Hatzis & Hatzis

[2021] FCCA 1700

FEDERAL CIRCUIT COURT OF AUSTRALIA

Hatzis & Hatzis [2021] FCCA 1700

File number:	CAC 2635 of 2020
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	18 June 2021
Catchwords:	FAMILY LAW ­ Parenting ­interim hearing ­ time the children are to spend with the mother ­ where there are concerns about the mother’s drug use ­ strained co-parenting relationship between the parties ­ consideration of best interests of children ­ consideration of courts protective responsibility.
Legislation:	Family Law Act 1975 (Cth), ss 60CA, 60CC
Number of paragraphs:	22
Date of hearing:	1 June 2021
Place:	Canberra
Solicitor for the Applicant:	Pearson Emerson Family Lawyers
Counsel for the Applicant:	Mr M Kearney SC
Solicitor for the Respondent:	Phelps Reid Foster Johnson
Counsel for the Respondent:	Ms M Davis
Solicitor for the Independent Children's Lawyer:	Legal Aid ACT

ORDERS

CAC 2635 of 2020

BETWEEN:

MR HATZIS

Applicant

AND:

MS HATZIS

Respondent

ORDER MADE BY:	JUDGE W J NEVILLE
DATE OF ORDER:	18 JUNE 2021

THE COURT ORDERS THAT:

1.The children W born 2004 ("W"), X born 2005, Y born 2008 and Z born 2009 (collectively "the children") shall live with the Father.

2.Pending W returning to live at either the Father's home or the paternal Grandmother's home the Father shall facilitate the paternal Grandmother, or another responsible adult known to W, to live with W to provide care and support, likely at the former matrimonial residence at Suburb A.

3.The child W shall reside at the Suburb A Property with her Paternal Grandmother for the foreseeable future.

4.The Mother be restrained from attending the Suburb A Property and engaging with W.

5.In the event of non-compliance with Order 5 by the Mother, all time between the Mother and the children will be suspended.

6.The Mother must provide the Court with a minimum of 4 months of clear drug screens.

7.Upon the Mother’s commencement of a 3 month intensive rehabilitation course, and subject to the availability of a supervisor, the children X, Y and Z shall spend supervised time with the mother as follows:

(a)Each Tuesday between 4.00pm and 6.00pm;

(b)Each alternate Sunday from 11.00am until 5.00pm;

(c)On each of the children's birthdays if not otherwise spending time with the mother:

(i)If a school day – from 4.00pm to 6.00pm;

(ii)If not a school day – from 12 midday to 3.00pm;

(d)Additional time during school holidays as agreed, and failing agreement Tuesdays from 11.00am until 6.00pm.

(e)Such other times as agreed to between the parties in writing.

8.The Mother's time with the children shall be supervised by such supervisor as agreed between the parents in writing and, failing agreement, by a supervisor from Contact Centre B or the Contact Centre C, with the Father to meet the costs of supervision.

Communication

9.The Mother may acknowledge SMS and other messages from the children, and offer her love and support, but she must not do or say anything else.

10.The Mother shall be at liberty to speak to the children on the phone between 8:00pm and 8:30pm each Thursday night.

Restraints

11.The Mother be restrained by injunction from:

(a)attending at the children's school, School D;

(b)attending the parties’ Suburb A property;

(c)driving a motor vehicle with the children or any of them as passenger;

(d)acting as supervisor driver for W as a learner driver;

(e)consuming illicit drugs or substances 48 hours prior to and/or during times she spends with the children or any of them;

(f)encouraging, facilitating or inviting the children to spend time with her otherwise than in accordance with these Orders;

(g)discussing these proceedings or any allegation made in these proceedings;

(h)facilitating or permitting the children to view any document filed in these proceedings;

(i)denigrating the Father or members of the Father's family or household to the children; and

(j)communicating with the children or any of them save as provided for in these orders.

Recovery Order

12.If the Mother again removes, retains or takes possession of Z born 2009 ("the child") otherwise than in accordance with Court orders the Marshall, all officers of the Australian Federal Police and all Officers of the Police Forces of all the States and Territories of the Commonwealth of Australia be authorised and directed with such assistance as they require and if necessary by force to:

(a)Arrest, without warrant, the mother;

(b)Stop and search any vehicle, vessel, aircraft, premises or place in which there is at any time reasonable cause to believe that the said child may be found for the purpose of finding the child;

(c)Recover the child; and

(d)Deliver the child to the father.

13.The Recovery Order referred to in Order 13 shall remain in the Registry. It shall be activated by notice to the Court of non-compliance with these Orders by the Mother in relation to “live with” and/or “spend time with” Orders.

Mediation

14.Following:

(a)The Mother completing a residential rehabilitation treatment of not less than 16 weeks; and

(b)Provision of a hair follicle test results from the Mother, which is negative to all illicit substances, with the test to cover the period 3 months following the Mother's release from the residential rehabilitation treatment centre, the parties shall attend mediation on a mutually convenient date and use their best endeavours to agree upon future parenting arrangements for the children.  

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Hatzis & Hatzis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE W J NEVILLE:

Introduction

1. On 18^th June 2021, abbreviated oral reasons were delivered for the Orders that were made that day.  What follows are those reasons revised from the transcript.[1]

   [1] There has been a slight delay in finalising the written reasons because I was on leave for health reasons for a period of time.  I also took a short period of personal leave.

2. In previous decisions (there have been a few in the 6 months or so since the matter commenced in the latter part of last year) I have outlined the basal issues between the parties as well as some basic factual background.  To avoid completely needless repetition and further waste of scarce resources, I need not do so again, except to note the following.[2]

   [2] For ease of reference, notwithstanding that there has not been a request for them, Annexure A to these reasons is a copy of the abbreviated reasons delivered on 17^th February 2021, and Annexure B is a copy of the abbreviated reasons delivered on 7^th May 2021.

3. The respective outlines of submissions by the parties should be taken to be incorporated into these abbreviated reasons, thus (footnotes omitted):

   CASE OUTLINE DOCUMENT on behalf of the Father

   1. These proceedings, commenced on 23 November 2020, relevantly concern competing applications for parenting orders in respect of four children (aged from 11 to 17 years). On 16 December 2020 interim parenting Orders were entered on a consensual basis, providing inter alia for the children to live with the father and spend time on a supervised basis with the mother, and restraining each parent from discussing the proceedings (and allegations raised in the proceedings) with the children [the Orders].  The Orders were made in the context of and against a background of contentions by each party including as to drug and alcohol abuse by the other and, on the part of the father, as to risk to the children in the care of the mother consequent inter alia upon her acknowledged history of drug use and abuse for which she was seeking treatment at the time.  A series of other relevant orders have also been made since that time.

   2. Since the entry of the Orders:

   2.1 whilst the reasons for the same are in issue, it appears common ground that the mother had failed to comply with the Orders and in particular those for the supervision of her time with the children and failed to effect the return of the children to the father’s care [E-12, 20, 35] until entry of an FVO in Court I which has the effect of prohibiting certain actions and conduct by the mother other than in accordance with orders pursuant to the Family Law Act 1975;

   2.2 Dr E (as single expert) has offered a series of opinions in a report dated 26 March 2021 and, whilst a number of aspects will be the subject of oral submission, materially his ultimate recommendations turned upon whether ‘the mother maintains abstinence from substances’ [E-153/154] – Dr E recording the mother’s assertions that she was abstinent from drugs at interview in February/March 2021 [E-13, 134] and actively engaging in ongoing drug and alcohol counselling [E-38, 136]. Dr E concluded by opining that ‘should the mother not remain sober, the children would be best cared for by the father until this can be achieved’ [E-154];

   2.3 contrary to that asserted by the mother to Dr E [F-4; M-7] and serial similar assertions under oath in these proceedings, testing results record the mother’s continued ingestion of cocaine [F-26ff] - hair follicle testing being positive for the period from 16 September 2020 to 16 December 2020 and results in the ‘high range’ for the period from 19 December 2020 to 19 March 2021; testing results also suggest dilution by the mother with the effect of masking results and subpoenaed documents establish the mother’s treatment of her hair contrary to Orders impairing results; urinalysis records positive results on each of 17 March 2021 and as recently as 10 May 2021 [TB].  Again, and contrary to that asserted by the mother to Dr E, material under subpoena indicates that the mother was not engaging in any assistance/treatment for drug addiction issues [F-38, 39]; and,

   2.4 in accordance with Orders of 11 May 2021 the parties commenced to attend upon a family therapist nominated by the ICL, Ms F.  On 19 May 2021 Ms F wrote to the ICL inter alia as follows ‘I have significant concerns for the care of the children in [the mother’s] care.  I strongly recommend that the mother engage with a 12-month residential rehabilitation program to address her substance use and underlying mental health concerns’ [TBp.160].

   3. Notwithstanding the above, and in light of the father’s continuing attempts to implement the Orders consequent upon his concerns as to the risks posed to the children by the mother’s continued drug use and the mother’s serial non-compliance, on 20 January 2021 the mother filed the immediate Application in a Case seeking to vary the Orders such that inter alia the children live with her for substantial periods on an unsupervised basis.  The substance of that application has been sought to be pressed on several occasions thereafter and is that now listed for hearing –that the mother maintains (and has maintained) such application in light of the matters outlined above is, in itself, of considerable concern including as to the lack of insight demonstrated and acceptance by the mother as to her own difficulties and the impact of the same upon the children.

   4. The issues that attend the mother’s capacity and impairment find a most concerning expression in the difficulties being experienced by the child W – but such behaviours have not been confined to W and have also been directed on a sustained basis toward Z (11 years).  It appears common ground that the mother has actively involved W in the separation of the parties and these proceedings – and Dr E has opined as to the inappropriate involvement of W in the proceedings by the mother and her flatmate Ms G, the concerning ‘model’ provided by the mother’s behaviour, the inadequate guidance provided by the mother and the deterioration in W’s mental state during such period [E-140].  Some of these concerns have also been expressed by the children’s school [F-70ff]. Indeed, W has told the father that ‘mum’s lawyers told me if I stay at the house and don’t return to your care that will help them overturn the court orders when in court’ [F-77] – a proposition which the mother’s lawyers have not put in issue. Further, the mother’s lawyers have involved W in giving evidence in the FVO proceedings [F-54].  Notably, the report of Dr E records that the mother has fundamentally misrepresented her difficulties with drugs to W, leading W to believe that her father is being untruthful to her [E-51, 126; see also F-71].

   5. Whilst of considerable importance, the mother’s continued drug use is but one of the concerns arising for the present welfare of the children.  As emerges from each of Dr E, Ms F, the children’s school and supervision reports [F-59ff], the ‘mother’s general functioning and parenting capacity’ has been (and appears to continue to be) ‘significantly affected’ [E-133]. Such difficulties have manifested themselves inter alia in:

   5.1 the mother’s willingness and/or capacity to comply with serial orders of the Court and her actions in actively seeking to undermine the children’s time with the father pursuant to the Orders [F-56ff, 77ff];

   5.2 the mother’s involvement of the children both in relation to W (as above) and in her communications with them – it is clear that the mother has engaged directly with the children in seeking to encourage and facilitate the children moving into and remaining in the mother’s care and the mother has sought to co-opt the children into keeping such communications and engagement secret from the father [F-78ff];

   5.3 the mother’s behaviours even during supervised time, the professional supervisors expressing concerns as to the mother’s poor decision-making, its impact upon the children and the mother’s aggressive behaviour and inability to contain her emotions – which behaviours are not confined to such times, for example W disclosing her ingestion of alcohol and marijuana whilst in the mother’s care [F-69ff]; and,

   5.4 the school precluding the mother’s attendance there following her attendance at school apparently affected by drugs/alcohol [F-41].

   6. Put simply, it is the father’s concern and contention that the children are and remain at risk in the mother’s care and in any uncontrolled interaction with her such that orders ought be entered in accordance with the Minute of Orders filed on his behalf on 14 May 2021.

   Case Outline of the Mother

   1. This outline is provided in accordance with Orders dated 27 April 2021 in relation to the living and spend time arrangements for W born 2004 (W); X born 2005 (X); Y born 2008 (Y) and Z born 2009 (Z). Counsel apologises for the lateness of the submissions.

   Admissibility issues

   2. The Mother has provided to the Father a list of objections to affidavit material, primarily relating to paragraphs where material that is otherwise before the Court is extracted. The documents will speak for themselves.

   3. Of more significance is the letter to the ICL from Ms F. Objection is taken to the letter being tendered into evidence or relied upon for the truth of any fact asserted or opinion provided within the letter.

   4. Ms F was engaged for non-reportable family therapy pursuant to Orders of 11 May 2021. Section 10D of the Family Law Act 1975 (Cth) applies to the process and prohibits disclosure of family therapy except in limited circumstances. The Mother asserts no such circumstances apply to the contents of the letter to the ICL dated 19 May 2021.

   Further Interim Order Sought

   5. Order 5 of the Orders of 17 February 2021 provided for a change to the parenting arrangements for W and X, absent any application by 10 March 2021.

   6. By Application in a case filed 11 March 2021, the Father sought that that order be stayed in relation to X but that he spend unsupervised time with the Mother in accordance with his wishes and as agreed between the parents in writing. The Father also sought orders for W to attend confidential counselling. That Order was made by consent of the parties on 12 March 2021.

   7. By his minute of Orders filed 14 May 2021 the Father now resiles from his position in relation to X and W and seeks that all children reside with him and have supervised time with their Mother on a much-reduced basis (from 32 hours each fortnight to 10 hours each fortnight). It seems part of that reduction is to provide the children with greater sporting and social opportunities [F p9].

   8. He also seeks that further Orders be negotiated between the parents in not less than 7 months subject to the Mother’s attendance at rehabilitation and clean hair follicle test.

   9. The Mother seeks that the older two children live with their parents in accordance with their wishes and that the younger two children live on a week about basis. She also seeks ongoing urinalysis and hair follicle testing.

   10. Supervision was requested by the father and consented to by the Mother due to her drug use and early rehabilitation [F p3].

   11. Both parties acknowledged to Dr E a history of occasional drug use [FR p5 & 13]. The issue in this case arose from the Mother’s heavy, problematic use and subsequent rehabilitation for Substance Use Disorder (Cocaine).

   12. The Mother has made significant progress in her rehabilitation and abstinence, notwithstanding a relapse in March 2021. The Mother has insight into her drug use and is seeking appropriate supports [M Annex; FR 21, 38 & 136; F Annex A].

   Risks to the Children

   13. The evidence in Dr E’s report and the Father’s material details a risk to the children of the Mother’s heavy drug use in 2020. Each party acted at that time to protect the children from prospective harm.

   14. Dr E saw the parties on 23 February and 8 March 2021, only 3 months since the mother’s last use (at that time).

   15. Both parents have acted appropriately on advice from Dr E in relation to W [FR p100; Fa p68]

   16. There are risks to the children not having their wishes regarded, seen already in running away behaviour by Z, and W choosing to live alone if not with her Mother.

   17. Dr E sets out what should occur if the Mother is drug free, on a staged process to ensure sobriety [FR p149 - 153]. Further testing and continued access to psychological supports assists to ameliorate the risk.

   18. There is no indication in more than 77 hours of supervised visit notes that the children experience any distress in the Mother’s care arising from her “behaviours and poor judgement in her communication with them”. At its highest, the reports suggest they have been exposed to an argument between their parents and the Mother being rude to the supervisors.

   19. The Court must balance Ms F’ opinion – without knowing the foundation for that opinion – against the hours of supervision notes and the expert opinion of Dr E.

   20. The Father has the additional protection of an ADVO made by consent on a without admission basis on 17 May arising from the Mother attending the Father’s home without permission on 9 April 2021.

4. The Court has the benefit also of a significant joint tender bundle.  Everyone has had Dr E’s comprehensive report from earlier this year for some time.  This report was admitted into evidence as Exhibit AM1 on 7^th May 2021.  Alas, current issues have significantly overtaken the irenic tone and substance of that otherwise detailed Report.

   Preliminary – but repeated – observations

5. At the outset, of no particular import to the parenting Orders to be made, I note (a) the egregiously strained co-parenting relationship between the parties, and (b) the continuing, almost egregious consumption of Court resources, which ultimately has only led to the spiralling non-compliance with Orders and consequent further Court events.  Doubtless too that everyone’s legal and other costs have continued to soar.

1. Given the quite narrow scope of the issues in dispute, many far-more troubling matters before the Court, the parties to which do not have the resources available to them that the parties in the current matter do, occupy much less of the Court’s scarce resources than the current proceeding.  Indeed, this relatively straight-forward matter continues to demand – in some ways needlessly, and because the parties are unwilling and or unable to reach basic agreement on almost everything – the Court to assume a not-unfamiliar role of being a third-wheel in something of the role of a co-parent.

2. The principal issues remain, as they have done for some time, on the one hand, W’s mental health (and living situation, among other related issues), and on the other, the Mother’s consumption of drugs, her use of alcohol and its impact and import of these consumables on her parenting.  The flow-on tensions for her, and for the children, in the time-with arrangements remain necessarily problematic.  All of the children, except W, live with the Father.  Until recently, the children have spent relatively regular time with the Mother, but with semi-regular hiccups of one kind or another, mainly regarding the youngest child, Z.  Because the detail of the issues is otherwise laid out in the parties’ voluminous material, which is summarised in various respects in earlier judgments, it is unnecessary here to rehearse various, more minute issues that have arisen thus far over the course of the litigation. 

3. Should it need to be noted, there is no question that the parents love the children unreservedly. It is also the case that, by and large, the children love their parents. However, in my view, it is important to record that the circumstances of the matter regarding the sobriety of the Mother remains an obvious challenge to her, as it does to the Father and to the Court. Because her sobriety remains so problematic, in accordance with s.60CC(2A) of the Family Law Act 1975 (Cth) (“the Act”), the Court must take a cautious and protective approach to the Orders to be made that are in the children’s best interests under s.60CA.

   Consideration – The Mother’s Drug-taking

4. In addition to largely accepting the submissions of the Father, I note the following.

5. At one level, the options available to the Court regarding parenting matters here are almost at an end.  Indeed, the blunt instrument of the Court and its enervating processes, can only ever do so much.  As it has done virtually since the proceeding started late last year, almost everything depends, for the most part, upon the Mother stopping her use of drugs and alcohol.  The Court was assured at the recent interim hearing on 1^st June that she has “turned the corner”, and that she recognises, and takes responsibility for, her actions, albeit rather belatedly.  I hope this all proves to be true.  The Court needs to be convinced by the Mother – by independent evidence – that her best intentions, and her newly announced conversion to sobriety in all its aspects, are backed by action.

6. To put it more colloquially and perhaps a tad bluntly: talk is cheap.  It is actions that count.  The Mother’s actions on the road to sobriety need to be clear, consistent, unequivocal and evidence-based.  Everyone involved in this matter has heard the Mother’s best intentions previously.  I have no doubt that they were genuinely held at the time, and remain so.  Her new-found ownership of having been in denial about her drug-taking and related matters, while an important and significant first step, must now be followed up with putting her words and intentions into practice.

7. Importantly, the Mother advised the Court that she has now enrolled in an intensive, 3 month, daily rehabilitation course.  She (or the Court) does not yet know when this course will commence.  The Mother has done other rehabilitation courses – thus far, to little effect.

8. Summarily stated, the Mother further proposes (to speak generally) that the current Orders remain in place, which include the children spending time with her supervised.  Then, she says, after 3 months of further drug tests (including hair follicle testing), there should be a self-executing Order that increases the children’s time with her.  The details are set out in her latest, and very late-breaking, Minute of Order.

9. This last proposed set of Orders from the Mother seems to have been crafted in circumstances where the Mother had not disclosed, until well past the 11^th hour, a positive drug screen on 10^th May.  While she disclosed many drug tests in her most recent Affidavit, the positive one undertaken on 10^th May was curiously, and unfortunately, not recorded or otherwise disclosed.  Why this was the case – i.e. why it was omitted, and why it was positive – were never properly explained.  This positive test and the lack of context and circumstances were, in my view, matters of particular significance. 

10. To stress this point: the failure to refer to, and to give details of, the failed drug test on 10^th May 2021, was a very serious omission.  Perhaps even more significantly, the positive drug test signals how problematic, if not almost desperate, the situation is for the Mother – despite protests and earnest but unfulfilled promises still ringing in the Court’s ears from previous hearings.

11. The taking of drugs at the time, in all of the current and ongoing circumstances, and at this stage of the litigation, regrettably showed much about the Mother. It showed her incapacity to appreciate, either at all or properly, the diabolical position in which she has placed herself and her children. There is no doubt that she loves the children desperately (as they do her). However, either she is unable, and or unwilling, without much more assistance, to break her obvious drug habit. On the current state of the extensive drug testing evidence (including the expert report of Dr H), the Mother is a risk not only to the children but also to herself. To speak again somewhat colloquially, unless and until she gets her act together and gets off – and stays off – the gear, all she is doing is providing needless pain and suffering to herself and the children. The Court’s protective responsibilities towards the children in the current fragile circumstances, as already noted and prescribed by Part VII of the Act, are and must remain acute.

12. The Court will need to be satisfied for a period longer than the 3 months proposed by the Mother that she can be relevantly, and responsibly, abstinent.  Her time with the children will be necessarily reduced, in part because of her rehabilitation regime but also because I need to be satisfied that she can remove herself, with help, from the onerous and challenging world that is coloured by her drug-taking.  Before there can be any relevant change in the current Orders, she needs to provide the Court with a minimum of 4 months of clear drug screens, with that time commencing from the commencement of her 3 month intensive rehab course – whenever that is (and which must be notified to the Court).

    Consideration - W

13. I can be much briefer in my general remarks regarding W.  She is now 17 years and some months old.  She will turn 18 early next year and will then be formally beyond the purview of the Court. 

14. W is heavily invested in her Mother’s welfare – understandably – but she does not comprehend, or accept, that the culpability or basic responsibility for her Mother’s current plight is, in large measure, a result of the Mother’s own conduct.  While not granting a form of judicial absolution for the Father and the conduct of the parties when they were together, W needs to be disabused of the notion that the Mother’s state of well-being (or lack of it) is directly related to or caused by the Father.  While-ever W believes this to be the case, it only adds to the unreality and fog in which she currently lives.  This further issue, like much else, remains in the Mother’s hands to resolve.

15. There is no question that W needs assistance for a range of needs.  Part of this includes that, for the foreseeable future, she should reside at the Suburb A property with her paternal Grandmother.  The Mother must stop visiting that property and engaging with W.  If the Mother continues to turn up at that property, her time with all the children will cease.  There will have to be a period of time before she can resume time with the other children.

    Conclusion

16. The Independent Children’s Lawyer (“the ICL”), who has worked tirelessly in this matter, pointedly and fairly noted (with perhaps a hint or more of exasperation and exhaustion – shared by the Court) during the latest hearing that the Court (or anyone else) cannot effectively undo what has been done in the last 17 or so years of parenting by the parties.

17. With a little tweaking of the kind already noted (e.g. a longer period of drug-testing; reduction and or cessation of the Mother’s time if she continues to disregard Court Orders, W living at the Suburb A property), the Orders as sought by the Father are currently, and for the foreseeable future, in the children’s best interests.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.

Associate:

Dated:       26 July 2021

Annexure A – Oral (unpublished) reasons for Orders made 17^th February 2021

1.There are four children of the parties’ marriage.  They are aged 16, 15, 13 and 11.  Things seem to be going relatively satisfactorily for the older three children.  The most recent of many recent Applications primarily concerns 11 year old Z.

2.For these intentionally, very abbreviated reasons, which would be revised if required, it is sufficient to note the following matters.  I stress that these are observations, or the Court simply noting various factual and related matters.  This is also to say that because of the attenuated and interim nature of the proceedings, I cannot and do not make any findings.

3.Put shortly, and somewhat colloquially, (a) the parents do not play well together following a relatively recent break-down of their long relationship; (b) they each have a range of issues, some of which are well-documented, while others are awaiting various formal assessments of different kinds, some of which involve the children (here I am referring to the engagement of Dr E to prepare a report in the quite near future); (c) the parents are very well resourced which, it would seem, have yet to be completely channelled into quelling the various controversies. 

4.Regrettably, from something more than passing observation, I note further the following. 

5.There is a plethora of affidavits filed already.  They are of prodigious length but very often of very limited utility, except for the benefit of the lawyers.  Their length consistently breaches the Court’s Practice Direction.  Such Direction means nothing; it is clearly and wilfully breached.  The lengthy affidavits regularly annex voluminous correspondence between lawyers, which also assists me not a jot.  If such practice continues it is likely that costs Orders, even personal costs orders, may be made.  The conduct of matters generally seems to be, intentionally or unintentionally, rather stoking the difficulties rather than ameliorating them.

6.The parents agreed upon, and the Court made, interim parenting Orders on 16^th December 2020.  Although some water has flowed under the bridge since then, and the children seem generally to have voted with their feet to some degree, the principal issue immediately for consideration and determination concerns 11 year old Z. 

7.As an observation only, he seems to be a little bit of a free-wheeler, so to speak.  He seems to have been given, either over time or just in the current state of flux that engulfs everyone, extreme licence by the parents.  Put another way, he seems to be driving the parenting bus while the parents are having various kinds of contest down the back, or maybe they have not fully appreciated that the bus has already left the stop and is swaying all over the road with no clear destination in sight, or taking sufficient notice of the fact that someone under-age and inexperienced is driving it.  They seem also to have taken their eye off their parenting responsibilities, especially concerning Z.

8.As the ICL fairly put it in submissions, the other children seem to be doing not too badly, all things considered.  The eldest, W, got special mention for her maturity and comprehension of what was going on at all levels.  That said, and accepting her closeness to Z, it should not fall to her to essentially either co-parent her siblings, and/or to make up for any other deficiency that arises from the distracted and other kind of parenting that is going on (or not going on, as the case may be) at the moment.  Her young shoulders should not have to bear that load.

9.The basic argument of the Father is that the December 2020 Orders should be complied with, most notably that Z (and his other siblings) shall live with the Father and spend supervised time with the Mother.  The issue of supervision has rather gone by the board for the moment, subject of course to drug testing and other results in due course.  And Orders regarding 16 year old W are of no practical or other utility.

10.Z clearly has little or no regard to parental authority at the moment (assuming that he has had it in the past).  He also seems to have little regard to any other authority also in the light of his recent engagements with the ICL and subsequent conversations with the Father.  “Conversation” might be over-stating Z’ remarks with his Father.  Curt, and worse, would be more apposite.

11.The Mother’s argument, summarised, was that (a) given how close or proximate is the meeting with, and report of, Dr E, it would be more prudent to wait to see what the recommendations of Dr E are before directing Z to return to the primary care of his Father, and (b) there could be a risk to this particular child if forced to do something he does not want to do.

12.The ICL noted, among other things, that to leave Z to his own devices would be, to coin the well-used phrase, to leave him driving the parenting bus. 

13.I share the same views about the derogation of parental responsibility.  It is entirely inapposite, in my view, for an eleven year old to be dictating to parents what will or what will not be done.  There is also email and other correspondence, notably from Z’ school, that indicates certain concerns for his welfare exhibited by his poor state at school.  I need not go into detail here.

14.Put shortly, the parents agreed only two or so months ago as to the living and spend-time with arrangements for the children.  It can hardly be the case that neither of them knew how their children would behave or react to the consent Orders, albeit that things were in a state of disarray and various other concerns in the family following the break-up and other serious matters.  Clearly they know their own children, including how they would likely behave or react in difficult circumstances such as they are at the moment. It is for the parents to ensure that the children know what is to happen regarding parenting arrangements.  It is also for the parents to ensure that the children comply with the agreed arrangements.

15.In the current instance with Z, in my view it is the Mother who is to ensure that Z returns to his Father’s primary care.  Z needs to have it clearly explained to him the risks for him, and notably for the parent who does not comply with Orders of the Court.  After the Mother speaks to Z, the Court requests that the ICL do likewise, notwithstanding the mutual difficulties last time around.

16.The Father seeks to have the consent Orders complied with.  In the current circumstances, the Mother must ensure that this also occurs, for Z’ sake and for hers.  Put another way, litigation and the regular engagement of the Court is a poor co-parenting arrangement, as the parents will learn if they keep going down this long and winding road.  It is likely to be a very costly one, and not just in financial terms.  The grief, dislocation, emotional and psychological damage from ongoing conflict, for children especially but equally so for adults, can be devastating for a very long time.

17.Subject to any other agreement in writing between the parties, the Orders made by consent on 16^th December 2020 shall continue to apply.  Z is to be returned to the Father’s primary care within 48 hours, otherwise, with very great reluctance, upon notification to the Court that this has not occurred, a recovery Order may issue.

18.In my view, subject to different Orders being made in relation to (a) 16 year old W (who will turn 17 late next month), and (b) X (who is 15), both of whom shall live and spend time with each parent in accordance with their wishes, and (c) subject to the supervision requirement (which in turn is subject to the drug and alcohol testing results), the Orders made in December are and remain in the children’s best interests.  They may well be re-visited in the light of Dr E’s report, which should see the light of day relatively soon.

19.The change in Orders regarding W and X will be made within 7 days absent any other Application being filed.  Again, one hopes that common sense prevails.

20.Clearly the children have had a good and close relationship with both parents in the past.  Currently, much is highly strained and in various states of disarray.  The law has no magic wand.  It is a blunt instrument in circumstances where more delicate instruments and tactics are required.  A scorched earth approach, by definition, is utterly destructive.  Some degree of peace and order needs to return and to prevail.  The children will likely take their lead from the response of their parents.  The fundamental question is what will be the responses of the parents: more chaos and discord, or (especially after Dr E’s report) some pause, reflection and more considered responses?

21.On a separate matter, I noted during the brief hearing last week that a transfer to the FCoA will only place the matter into a queue of even longer delays.  Final hearings in that Court in Canberra are now pushed out to 3 years.  It’s only 18 months to 2 years in this Court – such are the ongoing lack of resources available to the Courts.  The vaunted non-merger/merger of the Courts will not change a thing.

22.Although mentioned previously, the parents have to decide how long they plan to stoke the litigation fires, or if some other, less damaging course to them and especially the children is to be undertaken.  The longer the contest remains in the forum of the Court it is more likely that more damage and injury will be wrought.  Private mediation, after the release of the Report, and in any property aspects, arbitration, will be much less public and ever so much quicker.  Commercially, and most importantly, in terms of personal relationship and personal well-being of the children and their meaningful relationships with their parents, litigation is invariably the worst-case option.

23.I make the Orders as indicated, which are in the best interests of the children.

Annexure B – Oral (unpublished) reasons for Orders made 7^th May 2021

1.When a new Federal Court Judge is formally welcomed, it is quite common for part of that ceremony to refer to the member of the Court to be provided with “this week’s edition of the Migration Act”, because amendments to that onerous piece of legislation are so frequent.

2.In a somewhat similar vein, the Court is dealing with what almost amounts to the weekly, or monthly Application in this matter, which is relatively short in its duration in this Court but long in the frequency with which Applications are made in this (and other) Courts.  And, for the purposes of expedition, I will not repeat, but would incorporate into these reasons, most of the reasons delivered on 17^th February 2021 in relation to the Orders made on that date.

3.The matter remains listed for yet further hearing on 1^st June.

4.(omitted)

5.Again in a slightly similar vein, the latest mini-chapter in this mini-saga was and remains all about W, the 17 year old, eldest child of the parties.  As set out at some length in the Report of Dr E, he confirms that she is, and on the latest evidence remains, a somewhat troubled and vulnerable young lady.

6.Before proceeding, for more abundant caution, I will admit Dr E’s Report into evidence as Exhibit AM1.

7.As a general observation, in all of the circumstances, in my view the most prudent course is to make the least number of Orders at this time and to await the next chapter in early June.  Perhaps a case of “less is more.”

8.The matter was urgently listed following the Mother’s also urgent AIC, filed 4^th May.  Pursuant to directions made in Chambers, the Father filed a Response to this Application on 6^th May.

9.The Mother’s Application arose, ostensibly, from Orders made in Court I on 14^th April.

10.Both parties have filed, pursuant to the Orders made in Chambers, an outline of submissions.  Those submissions should be taken to be incorporated into these abbreviated reasons.

11.Some agreement was reached, after some “to-ing and fro-ing”, to put it neutrally.  It is now agreed that the parties and children will attend family therapy.  Within 7 days the parties are to finalise who is to conduct that therapy.  The Father’s Orders 4 – 6 sufficiently cover the mechanics of that organisational process.  In the light of what I will call the in principle agreement in this regard, I will make those Orders.

12.A number of other matters were canvassed, again bearing in mind that the matter is coming back for another bout of litigious Hunger Games on 1^st June.  Briefly stated, those issues relate to (a) the Mother’s compliance with, and the reporting on, drug testing, (b) the Mother’s living situation in circumstances where the Family Violence Order precludes her from attending the former family residence in Suburb A, and (c) W’s living situation and support.

13.Pending further Order, and in the light of the undertaking given by the Father through his Senior Counsel, W shall continue to live at the residence in Suburb A.  It is imperative that there be a responsible adult present with her when she is not at school.  That responsible adult shall be the paternal Grandmother (who has been living with W from time to time), and on any occasion when the Grandmother is unable to be present, a relative from either side of the family must be present.  The Court acknowledges and accepts the Father’s undertaking to ensure that this regime of support for W occurs.

14.In relation to the Mother’s living situation, which does not seem to have been raised in the Mother’s material, and certainly not in her Orders sought, I note (as recorded by the Father’s Senior Counsel), that the Father had anticipated this situation and has provided an undertaking that he will ensure that the Mother is provided with relevant accommodation.  Among other things, such an issue ventures into the realm of property proceedings that are now formally before the Family Court of Australia – or whatever form of description it later becomes.

15.The most immediately vexing issue relates to the communication between the Mother and the children.  The children, of course, may send messages to their Mother at any time.  And it is now clear, at least clearer than it was in the Mother’s Application, that the children continue to spend time with the Mother each week.

16.In my view, the Mother may acknowledge and message by the children.  She may also offer her love and support.  She must not do or say anything else.  There have been far too many grey areas and conversations with the children about parenting arrangements and this litigation.

17.For the umpteenth time, the resolution of the matter remains in the hands of the parties.  It is upon their heads and in the light of their actions as to how long they intend to keep the disputes running with the flow-on effects for them and critically for the children who are clearly suffering and will continue to do so while-ever their parents keep fighting.