French & Coverdale (No 2)
[2025] FedCFamC2F 732
•4 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
French & Coverdale (No 2) [2025] FedCFamC2F 732
File number(s): PAC 777 of 2023 Judgment of: JUDGE OBRADOVIC Date of judgment: 4 June 2025 Catchwords: FAMILY LAW – PARENTING – Change of residence – Illicit substance use – Family violence – Demonstrated ability to care for the child Legislation: Family Law Act 1975 (Cth) ss 60CC, 61C, 61D, 61DAA Cases cited: Isles & Nelissen [2022] FedCFamC1A 97 Division: Division 2 Family Law Number of paragraphs: 162 Date of hearing: 11-13 November 2024 & 10 March 2025 Place: Parramatta Counsel for the Applicant: Mr R O’Brian Solicitor for the Applicant: Campbell Paton & Taylor Counsel for the Respondent: Mr Blank (11-13 November 2024) Counsel for the Respondent: Mr D Phillips (10 March 2025) Solicitor for the Respondent: Culleton Lawyers Pty Ltd (11-13 November 2024) Solicitor for the Respondent: Jane Button & Associates Pty Ltd (10 March 2025) Counsel for the Independent Children's Lawyer: Ms S McKensey (11-13 November 2024) Counsel for the Independent Children's Lawyer: Ms M Summerhays (10 March 2025) Solicitor for the Independent Children's Lawyer: Seton Family Lawyers ORDERS
PAC 777 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FRENCH
Applicant
AND: MS COVERDALE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
4 JUNE 2025
THE COURT ORDERS THAT:
1.The father, Mr French, shall have sole long-term decision-making responsibility, with respect to schooling decisions relating to the child, X born in 2018.
2.Fourteen days prior to exercising decision-making responsibility pursuant to Order 1, the father shall advise the mother, Ms Coverdale, of the decision, take into consideration any views expressed by the mother, and notify the mother in writing of his decision.
3.The parties shall otherwise have equal decision-making responsibility with respect to all other major long-term issues relating to the child.
4.Until 4 July 2025, the child shall live with the parents on a week about basis, from 4pm on Sunday each week.
5.From 4 July 2025, the child shall live with the father.
6.The child shall spend time with the mother as follows:
(a)From the commencement of term 3 2025 and during school terms:
(i)Commencing week 2 of the school term, each alternate weekend from after school on Thursday (or 3pm if not a school day) until the commencement of school on Monday (or 9am if not a school day); or
(ii)As otherwise agreed between the parties.
(b)From the commencement of term 3 2025 and during school holiday periods:
(i)In odd numbered years, for the first half of the school holidays from after school on the last day of term until 3pm on the middle Saturday of the school holiday; and
(ii)In even numbered years, for the second half of the school holidays from 3pm on the middle Saturday of the school holiday until 3pm on the last Sunday of the school holiday.
(c)Provided the mother has complied with Orders 10 to 11, from the commencement of term 3 in 2026 and during school terms:
(i)Commencing week 2 of the school term, each alternate weekend from after school on Wednesday (or 3pm if not a school day) until the commencement of school on Monday (or 9am if not a school day); or
(ii)As otherwise agreed between the parties.
7.Notwithstanding any other order, the child shall spend time:
(a)During Christmas:
(i)With the father:
A.In odd numbered years, from 5pm Christmas Eve until 5pm Christmas Day; and
B.In even numbered years, from 5pm Christmas Day until 5pm Boxing Day;
(ii)With the mother:
A.In odd numbered years, from 5pm Christmas Day until 5pm Boxing Day; and
B.In even numbered years, from 5pm Christmas Eve until 5pm Christmas Day;
(b)During the Easter long weekend when it does not fall during school holidays:
(i)With the father in odd numbered years from 8am Good Friday until 5pm Easter Monday; and
(ii)With the mother in even numbered years from 8am Good Friday until 5pm Easter Monday;
(c)With the father on Father’s Day from 5pm on the day before Father’s Day until the beginning of school on Monday;
(d)With the mother on Mother’s Day from 5pm on the day before Mother’s Day until the beginning of school on Monday;
(e)On the child’s birthday, if not otherwise with the mother, then with the mother:
(i)If a school day, from after school until 7pm; and
(ii)If not a school day, from 12pm until 3pm;
(f)On the child’s birthday, if not otherwise with the father, then with the father:
(i)If a school day, commencing after school until 7pm; and
(ii)If not a school day, from 12pm until 3pm.
8.Unless otherwise agreed, the mother shall collect the child from school or B Street McDonalds in City D at the commencement of time and the father shall collect the child from school or B Street McDonalds in City D at the conclusion of time.
9.The child shall communicate with the parent with whom he is not spending time each Thursday and Saturday between 5:30pm and 6:30pm.
10.Until 4 June 2027:
(a)The mother must do all acts and things necessary to undertake fortnightly chain of custody drug urinalysis testing within 24 hours prior to spending time with the child, with such urinalysis to be conducted in accordance with the Australian/New Zealand Standard 4308:2001;
(b)The father is at liberty to request the mother to undertake chain of custody hair follicle testing once every three (3) months;
(c)The parties share equally the costs associated with the hair follicle testing;
(d)The mother must do all acts and things necessary to ensure within 7 days of a written request from the father to complete hair follicle testing, she attends an accredited laboratory for the purposes of same; and
(e)The mother shall, within 48 hours of receipt of the hair follicle testing results, provide a copy of the results to the father.
11.Pending completion of a hair follicle test pursuant to Order 10, the mother is restrained by injunction from cutting her hair, dying her hair, or using any substance on her hair in an attempt to dilute any drug or alcohol remnants that may be in her hair.
12.In the event the mother provides a positive urinalysis test or hair follicle test for illicit substances, the child’s time with the mother pursuant to these orders is suspended until such time as two consecutive negative urinalysis tests are provided by the mother to the father, being 7 days apart.
13.Each party is restrained by injunction from:
(a)Consuming alcohol to excess or using illicit substances or medications that are not prescribed by a general practitioner in the presence of the child or permitting any third party from doing so;
(b)Exposing the child to family violence; and
(c)Making critical or denigrating comments about the other party in the presence or hearing of the child or permitting any third party from doing so.
14.Each party is permitted to travel with the child internationally.
15.In the event that either party intends to travel internationally, the travelling party shall give the other party notice in writing of this intention to travel no less than 30 days prior to the date of intended travel and the travelling party shall provide the other party with a full itinerary and confirmation of flight bookings.
16.Each party shall do all such things, and sign all such instruments, documents, authorities, and the like necessary to obtain a passport for the child, and the parties shall not unreasonably withhold consent to apply for a passport for the child.
17.Each party shall do all such things and sign all documents necessary to ensure that:
(a)Each party is at liberty to communicate directly with the child’s school;
(b)Each party is at liberty to attend any school function or extracurricular activity for the child;
(c)Each party is at liberty to communicate directly with any treating health or allied professional for the child; and
(d)The other party is notified as soon as possible in the event the child:
(i)Becomes seriously ill;
(ii)Is hospitalised; or
(iii)Is involved in an accident, in circumstances requiring the attention of a medical practitioner or admission to hospital.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are the Reasons for Judgment in respect of the competing parenting applications of the applicant father, Mr French (“father”), and the respondent mother, Ms Coverdale (“mother”), in relation to the child X .
X is 6 years old. His parents have now been separated for a little over 3 years. X’s living arrangements have never been particularly stable.
The father lives in City D while the mother lives in Suburb C, which are some 650km apart. Since the parties separated in early 2022, the mother has moved 9 times.
Presently, X lives with his father from after school on Tuesday to 5pm on Sunday each alternate week, and with his mother the rest of the time. This has been the position since interim orders were entered into by consent in July 2023.
Once X started school in 2024, this has meant that his father has essentially travelled to Suburb C every fortnight and he and X have lived in temporary accommodation for 5 nights out of every 14.
APPLICATIONS
The parties’ applications were a moveable feast.
At the conclusion of the parties’ evidence on 13 November 2024, and at the Court’s invitation, the parties entered into settlement discussions. An in-principle agreement was reached that same afternoon, albeit final terms of settlement were still being prepared. The Court was advised of the agreement reached between the parties, and it was to the effect that:[1]
(a)In the immediate term, that the child would remain in Suburb C until the end of the school year, but the father’s time would increase to a fifty-fifty arrangement commencing on the Sunday to the Sunday until the end of the school term.
(b)Thereafter, the mother would relocate to City D with the child. The child would live with the father and, for the first 12 months, spend time with the mother in line with a ten/four split, being four nights with the mother each fortnight.
(c)Then, subject to the mother doing some drug testing and drug and alcohol counselling, at the end of that 12 months, the time with the mother would increase to a nine/five arrangement and, thereafter, as agreed between the parties.
[1] T:206 line 29 to T:207 line 2.
The agreement fell apart a few days later.
The hearing continued 10 March 2025.
By the conclusion of evidence, the father’s application had crystallised to the following:
(a)Sole decision-making in respect of X’s schooling, but otherwise the parents have equal decision-making for long-term issues;
(b)That X live with the father and spend time with the mother each alternate weekend from Thursday after school or 3pm until Monday at the commencement of school or 9am, half school holidays, and on special occasions;
(c)If the mother complies with a drug testing regime, then X’s time with the mother would increase to an additional night each fortnight.
(d)That each parent facilitates a call between X and the non-resident parent each Thursday and Saturday when X is in their care;
(e)That the mother engage in counselling; and
(f)Various restrains including consuming illicit substances in the presence of X.
The father relied on the following documents:
(a)Amended Initiating Application filed 10 October 2024;
(b)Affidavit of the father filed 4 September 2024;
(c)Affidavit of the father filed 7 November 2024; and
(d)Case Outline Document filed 7 November 2024.
By the conclusion of evidence, the mother’s application had crystallised to the following:
(a)The parents to have joint parental responsibility;
(b)That X live in the City D area and with the parties on a week about basis;
(c)That X spend time with each of the parents on special occasions;
(d)That each parent facilitates communication between X and the non-resident parent each Wednesday and Friday between 5pm and 5:30pm;
(e)That both parties be subject to a drug testing regime whereby time and communication is suspended in the case of a positive result, and recommenced after the provision of a negative result;
(f)A number of restraints including not to allow X to be in the presence of any person under the influence of illicit substances; and
(g)An order for X to not have any contact with the E Religious Organisation whilst in the father’s care.
The mother relied on the following documents:
(a)Amended Response to Initiating Application filed 6 March 2025;
(b)Affidavit of the mother filed 10 October 2024; and
(c)Case Outline Document filed 7 November 2024.
By the conclusion of evidence, the Independent Children’s Lawyer (“ICL”) supported orders sought by the father.
The ICL relied on the following documents:
(a)Case Outline Document filed 7 November 2024; and
(b)Single Expert Report prepared by Dr F dated 9 September 2024.
The parties are all in agreement that X is to live in City D. What they are not in agreement with is when the move is to happen, and what the split of time between the parents is to be.
LEGAL PRINCIPLES
The child’s best interest is the paramount consideration in respect of any parenting orders the Court makes.
Division 2 of Part VII of the Family Law Act 1975 (Cth) (“Act”) deals with parental responsibility. Section 61C provides that each of the parents of a child has parental responsibility, subject to orders. Section 61D provides that a parenting order that deals with the allocation of parental responsibility may provide for joint or sole decision-making in relation to all or specified major long-term issues.
Parental responsibility orders may be made in favour of a parent or some other person.[2] Even if an order provides for joint decision-making, thus requiring the parties who hold parental responsibility to consult and make a genuine effort to come to a joint decision, there is no requirement for a person, before acting on a decision, to establish that the decision has been made jointly.[3]
[2] Family Law Act 1975 (Cth) s 64C (“Act”).
[3] Act s 61DAA.
In determining what is in the child’s best interest, the Court must consider the matters set out in s 60CC(2) of the Act and, if the child is Aboriginal or Torres Strait Islander, the matters set out in s 60CC(3) of the Act.
Specifically, in respect of children who are Aboriginal or Torres Strait Islander, the Court must consider the children’s right to enjoy their Aboriginal or Torres Strait Islander culture and the likely impact any proposed parenting order will have on that right.[4]
[4] See Act s 60CC(3).
Otherwise, s 60CC(2) of the Act specifies the non-hierarchical criteria which must be considered in all cases when arriving at a conclusion as to what is in the child’s best interests:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
In considering what arrangements would promote the safety of the child and of each person who has the care of the child, the Court must consider any history of family violence, abuse, or neglect involving the child or a person caring for the child together with any family violence order that current or has previously applied to the child, or a member of the child’s family.[5]
[5] Act s 60CC(2A).
Section 60CG of the Act further requires the Court to ensure that any parenting order it makes is consistent with any family violence order and that it does not expose a person to an unacceptable risk of family violence, but only to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration.
The issues of family violence and risk are two separate questions. It is important that they not be conflated. On the one hand, the Court may need to determine whether or not allegations of family violence are proven on the balance of probabilities, and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the allegations of family violence.[6]
RELEVANT EVIDENCE AND FINDINGS
[6] Isles & Nelissen [2022] FedCFamC1A 97 at [83] (“Isles & Nelissen”).
Background
The father was born in 1976 and is currently 48 years old.
The father has three daughters from a previous marriage, Ms H born in 2002 and around 23 years old, J born in 2008 and around 17 years old, and K born 2009 and around 16 years old.
Ms H lives with the father full-time, while J and K live with the father on a week about basis.
The father resides in a five-bedroom house and is employed as a retail worker. The father has a new partner, who does not live with him, and during school holidays X spends time with the father, the father’s new partner, and the partner’s children in City D.
The mother was born in 1988 and is currently 37 years old.
The mother has two daughters from other relationships, G born in 2009 and currently 15 years old, and L born in 2023 and currently 1 year old. Both G and L live with the mother.
G has a medical condition.
Mr N, L’s father, visits L and the mother about once a month.
The mother is currently unemployed, although she previously worked in the fitness industry.
How the Story Unfolds (Relevant Factual Matters)
The parties commenced living together in City M in December 2016, having commenced their relationship earlier that year.
In 2018, X was born and is currently 6 years old.
In early 2019 the mother relocated with G and X to Town O,[7] where they lived in rental accommodation for approximately six months and the father would visit to see X and stay over on some nights.
[7] Near City M.
In 2019, the parties relocated to City D together.
In 2020, the parties were introduced to the E Religious Organisation by the father’s friends and employers Mr & Mrs P. While the parties were going through the initiation process to join the E Religious Organisation in early 2020, the father stopped drinking and taking illicit substances.
In 2021, the father called off the parties’ wedding.
The parties separated on or about 6 or 7 January 2022. At the time, the mother moved out with X (and G), and they lived with the mother’s friend Ms Q for a period of about two months.
Between January and March 2022, X spent time with the father, which was regular and for several days a time. In about March 2022, the parties engaged with R Service for the purpose of mediating the parenting arrangements for X, but were ultimately issued with a s 60I certificate.
In March 2022, the mother unilaterally relocated with X from City D to City M. She stayed with her friend Ms S until June 2022.
The mother’s evidence is that the catalyst for her unilateral move to City M was that the father had made a threat to her the previous week. In early 2022, the mother made a report to the police. Following the mother’s complaint, the father was charged with 16 domestic violence offences. He plead not guilty to all but two. A provisional apprehended domestic violence order (“ADVO”) was made.
X did not spend any time with the father between mid-March and mid-May 2022.
In May 2022, the parties reached an agreement for X to spend time with the father three nights each fortnight from Thursday to Sunday.
In about June 2022, the mother, X, and G moved into their own place in City M.
On 28 August 2022, the mother unilaterally ceased X’s time with the father. She explained in her evidence that the reason she did so was because of the father’s erratic behaviour and because he was not following the parties’ agreement.
X did not spend any time with the father between August 2022 and March 2023.
In late 2022, the father attended the Local Court in respect of the criminal charges and a final ADVO was made against the father for the protection of the mother and G. Following a two-day hearing, he was found not guilty in respect of the remaining complaints made by the mother. He received a 12-month Conditional Release Order without recording a conviction in respect of the matters he plead guilty to. The father’s offending occurred in 2017, and was related to phone calls he made to the mother. At the time, the father was using illicit substances and drinking regularly. A final ADVO was made for the protection of the mother for a period of 24 months.
In December 2022, the father instructed his solicitors to write to the mother seeking for X to spend time with the father. Time did not occur.
While X was living with the mother, and not spending any time with the father, the mother commenced a relationship with Mr T which ended in January 2023. The mother conceded in cross-examination that this was a violent relationship and that she was using ICE during this period. The mother, X, and G were living in the home of Mr T’s parents.
In January 2023, the mother ended her relationship with Mr T, and moved into accommodation with a friend with the assistance of the Department of Communities and Justice (“DCJ”).
In January 2023, the father saw the mother’s car dumped at a service station in City M, with extensive damage to the front end. In January 2023, he saw a Facebook post in which Mr T had threatened the mother. That same day, the father instructed his solicitors to write to the mother raising the issue of her homelessness, that her car was seen abandoned, and requesting confirmation that she will make X available to the father and for X to remain in the father’s care until she found suitable housing. The mother’s solicitors replied later that day stating the mother was not homeless, and there was no immediate threat to the welfare of X. In early February 2023, the mother made a parenting proposal.
On 24 February 2023, the mother drove to Queensland with the children to see a friend and stayed there for six days before they returned to City M. Such travel was during the school term, and G was consequently absent from school for a number of days.
On 6 March 2023, the mother made contact with family friends and was told that she could stay with them. She then left City M with the children, took the train, and relocated to Suburb C.
In or about early March 2023, the father received a call from Mr T telling him that the mother had left City M and that she was using drugs. Around this time the father also received a call from Ms U, a friend of the mother’s, who told him she had kicked the mother and her new partner Mr N out and that she did not know where they were. The father was concerned and contacted the DCJ.
On 8 March 2023, X had a facetime call with the father facilitated by the DCJ, the first contact between X and the father since 28 August 2022. The mother said that on 6 March 2023 she was contacted by DCJ, that on 8 March 2023 she attended City M DCJ at their request, and on 9 March 2023 she completed a urine drug test with negative results.
On 29 March 2023, interim parenting orders were made for X to live with the mother and spend time with the father. Orders were also made inviting the DCJ to intervene in the proceedings and for the parties to complete urinalysis and hair follicle testing.
In about May 2023, the mother secured rental accommodation in Suburb C, where she, X, and G have lived since.
X, by and large, spent time with the father in accordance with the interim order. There have been numerous instances where the father made special travel arrangements for X and/or for himself, to ensure that time could occur. For example:
(a)On 28 May 2023, the parents had a conversation where the mother suggested that X spend a week with the father in City D. The father agreed to this, and organised a flight for X who then spent a week in City D with the father.
(b)On 1 July 2023, the mother sent the father a message that X was not well and suggested that X should not travel. The father offered to spend the time with X in Sydney which the mother declined, citing trains as a problem, and the father then drove to Suburb C, collected X, and drove back to City D. X was well for the duration of the time he spent with the father.
(c)On 8 July 2023, the father received a message from the mother asking for the father to take X to the train station for changeover as she was going to City M for the week.
There have been instances when the mother was late for changeover, arriving at times 2 hours after the scheduled time.
On 17 July 2023, further interim parenting orders were made for X to spend time with the father from 12pm Tuesdays until 5pm Sunday each alternate week during school term.
In 2023, L was born.
On 21 December 2023, changeover was to occur at midday in Suburb V. The father drove down from City D, and sent a message at 11am to confirm the mother would be attending changeover but received no reply. The mother did not attend changeover nor was the father able to contact the mother.
At around 4pm, the father received a message from G that the mother had slept in and would call him. The mother called him soon after sounding dazed and incoherent. She said she would drive X to Sydney, and he told her not to. Instead, the father organised for his brother to collect X from City W. As they had missed their flights, the father drove to Melbourne with X the following day. When he was driving to City W, the father received a call from a friend of the mothers who told him that she had seen the mother using drugs when X was in her care, and that the reason the mother had missed changeover was because the mother had been using “ICE” until early morning and had passed out.
On 29 December 2023, the father notified the mother that he would not be returning X to her. He did not attend changeover on 1 January 2024, and X remained with the father. The police attended to do a welfare check on X later that day.
During early January 2024, the mother made a number of attempts at contacting X, but was not successful.
On 17 January 2024, the mother filed an application seeking a recovery order. On 24 January 2024, the application was heard and orders were made for the mother to undertake a urinalysis and hair follicle testing, and the father to return X to the mother following the mother’s compliance with a urinalysis test returning a negative result within 24 hours.
The father enrolled X into Y School at City D, and did not tell the mother about the enrolment. X commenced kindergarten at that school on 7 February 2024.
On 15 February 2024, X returned to the mother’s care.
The mother claimed that on 17 February 2024, X tried to pull G’s pants down. The mother told him that behaviour was not okay. After his bath, X ran to the loungeroom and did a headstand naked with his hands on his bottom, and then went into his room, jumped on the bed, and put his legs in the air with his hand on his bottom. The mother told X that “we don’t do that mate”, and X said he did at the father’s. The mother questioned X, who went quiet and said he did not want to talk about it. The mother also said that later that night G told X not to shut his door and that X yelled at her to stay out of his room and that he needed a lock on his door.
On 18 February 2024, that mother said that X tried to kiss her on the lips. Furthermore, G and X were playing with nerf guns G came out crying and told her that X had shot her while she was lying down, pulled her top down, and tried to touch her breast. The mother said X then came out crying and said to the effect, “I am sorry, can you still play with me”. She then reported X’s behaviours to the DCJ.
The mother withheld X from spending time with the father for one week after this.
X commenced at Z School on 26 February 2024.
On 1 May 2024, the father collected X from school and that night, when putting X to bed, X told the father he was scared of the dark and that the mother’s house had not had electricity for about 2 weeks and that they were staying at “[Mr AA]’s house” (Mr AA being G’s father). The father said he called DCJ to report there was no electricity in the mother’s house.
On 18 June 2024, the father said he received a call from the maternal grandmother who asked “do you know where X is? I’ve just spoken to one of [the mother’s] friends who told me she’s back on ICE with Mr N.” Later that week the father checked the school app and noticed X had not attended school other than on the Wednesday when he had been late due to counselling. The father said he called the principal who said “[the mother] has let us know X has been away because of a family emergency.”
In June 2024 the police conducted a welfare check on X at 9:10am and noted that X was not dressed for school, that the mother was in bed, and that they encouraged the mother to take X to school.
The following day, the father collected X from school as scheduled. X told him that he had been at home watching TV all week, that Mr N had been staying with them, and that the mother and Mr N kept going into the garage to smoke and he was not allowed to go into the garage.
On 6 July 2024, the father was to collect X from Suburb V at midday. The mother messaged she did not have a car and could not attend changeover unless the father paid for an Uber, which he then did. The mother arrived at the airport for changeover at 1:15pm. After collecting X, the father noticed X was pale, withdrawn, and was scratching his body. The father checked X’s body and said he found bleeding scratch marks and wounds, and that X had a bad cough and flu symptoms. On 8 July 2024, the father took X to the doctor, and X was diagnosed with Scabies, Worms, a viral chest infection, and inner ear infections. X was returned to the mother’s care on 13 July 2024.
On 23 July 2024, when X went into the father’s care, the father noticed X’s sores had reappeared, and that he was scratching to the point of bleeding. The father took X to the doctors on 24 July 2024, where he was told “this has clearly gone untreated”. X was prescribed stronger treatment in the form of a tablet. X arrived late to school on this day on account of the doctor’s appointment.
On 6 August 2024, the father said there were sores on X’s back when he collected him.
The hearing commenced on 11 November 2024 for 3 days. It resumed on 10 March 2025, when submissions were made and judgment was reserved.
Family Violence and Drug Use
Each of the parties has used drugs. They did so while they were together, and they did so after the breakup of their relationship albeit not to the same degree as each other, nor to the same degree as when they were together. Drug use and its effects on the parties’ parenting capacity are an important matter for the Court to consider.
It appears that the parties’ drug use fuelled anti-social and perhaps violent behaviour during their relationship. The mother makes a number of allegations of violence perpetrated by the father. By and large, the father denies these. There has been police involvement.[8]
[8] See [44] and [50] above.
Despite the serious allegations the mother makes against the father, she does not move the Court to make any findings of fact in respect of such allegations, nor does she make a submission that X is at an unacceptable risk of harm of physical or psychological abuse in the father’s home. The mother’s case is that X should spend significant and substantial time with the father.
Indeed, the mother’s allegations when considered in the context of the whole of the evidence, appear to be exaggerated. Notwithstanding such serious allegations, the mother has acted in a manner which is inconsistent with those of a victim of violence, by pursuing the father and making offers of an intimate nature. Dr F explained that such conduct was contraindicated for a victim of violence, that victims might be subservient and submit to acts of intimacy at the request of the perpetrator, but not the other way around, that is, that victims do not actively pursue their perpetrators, which is what the mother had been doing.
There are no allegations of recent or ongoing family violence by either party.
The mother stated that she stopped consuming drugs on 7 January 2022, and that she had been off drugs and alcohol since separating from the father. She also said that she had not used any illicit substances from January 2022 until September 2022.
Between September 2022 to January 2023, whilst in a relationship with Mr T who was an ICE dealer, the mother agreed in cross-examination that she was using ICE,[9] and she said “it was a very bad time in my life, which I regret.”[10] When she separated from Mr T in January 2023, the mother said she stopped taking any illicit substances.[11] During cross-examination, the mother agreed that Mr N was a convicted drug dealer, but denied consuming ICE when they drove up to City BB in February 2023.[12] Otherwise, the mother denied all allegations of using illicit substances from January 2023 to date.
[9] T:123 line 24.
[10] T:124 line 2.
[11] Affidavit of the mother filed 10 October 2024 at [98]; T:124 line 18.
[12] T:125 line 34.
As noted earlier, on 29 March 2023, interim orders were made for the parties to complete urinalysis within 48 hours and hair follicle testing within 7 days.
The father completed urinalysis and hair follicle testing on 1 April 2023, both of which returned a negative result for the substances tested.
The father stated that he completed another hair follicle test on 4 May 2023 which returned a positive result for steroids. The father stated that he had a prescription for steroids and that he used them only from time to time.
The mother has not complied with orders for urinalysis. She completed the test on 3 July 2023, more than 3 months after it was supposed to be completed.
The mother completed a urinalysis which returned a negative result, however, despite repeated attempts by the father to comply with his obligations pursuant to the orders to pay for the mother’s hair follicle testing, the mother did not undertake the hair follicle testing until 15 May 2023, which returned a negative result for the substances tested.
The mother has failed to comply with the requests for urinalysis made in accordance with orders of 17 July 2023, which required urinalysis tests to be completed within 48 hours of the ICL’s request:
Test Requested Test Completed 20 July 2023 ICL makes request for mother to complete urinalysis testing. 27 July 2023 mother completed urinalysis test. 24 August 2023 ICL makes request for mother to complete urinalysis testing. 28 August 2023 mother completed urinalysis test. 11 October 2023 ICL makes request for both parties to complete urinalysis testing. The mother does not complete urinalysis test. 4 December 2023 ICL makes request for mother to complete urinalysis testing. The mother does not complete urinalysis test. 8 July 2024 ICL makes request for both parties to complete urinalysis testing. 9 July 2024 the mother completed urinalysis test.
On 24 January 2024, orders were made for the mother to complete urinalysis and hair follicle testing by close of business on 25 January 2024. She competed the urinalysis on 25 January 2025, but the hair follicle testing was not completed until 3 February 2024.
The mother has also completed a urinalysis test on 12 December 2024, and a hair follicle test on 15 February 2025.
While all of the mother’s results returned a negative reading for the substances tested, she did not complete the tests in accordance with orders and/or in a manner which complied with the time frame required.
Transience of Mother’s Living Arrangements
In January 2022, the mother moved to a shed with X and G following separation.
On 16 March 2022, the mother relocated to City M with X and G, moving in with the mother’s friend Ms S.
In June 2022, the mother, X, and G moved into rental accommodation in City M.
In December 2022, the mother, X, and G moved into Mr T’s parent’s house.
On 8 January 2023, the mother, X, and G moved into the mother’s friend’s house in City M.
On 24 February 2023, the mother travelled with X and G to City BB in Queensland.
On 1 March 2023, the mother travelled with X and G back to City M and lived with the mother’s friend again.
On 6 March 2023, the mother relocated with X and G to Suburb C and moved in with friends.
In May 2023, the mother obtained rental accommodation in Suburb C and moved there with X and G.
Not only has the mother moved numerous times since the parties separated, but she has failed to ensure stability of living arrangements and schooling arrangements for her children.
G has attended 5 different high schools since commencing year 7 in 2022:
(a)In 2022, G commenced high school and attended CC School;
(b)In March 2022, G was enrolled in DD School in City M;
(c)At the start of 2023 for commencing year 8, G was enrolled at EE School and attended for a few weeks. She did not attend school while the mother travelled to Queensland during the school term;
(d)At some point after relocating to Suburb C, G commenced school at FF School, though when she was enrolled and/or commenced is unclear; and
(e)At the start of 2024 for the commencement of year 9, G was enrolled and attended GG School.
G has a poor school attendance record overall.
X’s School Attendance
X’s school attendance has been less than ideal. He has missed out on school while in the mother’s care for any number of reasons:
(a)To facilitate the mother travelling to City M for L to spend time with her father;
(b)To visit the mother’s extended family;
(c)To have X attend counselling;
(d)To facilitate G getting to school;
(e)Because X has not been well; and
(f)As a result of the mother not being sufficiently organised to ensure that X makes it to school on time.
Family Report of Dr F dated 3 March 2024
A Family Report was prepared by Dr F, dated 3 March 2024.
In the report, Dr F set out details of the father’s personal history and, when considering the father’s psychological profile, stated:[13]
Overall, [the father] presented as personable and was indeed flexible at ensuring a complete assessment could still occur despite [the mother] not being able to attend on the initial day with [X]. He then had care for [X] and made himself available to be observed at handover in [Suburb C] meaning he travelled to Sydney twice in two weeks throughout the process (though of course this ultimately was either side of what became an extended period of care for [X] due to [the mother’s] health and pregnancy).
And indeed, throughout this matter it would appear [the father] has remained very active, demonstrating an intentional attitude to being present and caring for [X]. He acknowledged the constraints of his work schedule in being able to care for [X] but declared a reasonable schedule for ensuring he is appropriately cared for which positively involves extended family. [The father] acknowledged a very fortunate amount of flexibility and support with his work that allows him to travel and stay in Sydney to maintain his contact time. He also acknowledged he is in a position to be able to offer to assist [the mother] by facilitating her move back to [City D]. On one hand this is [the father] remaining amicable and collaborative, but on the other hand, it is reflective of his fortunate circumstances and thus his capacity and obvious willingness to facilitate arrangements that further suit him. On the other hand however, he also continues to demonstrate a lack of reflection on his own failings including most significantly how steroids very likely influenced his demeanour and presentation that would contribute to [the mother’s] lived experience of him as aggressive. Still, his lack of insight and failings of substance use are ostensibly then comparable to the same concerns being raised regarding [the mother].
[13] Family Report prepared by Dr F dated 3 March 2024 at [49]-[50].
In respect of the mother, Dr F noted that, “[o]verall, the mother’s narrative was chronological and coherent, though often vague and appeared to reflect her choosing to omit details pertaining to her behaviour and choices that may have reflected negatively on her within this matter.”[14]
[14] Family Report prepared by Dr F dated 3 March 2024 at [53].
In the report, Dr F set out the mother’s personal history and, when considering the mother’s psychological profile, opined:
Overall, [the mother] presented as polite and agreeable. Throughout her interview she sought to emphasise the change and progress in her wellbeing and position since leaving [City M] and indeed she had secured more than suitable accommodation in a location with reasonable support. However, [the mother] demonstrated little to no reflective insight into the precariousness of her situation still. The clinician notes her lease was only 6 months, she has attempted to relocate three times in the 12 months preceding this report and four times since separating from [the father], which can only be considered profoundly disruptive to both children. During 7 months between 2022 and 2023, [the mother] was involved in two relationships, one with a known drug user who was an extreme risk as identified by DCJ, and another with whom has a history of domestic violence and she fell pregnant to within the month. Throughout that time there were significant concerns with [G]’s school attendance which remained concerning by her own definition even after moving to [Suburb C]. [The mother] made no reflection on the fact she was using methamphetamines during that time she was parenting.
In respect of X, Dr F noted that X’s presentation appeared in line with his age, and he had a clear affinity and attachment to both of his parents.
When considering the benefit to X of having a relationship with both parents, Dr F stated that X “certainly stands to benefit from having a meaningful relationship with both parents, and it is strongly recommended the Court keep this factor as pivotal in its decision-making.” Dr F stated that the loss of either relationship would likely have a profoundly destabilising effect on him.
When assessing whether X is at risk of being exposed to harm or abuse, neglect, or family violence, and when considering the father’s home, Dr F saw limited concerns pertaining to physical risk, but recommended the father engage in parenting education to limit his reliance on physical restraint.
In respect of the mother’s home, Dr F noted that there appears to be a risk of relapse with methamphetamine use and a history of engaging in relationships with men posing significant risk to the mother and the children, and that the mother has been persistently neglectful of G’s schooling attendance.
Dr F noted “Unfortunately, at this stage [the mother] has demonstrated little insight into any of these risks beyond platitudes, and indeed is still persisting with enabling G’s poor attendance despite formal systemic intervention, which is deeply concerning.”
Further, Dr F viewed the mother’s significant delays in adhering to drug tests as raising significant concerns about the veracity of her claims to abstinence.
In respect of X’s relationship with each of his parents and any other significant person, Dr F reiterated the close and meaningful relationship with each parent, and that there appeared to be no other significantly relevant relationships that would come close to that of the parents.
In relation to the parents taking the opportunity to participate in decision making for X and to spent time with X, Dr F observed that both parents maintained a consistent effort and attempts to remain involved with X.
When considering the extent of each parent’s maintaining of X, Dr F noted that both parents had, at times, evidenced behaviours of concern including using and selling illicit substances, leaving X in the care of the father’s older children, and the mother using illicit substances while being the only carer for X. Dr F had an additional concern for the mother and her difficulties in ensuring G gets an education despite strong intervention from the DCJ.
In respect of the likely effect of any changed in X’s circumstances, Dr F stated that it was paramount for X to be afforded a sense of security and stability as a matter of priority.
Dr F opined that the mother’s circumstances did not appear entirely stable and, ultimately, the circumstances as they stood were not recommended for X long-term and some sort of significant change was inevitable.
Dr F noted that X had an age-appropriate understanding of living in two homes, representing a sound protective factor about any change in circumstances.
Dr F noted that if the mother relocated to City D the change for X would be significantly less impactful. The Court notes that both parties now propose for X to live in City D.
When considering the parent’s capacity to provide for the needs of X, Dr F stated that both parents could stand to improve their parenting capacity in different ways, and both relied on supports.
For the father, Dr F took the view that he had limited capacity for discipline and behaviour management, and would benefit from ongoing parental education.
In relation to the mother, Dr F stated:
[The mother] evidences a disturbing and dysfunctional horizontal ‘friend’ relationship with [G] which makes maintaining firm protective boundaries particularly with a teenager much more difficult. This was made most evident in her permissiveness around avoiding school due to her reported struggles with bullying.
When looking at the maturity, sex, lifestyle, and background of the parents, Dr F said that in many ways both of the parents evidenced a concerning lack of insight that presents as immaturity in their decision making.
Dr F viewed the father as not at all reflective about having substances in the home while responsible for X and only deflected onto the mother, while Dr F viewed the mother as being dismissive of her methamphetamine use and that her expectations of what the father would or should want when it comes to X come from her experiences with G’s father.
In relation to family violence, Dr F stated that there appeared to be no identifiable impact on X resulting from his exposure to family violence, and that the mother still maintains a level of fear and distrust of the father.
In respect of the parent’s mental health, Dr F noted that the assessment could not conclude that either parent was experiencing symptoms sufficient for diagnosis of a mental health condition, but did consider both parents as presenting with elevated tendencies towards self-deceptive enhancement, “meaning on standardised measures they demonstrated limited genuine insight into their own shortcomings and difficulties.” Dr F was of the opinion that the parents would benefit from individual therapy. Dr F made note that if the mother’s account was accepted, she appeared to turn quite quickly to crystal methamphetamine use at a time she became isolated and depended on the support of partners.
When considering any other relevant matters, Dr F noted the father’s concerns surrounding the mother’s drug tests and concluded that, in light of his findings, Dr F agreed that the mother’s failure to comply with substance testing in a timely manner after the birth of her child could be a reasonable concern for the father.
In the report, Dr F provided three proposed arrangements for X, which are no longer relevant given the parties’ evidence.
During cross-examination, Dr F maintained his position for X to have as much of both parents as he can, and if that can be achieved then both parents should be working towards that.[15] Nonetheless, Dr F also made it clear that addressing X’s school attendance was an imperative.[16] When asked about a situation where an equal care arrangement could not be achieved by the parents, Dr F opined that X living with the father and spending substantial and significant time with the mother was “the next least worst option.”[17]
[15] T:193 line 38.
[16] T:177 line 5.
[17] T:183 line 4.
BEST INTEREST CONSIDERATIONS: S 60CC FACTORS
The discussion of the best interest considerations below is informed by the Court’s findings and it is to be read together and understood in the context of those findings and in the context of these reasons for judgment overall.
Arrangements that would promote the safety of the child and each person who has care of the child
There are risks for X in each of the parents’ homes. The risks are, however, not equal, nor are the risks unacceptable.
The mother has a history of drug use, transience, and a diminished ability to meet the child’s needs. X has been living with the mother since early 2022. During that time, he has moved with the mother numerous times and the mother has failed to ensure that he regularly attends school. The mother has failed to comply with the orders requiring her to be tested for illegal substance use.
The father has a history of drug use and family violence. The father continues to be prescribed steroids, but there is no evidence that his use of those drugs is problematic or that it affects his parenting capacity. There are no allegations of current or recent incidents of family violence.
Any views expressed by the child
X is still very young and vulnerable. His views are given limited weight.
He has strong relationships with both of his parents.
The developmental, psychological, emotional and cultural needs of the child
X is a healthy 6 year and 8 month old boy. He is attending school and is meeting all of his milestones. He has half siblings on both sides of the family. There is no evidence to suggest that his sibling relationships are anything but strong and healthy.
While the mother had taken X to see a psychologist, the father did not consent to such treatment. There is no evidence to suggest that X suffers from any mental health or similar issues requiring the assistance of a mental health specialist or allied professional.
The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
The father proposes that he have sole decision making in respect of X’s schooling, and otherwise that the parents share long-term decisions. The mother proposes shared decision making.
The evidence leads the Court to find that the mother’s capacity to meet X’s needs is limited. She has failed to ensure that X has been attending school regularly and she has failed to ensure, in the whole time that X has been living with her, that he has a stable home. She made unilateral decisions regarding moving X significant distances from where the father lived.
The father has a demonstrated capacity to meet the child’s needs. He has ensure that X has received medical attention when needed, he has ensured that X has attended school when with the father, and he has ensured that X is well looked after while in his care. There is no evidence to suggest that the father has failed in meeting any of X’s needs.
The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so
The mother conceded during her cross-examination that she had tried to minimise the father’s involvement with X during periods of the parties’ separation in early 2022. She had failed to facilitate any kind of relationship between X and the father from August 2022 to March 2023, and thereafter unilaterally ceased time on at least one other occasion.
The father has been accommodating and helpful in ensuring that X’s time with him is facilitated. He has travelled extra distances at times. The father did also unilaterally cease time between X and the mother.
DETERMINATION
The Court finds that it is in X’s best interest that he live with the father and spend time with the mother.
The father is the parent who is significantly better able to meet X’s needs. The father has shown incredible fortitude and willingness to do what is best for X. He has juggled his life for almost two years now, travelling between City D and the Suburb HH region to ensure that X has a relationship with both of his parents, and to ensure that X’s needs are met. The father is well organised, reliable, and stable.
The mother remains flighty and disorganised. She appears to be overwhelmed by life’s requirements of her, and particularly meeting her children’s needs. She fails to take responsibility for her life choices. While she has certain vulnerabilities, her children are much more vulnerable than she is, and they rely on her to make the right choices and to ensure that their needs are met. This is true for X, just as it is true for his half-sisters in the mother’s home. They, however, are not the subject of the application before the Court.
A few days prior to the final day of hearing, on 6 March 2025, the mother filed an Amended Response seeking orders that the child live in the City D area on a week about basis with each of his parents. Her proposal was that if the father assisted her financially in the move to City D by paying a rental bond, helping her purchase a car, helping with the moving expenses and providing and sourcing equipment for the mother to re-establish a health and fitness business, then the mother would move to City D with X within 6 weeks. If the father did not so financially assist the mother, she would move within 6 months of the orders being made. Given that it was possible for final orders to have been made at the conclusion of the hearing, this means that the mother must have been in a position to move to City D by no later than late September 2025.
The Court has no power to make an order that the father financially assist the mother in her move to City D. That part of the mother’s application is flawed and such orders cannot be made.
Term 2 of the NSW school year calendar will conclude on Friday, 4 July 2025. So that he will have the best possible opportunity of settling in over the school holidays and, to ensure the least disruption possible to his schooling, it will be best for X if he commences living with the father at the start of the term 2 school holidays. X will spend the entire school holidays with the father to acclimatise as much as possible prior to commencing at a new school and then start spending time with the mother from the commencement of term 3. In the interim, X will spend week about with each of his parents.
Such a time frame will also give the mother ample opportunity to make appropriate arrangements to move to City D, find accommodation for herself, G, and L, and ensure that G’s school attendance is disrupted as little as possible in all of the circumstances.
If it takes the mother longer than approximately 6-8 weeks to make the move to City D from the time these orders are made, then X will nevertheless live with the father but spend time with the mother. This will ensure the most stability for X and ensure that his best interests are met.
The orders proposed by the father also provide further safety guards in terms of ensuring that X is not exposed to illicit substance use and/or its effects, by ensuring that the time he spends with the mother will be subject to the mother complying with a drug testing regime and ensuring that she is drug free. If the mother remains drug free, X can only benefit, including by spending increased time with the mother.
The Court so orders.
I certify that the preceding one hundred and sixty-two (162) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 4 June 2025
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