.
As previously noted, the mother seeks a suspension of Order 17 and does not propose that any orders be made in its place. However, consistent with the primary consideration set out in s 60CC of the Act, I am required to consider the consequences to the child of not having a meaningful relationship with the father.
Further, for the reasons set out in the authorities to which I have earlier referred, once having identified the issue of risk, I am required to consider whether that risk can be mitigated.
In circumstances where I have determined that there is an unacceptable risk to the child if he is in the unsupervised care of the father, I am satisfied that that risk can be mitigated by the child’s time with the father being supervised by a professional contact service. This would enable the child to continue to have a relationship with the father in circumstances where, clearly, the nature and quality of that relationship would be impacted by a reduction in the amount of time that the child spends with the father. Nonetheless, in the context of the risk that I have identified, I am satisfied that such orders are in the best interests of the child for the reasons which I have explained.
I recognise that there are practical difficulties associated with supervised contact occurring in circumstances where the mother will continue to reside in Western Australia and the father proposes to continue to reside in South Australia. Nevertheless, to facilitate the child maintaining a relationship with the father, I am satisfied that Order 17 of the orders made by the senior judicial registrar should be replaced by an order providing that, in circumstances where the father chooses to travel to the town or city where the mother lives with the child, the child should spend supervised time with the father as agreed between the father and the mother. In the absence of agreement as to the location of the supervision centre and/or the time that the supervision is to occur, that time should be on one occasion per week at a time and location determined by the mother.
In circumstances where the need for supervision has arisen from the conduct of the father, it is appropriate that the father be required to meet the cost of that supervision.
For reasons relating to the risk to the child of being retained in the father’s care, I will make a further order in terms of paragraph 6 of the mother’s proposed orders, that the father otherwise be restrained from removing the child from the mother’s care or from the child’s school.
REVIEW OF PROPERTY ORDERS
There is a complete absence of evidence on the part of the father as to the basis upon which he seeks a review of the property orders made by the senior judicial registrar. This lack of evidence also occurred before the senior judicial registrar, who noted at [63]:
As to the financial matters, the father made little or no submissions against what the mother sought. Accordingly, I propose to make orders as per the mother's interim application, other than the costs which I will reserve. This will progress this aspect of the matter as there appears to be a need to deal with the items in storage and certainly act to preserve them.
As observed by Hallen J in Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935 at [39]:
(d)There is an onus on a person seeking to have a court set aside, or vary, a registrar's decision to make out a case that the court conducting the review, in the interests of justice, should exercise its discretion to do so: Tomko v Palasty (No 2) per Hodgson JA at [7]. In other words, there must be a basis shown for setting aside, or varying, the decision or orders of the registrar.
In the absence of the father presenting evidence before the senior judicial registrar or myself regarding the orders sought by the mother in respect to the parties’ property and responding to the evidence the mother relied upon in support of that application, the father has failed to discharge the persuasive onus that rests upon him of satisfying the Court that there is a basis for setting aside or varying the property orders in these proceedings, which are those set out in Orders 1 through to 9 of the orders made by the senior judicial registrar.
CONCLUSION AND ORDERS
Accordingly, having conducted a rehearing of the issues before the senior judicial registrar, for all the above reasons, I dismiss the father’s application for review and his application in a proceeding and I make orders in the same terms as those made by the senior judicial registrar on 3 December 2021, save in respect to Order 17 of those orders.
In place of Order 17 of the orders made by the senior judicial registrar, I make the following order:
Order 17 of the orders made by Senior Judicial Registrar Heuer on 3 December 2021 is suspended and, in its place, it is ordered that:
The child is to spend supervised time with the father as agreed by the parties or, in the absence of agreement, at a professionally supervised contact centre located in the vicinity of the mother’s residence as selected by the mother and at such times as agreed by the parties or, in the absence of agreement, for a period of two hours per week on such day of the week as determined by the mother.
I will also make an order in terms of paragraph 8 of the orders proposed by the mother that the father be restrained by injunction from removing the child from the mother’s care or from the child’s school.
In the event that the mother seeks an order for costs, she is to file and serve written submissions of no more than three pages within 14 days.
In the event of the mother filing such written submissions, the father will have leave to file any submissions in reply within 14 days of receipt of the mother’s submissions.

I certify that the preceding one hundred and thirty five (135) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.
Associate:
Dated: 15 March 2022

File number(s):	ADC 1787 of 2021
Judgment of:	MCCLELLAND DCJ
Date of judgment:	15 March 2022
Catchwords:	FAMILY LAW – PARENTING – Review of a registrar’s decision – Where the child resides with the mother and spends time with the father – Where the father retained the child beyond the agreed period – Changed circumstances – Absence of evidence regarding the extent to which the father suffers with alcohol and substance abuse challenges – Registrar’s orders in the best interests of the child – Application for review dismissed – Father to spend supervised time with the child – Injunction against the father removing the child from his school or his mother’s care – Written submissions as to costs.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CC(2A), 61DA, 65DAA, 69ZW Federal Circuit and Family Court of Australia Act 2021 s 256(1) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 14.05, 14.07 Evidence Act 1995 (Cth) s 140(2)
Cases cited:	A v A (1998) FLC 92–800 B & B (1993) FLC 92–357 Banks & Banks (2015) FLC 93–637; [2015] FamCAFC 36 Bant & Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222 Blinko & Blinko [2015] FamCAFC 146 Cowling v Cowling (1998) FLC 92–801; [1998] FamCA 19 Deiter & Deiter [2011] FamCAFC 82 Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104 Enmore & Smoothe [2014] FamCAFC 131 Feiteiro & Feiteiro [2019] FamCA 647 Fogarty, John, “Unacceptable Risk: A Return to Basics” (2006) 20 Australian Journal of Family Law 249 Henley & Henley [2019] FamCA 101 Chisholm, Richard, “Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions” Children’s Court Conference, Parramatta, 1 September 2010 15 Johnson & Page (2007) FLC 93–344; [2007] FamCA 1235 Mand M (1998) 166 CLR 69; [1988] HCA 68 Marvel& Marvel (No 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101 Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520 N v S (1996) FLC 92–655 Napier & Hepburn (2006) FLC 93–303; [2006] FamCA 1316 Nikolakis & Nikolakis [2010] FamCAFC 52 Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935 R & C [1993] FamCA 62 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100 Sigley v Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22 SS & AH [2010] FamCAFC 13 Stott & Holgar& Anor [2017] FamCAFC 152 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Zawadzki & Zawadzki (No 2) [2020] FamCAFC 131
Division:	Division 2 Family Law
Number of paragraphs:	135
Date of hearing:	11 February 2022
Place:	Sydney (via videolink)
Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Respondent:	Mr Anderson of Adelaide Family Law
Counsel for the Independent Children's Lawyer:	Ms Boyle
Solicitor for the Independent Children's Lawyer:	Legal Services Commission

ADC 1787 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR FLEMING Applicant
AND:	MS BURNETT Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	MCCLELLAND DCJ
DATE OF ORDER:	15 MARCH 2022