Hackford & Alameda - [2024] FedCFamC1F 628

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hackford & Alameda [2024] FedCFamC1F 628

File number(s): ASC 17 of 2019

Judgment of: BERMAN J

Date of judgment: 19 September 2024

Catchwords:
FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Where the mother seeks orders to share the joint decision-making – Where the father opposes the same – where the parties have been in high conflict litigation for five years – Where there is no co-parenting relationship – Where the parties are unable to communicate – Where the child previously lived with the mother – Where the mother was unable to take the child to school or provide appropriate levels of dental and hygiene care – Order for the father to have sole decision making.

FAMILY LAW – CHILDREN – With whom a child spends time with – Where the child lives with the father and spends supervised time with the mother – Where the mother seeks orders for unsupervised time – Consideration of best interests – Where the child wishes to spend more time with the mother – Where the father supports the relationship provided it is safe – Consideration of risk – Where the mother uses illicit drugs – Consideration of whether the mother’s parenting capacity when using illicit drugs – Whether the Court can be satisfied that when the child is in the mother’s care her parenting will not be compromised by illicit drug use – Consideration of whether the mother can ensure the child attend school – Where the risk can be ameliorated by appropriate orders – Orders made for the mother to spend unsupervised time with the child on a condition of urinalysis testing results.

Legislation:
Family Law Amendment Act 2023 (Cth)

Family Law Act 1975 (Cth) Div 12A, ss 60CA, 60CC, 61D, 69ZT, 70NEB

Cases cited:
Harridge & Harridge [2010] FamCA 445

L v T (1999) FLC 92-875

N & S & The Separate Representative (1996) FLC 92-655

Division: Division 1 First Instance

Number of paragraphs: 264

Date of hearing: 6,7,8, 26 & 28 August 2024

Place: Heard in Alice Springs and Darwin, delivered in Adelaide

Counsel for the Applicant: Ms Giacomo

Solicitor for the Applicant: Darwin Family Law Pty Ltd

Counsel for the Respondent: Mr Casey

Solicitor for the Respondent: Jones Elferink Barristers & Solicitors

Table of Corrections

30 September 2024 In paragraph 256 the words “suspended for a period of three months and” are replaced with “daytime only with overnight time to” and adding at the end of that sentence after the words urinalysis tests “to be taken not less than one week apart and not more than two weeks apart.

30 September 2024 In paragraph 262 the word “unsupervised” is replaced with “overnight”.
ORDERS

ASC 17 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ALAMEDA

Applicant

AND:
MS HACKFORD

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

19 SEPTEMBER 2024

THE COURT ORDERS THAT:
1.The orders dated 13 November 2020 be discharged.
2.Mr Alameda (“the father”) have sole parental responsibility for making decisions about long term issues for X born in 2018 (“the child”) and that in exercising sole parental responsibility the father shall:
(a)Use his best endeavours to advise Ms Hackford (“the mother”) in writing via “Our Family Wizard” app or such other parenting app as the parties may agree of the decision intended to be made;
(b)Seek the mother’s written response in relation thereto;
(c)Consider by reference to the best interests of the child, any such response prior to making any such decisions; and
(d)Then, if the parties are unable to reach an agreement regarding the decision to be made, the father shall have the ultimate say and shall advise the mother in writing as soon as reasonably practicable of the ultimate decision.

3.The child live with the father.
4.The child shall spend time with the mother as follows:
(a)For a period of not less than six (6) weeks, each Saturday from 10.00 am to 5.00 pm commencing on 21 September 2024;
(b)Subject to order 4(a) PROVIDED THAT the mother has undertaken two (2) urinalysis tests which show a negative result for all drugs of abuse with such tests to be taken within not less than one (1) week apart and not more than two (2) weeks apart, then for a minimum period of four (4) months, the child shall spend time with the mother each alternate weekend from the conclusion of school on Friday (or 2.30 pm if a non-school day) to Sunday at 10.00 am;
(c)Subject to order 4(b) PROVIDED THAT the mother has undertaken a urinalysis test which shows a negative result for all drugs of abuse then the child shall spend time with the mother as follows:
(i)each alternate weekend from the conclusion of school on Friday (or 2.30 pm if a non-school day) to the commencement of school on the following Monday (or 4.00 pm if the Monday is a non-school day or public holiday);
(ii)During the Northern Territory gazetted school holidays:
A.For the first school holiday period in 2025, a block of four (4) nights as agreed between the parties and failing agreement from 10.00 am on the first Monday of the school holiday period to 10.00 am the following Friday;
B.For each school holiday period thereafter, each alternate week from 10.00 am Monday until 10.00 am the following Monday commencing the first Monday of each school holiday period.

5.The mother shall ensure that the child attends her extra-curricular activities as nominated and advised by the father.
6.The child shall spend time with the mother on the following days of significance:
(a)On the child’s birthday if a non-school day and if the child is not otherwise spending time with the mother, from 9.00 am to 1.00 pm;
(b)On the mother’s birthday if the parties are in the same location, and if the child is not already spending time with the mother, from 9.00 am to 1.00 pm;
(c)On Mother’s Day, if the child is not otherwise spending time with the mother from 9.00 am to 1.00 pm PROVIDED THAT the mother’s time will be suspended from 9.00 am to 1.00 pm on Father’s Day;
(d)In all odd numbered years, on Easter Thursday after school (or 2.30 pm if a non-school day) until 1:00 pm on Easter Monday; and
(e)In all odd numbered years, from 1.00 pm on Christmas Eve to 1.00 pm the day after Boxing Day.

7.Notwithstanding these orders the child shall spend time with the father and if applicable the mother’s time shall be suspended as follows:
(a)In all even numbered years from Easter Thursday after school (or 2.30 pm if a non-school day) until before school on Easter Tuesday;
(b)In all even numbered years from 1.00 pm on Christmas Eve to 1.00 pm the day after Boxing Day.

8.The mother shall:
(a)Continue to consult with B Service for a minimum of six (6) therapeutic sessions to commence as soon as practicable;
(b)Obtain a Mental Health Care Plan to enable her attendance on B Service; and
(c)Inform the father of her attendances on her treating psychologist and if a report is generated, at her election, the mother will forward a copy of the report to the father.

9.The child’s time shall revert to time in accordance with order 4(a) until the mother’s compliance with order 4(b) herein should any of the following apply:
(a)The mother fails to comply with the timeframes for undertaking urinalysis drug testing, unless as may be agreed between the parties;
(b)The mother fails to provide the test results of the urinalysis drug testing;
(c)A test shows a non-negative or positive result for illicit substances;
(d)The testing laboratory gives any indication that the sample has been diluted or otherwise interfered with; and
(e)The mother fails to complete a minimum of six (6) therapeutic sessions with her nominated psychologist.

10.Handovers shall be conducted at D Contact Centre unless the child is attending school in which case the child shall be collected from school at the specified handover times.
11.For the purposes of facilitating handover, the mother (or her agent) is to drop the child off at D Contact Centre at the commencement of the father’s time with the child with the D Contact Centre care workers to conduct handover to the father (or his agent) and the mother is to leave D Contact Centre prior to the handover being conducted; PROVIDED THAT the parties are at liberty to agree a different handover venue.
12.The father be permitted to take the child to community on no more than four (4) occasions per year during the mother’s time with the child and he shall provide the mother with the following:
(a)Not less than twenty-one (21) days written notice of his intention to take the child to community;
(b)Any contact details for the child during this period; and
(c)If the child will otherwise be spending time with the mother the father shall arrange for the child to spend make up time within three (3) months of the mother’s time being suspended.

13.The father and the mother PROVIDED THAT she in in compliance with order 4(c), are permitted to take the child on a holiday interstate or outside of the Commonwealth of Australia PROVIDED THAT:
(a)They shall each provide at least twenty-eight (28) days written notice to the other of the intent to take the child on a holiday, together with a copy of the relevant tickets, proposed itinerary, address and telephone details where the parent and the child may be contacted while on holidays and, for travel outside of the Commonwealth of Australia, a “comprehensive” travel insurance for the child;
(b)Pursuant to s 65Y of the Family Law Act 1975 (Cth) and provided the father and/or the mother have complied with the appropriate notice, each of the parties are at liberty to remove the child from the Commonwealth of Australia;
(c)The father is permitted to apply for an Australian Passport for X born in 2018 without the consent of the mother provided that if pursuant to these orders the mother is permitted to take the child out of the Commonwealth of Australia, the father will not capriciously withhold the child’s passport and will provide same to the mother within fourteen (14) days of the proposed date of travel PROVIDED THAT the mother returns the child’s passport to the father’s care within forty-eight (48) hours of the child’s return.

14.The child have Facetime communication with the mother on one (1) occasion per week on a day and time to be agreed between the parties and failing agreement, on Wednesday at 5.30 pm, however the child is permitted to communicate by electronic means with each of the parties at any time as may be reasonably requested by her and the parent she is then living with shall do all things necessary to facilitate such communication occurring.
15.Except in the case of emergency, all communication between the parties shall be via “Our Family Wizard” app or such other parenting app as may be nominated by the parties and communication should only be in relation to the child.
16.In the event that the child suffers a serious injury or illness or is hospitalised, then the party who has the child’s care at that time, shall notify the other party promptly and provide details of the treating doctor and/or like professionals.
17.In the event that the child requires medical treatment, the parent caring for the child is to immediately advise the other parent via “Our Family Wizard” app or such other parenting app as the parties may agree within twenty-four (24) hours of the treatment being received and shall include details of the medical treatment provided and any ongoing medication that is required by the child.
18.The parties shall be otherwise restrained from communicating via text message or telephone except in accordance with these orders.
19.Each party shall keep the other informed as to their address, phone number and email address and notify of any change within twenty-four (24) hours.
20.Each party shall comply with the child’s treating doctors directions and all prescribed medication shall be given to the other parent at changeover.
21.The parties shall ensure that the child shall attend school every day unless due to illness, and if the child is unable to attend school due to illness, then a medical certificate is to be provided to each party if so requested.
22.Both parties are entitled to attend daycare, school or extra-curricular events that are commonly attended by parents and both parents are to keep each other informed of such events.
23.Each party is able to receive information and/or records from any doctors, carer, teacher, hospital, childcare institution, and any social, sporting or recreational organisation with respect to the child.
24.Each party is able to contact the daycare, school and/or medical practitioner’s where the child attends and obtain access to information and reports with respect to the child at that parent’s sole expense.
25.The parties are restrained and injunctions are granted restraining each of them from:
(a)Physically disciplining the child or otherwise using physical force against the child;
(b)Exposing the child or allowing the child to be exposed to family violence;
(c)Speaking negatively to the child about the other or that other’s family and allowing the child to remain in the presence of any other person who may be speaking negatively about the other party or the family;
(d)Using illicit substances or drugs of abuse in the presence of the child and for a minimum period of twenty-four (24) hours prior to the child coming into a party’s care or from allowing the child to remain in the presence of any other person who may be using illicit substances or drugs of abuse; and
(e)Attending upon the other parent’s residence.

26.The mother is restrained and injunction granted restraining her from leaving, or permitting the child to have contact with or spend time with Ms C.

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
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Division 1) Rules 2021 (Cth) on 30 September 2024
Berman J
INTRODUCTION

Mr Alameda (“the father”) and s Hackford (“the mother”) are unable to reach agreement as to the future parenting arrangements for X born in 2018 (“the child”).
By Amended Initiating Application filed 30 April 2024 the father seeks orders for sole decision making responsibility for the child and he is not prepared to allow the child to spend supervised time with the mother until she has completed a comprehensive mental health treatment plan including, drug counselling and a chain of custody hair follicle test procedure with the first test being 7 days of the date of orders and a further test not less than 10 weeks from the date of these orders.
If the mother is successful in completing the proposed mental health treatment plan and produces negative drug and alcohol tests, then the child shall spend unsupervised time with the mother as agreed between the parties but failing agreement as follows:
(a)Each alternate Saturday from 9.00 am to 5.00 pm; and
(b)From after school (or 2.30 pm) to 6.00 pm on a weekday to be agreed between the parties but failing agreement on Wednesday each week.
After a period of 3 months of unsupervised time and upon the production of a further negative drug test together with evidence that the mother has engaged in a drug counselling program for a continuous period of not less than 6 months the child is able to spend overnight time with the mother as agreed but failing agreement as follows:
(a)During the gazetted school terms each alternate weekend from after school or 2.30 pm Friday to 10.00 am Sunday;
(b)During the gazetted school holidays;
(i)For the first school holiday period, a block of 4 days as agreed between the parties and failing agreement from 10.00 am on the first Monday of the school holiday period until 10.00 am on the Friday;
(ii)For each school holiday period thereafter, each alternate week from 10.00 am Monday until 10.00 am the following Monday.
The father further seeks that should the mother produce a non-negative drug test (including a result which “requires further testing”) then the mother’s time with the child shall revert to supervised time.
The father seeks orders as to the child spending time with the mother on special occasions and upon the child turning 9 years of age the child will spend equal time with each parent during the gazetted school holiday periods.
The father seeks orders that the child’s time with the mother be suspended during periods that he elects to take the child on community on no more than 4 occasions per year for up to 3 nights on each occasion.
The father also seeks that he be permitted to take the child on holiday interstate or outside the Commonwealth of Australia and providing he provides at least 28 days written notice of his intention to take the child on a holiday, if interstate or with the consent of the mother outside of the Commonwealth of Australia then the child’s time with the mother is suspended during those periods. The father proposes a similar opportunity for the mother providing she has satisfied the various requirements as to drug and alcohol counselling and negative drug test results.
It is proposed by the father that other than the case of an emergency, all communication between the parties will be by a parenting app and that there be an appropriate exchange of information relating to each party as to their residential address and contact number.
Each party should also be able to receive information from any doctor, career, teacher, hospital, childcare institution and any social sporting or recreational organisation with respect to the child.
By Amended Response to Initiating Application filed 1 February 2024 the mother seeks orders for shared parental decision making, that the child live with the father and spend time with her as follows:
(a)For a period of eight (8) weeks unsupervised each Saturday from 10.00 am to 5.00 pm;
(b)Assuming no significant issues of risk are raised, then for a period of four (4) months each alternate Friday and Saturday night from after school on Friday until Sunday morning at 10.00 am;
(c)Assuming no significant issues are raised, each alternate week from Friday after school until the following Tuesday morning.
Not dissimilar to the father, the mother proposes that each of the parties spend time with the child on special occasions and in particular:
(a)Up to two (2) occasions each year in order for the child to enjoy her Aboriginal culture, for important cultural events, for up to three (3) days in a block period, provided the parent taking the child to the cultural event provides written notice to the other parent no less than 14 days prior to the event taking place; and
(b)On one (1) occasion per year at any other time of significance for a period no greater than three (3) days provided the parent gives the other parent no less than 14 days’ notice.

Similar to the father, the mother proposes that all changeovers be at D Contact Centre.
There is broad agreement between the parties as to the method and manner by which the parties will communicate with each other and engage with the child at school both in terms of curricular and extra-curricular activities.
The following further orders are relevant to the proceedings generally and in particular, the focus of the father in respect of his concerns that the mother’s history of drug and alcohol use places the child at significant risk.
This is countered by the mother’s concerns that the father is not respectful of her relationship and emotional attachment with the child and that the orders he seeks are punitive and indicative of her complaint that the father seeks to disrupt the child’s relationship with the mother. As such, the mother seeks the following further orders:
(1)That forthwith the parties shall enrol in and complete “Parenting After Separation” and shall provide evidence of the completion to the ICL.
(2)That forthwith the parties shall enrol and attend parenting counselling at E Counselling and if the Court deems it appropriate, copies of the Family Assessment Report dated 17 October 2023 and 31 March 2020 be provided to the counsellor prior to the commencement of counselling.
(3)That the ICL remain appointed for a period of 12 months and be at liberty to relist the matter at short notice.
(4)That the mother shall:
(a)Continue to consult with B Service until such time as the treating psychologist considers it to be no longer necessary, and if it is recommended that the mother seek a mental health care plan, she shall do that; and
(b)The mother shall inform the ICL of her attendances upon her treating psychologist every 2 months and notification as to when her treating psychologist advises the mother no longer requires assistance.
The mother also seeks that the parties continue to consult with the treating psychologist of the child until such time as it is considered by the treating psychologist no longer to be necessary.
An initial observation is that the order appointing an ICL was discharged as part of the case management hearing on the basis that each of the parties were represented, a Court Child Expert was involved, and the issues were of relatively narrow compass.
A further observation is as to the lack of jurisdiction that the Court has to make what might be considered “a stand-alone” order for a psychiatric or psychological report and also in terms of the intention of each of the parties that compliance with an order requiring psychological engagement and therapy be determined by the treating psychologist.
X is an aboriginal child. The father is a First Nations man and the mother is a First Nations woman.
Each of the parties are agreed as to the importance of the child’s maternal and paternal cultural heritage and engagement.
The proceedings were commenced in the Town F Registry and then completed remotely from the City G Registry.
BACKGROUND
The father is 29 years of age and the mother is 26 years of age. The parties commenced a relationship in 2015 and separated on either 26 December 2018 or in February 2019. The circumstances of separation were traumatic with each of the parties alleging conduct by the other consistent with family violence.
At separation, the child lived with the father for three months and spent sporadic time with the mother. In March 2019, the parties reached agreement to equally share the care of X however, this arrangement ceased in about June as the mother considered that an equal care arrangement was not appropriate given that the child was under one year old.
On 25 July 2019 the parties entered into a Parenting Plan that provided for the child to live with the mother and spend two nights per week with the father.
The interpersonal relationship between the parties was complex with the mother presenting at times with suicidal intention and/or ideation.
In October 2019 the father commenced a relationship with his current partner, Ms H (“Ms H”).
From October 2019 the father contends that the mother’s use of illicit drugs had escalated to a point that he considered interfered with her ability to provide adequate and proper care for the child. The mother does not deny illicit drug use but rejects the father’s assertion that it interferes with her ability to provide for the child’s necessary care.
On 24 October 2019 the father withheld the child on the basis of his belief that the mother’s illicit drug use was unrestrained, that her conduct was indicative of poor mental health and that she posed a risk to the child.
The mother considered that the father’s focus on her alleged illicit drug abuse was unnecessary and without foundation given that there had been involvement by the police with no evidence of drug use.
It is apparent that the relationship between the parties had reached a low ebb given the concession by the mother that on 22 October 2019 she sent a text message to the father stating “Fuck off before you make me hurt myself again!!! You lowlife cunts!!!”.
The retention of the child by the father prompted the mother to commence proceedings on 28 October 2019 with the father filing his Response on 8 November 2019.
On 2 April 2020 the mother underwent a urinalysis drug test which returned a possible positive result for illicit drugs. Thereafter, there was a focus by both the father and by orders of the Court relating to a requirement that the mother undertake regular urinalysis drug tests.
Intervention by J Services on 1 June 2020 was prompted as a result of an allegation that the mother may have resorted to smoking illicit drugs.
Between June and November 2020 there was intensive focus on matters pertaining to the mother’s mental health and stability but also the extent to which she continued to use drugs in particular, illicit drugs. A number of tests involving both hair follicle analysis and urinalysis were undertaken.
On 13 November 2020 final orders were made that provided for as follows:
(1)Commencing 14 January 2023, the child shall live with each of the parties on a week about basis with changeover occurring at D Contact Centre at 9.00 am Saturdays.
(2)That the parties have equal shared parental responsibility for the child.
(3)That the child live with the mother.
(4)That the child spend time with the father as follows:
(a)Until the child’s third birthday, from 5.00 pm on Saturday until 4.00 pm on Monday with changeover on Saturday to occur at D Contact Centre and changeover to occur on Monday with the mother collecting the child from daycare;
(b)Commencing 4 March 2021, from 5.00 pm on Saturday until 4.00 pm on Tuesday with changeover on Saturday to occur at D Contact Centre and changeovers on Tuesday to occur at the child’s daycare centre;
(c)That subject to order 1, upon the child commencing transition:
(i)The child shall live with each of the parties on a week about basis during school terms, with changeover to occur after school on Friday;
(ii)The child shall spend time with her father for the first half of school holidays following first, second and third school terms in even numbered years and with her mother for the second half of such holidays, and with her father for the second half of the school holidays following first, second and third school terms in odd numbered years and with her mother for the first half of such holidays; and
(iii)That until the child is 7 years old, she shall spend week about with each of the parties during Christmas school holidays, and thereafter with the mother for the first half in odd numbered years and for the second half in even numbered years and with her father for the second half in odd numbered years and for the first half in even numbered years.
The orders also provided for the time that the child was to spend with each of the parties on special occasions including Father’s Day, Mother’s Day, the Christmas period and Easter.
Relevant to the current proceedings are the following provisions in the 2020 final orders:
16.That each party is restrained and injunctions are granted restraining each of them from:
a.Speaking negatively to the child about the other or that others, family, and allowing the child to remain in the presence of any other person who may be speaking negatively about the party or their family;
b.Exposing the child or allowing the child to be exposed to family violence;
c.Exposing the child to illicit drug use or allowing the child to remain in the presence of persons consuming illicit drugs;
d.Permitting, allowing or encouraging a third party to do any of the above; and
e. Drinking to excess while the child is in his/her care.
…
18. That the mother shall:
a.Continue to consult with [Dr K] or any other psychologist at [L Health Service] until such time as the treating psychologist considers it to be no longer necessary, and if it is recommended that the mother seek a Mental Health Care Plan, she shall do that;
b. The mother shall inform the ICL of her attendances upon her treating psychologist every 2 months and notification as to when her treating psychologist advises the mother no longer requires assistance.
19.That the mother shall submit to urinalysis testing in accordance with the current Australian Standards at the father’s request on the following conditions:
a.the mother shall undertake such tests within 48 hours of receiving the father’s request to do so;
b.the father shall not request testing on not more than one occasions in each 8 week period, unless the mother tests positive to drugs other than [illicit drugs];
c.the father shall pay for the first test and each alternate test thereafter and the mother shall pay for the second test and each alternate test thereafter.
d.that within 48 hours of receipt of her test results the mother shall provide a copy of such results to the father via the Communication App; and
e.such testing shall cease upon the mother providing the father with two consecutive tests showing negative of all drugs or six (6) months after compliance with Order 20.
Order 20 provided for the mother to engage with a health practitioner who had expertise in drug counselling and to follow all reasonable recommendations of the nominated practitioner whereas the father was required to enrol in a Men’s Behaviour Change Program and to provide evidence of his satisfactory completion of the relevant program.
It is readily apparent from the proposed orders that each of the parties considered that providing either of them did not present as a risk to the child, the child’s best interests were likely to be served by initially maintaining a significant relationship with the father which would then transition to shared care and equal time.
Whilst there is no clear agreement as to the events that followed the 2020 final orders, it is the father’s contention that the mother failed to complete the D Contact Centre intake and did not complete the first request made by the father on 12 April 2021 to undergo urinalysis testing.
It is also likely that the mother did not take the necessary steps to engage with drug counselling despite engagement by the ICL to ascertain the extent to which she had complied with the 2020 final orders requiring drug counselling to take place.
It then appears that there were periods when the mother withheld the child from the father and did not attend D Contact Centre.
On 4 October 2021, the ICL filed an Application in a Proceeding relating to the mother’s failure to complete the D Contact Centre intake.
The mother completed the necessary intake requirements with D Contact Centre on 13 December 2021.
The father’s ongoing concern as to the child’s school absenteeism was confirmed by a Consent Order made on 8 February 2022 that required the mother to ensure the child attended school each Monday and Tuesday and that any significant absence was to be explained by a medical certificate.
A feature of the 2020 final orders was the father’s ongoing concern as to the mother’s drug use which resulted in his requirement that the mother undertake regular urinalysis testing.
Consent Orders made on 7 March 2022 required the mother to undergo urinalysis testing within 24 hours, noting that she failed to do so. The mother was also required to engage with a drug counsellor and file evidence of her attendance.
Whilst the mother says that she undertook drug therapy, the evidence is that she did not undertake counselling to address her drug use. I do not ignore that a significant issue arises as to whether there is jurisdiction for standalone orders to be made that purport to require a party to undergo therapeutic intervention, or psychological/psychiatric assessment where they are not connected or a condition of a parenting order.
It is an unfortunate observation that the mother’s presentation in 2022 could be considered as chaotic. There were occasions, albeit of relatively short duration, where the mother withheld the child from the father. Some requests for the mother to undergo urinalysis were not undertaken although it is noted that the mother did produce negative drug tests.
The father filed a Contravention Application on 17 November 2021 alleging that the mother had breached the 2020 final orders on numerous occasions in that she had failed to comply with orders as to the method and manner by which the child was to transition from her care to the father’s care and an allegation that without reasonable excuse the mother did not permit the child to spend time with the father.
The Contravention proceedings resulted in orders being made on 14 March 2023 and a finding that the mother had, without reasonable excuse, contravened the following orders:
(a)       order 4(b) of the orders made on 13 November 2020, on:
(i)        27 March 2021
(ii)       10 April 2021
(iii)      29 May 2021
(iv)      31 July 2021
(v)       14 August 2021
(vi)      18 September 2021; and
(vii)     30 October 2021
(b)      order 5(a) of orders made on 13 November 2020, on 4 September 2021; and
(c)       order 19 of orders made on 13 November 2020, on 8 May 2023.
As a result of the findings made against the mother, on 27 April 2023 she entered into a bond pursuant to s 70NEB(1)(d) of the Family Law Act 1975 (Cth) (“the Act”) for a period of two years without security or surety but requiring an undertaking that she would comply with all current and future parenting orders made by the Court.
Some make up time was also ordered which resulted in the child living with the father between 28 April 2023 and 8 May 2023.
The father contends that the mother failed to facilitate the make up time and to ensure that the child attended school pursuant to order 4 of orders made 27 April 2023.
The recalcitrant nature of the mother’s conduct came to a head in a hearing before a Judicial Registrar on 10 May 2023 wherein the operative paragraphs of the 2020 final orders were suspended and an order was made that the child live with the father and pending successful intake into D Contact Centre, the mother was able to communicate with the child on three occasions each week by way of video/FaceTime with the father to ensure that the child is made available.
Assuming that D Contact Centre was able to assist the parties and child, the mother was to spend time with the child on a supervised basis each alternate Saturday for a period of two hours.
Whilst it remains a matter of interpretation, the Judicial Registrar made orders requiring each of the parties to obtain a mental health care plan from their general practitioner for the purpose of attending upon a registered psychologist.
The orders also required each party to provide the ICL with confirmation that they obtained the mental health care plan and the name of the psychologist. Further, each party was required to comply with all recommendations made by the psychologist such that they shall each attend every appointment made unless they are too ill to do so and, in that event, the psychologist would be provided with a medical certificate.
The Judicial Registrar also made the following order:
14.The father will make arrangements from the child to obtain a Mental Health Care Treatment Plan and cause the child to attend upon a suitable Psychologist to assist the child in her transfer from the mother’s care and to assist her with any trauma she may have suffered and for that purpose the father shall provide the child’s treating psychologist with a copy of the Family Report released 5 April 2023 with a copy of the relevant orders.
The mother was also required to comply with the below orders by undertaking as follows:
15.The mother shall within 28 days [of the date of the order], engage with a service or professional of her choice to obtain professional assistance in dealing with any drug and/or excess alcohol use, and shall provide the name of such service or professional to the ICL and the father’s lawyer within 2 days from attending her first appointment.
16.The mother shall continue to attend for drug and alcohol counselling pursuant to order 15 above until she receives a certificate or confirmation that such counselling is no longer required and provide the ICL and the father’s lawyer with a copy of same.
That the mother is to submit a urinalysis testing for the detection of illicit drugs at the election of the father, not more than once per month, and for the purpose of the order the mother was required to undergo the test within 48 hours of receiving the written request by an accredited laboratory.
The extent of the drug test requirement was targeted to the detection of amphetamine type substances, cannabis, opiates (including heroine and morphine) sedative type drugs, cocaine, and any other drug of abuse as well as chronic alcohol use.
The cost of the test regime was that the mother would pay the cost at first instance and then the father would reimburse the mother in the case of any negative test.
The matter came back before the Senior Judicial Registrar on 19 June 2023 and further orders were made requiring the mother to undergo a psychiatric assessment and that an updated Family Assessment Report be prepared.
Pursuant to the orders made 10 May 2023, further requests were made for the mother to undergo urinalysis and hair follicle testing.
The mother refused to undergo hair follicle testing but by test results dated 26 October 2023, she tested negative for illicit drugs and by rest results dated 14 December 2023, there was a further negative test for illicit drugs but with a notation that the sample may have been diluted.
It is agreed that notwithstanding the father’s further request for the mother to undergo hair follicle testing in 2024, the mother did not undergo any further drug testing whether urinalysis or hair follicle.
DOCUMENTS RELIED UPON
The father relies upon the following documents:
(1)Amended Initiating Application filed 30 April 2024.
(2)Trial affidavit of the father filed 30 April 2024 (“the father’s trial affidavit”.
(3)Father’s affidavit in reply filed 29 July 2024 (“the father’s reply affidavit”).
(4)Affidavit of Ms H filed 30 April 2024.
(5)Affidavit of Mr M filed 30 April 2024.
(6)Affidavit of Ms N filed 30 April 2024.
(7)Affidavit of Ms O filed 30 April 2024.
(8)Affidavit of Mr P filed 30 April 2024.
(9)Outline of Case document filed 2 August 2024.
The mother relies upon the following documents:
(1)Amended Response to Initiating Application filed 1 February 2024.
(2)Trial affidavit of mother filed 16 July 2024 (“the mother’s trial affidavit”).
(3)Trial affidavit of Mr Q filed 16 July 2024.
(4)Affidavit of Ms R filed 16 July 2024.
(5)Trial affidavit of Ms S filed 24 July 2024.
(6)Outline of Case document filed 3 August 2024.

Whilst an order was made discharging the appointment of the ICL, both parties agreed that the following documents were before the Court:
(1)Affidavit of Ms T annexing the report of Dr U (“Dr U”) dated 16 September 2023.
(2)Family Assessment Report prepared by Ms V dated 8 May 2020 (“the first report”).
(3)Addendum Family Report prepared by Ms V dated 17 October 2023 (“the second report”).
ORDERS SOUGHT
At the commencement of the proceedings there was focus upon the orders sought by the father as set out in a Minute of Order being annexure “A” to his Outline of Case document.
The gravamen of the father’s orders was to the effect that he would have sole parental responsibility for the child and that the child would live with him and only spend supervised time with the mother on not less than one occasion per fortnight for two hours duration.
The father’s counsel was asked to consider whether the orders sought by the father were viable in that the clear intention was that the mother was only to ever have supervised time. It was possible, depending upon the evidence and the availability of D Contact Centre to give effect to the father’s orders sought, however, it is likely that the orders would amount to the child spending virtually no time with the mother. Subject to a proposed communication order permitting the child to have FaceTime communication with the mother, the father’s orders represented a significant diminution and possibly a total disruption to the child’s relationship with the mother.
The overarching approach of the father was to acknowledge the close emotional attachment that the child has with the mother and that he considered, and indeed supported, the child spending significant time in the mother’s care provided it is safe to do so.
The father considers that the current presentation by the mother presents a significant risk to the child even though there is a concession by the mother that the child should remain in the father’s primary care.
The father was given an opportunity to further consider the orders sought and tendered an Amended Minute of Order being Exhibit “2” to the proceedings. The tenor of the orders sought by the father would see the child spending supervised time with the mother graduating to unsupervised time each alternate weekend from the conclusion of school on Friday to 10.00 am on Sunday and each alternate week during school holidays subject to the following conditions before the mother’s time is unsupervised:
(a)A hair follicle test which shows a negative result for all drugs of abuse for all period of not less than 12 months; and
(b)A report from a suitably qualified mental health practitioner to the effect that the mother has completed the recommended therapy contained in the report of Dr U dated 26 September 2023; and
(c)A report from a suitably qualified drug and alcohol counsellor to the effect that the mother has engaged in drug and alcohol counselling for a period of not less than 12 months of drug and alcohol counselling; and
(d)The hair follicle test results and report required are dated within three months of each other.
The practical effect of the orders sought, even if there is full compliance by the mother and the drug testing results are negative is that there would be no unsupervised time for at least 12 months.
For her part, the mother proposes “equal shared parental responsibility” but given the Family Law Amendment Act2023 (Cth) (“the Amending Act”), what is intended by the mother is that either there is no order for parental responsibility or if there is, then the order would reflect that the parties have equal parental authority to make decisions for and on behalf of the child.
The mother contemplates that forthwith upon the making of orders, that for a period of eight weeks the child spend unsupervised time with her each Saturday from 10.00 am to 5.00 pm and that her time gradually increase to each alternate week from Friday after school until the following Tuesday.
The mother does concede the following:
(1)That the child shall attend school every day unless due to illness in which case a medical certificate is to be provided to each party;
(2)That each party is restrained from:
(a)Speaking negatively to the child about the other or that other’s family and allowing the child to remain in the presence of any other person who may be speaking negatively about the other party or their family;
(b)Exposing the child or allowing the child to be exposed to family violence;
(c)Exposing the child to illicit drug use or allowing the child to remain in the presence of a person consuming illicit drugs;
(d)Permitting or allowing or encouraging a third party to do any of the above;
(e)Drinking more than two standard alcoholic drinks while the child is in their care and from allowing the child to remain in the presence of other persons who are intoxicated; and
(f)That each party shall speak positively and politely to the other at all times during changeover and on any occasion when the child may be present in their vicinity.
It is noted that the mother does not propose that there be any opportunity for the father to request a drug hair follicle or urinalysis test nor is it proposed by the mother that she will undertake any testing before unsupervised time with the child can commence.
The mother does propose the following:
(1)That she continue to consult with B Service until such time as the treating psychologist considers it to be no longer necessary, and if it is recommended that the mother seek:
(a)A mental health care plan in which case she shall do that; and
(b)The mother shall inform the father of her attendances upon her treating psychologist every two months and notification as to when her treating psychologist advises that the mother no longer requires assistance.
In final submissions, the father’s counsel conceded that whilst the orders sought involved both alcohol and drug testing, alcohol was not a relevant focus.
TREATMENT OF THE EVIDENCE
At the commencement of the trial, the Court highlighted the provisions of Division 12A of the Act and in particular, whether the Court should dispense with the provisions of s 69ZT and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Whilst the father properly emphasised his concern as to the extent of the risk that the mother might present to the child because of her drug use and inability to support the child’s ready transition back to the father’s primary care, it was not his case that the mother presented as an unacceptable risk but rather that the risk could be ameliorated, at first instance, by the child’s time with the mother being supervised and then, consequent upon the mother establishing that her drug use and mental health issues are properly dealt with, a transition to unsupervised time.
Neither party spoke in favour of the application of the excluded parts of the Evidence Act and as such, no order was made.
THE EVIDENCE
The father
The father relied upon his trial affidavit and affidavit in reply.
The father confirmed that the focus was in respect of the mother’s illicit drug use, which he considered excessive and as having the potential to place the child at risk, together with the mother’s inability to comply with court orders and to facilitate the transition of the child between the parties with the least emotional consequence.
The father conceded that he did use illicit drugs both before he met the mother and at the start of their relationship. He was categorical in his denial of current illicit drug use.
At the time, the parties had the advantage of the notes of D Contact Centre outlining the observed interaction between the mother and the child but also noting engagement with each of the parties for the period 21 February 2023 to 21 December 2023.
To his credit, the father did not seek to diminish the significant attachment evident between the mother and the child and repeated his position that unsupervised time with the mother was to the benefit to the child provided that the mother could reduce what the father considered was a chaotic lifestyle and remain drug free.
The manner in which the child transitioned between the parties was an issue of concern at the time of the 2020 final orders. At that stage the child was two years of age. As at the date of the current trial, the child was six years of age.
The father did not accept that the mother was prepared to facilitate a ready handover but rather that she would prolong the arrangements by not being prepared to release and relinquish the child back into the father’s care.
The difficulties experienced by the child at handover were intermittent. Whilst there were times that the transition went smoothly, overall the father considered that the child expressed reluctance to return to his care and that this was exacerbated by the mother seeking to elongate the process.
It is likely that following the mother entering into a Bond to be of good behaviour and obey court orders, the handovers have become less problematic.
The father agreed that at times he listens to the calls between the child and the mother. He does so because he says that X feels uncomfortable.
The father presented as a taciturn witness and whilst I consider his evidence to be reliable, it was apparent that he did not hold the mother in high regard. The father did not impress as having any confidence that the mother would be able to comply with the regime of drug testing and therapeutic intervention.
Ms H
Ms H’s (“Ms H”) primary evidence was contained in her affidavit filed 30 April 2024.
Ms H and the father met in 2019 and commenced cohabitation two months later. The father and Ms H have a child of their relationship now aged two years old.
The father and Ms H are in a committed relationship as evidenced by their purchase of a family home.
It is apparent from Ms H’s evidence that she has a good relationship with the child which has strengthened since the orders were made that provided for the child to be in the father’s primary care.
There was not any challenge to a finding that Ms H is an appropriate and caring adult in the child’s life.
It is an unfortunate aspect of the proceedings that there is a high level of emotion expressed by each of the parties and Ms H. Perhaps unwittingly, but not surprisingly, she is strongly supportive of the father involvement in the litigation.
It is unnecessary that Ms H was asked to record and express observations of the child when the child returned from the mother’s care and to record random disclosures as appear at paragraph 34 of her affidavit. Ms H was then prompted to speak to the child’s counsellor and then report her concerns to J Services. At this time, the child was already in the father’s care and spending limited supervised time with the mother.
Ms H recognises that whilst she has substantial involvement with the child, she is a stepmother.
It is unfortunate that Ms H has been placed in the invidious position of coming into direct conflict with the mother. I do not doubt the accuracy of the various communication between the mother and Ms H from 2019 to the present but given the circumstances, it should not have been a surprise that the mother would view Ms H as attempting to supplant her position as the child’s mother. The unilateral action of Ms H taking the child for her first haircut was insensitive and was seen by the mother as a direct challenge.
The level of heated emotion is exemplified by the distressing tenor of the mother’s text messages to Ms H.
Further evidence
The trial affidavits of Mr M, Ms O, and Mr P were read into evidence without the need for the deponents to be called for cross-examination.
The mother
Much of the affidavit evidence of the mother predates the orders of 13 November 2020.
The mother was last employed as a support co-ordinating officer and it was her intention that once the proceedings had concluded she would be able to resume her employment.
Some uncertainty remained as to security of the mother’s accommodation in circumstances where at the end of 2024 she will be the sole occupant of rental premises. There is a question as to the mother’s ability, in the absence of secure employment, to maintain stable rental accommodation. The matter was not pursued, and I accept that at least for the period that the mother seeks the child spend time with her, it will be taken in accommodation that is suitable.
At an early stage in the mother’s evidence, she conceded that she would comply with an injunction that restrained the child coming into contact with the maternal grandmother.
The father sets out significant complaint and allegation that the maternal grandmother was a heavy user of illicit drugs which was not challenged by the mother.
The mother readily agreed that during the earlier proceedings leading up to the 2020 final orders, the father was consistent in his allegation that the mother was a heavy user of illicit drugs and that she had done so in front of the child. The mother also agreed that she understood the father’s case to be that her capacity to provide appropriate care for the child was compromised by her drug use.
There is little doubt that there was a focus on the extent of the mother’s use of illicit drugs reflected in numerous hair follicle and urinalysis drug tests some of which resulted in a positive result for illicit drugs consumption.
The mother also agreed that Ms V, the Court Child Expert, had recommended that she stop using illicit drugs.
At best, the mother’s evidence supports a finding that she had limited regard to compliance with court orders in particular, those contained in the 2020 final orders.
The tension in the proceedings is as to whether the significant obligation imposed on the mother to comply with orders that provided for random drug testing to occur together with open ended orders for psychological therapeutic intervention interspersed drug counselling was a hurdle unlikely to be conquered by the mother.
The mother agreed that across 2022 and 2023 she ignored numerous requests that she undergo drug testing. On occasion the mother would provide a reason as to why she was unable to comply with an appropriate request made. On 12 April 2023, the mother did not take the test because she alleged that a female tester was not available and a male was unable to collect her sample. A request made on 6 October 2023 was also not undertaken because of an assertion that the pathology department could not conduct the test until the following day. The father’s contention was that the test was taken on 26 October 2024 in order to give the mother an opportunity to produce a negative result.
The father again asked for a urinalysis test on 12 December 2024 which was not undertaken within 48 hours. The mother’s evidence as to various reasons why the drug testing could not be taken were unconvincing.
The mother admitted that she had used an illicit drug after receiving the father’s trial affidavits. It is apparent that the mother presents as emotionally fragile. Without attempting to bring into consideration a therapeutic diagnosis, the mother’s presentation was consistent with her evidence of a tragic early childhood environment. An unfortunate and somewhat distressing coincidence arises from the mother currently spending time with the child at the same supervised venue at which she saw her own mother.
The mother was asked to reflect upon the following observations of the Court Child Expert in her report dated 13 October 2020 concerning the difficulties experienced by the parties and the child at handover:
129.The writer observed that [the mother] behaved in such a manner as previously described by [the father] and [the mother] when it was time for her to hand [the child] back to [Ms H]. In response to [the child]’s moderate whingeing and resistance to parting from her, [the mother] seemed to become overly fretful, anxious and resistant to handing [the child] to [Ms H], resulting in a changeover which appeared somewhat emotionally charged and stressful for all involved. Due to the apparent stress inherent in changeovers for all parties, and particularly in order to avert further exposure of [the child] to these emotionally laden circumstances, the writer would recommend that future changeover occur at [the child]’s childcare centre or [D Contact Centre], and if changeover cannot occur at these venues, the parents each nominate a third party to facilitate changeover.
At the time, the child was two years of age and as observed by the Court Child Expert, she was entirely dependent on the parties for her needs.
It was put to the mother that the reason handovers were difficult was because she was reluctant to effect handovers. The mother did not agree that she deliberately obstructed handover or was overly emotional but rather the difficulty was that the child would not easily transition to the father’s care.
The mother conceded that as a result of the sensible suggestion by the Court Child Expert, the parties entered into an order that changeovers should occur at D Contact Centre subject to availability. For reasons that are not easily understood, notwithstanding the orders were made in November 2020, the mother did not complete the intake process until February 2022.
The proposition put to the mother was that she was being difficult by exhibiting conduct that would forestall supervised handover arrangements taking place. The mother’s explanation for her delay in completing the intake requirements with D Contact Centre was not persuasive.
Exhibit “4” comprises school attendance records for the W School between 18 April 2022 and 31 March 2023.
Noting that the child came into the father’s primary care on 10 May 2023 the following summary is relevant:
·For the period 31 January 2022 to 8 April 2022 out of 40 possible school attendance sessions, the child attended 8 sessions, with 5 authorised absences and 27 unauthorised absences.
·For the period 18 April 2022 to 24 June 2022 out of 30 possible school attendance sessions, the child attended on 8 sessions with 22 unauthorised absences.
·For the period 18 July 2022 to 23 September 2022 out of 36 possible school attendance sessions, the child attended on 20 sessions with 16 unauthorised absences.
·For the period 10 October 2022 to 16 December 2022 out of 40 possible school attendance sessions, the child attended 36 sessions with 6 unauthorised absences.
·For the period 30 January 2023 to 31 March 2023 out of 88 possible school attendance sessions, the child attended 43 sessions with 9 authorised absence sessions and 36 unauthorised absences.
Following the child coming into the father’s primary care there were no attendance issues.
The empirical attendance records whilst the child was in the mother’s care should be seen in stark contrast to the acceptable attendance records once the child was in the father’s primary care.
Whilst the attendance records speak for themselves, the mother attempted to provide some fleeting explanation as to why she was not able to ensure the child attended school regularly. Issues were raised as to the child’s health but in particular, the mother asserted that the child would be resistant to attending school because of a fear that she would go into the father’s care.
The mother’s evidence was unconvincing. Having regard to the destructive and spiteful exchange of communication between the mother, the father and Ms H it is likely that any reticence on the part of the child to attend school was in part fuelled by the mother’s attitude and mistrust of the father and Ms H.
The following text exchange between the parties provides a convenient summary as to the dysfunctional relationship that currently exists:[1]
Mother:          Fuck iff you stupid prick!!!
Father:How am I letting anyone disrespect [X] and her mother. You’re honestly stupid [Ms Hackford]. You put up them childish question things what you expect. Grow the fuck up you idiot.
Mother:          Are you fucking kidding me????
Father:Grow up you idiot. Fuck off before you make me hurt myself again!!!!!!!!!! You lowlife cunts!!!!!!!!
Father:You’re honestly stupid [Ms Hackford] and you want to stop threatening [X]. She did fuck all to you now grow up.
[1] Father’s tender bundle, page 40.

A significant aspect of the proceedings was in relation to the mother seeking assistance to better enable handovers to occur.
The D Contact Centre notes provide some detail as to occasions when handover occurred without incident for as on other occasions, the mother was recorded as being reluctant to allow the child to transition in the care of a third party nominated by the father.
On occasion, the supervisor at D Contact Centre was required to intervene and to counsel the parties that the child cannot be made to go to the father but that the mother was required to support and facilitate handover.
The evidence enables a finding that whatever may have been the mother’s motivation, at times the mother’s response to the child’s distress was not to facilitate time. The mother conceded that there were extended periods of up to four weeks that the child did not see the father.
It is a relevant observation that much of the evidence of the parties is mired in the past. Whilst initially the subject of strong opposition, the mother now concedes that the child should remain in the father’s primary care. The scope and focus of the proceedings is of more narrow compass given the father’s stated position that he would welcome the child spending significant time with the mother providing it was safe to do so.
Whilst at present the father complains of the mother being late for handover, his principal concern is as to the mother’s sobriety and should the mother’s time be unsupervised, whether she will be able to facilitate the child returning to the father’s care.
The father has raised concerns as to the child being at risk of neglect when in the mother’s care.
The father alleges that when the child was living primarily with the mother, she would come into his care dirty and unkept. In early 2023 the father records that the child had an infection.
Between January and February 2023, it appears that the father alerted the mother to the existence of hair nits. The mother agreed that the child did have a nit infestation, but it is her evidence she rendered appropriate treatment.
Whilst it is not possible to resolve the differing evidence of the parties and the veracity of their separate assertions, the father is on stronger grounds when considering the child’s dental health upon her transition to his primary care.
The evidence enables a finding that the mother rendered poor dental care and hygiene to the child which required significant dental intervention.
When asked, the mother’s response was that another child secretly gave the child lollies and that the child used her toothbrush to brush her doll’s hair. The mother’s evidence relating to the child’s dental hygiene was unconvincing.
The mother did not present as an impressive witness. She was not able to accept responsibility for allowing the child’s frequent non-attendance at school and in terms of health considerations, her lack of attention to the child’s deteriorating dental health is without explanation.
Where there is conflict, the evidence of the father is to be preferred. However, it must be remembered that the significant consequence for the lack of diligence by the mother in providing for the needs of the child is reflected in the change of primary care in favour of the father and the mother’s time with the child being subject to strict supervision for an extended period.
Psychiatric Assessment
By Consent Order made 19 June 2023, the mother was required to undertake a psychiatric assessment.
The preparation of a s 62G(2) Family Assessment Report was contingent upon the completion of the psychiatric assessment. The nominated psychiatrist was to be provided with the following information:
(1)The terms of assessment;
(2)Copies of all documents subpoenaed material including the family report prepared by Ms Y; and
(3)A copy of the judgment delivered by Judge Burt on 14 March 2023 in relation to the Contravention Application filed by the father.
Dr U was instructed to undertake the independent psychiatric evaluation. He received written instructions from the ICL by letter dated 19 September 2023.
Dr U was provided with a history of the mother’s unfortunate family circumstances which resulted in the mother being cared for by Child Protection including, being placed into care with strangers and in group homes.
It appears that Dr U gave considerable consideration to a history of relevant events involving the mother’s relationship with the father pre and post separation with a particular focus on the mother being overwhelmed by her circumstances to a point where she suffered from suicidal ideation highlighted by various acts of attempted self-harm. Dr U considered that the mother’s presentation with attempts at self-harm and the use of illicit drugs to self-medicate was a response to the breakdown of the relationship with the father and the ongoing disfunction within the maternal family.
A mental state examination revealed that the mother presented as alert and attentive with the range and amplitude of her affect within normal limits. Dr U did not consider that her judgment was impaired, nor did she present with psychotic symptoms consistent with delusions or abnormalities.
Dr U considered that his assessment should include psychiatric testing comprising of the Personality Assessment Inventory (“PAI”), Critical Items Test and the Standardised Assessment of Personality-Abbreviated Scale (“SAPAS”). Dr U interpreted the results of the PAI which identified some items consistent with post-traumatic symptoms. The mother returned a result for the SAPAS as suggesting some personality vulnerabilities.
Dr U had the advantage of documents comprising the Court file, a Family Assessment Report dated 5 April 2023 and notes from D Contact Centre detailing the observed interaction between the child and the mother from 2021 to 2023. He also had access to subpoenaed material from police drug testing results and a report by Dr Z of 29 September 2020 providing a more detailed analysis of the test results to the effect that the urinalysis and hair follicle testing in 2020 produced results that were consistent with regular illicit drug use.
Dr U considered that the mother’s current mental health and emotional wellbeing as at the date of the report highlighted that whilst she was experiencing emotional distress, she was coping reasonably well given the recognition that litigation is a significant stressor. A more comprehensive summary of the mother’s presentation is as follows:[2]
When taking into account the factors I have just discussed, it is my clinical opinion, based upon a reasonable degree of medical probability that [the mother] is suffering from unprocessed trauma due to her childhood experiences. The [illicit drug] use disorder is in remission. She has some personality vulnerabilities and I note she has been somewhat impulsive and has threatened deliberate self-harm and she punched the bonnet of a car. She has been charged by the police on a number of occasions. She is not suffering from a Borderline Personality Disorder but she has some cluster B personality traits. I would review these opinions if the decision-maker finds a number of the assertions made about her accurate. In this circumstance, I would be of the opinion that she would be seen to have more significant personality psychopathology and it would be seen to be cluster B traits in the setting of unprocessed trauma.
If [the mother] is internally motivated and if she has the treatment described below, her prognosis is favourable and she is likely to show significant improvement in the next 12 months. I am concerned that she considers there is nothing wrong with her and this may lead to avoidance of therapy.
[2] Report of Dr U dated 26 September 2023 at p 28.
Dr U suggested that the mother would benefit from treatment that would confront her traumatic memory of her childhood experiences. This may involve cognitive behaviour therapy with a focus on trauma and developing insight that would address personality issues.
It is an unsurprising observation by Dr U that chronic illegal drug use is likely to impair the mother’s ability to adequately parent the child. If the mother is able to moderate or preferably abstain from illegal drugs and engage in appropriate therapeutic intervention, unsupervised time was a reasonable option.
Dr U emphasised that the standard to be considered is that of “good enough parenting” as opposed to an unachievable gold standard.
Dr U was not required for cross-examination and as such his report should be afforded significant weight.
Ms S
Ms S is a Clinical Psychologist employed by L Health Service.
Ms S is employed at B Service and has provided therapeutic services and intervention to the mother since mid-2023. As at the date of her progress report dated 25 June 2024, the mother had attended nine sessions with further sessions having been planned.
Ms S sets out an important precursor to her evidence concerning the utility and efficacy of court instructed therapy:[3]
I would like to begin by addressing the Court’s instruction for [the mother] to participate in mental health treatment in the form of psychotherapy, with a focus on treating past trauma. For individuals to benefit from therapy, especially trauma‑focused treatment, there must be an intrinsic sense of safety in the relationship with the treatment provider, as well as the setting and circumstances under which they are accessing treatment. I am concerned that by mandating that [the mother] participate in therapy, this may have unintended consequences that impact on progress.
When an individual feels coerced into participating in therapy, this may trigger feelings of anxiety, mistrust in the treatment provider, and powerlessness, which can exacerbate the very symptoms that brought them to therapy in the first place. If the client has a trauma history, it can also cause re-traumatisation for the client, recalling previous experiences of feeling controlled, manipulated or stripped of autonomy. I believe this has been the case with [the mother] to some degree, and that she would benefit from having more choice and agency around her involvement in therapy going forward.
[3] Progress Report of Ms S dated 25 June 2024 at page 1.
The therapeutic focus to date has been upon the mother’s social and emotional wellbeing. Ms S reports that the mother “has shown remarkable resilience and adaptability and has been willing to participate meaningfully in discussions and reflections, even when this has been a difficult or painful process for her”.
Ms S has recognised that the mother would benefit from engaging in trauma focussed treatment which is not yet able to be commenced due to the high level of emotional stress caused by the relationship breakdown, the consequential highly charged litigation and her significant separation from the child.
I am satisfied that Ms S is an appropriate resource for the mother if it is her intention to engage in future therapeutic assistance.
At this stage, I considered it likely that if some stability can be restored to the mother’s life, then she is prepared to seek further assistance in terms of her trauma reprocessing.
Family Assessment Report
As considered, there have been three Family Assessment Reports prepared. Ms V prepared a report dated 30 September 2020 and a more recent report dated 19 October 2023. As part of the contravention proceedings and the further orders made, Ms AA prepared a report dated 31 March 2023.
Ms V considered that her most recent report should be read in conjunction with her earlier report.
Even the most cursory consideration of the first report sets out the tumultuous relationship that existed between the parties leading up to their separation. The important consideration by Ms V in the first report is her focus on the close emotional attachment that each of the parties shared with the child even though the interparental relationship was highly conflicted and dysfunctional.
The early observations of the mother were that she had a strong and loving relationship with the child and at the time, the child presented as being well cared for. There was no apparent diminution in childhood milestones being achieved.
Observed interaction between the child and each of the parties demonstrated comfortable involvement with the child to the extent that Ms V considered a “parallel” shared care parenting arrangement was possible subject to the parental conflict presenting as an insurmountable barrier.
As to matters of drug and alcohol use, the following appears in the first report:
120.Regarding parental consumption of illicit drugs and alcohol, both parents alleged previous problematic consumption of alcohol on weekends and consumption of [illicit drugs] during their relationship, and [the father] alleged that [the mother] has continued to consume [illicit drugs].
Ms V considered that if the mother’s consumption of illicit drugs was limited and only occurred when the child was not in her care then it would not pose a significant risk of harm. If the mother was engaged in more regular consumption, then that would present as problematic and a potential risk to the child.
An early observation of Ms V was that the evaluation focussed disproportionately upon the mother. At the time, Ms V considered that the child was well cared for and happy in the primary care of the mother and spending significant time with the father.
It is apparent that the report was likely the catalyst for the parties reaching agreed final orders and that her recommendations were largely adopted.
Ms V had the advantage of assessing the impact on the child of the change in primary care arrangements. At the time of the assessment, the father still considered that providing it was safe to do so, it was important for the child to maintain a strong relationship with each of the parties.
As discussed, the father’s concerns involved what he considered were the emotional nature of the handovers, the effect of the mother’s resistance upon the child, poor school attendance and safety issues arising from his belief that the mother may well be consuming illicit drugs to excess.
Consistent with her earlier presentation the mother presented as distressed and tearful with a continuing focus on the loss of her relationship with the child.
The mother summarised her current circumstances to Ms V in the second report as follows:
23.[The mother] reported she had adhered to court orders regarding attendance at counselling with a psychologist, undertaking drug testing when requested, and had made significant changes in her life, such as gaining full-time employment and her own accommodation. [The mother] denied that when [the child] previously lived with her that she had witnessed violence between them or had been exposed to drug and alcohol use in their home.
The mother also is recorded to have observed that the child seems more settled now than in the parenting arrangement that existed in 2023.
The extent of the mother’s insight into the current circumstances was recognised to be an important consideration. Ms V summarises the mother’s presentation in her second report as follows:
63.[The mother] did not understand why [the child] had previously so strongly resisted transitioning to her father’s care or going to school and asserted she had genuinely tried everything to facilitate [the child]’s smooth transition from her care. She agreed [the child] should live in a safe environment free from adult conflict and substance abuse and gave the impression she is committed to ensuring this. To her credit, [the mother] insightfully considered that [the child]’s reversal of care may have facilitated an experience of feeling safe and comfortable in her father’s care, which may be attributed to her newly displayed emotional regulation at changeovers. [The mother] hoped she will continue to feel comfortable transitioning between them. [The mother] expressed a wish to develop a civil and cooperative parenting relationship with [the father] and [Ms H] for [the child]’s benefit. She believed it best for [the child] that she live equally between her and [the father] and was worried about the emotional impact on her if she continues to be separated from her into the future.
It is a significant observation that a period of 11 months has now passed since the second report was prepared with the child now presenting at six years of age and the mother’s time having been consistently taken of limited duration and under strict and professional supervision.
To the extent that Ms V was able to consider information concerning observed interaction conducted at D Contact Centre, it was apparent that the relationship between the child and the mother was important, intact and to the extent that it is safe to do so, should be supported.
Ms V supported the Court’s decision to reverse the care arrangements but considered it of significant importance to the child that if it is reasonable to do so, there should be a resumption of regular unsupervised time with the mother.
Ms V suggested that the child should spend unsupervised time with the mother each Saturday from 10.00 am to 5.00 pm for a period of eight weeks which should then increase to each alternate weekend from after school on Friday until Sunday morning at 10.00 am eventually extending through to the following Tuesday morning. The recommendations of Ms V are predicated upon the Court being satisfied that the risk factors are mitigated in terms of the mother’s illicit drug use.
Again, as an indication of the overwhelming focus on the mother and her circumstances, Ms V considered it important that neither party be under the influence of illicit drugs or above the legal limit of alcohol when caring for the child.
STATUTORY FRAMEWORK
I consider it necessary that I adopt the approach that brings to account the practical reality of the separate parenting proposals of the parties.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interests test is to be considered by the application of the two objects of s 60B of the Act and to have regard to the provisions of s 60CC in order to determine in each case what is in the child’s best interest.
Subject to the parties seeking a Consent Order, s 60CC(1) of the Act requires the Court to consider the general considerations as set out in ss 60CC(2) and (2A) which places emphasis on any history of family violence, abuse or neglect and any family violence order if consideration is to be given to arrangements that would promote the safety of either a child or a party from family violence, abuse, neglect or other harm.
A consideration of the question of the child’s safety is intended to emphasise a consideration as to how the future may be informed by past history.
The focus of the relevant provisions of the Act are to ensure the best interests of the children, as opposed to the parties, is a preeminent consideration.
I consider that whilst the Act does not make specific mention of the importance of the children having a meaningful relationship with each of the parties, it is likely that the best interests of a child will be served if a relationship with a party, parent or another person who may be significant to the child is maintained providing it is in all the circumstances safe to do so and will be of an advantage to the child.
A further relevant consideration arising in respect of the application of s 60CC(3) of the Act which requires the Court to consider the following matters:
(a)The child’s right to enjoy the child’s Aboriginal Torres Strait Islander culture by having the support, opportunity and encouragement necessary:
(i)To connect with, and maintain the connection with, members of the family and with their community, culture, country and language; and
(ii)To explore the full extent of that culture, consistent with the child’s age and development level and the child’s view; and
(iii)To develop a positive appreciation of that culture; and
(iv)The likely impact any proposed parenting order under this part will have on that right.

Section 61D gives consideration to parenting orders and parental responsibility. Section 61D(1) of the Act provides that:
A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
In the present case, the father seeks a parenting order that allocates sole responsibility to him for making decisions about major long-term issues. The mother seeks an order for joint decision making.
I consider that the determination as to whether an order should be made under s 61D(3) of the Act concerning the allocation of responsibility for major decision making is informed and to be determined by a consideration of the best interests of the child consequent upon the application of the considerations in s 60CC.
PARENTING CONSIDERATIONS
Is the child at risk?
In Harridge & Harridge [2010] FamCA 445 Murphy J, referred to N & S & The Separate Representative (1996) FLC 92-655, and adopted the following list of inquiries with respect to risk assessment and analysis:-
73.      …
(1)       What harmful outcome is potentially present in this situation?
(2)       What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
(B Mahendra, ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569).
Each of the parties allege that the relationship was marred by family violence. It is however conceded by each of the parties and inherent in the orders that they seek that the relevance of their separate allegations of family violence may provide some understanding as to the high level of mistrust and the current dysfunctional interparental relationship. There is scant evidence as to the extent to which family violence was perpetrated. Each of the parties focus on other aspects of their relationship.
For his part, the father considers that the mother has a continuing problem with the consumption of illicit drugs to a level that is not recreational but rather likely to adversely impact upon her parenting capacity. The risk can be ameliorated by the child’s time with the mother being the subject of strict supervision.
For her part, the mother contends that the father has always attempted to undermine her relationship with the child and whilst she admits that at times her consumption of illicit drugs was excessive, she says that it was the combination of the breakdown of the relationship that exacerbated a psychological frailty which pre-existed from her childhood experience.
There has been an understandable focus in both Consent Orders and also orders made after the contested hearing as to the need for the mother to address her purported excess illicit drug use and mental health issues that apparently were seen as important in the mother being able to support the easy and less emotional transition of the child between the parties.
The mother has not been diagnosed with a defined mental health condition. Dr U considered that whilst some aspect of the mother’s presentation might satisfy in part some of the diagnostic criteria for a borderline personality disorder, such a diagnosis could not be made. The mother was considered to have personality issues that Dr U considered may have their genesis in unresolved family trauma.
To the extent that the focus on the mother’s mental health was an attempt to enable her to support the child returning to the father’s care, there is now a very different scenario to that which existed at the time of the psychiatric assessment and the family report.
As discussed, the mother’s time with the child has been the subject of strict and ongoing supervision for more than a year. Eleven months have passed since Dr U’s report.
The parties agree that the Court can have regard to the notes prepared by D Contact Centre across the entire period that the parties have engaged with the service but in particular, in terms of the more recent period up to and including August 2024.
It is a feature of the notes that they are detailed and comprehensive in their observation of the mother’s interaction with the child. I do not propose to slavishly include the detailed notes but there is a consistent pattern that the mother and the child engage in delightful and loving interaction. It is a common overview by those who observed the mother’s interaction with the child that the sessions were uneventful.
In Ms V’s first report in 2020, she commented on the state of the relationship between the mother and the child who at that time was two and a half years of age. Despite the trials and tribulations experienced by the parties and the child to the present date, a consistent theme has been the strength of the mother’s relationship with the child, the clear evidence of a strong emotional attachment and by reference to the observation notes, the importance to the child of maintaining a relationship with the mother.
The transition of the child between the parties has now settled into a routine that appears to be more easily navigated by the child.
There is little evidence that would assist me in determining whether the child will find it more or less difficult to transition between the parties should the time with the mother be of longer duration and unsupervised.
Even so, both parties recognise the importance of the child’s relationship with the mother being supported.
Whilst the report of Dr U recommended that the mother undertake therapeutic assistance in relation to unresolved childhood trauma, I am satisfied from the evidence of Ms S that as soon as the stressors that arise from the current round of litigation are resolved, opportunity exists for the mother to continue her involvement with Ms S and to better target the next stage of therapeutic intervention.
The evidence of Ms S that spoke against a party being forced by court order to engage in unwanted therapeutic intervention was impressive. Whilst the mother’s evidence was at times unreliable, her commitment to resuming a relationship with the child was on more certain ground. The evidence of the mother’s multiple sessions with the child, support that finding.
The evidence of Ms V was also supportive of the advantages to the child of resuming a relationship that is likely to be more satisfying than the artificiality of the child spending two hours a fortnight under supervision with the mother.
The mother is prepared to continue to consult with Ms S and to the extent that it is part of the orders that the mother seeks, is an indication of the mother’s willingness to seek ongoing psychological support.
The decision of the Full Court in L v T (1999) FLC 92-875 considered of an order made that a party attend upon a psychiatrist “for assessment of her present psychiatric state and thereafter abide by such therapy program as is recommended by such a psychiatrist”. The issue was considered by the Full Court at 86,391 as follows:
51.Whilst we have no doubt that an order could be made that a party attend upon a psychiatrist and undergo therapy as a condition of either a residence order or a contact order, we have significant doubt as to whether such an order can be made as a self-standing order. The Court’s power to make any orders in circumstances such as these has to be found within the confines of ss 65D(1), 67ZC, 68B, or 114.
The Full Court considered that the Court does not have power to make orders that require the parties to do things on the basis that the Court might consider it would serve the best interests of a child.
It is also a reasonable proposition that even if the Court considered that as part of a parenting order a party is required to undertake psychological or psychiatric assessment, the course and conduct of the therapeutic intervention is not able, by order, to be determined by the therapist. To do so would be an abrogation of the jurisdiction of the Court.
The further risk that is associated with the mother’s care of the child concerns her current consumption of illicit drugs.
It is unfortunate that the mother was not more proactive in seeking to present evidence to the Court as to her current illicit drugs use. The father requires that the mother be drug free whereas the reality is a finding on the evidence that the mother is likely to continue to use illicit drugs recreationally and consistent with her own evidence, potentially at times when she is under stress.
The mother’s history of illicit drug use and in particular the various orders requiring urinalysis and hair follicle testing is chequered.
Ms V’s evidence was that it would be unrealistic to have the mother’s total abstinence from illicit drugs as a precondition for a resumption of unsupervised time. What is required is that the Court can be satisfied that when the child is in the mother’s care her parenting will not be compromised by illicit drug use.
Whilst there has not been evidence presented by the mother as to her sobriety in 2024, an important consideration is that there is no observation or concern expressed in the D Contact Centre notes as to a concern that the mother was in any way affected by illicit drugs.
The mother seeks extensive orders of restraint in respect of each of the parties including an order that the parties are restrained from exposing the child to illicit drug use or allowing the child to remain in the presence of a person consuming illicit drugs.
I do not ignore the considerable benefit that the mother has gained from her involvement with Ms S. I am able to find that if the mother engages with Ms S as she indicates is her intent, the therapeutic assistance provided will be of considerable benefit.
The further risk raised by the father relates to the mother’s lack of diligence in ensuring that the child attended regularly to school when in her care.
I have found that the mother’s evidence was unreliable as to her explanation for the child’s poor attendance record. It must be remembered however that the child will remain in the father’s primary care and even on the high-water mark of the mother’s case, she would be responsible for taking the child to school on 2 days per fortnight.
I do not ignore that the mother seeks extensive orders concerning ensuring that the child attends school. Those orders should be properly directed to the mother and not the father.
I consider that the risks properly raised by the father are able to be ameliorated by appropriate orders being made requiring the mother as a condition of the mother’s time being unsupervised to undergo urinalysis testing and to exceed to the mother’s own order that she intends to continue with Ms S. I also propose to limit the mother’s time to three days per fortnight to reduce the opportunity for the child’s school attendance to be compromised.
Wishes of the child
The child has given a clear indication to the report writer that she delights in spending time with her mother.
The observational reports are entirely consistent with the opinion expressed by Ms V as and from the 2020 report.
I am not able to determine what may be the future changes if orders are made consistent with the separate proposals of each of the parties however, I am satisfied that there is a good basis for the parties each to seek that the child’s time with the mother is extended in duration and is absent of supervision.
The developmental psychological emotional and cultural needs of the child
Both parties impress as wanting to support the child’s aboriginal heritage.
The mother is a First Nation woman. The father is a First Nation Man.
The mother contends that she has always been in touch with her culture and when able to do so promotes not just her own culture but also the language and symbols of the father.
Whilst the mother complains that the father at times has been disparaging of the mother’s purported connection to country and culture, the evidence of Ms N (“Ms N”), the paternal grandmother, was impressive. Ms N retains fluency in a First Nation language and her intended engagement with the child in terms of promoting culture and heritage is appropriately summarised in the following paragraph:
19.I have witnessed that the more attuned Indigenous children are to their culture, the more confident they are about their Aboriginal identity. I do not want [the child] to feel unsure about her culture or her identity. I do not want her to reject her identity or feel disconnected from it. I will do my best to make sure that [the child] grows up to value her culture and heritage so that she is confident about her family connections (paternal and maternal) and her Aboriginal identity.
It is a trite observation that the current circumstances provide for the child to receive education, training and knowledge of the father’s connections which is more likely than would able to be promoted by the mother given limited time available to her.
Whilst the development of the child’s cultural needs is not to be given more weight than any risks to which the child may be subjected, it is an important consideration in determining that the child’s best interests would be served remaining in the primary care of the father but spending more time with the mother providing it is safe to do so.
The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s needs
The mother seeks to share the decision making for major issues with the father. As discussed, parental responsibility and any orders that are to be made that allocate parental authority for major decisions is to be informed by the best interests of the child.
The parties have been in high conflict since 2014. The entire life of the child has been against the backdrop of litigation albeit at times intermittent.
The presentation of the parties was redolent with barely contained hostility. It is likely that even though the father proposes unsupervised time should the mother be able to satisfy the various terms and conditions that would apply, his mistrust of her is readily apparent and likely to continue.
The mother considers that the father has embarked upon a campaign to remove her from the child’s life and to replace her with Ms H. She will not be easily persuaded otherwise.
There is little that would suggest either of the parties and for that matter Ms H, have moved on from their vitriolic attack on each other.
The father highlights that when the child was in the mother’s care she was not able to adequately provide appropriate levels of hygiene, dental care, reliable school attendance and personal hygiene. Under cross-examination I found that the mother’s evidence was unsatisfactory.
Ms V holds a strong opinion that the party who retains the child’s primary care should also retain sole parental responsibility and authority for major decisions.
From the child’s perspective, she has been required to navigate highly contested litigation, removal from the mother’s care to that of the father and the emotional upset observed at handover resulting in her only being able to see the mother for short periods in difficult circumstances.
The evidence enables a finding that the child’s needs are best catered for by the father in association with Ms H. Ms V made appropriate enquiries of the child’s school and the objective evidence is that the child now attends school regularly, has maintained good dental and physical health in the care of the father and is developing appropriately. In some respects, the manner in which the child is able to interact with the mother during supervised visits is also confirmation of the child being able to develop appropriately and consistent with expected milestones.
As such I consider that the child would be disadvantaged by either no order being made for parental responsibility, or an order as sought by the mother.
The thrust of the amending legislation that came into effect on 6 May 2024 was intended to focus the Court as to the needs of the child rather than the parties.
CONCLUSION
I propose to make orders for parental responsibility as proposed by the father in his Amended Minute of Order (Exhibit “2”).
There is no contest to the child remaining in the primary care of the father.
I propose to order that for a period of six weeks, the child shall spend unsupervised time with the mother each Saturday from 10.00 am to 5.00 pm. Orders will be made restraining the mother from consuming illicit drugs for any period commencing 24 hours before the child comes into her care and during the period of actual care.
Thereafter, and subject to the mother presenting two clear urinalysis tests to be taken not less than one week apart and not more than two weeks apart, the mother’s time shall be extended during school term time to each alternate weekend from after school (or 2.30 pm) on Friday to Sunday at 10.00 am and then, for block periods during school holidays as promoted by the father.
The mother’s time during school terms shall increase to the mother returning the child to school on Monday morning (or 4.00 pm if a non-school day).
The parties are broadly in agreement as to matters relating to the child spending time with each of the parties on special occasions including Mother’s Day, Father’s Day, the birthdays of the parties, the child’s birthday, the Christmas and Easter periods.
Should either or both of the urinalysis tests show a positive result for illicit drugs then the mother’s time with the child shall be daytime only with overnight time to resume only upon the mother presenting two negative urinalysis tests to be taken not less than one week apart and not more than two weeks apart.
The parties are agreed that all handovers that do not take place at the child’s school are to occur at D Contact Centre.
The orders promoted by the father in terms of communication are consistent with the evidence.
I propose to put in place injunctions mutually sought by the parties including that the mother is restrained from leaving or permitting the child to have contact with the maternal grandmother Ms C unless consent is given by the father.
I do not propose to order that the parties attend upon any parenting course or program as sought by the mother. The parties are well aware of the circumstances, and I consider that their separate positions are likely to be well entrenched.
The mother proposes that she continue to consult with B Service until such time as the psychologist considers it to be no longer necessary.
As considered, there is significant advantage to the child if the mother voluntarily seeks therapeutic assistance. I do not propose to force the mother to seek psychological intervention but rather accede to the order that the mother seeks. Presumably it is of sufficient importance that I propose to require the mother to attend six sessions with Ms S or other suitably qualified professional as a further precondition to the mother commencing overnight time. I do not propose to require the mother to continue psychological intervention at the behest of the psychologist.
There was scant evidence as to the need for the child to continue with psychological intervention. The observations of the child by D Contact Centre, the Court Child Expert and the child’s school are all to the effect of a child coping well and meeting significant developmental milestones. I do not consider that there is any utility in the child’s further attendance for psychological intervention or counselling. In any event, it is a matter for the father given he has sole parental responsibility to consider whether any continuation of therapeutic assistance is necessary.
I make orders as appear at the commencement of these reasons.

I certify that the preceding two hundred and sixty-four (264) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.

Associate:
Dated: 19 September 2024

File number(s):	ASC 17 of 2019
Judgment of:	BERMAN J
Date of judgment:	19 September 2024
Catchwords:	FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Where the mother seeks orders to share the joint decision-making – Where the father opposes the same – where the parties have been in high conflict litigation for five years – Where there is no co-parenting relationship – Where the parties are unable to communicate – Where the child previously lived with the mother – Where the mother was unable to take the child to school or provide appropriate levels of dental and hygiene care – Order for the father to have sole decision making. FAMILY LAW – CHILDREN – With whom a child spends time with – Where the child lives with the father and spends supervised time with the mother – Where the mother seeks orders for unsupervised time – Consideration of best interests – Where the child wishes to spend more time with the mother – Where the father supports the relationship provided it is safe – Consideration of risk – Where the mother uses illicit drugs – Consideration of whether the mother’s parenting capacity when using illicit drugs – Whether the Court can be satisfied that when the child is in the mother’s care her parenting will not be compromised by illicit drug use – Consideration of whether the mother can ensure the child attend school – Where the risk can be ameliorated by appropriate orders – Orders made for the mother to spend unsupervised time with the child on a condition of urinalysis testing results.
Legislation:	Family Law Amendment Act 2023 (Cth) Family Law Act 1975 (Cth) Div 12A, ss 60CA, 60CC, 61D, 69ZT, 70NEB
Cases cited:	Harridge & Harridge [2010] FamCA 445 L v T (1999) FLC 92-875 N & S & The Separate Representative (1996) FLC 92-655
Division:	Division 1 First Instance
Number of paragraphs:	264
Date of hearing:	6,7,8, 26 & 28 August 2024
Place:	Heard in Alice Springs and Darwin, delivered in Adelaide
Counsel for the Applicant:	Ms Giacomo
Solicitor for the Applicant:	Darwin Family Law Pty Ltd
Counsel for the Respondent:	Mr Casey
Solicitor for the Respondent:	Jones Elferink Barristers & Solicitors

Table of Corrections
30 September 2024	In paragraph 256 the words “suspended for a period of three months and” are replaced with “daytime only with overnight time to” and adding at the end of that sentence after the words urinalysis tests “to be taken not less than one week apart and not more than two weeks apart.
30 September 2024	In paragraph 262 the word “unsupervised” is replaced with “overnight”.

ASC 17 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR ALAMEDA Applicant
AND:	MS HACKFORD Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	19 SEPTEMBER 2024